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HomeMy WebLinkAboutResolution - 2013-R0156 - Approve Amended Bylaws - LEDA - 05/09/2013Resolution N0. 2013-RO156 May 9, 2013 'Item No. 6.5 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock does hereby approve the Amended and Restated Bylaws of Lubbock Economic Development Alliance, Inc. to establish a procedure of reporting to the City Council, and of approval by the City Council of incentives and expenditures for economic development as set forth in Exhibit A attached hereto and incorporated herein by reference. Passed by the City Council onMay 9, 2013 GLE . ROBERTSON, MAYOR ry90LI9 -SC Reb cca Garza, City Secre APPROVED AS TO CONTENT: 4uinc-y Wh' ssistant City Manager APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw:ccdocs RES.Amend & Restate-LEDA Bylaws May 1, 2013 AMENDED AND RESTATED BYLAWS OF LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC. ARTICLE I PURPOSE AND DUTIES Section 1. Purpose. Lubbock Economic Development Alliance, Inc. (the "Corporation") is incorporated for the purposes set forth in Article Four of its Articles of Incorporation, and in accordance with the Development Corporation Act of 1979, as amended, Tex. Loc. Gov't Code, Chapter 501 (the "Act"), and other applicable laws. Section 2. Duties. In the fulfillment of its corporate purpose, the Corporation shall be governed by Section 4A of the Act, and shall have all of the powers set forth and conferred in its Articles of Incorporation, in the Act, in the Texas Non -Profit Corporation Act, as amended, Article 1396.101 et. seq. Tex.Rev.Civ.Stats. (the "Texas Non -Profit Corporation Act"), and in other applicable law, subject to the limitations prescribed therein and in these Bylaws and Articles of Incorporation. ARTICLE II BOARD OF DIRECTORS Section 1. Powers, Number and Term of Office (a) The affairs of the Corporation shall be managed and controlled by a Board of Directors (the `Board") and, subject to the restrictions imposed by law, by the Articles of Incorporation, by the Texas Non -Profit Corporation Act, and by these Bylaws. The Board shall exercise all of the powers of the Corporation. (b) The Board shall consist of nine (9) Directors, each of whom shall be appointed by the City Council (the "City Council") of the City of Lubbock, Texas. Directors shall meet the following qualifications: 1 (1) The candidate for appointment has served or is serving as the Chief Executive officer of a company; or (2) The candidate for appointment has served or is serving in a position of executive management of a company; or (3) The candidate for appointment is serving or has served the community in a professional capacity; or (4) The candidate for appointment shall have experience equivalent to any of the above qualifications. In considering each candidate for appointment, the governing body shall consider and give thought to each candidate's experiences, background, accomplishments and educational background. (c) The directors constituting the first Board shall be those directors named in the Articles of Incorporation. Three (3) members of the first Board shall serve terms of two (2) years, and two members of the first Board shall serve terms of three (3) years. The respective terms of the initial Board shall be determined by the Articles of Incorporation. Thereafter, each successor member of the Board shall be appointed and shall serve for three (3) years or until his or her successor is appointed as hereinafter provided. (d) No member of the Board shall serve more than two (2) terms, which two (2) terms must be consecutive. All directors of the Corporation must reside in Lubbock County at the time of their appointment and throughout their term as director. Any additional Board members shall have staggered three (3) year terms as established by the existing Board of Directors. (e) Any director may be removed from office by the City Council at will, by the affirmative vote of four (4) City Council Members. (f) The City Council or their designees, the City Manager or his designee, and the City Attorney or his designee, may attend all meetings of the Board of Directors or Committees, 2 provided, however, that they may not attend executive meetings, if the Corporation can demonstrate that such attendance would waive the attorney/client privilege protection of the Corporation's information. These representatives shall not have the power to vote in the meetings they attend. Their attendance shall be for the purpose of ensuring that information about the meetings is accurately communicated to the City Council and to satisfy the City Council obligation to control the powers of the Corporation. (g) Regular attendance of the Board meetings is required of all members. The following number of absences may constitute the need for replacement of a member: three (3) consecutive absences, or attendance reflecting absences constituting 50% of the meetings over a twelve (12) month period. In the event replacement is indicated, the member will be counseled by the Chairman of the Board or the CEO. Unless the Chairman of the Board or the CEO get a commitment from the absentee director to remedy their attendance at Board meetings, and such is shown by the directors better attendance at such meetings, the Chairman of the Board or the CEO shall submit in writing to the City Secretary the fact that there is a need to replace the Board member in question. (h) Any vacancy occurring among Directors of the Board shall be filled by appointment by the City Council. Section 2. Meetings. The Board shall meet at least quarterly in the offices of the Corporation or at such other places within the City as the Board may from time to time designate. All meetings of the Board shall provide notice thereof as provided and set forth in the Texas Open Meetings Act, as amended, Section 551.001 et. seq. Texas Government Code (the "Texas Open Meetings Act"). Any member of the Board may request that an item be placed on the agenda by delivering the same in writing to the secretary of the Board no later than ten (10) 3 days prior to the date of the Board meeting. The Chairman of the Board shall set regular meeting dates and times at the beginning of his/her term. The annual meeting of the Board of Directors shall be the Board meeting for the fourth (4th) quarter meeting of the Board. Notice of any meeting of the Board shall be given to the public in accordance with the requirements of the Texas Open Meetings Act. The notice shall contain information regarding the particular time, date, and location of the meeting and agenda to be considered. All meetings of the Board shall be conducted in accordance with the Texas Open Meetings Act. All meetings of the Board shall be held in the City of Lubbock, Texas. Section 3. Quorum. Directors must be present in order to vote at any meeting. A majority of the directors shall constitute a quorum for the conduct of the official business of the Corporation. The act of a majority of the directors present at a meeting at which a quorum is in attendance shall constitute the act of the Board and of the Corporation, unless the act of a greater number is required by law. Section 4. Conduct of Business. (a) At the meetings of the Board, matters pertaining to the business of the Corporation shall be considered in accordance with rules of procedure as from time to time prescribed by the Board. (b) The Chairman of the Board of Directors shall preside at all meetings of the Board of Directors of the Corporation. The Chairman shall direct the Chief Executive Officer ("CEO") of the Corporation, in the performance of the duties of the CEO as directed by the Board of Directors. The Chairman may execute any deeds, mortgages, bonds, contracts, or other instruments that the Board of Directors have authorized to be executed. However, the Chainnan 4 may not execute instruments on behalf of the Corporation, if this power is expressly delegated to another officer or agent of the Corporation by the Board of Directors, the Bylaws, or statute. The chairman shall perform other duties prescribed by the Board of Directors and all duties incident to the office of chairman. (c) When the Chairman of the Board of Directors is absent, is unable to act, or refuses to act, the Vice Chairman shall perform the duties of the Chairman. When the Vice Chairman acts in place of the Chairman, the Vice Chairman shall have all the powers of and be subject to all the restrictions upon the Chairman. A Vice Chairman shall perform other duties as assigned by the Chairman or Board of Directors. (d) The Secretary of the Corporation shall act as secretary of all meetings of the Board, but in the absence of the Secretary, the presiding officer may appoint any person to act as secretary of the meeting. Section 5. Committees of the Board. The Board may appoint advisory committees to provide advice and counsel to the Board. Such committees may not exercise any authority of the Board. Such committees may include individuals who are not members of the Board, and no more than three (3) current members of the Board. Each member of a committee shall continue as such until his or her successor on the committee is appointed, unless the committee shall be sooner terminated or unless such member has ceased to serve on the Board of Directors or such member has been removed from such committee. Any committee member may be removed from committee membership by the Chairman, with Board approval, whenever in their judgment the best interests of the Corporation would be served by such removal. 5 Section 6. Board's Relationship With Administrative Departments of the City. Any request for services made to the administrative department of the City shall be made by the Board or its designee, or the CEO, in writing to the City Manager. The City Manager may approve such requests for assistance from the Board, or the CEO, when he finds such requested services are within the budget parameters previously approved by the City Council. The City Manager must also find that the requested services are available within the administrative departments of the City and that the Board, or the CEO, has agreed to reimburse the administrative department's budget for the costs of such services so provided. Section 7. Compensation of Directors. Directors shall not receive any salary or compensation for their services as directors. However, they shall be reimbursed for their actual and reasonable expenses incurred in the performance of their duties hereinunder. Section 8. Open Records Act. The Board of Directors is subject to the Texas Open Records Act, as amended, Section 552.001 et. seq. Texas Government Code (the "Texas Open Records Act") Section 9. Annual Economic Development Activity Report. The Corporation shall present to the City Council a report of all economic development activity conducted by the Corporation on an annual basis. The City Council, upon its request, may specify the scope, breadth and depth of the information to the provided by the Corporation in such a report. Section 10. Ouarterly Reporting. In addition to the annual economic development report, the Corporation shall report to the City Council, at a minimum, on a quarterly basis. A briefing and list of all active prospects shall be provided to the City Council in executive session to the extent allowed by the Texas Open Meetings Act, Chapter 552 of the Texas Government Code. The briefing shall include all potential prospects, without specific identity, but identifying 6 the industry, potential location, and number of jobs. In addition, the Corporation shall address its consideration of the impact on any local business from the providing of an incentive to any prospect. The City Council, in its sole discretion, may direct the Corporation to report to the City Council on a more frequent basis than quarterly. ARTICLE III OFFICERS Section 1. Titles and Term of Office. (a) The officers of the Corporation shall be a Chief Executive Officer, President, a first Vice President, a second Vice President, a Secretary and a Treasurer, and such other officers as the Board shall elect or appoint at each annual meeting of the Corporation. One person may hold more than one office, except that the President shall not hold the office of Secretary. Terms of offices of officers shall not exceed three (3) years. If there be no term of an officer exceeding one (1) year, such officer shall be elected or appointed annually by the Board. (b) Officers shall be subject to removal from office at any time by a vote of a majority of the entire Board, unless otherwise governed by the terms of any agreement concerning their employment by the Corporation. (c) A vacancy in the office of any officer shall be filled by a vote of a majority of the directors. Section 2. Powers and Duties of the Chief Executive Officer. The CEO shall be the Chief Executive Officer of the Corporation. The CEO shall supervise and control all of the business and affairs of the Corporation. The CEO shall execute any deeds, mortgages, bonds, contracts, or other instruments that the Board of Directors have authorized to be executed. However, the CEO may not execute instruments on behalf of the Corporation, if this power is 7 expressly delegated to another officer or agent of the Corporation by the Board of Directs, the Bylaws, or statute, including the Act. The CEO shall coordinate all staffing for all positions, including professional positions of employees of the Corporation as directed with the advice and consent of the Board of Directors. The CEO shall perform other duties prescribed by the Board of Directors and all duties incident to the office of Chief Executive Officer. Section 3. Powers and Duties of the President. The President shall assist the CEO of the Corporation, and, subject to the paramount authority of the Board, the President shall be in general charge of the properties and affairs of the Corporation. The President shall report to the CEO. Section 4. First Vice President. The first Vice President shall have such powers and duties as may be prescribed by the Board and shall exercise the powers of the President during that officer's absence or inability to act. Any action taken by the first Vice President, in the performance of the duties of the President, shall be conclusive evidence of the absence or inability to act of the President at the time such action was taken. Section 5. Second Vice President. The second Vice President shall have such powers and duties as may be prescribed by the Board and shall exercise the powers of the first Vice President during that officer's absence or inability to act. Any action taken by the second Vice President in the performance of the duties of the President or first Vice President shall be conclusive evidence of the absence or inability to act of the President or first Vice President at the time such action was taken. Section 6. Treasurer. The Treasurer shall have the responsibility to see to the handling, custody, and security of all funds and securities of the Corporation in accordance with these Bylaws. When necessary or proper, the Treasurer may endorse and sign, on behalf of the 8 Corporation, for collection or issuance, checks, notes and other obligations in or drawn upon such bank or banks or depositories as shall be designated by the Board consistent with these Bylaws. The Treasurer shall see to the entry in the books of the Corporation full and accurate accounts of all monies received and paid out on account of the Corporation. The Treasurer shall, at the expense of the corporation, give such bond for the faithful discharge of his duties in such form and amount as the Board or the Council may require. The Board may appoint an assistant Treasurer, who shall have all the powers and duties as may be prescribed by the Board, and shall be able to exercise all of the powers of the Treasurer. Section 7. Secretary. The Secretary shall keep the minutes of all meetings of the Board in books provided for that purpose, shall give and serve all notices, may sign with the president in the name of the Corporation, and/or attest the signature thereto, all contracts, conveyances, franchises, bonds, deeds, assignments, mortgages, notes and other instruments of the Corporation, shall have charge of the corporate books, records, documents and instruments, except the books of account and financial records and securities, and such other books and papers as the Board may direct, all of which shall, at all reasonable times, be open to public inspection, upon application at the office of the Corporation, during business hours, and shall in general perform all duties incident to the office of Secretary, subject to the control of the Board. The Board may appoint an assistant Secretary, who shall have all the powers and duties as may be prescribed by the Board, and shall be able to exercise all of the powers of the Secretary. Section 8. Officers. The officers of the Corporation may be named from among the members of the Board. The Treasurer, assistant Treasurer or any assistant Secretaries may, at the option of the Board, be employees of the City. Section 9. Compensation. Officers who are members of the Board shall not receive any salary or compensation for their services, except that they shall be reimbursed for the actual expenses incurred in the performance of their duties hereunder. Other officers may be compensated as directed by the Board. Section 10. Other Employees. The Corporation may employ full or part-time employees to carry out the programs of the Corporation. These employees shall perform those duties as are assigned to them by the Board and/or the CEO. The employees may be dismissed or terminated by the Board and/or the CEO. Section 11. Contracts for Services. The intent of the Corporation is to keep the number of full-time employees of the Corporation to a minimum. The Corporation may contract for service whenever possible instead of employing individuals on a full-time basis. The Corporation may contract with any qualified and appropriate person, association, corporation or governmental entity to perform and discharge designated tasks which will aid or assit the Board in the performance of its duties. However, no such contract shall ever be approved or entered into which seeks or attempts to divest the Board of Directors of its discretion and policymaking functions in discharging the duties herein above set forth. ARTICLE IV FUNCTIONAL CORPORATE DUTIES AND REQUUIREMENTS Section 1. General Development Plan. (a) The Board shall research, develop, prepare, and submit to the City Council for its approval, an economic development plan for the City, which shall include proposed methods and the expected costs of implementation. The plan shall include both short-term and long-term goals for the economic development of the City, proposed methods for the reduction of unemployment and underemployment, and the promotion of employment, through the expansion and development of a sound economic base for the City. (b) The Board shall review and update the plan each year, prior to submission of the annual budget to the City Council. Section 2. Annual Corporate Budget. At least sixty (60) days prior to the commencement of each fiscal year of the Corporation, the Board shall adopt a proposed budget of expected revenues and proposed expenditures for the ensuing fiscal year. The budget shall contain such classifications and shall be in such form as may be prescribed from time to time by the City Council. The budget shall not be effective until the same has been approved by resolution of the City Council. The Board may make expenditures within the total budget amount approved by the City Council so long as such expenditures 1) do not increase the total budget amount previously approved by the City Council, and 2) do not increase any single fund or budget classification by more than ten (10) percent. Section 3. Books, Records, Audits. (a) The Corporation shall keep and properly maintain, in accordance with generally accepted accounting principles, corporate funds, activities, and affairs. (b) At the request of the Corporation and with the approval of City Council, the books, records, accounts, and financial statements of the Corporation may be maintained for the 11 Corporation by the accountant, staff and personnel of the City. In such event, the Corporation shall pay to the City reasonable compensation for such services only. (c) The Corporation shall cause its books, records, accounts, and financial statements to be audited at least once each fiscal year by an outside, independent, auditing and accounting firm selected by the Corporation and approved by the City Council. Such audit shall be at the expense of the Corporation and shall be a certified audit. Section 4. Deposit and Investment of Corporate Funds. (a) All proceeds from the issuance of bonds, notes, or other debt instruments ("Obligations") issued by the Corporation shall be deposited and invested as provided in the resolution, order, indenture, or other documents authorizing or relating to their issuance. (b) All other monies of the Corporation shall be deposited, secured and/or invested in the manner provided for the deposit, security and/or investment of the public funds of the City. The Board shall designate the accounts and depositories to be created and designated for such purposes, and the methods of withdrawal of funds therefrom for use by and for the purposes of the Corporation, upon the signature of its Treasurer and such other persons as the Board shall designate. The Corporation will ensure that the investment of such funds and accounts shall be performed in accordance with the Texas Public Funds Investment Act, as amended, Section 2256.001 et. seq. Texas Government Code (the "Texas Public Funds Investment Act") (c) At the request of the Corporation and with the approval of the City Council, the monies of the Corporation may be deposited, secured and/or invested for the Corporation by the accountant, staff and personnel of the City. In such event, the Corporation shall pay to the City reasonable compensation for such services only. Section 5. Expenditures of Corporate Money. 12 (a) The monies of the Corporation, including sales and use taxes collected, pursuant to Section 4A of the Act, monies derived from the repayment of loans, rents received from the lease or use of property, the proceeds from the investment of funds of the Corporation, the proceeds from the sale of property, and the proceeds derived from the sale of obligations, may be expended by the Corporation for any of the purposes authorized by the Act, and applicable income tax law, subject to the following limitations: (i) Expenditures from the proceeds of obligations shall be identified and described in the orders, resolutions, indentures, or other agreements submitted to and approved by the City Council, prior to the sale and delivery of the Obligations to the purchasers thereof required by Section 6 of this Article; (ii) Expenditures that may be made from a fund created with the proceeds of Obligations, and expenditures of monies derived from sources other than the proceeds of Obligations, may be used for the purposes of financing or otherwise providing one or more "Projects," as defined in the Act. The specific expenditures shall be described in a resolution or order of the Board and shall be made only after the approval thereof by the City Council by a resolution. The Corporation, at the time the City Council considers the resolution, shall provide to the City Council, the identity of the entity receiving an incentive, the number of jobs to be generated, the amount of the incentive and the economic impact on the Lubbock economy and any other information requested by the City Council in regard to the proposed expenditure. If approved, the resolution shall satisfy the requirement of Section 501.073 of the Texas Local Government Code requiring approval of the expenditure by the governing body; 13 (iii) No bonds may be issued by the Corporation and no Project may be financed with bond proceeds or other revenues of the Corporation, unless such bonds or Projects are first approved by the Council; and (iv) All other proposed expenditures shall be made in accordance with and shall be set forth in the annual budget required by Section 2 of this Article. Section 6. Issuance of Obligations. No Obligations, including refunding Obligations, shall be sold and delivered by the Corporation, unless the City Council shall approve such Obligations by action taken no more than sixty (60) days prior to the date of sale of the Obligations. Section 7. Uncommitted and Unexpended Funds. Any uncommitted or unexpended funds remaining at the end of a fiscal year shall be retained by the Corporation and considered a part of the Corporation's fund balance. Such funds may be expended by the Corporation in the future for any purpose allowed under these Bylaws and the laws governing the Corporation. ARTICLE V MISCELLANEOUS PROVISIONS Section 1. Principal Office. (a) The principal office and the registered office of the Corporation shall be the registered office of the Corporation specified in the Articles of Incorporation. (b) The Corporation shall have and shall continually designate a qualified registered agent at its registered office, as required by the Act. Section 2. Fiscal Year. The fiscal year of the Corporation shall be the same as the same fiscal year of the City. 14 Section 3. Seal. The seal of the Corporation shall be as determined by the Board. Section 4. Resignations. Any Director or Officer may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by the CEO, President or Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Section 5. Approval or Advice and Consent of City Council. To the extent that these Bylaws refer to any approval by the City or refer to advice and consent by the City Council, such advice and consent shall be evidenced by a certified copy of a resolution, order or motion duly adopted by the City Council. Section 6. Services of City Staff and Officers. Subject to the paramount authority of the City Council under the Charter of the City, the Corporation shall have the right to utilize the services of the City Manager, the City Secretary, and the staff and employees of the Finance Department of the City, provided (i) that the Corporation shall pay reasonable compensation to the City for such services, and (ii) the performance of such services does not materially interfere with the other duties of such personnel of the City. Section 7. Indemnification of Directors. Officers and Employees. (a) As provided in the Act and the Articles of Incorporation, the Corporation is, for the purposes of the Texas Tort Claims Act, as amended, Texas Civil Practices and Remedies Code, Section 101.001 et. seq. (the "Texas Tort Claims Act"), a governmental unit and its actions are governmental functions. (b) The Corporation shall indemnify each and every member of the Board, its officers, and its employees, and each member of the City Council and each employee of the City, 15 to the fullest extent permitted by law, against any and all liability or expense, including attorneys fees, incurred by any of such persons by reason of any actions or omissions that may arise out of the functions and activities of the Corporation. To the extent not in conflict with the Act, the Texas Non -Profit Corporation Act, the Texas Tort Claims Act, the Articles of Incorporation of the Corporation, and these Bylaws, such indemnification shall be governed by the following, to - wit: (i) the Corporation shall indemnify a director, officer, committee member, employee, or agent of the Corporation who was, is, or may be named defendant or respondent in any proceeding as a result of his or her actions or omissions within the scope of his or her official capacity in the Corporation. For the purposes of this Section, an agent includes one who is or was serving at the request of the Corporation as a director, officer, partner, venture, proprietor, trustee, partnership, joint venture, sole proprietorship, trust, employee benefit plan, or other enterprise. However, the Corporation shall indemnify a person only if he or she acted in good faith and reasonably believed that the conduct was in the Corporation's best interest. In a case of criminal proceeding, the person may be indemnified only if he or she had no reasonable cause to believe that the conduct was unlawful. The Corporation shall not indemnify a person who is found liable to the Corporation or is found liable to another on the basis of improperly receiving a personal benefit. A person is conclusively considered to have been found liable in relation to any claim, issue, or matter, if the person has been adjudged liable by a court of competent jurisdiction and all appeals have been exhausted. (ii) The Corporation shall pay or reimburse expenses incurred by a director, officer, committee member, employee, or agent of the Corporation, in connection with 16 the person's appearance as a witness or other participation in a proceeding involving or affecting the Corporation when the person is not a named defendant or respondent in the proceeding. (iii) The Corporation shall pay or reimburse expenses incurred by a director, officer, committee member, employee, or agent of the Corporation, in connection with the person's appearance as a witness or other participation in a proceeding involving or affecting the Corporation when the person is not a named defendant or respondent in the proceeding. (iv) In addition to the situations otherwise described in this paragraph, the Corporation may indemnify a director, officer, committee member, employee, or agent of the Corporation to the extent permitted by law. However, the Corporation shall not indemnify any person in any situation in which indemnification is prohibited by the terms of Paragraph (i) above. (v) Before the final disposition of a proceeding, the Corporation may pay indemnification expenses permitted by the Bylaws and authorized by the Corporation. However, the Corporation shall not pay indemnification expenses to a person before the final disposition of a proceeding if: the person is a named defendant or respondent in a proceeding brought by the Corporation, or the person is alleged to have improperly received a personal benefit or committed other willful or intentional misconduct. (vi) If the Corporation indemnifies a person under the Bylaws, the person may be indemnified against judgment, penalties, including excise and similar taxes, fines, settlements, and reasonable expenses (including attorney's fees) actually incurred in connection with the proceeding. However, if the proceeding was brought by or on behalf 17 of the Corporation, the indemnification is limited to reasonable expenses actually incurred by the person in connection with the proceeding. (vii) Before the Corporation may pay any indemnification expenses (including attorney's fees), the Corporation shall specifically determine that indemnification is permissible, authorized indemnification, and determine that expenses to be reimbursed are reasonable, except as provided in Paragraph (ix) below. The Corporation may make these determinations and decisions by any one of the following procedures: (a) Majority vote of a quorum consisting of directors who, at the time of the vote, are not named defendants or respondents in the proceeding. (b) If such a quorum cannot be obtained by a majority vote of a committee of the Board of Directors, designated to act in the matter by a majority vote of all directors, consisting solely of two (2) or more directors, who at the time of the vote are not named defendants or respondents in the proceeding. (c) Determination by special legal counsel selected by the Board of Directors by vote as provided in Paragraph (a) or (b) above, or if such a quorum cannot be obtained and such a committee cannot be established by a majority vote of all directors. (viii) The Corporation shall authorize indemnification and determine that expenses to be reimbursed are reasonable in the same manner that it determines whether indemnification is permissible. If the determination that indemnification is permissible is made by special legal counsel, authorization of indemnification and determination of reasonableness of expenses shall be made in the manner specified by Paragraph (vii)(c) above, governing the selection of special legal counsel. A provision contained in the Articles of Incorporation, the Bylaws, or a Resolution of the Board of Directors that requires the indemnification permitted above, constitutes sufficient authorization of indemnification even though the provision may not have been adopted or authorized in the same manner as the determination that indemnification is permissible. (ix) The Corporation shall pay indemnification expenses before final disposition of a proceeding only after the Corporation determines that the facts then known would not preclude indemnification and the Corporation receives a written affirmation and undertaking from the person to be indemnified. The determination that the facts then known to those making the determination would not preclude indemnification and authorization of payment shall be made in the same manner as a determination that indemnification is permissible under Paragraph (vii) above. The person's written affirmation shall state that he or she has met the standard of conduct necessary for indemnification under the Bylaws. The written undertaking shall provide for repayment of the amount paid or reimbursed by the Corporation, if it is ultimately determined that the person has not met the requirements for indemnification. The undertaking shall be an unlimited general obligation of the person, but it need not be secured and it may be accepted without reference to financial ability to make repayment. ARTICLE VI EFFECTIVE DATE, AMENDMENTS Section 1. Effective Date. These Bylaws shall become effective upon the occurrence of the following events: (1) the approval of these Bylaws by the City Council; and 19 (2) the adoption of these Bylaws by the Board. Section 2. Amendments to Articles of Incorporation and Bylaws. The Articles of Incorporation of the Corporation and these Bylaws may be amended only in the manner provided in the Articles of Incorporation and the Act. ARTICLE VII DISSOLUTION On petition of the requisite percentage of registered voters of the City of Lubbock, in compliance with the Act, requesting an election on the dissolution of the Corporation, the City Council shall order an election on the issue. The election must be conducted according to the applicable provisions of the Election Code. The ballot for the election shall be printed to provide for voting for or against the proposition: "Dissolution of Lubbock Economic Development Alliance, Inc.." If a majority of voters voting on the issue approve the dissolution, the Corporation shall continue operations only as necessary to pay the principal of and interest on its bonds and to meet obligations incurred before the date of the election and, to the extent practicable, dispose of its assets and apply the proceeds to satisfy these obligations. When the last of the obligations is satisfied, any remaining assets of the Corporation shall be transferred to the City, and the Corporation will be dissolved. The City Council may call an election at any time to allow the citizens to decide whether to dissolve the Corporation and stop the collection of the sales and use tax approved, pursuant to the Act. ARTICLE VIII RECAPTURE OF INCENTIVES PROVIDED 'M Where applicable and in compliance and in conformity with the Development Corporation Act of 1979, as amended (the "Act"), each recipient of financial assistance or costs advanced or paid toward a recipient's project shall provide the Corporation with representations as to the purpose for which incentives are requested and projections regarding the creation or retention of primary jobs as defined in the Act. The manner and method of recapture or repayment by recipient as to any unfulfilled representation regarding the project or creation or retention of primary jobs or other representation remaining unfulfilled due to termination or abandonment of the project shall also be specifically set forth when required by the Act. ARTICLE IX SPECIFIC TERMS OF AGREEMENTS Where applicable and in compliance and in conformity with the Development Corporation Act of 1979, as amended (the "Act"), the Corporation shall require each recipient of any financial incentives from the Corporation to enter into a written contract or Performance Agreement or other arrangement sufficient to insure that the funds advanced are used for the intended and authorized purposes in furtherance of a permissible Section 4A project. Any such contract, Performance Agreement, or other arrangement must, at a minimum, contain the provisions as required by the terms of the Act as of the date of execution. Adopted by the Board of Directors on the 18`h day of March, 2013. 2I