Legislation Details

File #: HIST-15711    Version: 1 Subject:
Type: Historical Status: Consent Agenda
In control: City Council Meeting Agenda
On agenda: 1/24/2011 Final action: 1/24/2011
Title: Approval of the Amended and Restated Bylaws of the Culver City Cultural Affairs Foundation.
Attachments: 1. Approval of the Amended and Restated Bylaws of the - C-3__11-01-24__CDD__CITY COUNCIL__Cultural Affairs Foundation Amended Bylaws - FINAL.doc, 2. Approval of the Amended and Restated Bylaws of the - 11-1-24 _CDD_ATT Cultural Affairs Foundation Amended Bylaws.pdf
City of Culver City, California Agenda Item Report Meeting Date: January 24, 2010 Item Number: _C-3 CITY COUNCIL AGENDA ITEM: Approval of the Amended and Restated Bylaws of the Culver City Cultural Affairs Foundation Contact Person/Dept.: Jeremy Green / Community Development Todd Tipton / Community Development Phone Number: (310)253-5764 (310)253-5783 Fiscal Impact: Yes [X] No [] General Fund: Yes [] No [X] Public Hearing: [] Action Item: [] Attachments: [X] Commission Action Required: Yes [X] No [] Date: 10/27/10 Cultural Affairs Commission Public Notification: Meetings and Agendas – City Council (01/19/11), Cultural Affairs Commission (xx/xx/xx), Cultural Affairs Foundation Board (xx/xx/xx) Department Approval: Sol Blumenfeld (01/13/11) City Attorney Approval: Carol Schwab (by H. Baker) (01/18/11) Chief Financial Officer Approval: Jeff Muir (by N. Kimball) (01/19/11) City Manager Approval: John M. Nachbar (01/19/11) RECOMMENDATION: Staff recommends the City Council concur with the recommendation of the Cultural Affairs Foundation Board (CAF Board) and approve the amended and restated Bylaws of the Culver City Cultural Affairs Foundation (Foundation.) BACKGROUND/ DISCUSSION: The Bylaws of the Foundation were approved by the City Council on June 26, 2006 and executed on July 26, 2007 (Attachment 1.) Over the course of Foundation operations, it has become apparent that some of the Bylaws were in need of clarification. Working with the City Attorney’s Office and outside counsel (Anita Luck with the firm of Aleshire & Wynder) who has an expertise in nonprofit organizations and was retained with funds from the Foundation budget, the Bylaws have been amended and restated. The changes, as approved by the CAF Board, have been included in redline and strike out, as Attachment 2 entitled “Amended and Restated Bylaws.” As per Article IX, Section 3 of the current Bylaws, “every amendment or modification of these Bylaws shall be in writing, shall be approved by a majority of the City Council then serving and shall be delivered to each member of the City Council, the Commission and the Board then in office.” Proposed Amendments City of Culver City, California Agenda Item Report ARTICLE III- BOARD OF DIRECTORS – Definition of a “Term” Section 5 states that the members of the Board of Directors “serve a maximum of two terms or up to eight years, whichever is greater and only for so long as the commissioner who appointed that member remains on the Commission.” The length of a term, however, is not defined and should be clarified in the Bylaws. An assumption can be made that the intent of “two terms or up to eight years” was meant to define a term as a period of up to four years, based on the length of time that a commissioner, who appointed that member, remains on the Cultural Affairs Commission (Commission). For example, if a commissioner appoints a member, but is only on the Commission for one year, then that Board member’s first term would be complete as a one-year term. If the replacing commissioner were to re-appoint, that member would begin serving a second term. Staff recommends defining a “term” as a period of up to four years ARTICLE IV – OFFICERS – Clarification of Election Process: At the July 29, 2008 meeting of the CAF Board, there was a discussion regarding the election of officers. In Article IV, Section 2, it states that officers are elected for a two-year term. In Article IV, Section 3 it states that elections are to be held annually, which seem to be contradictory. Dr. Luther Henderson III, a former CAF Board member, who helped to draft the Bylaws of the Board, when he was a Cultural Affairs commissioner, clarified the intent of the language to mean that elections are to be held annually only if needed, due to a change in the membership, which would leave an office vacant. This new language appears in Sections 3 and 4. The word “may” was changed to “will” in section 2 to clarify when a term could expire earlier than the defined two year length. The word “voting” was added before the word “member” in Sections 3 and 5, as well as in Article IX - POWERS, Sections 1 and 3, to further define a “majority” vote. ARTICLE V – DUTIES OF OFFICERS Section 2 changes the date of the budget preparation to one month earlier so that the budget can be prepared by the March meeting. ARTICLE VI – VACANCIES Clarifying language has been added. City of Culver City, California Agenda Item Report ARTICLE VII – MEETINGS Section 3 of the Bylaws states that “during every calendar year, a Semi-Annual Meeting shall be held during the month of July following the July Cultural Affairs meeting and another Semi-Annual Meeting shall be held during the month of January.” In accordance with the Brown Act, the time, place and date of regular meetings is required to be further defined in a resolution. At the October 27, 2010 Cultural Affairs Foundation Board meeting, the Board approved the time, place, and day of Regular Meetings to be the third Wednesday in March and September at 4:30 pm at City Hall. Due to the change of meeting months, references to meetings in January and July have been removed where appropriate. ARTICLE IV – OFFICERS – Election Effectiveness Date At the CAF Board meeting on October 27, 2010, the CAF Board noted a possible lapse of an officer position with the change of meeting dates. The CAF Board agreed that, rather than hold a special meeting just to elect a new officer, the election would take place during a regular meeting. They also agreed that the officer would take position at the meeting, as is done with Commissioners, rather than the day after the election, as stated in the original Bylaws. FISCAL ANALYSIS: There is no fiscal impact associated with approving the proposed amendment to the CAF bylaws. The attorney’s consulting contract expenditure was $1,220 and was funded from the funds allocated by the Agency to fund administrative costs of the CAF(55094492.619800). ATTACHMENTS: 1. Bylaws of the Culver City Cultural Affairs Foundation. 2. Draft of the Amended and Restated Bylaws of the Culver City Cultural Affairs Foundation. 3. Draft of Resolution of the Culver City Cultural Affairs Foundation Approving the Amended and Restated Bylaws. MOTION: That the City Council: Approve the amended and restated Bylaws of the Culver City Cultural Affairs Foundation as recommended by the Cultural Affairs Foundation Board and as outlined in the staff report. MEETING DATE: January 24, 2010 AGENDA ITEM: Amendment and Restatement of the Bylaws of the Culver City Cultural Affairs Foundation. ATTACHMENTS Pages 1. Executed Bylaws of the Culver City Cultural 1-9 Affairs Foundation. 2. Draft of the Amended and Restated Bylaws of the 10-19 Culver City Cultural Affairs Foundation. 3. Draft of Resolution of the Culver City 20-21 Cultural Affairs Foundation Approving the Amended and Restated Bylaws. ATTACHMENT 1 123456789#87266-v1Amended Bylaws 501(C)(3) draft |1010|AMENDED AND RESTATED BYLAWS OF THE CULVER CITY CULTURAL AFFAIRS FOUNDATION ARTICLE I - NAME AND OFFICE Section 1. The name of this corporation shall be the Culver City Cultural Affairs Foundation, hereinafter referred to as the "Foundation." Section 2. The principal office for the transaction of the business of the Foundation is located at Culver City, Los Angeles County, California. ARTICLE II - PURPOSE AND LIMITATION Section 1. The purpose of the Foundation shall be as stated in the Articles of Incorporation, which is to promote and support the historic preservation, public art and cultural programming services in Culver City by coordinating and actively pursuing outside funding sources for those programs. Section 2. The Foundation is a tax-exempt, charitable corporation and shall be non-profit, non-sectarian and non-political in all its policies and activities and at all times shall be operated, exclusively for the benefit of, to perform the function of, and to carry out the purposes described herein within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1954, as amended, the Regulations adopted thereunder, and the corresponding provision of any applicable future United States Internal Revenue Law and Regulations (hereinafter collectively referred to as the "Code"). Section 3. In carrying out its purpose, the Foundation shall not, in any manner, be utilized to exercise any right or discharge any obligation of the City, including, but not limited to, the City’s Cultural Affairs Commission (the “Commission”). Section 4. Whenever the Foundation receives any money, in cash, check or otherwise, it shall, as soon as possible, disburse that money to the City for use by the City, as determined appropriate by the majority of the members of the City Council of Culver City (the “City Council”), for the City’s cultural affairs programs, including the administration of such programs and the operation of the Foundation. Whenever the Foundation receives any other asset, it shall, as soon as possible, convey ownership and possession of that asset to the City for use and disposition by the City, as determined appropriate by a majority of the members of the City Council for the City’s cultural affairs programs, including the administration of such programs and the operation of the Foundation. Section 5. The Foundation shall operate pursuant to a budget (the “Foundation Budget”) approved as part of the City’s annual municipal budget. ATTACHMENT 2 10#87266-v1Amended Bylaws 501(C)(3) draft |1010| ARTICLE III - BOARD OF DIRECTORS Section 1. Except as otherwise required by law or as provided for in these Bylaws, the control and management of the affairs of the Foundation shall be vested in the Board of Directors (the “Board”). Section 2. The Board shall consist of eight (8) members selected as follows: A. Each current member of the Cultural Affairs Commission (“Commissioners”) shall appoint one member to the Board; B. The then current chair and vice-chair of the Commission shall each serve as a member to the Board: and C. The City Manager of the City of Culver City, or a person designated by the City Manager, shall serve as the Chief Executive Officer (the “CEO”)“CEO”) of the Foundation. Section 3. To be eligible for appointment as a member (other than CEO) of the Board, an individual must: (i) live, work or own property or a business within the City; or (ii) have a special, widely-recognized interest in improving the cultural affairs of the community or region. Section 4. Other than as expressly provided in these Bylaws, no member of the Board shall be an officer, official or employee of the City. Section 5.An Except as provided below, an appointed member of the Board, other than the CEO, shall only serve a maximum of two terms or up to eight years, whichever is greater and . A term shall commence on the date of appointment and last only for so long as the Commissioner who appointed that member remains on the Commission, up to a maximum of four (4) years. The members who hold the position of chair and vice-chair on the Commission shall serve on the Board for so long as each remains the chair or vice-chair on the Commission, respectively. The City Manager (or a person designated by the City Manager) shall serve as CEO of the Board and shall not be limited to the number of terms he or she may serve as CEO. Section 6. Any member of the Board, other than the CEO, may be removed from his or her position on the Board, with or without cause, by a vote in favor of removal by four/fifths (4/5) of the members of the City Council. Section 7. Any change in the number or qualifications of members of the Board shall be made only by an amendment to these Bylaws. Section 8. A majority of the members of the Board (excluding the CEO) shall be the policy making and controlling body of the Foundation. The Board shall be 11#87266-v1Amended Bylaws 501(C)(3) draft |1010|initially chaired by the chair of the Commission as presiding officer (the “Chairperson”). The Board shall: A. Transact the general business of the Foundation and do so in accordance with all United States, State of California, County and City laws, rules and regulations applicable to the Foundation (“Rules and Regulations”). B. Recommend the initial Foundation Budget to the City Council for approval no later than ninety (90) days after the first Board meeting of the initial Board, subject to any extension mutually approved by the Chairperson, as detailed below, and the chair of the Commission. The first Foundation Budget shall cover the period beginning upon installation of the initial seven (7) members of the Board until the following June 30 th ; provided, that if the installation of the initial Board occurs after the last day of the month of November, then the first Foundation Budget shall cover the period from when the Foundation’s initial Board members are installed until the second June 30 th occurring after the installation. C. For each annual Foundation Budget thereafter, by, on or prior to the last day of the month of June, recommend to the City Council the Foundation Budget for the Foundation’s upcoming Fiscal Year (hereinafter defined) commencing on the immediately succeeding July 1. The “Fiscal Year” of the Foundation shall commence on July 1st and end on the following June 30th. D. Set the time and place of the Semi-Annual Meetings (as defined in Article VII, below). E. Arrange for an annual audit or compilation review of the Foundation by an independent public accountant chosen by the Board at the close of the Fiscal Year (the “Annual Audit”). The type of annual review shall be at the discretion of the Board. The Annual Audit shall be submitted to the City Council for review within three (3) months following the close of the Fiscal Year. Part of the work performed will include preparation of necessary tax documents. F. Make reasonable requests in writing to the City Manager for assistance from City staff. The City Manager, shall reasonably determine the availability, level and extent of assistance, if any, the City staff shall provide to the 12#87266-v1Amended Bylaws 501(C)(3) draft |1010|Foundation and whether the costs for such assistance is within the Foundation Budget. G. Receive and file the annual work program of the Cultural Affairs Division of the Community Development Department. H. Actively engage in achieving the purposes of the Foundation, as set forth in Article II, Section 1. ARTICLE IV - OFFICERS Section 1. The officers of the Foundation shall consist of: A. Chief Executive Officer B. Chairperson C. Vice Chairperson D. Treasurer E. Secretary Section 2. With the exception of the CEO, the term of each officer shall be for two (2) years; provided that any member’s term may will expire earlier in the event the Commissioner who appointed such member no longer serves on the Commission or the member serving on the Board as a result of his/her position on the Commission ceases to hold such position, as described in Article III, Section 5, above. No member of the Board shall simultaneously hold more than one office. No member of the Board shall serve more than two (2) consecutive years as Chairperson. Section 3. Each officer other than the CEO shall be elected annually to the extent necessary to fill a vacant office, by a majority of the voting members of the Board from nominees submitted by any member of the Board. Section 4. Each officer other than the CEO shall be regularly elected at the Semi-Annual Meeting of the Board designated by the Board in July a resolution. and shall be effective on the day following such election.Each officer shall assume office upon election. Section 5. Any officer with the exception of the CEO may be removed from office for cause by a vote in favor of removal by a majority of the voting members of the Board. For purposes of this Section, “cause” shall mean any or all of the following: (i) an officer’s absence from two consecutive regular Board meetings or (ii) inappropriate behavior or language that in the reasonable judgment of the majority of the members of the Board is detrimental to the function of the Foundation. Immediately upon removal of an officer, a majority of the voting members of the Board shall elect a replacement to fill the vacant office for the remaining term of the removed officer. 13#87266-v1Amended Bylaws 501(C)(3) draft |1010| ARTICLE V - DUTIES OF OFFICERS Section 1. The Chairperson shall preside at all meetings of the Board and shall be responsible for the general supervision of Board activities during meetings. Section 2. In March February of each year, the Chairperson and Treasurer, with assistance from the City Manager (or his or her designee) of the City shall prepare a budget, which shall then be presented for recommendation by the Board to the City Council no later than the following June, as required by Article III, Section 8., Subsections B and C. Section 3. Each disbursement of money to the City as required by Article II, Section 4.: (i) in an amount not to exceed Ten Thousand Dollars ($10,000.00), shall be made with the signature of the CEO; or (ii) in an amount in excess of Ten Thousand Dollars ($10,000.00) shall be made with the signatures of the Chairperson or Treasurer and the CEO. Section 4. The Vice Chairperson shall preside at meetings in the absence of the Chairperson. Section 5. The Secretary shall provide notice of Board meetings and activities to all members of the Board and shall maintain a permanent set of minutes of all Board meetings. The Secretary may be assisted by the City Manager or her/his designee, to accomplish the duties of the Secretary. Section 6. At least semi-annually, the Treasurer shall submit a written report reflecting the current financial condition of the Foundation to the Board. The Treasurer shall also prepare a year-end financial statement prior to the end of the fiscal calendar detailing the financial status of the Foundation. The Treasurer may be assisted by the City Manager or her/his designee to accomplish the Treasurer’s duties. Section 7. The CEO shall be a non-voting member and shall oversee the day- to-day activities of the Foundation. ARTICLE VI - VACANCIES A vacancy on the Board shall be deemed to exist upon the occurrence of one of the following: (i) expiration of a term in accordance with the terms hereof; (ii) death or resignation of a member; or (iii) removal of a member, with or without cause, by four-fifths (4/5) vote of the members of the City Council. 14#87266-v1Amended Bylaws 501(C)(3) draft |1010|ARTICLE VII - MEETINGS Section 1. All regular and special meetings of the Board shall be notified, posted and conducted in every way consistent with the requirements set forth in the California Government Code §§ 54950 et seq., as may be amended (the “Brown Act”); provided, that these Bylaws shall control to the extent the Bylaws are more stringent than the Brown Act. Section 2. The Board shall conduct two (2) regular meetings per year (each such meeting is referred to herein as a “Semi-Annual Meeting”). The Semi- Annual Meetings shall be held at such time and location within the City as determined by the Board by resolution. Section 3. During every calendar year, a Semi-Annual Meeting two regular meetings of the Board shall be held during the month of July following the July Cultural Affairs meeting and another Semi-Annual Meeting shall be held during the month of Januarypursuant to a resolution adopted pursuant to Section 2 above. The initial members of the Board shall be installed at the initial Semi- Annual Meeting of the Board in July. Section 4. Special meetings of the Board may be called at any time by submission to the Chairperson of a request in writing for a special meeting, signed by a majority of the members of the Board and specifying the purpose for such special meeting or as otherwise permitted pursuant the Brown Act. Written notice, stating the time and place of any special meeting as well the purpose of such meeting shall be given to each member of the Board at least four (4) seventy two (72) days hours prior to the date of the special meeting. Section 5. A majority of the members of the Board excluding the CEO shall constitute a quorum. An affirmative vote of at least four (4) members of the Board shall be required for the Board to take any action. ARTICLE VIII - MEMBERSHIP AND SHARES Section 1. The Foundation shall have no membership and no members other than the persons constituting the Board. Section 2. The Foundation shall not have nor issue shares of stock and shall declare no dividends. Section 3. No part of the Foundation shall inure to the benefit of any private individual, and no part of the direct or indirect activities of the Foundation shall consist of carrying on propaganda, or otherwise attempting to influence legislation, or of participating in, or intervening in (including the publication or distribution of statements), any political campaign on behalf of any candidate for public office. Notwithstanding any other provision herein, the Foundation shall not conduct or carry on any activities not permitted to be conducted or carried on by an organization exempt under Section 501(c)(3) of the 15#87266-v1Amended Bylaws 501(C)(3) draft |1010|Code or by an organization, contributions to which are deductible under Section 170(c)(2) of such Code. ARTICLE IX - POWERS Section 1. The decisions and acts by a majority of the voting members of the Board qualified and serving shall constitute an exercise of the powers of the Foundation and shall constitute and be taken as the decisions and acts of the entire membership. Section 2. The Board may adopt policies so long as such policies are not inconsistent with these Bylaws, the Articles of Incorporation of the Foundation, the Rules and Regulations or the rights and obligations of the City Council or the Commission. Section 3. A majority of the voting members of the Board may recommend amending the Bylaws at any meeting of the Board. However, no such amendment or modification shall alter the intention of the Foundation to be operated exclusively to promote and support cultural affairs work programs of the City in a manner which shall make the Foundation tax exempt and the donations to it deductible from taxable income to the extent allowed by the provisions of the Code and other applicable legislation and regulations as they now exist or as they may hereafter be amended. Every amendment or modification of these Bylaws shall be in writing, shall be approved by a majority of the City Council then serving and shall be delivered to each member of the City Council, the Commission and the Board then in office. ARTICLE X- COMPENSATION The members of the Board shall serve without compensation; however, members may be reimbursed for reasonable out-of-pocket expenses related to Board activity, as approved by the Board provided in the Foundation Budget. ARTICLE XI- ADVISORY COMMITTEE The Foundation shall be aided by an advisory committee comprised of persons who have demonstrated an interest in assisting the Foundation in fulfilling its purposes (the “Advisory Committee). Qualified persons shall be invited to serve as members of the Advisory Committee by staff, the City Council or the Commission. Members of the Advisory Committee shall not be required to attend meetings of the Board. Members of the Advisory Committee shall annually confirm in writing that they would like to continue to serve on the Advisory Committee prior to the Semi-Annual Meeting of the Board in JanuaryMarch, and the Board shall indicate at that time that it wishes members 16#87266-v1Amended Bylaws 501(C)(3) draft |1010|of the Advisory Committee to continue serving as such. The Board shall call upon the assistance and advice of the Advisory Committee as it deems necessary. ARTICLE XII- LIABILITY OF DIRECTORS No member of the Board shall be liable for the acts or omissions of any other member of the Board, or of any accountant, agent, counsel or custodian selected with reasonable care. Each member of the Board shall be fully protected in acting upon any instrument, certificate or paper, believed by him/her to be genuine and to be signed or presented by the proper person or persons and no member of the Board shall be under any duty to make any investigation or inquiry as to any statement contained in any such writing but may accept the same as conclusive evidence of the truth and accuracy of the statement therein contained. The Board shall have the right, and shall use its best efforts, to purchase and maintain insurance to the full extent permitted by law on behalf of its officers, directors and other agents, to cover any liability asserted against or incurred by any officer, director, or agent in such capacity or arising from the officer's, director's, employee's, or agent's status as such. The Board shall use its best efforts to purchase the insurance described herein as promptly as is reasonably feasible. ARTICLE XIII - DONATIONS The Board may receive donations from other foundations in the form of grants or in other property acceptable to the Board. The Board may accept donations, which restrict their uses, and purposes and which limit the time, manner, amount, or other terms of distribution; provided that the restrictions are within the uses and purposes set forth in Article II. Notwithstanding any restrictions and unless otherwise specifically required, the Board may mingle those restricted donations with other assets of the Foundation ARTICLE XIV - TERM OF FOUNDATION The Foundation shall continue in perpetuity. However, it may be dissolved and the assets distributed with the approval of four/fifths (4/5) of the members of the City Council. Upon any such dissolution, the assets of the Foundation shall be distributed exclusively to the City for such purpose(s) as are consistent with the purpose of the Foundation. 17#87266-v1Amended Bylaws 501(C)(3) draft |10 10|Original Bylaws Approved by the Culver City City Council: on the 26 th day of June 2006 . Amended and Restated Bylaws Approved by the Culver City Council on the ____ of ______________, 20110. 18#87266-v1Amended Bylaws 501(C)(3) draft 10 CERTIFICATE OF THE SECRETARY I, the undersigned, do hereby certify that: 1. I am the duly elected and acting secretary of Culver City Cultural Affairs Foundation, a California nonprofit public benefit corporation; and 2. The foregoing Amended and Restated Bylaws, comprising nine (9) pages, including this page (but not including any cover page or table of contents), constitute the Bylaws of said corporation duly adopted at the meeting of the Board of Directors thereof duly held on July 25, 2007October 27, 2010______, and since that date the same have not been amended or modified. IN WITNESS WHEREOF, I have executed this Certificate as of ___________ at Culver City, California. _____________________________, Secretary 19RESOLUTION NUMBER CAF-2010-002 A RESOLUTION OF THE CULVER CITY CULTURAL AFFAIRS FOUNDATION APPROVING THE AMENDED AND RESTATED BYLAWS WHEREAS, the Board of Directors (the "Board") of the Culver City Cultural Affairs Foundation ("Corporation") has heretofore adopted the Bylaws of the Corporation; WHEREAS, the Board desires to amend the Bylaws to provide for certain changes consistent with the desires of the Board and to permit more efficient operation of the Corporation; and WHEREAS, Article IX, Section 3 of the Bylaws permits a majority of the members of the Board to make a recommendation to the City Council of Culver City (the "City Council") to amend the bylaws of the Corporation; and WHEREAS, the Board desires to amend the Bylaws in accordance with the terms of the Bylaws; NOW, THEREFORE BE IT RESOLVED, by the Board of Directors of the Culver City Cultural Affairs Foundation as follows: Section 1. The above recitals are true and correct. Section 2. The Amended and Restated Bylaws attached hereto as Exhibit "A" and by this reference incorporated herein are hereby approved, such amendments to be effective upon approval by the City Council. Section 3. The Corporation hereby recommends approval of the Amended and Restated Bylaws to the City Council. Section 4. The Secretary and Chief Executive Officer of the Corporation are hereby directed to transmit the amendments to the City Council for approval and to take such other actions as are necessary consistent with the Bylaws and the law to effectuate the purposes hereof. ADOPTED, SIGNED and APPROVED this ___ day of _______________, 2010. ______________________________ CHAIR OF THE BOARD Attest: _____________________ SECRETARY ATTACHMENT 3 20 I, ________, Secretary of the Culver City Cultural Affairs Foundation, do hereby certify that the foregoing Resolution Number ______ was duly and regularly adopted by the Culver City Cultural Affairs Foundation at a special meeting thereof held on the ___th day of _________________, 2010, by the following called vote: Ayes: Noes: Absent: _____ Secretary 21