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HomeMy WebLinkAboutAgenda - 03-22-2012-11aORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: March 22, 2012 Action Agenda Item No. ~ ~ Q SUBJECT: Recommendations for the Board of Directors of the Piedmont Food and Agricultural Processing Center Corporation DEPARTMENT: Economic Development PUBLIC HEARING: (Y/N) No County Attorney ATTACHMENT(S): INFORMATION CONTACT: 1) Bylaws for the Piedmont Food And Steve Brantley, 245-2326 Agricultural Processing (PFAP) Center John Roberts, 245-2318 Corporation 2) Proposal from Commissioner Barry Jacobs, Current Chair of the PFAP Steering Committee PURPOSE: To appoint three directors to the Board of Directors of the 501(c) (3) nonprofit organization, which will manage, direct, and operate the Piedmont Food and Agricultural Processing Center (PFAP). BACKGROUND: Due to a number of issues regarding the operation of the PFAP and risks that may inhibit the access of small users of PFAP, Orange County staff made a recommendation to the Board of County Commissioners that a nonprofit entity would be better suited to manage PFAP. In December 2011, the Board of County Commissioners authorized the County Manager and County Attorney to move forward with creating a 501(c) (3) nonprofit organization to manage, direct, and operate PFAP, and approved by-laws governing the proposed nonprofit organization. Pursuant to the by-laws (Attachment 1), staff of PFAP developed a list of individuals who are willing to serve on the Board of Directors. One appointee must be an Orange County resident and designated as the Orange County-specific appointee. The recommended individuals are: James Watts, Merchandising Manager - Weaver Street Market • Retail product, retail sales, and logistics expert • 30+ years in retail grocery • Local food market development Dina Mills, Owner - Luna Pops • Non-profit board experience • Successful small food business owner • PFAP Client Austin Genke, Owner - Boxcarr Farm • Chef / Food Truck Owner • Farmer / Farmers' Market vendor • PFAP Client All suggested candidates are Orange County residents. Commissioner Barry Jacobs, who currently serves as the PFAP steering committee chair, has also indicated in a proposal (Attachment 2) an interest in serving as a Director on the non-profit PFAP board. Selection of Orange County's PFAP board members could be achieved in the traditional manner of advertising and making a selection from a pool of general candidates. However, the disadvantage of that approach is selection of a board that may not have individuals who are qualified in food processing, general manufacturing practices, and small business development. In addition, PFAP's board members will be serving on a non-profit board, not an advisory board, and therefore, will have some personal liability. Furthermore, there is a need to move quickly to form the board, due to ongoing efforts to establish PFAP as a 501(c) (3) nonprofit organization. For these reasons, the recommended approach to selecting ideal board members, in this case, is to consider the candidate names that have been submitted. FINANCIAL IMPACT: There is no direct financial impact with appointing directors to the nonprofit entity. RECOMMENDATION(S): The Manager recommends the Board discuss the applicants and appoint three directors, designating one appointee as an Orange County specific appointee. If the Board decides to appoint a County Commissioner to the PFAP non-profit Board of Directors, the appointment should be as an individual, not as a representative of County government. Once the initial PFAP Board of Directors is established, it will not have any direct relationship to County government, and the Board of Commissioners will have no future role in selection of PFAP board members. PFAP and the County will have several contractual relationships regarding the use of the building and other services that PFAP might consider in the future. ~"G!C~ ~ BY-LAWS PIEDMONT FOOD AND AGRICULTURAL PROCESSING (PFAP) CENTER CORPORATION TABLE OF CONTENTS Article I NAME ........................................................................................... .....................................4 Section 1.01 Name ...................................................................................... .....................................4 Article II. ORGANIZATION ......................................................................... .....................................4 Section 2.01 Organization ........................................................................... .....................................4 Article III. MISSION AND PURPOSE ....................................................... .....................................4 Section 3.01 Purposes ................................................................................. .....................................4 Section 3.02 TaY Exempt Status ................................................................. .....................................5 Section 3.03 Limitation .............................................................................. ......................................5 Article N. OFFICE AND REGISTERED AGENT ................................... ......................................5 Section 4.01 Office .................................................................................... ......................................5 Section 4.02 Registered Office and Registered Agent ............................... ......................................5 Section 4.03 Changes ................................................................................. ......................................5 Article V. MEMBERSHIP ............................................................................. ......................................5 Section 5.01 Membership .......................................................................... ......................................5 Article VI. BOARD OF DIRECTORS ~«BOARD") .................................. ......................................6 Section 6.01 Composition .......................................................................... ......................................6 6 Section 6.02 .................................................................................... Terms ............... "' 6 Section 6.03 g ty ................. Vacancies and Ineli ibili •••••-•••••••••••••••••-•••••--•••• ••••••••••••••••••••••••••~••••••••••~ Section 6.04 ................................................................................ Removal ... •••••-••••••~-~""""""""""6 Section 6.05 Resignation .............................. ............................................. ......................................7 Section 6.06 Membership Restriction ....................................................... .......................................7 Section 6.07 Compensation ...................................................................... .......................................7 Section 6.08 Duties ................................................................................... .......................................7 ............................................................................. Article VIL MEETINGS .......... ..........................~..7 Section 7.01 Place of Meetings ................................................................. .......................................7 Section 7.02 Annual Meetings .................................................................. .......................................7 Section 7.03 Regular Meetings .................................. ............................... .......................................7 Section 7.04 Special Meetings .................................................................. .......................................8 Section 7.05 Informal Action .................................................................... .......................................8 Section 7.06 Form of Notice ..................................................................... .......................................8 Section 7.07 Waiver of Notice; Presumption of Assent ........................... .......................................8 Section 7.08 Quorum ............. ..........................................••-.._................... .........................••----••---...8 8 Section 7.09 ................................................... Manner of Acting .............. ....................................... 8 Section 7.10 Participation in Meetings by Electronic Communications .. ....................................... Article VIII. COMMITTEES OF THE BOARD AND FOCUS GROUPS ........................................8 Section 8.01 .................................................... Committees of the Board .............. •••••••-~-""'~g Section 8.02 Meetings .............................................................................. ........................................9 3 4 Section 8.03 Quorum & Voting .....................••-••••...........................................................................9 Section 8.04 Standing Committees ................................................................................................ ..9 Section 8.05 Heads of Standing Committees ................................................................................. ..9 Section 8.06 Finance Committee ................................................................................................... ..9 Section 8.07 Board Development Committee ............................................................................... 10 Section 8.08 Additional Committees and Focus Groups ............................................................... 10 Section 8.09 Vacancies .................................................................................................................. 11 Section 8.10 Rules ......................................................................................................................... 11 Section 8.11 Chair .......................................................................................................................... 1 l Section 8.12 Compensation ........................................................................................................... 11 Article IX. OFFICERS ....................................................................................................................11 Section 9.01 Designation ...............................................................................................................11 Section 9.02 Election and Term of Office .....................................................................................11 Section 9.03 Removal of Officers and Agents ...............................................................................1 l Section 9.04 President ....................................................................................................................11 Section 9.05 Vice-President ...........................................................................................................12 Section 9.06 Secretary-Treasurer ...................................................................................................12 Section 9.07 Executive Director ("Executive Director") ...............................................................12 Article X. FINANCIAL TRANSACTIONS ......................................................................................13 Section 10.01 Authorization ........................................................................................................13 Section 10.02 Annual Audits ............................................................................... ........................13 Section 10.03 Fiscal Year .................................................................................... ........................13 Section 10.04 Annual Reports for the State of North Carolina ........................... ........................13 Section 10.05 Annual Reports for Directors ........................................................ ........................13 Section 10.06 Checks, Drafts, Etc . ...................................................................... ........................13 Section 10.07 Deposits ......................................................................................... .................•--....14 Section 10.08 Gifts ............................................................................................... ........................14 Section 10.09 Use of Facilities ....................................................................................................14 Article XI. BUDGETING, BOOKS AND RECORDS ...................................................................14 Section 11.01 Book and Records .................................................................................................14 Article XII. INDEMNIFICATION OF DIRECTORS AND OFFICERS .........................................14 Article XIIL AMENDMENTS TO BY-LAWS .................................................................................15 Section 13.01 In General ..............................................................................................................15 Article XIV. OFFICES ...................................................................................................................15 Section 14.01 Principal Office .....................................................................................................15 Section 14.02 Registered Office ..................................................................................................15 Section 14.03 Other Offices ............................................................................................•---.........15 Article XV. MISCELLANEOUS ..................................................•---.............................................155 Section 15.01 Rules and Regulations .........................................................................................155 Section 15 02 Steerin~Committee 15 Section 15.03 Dissolution.. .16 2 Section 15 03 By-Law Interpretation .16 Section 15.04 Seal.. .16 6 PIEDMONT FOOD AND AGRICULTURAL PROCESSING (PFAP) CENTER CORPORATION BY-LAWS Article I NAME Section 1.01 Name The name of this organization shall be "Piedmont Food and Agricultural Processing (PFAP) Center Corp.' ; hereinafter referred to as the "Corporation." Article II. ORGANIZATION Section 2.01 Organization This Corporation has been formed under the laws of the State of North Carolina as conta.ined in N.C.G.S. Chapter 55A, entitled "Non-Profit Corporation Act" and Section 501(c)(3) of the Internal Revenue Code of 1954. Article III. MISSION AND PURPOSE Section 3.01 Purposes The Corporation shall ha~e all corporate power and authority to carry on any lawful activity calculated, directly or indirectly, to promote the Corporation's interests and purposes. The purposes of the Corporation are to: (a) Educate the public, local farm-based producers, food-based businesses, culinary programs and promote the economic viability of farm-based producers and food-based businesses across the region in their efforts to produce locally grown value-added products, create sustainable local food businesses and associated jobs, and preserve productive farmland; (b) Provide for the betterment of the conditions of those engaged in such pursuits, the improvement of the grade of their products, and the development of a higher degree of efficiency in their respective occupations by esta.blishing and operating a shared-use, value-added, food and agricultural processing facility, the "PFAP Center"; (c) Educate local farm-based producers, food-based businesses, culinary programs, and other clients who wish to produce locally grown value-added food items about the benefits of a food and agricultural processing facility; (d) Develop funding, purchase or lease real or personal property, or borrow money in order to effectuate the Corporation's educational goals and to develop and provide a shared-use, value- added, food and agricultural processing facility that meets Good Manufacturing Practice (GMP) standards; (e) Provide business development support and educate potential clients in the region about how to start a food-based business, develop a business plan and comply with food safety requirements, and provide general oversight of a food and agricultural processing facility that meets GMP standards; ( fl Cooperate with and enlist support from local educational, agricultural, and economic development institutions in the affected political jurisdictions, key stakeholders, and existing service providers in the region including cooperative extension, small business centers, and culinary programs at local educational facilities to meet the Corporation's educational goals; (g) Establish cooperative relationships with regulatory officials to understand the local regulatory environment, meet county and FDA regulations, and pursue USDA or state-inspected value- added meat processing and educate potential clients about these regulations; (h) Initiate other activities consistent with the above purposes. 4 ~ Section 3.02 Tax Exempt Status Notwithstanding any other provision of the Articles or these By-Laws, the purposes for which the Corporation is organized are exclusively charita.ble, scientific, literary and educational within meaning of Section 501(c)(3) of the Internal Revenue Code and its Regulations as they now exist or as they may be amended. The Corporation shall not carry on any activities not permitted to be carried on (1) by an organization exempt from federal income tax under Section 501(c)(3). No substantial part of the Corporation's activities shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall not participate in or intervene in (including the publishing and distribution of statements) any political campaign on behalf of or in opposition to any candidate for public office. No part of the Corporation's net earnings shall inure to the benefit of, or be distributable Directors, officers, or other private person, except that the Corporation shall be authorized and empowered to pay reasonable compensation for services rendered, to make payments and distributions in furtherance of the Corporation's purposes. Section 3.03 Limitation This Code of By-Laws for the Corporation is adopted subject to the express provisions of the Articles of Incorporation, the N.C.G.S. SSA-1, et seq., and Section 501(c)(3) of the Internal Revenue Code and its Regulations as they now exist or as they may be amended. In the event of any conflict or inconsistency between any provision in this Code of By-Laws and anything in the Articles of Incorporation, the N.C.G.S. SSA-1 et seq., or Section 501(c) (3) of the Internal Revenue Code and its Regulations as they now exist or as they may be amended, the latter three instruments or laws shall prevail and control. No By-Law contained herein shall be adopted or used so as to disqualify the Corporation as an exempt organization under Section 501(c) (3) of the Internal Revenue Code and its Regulations as they now exist or as they may be amended. Article IV. OFFICE AND REGISTERED AGENT Section 4.01 Office The principal office of the Corporation shall be located and maintained in Orange County, North Carolina in such place as the Board of Directors may determine. Section 4.02Registered Office and Registered Agent The registered agent of the Corporation shall be Matthew Roybal. At the time of registration the registered office shall be 500 Va11e~For~e Road Hillsborou~h, North Carolina 27278. Section 4.03 Changes Any change in the Corporation's registered office or agent sha11 be accomplished in compliance with the North Carolina Non-Profit Corporation Act. Article V. MEMBERSHIP Section 5.01 Membership The Corporation shall have no members. Any action which would otherwise require membership approval shall require only approval of the Board of Directors, except as provided herein. 5 8 Article VI. BOARD OF DIRECTORS ("BOARD") Section 6.0~ Composition The Board sha11 be composed of thirteen (13) Directors. The number of Directors may be increased or decreased from time to time by amendment to these By-Laws by resolution of the Board except that there may be no more than seventeen (17) and no fewer than seven (7) Directors. Initially, the Alamance, Chatham, Durham, and Orange County Boards of County Commissioners sha11 each appoint three (3) Directors with experience in the areas of farm production, food processing, food distribution and food safety, business practices andlor other areas that the County Commissioners shall deem appropriate. As its first act of business the Board shall appoint a Director(s) to fill any vacant position on the Board. If, sixty (60) days after submission of the request to appoint Directors, Alamance, Chatham or Durham County fail to make their appointments to the Board the Orange County Board of County Commissioners sha11 make said appointments on their behalf. Appointments are subject to the following limitations: (a) One (1) seat shall be reserved and designated for a Director from Alamance County; (b) One (1) seat shall be reserved and designated for a Director from Chatham County; (c) One (1) seat shall be reserved and designated for a Director from Durham County; (d) One (1) seat sha11 be reserved and designated for Director from Orange County; (e) All other members shall be appointed at large from Alamance, Chatham, Durham and Orange counties. Section 6.02 Terms The Alamance, Chatham, Durham, and Orange Boards of County Commissioners shall initially appoint three Board members to staggered terms of one, two and three years as follows: One for one (1) yeax, one for two (2) years and one for three (3) years with the intent that approximately one-third of the Directors' terms shall expire each year. Directors shall take office immediately following their appointment. At the time of initial appointment, each Board of County Commissioners shall designate which appointee is to hold a county reserved seat on the Board. Upon expiration of the initial terms the Board members shall appoint andlor reappoint members to the Board for three (3) year terms. Board members are limited to a maximum of two consecutive full terms and may continue to serve until a new Board member is appointed. Section 6.03 Vacancies and Ineligibility After initial appointments are made, vacancies occurring on the Board shall be filled by a majority vote of the Board. Vacancies in designated county positions shall be filled by the Board with an individual from the county of which the vacancy occurred. Other vacancies shall be filled by the Board as provided herein. A slate of candidates for the vacancy shall be presented to the Board by the Board Development Committee. Section 6.04 Removal (a) For Cause. The Board may declare vacant the office of any Director and remove said Director (i) who has been declared to be of unsound mind by final court order (ii) has been convicted of a felony; (iii) has been found by final court order or judgment to have breached any duty under N.C.G.S. Chapter SSA, Article 8(relating to standards of conduct), (iv) has violated the 6 9 Membership Restriction described in Section 6.06 (v) has been absent from three (3) consecutive meetings without giving prior notice to the Chair. Such removal may occur with a simple majority vote of all currently elected or appointed Directors. (b) Without Cause. The Board may declare vacant the office of any Director and remove said Director without cause where such removal is determined to be in the best interest of the Corporation. Such removal may only occur with a two-thirds majority vote of all currently elected or appointed Directors. Section 6.05 Resignation Any Director may resign by giving notice to the President or Secretary of the Board. The resignation of a Director shall be effective when notice is given unless the notice specifies a later time. The resignation shall be effective regardless of whether it is accepted by the Corporation. However, no Director may resign when the Corporation would be then left without a director or directors in charge of its affairs. Section 6.06 Membership Restriction No employee of the Corporation may serve on the Board, hold an elective office on the Board, or have voting privileges. Section 6.07 Compensation Directors shall not be entitled to compensation for their services. Directors may be eligible for reimbursement of expenses related to Board activities. Section 6.08 Duties It shall be the duty of Directars to perform and comply with any and all duties imposed on them collectively or individually by law, the Articles of Incorporation of this Corporation, or by these By- Laws. Article VII. MEETINGS Section 7.01 Place of Meetings The meetings of the Boaxd shall be held at the registered offices of the Corporation or at any place within the counties served by the PFAP Center and agreed upon by a majority of the Boaxd members. Section 7.02 Annual Meetings The Board shall meet annually for the purpose of electing officers, consideration of reports of the previous year and transaction of such other business as may come before the Board. The Board shall establish the date, time and place of such annual meetings. If the Boaxd makes no alternate provisions, the annual meeting shall be held on the first Monday of May in each year, at the Corporation's principal office. Section 7.03 Regular Meetings Regular meetings of the Board shall be held at such times as the Board may determine. The Board shall meet at least four (4) times a year. 7 10 Section 7.04 Special Meetings Special meetings of the Board may be called at any time by the Chair or by agreement of two-thirds of the Board members. Section 7.051nformal Action Action taken by the Directors without a meeting is nevertheless Board action if written approval of the action in question is signed by all of the Directors and filed with the Corporation's official minutes. Section 7.06 Form of Notice Notice may be communicated in person; by electronic means; or by mail or private carrier. Written notice of the time and place of any regular or special meeting, unless waived shall be delivered to each Director not less than five (5) days prior to the meeting. Notice in the fortn of an electronic record sent by electronic means is effective when it is sent. Notice shall be deemed given when delivered in person or, if mailed, three (3) days after the date the notice was mailed to the Director at the address saved in the Corporation's records. Section 7.07 Waiver of Notice; Presumption of Assent Any Director may waive in writing any notice of a meeting required to be given by these By-Laws, and may make such waiver either before or after such meeting. The waiver must be in writing, signed by the Director entitled to the notice, and delivered to the Corporation's Secretary for inclusion in the minutes or filing with the corporate records. A Director's attendance at any meeting shall constitute such Director's waiver of notice of such meeting, unless the Director at the beginning of the meeting or promptly upon arrival, objects to holding the meeting or to transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. Section 7.08 Quorum A quorum for any meeting of the Board shall consist of a simple majority of filled Director positions. Section 7.09 Manner of Acting The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board, except to the extent these By-Laws or any applicable provision of law established a different requirement for corporate action. Section 7.10 Participation in Meetings by Electronic Communications Provided that a quorum is physically present and with the permission of the majority of those Directors present, any one or more members may participate in a Board meeting by means of a conference telephone or similar device which allows all persons participating in the meeting to hear each other. Such participation in a meeting shall be deemed presence at such meeting. Article VIII. COMI~ZITTEES OF THE BOARD AND FOCUS GROUPS Section 8.01 Committees of the Board The Board may, by resolution adopted by a majority of the Directors then in office, provided that a quorum is present, create one or more committees of the Board, consisting of two or more Directors or other qualified persons, to serve at the pleasure of the Board. Appointments to any such committee shall be by a majority vote of the Directors then in office. The Board may appoint one or more Directors as alternate members of any such committee who may replace any absent member at any 8 11 meeting of the committee. Pursuant to specific resolution, the Board may delegate to any committee any power or powers other than those set forth in this Section 8.01 et seq., provided however, that a11 such delegated powers shall be exercised under the ultimate direction of the Board. Persons other than Directors may be appointed to such committees. Such committees shall not ha~e authority for: (a) The filling of vacancies on the Board or any committees which has authority of the Board; (b) The fixing of compensation of officers or employees of the Corporation; (c) The adoption, amendment or repeal of By-Laws; (d) The amendment or repeal of any resolution of the Board which by its express terms is not so amendable or repealable; (e) The appointment of committees of the Board or the members of such committees; (~ The approval of any transaction binding the corporation; and (g) Approve dissolution, merger or the sale, pledge or transfer of any, all or substantially all of the Corporation's assets. Section 8.02 Meetings Committees shall meet a minimum of four (4) times a year, or as often as necessary to complete a particular task. The provisions which govern action without meetings, notice and waiver of notice and voting requirements shall apply to the Committees of the Board and their members as well. Section 8.03 Quorum & Voting A quorum shall consist of a simple majority of the members of each Committee. A majority vote of those Committee members present shall decide all questions, unless noted elsewhere in these By- Laws or Governance Policies. Section 8.04 Standing Committees Members of Standing Committees shall be elected from the current Directors of the Board and any individual outside the Board Directors who may be appropriate to assist the standing committees in fulfilling the committee's obligations. A member may be appointed or elected to serve on more than one Committee. The Standing Committees include: Finance Committee and Board Development. All standing committees shall consist of at least three (3) members, appointed by nomination of the Board. Section 8.05 Heads of Standing Committees Committee Members shall elect someone from among their membership to serve as the head of their comxnittee ("Chair"). Unless otherwise designated in these By-Laws, the term of committee membership shall be one year. Committee heads may serve until a replacement is elected. Section 8.06 Finance Committee The Finance Committee shall assist the Board in fulfilling its fiduciary and corporate accountability responsibilities. The committee shall: (a) Include the Executive Director as an ex-officio member; 9 12 (b) Develop and review funding strategies, grant requests, client use fees, project development/operation costs, and the overall costs and revenues generated by the facility; (c) Review financial performance and prepare budget reports for every Board meeting; (d) Review tax obligations and payments quarterly; (e) Recommend changes in operating costs, funding strategies, and financial plans to the Board as indicated; ( fl Recommend to the Board the appointment of an independent auditor; review the scope of the auditor's work, fees, and report; and assist the Board in developing management's response to the audit; (g) Review the adequacy of financial policies and internal controls annually; (h) By contract, be assisted by the Orange County Financial Services Deparhnent in carrying out its duties for at least three (3) years from the date of the creation of the corporation; (i) Propose the annual budget to the Board for their consideration. Section 8.07 Board Development Committee The Board Development Committee shall: (a) Include the Executive Director as an ex officio member; (b) Develop procedures for receiving andlor selecting nominees for Boazd vacancies. (c) Recommend to the Board a slate of nominees for appointment to the Board upon the expiration of initial appointees' terms; ' (d) Recommend to the Board nominees for vacancies that occur from time to time. Section 8.08Additional Committees and Focus Groups By resolution duly adopted, the Board may establish one or more additional committees or focus groups as provided in Section 8.01. To the extent provided by such resolution not in conflict with the terms herein, such additional committees and focus groups shall have a.nd may exercise the authority of the Board in the management of the Corporation; provided, however, that the designation of such additional committees and focus groups and delegations of authority thereto shall not operate to relieve the Board, or any Director individually, of any responsibility imposed upon it or him by law, the Articles of Incorporation or these By-Laws. Any member of any such additional committee or focus group may be removed by the Board whenever, in the judgment of the Boaxd, the interests of the Corporation would be served best by such removal. Any member of any such additional committee or focus group may be removed by the person or persons authorized to appoint such member whenever, in the judgment of such appointing person or persons, the interests of the Corporation would be served best by such removal. lo 13 Section 8.09 Vacancies Vacancies in the membership of any committee or focus group shall be filled by appointments made in the same manner as provided in case of original appointments, and any member so appointed shall serve for the period of the unexpired term of his or her predecessor. Section 8.10 Rules Each comxnittee, sub-committee or focus group may adopt such rules and regulations for its meetings and the conduct of its activities as it may deem appropriate; provided however, that such rules and regulations shall be consistent with these By-Laws. Section 8.11 Chair One member of each committee, sub-committee or focus group shall be designated as Chair by the members of the committee. Section 8.12 Compensation Members of any committee, sub-committee or focus group shall not receive any compensation for their services as members of a committee, sub-committee or focus group. Article IX. OFFICERS Section 9.01 Designation The officers of the Corporation sha11 be a President, Vice President, Secretary-Treasurer, and such other officers as the Board may determine from time to time to perform such duties as may be designated by the Board. Section 9.02 Election and Term of Office The Board shall elect the officers annually at its regular annual meeting provided for in Section 7.02. Each officer shall hold office until the next regular annual meeting of the Board and until such officer's successor shall have been elected. Except as provided in these By-Laws, the Board shall fill any vacancy in any office for the unexpired portion of the term. The President and Vice President shall be Directors of the Board, but none of the other officers need be Directors of the Board. No one person may serve in more than one of the offices enumerated in these By-Laws. Section 9.03 Removal of Officers and Agents Any Officer or Agent elected or appointed by the Board may be removed by a majority vote of the Board, with or without cause, whenever in the Board's judgment the Corporation's best interests will be served thereby. Section 9.04 President The President shall: (a) Be the Corporation's principal executive officer, shall in general supervise and control all of the Corporation's business and affairs, and unless otherwise deternuned by the Board, shall preside at all Board meetings; (b) Sign any deeds, grants, mortgages, leases, notes, bonds, contracts or other instruments or agreements authorized by the Board to be executed, except in cases in which the signing and execution thereof shall be expressly delegated by the Board to some other officers or agent of the Corporation, or shall be required by law to be otherwise signed or executed; and 11 14 (c) In general perform all duties incident to the office of the President and such other duties as the Board may assign from time to time. Section 9.05 Vice-President In the absence of the President or upon the President's inability or refusal to act, the Vice-President shall perform duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions applicable to the President. The Vice-President shall also perform such other duties as the Board may assign from time to time. Section 9.06 Secretary-Treasurer The Secretary-Treasurer shall: (a) Keep the minutes of the meetings of the Board and any committees in one or more books provided for that purpose; (b) See that all notices are duly given in accordance with these By-Laws or as required by law; (c) Be custodian of the Corporation's corporate records and of the Corporation's seal; and affix the Corporation's seal to doctunents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these By-Laws; (d) Keep a register of the names and post office addresses of all Directors; (e) Have general charge of the Corporation's books and records; ( fl Keep on file at all times a complete copy of the Corporation's Articles of Incorporation and By- Laws containing all amendments thereto (which copy shall always be open to the inspection of any Director), and at the Corporation's expense forward a copy of the By-Laws and of all amendments thereto to each Director; (g) Unless otherwise provided by the Board, have chaxge and custody of and be responsible for all funds and grants of the Corporation; (h) In general, perform all the duties incident to the o~ces of the Secretary and Treasurer and such other duties as the Board may assign from time to time; (i) Serve on the Finance Committee. Section 9.07 Executive Director The Board shall employ or contract for the services of the Executive Director. The Executive Director shall be solely accountable to the Board and responsible for carrying out PFAP Center's goals and objectives. The Executive Director shall have the full authority and freedom to make all necessary operational decisions and take all necessary actions except those reserved to the Board. Acting within this authority, the Executive Director shall not perform any act, allow or cause to be performed any act that is unlawful, insufficient to meet commonly accepted business and professional standards and the prudent person test, in violation of contractual standards or requirements set forth by funding sources or regulatory bodies, or contrary to explicit Board restraints. To these ends, the Board shall establish, and revise as needed, written policies with regard to the Board's delegations of duties/responsibilities to the Executive Director. 12 15 Article X. FINANCIAL TRANSACTIONS Section 10.01 Authorization Except as provided in these By-Laws, the Board may authorize any officer(s) or agent(s), in addition to the officers so authorized by these By-Laws, to enter into any contract or execute or deliver any instiument in the name and on behalf of the Corporation, and such authority may be general or confirmed to specific instances. Section 10.02 Annual Audits The account books and financial statements of the Corporation shall be audited annually by an independent certified public accountant retained with the approval of the Board. The Board shall review the annual audit, the management letter, and the response to the management letter and shall meet with the independent auditor without staff present. Following the creation of the Corporation, copies of the annual audit will be forwarded to the Boards of County Commissioners of Alamance, Chatham, Durham, and Orange Counties. Section 10.03 Fiscal Year The Corporation's fiscal year shall be each period ending June 30. Section 10.04 Annual Reports for the State of North Carolina The Corporation shall file with the Secretary of State, on or after January 1 st and on or before July 1 st of each year a sworn annual report on such forms and containing such information as the Secretary of State may prescribe, together with the annual fee required for such report. Section 10.05 Annual Reports for Directors The Board shall cause an annual report to be furnished to all Directors of the Corporation. The report shall contain the following information in appropriate detail: (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, including trust funds, during the fiscal year. (c) The revenue or receipts of the Corporation, both unrestricted and restricted to particular purposes, for the fiscal year. (d) The expenses or disbursements of the Corporation, for both general and restricted purposes, during the fiscal year. (e) Any other information as required by law. ( fl The annual report shall be accompanied by any report thereon of independent accountants, or, if there is no such report, the certificate of an authorized officer of the Corporation that such statement was prepared without audit from the books and records of the Corporation. Section 10.06 Checks, Drafts, Etc. All checks, drafts or other orders for payment of money, and all notes, bonds or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer(s), agent(s), employee(s) of the Corporation in such manner as the Board shall determine by resolution. In the 13 16 absence of such determination by the Board, such instruments shall be signed by the Secretary- Treasurer and countersigned by the President or Vice-President. Section 10.07 Deposits All corporate funds shall be deposited from time to time to the Corporation's credit in such bank or banks or other depositories as the Board may select from time to time. Section 10.08 Gifts The Board may accept on behalf of the Corporation any contribution, gift, bequest or devise for the general purpose or special purpose of the Corporation. Section 10.09 Use of Facilities The Corporation shall not enter into any contract or other arrangement for the use of the PFAP Center that discriminates whether written or in practice, on the basis of race, ethnicity, color, religion, sex, national origin, age, sexual orientation, disability, income, marital status, or other bases which may be protected by applicable law. Article XI. BUDGETING, BOOKS AND RECORDS Section 11.01 Book and Records The Corporation shall keep correct and complete books and records of account and shall also keep minutes of the proceedings of the Board, and committees having any of the authority of the Board. All books and records of the Corporation may be inspected by any Director for any proper purpose at any reasonable time upon reasonable notice and request therefore. For the three (3) year period following creation of the Corporation the Corporation shall contract with Orange County for assistance with the maintenance of such books and records as needed. Section 11.02 Budgeting The Corporation shall comply with generally accepted accounting principles in budgeting and financial transaction matters. For at least the three (3) year period following creation of the Corporation the Corporation shall contract with Orange County for assistance with budgeting and accounting. Notwithstanding any other provision in this Code of By-Laws the provisions of this Article XI may not be amended or repealed within the three (3) year period following creation of the Corporation. Article XII. INDEMNIFICATION OF DIRECTORS AND OFFICERS The private property of the Directors and Officers shall be exempt from execution or other liability for any debts of the Corporation, and no Director or Officer shall be personally liable or responsible for any debts or liabilities of the Corporation. The provisions of N.C.G.S. Chapter SSA, Article 8, Part 5, or any successor provision, except as limited by N.C.G.S. Section SSA-2-02 or any successor provision, shall fully apply without restriction or limitation as to indemnification of and advancing litigation expenses to Directors, Officers, employees or agents of the Corporation acting within the scope of their duties. All Officers and Directors shall be deemed to have relied on this provision. To the extent provided in N.C.G.S. Section SSA Article 8, Part 6, or any successor provision, except as limited by N.C.G.S. Section SSA-2-02 or any successor provision, no Director, Officer, employee 14 or agent of the Corporation shall be personally liable for money damages as a result of any action for breach of such person's duty as Director, Officer, employee or agent of the Corporation. No amendment or repeal of this Article, nor adoption of any other amendment to these Articles or By- Laws inconsistent with this provision, shall eliminate or reduce the protection granted herein with respect to any matter that occurred prior to such amendment, repeal, or adoption. Article XIII. AMENDMENTS TO BY-LAWS Section 13.0~ In General These By-Laws, save and except Section 15.03, may be altered, amended or repealed and new By- Laws may be adopted by the affirmative votes of two-thirds of the Directors in office at the time such alteration, amendment, repeal, or adoption is presented. Provided notice of the meeting at which such votes occurred shall have contained a copy of the proposed alteration, amendment, repeal or adoption, or provided such requirement shall have been duly waived by all Directors who voted on the alteration, amendment, repeal or adoption. Provided however that for howsoever long the Corporation contracts with Orange County for financial or other services no alteration, amendment, repeal or adoption to or of these By-Laws shall be effective unless and until it is approved by majority vote of the then sitting Board of Commissioners of Orange County, North Carolina. Article XIV. OFFICES Section 14.01 Principal Office The Corporation's principal office shall be located at such place as the Board may fix from time to time. The street address of the Corporation's initial principal office shall be: 500 Va11e,Y Forge Road, Hillsborou~h, North Carolina 27278. Section 14.02 Registered Office The registered office of the Corporation required by law to be maintained in the Sta.te of North Carolina may be, but need not be, identical with the principal office. The street address of the Corporation's initial registered office shall be: 500 Valley Forge Road, Hillsborou~h, North Carolina 27278. Section 14.03 Other Offices The Corporation may have offices at such other places within the State of North Carolina as the Board may designate from time to time. Article XV. MISCELLANEOUS Section 15.01 Ru/es and Regulations The Board shall have the power to make and adopt such rules and regulations not inconsistent with the law, Articles of Incorporation, or these By-Laws, as it may deem advisable for the management of the Corporation's business and affairs. Section 15.02 Steering Committee The Steering Committee formed by the June 3, 2010 Interlocal Cooperation Agreement between Alamance, Chatham, Durham, and Orange Counties shall continue to meet until it dissolves either on June 30, 2015 or upon the termination of the Interlocal Cooperation Agreement. The Board may meet annually with the Steering Committee to discuss the operations, goals, and future of the Corporation. However, the Steering Committee shall have no authority over the operations, Board, or 17 15 18 employees of the corporation, nor shall the Steering Committee have authority to access any non- public documentation or to bind the Corporation in any manner. Semi-annually, until such time as the Steering Committee dissolves, the Executive Director shall provide an operations report to the Steering Committee. Section 15.03 Dissolution The Corporation may be dissolved only by the majority vote of the Directors of the Board at a meeting to which due notice of such purpose has been given to all Directors. Upon the dissolution of the Corporation, the Board of Directors shall first pay or make provision for the payment of all the liabilities of the Corporation. All assets of the Corporation shall then be remitted to Orange County, or, alternatively, Orange County may direct that said assets be contributed and given to a North Carolina Agricultural, Food Processing, or Food Distribution 501(c)(3) or 501(c)(5) organization for use in furthering the health, safety and welfare of the citizens and residents of its jurisdiction. None of the assets shall be disposed of or diverted to any other purpose and shall in no manner be disposed of in such manner so as to accrue to the benefit of any Director of said Corporation. Because much of the equipment utilized in the day-to-day operations of the Corporation is grant funded and was granted to Orange County rather than the Corporation, no alteration, amendment, repeal or adoption to or of this Section 15.03 shall be effective unless and until it is approved by majority vote of the then sitting Board of Commissioners of Orange County, North Carolina. Section 15.04 By-Law lnterpretation These By-laws shall be construed and interpreted under the laws of the State of North Carolina. Notwithstanding the foregoing, however, these By-laws shall at all times be construed and interpreted as consistent with a11 federal laws and regulations governing the activities of the Corporation and governing the taY exempt status of the Corporation, and in the event that these By-laws may be inconsistent with such laws and regulations, the same shall be deemed amended to comply therewith. Whenever used in these By-laws, unless the context otherwise indicates, a pronoun in the masculine gender shall include the feminine gender and the singular shall include the plural, and vice versa. Section 15.05 Seal The Board shall provide a corporate seal, which shall be in the form of a circle and shall have inscrihed thereon the name of the Corporation and the word "SEAL" or "CORPORATE SEAL". 16 Attachment 2 Proposal from Commissioner Barry Jacobs The County Attorney and county Economic Development Director asked me, as chair of the board at the Piedmont Food and Agricultural Processing Center, to share with the Orange County Board of Commissioners a proposal to fill our three seats on the board of directors for the prospective nonprofit that will operate PFAP. This proposal comes after consultation with both Matthew Roybal, director of the facility, and Steve Brantley, the county's ED director. The matter also was discussed at some length on February 27 at a PFAP board meeting. In our conversation we agreed to recommend appointing two clients as referred by Mr. Roybal, and that 1 continue to serve as Orange Count~s third representative so I may see through a project to which I have devoted years of time, thought, and energy on behalf of residents of our county and region. Four basic principles were articulated at the PFAP meeting regarding appointments to the board of the 501 (c) (3) intended to take over the facility prior to the end of the current county fiscal year. • First, each of the four member jurisdictions should make its own determination as to the method and criteria for selecting its representatives. As a point of information, Durham advertised for volunteers, got no response, and is reconsidering its methodology. Alamance reappointed its serving members, including Commissioner Eddie Boswell. Chatham, which has not had a commissioner representative since the 2010 election, left it to the county cooperative extension director to produce nominees. • Second, it is preferable to have representatives who are clients of the facility. The current farmer members from both Durham and Orange, neither of whom uses PFAP, were asked whether they would like to continue to serve. Both declined, stating a preference they be replaced by those more familiar with the operations and limitations of the processing center. • Third, some continuity of inembership was desirable in order to preserve institutional memory and to promote a smooth transition from government control to nonprofit status. Durham Commissioner Pam Karriker, who is not standing for election this fall, will consider staying on the board to meet the need for continuity. • Fourth, it was preferable to reserve seats on the nonprofit board for public members who are not county staffers. Staff from all four counties have been diligent in attendance, and can continue to contribute a great deal to the discussion with sitting on the board. Based on these guidelines, I then consulted Mr. Roybal and Mr. Brantley about the method of appointment Orange County should employ. We agreed that, while opening selection to all applicants is ideal and in keeping with normal county practice, this is an unusual circumstance. Once PFAP becomes a stand-alone 501(c)3 non-profit corporation, board members will be chosen by the PFAP board in accordance with the corporation's bylaws. Given the time-sensitive nature of the conversion to nonprofit status, the uncertain fiscal prospects for the facility, the desirability of appointing users, and the need to ensure continuity, it is recommended that Orange County appoint two clients suggested by Mr. Roybal, as listed in this abstract, and the continuation of my service as a county commissioner conversant with BOCC concerns as well as the evolution of the Piedmont Food and Agricultural Processing Center. 19