A California Public Benefit Corporation
Table of Contents:
ARTICLE 1 NAME AND OFFICES
ARTICLE 2 PURPOSE
ARTICLE 3 ORGANIZATION AND DEFINITIONS
ARTICLE 4 DIRECTORS
ARTICLE 5 OFFICERS
ARTICLE 6 COMMITTEES
ARTICLE 7 EXECUTIONS OF INSTRUMENTS, DEPOSITS, AND FUNDS
ARTICLE 8 CORPORATE RECORDS, REPORTS, AND SEAL
ARTICLE 9 FISCAL YEAR
ARTICLE 10 CONFLICT OF INTEREST AND COMPENSATION APPROVAL POLICIES
ARTICLE 11 AMENDMENT OF BYLAWS
ARTICLE 12 AMENDMENT OF ARTICLES
ARTICLE 13 PROHIBITION AGAINST SHARING CORPORATE PROFITS AND ASSETS
ARTICLE 14 MEMBERS
The name of this corporation is San Diego Collaborative Arts Project, Inc.
The principal office for the transaction of the activities and affairs of this corporation is located at the San Diego Collaborative Arts Project, 6061 Fairmount Ave, San Diego, CA 92120 in San Diego County, California. The board of directors may change the location of the principal office. Any such change of location must be noted by the secretary on these bylaws opposite this Section; alternatively, this Section may be amended to state the new location. The board may at any time establish branch or subordinate offices at any place or places where this corporation is qualified to conduct its activities.
The specific purpose of this corporation is to support individuals, groups and communities in the San Diego, California region in producing and demonstrating collaborative arts and projects, particularly those that model and/or employ the principles of: (1) Radical Inclusion; (2) Gifting; (3) Decommodification; (4) Radical Self-reliance; (5) Radical Self- expression; (6) Communal Effort; (7) Civic Responsibility; (8) Leave No Trace; (9) Participation; and (10) Immediacy, and to carry on other charitable and educational activities associated with this goal as allowed by law.
ORGANIZATION AND DEFINITIONS
- Construction; Definitions. Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the California Nonprofit Corporation Law shall govern the construction of these bylaws. Without limiting the generality of the preceding sentence, the masculine gender includes the feminine and neuter, the singular includes the plural, the plural includes the singular, and the term “person” includes both a legal entity and a natural person.
- This corporation is organized and operated exclusively for the purposes set forth in Article IIA hereof within the meaning of Internal Revenue Code section 501(c)(3) or the corresponding provision of any future federal tax code.
- No substantial part of the activities of this corporation shall consist of carrying on propaganda, or otherwise attempting to influence legislation, and the corporation shall not participate or intervene in any political campaign (including the publishing or distribution of statements) on behalf of any candidate for public office. Notwithstanding any other provision of these articles, the corporation shall not carry on any other activities not permitted to be carried on (a) by a corporation exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code, or (b) by a corporation, contributions to which are deductible under section 170(c)(2) of the Internal Revenue Code, or the corresponding section of any future federal tax code.
- The property of this corporation is irrevocably dedicated to the purposes in Article IIA hereof and no part of the net income or assets of this corporation shall ever inure to the benefit of, or be distributable to, any director, officer, or member thereof or to the benefit of any private person, except that the corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in Article 3 hereof.
- Upon the dissolution or winding up of this corporation, its assets remaining after payment, or provision for payment, of all debts and liabilities of this corporation shall be distributed for charitable and/or educational purposes within the meaning of section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code, to a nonprofit fund, foundation or corporation which is organized and operated exclusively for educational and/or charitable purposes and which has established its tax-exempt status under Internal Revenue Code section 501(c)(3) and has established its tax-exempt status under Revenue and Taxation Code section 23701d (or the corresponding section of any future California revenue and tax law) and satisfies the requirements of Revenue and Taxation Code section 214. The distributee will be the BURNING MAN PROJECT, a California nonprofit public benefit corporation, if it qualifies as a distributee under this Article IV.
SECTION 1. NUMBER
The corporation shall have no fewer than seven (7) or more than fifteen (15) directors, with the exact number to be fixed within these limits by approval of the Board of Directors in the manner provided in these bylaws, and collectively they shall be known as the Board of Directors. The number may be changed by amendment of this bylaw, or by repeal of this bylaw and adoption of a new bylaw, as provided in these bylaws.
SECTION 2. POWERS
Subject to the provisions of the California Nonprofit Public Benefit Corporation law and any limitations in the articles of incorporation and bylaws relating to action required or permitted to be taken for this corporation, the activities and affairs of this corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the Board of Directors.
SECTION 3. DUTIES
It shall be the duty of the directors to:
- Perform any and all duties imposed on them collectively or individually by law, by the articles of incorporation of this corporation, or by these bylaws;
- Appoint and remove, employ and discharge, and, except as otherwise provided in these bylaws, prescribe the duties and fix the compensation, if any, of all officers, agents, and employees of the corporation;
- Supervise all officers, agents, and employees of the corporation to assure that their duties are performed properly;
- Meet at such times and places as required by these bylaws;
- Register their addresses with the secretary of the corporation and notices of meetings mailed or emailed to them at such addresses shall be valid notices thereof.
SECTION 4. TERMS OF OFFICE
Each director shall serve for a three (3) year term and shall hold office until the next meeting for the appointment of the Board of Directors as specified in these bylaws, pursuant to their term, and until his or her successor is appointed and qualified.
SECTION 5. COMPENSATION
Directors shall serve without compensation. However, they shall be allowed reasonable advancement or reimbursement of expenses incurred in the performance of their regular duties as specified in Section 3 of this Article. Directors may not be compensated for rendering services to the corporation in any capacity other than director unless such other compensation is reasonable and is allowable under the provisions of Section 6 of this Article. Any payments to directors shall be approved in advance in accordance with this corporation’s Conflict of Interest policy, as set forth in Article 9 of these bylaws.
SECTION 6. RESTRICTION REGARDING INTERESTED DIRECTORS
Notwithstanding any other provision of these bylaws, not more than forty-nine percent (49%) of the persons serving on the board may be interested persons. For purposes of this Section, “interested persons” means either:
- Any person currently being compensated by the corporation for services rendered it within the previous twelve (12) months, whether as a full- or part-time officer or other employee, independent contractor, or otherwise, excluding any reasonable compensation paid to a director as director; or
- Any brother, sister, ancestor, descendant, spouse, brother-in-law, sister-in-law, son-in-law, daughter-in-law, mother-in-law, or father-in-law of any such person.
Meetings shall be held at such place within or without the State of California which has been designated from time to time by resolution of the Board of Directors.
Directors shall make every reasonable effort to attend Board Meetings in person, however, any meeting, regular or special, may be held by conference telephone, electronic video screen communication, or other communications equipment.
Participation in a meeting through use of electronic video screen communication or other communications equipment constitutes presence in person at that meeting if all of the following apply:
Each director participating in the meeting can communicate with all of the other directors concurrently;
Each director is provided the means of participating in all matters before the board, including, without limitation, the capacity to propose, or to interpose an objection to, a specific action to be taken by the corporation; and
The corporation adopts and implements some means of verifying
- that all persons participating in the meeting are directors of the corporation or are otherwise entitled to participate in the meeting, and
- that all actions of, or votes by, the board are taken and cast only by directors and not by persons who are not directors.
SECTION 7. REGULAR AND ANNUAL MEETINGS
Regular meetings of directors shall be held on the second and fourth Wednesday of the month at 7:00 PM, unless rescheduled by board consent at least 24 hours before the regularly scheduled meeting, in which event the regular meeting shall be held at another time and place as determined by the Board of Directors.
At the annual meeting of directors held on the second Wednesday of March, directors shall be appointed by the Board of Directors in accordance with this section. Cumulative voting by directors for the election of directors shall not be permitted. The candidates receiving the highest number of votes up to the number of directors to be elected shall be elected. Each director shall cast one vote, with voting being by ballot only.
SECTION 8. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by any director, with consent of the majority of the board, and such meetings shall be held at the place, within or without the State of California, designated by the person or persons calling the meeting.
SECTION 9. NOTICE OF MEETINGS
Regular meetings of the board may be held without notice. Special meetings of the board shall be held upon four (4) days’ notice by first-class mail or forty-eight (48) hours’ notice delivered by email. If sent by mail or email, the notice shall be deemed to be delivered on its deposit in the mail or on its sent date if delivered by email. Such notices shall be addressed to each director at his or her address as shown on the books of the corporation. Notice of time and place of adjourned meeting shall be given of any adjourned regular or special meeting to directors absent from the original meeting.
SECTION 10. CONTENTS OF NOTICE
Notice of meetings not herein dispensed with shall specify the place, day, and hour of the meeting. The purpose of any board meeting need not be specified in the notice.
SECTION 11. WAIVER OF NOTICE AND CONSENT TO HOLDING MEETINGS
The transactions of any meeting of the board, however called and noticed or wherever held, are as valid as though the meeting had been duly held after proper call and notice, provided a quorum, as hereinafter defined, is present and provided that either before or after the meeting each director not present signs a waiver of notice, a consent to holding the meeting, or an approval of the minutes thereof. All such waivers, consents, or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.
SECTION 12. QUORUM FOR MEETINGS
A quorum shall consist of more than one-half (1/2) of directors.
Except as otherwise provided in these bylaws or in the articles of incorporation of this corporation, or by law, no business shall be considered by the board at any meeting at which a quorum, as hereinafter defined, is not present, and the only motion which the chair shall entertain at such meeting is a motion to adjourn. However, a majority of the directors present at such meeting may adjourn from time to time until the time fixed for the next regular meeting of the board.
When a meeting is adjourned for lack of a quorum, it shall not be necessary to give any notice of the time and place of the adjourned meeting or of the business to be transacted at such meeting, other than by announcement at the meeting at which the adjournment is taken, except as provided in Section 10 of this Article.
The directors present at a duly called and held meeting at which a quorum is initially present may continue to do business notwithstanding the loss of a quorum at the meeting due to a withdrawal of directors from the meeting, provided that any action thereafter taken must be approved by at least a majority of the required quorum for such meeting or such greater percentage as may be required by law, or the articles of incorporation or bylaws of this corporation.
SECTION 13. POLICY OF DECISION MAKING FOR BOARD ACTION
Board decisions and resolutions require a 2/3 majority of voting members present. Every act or decision done or made is made according to the provisions of the California Nonprofit Public Benefit Corporation Law, particularly those provisions relating to appointment of committees (Section 5212), approval of contracts or transactions in which a director has a material financial interest (Section 5233), and indemnification of directors (Section 5238e), and as such laws may require a greater percentage or different voting rules for approval of a matter by the board.
SECTION 14. CONDUCT OF MEETINGS
Meetings shall be governed by rules established from time to time by the Board, insofar as such rules are consistent with and not in conflict with these bylaws, with the articles of incorporation of this corporation, and with provisions of law.
SECTION 15. ACTION BY UNANIMOUS WRITTEN CONSENT WITHOUT MEETING
Any action required, or permitted to be taken by the Board of Directors under any provision of law may be taken without a meeting, if all members of the board shall individually or collectively consent, in accordance with Article 3 Section 14 in writing to such action. Email is an acceptable form of consent in writing for such board actions. For the purposes of this Section only, “all members of the board” shall not include any “interested director” as defined in Section 5233 of the California Nonprofit Public Benefit Corporation Law. Such written consent or consents shall be filed with the minutes of the proceedings of the board. Such action by written consent shall have the same force and effect as the unanimous vote of the directors. Any certificate or other document filed under any provision of law which relates to action so taken shall state that the action was taken by unanimous written consent of the Board of Directors without a meeting and that the bylaws of this corporation authorize the directors to so act, and such statement shall be prima facie evidence of such authority.
SECTION 16. VACANCIES
Vacancies on the Board of Directors shall exist (1) on the death, resignation, or removal of any director, and (2) whenever the number of authorized directors is increased.
The Board of Directors may declare vacant the office of a director who has been declared of unsound mind by a final order of court, or convicted of a felony, or been found by a final order or judgment of any court to have breached any duty under Section 5230 and following sections of the California Nonprofit Public Benefit Corporation Law.
Directors may be removed without cause by unanimous consent of all other directors then in office.
Any director may resign effective upon giving written notice to the chairperson of the board, the president, the secretary, or the Board of Directors, unless the notice specifies a later time for the effectiveness of such resignation. No director may resign if the corporation would then be left without a duly elected director or directors in charge of its affairs, except upon notice to the attorney general.
Vacancies on the board may be filled by the selection of the directors currently in office.
A person selected to fill a vacancy as provided by this Section shall hold office until the next annual selection of the Board of Directors or until his or her death, resignation, or removal from office. However, if, after the death, resignation or removal of a director, at least seven (7) directors are currently serving, as provided in Article 3, Section 1 of these bylaws, the board may elect not to fill the vacancy.
SECTION 17. NONLIABILITY OF DIRECTORS
The directors shall not be personally liable for the debts, liabilities, tax obligations, or other obligations of the corporation.
SECTION 18. INDEMNIFICATION BY CORPORATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS
To the extent that a person who is, or was, a director, officer, employee, or other agent of this corporation has been successful on the merits in defense of any civil, criminal, administrative, or investigative proceeding brought to procure a judgment against such person by reason of the fact that he or she is, or was, an agent of the corporation, or has been successful in defense of any claim, issue, or matter, therein, such person shall be indemnified against expenses actually and reasonably incurred by the person in connection with such proceeding.
If such person either settles any such claim or sustains a judgment against him or her, then indemnification against expenses, judgments, fines, settlements, and other amounts reasonably incurred in connection with such proceedings shall be provided by this corporation but only to the extent allowed by, and in accordance with the requirements of, Section 5238 of the California Nonprofit Public Benefit Corporation Law.
SECTION 19. INSURANCE FOR CORPORATE AGENTS
The Board of Directors may adopt a resolution authorizing the purchase and maintenance of insurance on behalf of any agent of the corporation (including a director, officer, employee, or other agent of the corporation) against any liability other than for violating provisions of law relating to self-dealing (Section 5233 of the California Nonprofit Public Benefit Corporation Law) asserted against or incurred by the agent in such capacity or arising out of the agent’s status as such, whether or not the corporation would have the power to indemnify the agent against such liability under the provisions of Section 5238 of the California Nonprofit Public Benefit Corporation Law.
SECTION 1. NUMBER OF OFFICERS
The officers of the corporation shall be a president, a corporate secretary, and a chief financial officer who shall be designated the treasurer. The corporation may also have, as determined by the Board of Directors, a chairperson of the board, one or more vice presidents, assistant secretaries, assistant treasurers, or other officers. Any number of offices may be held by the same person, except that neither the secretary nor the treasurer may serve as the president or chairperson of the board.
SECTION 2. QUALIFICATION, APPOINTMENT, AND TERM OF OFFICE
Any person may serve as an officer of this corporation. Officers shall be appointed by the Board of Directors, at any time, and each officer shall hold office until he or she resigns, is removed, or is otherwise disqualified to serve, or until his or her successor shall be appointed and qualified, whichever occurs first.
SECTION 3. SUBORDINATE OFFICERS
The Board of Directors may appoint such other officers or agents as it may deem desirable, and such officers shall serve such terms, have such authority, and perform such duties as may be prescribed from time to time by the Board of Directors.
SECTION 4. REMOVAL AND RESIGNATION
The Board of Directors may remove any officer, either with or without cause, at any time. Any officer may resign at any time by giving written notice to the Board of Directors or to the president or secretary of the corporation. Any such resignation shall take effect at the date of receipt of such notice or at any later date specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. The above provisions of this Section shall be superseded by any conflicting terms of a contract, which has been approved or ratified by the Board of Directors relating to the employment of any officer of the corporation.
SECTION 5. VACANCIES
Any vacancy caused by the death, resignation, removal, disqualification, or otherwise, of any officer shall be filled by the Board of Directors. In the event of a vacancy in any office other than that of president, such vacancy may be filled temporarily by appointment by the president until such time as the board shall fill the vacancy. Vacancies occurring in offices of officers appointed at the discretion of the board may or may not be filled as the board shall determine.
SECTION 6. DUTIES OF PRESIDENT
The president shall be the chief executive officer of the corporation and shall perform those duties assigned to said officer by the Board of Directors. He or she shall perform all duties incident to his or her office and such other duties as may be required by law, by the articles of incorporation of this corporation, or by these bylaws, or which may be prescribed from time to time by the Board of Directors. Unless another person is specifically appointed as chairperson of the Board of Directors, he or she shall preside at all meetings of the Board of Directors. Except as otherwise expressly provided by law, by the articles of incorporation, or by these bylaws, he or she shall, in the name of the corporation, execute such deeds, mortgages, bonds, contracts, checks, or other instruments, which may from time to time be authorized by the Board of Directors. These duties may be assigned to additional people by resolution of the board.
SECTION 7. DUTIES OF SECRETARY
The secretary shall:
Certify and keep the current copy of these bylaws as amended or otherwise altered to date.
Keep at such place as the board may determine, a book of minutes of all meetings of the directors, and, if applicable, meetings of committees of directors and of members, recording therein the time and place of holding, whether regular or special, how called, how notice thereof was given, the names of those present or represented at the meeting, and the proceedings thereof.
Ensure that the minutes of meetings of the corporation, any written consents approving action taken without a meeting, and any supporting documents pertaining to meetings, minutes, and consents shall be contemporaneously recorded in the corporate records of this corporation. “Contemporaneously” in this context means that the minutes, consents, and supporting documents shall be recorded in the records of this corporation by the later of (1) the next meeting of the board, committee, membership, or other body for which the minutes, consents, or supporting documents are being recorded, or (2) sixty (60) days after the date of the meeting or written consent.
See that all notices are duly given in accordance with the provisions of these bylaws or as required by law.
Exhibit at all reasonable times to any director of the corporation, or to his or her agent or attorney, on request therefore, the bylaws, and the minutes of the proceedings of the directors of the corporation.
In general, perform all duties incident to the office of secretary and such other duties as may be required by law, by the articles of incorporation of this corporation, or by these bylaws, or which may be assigned to him or her from time to time by the Board of Directors.
SECTION 8. DUTIES OF TREASURER
Subject to the provisions of these bylaws relating to the “Execution of Instruments, Deposits, and Funds,” the treasurer shall:
Have charge and custody of, and be responsible for, all funds and securities of the corporation, and deposit all such funds in the name of the corporation in such banks, trust companies, or other depositories as shall be selected by the Board of Directors.
Receive, and give receipt for, monies due and payable to the corporation from any source whatsoever.
Disburse, or cause to be disbursed, the funds of the corporation as may be directed by the Board of Directors, taking proper vouchers for such disbursements.
Keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the corporation’s properties and business transactions, including accounts of its assets, liabilities, receipts, disbursements, gains, and losses.
Exhibit at all reasonable times the books of account and financial records to any director of the corporation, or to his or her agent or attorney, on request therefor.
Render to the president and directors, whenever requested, an account of any or all of his or her transactions as treasurer and of the financial condition of the corporation.
Prepare, or cause to be prepared, and certify, or cause to be certified, the financial statements to be included in any required reports.
In general, perform all duties incident to the office of treasurer and such other duties as may be required by law, by the articles of incorporation of the corporation, or by these bylaws, or which may be assigned to him or her from time to time by the Board of Directors.
SECTION 9. COMPENSATION
The salaries of the officers, if any, shall be fixed from time to time by resolution of the Board of Directors, and no officer shall be prevented from receiving such salary by reason of the fact that he or she is also a director of the corporation, provided, however, that such compensation paid a director for serving as an officer of this corporation shall only be allowed if permitted under the provisions of Article 3, Section 6, of these bylaws. In all cases, any salaries received by officers of this corporation shall be reasonable and given in return for services actually rendered for the corporation which relate to the performance of the charitable or public purposes of this corporation. All officer salaries shall be approved in advance in accordance with this corporation’s conflict of interest policy, as set forth in Article 9 of these bylaws.
SECTION 1. EXECUTIVE COMMITTEE OF THE BOARD
The Board of Directors may, as per Article 3 section 14, designate two (2) or more of its members (who may also be serving as officers of this corporation) to constitute an executive committee of the board and delegate to such committee any of the powers and authority of the board in the management of the business and affairs of the corporation, except with respect to:
- The filling of vacancies on the board or on any committee that has the authority of the board
- The fixing of compensation of the directors for serving on the board or on any committee
- The amendment or repeal of bylaws or the adoption of new bylaws
- The amendment or repeal or any resolution of the board which by its express terms is not so amendable or repealable
- The appointment of committees of the board or the members thereof
- The expenditure of corporate funds to support a nominee for director after there are more people nominated for director than can be elected
- The approval of any transaction to which this corporation is a party and in which one or more of the directors has a material financial interest, except as expressly provided in Section 5233(d)(3) of the California Nonprofit Public Benefit Corporation Law.
By a majority vote of board members then in office and not part of the executive committee, the board may at any time revoke any or all of the authority so delegated. The committee shall keep regular minutes of its proceedings, cause them to be filed with the corporate records, and report the same to the board from time to time as the board may require.
SECTION 2. OTHER COMMITTEES
The corporation shall have such other committees as may from time to time be designated by resolution of the Board of Directors. Such other committees may consist of persons who are not also members of the board. These additional committees shall only act in an advisory capacity to the board and shall be clearly titled as “advisory” committees.
By a majority vote of board members then in office and not part of the advisory committee, the board may disband any such committee.
SECTION 3. MEETINGS AND ACTION OF COMMITTEES
Meetings and action of executive committees shall be governed by, noticed, held, and taken in accordance with the provisions of these bylaws concerning meetings of the Board of Directors, with such changes in the context of such bylaw provisions as are necessary to substitute the committee and its members for the Board of Directors and its members, except that the time for regular meetings of committees may be fixed by resolution of the Board of Directors or by the committee. The Board of Directors may also fix the time for special meetings of committees. The Board of Directors may also adopt rules and regulations pertaining to the conduct of meetings of committees to the extent that such rules and regulations are not inconsistent with the provisions of these bylaws.
Advisory committee may operate as the member of the committee agree and as approved by the board
EXECUTION OF INSTRUMENTS, DEPOSITS, AND FUNDS
SECTION 1. EXECUTION OF INSTRUMENTS
The Board of Directors, except as otherwise provided in these bylaws, may by resolution authorize any officer or agent of the corporation to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. Unless so authorized, no Member of the board, 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 monetarily for any purpose or in any amount.
SECTION 2. DEPOSITS
All funds of the corporation shall be deposited from time to time to the credit of the corporation in such banks, trust companies, or other depositories as the Board of Directors may select.
SECTION 3. GIFTS
The Board of Directors may accept on behalf of the corporation any contribution, gift, bequest, or devise for the charitable or public purposes of this corporation.
CORPORATE RECORDS, REPORTS, AND SEAL
SECTION 1. MAINTENANCE OF CORPORATE RECORDS
The corporation shall maintain:
- Minutes of all meetings of directors and executive committees, indicating the time and place of holding such meetings, whether regular or special, how called, the notice given, and the names of those present and the proceedings thereof
- Adequate and correct books and records of account, including accounts of its properties and business transactions and accounts of its assets, liabilities, receipts, disbursements, gains, and losses;
- A copy of the corporation’s articles of incorporation and bylaws as amended to date, which shall be open to public inspection at all reasonable times.
SECTION 2. CORPORATE SEAL
The Board of Directors may adopt, use, and at will alter, a corporate seal. Failure to affix the seal to corporate instruments, however, shall not affect the validity of any such instrument.
SECTION 3. DIRECTORS’ INSPECTION RIGHTS
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 4. RIGHT TO COPY AND MAKE EXTRACTS
Any inspection under the provisions of this Article may be made in person or by agent or attorney and the right to inspection includes the right to copy and make extracts.
SECTION 5. ANNUAL REPORT
The board shall cause an annual report to be furnished not later than one hundred and twenty (120) days after the close of the corporation’s fiscal year to all directors of the corporation. The report shall contain the following information in appropriate detail:
- The assets and liabilities, including the trust funds, of the corporation as of the end of the fiscal year;
- The principal changes in assets and liabilities, including trust funds, during the fiscal year;
- The revenue or receipts of the corporation, both unrestricted and restricted to particular purposes, for the fiscal year;
- The expenses or disbursements of the corporation, for both general and restricted purposes, during the fiscal year;
- Any information required by Section 6 of this Article.
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 statements were prepared without audit from the books and records of the corporation.
The fiscal year of the corporation shall begin on the First Day of April and end on the Last day of March in each year.
CONFLICT OF INTEREST AND COMPENSATION APPROVAL POLICIES
SECTION 1. PURPOSE OF CONFLICT OF INTEREST POLICY
The purpose of this conflict of interest policy is to protect this tax-exempt corporation’s interest when it is contemplating entering into a transaction or arrangement that might benefit the private interest of an officer or director of the corporation or any “disqualified person” as defined in Section 4958(f)(1) of the Internal Revenue Code and as amplified by Section 53.4958-3 of the IRS Regulations and which might result in a possible “excess benefit transaction” as defined in Section 4958(c)(1)(A) of the Internal Revenue Code and as amplified by Section 53.4958 of the IRS Regulations. This policy is intended to supplement but not replace any applicable state and federal laws governing conflict of interest applicable to nonprofit and charitable organizations.
SECTION 2. DEFINITIONS
Any director, principal officer, member of a committee with governing board delegated powers, or any other person who is a “disqualified person” as defined in Section 4958(f)(1) of the Internal Revenue Code and as amplified by Section 53.4958-3 of the IRS Regulations, who has a direct or indirect financial interest, as defined below, is an interested person.
A person has a financial interest if the person has, directly or indirectly, through business, investment, or family:
- an ownership or investment interest in any entity with which the corporation has a transaction or arrangement,
- a compensation arrangement with the corporation or with any entity or individual with which the corporation has a transaction or arrangement, or
- a potential ownership or investment interest in, or compensation arrangement with, any entity or individual with which the corporation is negotiating a transaction or arrangement.
Compensation includes direct and indirect remuneration as well as gifts or favors that are not insubstantial.
A financial interest is not necessarily a conflict of interest. Under Section 3, paragraph b, a person who has a financial interest may have a conflict of interest only if the appropriate governing board or committee decides that a conflict of interest exists.
SECTION 3. CONFLICT OF INTEREST AVOIDANCE PROCEDURES
- Duty to Disclose. In connection with any actual or possible conflict of interest, an interested person must disclose the existence of the financial interest and be given the opportunity to disclose all material facts to the directors and members of committees with governing board delegated powers considering the proposed transaction or arrangement.
- Determining Whether a Conflict of Interest Exists. After disclosure of the financial interest and all material facts, and after any discussion with the interested person, he/she shall leave the governing board or committee meeting while the determination of a conflict of interest is discussed and voted upon. The remaining board or committee members shall decide if a conflict of interest exists.
- Procedures for Addressing the Conflict of Interest:
- An interested person may make a presentation at the governing board or committee meeting, but after the presentation, at remaining boards’ discretion he/she shall leave the meeting during the discussion of, and the vote on, the transaction or arrangement involving the possible conflict of interest.
- The chairperson of the governing board or committee shall, if appropriate, appoint a disinterested person or committee to investigate alternatives to the proposed transaction or arrangement.
- After exercising due diligence, the governing board or committee shall determine whether the corporation can obtain with reasonable efforts a more advantageous transaction or arrangement from a person or entity, that would not give rise to a conflict of interest.
- If a more advantageous transaction or arrangement is not reasonably possible under circumstances not producing a conflict of interest, the governing board or committee shall determine by the disinterested directors whether the transaction or arrangement is in the corporation’s best interest, for its own benefit, and whether it is fair and reasonable. In conformity with the above determination, it shall make its decision as to whether to enter into the transaction or arrangement.
- If the governing board or committee has reasonable cause to believe a member has failed to disclose actual or possible conflicts of interest, it shall inform the member of the basis for such belief and afford the member an opportunity to explain the alleged failure to disclose.
- If, after hearing the member’s response and after making further investigation as warranted by the circumstances, the governing board or committee determines the member has failed to disclose an actual or possible conflict of interest, it shall take appropriate disciplinary and corrective action.
SECTION 4. RECORDS OF BOARD AND BOARD COMMITTEE PROCEEDINGS
The minutes of meetings of the governing board and all committees with board delegated powers shall contain:
- The names of the persons who disclosed or otherwise were found to have a financial interest in connection with an actual or possible conflict of interest, the nature of the financial interest, any action taken to determine whether a conflict of interest was present, and the governing board’s or committee’s decision as to whether a conflict of interest in fact existed.
- The names of the persons who were present for discussions and votes relating to the transaction or arrangement, the content of the discussion, including any alternatives to the proposed transaction or arrangement, and a record of any votes taken in connection with the proceedings.
SECTION 5. COMPENSATION APPROVAL POLICIES
A voting member of the governing board who receives compensation, directly or indirectly, from the corporation for services is precluded from voting on matters pertaining to that member’s compensation.
A voting member of any committee whose jurisdiction includes compensation matters and who receives compensation, directly or indirectly, from the corporation for services is precluded from voting on matters pertaining to that member’s compensation.
No voting member of the governing board or any committee whose jurisdiction includes compensation matters and who receives compensation, directly or indirectly, from the corporation, either individually or collectively, is prohibited from providing information to any committee regarding compensation.
When approving compensation for directors, officers and employees, contractors, and any other compensation contract or arrangement, in addition to complying with the conflict of interest requirements and policies contained in the preceding and following sections of this article as well as the preceding paragraphs of this section of this article, the board or a duly constituted compensation committee of the board shall also comply with the following additional requirements and procedures:
- the terms of compensation shall be approved by the board or compensation committee prior to the first payment of compensation.
- all members of the board or compensation committee who approve compensation arrangements must not have a conflict of interest with respect to the compensation arrangement as specified in IRS Regulation Section 53.4958-6(c)(iii), which generally requires that each board member or committee member approving a compensation arrangement between this organization and a “disqualified person” (as defined in Section 4958(f)(1) of the Internal Revenue Code and as amplified by Section 53.4958-3 of the IRS Regulations):
- Is not the person who is the subject of compensation arrangement, or a family member of such person;
- Is not in an employment relationship subject to the direction or control of the person who is the subject of compensation arrangement
- Does not receive compensation or other payments subject to approval by the person who is the subject of compensation arrangement
- Has no material financial interest affected by the compensation arrangement; and
- Does not approve a transaction providing economic benefits to the person who is the subject of the compensation arrangement, who in turn has approved or will approve a transaction providing benefits to the board or committee member.
- The board or compensation committee shall obtain and rely upon appropriate data as to comparability prior to approving the terms of compensation. Appropriate data may include the following:
- Compensation levels paid by similarly situated organizations, both taxable and tax-exempt, for functionally comparable positions. “Similarly situated” organizations are those of a similar size and purpose and with similar resources
- Availability of similar services in the geographic area of this organization
- Current compensation surveys compiled by independent firms
- Actual written offers from similar institutions competing for the services of the person who is the subject of the compensation arrangement.
As allowed by IRS Regulation 4958-6, if this organization has average annual gross receipts (including contributions) for its three prior tax years of less than $1 million, the board or compensation committee will have obtained and relied upon appropriate data as to comparability if it obtains and relies upon data on compensation paid by three comparable organizations in the same or similar communities for similar services.
- The terms of compensation and the basis for approving them shall be recorded in written minutes of the meeting of the board or compensation committee that approved the compensation. Such documentation shall include:
- the terms of the compensation arrangement and the date it was approved
- the members of the board or compensation committee who were present during debate on the transaction, those who voted on it, and the votes cast by each board or committee member
- the comparability data obtained and relied upon and how the data was obtained.
- If the board or compensation committee determines that reasonable compensation for a specific position in this organization or for providing services under any other compensation arrangement with this organization is higher or lower than the range of comparability data obtained, the board or committee shall record in the minutes of the meeting the basis for its determination.
- If the board or committee makes adjustments to comparability data due to geographic area or other specific conditions, these adjustments and the reasons for them shall be recorded in the minutes of the board or committee meeting.
- any actions taken with respect to determining if a board or committee member had a conflict of interest with respect to the compensation arrangement, and if so, actions taken to make sure the member with the conflict of interest did not affect or participate in the approval of the transaction (for example, a notation in the records that after a finding of conflict of interest by a member, the member with the conflict of interest was asked to, and did, leave the meeting prior to a discussion of the compensation arrangement and a taking of the votes to approve the arrangement).
- The minutes of board or committee meetings at which compensation arrangements are approved must be prepared before the later of the date of the next board or committee meeting or 60 days after the final actions of the board or committee are taken with respect to the approval of the compensation arrangements. The minutes must be reviewed and approved by the board and committee as reasonable, accurate, and complete within a reasonable period thereafter, normally prior to or at the next board or committee meeting following final action on the arrangement by the board or committee.
SECTION 6. ANNUAL STATEMENTS
Each director, principal officer, and member of a committee with governing board delegated powers shall annually sign a statement which affirms such person:
- has received a copy of the conflicts of interest policy,
- has read and understands the policy,
- has agreed to comply with the policy, and
- understands the corporation is charitable and in order to maintain its federal tax exemption it must engage primarily in activities which accomplish one or more of its tax-exempt purposes.
SECTION 7. PERIODIC REVIEWS
To ensure the corporation operates in a manner consistent with charitable purposes and does not engage in activities that could jeopardize its tax-exempt status, periodic reviews shall be conducted. The periodic reviews shall, at a minimum, include the following subjects:
- Whether compensation arrangements and benefits are reasonable, based on competent survey information, and the result of arm’s-length bargaining.
- Whether partnerships, joint ventures, and arrangements with management organizations conform to the corporation’s written policies, are properly recorded, reflect reasonable investment or payments for goods and services, further charitable purposes, and do not result in inurement, impermissible private benefit, or in an excess benefit transaction.
SECTION 8. USE OF OUTSIDE EXPERTS
When conducting the periodic reviews as provided for in Section 7, the corporation may, but need not, use outside advisors. If outside experts are used, their use shall not relieve the governing board of its responsibility for ensuring periodic reviews are conducted.
AMENDMENT OF BYLAWS
Subject to any provision of law applicable to the amendment of bylaws of public benefit nonprofit corporations, these bylaws, or any of them, including a bylaw specifying or changing the number of directors of this corporation, may be altered, amended, or repealed and new bylaws adopted by a two-thirds (2/3) super-majority vote of the Board of Directors.
AMENDMENT OF ARTICLES OF INCORPORATION
Subject to any provision of law applicable to the amendment of articles of incorporation of public benefit nonprofit corporations, the articles of incorporation, may be altered, amended, or repealed and new articles adopted by a two-thirds (2/3) super-majority vote of the Board of Directors.
PROHIBITION AGAINST SHARING CORPORATE PROFITS AND ASSETS
No director, officer, employee, or other person connected with this corporation, or any private individual, shall receive at any time any of the net earnings or pecuniary profit from the operations of the corporation, provided, however, that this provision shall not prevent payment to any such person of reasonable compensation for services performed for the corporation in effecting any of its public or charitable purposes, provided that such compensation is otherwise permitted by these bylaws and is fixed by resolution of the Board of Directors; and no such person or persons shall be entitled to share in the distribution of, and shall not receive, any of the corporate assets on dissolution of the corporation.
This corporation makes no provision for members; therefore, pursuant to Section 5310(b) of the Nonprofit Public Benefit Corporation Law of the State of California, all actions shall only require the approval of the Board of Directors, per Article 3 Section 14.
WRITTEN CONSENT OF DIRECTORS ADOPTING BYLAWS
We, the undersigned, are all of the persons acting as the initial directors of San Diego Collaborative Arts Project, a California nonprofit corporation, and, pursuant to the authority granted to the directors by these bylaws to take action by unanimous written consent without a meeting, consent to, and hereby do, adopt the foregoing bylaws, consisting of 40 pages, as the bylaws of this corporation.
Dated: April 9, 2014
Kristen Jen, Director
Shawn Hulsebos, Director
- Greg Davidson, Director
Christian N. Harrison, Director
Nicole Hickman, Director
Jake Holler, Director
Dean Koci, Director
Jennifer Giddens, Director
This is to certify that the foregoing is a true and correct copy of the bylaws of the corporation named in the title thereto and that such bylaws were duly adopted by the Board of Directors of said corporation on the date set forth below.
Dated: July 2, 2014
Nicole Hickman, Secretary