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SR-011309-8ACity Council Meeting: January 13, 2009 Agenda Item,~~- ~} To: Mayor and City Council From: Andy Agle, Director of Housing and Economic Development Subject: Approval of Bayside District Corporation Amended By-Laws, Board Member Appointment, and Amended Services Agreement Recommended Action The Bayside District Corporation Board of Directors and staff recommend that the City Council approve the Second Amended and Restated By-Laws of the Bayside District Corporation, and appoint-six members to serve on the Board, three for two-year terms and three for four-year terms. Further, staff recommends that the Council provide direction on terms to include in an Amended and Restated Services Agreement. Executive Summary On July 24, 2008, Council established the Downtown Property-Based Assessment District (PBAD.) Beginning in FY 2008-09, the assessment will generate approximately $3.5 million annually from property owners. to suppdrt enhanced services to be administered by the Bayside District Corporatidn (BDC.) Among the actions that need to be taken before BDC can implement new programs is amendment of its By-Laws and installation of a new Board. The existing BDC Board, consisting of eleven Council- appointed members, reviewed and approved the Second Amended and Restated By- laws (Amended By-Laws) and recommends them to the Council for approval. In accordance with the Downtown Framework, the Amended By-Laws call fora 13- member board consisting of six members appointed by property owners, six members appointed by the City Council and the City Manager or his/her designee. This report also recommends terms to be included in an Amended and Restated Services Agreement that will require BDC and Council approval. Background During the two-year community process that resulted in property-owner support for establishment of the PBAD to fund enhanced services in an area of Downtown Santa Monica, a concern of property owners was that the Board that administers the funds represent the rate payers. The approach that was incorporated into the Downtown Framework, approved by Council on March 25. 2008, described a new BDC Board of 1 13 members of whom six would be appointed by the property owners, six would be appointed by the City Council, and one would be the City Manager or his/her designee. Discussion By-Laws Amendment The BDC Board approved the Amended By-Laws at their meeting October 23, 2008. Attachment A shows the changes that the BDC Board approved. The primary differences between the Amended By-Laws and the By-Laws last approved by Council on August 8, 2006, are: • Instead of 11 Council-appointed members, the Board is to consist of 13 members of whom six are to be selected by property owners, six are to be selected by the -City Council and one is to be the City Manager or his/her designee. • Board may declare a seat vacant if the member has failed to attend two out of any six consecutive meetings, rather than six out of 12 meeting. • A quorum consists of seven members, of whom at least one Director in attendance must represent property: owners and at least one Director must represent the City Council or City Manager. • At least five members must vote in the affirmative for a Board action to be official. Appointment of Board Members BDC began its outreach to property owners in August 2008, to seek input on a process for selecting their representatives. Over the next two months, BDC held two property owner forums to devise a selection process. BDC mailed a description of the final eligibility and nomination process to all property owners. Responding property owners overwhelmingly approved the process: The property owners' selection process has one Board member to represent each zone for an initial term of four years and three at-large Board members serving an initial two-year term. The selection process was completed on December 4, 2008, with the following results: Zone One: Bill Tucker 2 \ 4 Zone Two: John Warfel Zone Three: Carleen Robison At Large: Randy Brant Alan Gold Barbara Tenzer To recruit applicants-for City Council appointed positions, the City Clerk's Office placed advertisements in the Santa Monica Daily Press on November 8th and 15th, 2008. At the time this staff report was prepared, the application submittal period was still open. Names of those submitting applications by the due date on January 6, 2009, will be provided to the Council prior to its meeting. Amended and Restated Services Aareement One of the first actions the new Board will need to take. will be to review and approve the Amended and Restated Services. Agreement that also will require City Council approval. City staff is in the process of preparing a document to review with Bayside staff and recommends that Council concur with the proposed direction on the following terms: • BDC will indemnify and defend the City and its insurance will be primary in connection with indemnified claims. • The City will pass-through to BDC all the assessments collected through the Mall Maintenance fees on businesses, less an administrative fee, arid all the assessments collected through the PBAD, less an administrative fee and reserve. • BDC will prepare annually a Work Plan and Budget for submittal to the City. • The Work Plan will include an Annual Maintenance Plan, prepared in coordination with the City's Community Maintenance Department. The Annual Maintenance Plan will describe the City's base maintenance of effort and the enhanced services that Bayside will provide with funds from the property-based assessment. It is anticipated that the specific services provided as part of the base maintenance of effort and the enhanced level of maintenance may change over time and that the services to be provided by both the City and Bayside would be agreed to annually. The Amended and Restated Services Agreement will allow BDC to implement an Ambassador Program, to be contracted for by BDC, provided the Ambassadors do not represent themselves as police officers and do not carry weapons or 3 ~ ~ police radios, but serve as greeters and "eyes and ears" on the street. In cooperation with various City Departments and the Convention and Visitors Bureau, BDC intends to educate the ambassadors about the City. The Ambassador Contractor BDC retains will be responsible for hiring, training and supervising its staff. BDC has prepared a Request for Proposals for Ambassador Contractors and will be reviewing the responses in light of the City's and BDC's expectations. Following approval of the Amended. and Restated Services Agreement and implementation of enhanced programs, including the Ambassador Program, BDC may request that the City initiate a process to create a business improvement district to include Santa Monica Place, reduce the Mall Maintenance Fee and dissolve the Central Business District fee. Creation of a new business improvement district for Santa Monica Place would be accomplished in accordance with procedures set forth in state law. The amount of the assessment on businesses within Santa Monica Place would be commensurate with the level of services the BDC would be delivering to them. If the Santa Monica Place business improvement district is created, BDC intends to follow- through with plans to recommend to the City Council that the existing Mall Assessment be reduced and that the Central Business District Assessment on retail establishments be eliminated. Financial Impacts & Budget Actions Approval of BDC's Amended By-Laws and appointment of six Directors has no financial impact on the City. Prepared by: Miriam Mack, Economic Development Manager Approved: Andy Agle Director, Housing and Economic Development Forwarded to Council: Ewell Attachments: Attachment A: Bayside District Corporation Second Amended and Restated Bylaws 4 Approved by Bayside Board on 10/23/2008 Approved by City Council on ATTACHMENT A SECOND AMENDED AND RESTATED BYLAWS BAYSIDE DISTRICT CORPORATION a California non-profit public benefit Corporation ARTICLE 1. OFFICES Section L Principal,Office. The principal office of the Bayside District Corporation (the "Corporation") shall be fixed and located at such place in the City of Santa Monica, California as the Board of Directors (the "Board") shall determine. The Board is granted full power and authority to change the principal office from one location to another. Section 2. Other Offices. Branch or subordinate offices maybe established at any time by the Board at any place or places. ARTICLE 2. MEMBERS Section 1. Members. The corporation shall have no members. Any action which would otherwise require approval by a majority of all members or approval by the members shall require only approval of the Board. All rights which would otherwise vest in the members shall vest in the Directors. Section 2. Associates. Nothing in this Article 2 shall be construed as limiting the right of the Corporation to refer to persons associated with it as "members" even though such persons are not members, and no such reference shall constitute anyone a member within the meaning of Section 5056 of the California Nonprofit Corporation Law. The Corporation may conferby amendment of its Articles or of these Bylaws some or all of the rights of a member, as set forth in the California Nonprofit Corporation Law, upon any person or persons who do not have the right to vote for the election of Directors or on a disposition of substantially all of the assets of the Corporation or on a merger, on a dissolution or on changes to the Corporation's Articles or Bylaws, but no such person shall be a member within the meaning of said Section 5056. ARTICLE 3. DIRECTORS Section 1. Powers. Subject to limitations of the Articles and these Bylaws, the activities and affairs of the Corporation shall be conducted, managed and controlled, and all corporate powers shall be exercised by or under the direction of the Board. The Board may .delegate the management of the activities of the Corporation to an Executive Director and Staff, =to any other person or persons, or to committees however composed, provided that the activities and affairs of the Corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board. Without prejudice to such general powers, but subject to the same limitations, it is hereby expressly declared that the Board shall have the following powers in addition to the other powers enumerated in these Bylaws: (a) To select and remove an Executive Director, officers, agents, and employees of the Corporation, prescribe powers and duties for them as may not be inconsistent with law, the Articles, or these Bylaws, fix their compensation, and require from them security for faithful service. (b) To adopt, make and use a corporate seal and to alter the form of such seal from time to time as they may deem best. (c) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of tmst, mortgages, pledges, hypothecations, or other evidences of debt and securities therefor. ~~~~" .,YY.,. •°~ -~~, ~~ a ~ ~ ~a ~P r 'f' .,«„ i (d) To carry on a business at a profit and apply any profit that results from the business activity to any activity in which it may lawfully engage, subject, however, to the restrictions contained in the Articles. Section 2. Number of Directors. The authorized number of Directors shall be thirteen (13) until changed by amendment of the Articles or by a Bylaw. Section 3. Selection and Term of Office. Directors shall be selected as set forth in this Section 3 for terms of four (4) years (subject to Subsection 3(d) below) beginning January 1 of each yeaz. Directors shall serve no more than two (2) consecutive terms. (a) The Santa Monica City Council ("City Council") shall select six (6) Directors. (b) The owners of property subject to assessment under the Downtown Santa Monica Property Based Assessment District (PBAD) (the "Property Owners") shall select six (6) Directors. (c) The City Manager of the City of Santa Monica orhis/her designee shall serve as a Director. (d) With respect to the initial Directors first selected after the adoption of these Second Amended and Restated Bylaws: (i) The initial term of the Directors selected under Subsection 3(a) above, three (3) shall be for a term of two (2) years and three (3) shall be for a term ef=four (4) years; and (ii) The initial term of the Directors selected under Subsection 3(b) above, three (3) shall be for a term of at two (2) yeazs and three (3) shall be for a term of four (4) years. Section 4. Vacancies. Subject to the provisions of Section 5226 of the California Nonprofit Public Benefit Corporation Law, any Director may resign effective upon giving written notice to the Chair of the Board, the Secretary, or the Board, unless the notice specifies a later time for the effectiveness of such resignation. If the resignation is effective at a future time, a successor maybe elected before such time, to take office when the resignation becomes effective. (a) Vacancies in the Board shall be filled in the same manner as the Director(s) whose office is vacant was selected. Each Director so selected shall hold office until the expiration of the term of the replaced Director and until a successor has been elected and qualified. (b) A vacancy or vacancies in the Board shall be deemed to exist in case of the death, resignation, or removal of any Director, or if the authorized number of Directors is increased. (c) The Board may declare vacant the office of a Director who has been declazed of unsound mind by a final order of court, or convicted of a felony, or found by a final order or judgment of any court to have breached any duty arising under Article 3 of the California Nonprofit Public Benefit Corporation Law or who has failed to attend two 2 meetings out of anv six (6) consecutive. regular meetings of the Board ~°~''~~~ ° '~°~'°~'~'" nom. A Director selected by the City Council may be removed without cause by the vote of five (5) City Council members: A removed Director's successor may be elected immediately. (d) No reduction of the authorized number of Directors shall have the effect of removing any Director prior to the expiration of the Director's term of office: Section 5. Place of Meeting. Meetings of the Boazd shall be held at any place within the City of Santa Monica, State of California which is open to the public and which has been designated fromxime to time by the Board. In the absence of such designation, regular meetings shall beheld at the principal office of the Corporation, in which case the principal office of the corporation shall be open to the public for the meeting of the Board. Section 6. Annual Meetings. The Boazd shall hold an annual meeting for the purpose of organization, election of officers, and the transaction of other business. Section 7. Regular Meetings. 12egulaz meetings of the Board shall beheld on such dates and at such times as maybe fixed by the Board. At least ten (10) monthly meetings shall beheld during each full fiscal yeaz. Notice of regulaz meetings shall be sent to the City Clerk, the Santa Monica Police Department and the Santa Monica Public Library not fewer than three (3) nor more than ten (10) days before such meeting. In addition such notice shall, to the extent possible, be posted on the website of the Corporation. The notice shall specify the business intended to be conducted at the meeting, but any business transacted at such meeting shall be validly conducted, so long as not otherwise inconsistent with law, the Articles or these Bylaws. Section 8. Special Meetings. Special meetings of the Board for any purpose or purposes maybe called at any time by the Chair of the Board, the Executive Duector, any Vice Chair, the Secretary, or any six (6) Directors. Special meetings of the Board shall beheld upon four (4) days notice byfirst-class mail or 48 hours notice given personally or by telephone, telegraph, telex, email, or other similar means of communication. Any such notice shall be addressed or delivered to each Director at such Director's address as it is shown upon the records of the Corporation or as may have been given to the Corporation by the Director for purposes of notice or, if such address is not shown on such records or is not readily ascertainable, at the place in which the meetings of the Directors are regularly held. Such notice shall also (a) be given to the City Clerk, the Santa Monica Police Department and the Santa Monica Public Library; and (b) shall, to the extent possible, be posted on the website of the Corporation. The notice shall specify the purpose of the meeting, but any. business transacted at such meeting shall be validly conducted, so long as not otherwise inconsistent with law, the Articles or these Bylaws. Notice by mail shall be deemed to have been given at the time a written notice is deposited in-the United States mails, postage prepaid. Any other written notice shall be deemed to have been given at the time it is personally delivered to the recipient or is delivered to a common carrier for transmission, or actually transmitted by the person giving the notice by electronic means, to the recipient. Oral notice shall be deemed to have been given at the time it is communicated, in person or by telephone or wireless, to the recipient or to a person at the office of the recipient who the person giving the notice has reason to believe will promptly communicate it to the receiver. Section 9. Quorum. Seven (7) Directors constitute a quorum of the Board for the transaction of business, except to adjourn as provided in Section 12 of this Article 3. Every act or decision done or made by a majority of the number of (but no fewer than five) Directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board, unless a greater number is required by law, by the Articles or bg these Bylaws. Notwithstanding the foregoing, a quorum shall not exist unless at least '~•t~one Director appointed by the Property Owners ar€is present and unless at least **`°~one Director appointed by either the City Council or the City Manager of the City of Santa Monica u=~is present. Section 10. Participation in Meetings by Conference Telephone. Members of the Board may participate in a meeting through use of conference telephone or similar communications equipment, so long as all persons participating in or present at such meeting can hear one another, and so long as not less than a quorum of the Board is present in person at the meeting. In order to vote at such a meeting, any Drrector participating through the use of conference telephone or similar communications equipment must have so participated for the entire portion of such meeting preceding such vote. Section 11. Waiver of Notice. Notice of a meeting need not be given to any Director who signs a waiver of notice or a written consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such Director. All such waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meetings. Section 12. Adjournment. A majority of the Directors present; whether or not a quorum is present, may adjourn any Directors' meeting to another time and place. Notice of the time and place of holding an adjourned meeting need not be given to absent Directors, nor to the news media, the City Clerk or the City Manager if the time and place is fixed at the meeting adjourned, except as provided in the next two sentences. If the meeting is adjourned for more than seventy-two (72) hours, notice of any adjournment to another time or place shall be given prior to the time of the adjourned meeting to the Directors who were not present at the time of the adjournment. A written notice of adjournment setting forth the time and place of the adjourned meeting shall be conspicuously posted on or near the door of the place where the regular, adjourned regular, special or adjourned special meeting was held within 24 hours after the time of adjournment, and shall remain posted until at least the time specified therein for the commencement of the adjourned meeting. Section 13. Public Meetings. All meetings of the Board shall be open and public, and any person shall be permitted to attend any meeting of the Board, except as otherwise provided in this Section. Members of the public shall be entitled to participate in accordance with such rules as maybe adopted by the Board from time to time. Nothing contained in this Section or these Bylaws shall be construed to prevent the Board from holding closed sessions to the .extent permitted by applicable law (a) for the purpose of discussing matters related to litigation, including pending, threatened or anticipated litigation; (b) to consider the appointment, employment, evaluation of performance, or dismissal of an employee or to hear complaints or charges brought against an employee by another person or employee unless such employee requests a public hearing or (c) for such other purposes as may be permitted by the Ralph M. Brown Act (California Government Code Sections 54950 et seq.); provided, however, that the final vote of the Board on any action to be taken by the Corporation with respect to the appointment, employment or dismissal of an employee shall be taken at a meeting of the Board while such meeting is open to the public. Section 14. Rights of Inspection. Every Director shall have the absolute right at any reasonable time to inspect and copy all books, records, and documents of every kind and to inspect the physical properties of the Corporation. Section 15. Committees. The Board may appoint one or more committees, each consisting of two or more Directors, and delegate to such committees any of the authority of the Board except with respect to: (a) The approval of any action for which the California Non-Profit Public Benefit Corporation Law also requires approval of the members or approval of a majority of all members, (b) The filling of vacancies on the Board or in any committee which has the authority of the Board; (c) The amendment or repeal of any resolution of the Board which by its express terms is not so amendable or repealable; (d) The approval of any self-dealing transaction, as such transactions are defined in Section 5233(a) of the California Non-Profit Public Benefit Corporation Law. Any such committee must be created, and the members thereof appointed, by resolution adopted by a majority of the authorized number of Directors then in office, provided a quorum is present, and any such committee maybe designated an Executive Committee or by such other name as the Boazd shall specify. The Board may appoint, in the same manner, alternate members of any committee who may replace any absent member at any meeting of the committee. The Board shall have the power to prescribe the manner in which proceedings of any such committee shall be conducted. In the absence of any such prescription, such committee shall have the power to prescribe the manner in which its proceedings shall be conducted. Unless the Boazd or such committee shall otherwise provide, the regular and special meetings and other actions of any such committee shall be governed by the provisions of this Article 3 applicable to meetings and actions of the Board. Minutes shall be kept of each meeting of each committee: Section 16. Fees and Compensation. Directors and members of committees shall receive no compensation for their services as such Directors or members, but may receive such reimbursement for business related expenses, as may be fixed and authorized by the Boazd, consistent with the guidelines and reimbursement policies of the City of Santa Monica. Section 17. Participation In Political Activities. Directors and members of Committees are prohibited from knowingly participating in supporting nominees for Boazd membership and political activities/organizations by making a representation as a Board and/or Committee Member. The Board shall not authorize nor reimburse any Director or staff for expenses incurred in the support of nominees to the Board nor involvement in political activity. (a) The Corporation is prohibited from spending money or making public statements in support of or in opposition to. candidates for public office or nominees for Duector. (b) The Directors, as Directors of the Corporation, are prohibited from intentionally spending mohey or making public statements in support of candidates for public office or nominees for Duector. T~~> c1 The provisions of this Section 17 do not limit the activities or statements of Directors as private citizens. ARTICLE 4. TRANSACTIONS IN WHICH DIRECTORS HAVE MATERIAL FINANCIAL INTEREST Section 1. Prohibition Against Self-Dealing Transactions. The Corporation shall not enter into any transaction in which one or more of its Directors has a material financial interest, unless the transaction meets the requirements of paragraph (a), (b) or (c) of Section 2 of this Article 4: For purposes of this Article 4, a "self dealing transaction" means a transaction to which the Corporation is a party and in which one or more of its Directors has a material financial interest; provided that such material financial interest shall not be deemed to exist due to any Director being or being affiliated with a Property Owner. For purposes of this Article 4, such a Director is referred to as an "interested Director." This section shall not be constmed to prohibit (a) a transaction which is part of a public or chazitable program of the Corporation if it (i) is approved or authorized by the Corporation in good faith and without unjustified favoritism; and (ii) results in a benefit to one or more Directors or their families because they are in the class. of persons intended to be benefited by the public or charitable program; or (b) a transaction, of which the interested Director or Directors have no actual knowledge, and which does not exceed the lesser of 1 percent of the gross receipts of the Corporation for the preceding fiscal year or one hundred thousand dollars ($100,000). Section 2. Permitted Self-Dealing Transactions. The Corporation shall be authorized to engage in aself-dealing transaction if: (a) The California Attorney General or the court in an action in which the California Attorney General is an indispensable party, has approved the transaction before or after it was consummated; or (b) The following facts are established: (1) The Corporation entered into the transaction for its own benefit; (2) The transaction was fair and reasonable as to the Corporation at the time the corporation entered into the transaction; (3) Prior to consummating the transaction or any part thereof; the Board authorized or approved the transaction in good faith by a vote of a majority of the Directors then in office without counting the vote of the interested Director or Directors, and with knowledge of the material facts concerning the transaction and the Director's interest in the transaction. Except as provided in paragraph (c) of this Section 2, action by a committee of the Board shall not satisfy this paragraph; and (4) (A) Prior to authorizing or approving the transaction, the Board considered and in good faith determined after reasonable investigation under the circumstances that the Corporation could not have obtained a more advantageous arrangement with reasonable effort under the circumstances; or (B) The Corporation in fact could not have obtained a more advantageous arrangement with reasonable effort under the circumstances; or (c) The following. facts are established: (1) A committee or person authorized by the Board approved the transaction in a manner. consistent with the standards set forth in paragraph (b) of this Section 2; (2) It was not reasonably practicable to obtain approval of the Board prior to entering into the transaction; and (3) The Board, after determining in good faith that the conditions of subparagraphs (I) and (2) of this paragraph were satisfied, ratified the transaction at its next meeting by a vote of the majority of the Directors then in office without counting the vote of the interested Director or Directors. Section 3. Prohibited Loans and Guarantees. The Corporation shall not make any loan of money or property to or guarantee the obligation of any Director or Officer, unless approved by the California Attorney General, except that the Corporation may advance money to a Director or Officer of the Corporation for expenses reasonably anticipated to be incurred in the performance of the duties of such Officer or Director, provided that in the absence of such advance, such Director or Officer would be entitled to be reimbursed for such expenses by the Corporation. ARTICLE 5. OFFICERS Section 1. Officers. The officers of the Corporation shall be a Chair of the Board, a Secretazy, and a Treasurer, who shall also serve as the Chief Financial Officer. The Corporation may also have, at the discretion of the Board, one or more Vice-Chairs, one or more Assistant Secretaries, one or more Assistant Treasurers, an Executive Director and such other officers as maybe elected or appointed in accordance with the provisions of Section 3 of this Article 5. Any number of offices may be held by the same person except as provided in the Articles or in these Bylaws and except that neither the Secretary, any Assistant Secretary, the Treasurer, nor any Assistant Treasurer may serve concurrently as the Executive Director or the Chair of the Board. Section 2. Election. The Officers of the Corporation, except the Executive Director and such other officers as maybe elected or appointed in accordance with the provisions of Section 3 or Section 5 of this Article 5, shall be chosen annually by, and shall serve at the pleasure of, the Board, and shall hold their respective offices until their resignation, removal, or other disqualification from service, or until their respective successors shall be elected. Section 3. Subordinate Officers. The Board may elect the Executive Director and such other Officers as the business of the Corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these Bylaws or as the Board may from time to time determine. The Board may empower the Chair of the Board to appoint such Officers, other than the Executive Director. Section 4. Removal and Resignation. Any Officer may be removed, either with or without cause, by the Board at any time or, except in the case of an Officer chosen by the Boazd, by any Officer upon whom such power of removal maybe conferred by the Board. Any such removal shall be without prejudice to the rights, if any, of the Officer under any contract of employment of the Officer. Any Officer may resign at any time by giving written notice to the Corporation, but without prejudice to the rights, if any, of the Corporation under any contract to which the Officer is a party. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 5. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular election or appointment to such office, provided that such vacancies shall be filled as they occur, and not on an annual basis, Section 6. Chair of the Board. The Chair of the Boazd shall, if present, preside at all meetings of the Boazd and exercise and perform such other powers and duties as maybe assigned from time to time by the Board. The Chair of the Board must be a Director of the Corporation. The Chair shall be chosen annually by the Board at the first meeting of the fiscal yeaz. No one Board member may serve more than two (2) consecutive years as Chair. Section 7. Executive Director. The Executive Duector shall be elected or appointed; and maybe removed, only with the approval of at least seven (7) Directors. Except for and subject to such powers, if any, as maybe given by the Board to the Chair of the Board; and subject to the Boazd's determination as to whether the Executive Director shall be an Officer of the Corporation, the Executive Director shall be the Chief Executive Officer and Chief Operating Officer of the Corporation and shall have, subject to the control of the Board, general supervision, direction and control of the day to day business affairs of the Corporation. At the Board's discretion, the Executive Director shall have the general powers and duties of management usually vested in the General Manager of an enterprise and such other powers and duties as maybe prescribed by the Board. The Executive Director shall not be a Director of the Corporation and need not be ari Officer of the Corporation. Section 8. Vice Chairs. Vice Chairs shall be chosen annually by the Board at the first meeting of the fiscal year. In the absence or disability of the Chair of the Board, the Vice- Chairs, if any aze appointed, in order of their rank as fixed by the Boazd or, if not ranked, the Vice-Chair designated by the Board shall preside at meetings of the Board and shall perform all the duties of, and be subject to all the restrictions upon, the Chair of the Boazd. The Vice-Chairs shall have such other powers and perform such other duties as from time to time maybe prescribed for them respectively by the Board. All Vice-Chairs must be Directors of the Corporation. Section 9. Secretary. The Secretay shall be chosen annually by the Board at the first meeting of the fiscal year. The Secretary shall keep or cause to be kept, at the principal office or such other place as the Boazd may order, a book of minutes of all meetings of the Board and its committees, with the time and place of holding, whether regulaz or special, and if special, how authorized, the notice thereof given, the names of those present at Board and committee meetings, and the proceedings thereof. The Secretary shall keep, or cause to be kept, at the principal office in the State of California the original or a copy of the Corporation's Articles and Bylaws, as amended to date. The Secretary shall give, or cause to be given, notice of all meetings of the Board and any committees thereof required by these Bylaws or by law to be given, shall keep the seal of the corporation in safe custody, and shall have such other powers and perform such other duties as maybe prescribed by the Boazd. In the absence or disability of the Chair of the Board and all Vice-Chairs, the Secretary shall preside at meetings of the Board if the Secretary is a Director of the Corporation. The Secretary may but need not be a Director of the Corporation. Section 10. Chief Financial Officer. The Chief Financial Officer shall be chosen annually by the Board at the first meeting of the fiscal year. The Chief Financial Officer shall keep and maintain; or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the Corporation. The books of account shall at all times be open to inspection by any Director. The Chief Financial Officer shall deposit or cause to be deposited, all moneys and other valuables in the name and to the credit of the Corporation with such depositories as maybe designated by the Board. The Chief Financial Officer shall disburse the funds of the Corporation as maybe ordered by the Board, shall render to the Executive Director and Directors, whenever they request it, an account of all transactions as Chief Financial Officer and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board. In the absence or disability of the Chair of the Board, all Vice- Chairs and the Secretary, the Chief Financial Officer shall preside at meetings of the,Board, if- the Chief Financial Officer is a Director of the Corporation. The Chief Financial Officer may but need not be a Director of the Corporation. ARTICLE 6. REPORTS, RECORDS AND RIGHTS OF INSPECTION Section 1. Annual Report to City Council. Within ninety (90) days after the close of the Corporation's fiscal yeaz, the Board shall cause an annual report of its operations to be provided to the City Council. Such report shall contain, in appropriate detail, the following: (a) The assets and liabilities, including the trust funds, of the Corporation as of the end of the fiscal year. (b) The principal changes in assets and liabilities of the Corporation, including trnst funds, during the fiscal year. (c) The revenue or receipts of the Corporation, both unrestricted and restricted to particulaz purposes, for the fiscal year. (d) The expenses or disbursements of the Corporation, for both general and restricted purposes, during the fiscal yeaz. (e) Any information required by Section 6322 of the California Non-Profit Public Benefit Corporation Law (pertaining to certain transactions and indemnifications involving interested persons). (f) A narrative description of the Corporation's principal activities during the fiscal year. (g) Such other information concerning the Corporation as may be requested by the City Council in writing not less than ninety (90) days preceding the end of such fiscal year. Section 2. Records and Rights of Inspection. The Corporation shall keep adequate and correct books and records of account and minutes of the proceedings of its Member, the Board and committees of the Board. Minutes shall be kept in written form. Other books and records shall be kept either in written form or in any form capable of being converted into written form. The books and records of the Corporation shall be open to inspection and copying by members of the public to the same extent as the public records of the City of Santa Monica. ARTICLE 7. INDEMNIFICATION Section 1. Statutory Indemnity. This Corporation shall indemnify its Directors, Officers and employees to the fullest extent permitted by the California Non-Profit Public Benefit Corporation Law. Section 2. Non applicability to Fiduciaries of Employee Benefit Plans. This Article does not apply to any proceeding against any trustee, investment manager, or other fiduciary of an employee benefit plan in such person's capacity as such, even though such person may also be an agent of the Corporation as defined in Section 1 of this Article 7. The Corporation shall have power to indemnify. such trustee, investment manager, or other fiduciary to the extent permitted by subdivision (f) of Section 207 of the California General Corporation Law. ARTICLE 8. OTHER PROVISIONS Section 1. Endorsement of Documents; Contracts. Subject to the provisions of applicable law and these Bylaws, any note, mortgage, evidence of indebtedness, contract, conveyance, or other instrument in writing and any assignment or endorsement thereof executed or entered into between the Corporation and any other person, when signed by (a) the Executive Director, or (b)(i) the Chair of the Board or any Vice Chair and (b)(ii) the Secretary, any Assistant Secretary, the Chief Financial Officer, or any Assistant Treasurer of the Corporation shall be valid and binding on the Corporation in the absence of actual knowledge on the part of the other person that the signing officers had no authority to execute the same. Any such instruments may be signed by any other person or persons in such manner as from time to time shall be determined by the Board, and, unless so authorized by the Board, no officer, agent, or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or amount. Section 2. Representation of Shares of Other Corporations. The Chair of the Board or any other Officer or Officers authorized by the Board or the Chair of the Board are each authorized to vote, represent, and exercise on behalf of the Corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of the Corporation. The authority herein granted maybe exercised either by any such officer in person or by any other persons authorized so to do by proxy or power of attorney duly executed by said Officer. Section 3. Construction and Definitions. Unless the context otherwise requires, the general provisions, rules of construction, and definitions contained in the General Provisions of the California Nonprofit Corporation Law and in the California Nonprofit Public Benefit Corporation Law shall govern the construction of these Bylaws. Section 4. shall end on June 30 of each year. Section 5. Amendments. These Bylaws may be amended or repealed by the approval of the Board; provided that any amendment or repeal shall have the approval of at least seven (7) Directors and shall be effective only upon the Member's written approval given in accordance with Section 5 of Article 2. THIS IS TO CERTIFY THAT: That I am the duly elected, qualified and acting Secretary of the Bayside District Corporation and that the above and foregoing Second Amended and Restated Bylaws were adopted as the Bylaws of said corporation on the day of , 2008 by the Board of Directors thereof and approved by the Santa Monica City Council on IN WITNESS WHEREOF, I have hereunto set my hand this day of 2008. Establishment of Fiscal Year. The fiscal year of this Corporation Secretary January 13, 2009 Item: 8-A APPOINTMENTS WORKSHEET ~~-~~~~~~ra er ___~~ lll~-- - ~ . 5~ ~ ~qp _ Must be a resident or person who is First seat 06/30/2010 employed, owns property or holds a 2-year term business license in the City of Santa Monica. Must be a resident or person who is Second seat 06/30/2010 employed, owns property or holds a 2-year term business license in the City of Santa Monica. Must be a resident or person who is Third seat 06/30/2010 employed, owns property or holds a 2-year term business license in the City of Santa Monica. Must be a resident or person who is First seat 06/30/2012 employed, owns property or holds a 4-year term business license in the City of Santa Monica. Must be a resident or person who is Second seat 06/30/2012 employed, owns property or holds a 4-year term business license in the City of Santa Monica. Must be a resident or person who is Third seat 06/30/2012 employed, owns property or holds a 4-year term business license in the City of Santa Monica. January 13, 2009 Item: 8-A City of Santa Monica Boards and Commissions Applicants Bayside District Corporation Original Last Name Application Date Application Date Barbara Bryan 10/23/2008 Bruria Finkel 09/03/2008 Todd Flora 10/21/2008 Henry Ray Garcia O I /06/2009 Robert James Gardner 05/21/2005 04/22/2008 Patricia Hoffman 11/08/2008 David Howard Houston 08/06/2007 Jennifer Hranilovich 10/22/2008 David Khedr 12/10/2008 Tim Kittleson 08/29/2008 David Martin 12/12/2008 Giacomo Puccini 1 I/li/2008 Rodney Lee Punt O1 /09/2008 Rob Rader 12/31/2008 Winston Smith 11/13/2008 John Tabis 03/06/2008 Glen Arthur Tistaert 12/03/2008 David Gideon Tractenberg 12/10/2008 Johannes Van Tilburg 11/13/2008 Kelley Wallace 12/21/2008 Total Number of Applicants: 20