HomeMy WebLinkAboutA1. Resolution 4596 Bozeman Fiber1
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Brit Fontenot, Economic Development Director
David Fine, Economic Development Specialist
SUBJECT: Resolution 4596 authorizing the City Manager to file articles of incorporation on behalf of Bozeman Fiber, Inc., a Montana nonprofit
public benefit corporation and, upon its creation, to appoint the initial
board of Bozeman Fiber, Inc., and to transfer domain names to the
ownership of Bozeman Fiber, Inc.
MEETING DATE: May 4, 2015
AGENDA ITEM TYPE: Action
RECOMMENDATIONS: Approve Resolution 4596 authorizing the City Manager to file articles of incorporation on behalf of Bozeman Fiber, Inc., a Montana nonprofit and public
benefit corporation and, upon its creation, to appoint the initial board of Bozeman Fiber, Inc.,
and to transfer domain names to the ownership of Bozeman Fiber, Inc.
SUGGESTED MOTION: I move to approve Resolution 4596 authorizing the City Manager to file articles of incorporation on behalf of Bozeman Fiber, Inc., a Montana nonprofit public
benefit corporation and, upon its creation, to appoint the initial board of Bozeman Fiber, Inc.,
and to transfer domain names to the ownership of Bozeman Fiber, Inc.
BACKGROUND: In May 2013, with the support of the Bozeman City Commission (Resolution 4434) the City established the Broadband Steering Committee (BSC). The BSC is
composed of technology sector professionals, economic developers, telecommunications
industry professionals, financial services professionals and local government officials. Since
July, 2014, members of the BSC have been working with Design Nine, a nationally recognized broadband planning firm to, in the words of Commission Resolution 4434, “bring fast, reliable,
and affordable broadband service to Bozeman and the region in furtherance of the City’s
economic development goals.”
The project team, convened by the City of Bozeman, the Broadband Steering Committee, and the City’s Economic Development Council, was tasked to explore the feasibility of
developing a community-owned, high-performance, redundant fiber-optic network for Bozeman.
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On December 15, 2014, the City Commission received the Bozeman Fiber Initiative
Project Overview report, which provided a summary of the project and its recommendation to
create an open-access network managed and operated by a “locally controlled, independent, private sector entity”. The Commission voted 4-0 to “direct Community and Economic Development staff to return to the Commission with a proposed Bozeman Fiber Master Plan.”
On January 26, 2015 the Bozeman City Commission unanimously adopted the Bozeman
Fiber Master Plan. The Master Plan recommendations include: 1. Standards-based - Bozeman Fiber should be based on an active Ethernet architecture for
the core network and for delivery of business class services to key anchor institutions and
businesses. If in the future the network begins to deliver fiber to the home on a
widespread basis, PON (Passive Optical Network) architecture might also be deployed; 2. Scalable - The initial design of the network will support a graceful expansion over time
to be extended to all areas of the city with additional expansion to adjacent economic
growth zones outside the City limits;
3. Business-class capable - The network will be able to deliver any amount of bandwidth needed by any business connected to the network, with any desired quality of service
(QoS) required to make Bozeman businesses competitive in the world economy;
4. Redundancy and Resiliency – The initial phases of the network should be designed with a redundant “ring” architecture to minimize downtime from accidental fiber cuts and network equipment failures. Bozeman businesses and anchor tenants will have a high
reliability network;
5. Offer equal access to all providers – The network should be operated on an open access, wholesale business model with all business and residential services provided by qualified private sector providers. A single public wholesale price list will be used to determine the
cost of provider use of the network;
6. Equal access to all residents and businesses over time – The goal of a Bozeman Fiber Initiative would be to deliver high performance fiber services to all residents and businesses as rapidly as possible consistent with fiscally conservative operations;
7. Offer a wide range of competitive providers and services – Bozeman Fiber should be
operated as a multi-provider, multi-service network with a wide range of competitive price and service options available to customers;
8. Limited City Role - The City of Bozeman should make targeted investments in passive
infrastructure (e.g. conduit, handholes) that further specific City goals (e.g. smart traffic
management, smart street lighting, reduced energy use, and reduced telecom costs for connections between City facilities). The City should also consider making spare conduit
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capacity available on an equal access basis for community-based and private sector
networks;
9. Ownership and Governance - Bozeman Fiber should be operated as an independent entity firmly vested as a community enterprise. This will provide the network with two important requirements: The enterprise will have the business and management flexibility
needed to make decisions efficiently and effectively in the fast-moving broadband
business environment. As a private sector enterprise with appropriate community
oversight and control, the effort is vested in the community and can be operated on behalf of the community and economic development needs of the community, but will not be limited by public sector restrictions on operations or decision making;
10. Business Model - The network should be operated as a single high performance lit fiber
(Layer 2) network available to any and all service providers, including incumbent providers who want access to the significant market opportunity represented by Bozeman. This shared business model is fundamentally different from the twentieth
century copper-based networks where each provider has to build and operate a
completely duplicated network (i.e. two providers each build a separate and duplicated
network to reach the same customers, which results in higher costs across the board for customers); and
11. Funding Strategy - The Bozeman Fiber Initiative should develop a “basket” of funding
options, including long term service commitments from anchor tenants (e.g. the City,
schools, hospital, major businesses), state and Federal grant opportunities (e.g. public safety grants), revenue from the network itself, charitable contributions, tax credits, and one time fees for costs associated with connecting a new customer to the network.
Resolution 4596 proposes three actions, all of which are consistent with the
implementation of the Bozeman Fiber Master Plan as directed by the City Commission. First, Resolution 4596 authorizes the City Manager to file articles of incorporation on behalf of Bozeman Fiber, as recommended in the adopted Master Plan. Second, the resolution authorizes
the City Manager to appoint the initial board of Bozeman Fiber, after which the Board becomes
self-selecting. Finally, Resolution 4596 authorizes the transfer of four domain names secured by
the City in anticipation of the creation of the Bozeman Fiber (bozemanfiber.com, bozemanfiber.net, bozemanfiber.org and bozemanfiber.info) to the ownership of Bozeman Fiber, Inc. The original cost for securing the four domain names for a period of two years was $86.39
and was paid for from the Bozeman Fiber Initiative fund. Each of these actions proposed in
Resolution 4596 furthers the Commission’s goal of implementing the Bozeman Fiber Master
Plan. Additionally, the creation of Bozeman Fiber, Inc. accomplishes a primary City goal of maintaining appropriate separation between a private, non-profit (layer 2) infrastructure provider and the City of Bozeman. The City of Bozeman will not provide internet services to the public.
UNRESOLVED ISSUES:
There are no unresolved Bozeman Fiber issues for the Bozeman City Commission related to formally incorporating Bozeman Fiber. In the creation of a new start-up business, the
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Bozeman Fiber Board of Directors will have issues to resolve as they make decisions on the
direction and oversight of the new company. For example, we continue to work with local
lenders on a financing package for Bozeman Fiber. Bozeman Fiber will need to seek insurance,
legal counsel and other administrative services for the entity. The Board will have to address the construction, operations and maintenance of the network. They will determine the appropriate management structure and leadership for Bozeman Fiber and prepare and execute contracts with
service providers and other associated start-up activities. As proposed, the City of Bozeman, like
other community stakeholders, will maintain a relationship to Bozeman Fiber via its seat on the
Board and via participation on various Committees of the Board (Advisory, Technical and Financial).
Incorporating Bozeman Fiber, however, does not address other broadband related issues
the City Commission may consider in the future, including implementing policies to facilitate
next-generation broadband deployment in the public right-of-way and throughout the community. These issues would likely be addressed through amendments to the growth policy, and in planning and engineering standards for the City. Formally incorporating Bozeman Fiber
does not address how the City may construct fiber-friendly infrastructure, like public conduit, in
the future. Likewise, adopting this resolution does not address future issues like how the City
might utilize fiber infrastructure for City purposes such as connecting City buildings, providing backhaul for public safety applications, providing smart street lighting, wired SCADA, or other applications.
ALTERNATIVES: As determined by the Commission.
FISCAL EFFECTS:
The fiscal effects of creating Bozeman Fiber are minimal. First, there is a $20.00 filing
fee with the Secretary of State in order to process the application. Additionally, the City
purchased four domain names, bozeman.com, bozeman.org, bozeman.net and bozeman.info, with funds budgeted for the Bozeman Fiber Initiative. The City paid $86.39 for a two year term of ownership on all four domain names. Bozeman Fiber will assume any renewals.
Additionally, City staff intends to continue to work with Bozeman Fiber to support the
efforts of the Board until such time that the City Manager determines that Bozeman Fiber no longer requires this type of general support and assistance. The City Manager or their Designee will continue represent the City as a permanent member of the Bozeman Fiber Board of
Directors.
Because of the City’s representation on the Bozeman Fiber Board, Finance staff will determine if Bozeman Fiber, Inc. would be a component unit of City government for financial reporting purposes. As such, Bozeman Fiber’s financial information may need to be audited and
presented in the City’s Comprehensive Annual Financial Report. If necessary, staff will work
with the Board of Directors to ensure that audited financial information is available.
Attachments:
1. Resolution 4596;
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2. Proposed Bozeman Fiber Articles of Incorporation;
3. Proposed Bozeman Fiber Bylaws;
4. Proposed Bozeman Fiber Board members; and
5. Kenneth Fellman Biography. Hyperlinks:
1. January 21, 2015 City Commission Packet Material – Resolution 4576 Adoption of the
Bozeman Fiber Master Plan and Feasibility Study (this link includes the complete plan, feasibility study and public comment); 2. January 21, 2015 City Commission Approved Meeting Minutes; 3. December 15, 2014 City Commission Packet Material; and
4. December 15, 2014 City Commission Approved Meeting Minutes.
Report prepared on April 23, 2015
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RESOLUTION NO. 4596
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, AUTHORIZING THE CITY MANAGER TO FILE ARTICLES OF
INCORPORATION FOR BOZEMAN FIBER, INC. A MONTANA NONPROFIT
PUBLIC BENEFIT CORPORATION, AND, UPON ITS CREATION, TO APPOINT THE INITIAL BOARD OF BOZEMAN FIBER, INC., AND TO TRANSFER DOMAIN NAMES TO THE OWNERSHIP OF BOZEMAN FIBER, INC.
WHEREAS, the Bozeman City Commission identified economic development as a high
priority; and
WHEREAS, the Bozeman City Commission supports efforts to strengthen the economic
vitality of Bozeman and the surrounding area; and
WHEREAS, the Bozeman City Commission acknowledges that the facilitation of job
creation and industry diversification are critical to the long-term economic success of Bozeman;
and
WHEREAS, the Bozeman City Commission wishes to stimulate, encourage and support
the attraction, retention and growth of high-value industries and mid- to high-paying jobs in a
variety of sectors; and
WHEREAS, the City of Bozeman’s Economic Development Council discussed and
acknowledges the importance of fast, reliable, affordable and redundant broadband internet
service to Bozeman is to accomplishing the aforementioned Commission goals of the facilitation
of job creation and industry diversification; and
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Resolution 4596 Authorizing City Manager to File Articles for Bozeman Fiber
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WHEREAS, the Bozeman City Commission adopted Resolution 4434 supporting the
efforts by the Broadband Steering Committee to bring fast, reliable, affordable and redundant
broadband internet service to Bozeman; and
WHEREAS, the Bozeman Community Plan supports coordination in the provision of
infrastructure necessary to support economic development; and
WHEREAS, the Bozeman Community Plan promotes and encourages the continued
development of Bozeman as a vital economic center; and
WHEREAS, the Bozeman Community Plan supports business creation, retention, and
expansion with emphasis on small businesses, ‘green’ businesses, and e-businesses; and
WHEREAS, the Bozeman Community Plan supports balanced policies and programs to
encourage a durable, vigorous and diverse economy; and
WHEREAS, the Bozeman Community Plan supports working with other service and
utility providers to ensure the adequate and safe provision of services; and
WHEREAS, the Bozeman Economic Development Plan supports the expansion and
retention of existing businesses and economic sectors that will continue to strengthen and
diversify the economy and create higher paying jobs in Bozeman and the surrounding area; and
WHEREAS, the Bozeman Economic Development Plan supports maintaining and
upgrading infrastructure to support current and future needs of business; and
WHEREAS, the Bozeman Capital Improvement Plan supports anticipating future service
demands and resource deficiencies and be proactive in addressing them; and
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Resolution 4596 Authorizing City Manager to File Articles for Bozeman Fiber
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WHEREAS, the Bozeman Capital Improvement Plan supports the provision of excellent
and equitable public services which are responsive to the community within available resources;
and
WHEREAS, the Downtown Bozeman Improvement Plan supports the coordination of
infrastructure improvements critical for development and redevelopment in the downtown core;
and
WHEREAS, the North 7th Urban Renewal District Plan supports the coordination of
public and private improvements; and
WHEREAS, the Bozeman City Commission adopted the Bozeman Fiber Master Plan
pursuant to Commission Resolution No. 4576; and
WHEREAS, the Bozeman Fiber Master Plan recommends creating a community fiber
optic network capable of providing the business class services required “to make Bozeman
businesses competitive in the world economy”; and
WHEREAS, the Bozeman Fiber Master Plan recommends the creation of “a private
sector enterprise with appropriate community oversight and control" to manage and operate a
community fiber optic network and specifies that “with appropriate community oversight and
control, the effort is vested in community and can be operated on behalf of the economic
development needs of the community”; and
WHEREAS, the Bozeman Fiber Master Plan consistently refers to this community
benefit entity as, “Bozeman Fiber”; and
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Resolution 4596 Authorizing City Manager to File Articles for Bozeman Fiber
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WHEREAS, the Bozeman Fiber Master Plan recommends that Bozeman Fiber, “be
operated on an open access, wholesale business model with all business and residential services
provided by qualified private sector providers; and
WHEREAS, the Bozeman Fiber Master Plan recommends operating Bozeman Fiber as
“a multi-provider, multi-service network with a wide range of competitive price and service
options available to customers”; and
WHEREAS, the Bozeman Fiber Master Plan recommends a limited City role wherein,
“[s]ome passive assets like conduit and handholes could be built and owned by the City of
Bozeman and leased to Bozeman Fiber and/or other providers in return for recurring lease
payments”; and
WHEREAS, the Bozeman Fiber Master Plan recommends public/private partnerships
between the City of Bozeman, K-12 schools, other local governments and private business; and
WHEREAS, the Bozeman Fiber Master Plan predicts that an open access model for
delivery of broadband services will increase competition among private internet service
providers; and
WHEREAS, a shared infrastructure model for delivery of broadband services reduces
costs and creates new business opportunities for private internet service providers; and
WHEREAS, improved policies for installation of broadband infrastructure facilitates the
organic growth of an open-access fiber network; and
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Resolution 4596 Authorizing City Manager to File Articles for Bozeman Fiber
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WHEREAS, Bozeman has a critical mass of local government agencies, K12 schools,
colleges, health care institutions, and large and small businesses to support a financially
sustainable, open access community fiber network; and
WHEREAS, the Bozeman City Commission has determined that it is in the best interest
of the City to transfer ownership of the domain names bozemanfiber.com, bozemanfiber.net,
bozemanfiber.org and bozemanfiber.info to Bozeman Fiber, Inc., upon its incorporation; and
WHEREAS, the Bozeman City Commission has determined that City staff will provide
staff support to Bozeman Fiber, Inc. until such time that the City Manager determines that
additional staff support provided by the City is no longer necessary.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of
Bozeman, Montana, that:
Section 1
The City Manager of the City of Bozeman, Montana is authorized to file articles of
incorporation for Bozeman Fiber, Inc., a Montana Nonprofit corporation.
Section 2
The City Manager of the City of Bozeman, Montana is authorized to appoint the initial
board of Bozeman Fiber as allowed by state law in his role as incorporator of Bozeman Fiber, Inc.
Section 3
The City Manager of the City of Bozeman, Montana is authorized to transfer the
ownership of the domain names bozemanfiber.com, bozemanfiber.net, bozemanfiber.org and
bozemanfiber.info to Bozeman Fiber, Inc., upon its incorporation.
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Resolution 4596 Authorizing City Manager to File Articles for Bozeman Fiber
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PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana at a
regular session thereof on the 4th day of May, 2015.
_________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
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sos.mt.gov/Business/Forms 54-Domestic_Nonprofit_Corporation_Articles_of_Incorporation.doc Revised: 10/01/2013
STATE OF MONTANA Prepare, sign, submit with an original signature and filing fee.
This is the minimum information required.
ARTICLES of INCORPORATION (This space for use by the Secretary of State only)
for DOMESTIC NONPROFIT
CORPORATION 35-2-213, MCA
MAIL: LINDA McCULLOCH
Secretary of State
P.O. Box 202801
Helena, MT 59620-2801
PHONE: (406) 444-3665
FAX: (406) 444-3976
WEB SITE: sos.mt.gov
Required Filing Fee: $20.00
24 Hour Priority Handling check box & Add $20.00
1 Hour Expedite Handling check box & Add $100.00
Executed by the undersigned person for the purpose of forming a Montana nonprofit corporation.
1.The name of the Nonprofit Corporation is: ___________________________________________________________
______________________________________________________________________________________________
2.The name and address of the registered office/agent (address must be in Montana):Appointment of the Registered Agent is confirmation of the agent’s consent.
Name: ________________________________________________________________________________________
Street Address (required): ________________________________________________________________________
Mailing Address (if different from street address): _____________________________________________________
City: ____________________________________________ State: MT Zip Code: _____________________________
Signature of Agent:______________________________________________________________________________
3.The name and address of the incorporator is as follows:
Name: ________________________________________________________________________________________
Address:_______________________________________________________________________________________
City: _________________________________________________State: __________Zip Code: __________________
4.This Nonprofit Corporation is a (you must check one):
Public Benefit Corporation with members Public Benefit Corporation without members
Mutual Benefit Corporation with members Mutual Benefit Corporation without members
Religious Corporation with members Religious Corporation without members
5.This Nonprofit Corporation (check one & complete):
a) Is not applying through the IRS for 501(c)(3) status and upon dissolution the assets shall be distributed in the
following manner:_______________________________________________________________________________
b) Is applying with the IRS for 501(c)(3) status and therefore has attached the IRS required language.
6.“I, HEREBY SWEAR AND AFFIRM, under penalty of law, that the facts contained in this document are true.”
__________________________________________________________________ _______________________
Signature of Incorporator(s) Date
Daytime Contact: Phone: ____________________________ Email: ______________________________________
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Articles of Incorporation for Domestic Nonprofit Corporation Bozeman Fiber – Attachment to Articles
5. This Nonprofit Corporation is not applying through the IRS for 501(c)(3) status, although it may apply for tax exempt status through the IRS under section 501(c)(4), (6) or (12), as
applicable. Upon dissolution, after payment or making provision of the payment of all liabilities
of the Nonprofit, the Board of Directors shall dispose of the assets as follows:
A. Pursuant to provisions contained in the Bylaws which describe distribution of assets to parties that initially contributed to the Nonprofit.
B. Pursuant to any other agreements entered into by the Nonprofit’s Board of
Directors related to network construction, operations and distribution upon dissolution. C. Notwithstanding the foregoing, no assets may be distributed in a manner that is
not in compliance with applicable law.
D. Any assets not distributed as described herein, shall be distributed as directed by the District Court of Gallatin County.
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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.
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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.
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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,
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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.
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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
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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
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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.
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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.
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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.
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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
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Proposed Board of Bozeman Fiber
3.1 The business and affairs of the Nonprofit shall be managed and conducted by the Board of Directors.
3.2 Initial Board. The initial Board of Directors shall consist of seven (7) individuals,
all appointed by the City Manager:
• One (1) seat shall be a representative of the City.
o Brit Fontenot, Economic Development Director, City of Bozeman
• One (1) seat shall be a representative of a financial institution that has loaned or otherwise dedicated financial resources to the Nonprofit. o Jim Ness, Big Sky Western Bank
• Two (2) seats shall be a professional individual with experience in the broadband
business. o Anthony Cochenour, President, Hoplite Industries o Bill Procunier, Granite Technology Solutions
• One (1) seat shall be a professional individual with experience in healthcare.
o Cheryl Ridgely, Chief Strategy & Business Development Officer, Bozeman
Deaconess Hospital
• One (1) seat shall be a representative of the educational community. o Steve Johnson, Deputy Superintendent for Operations, Bozeman Public Schools
• One (1) seat shall be a representative of the community at large. o Jerry Sheehan, Chief Information Officer, Montana State University
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 education, 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.
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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 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.
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KENNETH S. FELLMAN
Ken Fellman is a partner in the Denver law firm of Kissinger & Fellman, P.C. His practice
emphasizes local government representation, particularly telecommunications, local government and utilities
law. Ken has represented local governments, non-profit organizations and governmental associations
nationwide in connection with planning, development and deployment of community broadband networks,
cable television franchising, tower and antenna siting, public safety communications issues, communications
service contracts, and gas and electric utility franchising. He also works with local governments in
connection with telecommunications tax matters, the development of communications policy, rights of way
management, infrastructure development, litigation, and administrative proceedings before the Federal
Communications Commission (FCC) and Public Utilities Commissions. In his general municipal
government practice, Ken has served as a city, town and county attorney in multiple Colorado jurisdictions.
He is also an adjunct professor at the University Of Colorado College Of Law, where he teaches
Telecommunications Law and Policy.
Ken is a Past President (2009-2011) of the National Association of Telecommunications Officers and
Advisors. A prior recipient of NATOA’s President’s Award (2006), and Member of the Year (1998), he was
named a Life Member of NATOA in 2011. Ken served as Mayor of Arvada, Colorado from 1999 – 2007, an
at large member of City Council from 1993–1999 and Planning Commission from 1987-1993. He received
the Pioneer Award from the Arvada Chamber of Commerce in 2011, recognizing exemplary contributions to
the community over an extended period of time. In 2004 during Arvada’s centennial celebration, Ken was
chosen as one of the 100 most influential citizens in the City’s history.
Appointed in 2011, Ken currently serves as a member of the Federal Communications Commission’s
Intergovernmental Advisory Committee. Previously, he served as chair of the FCC’s Local and State
Government Advisory Committee from 1997 until the FCC disbanded the Committee in 2003. In 2004 and
2005 he served on the Executive Committee of SAFECOM – an advisory committee to the U. S. Department
of Homeland Security comprised of local, state and tribal officials, to help improve public safety response
through more effective and efficient interoperable wireless communications. Ken has testified on
telecommunications matters before the U.S. House of Representatives and Senate, and the Colorado General
Assembly. He has also served as chair of the National League of Cities Information, Technology and
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Communications Steering Committee, and as a member of the U.S. Conference of Mayors Transportation
and Communications Committee.
Ken’s activities in Colorado include service as a past chair of the Metro Mayors Caucus, and past
president of the Continental Divide Bar Association and the Metro City Attorneys Association. He is
currently a member of the International Municipal Lawyers Association and an associate member of the
Colorado Municipal League. In 2007, and 2010 - 2015, Ken was named as one of Law & Politics’ Colorado
Super Lawyers, a list that represents the top 5 percent of Colorado attorneys. He was recognized in 2014 as a
Top Lawyer in Communications, Technology and Media law by 5280 Magazine.
Ken remains active in his community outside of the practice of law. He serves as chair of the
Arvada Center for the Arts and Humanities governing board and vice-chair of the Lutheran Medical Center
Foundation Board of Directors. He was co-chair of the Arvada Community Food Bank’s capital campaigns
in 2008-2009 and 2012; a member of the Arvada Fire Protection District Blue Ribbon Committee in 2010;
and a member of the Metro Denver Health and Wellness Commission from 2005-2010. In 2010 Ken
received a special commendation from the Colorado House of Representatives recognizing his years of
commitment to Arvada and the greater Colorado community.
Ken received his Bachelor of Arts degree in 1978 from Johns Hopkins University in Baltimore,
Maryland, and his law degree in 1981 from the University Of Denver Sturm College Of Law. He can be
contacted at (303) 320-6100; facsimile: (303) 327-8601; e-mail: kfellman@kandf.com; Twitter:
@kenfellman. Ken’s publications and public presentations can be found on the firm’s website at
www.kandf.com, under the “News and Resources” icon.
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