HomeMy WebLinkAbout2008-01-21-Resolutions 08-18_Public Energy Finance Authority - 28E AgrTHE CITY OF WAUKEE,IOWA
RESOLUTION 08-18
APPROVING ENTRY INTO AN AGREEMENT UNDER IOWA CODE CHAPTER 28E
TO ESTABLISH AN AGENCY TO BE KNOWN AS THE PUBLIC ENERGY
FINANCING AUTHORITY,AN IOWA JOINT POWERS AGENCY,AND
AUTHORIZING EXECUTION OF THE AGREEMENT ESTABLISHING SAID
AGENCY
IN nIE NAME AND BY THE A UTHORITY OF THE CITY OF WA UKEE,IOWA
WHEREAS,the City of Waukee,Iowa is a duly organized municipality within Dallas County;
AND,
WHEREAS,the Waukee City Council has concluded after consideration and investigation by
staff that it is in the best interest of the utility to enter into an agreement under Iowa Code
Chapter 28E to pursue the acquisition of energy,including as needed electric energy,natural gas,
fuel oil,diesel fuel,propane,gasoling,other hydrocaulous and provide for the transportation,
transmission,distribution or storage related to such forms of energy,or to assist in such
procurement provision for the benefit of the utility;
NOW THEREFORE BE IT RESOLVED by the City Council of Waukee,that:
Section One:The proposed "AGREEMENT ESTABLISHING THE PUBLIC ENERGY
FINANCING AUTHORITY,AN IOWA JOINT POWERS AGENCY,UNDER IOWA CODE
CHAPTER 28E,"dated as of September 1,2007 attached hereto as Exhibit A (the "Agreement")
is hereby approved contingent upon changes consistent with the recommendation of the City
Attorney,and the City of Waukee hereby agrees to be bound by the terms of said Agreement.
Section Two:The Mayor and City Clerk are hereby authorized to execute said Agreement on
behalf of the City of Waukee.
Section Three:Said Agreement,once executed by all parties,shall be effective upon filing with
the Secretary of State.The City Clerk of Waukee is directed to coordinate said filing and
recordings with the other executing Members.
PASSED AND APPROVED this 21 st day ofJanuary,2008.
Attest:
.\:ooistra,City Administrator/Clerk
ROLL CALL VOTE AYE NAY ABSENT ABSTAIN
Donald L.Bailey,Jr.X '1CaseyL.Harvey X
C.Isaiah McGee X
Darlene Stanton X
Mike Watts X
.I
AGREEMENT ESTABLISillNG THE
PUBLIC ENERGY FINANCING AUTHORITY,
AN IOWA JOINT POWERS AGENCY,
UNDER IOWA CODE CHAPTER 28E
(Dated as of September 1,2007)
BE IT REMEMBERED for the mutual promises,covenants and considerations herein
contained,the City of Sanborn,Iowa;Emmetsburg Municipal Utilities,a city utility of
the City of Emmetsburg,Iowa;Manning Municipal Gas Department,a city utility of the
City of Manning,Iowa;Coon Rapids Municipal Utilities,a city utility of the City of
Coon Rapids,Iowa;and Manilla Municipal Utilities,a city utility of the City of Manilla,
Iowa (together,the "Initial Members")have entered into the following Agreement
Establishing The Public Energy Financing Authority,dated as of September 1,2007 (the
"Agreement")under Iowa Code chapter 28E (the "Joint Powers Act")to wit:
Article One.The organization herein created is a separate legal entity,a body corporate
and politic which shall be known as the Public Energy Financing Authority,an Iowa
Joint Powers Agency (hereinafter the "Agency"),
Article Two,The purposes of the Agency are to acquire and procure energy resources,or
the rights to acquire thereto,including in particular natural gas and electric energy,and to
provide for the transportation,transmission,distribution,sale and/or storage thereof in
and to each Members'service area to assist in the provision thereof for the benefit of the
public entities which are or become Members of the Agency,
Article Three.The Agency shall have the power (A)to sue and be sued;(B)to make and
enter into contracts (including without limitation prepaid energy purchase agreements,
energy supply agreements,energy remarketing agreements,energy price management
and exchange agreements and interest rate management and exchange agreements
providing for payments based on levels of,01'changes or differences in,interest rates or
energy or natural gas prices,agreements to exchange cash flows 01'payments,and
agreements for credit enhancement and liquidity support in connection with such
contracts);(C)to hire agents,consultants,underwriters,trustees,contractors,attorneys
and employees;(D)to acquire,construct,maintain and operate (or to provide for the
construction,maintenance and operation of)any buildings,works 01'improvements;
(E)to acquire,hold or dispose of property,by purchase,lease 01'otherwise,whether real
01'personal,tangible or intangible,wherever iocated;(F)to incur debts,liabilities or other
financial obligations,to issue bonds,notes and other obligations for borrowed money
("Bonds"),and to pledge any property (whether real or personal,tangible or intangible)
or revenues 01'both as security for such Bonds;and (G)to receive gifts,contributions and
donations of property,funds,services and other forms of assistance from persons,firms,
corporations and any governmental entity,In addition,the Agency shall have all powers
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conferred by Iowa Code chapters 28B,28F,384,and 476A (2007),as supplemented and
amended from time to time,and any successor statutes.
Article Four.The Board of Directors (the "Board")shall initially consist of five people
(the "Initial Directors"),each of whom shall be appointed by each Initial Member.Initial
Directors shall be for a term of either four (4)or five (5)years,to be established by lot at
the first meeting of the Board.The election of subsequent Boards,the manner of
election,size of the Board,and tenure of Board members shall be as established in the
Bylaws.
Article Five.The Board shall adopt Bylaws consistent with tills Agreement.The Bylaws
shall provide for officers of the Agency.The Bylaws shall provide for the periodic
meeting of the Board and may provide for an executive committee which may act on
behalf of the Agency between meetings of the Board.The Agency=s fiscal year shall be
set in its Bylaws.The Board may,by resolution,designate two or more of its
representatives to constitute a committee.Such committee shall,if authorized by
resolution of the Board,provide advice and recommendations to the Board.The
designation of such committee shall riot operate to relieve the Board of any responsibility
imposed by this Agreement.Meetings of such committees may be held at such time and
place as the committee members may fix from time to time.
Article Six.Except as otherwise provided in this Agreement,all powers of the Agency
are vested in the Board.
Article Seven.The Board may employ an executive director for the Agency and provide
for direct employment of such other persons as are deemed necessary or prudent,and
shall have the power to engage the services of independent contractors,including
attorneys,engineers,financial and other technical consultants and such other persons or
entities as it may deem prudent or necessary.
Article Eight.The Board shall control the finances of the Agency and may expend or
invest funds of the Agency as it deems necessary to accomplish the purposes of the
Agency,provided,however,that all funds shall be invested in accord with Iowa Code
sections 12B.I0 and 12B.lOA through 12B.10C (2007),as supplemented and amended
from time to time,or any successor statutes.
The Agency may borrow money and issue Bonds as provided by law,and as herein
limited.In the event the Agency shall issue Bonds,such obligations shall be limited
special obligations of the Agency ("Special Obligations")only and such Special
Obligations including the principal,redemption price and purchase price (to the extent
payable by the Agency upon tender for purchase in accordance with the provisions of the
financing documents authorizing issuance thereof,or any loan agreement,trust agreement
or other agreements required thereby (hereinafter,the "Financing Documents")and the
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interest thereon,shall be special obligations of the Agency payable solely from,and
secured solely by,the revenues,funds and other assets pledged therefore under the
applicable Financing Documents and shall not constitute a charge against the general
credit or other funds of the Agency or the Members.
The Special Obligations shall not be secured by a legal or equitable pledge of,or lien or
charge upon or security interest in,any property of the Agency or its Members or any of
its income or receipts except the property,income and receipts pledged therefore under
the applicable Financing Documents.Neither the faith and credit nor the taxing power of
the State of Iowa'(the "State"),any Member or any other public agency shall be pledged
to the payment of the principal,redemption price or purchase price of,or the interest on,
the Special Obligations.The issuance of the Special Obligations shall not directly,
indirectly or contingently obligate the State,or any Member,to levy or pledge any form
of taxation or to make any appropriation for the payment of the Special Obligations.The
payment of the principal,redemption price or purchase price of,or interest on,the
Special Obligations shall not constitnte a debt,liability or obligation of the State or any
public agency,including any Member (other than the obligation of the Agency as
provided in the applicable Financing Documents).
Atticle Nine.The Board shall establish the fiscal year for the Agency and shall annually
adopt abudget prior to the start of the Agency=s fiscal year.The bndget shall provide for
such contributions from Member.as may be deemed necessary.A copy of a proposed
budget shall be forwarded to each Member at least 30 days before adoption.A copy of
the budget as adopted shall be sent to each Member within.3 0 days after adoption.
Article Ten.The Agency shall hold all real,personal and intangible property which it
acquires in its own name.The Agency may acquire such property as it needs to
accomplish its public purposes by sale,exchange or otherwise.The Agency may also
acquire real property by use of the power of eminent domain and is authorized to bring an
action in eminent domain for a public purpose in its own name or may request a Member
to bring such action,which the Member shall then do,but the Agency shall fully
reimburse the Member for all costs of acquisition including not only damages to be paid
the owner but all administrative and related costs incurred by the Member to complete the
acquisition.The Agency may dispose of any of its property in the same manner as a city.
All proceeds from the sale or disposition of property is property of the Agency.The
Agency may accept contributions in any form.
The Agency may administer contracts and may take assignments of contract rights from
Members or other public or private entities upon such terms and conditions as the Board
may deem proper or in the best interest of the Agency.
The Board shall establish and maintain appropriate funds and accounts for the purposes
set forth in this Agreement to the extent necessary or desirable,including but not limited
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to separate accounts for operation and maintenance,administrative expenses,debt service
on bonds and any refunding bonds and reserves for working capital.All funds held by
the Board shall be accounted for,managed and invested in compliance with Iowa law,
including but not limited to Chapters 12B and l2C of the Iowa Code,as supplemented
and amended.
Each year the receipts,expenditures and allocation of expenses for the operation of the
Agency shall be audited by the independent auditing firm engaged by or on behalf of the
Board for that year to conduct the audit of the Agency.Such audit shall be conducted in
accordance with auditing standards generally accepted in the United States of America
and the standards applicable to the financial audits contained in Govermnent Auditing
Standards,issued by the Comptroller General of the United States and Chapter 11 of the
Iowa Code.Following the receipt of the audit report,the Board shall deliver a copy of
the same to the Members and shaIl schedule a meeting of the Board for the purpose of
having representatives of the independent auditing firm submit an oral presentation of the
audit and answer questions as may be posed to them by the Board.
MucIe E1eyen.This Agreement shall become effective upon execution and approval of
all the Initial Members and when filed as required by law and shall continue in fuIl force
and effect far a period of sixty (60)years from such date,or until such earlier time as it is
terminated by a writing signed by all the Members;provided,however,that,
notwithstanding the foregoing,this Agreement shaIl not expire 01'be terminated until the
date on which:(i)all Bonds issued by the Agency shall have been paid or deemed paid in
accordance with the applicable Financing Documents;(ii)all contracts and agreements of
the Agency (a)shaIl have expired or been otherwise terminated and all amounts owed by
the Agency thereunder have been paid or (b)the Agency's obligations thereunder have
been transferred or assigned to another party in accordance with the terms of such
contracts and agreements;and (iii)all other indebtedness and liabilities incurred by the
Agency shall have been paid.
Article Twelve.At the end of the term hereof or upon the earlier termination of this
Agreement as provided herein,after payment of all expenses and liabilities of the
Agency,all property of the Agency both real and personal shall be distributed as directed
by the Board;provided,however,that any surplus money on hand shaIl be returned in
proportion to the contributions made by the Members and if no contributions have been
made in proportion to the payments made by each of the Members to or for the account
of the Agency in connection with its projects and programs,including without limitation
payments with respect to Bonds and any other agreements or obligations of the Agency.
Article Thirteen.As a means of achieving the purposes of the Agency,the Board is
authorized to issue its Special Obligations under the authority of Chapter 28E of the Iowa
Code,as supplemented and amended,or as otherwise may be authorized by law from
time to time for the purposes set forth in this Agreement.
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The Board also is authorized,in its sole discretion,to utilize other available funds,not
otherwise obligated or previously appropriated for another purpose,(i)to pay all or any
portion of the costs associated with the acquisition of natural gas or other energy sources,
In lieu of issuing Special Obligations for the same under this Agreement,and (ii)for the
purpose of advancing,on a temporary basis,all or any portion of the Costs associated
with the acquisition of natural gas or other energy sources,with the intent of reimbursing
such advanced funds with a subsequent issuance of Special Obligations.
By their approval and execution of this Agreement,the Members hereby consent to and
authorize the Board,pursuant to Section 28B of the Iowa Code,as supplemented and
amended,to issue Special Obligations from time to time in aggregate principal amount as
determined by the Board for the purposes set forth in this Agreement.The Members
further consent to and agree that such Special Obligations may be issued and sold by the
Board in multiple series,at such times and from time to time over a period of years,in
such amounts,to such purchasers and for such purposes,by either public or private sale,
at fixed or variable rates of interest as shall be prevailing at the time of issuance of the
Special Obligations,with such covenants and terms and in such form and manner as the
Board shall determine to be appropriate,in its sole discretion,and in accordance with an
offering schedule to be approved by the Board.
In addition to the Special Obligations authorized herein,the Members hereby consent to
and authorize the Board,pursuant to Section 28B of the Iowa Code,as supplemented and
amended,to issue refunding obligations for the purpose of refunding or refinancing any
of the Special Obligations during the term of this Agreement.Such refunding obligations
may be issued and sold by the Board in multiple series,at such times and from time to
time over a period of years,in such amounts,to suoh purchasers by either public or
private sale,at such rates of interest as shall be prevailing at the time of issuance of the
refunding obligations,with such covenants and terms and for the purpose ofrefunding or
refinancing such series of Special Obligations as the Board shall determine to be
appropriate.
To the extent permitted by law,the Board is authorized to and may enter into,amend or
terminate,as it determines to be necessary or appropriate contracts for the benefit of the
Agency or for the holders of any Special Obligations or refunding obligations to facilitate
the issuance,sale,resale,purchase,repurchase or payment of any of the Special
Obligations or refunding obligations,including without limitation bond insurance,letters
of credit and liquidity facilities.
The principal of and interest on all Special Obligations and refunding obligations issued
under this Agreement shall be payable solely from and secured by the net revenues of the
Agency pledged thereto and from other funds of the Agency lawfully available therefore,
and the Special Obligations and refunding obligations shall not in any respect be general
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obligations of the Members,nor shall the Members be in any manner liable by reason of
such net revenues or other funds being insufficient to pay the Special Obligations and
refunding obligations.
The Members further agree that no Member may withdraw or in any way terminate,
amend or modify in any way its obligations under this Agreement to the detriment of the
holders of the Special Obligations and refunding obligations while any of the Speclal
Obligations and refunding obligations are outstanding and unpaid.
The provisions of this Article are intended and shall be construed as to fully invoke the
provisions of Chapter 28E of the Iowa Code,as supplemented and amended,with respect
to the issuance of the Special Obligations and refunding obligations by the Board as
described herein,and to reflect the full authorization,consent and agreement of the
Members to the issuance of the Special Obligations and refunding obligations on the
terms,at the times,in tile amounts and for the purposes set forth in this Agreement
Article Fourteen.The Agency shall hold all licenses and certificates necessary to its
purposes in its own name or through affiliated entities formed by the Agency for
specified purposes.
Article Fifteen.Additional Members may join or be added to the Agency.Any oily,city
utility,or organization composed of cities'or city utilities or other public entities
organized under the laws of any state,may,to the extent permitted by applicable law,
adopt this Agreement (as amended,if amended)as provided by law and become a
Member of the Agency.Any such joinder shall be subject to the prior approval of the
Board.Furthermore,any such joinder shall be accomplished by a supplement to this
Agreement between the Agency and the new Member and such supplement shall be in a
form approved by the Board.Subject to the Agency's Bylaws,all Members,Initial or
additional,shall have the same rights and obligations hereunder.
Alticle Sixteen.This Agreement may be amended by the agreement of all Members.
Article Seventeen.Any Member m"y withdraw from the Agency,provided,that no such
withdrawal shall be permitted if it would result in the dissolution of the Agency for so
long as any Special Obligations remain outstanding;and provided further,that no
Member will be permitted to withdraw at a time when Special Obligations are
outstanding unless said Member pays or provides for the payment of its pro-rata share;if
any,of the principal and interest coming due under such Special Obligations then
outstanding.Any such withdrawal shall oniy be effective following the receipt by the
Agency of such notice of withdrawal in writing.The Agency shall file such notice of
withdrawal from this Agreement as an amendment hereto,and such amendment and
withdrawal shall be effective upon such filing.
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Altic1e Eighteen.The Agency shall at all times during the term of this Agreement
maintain comprehensive general liability and automobile liability insurance policies with
policy Iimits of not less than $1,000,000 to provide protection for the Agency and the
Members.
Such policies shall name each Party and its officials,directors,officers,employees,
contractors and agents as additional insured and will be considered primary pursuant to or
incidental to this Agreement.Such policies shall include a cross-liability or severability
of interest provision.Upon the request of any Party,the Agency shall provide certificates
of insurance to such Party to the effect that at least the minimum coverage stated above
are in effect and shall identify the insurance policies providing such coverage.
illude Nineteen.This Agreement may be amended by the mutual agreement of all
Members as provided by law.
Article Twenty.If any one or more of the terms,provisions,promises,covenants or
conditions of this Agreement shall to any extent be adjudged invalid,unenforceable,void
or voidable for any reason whatsoever by a court of competent jurisdiction,each and all
of the remaining terms,provisions,promises,covenants and conditions of this Agreement
shall not be affected thereby,and shall be valid and enforceable to the fullest extent
permitted by law.
Altic1e Twenty-One.No official,director,officer,contractor,agent or employee of the
Agency,past,present or future,shall be individually or personally liable for the
observance or performance of any of the terms,conditions or provisions hereof or for any
claims,losses,damages,costs,injury and liability of any kind,nature 01'description
arising from.the actions of the Agency or the actions undertaken pursuant to this
Agreement;provided,however,that nothing herem shall relieve any such person from the
performance of any official duty provided hereby or by applicable provision of law.
All of the privileges and immunities from liabilities,exemptions from laws,ordinances
and rules,all pension,relief,disability,workers'compensation,and other benefits which
apply to the activity of officers,agents,employees or other representatives of a Member
when performing their respective functions within the territorial limits of their public
agency,shall apply to them to the same degree and extent while engaged as a Director,
officer,agent,employee or other representative of the Agency 01'while engaged in the
performance of any of their functions or duties under the provisions of this Agreement
whether within 01'outside of the boundaries of the applicable Member.
Article Twenty-Two.This Agreement is the complete and exclusive statement of the
agreement between the Members with respect to the subject matter hereof,and this
Agreement supersedes and merges all prior proposals,understandings,and other
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agreements,whether oral,written,or implied in conduct,between the Members relating
to the subject matte!"of this Agreement.
Article Twenty-Three.This Agreement is made and shan be construed in accord with the
law of the State ofIowa.
Atticle Twenty-Four.Each Initial Member represents,warrants and agrees that it (i)is a
"public agency"as that term is defined in Section 28E.2 of the Joint Powers Act,(ii)
owns and operates either or both a municipal natural gas distribution utility andlor a
municipal electric utility,and (iii)is authorized to purchase and sell natural gas andlor
electricity for use in connection with its natural gas and/or electric utility systems.
Article Twenty-Five.This Agreement is an amendment and restatement of the
Agreement Establishing The Iowa Public Energy Agency Under Iowa Code Chapter 28B
(the "Original Agreement"),and is intended to provide for the continuation and
expansion of the joint project commenced under the Original Agreement.The Original
Agreement shall terminate and be of no further force or effect following the filing of this
Agreement with the Secretary of State of the State of Iowa,
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BYLAWS OF
PUBLIC ENERGY FINANCING AUTHORITY,
AN IOWA JOINT POWERS AGENCY
ARTICLE I.
Purposes
The Public Energy Financing Authority,an Iowa Joint Powers Agency (the "Agency")
will have the purposes stated in the Agreement Establishing the Pnblic Energy Financing
Authority Under Iowa Code Chapter 28E,dated as of September 1,2007.
The Agency'.principal office will be:Manning Municipal Utilities,715 Third Street,
Manning,Iowa 51455.
ARTlCLETI.
Limitation on Powers
The Agency shall be subject to the following limitations:
a.The Agency shall engage only in activities that are expressly authorized by the
Agreement by which it was created.
b.No Members of the Agency shall be liable for the indebtedness of any oilier
Member,nor liable for any amount for any purpose in excess of the assessments made
against that Member.
ARTICLE III
Membership
SECTION 3.1.Requirements for Membership.Any city,city utility,or organization
composed of cities or city utilities or other public entity,in each case which provides either
natural gas distribution or electric utility services,whether organized under the laws of this or
any other state as allowed by Iowa law may become a Member,by:
a.Making a written application for membership therein;
b.Adopting and agreeing to comply with and be bound by the Agreement
Bstablishing the Public Energy Financing Authority,dated as of September 1,2007 (the
"Agreement")under Iowa Code Chapter 28E (the "Act")and Bylaws of the Agency;
e.Paying the fees,rates and charges established by the Board of Directors (the
"BoardU
);and
d.Acceptance by the Board.
SECTION 3.2.Membership Certificates,Membership in the Agency shall be evidenced
by a membership certificate which shall be in such form and shall contain such provisions as
shall be determined by the Board.Such certificate shall be signed by the President and by the
Secretary of the Agency.
ARTICLE IV
Meetings of Membe~s
SECTION 4,1.Annual Meeting.An annual meeting of the Members shall be held each
year,beginning with the year 2007,at such place in the State of Iowa,as shall be designated in
the notice of the meeting,for the PUl"pose of electing Directors,passing upon reports for the
previous fiscal year and transacting such other business as may come before the meeting.It shall
be the responsibility of the Board to make adequate plans and preparations for the annual
meeting.Failure to hold the annual meeting at the designated time shall not work a forfeiture or
dissolution of the Agency.
SECTION 4.2.Special Meetings.Special meetings of the Members may be called by
resolution of the Board,or upon written request signed by twenty percent (20%)or more of all
the Members,and it shall thereupon be the duty of the Secretary to cause notice of such meeting
to be given as hereinafter provided.Special meetings of the Members may be held at any place in
the State ofIowa specified in the notice of the special meeting,
SECTION 4.3.Notice of Members'Meeting.Written or printed notice stating the place,
day and hour of the meeting and,in case of a special meeting or an annual meeting at which
business requiring special notice is to be transacted,the purpose or purposes for which the
meeting is called,shall be delivered not less than ten days nor more than twenty-five days before
the date of the meeting,either personally or by mail,by 01'at the direction ofthe Secretary of the
Agency,or upon the Secretary's failure to do so,by any Trustee or any Member,to each
Member.If mailed,such notice shall be deemed to be delivered when deposited in the United
States mail,addressed to the Member at his address as it appears on the records of the Agency,
with postage thereon prepaid.The special meeting of'the Members shall not invalidate any action
which may be taken by the Members at any such meeting.
SECTION 4.4..Authorized Representative.At all meetings of the Members,each
Member shall be represented by its representative dnly authorized in writing.Each such
representative sball be appointed and may be removed by the governing body of the city utility
as provided from time to time by the laws oflowa.
SECTION 4.5.Quorum.A majority of the Members shall constitute a quorum.
SECTION 4.6,Voting.Except as to the election of'Direotors as provided in Article V
hereof,each Member which has or is participating in a completed or proposed natural gas or
electric purchase and sale transaction shall have one vote;provided,that Members which bave
participated in a completed transaction shall have such additional votes as shall be equal to the
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present value of their participation,divided by $100,000,000,rounded up to the nearest whole
number.
SECTION 4.7.Proxies;Mail Voting;Electronic Meetings.Voting by written proxy 01'
by mail shall not be permitted.However,the Agency may conduct meetings by electronic means
in accordance with Iowa law.
SECTION 4.8.Order of Business,The order of business at the annual meeting of
Members and,so far as possible,at all other meetings of the Members,shall generally be
essentially as follows:
a.Report on the Members which are represented (by representatives duly authorized
in writing)in order to determine the existence of a quorum,
b.Reading of the notice of the meeting and proof of the due publication or mailing
thereof,or the waiver or waivers of notice of tho meeting,as the case may be.
c.Reading of unapproved minutes of previous meetings of the members and the
taking of necessary action thereon,
d.Presentation and consideration of reports of officers,Directors and committees.
e.Nomination and election of Directors.
f.Unfinished business.
g.New business.
h.Adjournment.
ARTICLE V
Directors;Officers;Meetings;Reports
SECTION 5.1.Board of Directors.
(1)Members.
The governing body of the Agency shall he the Board of Directors,comprised of 5
directors.The initial Board of Directors will consist of five people (the "Initial Directors"),each
of whom sha11be appointed by each Initial Member (as defined in the Agreement).The Board
sball be the administering authority oftbis Agreement and,as such,shall be vested witb all the
powers of the Agency to execute,administer,and amend this Agreement,in accordance with the
purposes set forth herein.The Initial Directors shall consist of four (4)and five (5)years terms,
respectively,to be determined by lot at the first meeting of the Initial Directors.Two four (4)
year terms and three five (5)year terms shall be filled by the Initial Members.The Board shall
create the process from time to time for election of future Board members and Officers in the
sole discretion of the Board.
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(2)No Compensation.
Directors shall not receive any compensation for serving as Directors hut shall be entitled
to reimbursement for any expenses actually incurred in connection with serving as a Director if
the Board shall determine that such expellSOBshall be reimbursed and there are unencumbered
funds available for such purpose.
SECTION 5.2.Officers;Duties;Official Bond.
(1)Officers.
The Initial Directors shalI elect a Chair,Vice Chair,Secretary,Treasurer,and Executive
Director,and any other officers of the Agency by majority vote of the Board.The Executive
Director may nor may not,as determined by the Board,be required to be a representative of the
legislative body of a Member.The Chair and the Vice Chair,and any other officer or Board
member of the Agency,authorized by Board resolution,ill authorized to execute any and all
bonds,contracts,agreements,instruments and other documents on hehalf of,and in the name of,
the Agency.The Secretary shall attest to the signature of an officer on any such bond,contract,
agreement,instrument aud other document when required to do so by Board resolution and shalI
perform the normal duties of the secretary of an organization such as the Agency,including
maintaining custody of the records of the Board and the Agency.The Executive Director shall
he the chief executive officer of the Agency and as such shall implement the policy decisions and
the directives of the Board.The Chair,Vice Chair,Treasurer,Executive Director and Secretary
shall have such other powers,duties and responsibilities as shsll he determined by the Board.
(2)Treasurer.
The Treasurer shall serve as both treasurer and auditor of the Agency.Subject to the
provisions of each Financing Document (as defined in the Agreement)providing for a trustee or
other fiscal agent,the Treasurer is designated as the depositary ofthe Agency to have custody of
all money of the Agency from whatever source derived.Subject to the provisions of each
Financing Document and any contracts authorized by the Board for the lease,operation or
custody of Agency property,the Treasurer is designated as the public officer or person who has
charge of,handles,and bas access to all property ofthe Agency.
(3)OtherOfficers.
The Board shan have the power to appoint from time to time such other officers,agents,
employees,counsel,contractors,and accountants,and to specify their respective powers,duties
and responsibilities,as it may deem necessary or convenient.
(4)Delegation.
The Board shall have the power,to the extent permitted by the Act or any other
applicable law,to delegate any of its functions to one or more Directors,officers,employees,
contractors,or agents of the Agency,and to cause any of said Directors,officers,employees,
contractors,or agents to take any actions for and in the name and on behalf of the Board or the
Agency,
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SECTION 5.3.Meetings of the Board.
(1)Open Public Meetings Act.
An meetings of the Board,inclnding regular,adjourned regular,special,and adjourned
special meetings shall be scheduled,called,noticed,held and conducted in accordance with the
provisions of chapter 21 ofthe Iowa Code (the "Open Meetings Act").
(2)Regular Meetings.
The Board shall hold at least one regular meeting during each Fiscal Year.The date,hour
and place of the holding of the regular meetings shaJJ,if requested by a Member,be provided to
such Member.
(3)Special Meetings.
Special meetings of the Board for any pnrpose 01'purposes may be called at any time by
the Chair or a majority of'Directors then in office.Special meetings of thc Board may be held at
any time specified in the notice of the meeting which is consistent with the nctice and other
provisions of the Open Meetings Act.
(4)Minutes.
The Secretary of the Agency shall cause to be kept minutes of the regular,adjourned
regular,special,and adjourned special meetings of the Board and shall,as soon as possible after
each meeting,cause a copy of the minutes to be delivered to each Director.
(5)Ouorum,
A majority ofthe Directors then in office,but no less than three,shall constitute a quorum
for the transaction ofbusincss.No action may be taken by the Board except upon the affirmative
vote of a majority of the Directors then'in office,except that less than a quorum may adjourn a
meeting to another time and place.
(6)Adjournment.
Any meeting of the Board being held,or any hearing noticed or ordered to be beld at any
mooting,may by order of the Board be continued or re-continued to any subsequent meeting,
with notice thereof given in the same manner and to the same extent set forth herein for the
notice of special meetings.
SECTION 5.4.Rules and Regulations.
The Agency may adopt,from time to time,by resolution of the Board,such rules and
regulations for the conduct of its meetings and affairs as the Board determines are necessary or
convenient.
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SECTION 5.5.Contracts.
In the exercise of a common power of the Members or a power conferred npon the
Agency by any law (whether currently in force or hereafter enacted)as an entity separate from
the Members,and when authorized by resolution of the Board,the Agency may enter into any
contract or agreement authorized under the Agreement.Such agreements may have such terms
and conditions as shall be authorized by the Board.
SECTION 5.6 Accoullts and RepOlts.
(1)Books and Records.
All funds of the Agency shall be strictly accounted for in books of account maintained by,
01'on behalf of,the Agency which shall report all receipts and disbursements of Agency funds.
the Agency shall establish and maintain such funds and accounts as may be required by good
accounting practice and by each Financiug Document for outstanding Bonds (to the extent such
duties are uot assigned to Directors under the Financing Document).The books and records of
the Agency shall be open to inspection at all reasonable times by each Member.
The Agency shall require that each Financiug Document provide that the trustee
appointed thereunder shall establish snitable funds and furnish suitable financial reports iu
connection with the funds held by such trustee.
(2)Audit.
The Treasurer shall cause an independent audit to be made of the books of account and
financial statements of the Agency for each Fiscal Year,and shall cause such financial
statements and audit to be filed and reported,in compliance with any requirements of the Act.
Any costs of the audit,includiug contracts with,or employment of,certified public accountants
or public accountants in making ail audit pursuant to this Section shall be borne by the Agency
fila,to the extent not paid from funds provided pursuant to one or more of the Agency's projects
or programs,shall be a charge against any unencumbered funds of the Agency available for that
purpose.
SECTION 5,7,Funds,
Subject to the applicable provisions of any Financing Documents related to outstanding
Special Obligations of the Agency,which may provide for a trustee to receive,have custody of
and disburse funds that constitute Agency funds,the Treasurer of the Agency shall receive,have
the custody of and disburse Agency funds pursuant to such accounting procedures as may be
approved by the Board,and shall make the disbursements necessary or convenient iu carrying
out any of the provisions or purposes of this Agreement
SECTION 5.8,Contributions and Advances.
Without limiting the power of the Agency to accept contributions from persons other than
the Members,contributions or advances of public funds and of the use of personnel,equipment
01'property may be made to the Agency by the Members hereto for any of the pUlposes of this
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Agreement.Any advance of funds by a Member may be made subject to repayment,and in such
case shall be repaid,in the manner agreed upon by the Agency and the Member making such
advance.
SECTION 5.9.Indemnification.
To the full extent permitted by law,the Board may authorize indemnification by the
Agency of any person who is or was a Director,or an officer,employee or other agent of the
Agency,and who was or is a party or is threatened to be made a party to a proceeding by reason
of the fact that such person is or was such a Director,officer,employee,contractor,or other
agent of the Agency,against expenses,judgments,fines,settlements and other amounts actually
and reasonably incurred in connection with such proceeding,if such person acted in good faith
and in a manner such person reasonably believed to be in the best interests of the Agency and,in
the case of a criminal proceeding,had no reasonable cause to believe the conduct of such person
was unlawful and,in the case of any action by or in the right of the Agency,acted with such
care,including reasonable inquiry,as an ordinarily prudent person in a like position would use
under similar elrcumstances.
Notwithstanding any provisions of law to the contrary,no Member shall have a light of
contribution from any other Member for any judgment for damages caused by a negligent or
wrongful act or omission of such first Member occurring in the performance by it or by the
Agency of the provisions of this Agreement.
SECTION 5.10.Executive Director.The Board may appoint and may remove an
Executive Director and such other employees as it deem proper.Such Executive Director and
other employees shall not be eligible to serve a.a trustee of the Agency.
SECTION 5.U.Bonds of Officers.The Treasurer and any other officer or agent of the
Agency charged with responsibility for the custody of any of its funds or property shall give
bond in such sum and with such surety as the Board shall determine.If and to the extent
permitted by law,the Treasurer and any such other officer,agent or employee may satisfy this
requirement by filing an official bond in at least said amount obtained in connection with another
public office so long as such official bond includes coverage of the Treasurer or such other
person as such officer,agent or employee of the Agency.The Board in its discretion may also
require any other officer,agent or employee of the Agency to give bond in such amount and with
SUGhsurety as it shall determine.The Agency shall bear the cost of bond premiums.
SECTION 5.12.Compensation.The powers,duties and compensation cf agents and
employees shall he fixed by the Board.
SECTION 5.13.Reports.The officers of the Agency shall submit at each annual
meeting of the members reports covering the business of the Agency for the previous fiscal year.
Such reports shall set forth the condition of the Agency at the close of such fiscal year.
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ARTICLE VI
Assets;Project Asset Pools;Liability
SECTION 6.1.Tangible or intangible property,contract rights or other assets owned or
controlled by the Agency shall be held for the benefit of all Members.
SECTION 6.2.Subject to the terms of the Financing Documents,individual contracts
and project agreements,the obligation.of each Member and any other participant under each
Financing Document,contract or agreement between the Agency and such Members and
participants in connection with any project undertaken by the Agency shall be a several and not a
joint obligation of such Members or any other project participants,
ARTICLE VII
Disposition of Properly
The Board of the Agency,without authorization by the Members,shall have aU of the
powers of the Agency conferred by the Agreement creating the Agency to acquire and dispose of
properly.
ARTICLEvrn
Committee.
SECTION 8.1.Exeoutive Committee.The Board may by resolution appoint an
Executive Committee.The Exeoutive Committee shall serve at the pleasure of the Board and
shan exercise such powers as the Board may by resolution delegate,including without limitation,
responsibility for the general direction of the Agency when the Board is not in session.
SECTION 8.2.Other Committees.The Board may in its discretion create and authorize
the establishment of other committees as necessary to assist in the supervision and control of the
Agency's affairs and to provide advice to the Board.
ARTICLE IX
Financial Transactions
SECTION 9.1.Contracts.Except as otherwise provided in these Bylaws,the Board may
authorize any officer or officers,agent or agents to enter into any contract or execute and deliver
any instrument in the name and on behalf of the Agency,and such authority may be general or
confined to specific instances.
SECTION 9.2.Checks,Drafts,Other Financial Instruments.All checks,drafts 01'other
orders for the payment of money,and all notes,bonds,obligations or other evidences of
indebtedness issued in the name of the Agency shall be signed by such officer or officers,agent
01'agents,employee or employees of the Agency and in such manner a.shall from time to time
be determined by resolution of the Board.
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SECTION 9.3.Deposits and Inyeshnents.All funds of the Agency shall be deposited
from time to time to the credit of the Agency in such bank or banks as the Board may select or
invested in accordance with the laws ofIowa.
SECTION 9.4,Fiscal Year.The fiscal year of the Agency shal1 begin on the first day of
January of each year and end on the thirty-first day of December of the same year.
SECTION 9.5.Onerating Budget.In accord with the Agreement creating the Agency the
Board shall establish an annual operating budget for the fiscal year that includes all estimated
expenses and al1 estimated source,of revenue,The Board shall establish and provide for
collection of due"cherges and assessrnents to the Members,in a form to be established by the
Board,sufficient to collect such amounts as will in the aggregate be not less than budgeted
expenditures,plus adequate provision for contingencies and reserves.
ARTICLE X
Miscellaneous
SECTION 10.1.Membership in Other Organizatio11ll.The Agency may become a
member of any other organization to which it may lawfully belong upon the affirmative vote of a
majority of the members of the Board.
SECTION 10.2.Waiver of Notice.Any Member or Trustee may waive in writing any
notice of a meeting required to be given by these Bylaws.The attendance of a Member or
Trustee at any meeting shall constitute a waiver of notice of such meeting by such Member or
Trustee,except in case a where a Member or Trustee sball "attend a meeting for the express
purpose of objecting to the transaction of any business on the grounds that the meeting has not
been lawfully called or convened.
SECTION 10.3.Rules and Regulations.The Board shall have powerto make and adopt
such rules and regulations and policies,not inconsistent with law,the Agreement establishing the
Agency,or these Bylaws,as it may deem advisable for the management of the business and
affairs of the Agency.
SECTION lOA.Accounting System and Reports:Audit.The Board shal1 cause to be
established and maintained an accounting system which shall be subject to applicable laws,rules
and regulations.The Board shall also,after the close of each fiscal year,cause to be made an
audit of the accounts,books and financial condition of the Agency as of the end of such fiscal
year.SUCll audit reports shall be made available to the Members.The annual audit shall be
conducted by an independent certified public accountant.
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ARTICLE XI
Amendments
These Bylaws maybe amended by a vote of four-fifths of the Members of the Board at
any regular or special meeting;provided,that no amendments hall be considered unless all Board
Members are provided notice of the proposed amendment at least ten (10)days prior to any
meeting at which the amendment is to be considered.
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