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HomeMy WebLinkAboutAttachment 3 Proposed Bozeman Fiber bylaws 4-22-151 PROPOSED BYLAWS OF BOZEMAN FIBER, a Montana Nonprofit corporation Article I - Name The name of the Nonprofit corporation is Bozeman Fiber (hereafter referred to as “the Nonprofit” or “Bozeman Fiber”). Article II – Mission, Purpose and Powers 2.1 The mission of Bozeman Fiber is to provide next generation broadband network infrastructure to support public sector telecommunications needs, bridge service gaps, enhance redundancy, and provide access to advanced telecommunications capabilities to enable the private sector to use shared infrastructure to better deliver broadband services. The purposes and powers of Bozeman Fiber shall include: A. Designing a broadband network that will support expansion over time to be extended to all areas of the City of Bozeman with possible additional expansion to adjacent economic growth zones outside the City limits. B. Deploying a broadband network capable of delivering scalable amounts of bandwidth needed by any business or organization connected to the network, with the desired quality of service required to make Bozeman businesses competitive in the world economy. C. Operating a single high performance lit fiber (Layer 2) network in accordance with an open access, wholesale business model, with all business and residential services provided by qualified private sector providers. The network will facilitate private providers’ ability to deliver a variety of advanced services over a shared network infrastructure in a competitively neutral and nondiscriminatory manner. D. Negotiating and contracting for broadband services on behalf of government entities. E. Retaining and/or contracting for staff and consulting services to manage the organization and operate the network. F. Operating at all times in a manner that will establish and preserve its status as a tax-exempt entity under any applicable provision of Section 501(c) of the Internal Revenue Code. G. Working cooperatively on other broadband-related issues as determined by its Board of Directors. 2 Article III – Board of Directors 3.1 The business and affairs of the Nonprofit shall be managed and conducted by the Board of Directors. 3.2 Board of Directors. The Board of Directors shall initially consist of seven (7) individuals, all appointed by the City Manager: • One (1) seat shall be a representative of the City. • One (1) seat shall be a representative of a financial institution that has loaned or otherwise dedicated financial resources to the Nonprofit. • Two (2) seats shall be a professional individual with experience in the broadband business. • One (1) seat shall be a professional individual with experience in healthcare. • One (1) seat shall be a representative of Bozeman School District #7. • One (1) seat shall be a representative of the community at large. 3.3 Terms of Office. The terms of the City, financial institution, and broadband business representatives shall be four (4) years. The initial terms of the Bozeman School District #7, healthcare, and community at large representatives shall be two (2) years, after which subsequent appointments for these positions shall be four (4) years. Directors shall serve until their replacements, representing the same constituency, are duly qualified and appointed. 3.4 Additional Directors and Qualifications. A. Beginning four years after the formation of the Nonprofit, the Board may appoint up to two (2) additional Directors in each two-year cycle. The total number of Board members shall not exceed eleven (11). At least one (1) of the additional two (2) Directors appointed in each cycle shall be representatives of the City, so that at each subsequent cycle of Director appointments, at least two (2) Directors shall be City representatives. B. The City representatives shall be appointed by the City Manager and shall be individuals with experience and responsibilities in economic development, information technology, and/or finance. The Bozeman School District #7 representative shall be appointed by the Superintendent. The other Director positions shall be representatives of the business community with experience in broadband communications and/or network operations, and representatives of institutional users of broadband services including, without limitation, education and health care institutions. C. Directors must demonstrate an interest in the purposes and activities of the Nonprofit and support the purposes of the Nonprofit as described in these Bylaws. Directors must be willing to donate their time, advice, skill, energy and support in furtherance of the purposes of the Nonprofit. Without limitation, the Nonprofit shall seek to include on the Board of Directors members with backgrounds and interest in the area of the expansion of broadband services in the City and the surrounding area. 3 3.5 Meetings. A. Regular Meetings. Regular meetings of the Directors shall be held at least four (4) times a year. It is anticipated that for at least the first year of operations, the Directors will be expected to meet at least twice per month. B. Special Meetings. Special meetings of Directors may be called by (2) the President of the Board of the Directors, or (3) at least two (2) members of the Board of Directors. Three (3) days’ written notice of a special meeting of the Directors, and the subject matter of that meeting, shall be given to the Directors. Notwithstanding the foregoing, discussion at special meetings of the Directors need not be limited to matters set forth in the agenda. C. Notice. Notice of regular and special meetings of the Directors shall be sent to all Directors in writing no less than three (3) days prior to the meeting. Notice shall be sent to each Director at the last address the Director has furnished to the Nonprofit for this purpose. Alternatively, notices may be sent to each Director by electronic mail, to the electronic address furnished to the Nonprofit for this purpose. D. Waiver of Notice. A Director may at any time waive a notice required by these Bylaws; the waiver must be in writing, be signed by the Director entitled to the notice, and be filed with the minutes or the corporate records. A Director’s attendance at or participation in a meeting waives any required notice of the meeting unless the Director, upon arriving at the meeting or prior to the vote on a matter not noticed in conformity with these Bylaws, objects to lack of notice and does not vote for or assent to that action. E. Annual Meeting. The annual meeting of the Board of Directors shall be held in November of each year, at a date, time and place fixed by the Directors. F. Public Session. Except as required by law, meetings shall generally not be open to the public, however the Directors may vote to allow public attendance and participation at any meeting. 3.6 Quorum. The presence of a majority of the total number of Directors with voting privileges shall constitute a quorum for the transaction of business at all meetings of the Board. The act of a majority of the Directors present at any meeting at which a quorum is present shall be the act of the Board. Attendance and participation at meetings may be permitted by conference call or videoconference, at the discretion of the Board, by which all persons participating in the meeting can hear or communicate with each other at the same time, or within a reasonably amount of time necessary for appropriate communication. Such participation shall constitute presence in person at the meeting. 3.7 Voting. Each Director shall have one vote. There shall be no voting of the Directors by proxy. Except as provided in Section 3.6 or Section 3.8, a Director must cast all votes in person at Board meetings. Voting may, at the discretion of the Directors, be verbal, in writing and/or electronic. Unless otherwise stated herein or in the Articles of Incorporation, 4 decisions of the Nonprofit shall be by a majority vote of those Directors present at any duly called meeting where a quorum is present. 3.8 Action by Directors Without a Meeting. Any action required to be or which may be taken at a meeting of the Board may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all of the Directors entitled to vote with respect to the subject matter thereof. Such consent may be executed in counterparts and/or electronically, and shall be effective as of the date of the last signature thereon, unless the consent specifies a different effective date. 3.9 Compensation. Directors shall receive no compensation from the Nonprofit for their services. Directors may be reimbursed for direct expenses incurred in the completion of their duties as specified by the Board. 3.10 Loans. No loans shall be made by the Nonprofit to any Director of the Nonprofit. 3.11 Resignation: Any Director may resign at any time by giving written notice to the President of the Board of Directors. The resignation of any such Director shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 3.12 Removal. Any Director may be removed at any time, with or without cause, by a two-thirds (2/3) vote of the currently elected and serving Directors. 3.13 Vacancies. Any vacancy occurring on the Board of Directors as the result of the death, resignation, or removal of a Director shall be filled by appointment by the affirmative vote of a majority of the remaining Directors, provided, however, that vacancies in Director positions appointed by the City Manager shall be filled by the City Manager, and vacancies in Director positions appointed by the Bozeman School District #7 Superintendent shall be filled by the Superintendent. A Director appointed to fill an aforementioned vacancy shall serve for the unexpired term of his or her predecessor in office or until his or her successor is elected and qualifies. 3.14 Attendance. It is the policy of the Board of Directors that to remain in good standing, all Directors shall attend at least two thirds (2/3) of the regular meetings of the Board held each year and that Directors shall not be absent for more than three consecutive regular meetings of the Board. The annual meeting of the Board of Directors shall be considered a regular meeting and attendance by electronic means pursuant to Section 4.6 shall be considered attendance. Any Director violating the attendance policy specified in this section shall be notified in writing of the Nonprofit’s attendance policy, and may be considered for removal. 3.15 Operations. The Board is responsible for the operations of the Nonprofit, including all actions to support the overall operations of the broadband network, and the affairs of the Nonprofit in accordance with the mission, purpose and powers set forth in these Bylaws. 5 The Board may delegate all or any part of these responsibilities to paid staff or contractors, in the Board’s discretion. Article IV – Board Officers 4.1 Number and Election. Board officers shall serve for two (2) year terms and until their respective successor shall have been elected and qualifies. The Board officers shall be the Board President, Vice President, Secretary, and Treasurer, and, at the option of the Board, Assistant Secretary and Assistant Treasurer, each of whom shall be elected by the Board at the annual meeting in two (2) year increments. The Board may at its discretion, create additional officer positions and obligations. 4.2 President. The President shall preside at all meetings of the Board. The President may represent, or appoint a person to represent the Nonprofit and the Board, at any meeting at which such representation is requested. The President shall, when present, preside at all meetings of the Board of Directors. The President may sign deeds, mortgages, bonds, contracts, or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Nonprofit, or shall be required by law to be otherwise signed or executed. The President shall have such additional authority, powers, and duties as are appropriate and customary for the office of President, and as the Board may prescribe from time to time. 4.3 Vice President. The Vice President shall have such authority, powers and duties as are prescribed by the Board or President. The Vice President shall preside at any meeting at which the President is absent or incapacitated. Upon the death, absence or disability of the President, the Vice President shall have the authority, powers and duties of the President until the Board has the opportunity to elect a new President. 4.4 Secretary. The Secretary shall give, or cause to be given, notice of meetings of the Board pursuant to Section 3.5C, keep the minutes of such meetings, keep the Nonprofit seal, impress or affix the Nonprofit seal to any instrument requiring it (and, when so impressed or affixed, it may be attested by the Secretary's signature), and have such other authority, powers, and duties as are appropriate and customary for the office of Secretary or as the Board of Directors or the President in the scope of the President's duties may prescribe from time to time. The Secretary shall be the custodian of these Bylaws and shall keep and take to each meeting an up-to-date copy of the Bylaws. The Secretary shall keep the official record containing the names and addresses of all Directors at the registered office or principal place of business. In the event of a vacancy in both the office of the President and Vice President, or during their absence or inability to act, the Secretary shall exercise the powers and duties of the office of the President. 4.5 Treasurer. The Treasurer shall be familiar with the funds, other assets and budget of the Nonprofit and with the person or entity retained to manage and operate the broadband network, shall be responsible for the filing of any financial filings required by law or regulation of any governmental agency. The Treasurer shall, subject to any limits imposed by the Board or the President, be one of the individuals with authority to sign and endorse checks and warrants in 6 the Nonprofit’s name and on its behalf. The Board may authorize additional Board Officers or employees to discharge funds and may limit that authority as he or she sees fit. Working together with the President and with the person or entity retained to manage and operate the broadband network, the Treasurer shall provide a report on the financial condition of the Nonprofit quarterly, and shall cause an annual budget for the Nonprofit to be prepared and submitted to the Board for review, discussion, modification and approval prior to the 1st day of October of the year preceding the budgeted year. The Treasurer shall cause an audit to be performed at the direction of the Board. 4.6 Assistant Secretary, Assistant Treasurer. An Assistant Secretary or Assistant Treasurer may be elected by the Directors to assist the Secretary or Treasurer in his or her duties, and to act for him or her when the Secretary or Treasurer is unavailable. 4.7 Removal, Resignation and Vacancies. Any Board Officer may be removed from his position as a Board Officer at any time by the Board by a two-thirds (2/3) vote of the Board. The Board or the President may remove any person appointed by the President to any position at any time. Any Board Officer may resign his position as a Board Officer at any time by giving written notice of the Officer's resignation to the President or to the Secretary, and acceptance of such resignation shall not be necessary to make it effective unless the notice so provides. Any vacancy occurring in any office, the election or appointment to which is made by the Board, shall be filled by the Board for the unexpired portion of the term and until their respective successor is elected and qualifies. Any vacancy occurring in any other office may be filled by the Board or the President for the unexpired portion of the term and until their respective successor is elected and qualifies. Article V – Members 5.1 The Nonprofit shall have no members. Any action which by statute would require notice to, the presence of, or the vote, consent, approval, or other action by members shall only require notice to, the presence of, or the vote, consent, approval or other action by the Board of Directors. 5.2 Associates. Nothing in this Article V shall be construed as limiting the right of the Nonprofit to refer to persons or entities associated with it as “members,” even though such persons or entities are not members in the statutory sense, and no such reference shall constitute anyone as a member, within the meaning of applicable law. Article VI – Committees 6.1 Authorization of Committees of the Board. The President or a majority of the Board of Directors, from time to time, may designate and appoint Directors and other individuals, with their consent, to one or more committees. Both Directors and other individuals may serve on committees as full participants therein. 6.2 Advisory Committee. The Directors shall create the membership criteria for an Advisory Committee, to be comprised of individuals representing entities that support the work 7 and the mission of the Nonprofit. The role of the Advisory Committee shall be to keep abreast of the work of the Nonprofit, the development of the broadband network, and to periodically advise the Directors regarding matters relating to the mission and operations of the broadband network, as the Advisory Committee or the Board of Directors deem appropriate. A director shall serve as the ex officio chairman of the Advisory Committee. In addition to any other Advisory Committee members appointed by the Board, the Bozeman City Commission, the Gallatin County Commission and the Trustees of Bozeman School District 7 may, at their discretion, appoint one of their members to serve on the Advisory Committee. All Advisory Committee members may attend any meetings of the Board of Directors. 6.3 Technical Committee. The Directors shall appoint a Technical Committee. The Technical Committee may make recommendations to the Board regarding any aspects of the broadband network, as needed or as requested by the Board or its network operator. As an example, and not by way of limitation, the Board of Directors or its network operator may seek the advice of the Technical Committee prior to the purchase of equipment related to the infrastructure, software or hardware or the adoption of technical standards that have the potential to impact the network operations or the overall operations of the infrastructure. The Technical Committee shall be comprised of individuals with particular expertise and experience in the technical development, operations and maintenance of broadband networks. A director shall serve as the ex officio chairman of the Technical Committee. 6.4 Financial Committee. The Directors shall appoint a Financial Committee. The Financial Committee may make recommendations to the Board on matters related to the Nonprofit’s financial matters, including, without limitation, the financing of the broadband network, and the financial plan and development of the annual budget for the Nonprofit. ARTICLE VII – Budget, Finances, Contracts 7.1 Annual Budget. The Board shall approve an annual budget by a vote of a majority of the total number of Directors. The annual budget shall be submitted to the Board no later than October 1st of each year, and adopted prior to the start of the Nonprofit’s fiscal year. Any amendments to the budget as may be deemed appropriate from time to time may be approved by a simple majority of a quorum at a properly noticed meeting of the Board. If a new budget is not approved as set forth in this Section 7.1, the last previously approved budget shall continue from year to year, until a new budget is adopted as provided herein. 7.2 Contracts/Purchases. The Board of Directors may enter into and may delegate to its network operator or other similar staff member or contractor the authority to enter into any contract for the purchase of goods or services in the name of the Nonprofit. Such authority may be general or confined to specific instances. 7.3 Loans. No loans shall be contracted on behalf of the Nonprofit and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances. 8 7.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Nonprofit shall be signed by such Board Officer or officers, staff member or members, agent or agents of the Nonprofit, and in such manner as shall from time to time be determined by resolution of the Board of Directors. 7.5 Deposits. All funds of the Nonprofit not otherwise employed shall be deposited from time to time to the credit of the Nonprofit in such banks, trust companies or other depositories as the Board of Directors may select. 7.6 Gifts. The Board of Directors may accept on behalf of the Nonprofit any contribution, gift, bequest or devise for the general purposes of or for any special purposes of the Nonprofit. 7.7 Fiscal Year. The fiscal year of Bozeman Fiber shall begin on the first day of January and end on the last day of the following December. ARTICLE VIII – Initial Project Funding/Network Construction/Operating Agreement/Network Assets 8.1 It is anticipated that both monetary funding and network assets will be contributed to the start-up of the Nonprofit’s operations. The specific terms of these transactions will be entered into through one or more agreements by the Board. Among other terms, these agreements will recognize that if the City contributes resources to undertake initial engineering for network design, construction and project management, such assistance shall be provided to the Nonprofit. All such costs incurred by the City in connection with the network design, construction and project management shall be paid by the Nonprofit, as consideration for such work. 8.2 Ownership of Network Assets. A. Initial Assets. It is anticipated that some of the initial network assets will be made available to the Nonprofit by the City based upon terms and conditions to be negotiated between the parties. B. Sale of Assets. In consideration of the City’s initial support of and contributions to the formation of the Nonprofit, should the Nonprofit determine that it is in its best interests to sell any broadband network assets, the City shall have the right of first offer to acquire those assets. The City shall be provided notice of the assets to be sold, and the parties shall have thirty days (or longer, by mutual agreement) to negotiate a purchase price. If the parties are unable to reach agreement, the Nonprofit may offer the assets for sale to other parties. If the Nonprofit receives an offer which it proposes to accept, which offer contains more favorable terms and conditions than the best offer previously proposed by the City, the Nonprofit shall notify the City of all of the terms and conditions of the proposed transaction, and the City shall have thirty additional days to notify the Nonprofit that it will acquire the assets according to those terms and conditions. 9 ARTICLE IX – Indemnification and Insurance 9.1 Indemnification. Where appropriate, the Nonprofit shall defend and indemnify any Board Officer, Director, employee or advisor to Bozeman Fiber, who is a party or is threatened to be made a party to any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, or investigatory, by reason of the fact that said person is or was a Board Officer, Director, or in any similar managerial, advisory, or fiduciary position of Bozeman Fiber, operating under the direction of Bozeman Fiber, against all liability, expense (including attorney's fees), and reasonable costs incurred by said person in connection with any such action, suit or proceeding, except in relation to matters in which said person is adjudged in such proceeding or determined by the Board (if there is no judicial determination on that subject), to have committed wanton or willful acts or omissions, or acted outside the scope of his or her authority. 9.2 Insurance. The Nonprofit shall purchase and maintain insurance on behalf of any and all of its present or former Board Officers, Directors, agents or employees against liability or settlement based on asserted liability, incurred by them by reason of being or having been a Board Officer, Director, agent or employee of the Nonprofit. 9.3 Costs. The Nonprofit may also in its discretion make payments of the costs and expenses of the type subject to possible indemnification to persons who may be eligible for indemnification pursuant to this Article, under suitable contractual arrangement, pending the final determination of their eligibility for indemnification. ARTICLE X - Amendments The Board shall have the power to amend and repeal any of these Bylaws at any duly convened meeting of the Board at which a quorum is present after full discussion of such amendment. Provided, however, that any such amendment shall not be adopted unless two-thirds (2/3) of the eligible voting Directors affirmatively adopt such amendment. Notwithstanding the foregoing, the Board may only amend provisions of Article VIII of these Bylaws if the two-thirds (2/3) vote includes all of the City’s appointed Directors to the Board. ARTICLE XI - Limitations of Purposes and Powers The foregoing purposes and powers of the Nonprofit are subject to the following limitations: 11.1 That no part of the net earnings of the Nonprofit shall inure to the benefit of, or be distributable to, its Directors, Board Officers, and employees or other private persons, except that the Nonprofit shall be authorized and empowered to pay reasonable compensation for services rendered and to make reimbursement for direct expenses incurred on behalf of the Nonprofit; and 11.2 The Nonprofit shall not, directly or indirectly, participate or intervene in any campaign on behalf of any candidate for public office. 10 ARTICLE XII – Dissolution 12.1 Upon dissolution of the Nonprofit, the Board of Directors shall provide notice to the Attorney General of Montana pursuant to MCA 35-2-722. Subject to further compliance with Montana law and IRS regulations, after paying or providing for payment of all of the liabilities of the Corporation, the Board of Directors shall distribute all of the remaining assets of the Corporation as set forth in the Articles of Incorporation. Adopted as the Bylaws of Bozeman Fiber on this ___ day of ________________, 2015. _____________________________ President ATTEST: _______________________ Secretary