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11-M-21 Certificate of Formation and Amended & Restated BylawsORDINANCE NO. 11-M-21 AN ORDINANCE AUTHORIZING AN AMENDED AND RESTATED CERTIFICATE OF FORMATION OF THE CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION; APPROVING AMENDED AND RESTATED BYLAWS OF SUCH CORPORATION; APPOINTING DIRECTORS TO THE BOARD OF DIRECTORS OF SUCH CORPORATION; AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City Council (the "Council") of the City of Schertz, Texas (the "City") has previously authorized the creation of the City of Schertz Economic Development Corporation (the "Corporation") in accordance with the Development Corporation Act, as amended, Title 12, Subtitle C1, Texas Local Government Code (the "Act"); and WHEREAS, the Board of Directors of the Corporation has, by Resolution dated July 11, 2011, approved amendments to the existing Articles of Incorporation (now known as a Certificate of Formation) and Bylaws of the Corporation and recommended those amendments to the Council; WHEREAS, the Council has reviewed and approved the proposed amendments to the existing Articles of Incorporation and Bylaws of the Corporation and has determined to authorize and approve such amendments; and WHEREAS, the Council desires to approve the members of the Board of Directors of the Corporation; and WHEREAS, the City hereby finds and determines that the adoption of this Ordinance is in the best interests of the citizens of the City; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The Council hereby approves an Amended and Restated Certificate of Formation (the "Articles of Amendment") for the Corporation (a copy of which is attached in substantially final form to this Ordinance as Exhibit A). The Council hereby authorizes the City Secretary to execute the Articles of Amendment and to cooperate with the Corporation in filing such Articles of Amendment with Texas Secretary of State, with any such changes therein which do not alter the substance thereof (as determined by the City Attorney) as may be required by the Secretary of State for• filing. Section 2. The Council hereby appoints the following persons for terms expiring on November 30 of the following years, as the directors of the Corporation, as set forth in the Articles of Amendment: 50429378.2 Name Term to >;xnire Angeline Galvez-Kiser Tim Brown Roy Richud, Jr. Hany Whitney Marvin Thomas Holly Mc Brearty Rosemary Scott 11/30/2011 11/30/2011 11/30/2011 11/30/2012 11/30/2012 11/30/2012 11/30/2012 Section 3. The City hereby approves amended Bylaws for the Corporation in the form attached hereto as Exhibit B. Section 4. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Governing Body. Section 5. All ordinances and resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters resolved herein. Section 6. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 7. If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the Council hereby declares that this Ordinance would have been enacted without such invalid provision. Section 8. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. Section 9. This Ordinance shall be in force and effect from and after its final passage, and it is so ordered. [The remainder of this page intentionally left blank) 50429378.2 PASSED ON FIRST READING on the 5"' day of July, 2011. PASSED AND ADOPTED on second and final reading on the 12`h day of July, 2011. ATTEST: _ c ecretary (SEAL OF THE CITY) CITY OF SCHE Z ,TEXAS r By: Mayor 50429378.2 S-1 EXHIBIT A AMENDED AND RESTATED CERTIFICATE OF FORMATION (see Attached) soaz93~s.z A-1 EXHIBIT B AMENDED AND RESTATED BYLAWS (see Attached) 50429378.2 $-1 AMENDED AND RESTATED CERTIFICATE OF FORMATION OF CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION 1. The City Council of the City of Schertz, Texas, the governing body of the city under whose auspices the City of Schertz Economic Development Corporation was created, pursuant to the Texas Non-Profit Corporation Act, as amended, and the Development Corporation Act, as amended, hereby adopts an amended and restated certificate of formation which accurately copies the original articles of incorporation and all amendments thereto that are in effect to date and as further amended by such amended and restated certificate of formation as hereinafter set forth and which contains no other change in any provision thereof. 2. Each such amendment made by this amended and restated certificate of formation has been effected in conformity with the provisions of the Texas Non-Profit Corporation Act, as amended, and the Development Corporation Act, as amended, specifically Title 12, subtitle C1, Texas Local Govermnent Code, and such amended and restated certificate of formation and each such amendment made by this amended and restated certificate of formation were duly approved by the City Council of the City of Schertz, Texas on July 12, 2011 in accordance with Section 501.310 of the Development Corporation Act, as amended. 3. The original articles of incorporation and all amendments and supplements thereto are hereby amended and superseded by the following amended and restated certificate of formation, which accurately copies the entire text thereof in effect and as amended to date and as herein amended, and this instrument contains no other change in any provision thereof: (remainder ofpage rnlenlionally left blank) 50429377.1 AMENDED AND RESTATED CERTIFICATE OF FORMATION OF CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION Article One Name The name of the Corporation is the "City of Schertz Economic Development Corporation". Article Two Authorization The Corporation is a nonprofit corporation and is an industrial development corporation under the Development Corporation Act, as amended, Title 12, Subtitle C1, Texas Local Government Code (the "Act") and shall be governed by Chapter 501, Chapter 502, and Chapter 505 of the Act, as now existing or as may be amended and an election held in the City on August 9, 1997. Article Three Duration Subject to the provisions of Article Thir4een hereof, the period of duration of the Corporation is perpetual. Article Four Purpose And Limitations (a) The Corporation is organized exclusively for the purposes of benefiting and accomplishing public purposes of, and to act on behalf of, the City, and the specific purposes for which the Corporation is organized. It may issue bonds, notes, and other forms of debt instruments, and it may acquire, maintain, lease, and sell property, and interests therein, on behalf of the City as authorized by Chapter 501, Chapter 502, and Chapter 505 of the Act to promote economic development within the City and the State of Texas in order to eliminate unemployment and under employment and to promote and encourage employment and the public welfare of, for, and on behalf of the City. The Corporation may finance and undertake any such project, subject to the regulations and limitations set forth in Chapter 501, Chapter 502, and Chapter 505 of the Act and an election held in the City on August 9, 1997. The Corporation is authorized to issue bonds as permitted by the Act, provided, however, no bonds may be issued by the Corporation and no project may be financed with bond proceeds or other revenues of the Corporation unless such bonds or projects are first approved by the Council. The Corporation is a constituted authority and a public instrumentality within the meaning of the Act, the regulations of the United States Treasury Department, and the rulings of the Internal Revenue Service prescribed and promulgated pursuant to sections 103 and 141 of the Internal Revenue 50429377.1 2 Code of 1986, as amended, and the Corporation is authorized to act on behalf of the City as provided in the Act and this Certificate of Formation. (b) In the fulfillment of its corporate purpose, the Corporation shall have and may exercise the powers described in paragraph (a) of this Article, together with all of the other powers granted to corporations that are incorporated under the Act and that are governed by Chapter 501, Chapter 502, and Chapter 505 thereof, and, to the extent not in conflict with the Act, the Corporation shall additionally have and may exercise all of the rights, powers, privileges, authorities, and functions given by the general laws of the State of Texas to nonprofit corporations under the Non-Profit Corporation Act (Texas Business Organizations Code, as amended). (c) The Corporation shall have the purposes and powers permitted by the Act pursuant to the authority granted in Article III, Section 52-a of the Texas Constitution, but the Corporation does not have, and shall not exercise the powers of sovereignty of the City, including the power to tax (except for the power to receive and use the sales and use taxes specified in Chapter 501, Chapter 502, and Chapter 505 of the Act) and the police power, except that the Corporation shall have and may exercise the power of eminent domain when the exercise thereof is approved by the Council and to the extent allowed by the City Charter. However, for the purposes of the Texas Tort Claims Act, as amended (Subchapter A, Chapter 101, Texas Civil Practice and Remedies Code), the Corporation is a governmental unit, and its actions are governmental functions. (d) No bonds, notes, or other debt instruments or other obligations, contracts, or agreements of the Corporation are or shall ever be deemed to be or constitute the contracts, agreements, bonds, notes, or other debt instruments or other obligations ol• the lending of credit, or• a grant of the public money or• things of value, of, belonging to, or• by the State of Texas, the City, or any other political corporation, subdivision or agency of the State of Texas, or a pledge of the faith and credit of any of them. Any and all of such contracts, agreements, bonds, notes, and other debt instruments and other obligations, contracts and agreements shall be payable solely and exclusively fiom the revenues and funds received by the Corporation from the sources authorized by Chapter 501, Chapter 502, and Chapter 505 of the Act and from such other sources as may be otherwise lawfully available and belonging to the Corporation from time to time. Article Five Financing (a) Before the consummation of the initial delivery of any bonds, notes, or other forms of debt instruments, the Corporation shall obtain approval by the Council. (b) In the exercise of the powers of the Corporation, the Corporation may enter into loan, lease, trust, or other agreements as authorized by the Act that are necessary and appropriate to the fulfillment of the public purpose of the Corporation, all of which agreements, and the specific uses, and the methods of withdrawal and expenditure of the proceeds of the bonds, notes, or other debt instruments, must be included as a part of the approval process of the Council required by paragraph (a) above. 50429377.1 3 (c) In the exercise of the powers of the Corporation, the Corporation may not enter into any loan, lease, trust, or other agreement the effect of which would grant, convey, transfer, mortgage, encumber, pledge or assign a security interest or any other interest in any property owned by the City. Any agreement entered into by the Corporation shall contain language substantially to the effect that any grant, conveyance, transfer, mortgage, encumbrance, pledge or assignment of property owned by the City is prohibited. Article Six No Members The Corporation has no members and is a nonstock corpm~ation. Article Seven Sales Tax Upon receipt from the City of the proceeds of the sales and use tax imposed under Chapter 501, Chapter 502, and Chapter 505 of the Act, the Corporation may use the proceeds as permitted by the Act as now existing or as may be amended and this Certificate of Formation. Article Eight Amendment This Certificate of Formation may be amended at any time as provided in the Act, to make any changes and add any provisions which might have been included in this Certificate of Formation in the first instance or• as may be permitted by subsequent changes in the law. Any amendment may be accomplished in either of the following manners: (1) The members of the Board of Directors of the Corporation shall file with the Council a written application requesting approval of the amendments to this Certificate of Formation, specifying in such application the amendments proposed to be made. The Council shall consider such application and, if it shall, by ordinance, duly find and determine that it is advisable that the proposed amendments be made it shall approve the form of the proposed amendments. The Board of Directors of the Corporation may then amend this Certificate of Formation by adopting such amendment at a meeting of the Board of Directors and delivering such amendments to the Secretary of State; or• (2) The Council may, at its sole discretion, and at any time, amend this Certificate of Formation and alter or change the sh•ucture, organization, programs, or activities of the Corporation, or terminate or• dissolve the Corporation (subject to the provisions of the Act, and subject to any limitation provided by applicable constitutions and laws of the impairment of contracts entered into by the Corporation) by ordinance adopting the amendment to this Certificate of Formation or certificate of dissolution at a meeting of the Council, and delivering a certificate of amendment or dissolution to the Secretary of State, as provided in the Act. A restated Certificate of Formation may be filed with the Secretary of State as provided in the Act without the consent of the Council. soaz9s~zi 4 Article Nine Registered Office and Registered Agent The street address of the registered office of the Corporation is 1400 Schertz Parkway, Schertz, Texas 78154, and the name of its registered agent at that address is John C. Kessel. Article Ten Board of Directors; Officers (a) The affairs of the Corporation shall be managed by a board of directors which shall be composed of seven (7) persons appointed by the Council. The terms of the board of directors named in this Amended and Restated Certificate of Formation shall be as follows: Tluee (3) of the directors shall be appointed to terms expiring November 30, 2011, and four (4) of the directors shall be appointed to terms expiring November 30, 2012. Thereafter, the terms of directors shall be two (2) years, expiring on November 30 of odd numbered and even numbered years, respectively. Directors may be appointed to succeed themselves. Each director must be a resident and qualified elector of the City. No employee or officer of the City or• member of the Council may be a director. A majority of the entire membership of the board, including any vacancies, is a quorum. The board shall conduct all meetings within the boundazies of the City. (b) The names and street addresses of the persons who are to serve as the directors as of the effective date of this Amended and Restated Certificate of Formation and the dates of expiration of their terms as directors, are as follows: Expiration Names Addresses of Term Angelina I. T. Kiser 1400 Schertz Parkway 11/30/2011 Schertz, TX 78154 Tim Brown 1400 Schertz Parkway 11/30/2011 Schertz, TX 78154 Roy Richard, Jr. 1400 Schertz Parkway 11/30/2011 Schertz, TX 78154 Harry Whitney 1400 Schertz Parkway 11/30/2012 Schertz, TX 78154 Marvin Thomas 1400 Schertz Pazkway 11/30/2012 Schertz, TX 78154 Holly Mc Brearty 1400 Schertz Parkway 11/30/2012 Schertz, TX 78154 Rosemary Scott 1400 Schertz Parkway 11/30/2012 Schertz, TX 78154 50429377.1 5 Each director shall serve until a successor is appointed. Directors are removable by the Council at any time with or without cause. Any vacancy occurring on the board of directors (by reason of death, resignation, or otherwise) shall be filled by appointment by the Council of a person who shall hold office until the expiration of the term. (c) The directors shall serve without compensation, but they shall be reimbursed for their actual expenses incurred in the performance of their duties as directors. (d) The board of directors shall elect a president, vice president, secretary, and any other officers that the Corporation considers necessary, to serve as executive officers of the Corporation, as more specifically provided in the Corporation's Bylaws. The term of each officer's office shall expire on November 30 of each year. The City Manager, or• his designee, shall serve as the Executive Director of the Corporation to provide administrative support services for the Corporation, but the Executive Director shall not be a member of the board of directors. (e) Meetings of the board of directors are subject to the Texas Open Meetings Act, as amended (Texas Government Code, Chapter 551), and the Corporation is subject to the Texas Public Information Act, as amended (Texas Government Code, Chapter 552). Article Eleven Bylaws The Bylaws of the Corporation have been approved by the Council and shall be adopted by the Corporation's board of directors and shall, together with this Certificate of Formation, govern the initial affairs of the Corporation until and unless amended in accordance with the provisions of the Act and this Certificate of Formation. Article Twelve Council Approval The City has specifically authorized the Corporation by Ordinance dated September 4, 2007 to act on its behalf to further the public purposes stated in such Ordinance and this Certificate of Formation, and the City has by such Ordinance approved the Corporation's original Articles of Incorporation, as amended, and this Certificate of Formation. A copy of the Ordinance is on file among the permanent public records of the City and the Corporation. Article Thirteen Dissolution (a) The Corporation shall not be dissolved, and its business shall not be terminated, by act of the Council or otherwise, so long as the Corporation is obligated to pay any bonds, notes, or other obligations and unless the collection of the sales and use tax authorized by Chapter 501, Chapter 502 and Chapter 505 of the Act is eligible for termination in accordance with the provisions of Chapter 505 of the Act. (b) No action shall be taken pursuant to paragraph (a) of this Article or pursuant to paragraph (b) of Article Fifteen of this Certificate of Formation, in any manner or at any time 50429377.1 that would impair any contract, lease, right, or other obligation theretofore executed, granted, or incurred by the Corporation. Article Fourteen Not a Private Foundation If the Corporation is ever determined to be a private foundation within the meaning of section 509(a) of the Internal Revenue Code of 1986, as amended (the "Code"), the Corporation: (1) shall distribute its income for each taxable year at such time and in such manner as not to become subject to the tax on undistributed income imposed by section 4942 of the Code; (2) shall not engage in any act of self-dealing as defined in section 4941(d) of the Code. (3) shall not retain any excess business holdings as defined in section 4943(c) of the Code; (4) shall not make any investments in such manner as to subject it to tax under section 4944 of the Code; and (5) shall not make any taxable expenditures as defined in section 4945(d) of the Code. Article Fifteen Miscellaneous (a) No dividends shall ever be paid by the Corporation, and no part of its net earnings remaining after payment of its expenses and other obligations shall be distributed to or inure to be benefit of its directors or officers, or any individual, private firm, or private corporation or association, except in reasonable amounts for services rendered. (b) If, after the close of any fiscal year, the board of directors determines that sufficient provision has been made for the full payment of all current expenses, together with all amounts payable on the contracts, agreements, bonds, notes, and other obligations of the Corporation, and that all of the terms, provisions, and covenants therein have been met, then any net earnings derived from sources other than the sales and use taxes collected for the account of Corporation pursuant to Chapter 501, Chapter 502, and Chapter 505 of the Act thereafter accruing in connection with projects financed pursuant to Chapter 501, Chapter 502, and Chapter 505 of the Act, and lease payments received in connection with projects financed pursuant to Chapter 501, Chapter 502, and Chapter 505 of the Act shall be used solely for• the purposes permitted by Chapter 501, Chapter 502, and Chapter 505 of the Act and Article 4(a) of this Certificate of Formation. (c) If the Corporation ever should be dissolved when it has, or is entitled to, any interest in any funds or property of any kind, real, personal or mixed, such funds or property or soaz9a~zi 7 rights thereto shall not be transferred to private ownership, but shall be transferred and delivered to the City after satisfaction of debts and claims. (d) No part of the Corporation's activities shall consist of the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall not participate in any political campaign for or in opposition to any candidate for• public office. (remainder of page intentionally left blank) 50929377.1 Dated this \ \ ~'^ day of July, 2011. CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION By By CITY OF SCHERTZ, TEXAS B• / City Secretary 50429777.1 9 ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF GUADALUPE On this the t I ~~ day of July, 2011, before me, the undersigned Notary Public, personally appeared Harry Whitney, who acknowledged to me that he is the President of the City of Schertz Economic Development Corporation, and that he, as such official, being duly authorized to do so, executed the foregoing Amended and Restated Certificate of Formation of the City of Schertz Economic Development Corporation by signing his name in such capacity. IN WITNESS WHEREOF, I have hereon to set my hand and official seal. CMS `~'Y1~,~~Q.oc~-e Notary Public of the State of Texas ERIN MATLOCK * ~ eal) Notary Publlc Stete of Texae Comm. Exp.O&752074 50429377.1 ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF GUADALUPE On this the tlktnday of July, 2011, before me, the undersigned Notary Public, personally appeared Tim Brown, who acknowledged to me that he is the Secretary/Treasurer of the City of Schertz Economic Development Corporation, and that he, as such official, being duly authorized to do so, executed the foregoing Amended and Restated Certificate of Formation of the City of Schertz Economic Development Corporation by signing his name in such capacity. IN WITNESS WHEREOF, I have hereon to set my hand and official seal. ERIN MATLOCK Seal NotaryPubllc State of texas Comm. Exp. 03.75-yp~q 50429377.1 C(~.-~,, SfY1c.~-~eo c.C-~ Notary Public of the State of Texas ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF GUADALUPE On this the ~ day of July, 2011, before me, the undersigned Notary Public, personally appeared Brenda Dennis, who acknowledged to me that she is the City Secretary of the City of Schertz, Texas, and that she, as such official, being duly authorized to do so, executed the foregoing Amended and Restated Certificate of Formation of the City of Schertz, Texas by signing her name in such capacity. IN WITNESS WHEREOF, I have hereon to set my hand and official seal. ERIN MATLOCK Notary Public (N ~) Slate of Texas Comm. Exp. 03162014 Notary Public of the State of Texas 50429377. I 12 AMENDED AND RESTATED BYLAWS OF CITY OF SCFIERTZ ECONOMIC DEVELOPMENT CORPORATION ARTICLE I PURPOSE AND POWERS Section 1.1. Puruose. The Corporation is incorporated for the purposes set forth in Article Four of its Certificate of Formation, as amended (the "Certificate of Formation"), the same to be accomplished on behalf of the City of Schertz, Texas (the "City ") as its duly constituted authority and instrumentality in accordance with the Development Corporation Act, as amended (Title 12, Subtitle C1, Texas Local Government Code) (the "Act"), and other applicable laws. Section 1.2. Powers. In the fulfillment of its corporate purposes, the Corporation shall be governed by Chapter 501, Chapter 502, and Chapter 505 of the Act and an election held in the City on August 9, 1997 (the "Election"), and shall have all the powers set forth and conferred in its Certificate of Formation, in the Act, and in other applicable law, subject to the limitations prescribed therein and herein and to the provisions thereof and hereof. ARTICLE II BOARD OF DIRECTORS Section 2.1. Powers, Number and Term of Office. (a) The property and affairs of the Corporation shall be managed and controlled by a Board of Directors (the "Board") under the guidance and direction of the City Council of the City (the "Council ") and, subject to the restrictions imposed by law, by the Certificate of Formation and by these Amended and Restated Bylaws (these "Bylaws"), the Board shall exercise all of the powers of the Corporation. (b) The Board shall consist of seven (7) directors, each of whom shall be appointed by the Council. (c) The directors constituting the Board shall be those directors named in the Certificate of Formation, as amended and restated on July 12; 2011. Successor directors shall have the qualifications, shall be of the classes of directors, and shall be appointed to the terms set forth in the Certificate of Formation. (d) Any director maybe removed from office by the Council at will. Section 2.2. Meetings of Directors. (a) The directors may hold their meetings at such place or places in the City as the Board may from time to time determine; provided, however, in the absence of any such determination by the Board, the meetings shall be held at the principal office of the Corporation as specified in Section 5.1 of these Bylaws. Regular meetings of the Board shall be held without the necessity of notice to directors at such times and places as shall be designated from time to time by the Board. Special meetings of the Board shall be held 50429380.1 -1- whenever called by the president, by a majority of the directors, by the Mayor of the City, or by a majority of the Council. (b) The secretary shall give notice to each director of each special meeting in person or my mail, telephone or telegraph, at least two (2) hours before the meeting. Unless otherwise indicated in the notice thereof, any and all matters pertaining to the purposes of the Corporation may be considered and acted upon at a special meeting. At any meeting at which every director shall be present, even though without any notice, any matter pertaining to the purpose of the Corporation maybe considered and acted upon consistent with applicable law. (c) Whenever any notice is required to be given to the Board, such notice shall be deemed to be sufficient if given by depositing the same in a post office box in a sealed postpaid wrapper addressed to the person entitled thereto at his or her post office address as it appears on the books of the Corporation, and such notice shall be deemed to have been given on the day of such mailing. Attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except attendance of a director at a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called or convened. Neither the business to be transacted at nor•the purpose of any regular or special meeting of the Board need be specified in the notice to directors or• waiver of notice of such meeting, unless required by the Board. A waiver of notice in writing, signed by the person or persons entitled to said notice, whether before or• after the time stated therein, shall be deemed equivalent to the giving of such notice. Section 2.3. Open Meetings Act. All meetings and deliberations of the Board shall be called, convened, held, and conducted, and notice shall be given to the public, in accordance with the Texas Open Meetings Act, as amended (Chapter 551, Texas Government Code) (the "Open Meetings Act"). Section 2.4. uorum. A majority of the entire membership of the Board shall constitute a quorum to conduct official business of the Corporation. The act of a majority of the Board of Directors present at a meeting at which a quorum is in attendance shall constitute the act of the Board and of the Corporation, unless the act of a greater number is required by law. Section 2.5. Conduct of Business. (a) At the meetings of the Board, matters pertaining to the business of the Corporation shall be considered in accordance with rules of procedure as from time to time prescribed by the Board. (b) The president shall preside at all meetings of the Board. In the absence of the president, the vice president shall preside. (c) The president shall be a voting member of the Board. (d) The secretary of the Corporation shall act as secretary of all meetings of the Board, but in the absence of the secretary, the presiding officer may appoint any person to act as secretary of the meeting. The treasurer and any assistant secretary may, at the option of the 50429380.1 _2_ Board, be employees of the City and each member of the Board with the exception of the president, vice president, ol• secretary, may be appointed as assistant secretaries; provided, however, that to the extent the treasurer or any assistant secretary is an employee of the City such person shall not be a member of the Board. Section 2.6. Committees of the Board. The Board may designate two (2) or more directors or other persons to constitute a committee (including an advisory committee) of the Board to exercise such authority, as approved by resolution of the Boald; provided, however, that all final, official actions of the Colporation may be exercised only by the Board. Each committee so designated shall keep 1•egular minutes of the transactions of its meetings and shall cause such minutes to be recorded in books kept for that purpose in the principal office of the Colpolation and any such meetings must be conducted in accordance with the provisions of the Open Meetings Act, if applicable. Section 2.7. Compensation of Directors. Directors shall not receive any salary or compensation for their services as directors. However, they shall be reimbm•sed for their actual expenses incurred in the performance of their official duties as directors. ARTICLE III OFFICERS Section 3.1. Titles and Terms of Office. (a) The officers of the Corporation shall be a president, a vice president, a secretary, and a treasurer, and such other officers as the Board may fiom time to time elect to fill a vacancy or as appointed by the Council. One person may hold more than one office, except that the president shall not hold the office of secretary. Initial officers shall serve for the terms disclosed in the Certificate of Formation. Thereafter, terms of office shall be for two (2) years with the term of office expiring on November 30 of each year. Upon the expiration of the terms, each officer shall have the right to be reappointed or reelected. (b) All officers shall be subject to removal from office at any time by a vote of a majority of the Council. (c) A vacancy in the office of any director shall be filled by a vote of a majority of the Council. The remaining directors may recommend to the Council a person to be named to fill any such vacancy. Section 3.2. Powers and Duties of the President. The president shall be the chief operating executive officer of the Corporation, and, subject to the authority of the Board, the president shall be in general charge of the properties and affairs of the Corporation and execute all contracts, conveyances, franchises, bonds, deeds, assignments, mortgages, notes, and other instruments in-the name of the Corporation. The president shall preside over the meetings of the Corporation. Section 3.3. Vice President. The vice president shall have such powers and duties as may be prescribed by the Board and shall exercise the powers of the president during that 50429380.1 -3- officer's absence or inability to act. Any action taken by the vice president in the performance of the duties of the president shall be conclusive evidence of the absence or inability to act of the president at the time such action was taken. Section 3.4. Treasurer. The treasurer shall be the chief fiscal officer of the Corporation, and shall have the responsibility to see to the handling, custody, and security of all funds and securities of the Corporation in accordance with these Bylaws. When necessary or proper, the treasurer may endorse and sign, on behalf of the Corporation, for collection or issuance, checks, notes, and other obligations in or drawn upon such bank, banks, or depositories as shall be designated by the Board consistent with these Bylaws. The treasurer shall see to the entry in the books of the Corporation full and accurate accounts of all money received and paid out on account of the Corporation. The treasurer shall, at the expense of the Corporation, give such bond for the faithful discharge of his/her duties in such form, and amount as the Board or the Council may require. All check writing authority will follow all applicable City policies concerning authorizations, signatures and disbursements. Section 3.5. Secretary. The secretary shall keep the minutes of all meetings of the Boazd and books provided for that purpose, shall give and serve all notices, may sign with the president in the name of the Corporation, and/or attest the signature thereto, all contracts, conveyances, fianchises, bonds, deeds, assignments, mortgages, notes, and other instruments of the Corporation, shall have charge of the corporate books, records, documents, and instruments, except the books of account and financial records and securities, and such other books and papers as the Board may direct, all of which shall at all reasonable times be open to public inspection upon application at the principal office of the Corporation during business hours, and shall in general perform all duties incident to the office of secretary subject to the control of the Board. Section 3.6. Executive Director. The City Manager, or his designee, will serve as the Executive Director of the Corporation to provide administrative support services for the Corporation and shall perform duties as prescribed by the Board and Council. The Executive Director shall not be a member of the Board. Section 3.7. General. The president, vice president, and the secretary shall be named from among the members of the Board. The treasurer and any assistant secretary may, at the option of the Board, be employees of the City. To the extent that the treasurer or any assistant secretary are employees of the City they shall not be members of the Board. The Executive Director shall retain legal counsel and financial advisors for the Corporation, subject to the approval of the majority of the Boaz~d. Section 3.8. Compensation. Officers who are members of the Boazd shall not receive any salary or compensation for their services, except that they shall be reimbursed for the actual expenses incurred in the performance of their official duties as officers. 50429380.1 _ 4 _ ARTICLE IV FUNCTIONAL CORPORATE DUTIES AND REQUIREMENTS Section 4.1. City of Scheltz Economic Development Comoration Plan. (a) It shall be the duty and obligation of the Board to finance and implement the City of Schertz Economic Development Corporation Plan subject to approval or disapproval by Council. (b) In carrying out its obligations under subsection (a), the Corporation shall be authorized to exercise all rights and powers granted under the Act, including, but not limited to Chapter 501, Chapter 502, and Chapter 505 of the Act. (c) The Board shall at least annually submit reports to the Council as to the status of its activities in carrying out its obligations under this Section. (d) Any and all agreements between the Corporation and other parties shall be authorized, executed, and approved, and delivered in accordance with applicable law. Section 4.2. Annual Corporate Budeet. Prior to the commencement of each fiscal year of the Corporation, the Board shall adopt a proposed budget of expected revenues from sources set out in Section 4.5 of this Article and proposed expenditures for• the next ensuing fiscal year. The budget shall contain such classifications and shall be in such form as may be prescribed from time to time by the Council. The budget shall not be effective until the same has been approved by the Council. Section 43. Books, Records, Audits. (a) The Corporation shall keep and properly maintain in accordance with generally accepting accounting principles, complete books, records, accounts, and financial statements pertaining to its corporate funds, activities, and affairs. (b) At the direction of the Council, the books, records, accounts, and financial statements of the Corporation may be maintained for the Corporation by the accountants, staff and personnel of the City. (c) The Corporation, or the City if the option of subsection (b) is selected, shall cause its books, records, accounts, and financial statements to be studied at least once each fiscal year by an outside, independent auditing and accounting firm selected by Council and approved by the Board. Such an audit shall be at the expense of the Corporation. Section 4.4. Deposit and Investment of Corporation Funds. (a) All proceeds from loans or from the issuance of bonds, notes, or other debt instruments ("Obligations ") issued by the Corporation shall be deposited and invested as provided in the resolution, order, indenture, or other documents authorizing or relating to their execution or issuance. 50929380.1 -5- (b) Subject to the requirements of contracts, loan agreements, indentures, or other agreements securing Obligations, all other money of the Corporation, if any, shall be deposited, secured, and/or invested in the manner provided for the deposit, security, and/or investment of the public funds of the City. The Board, with Council approval, shall designate the accounts and depositories to be created and designated for such purposes, and the methods of withdrawal of funds therefrom for use by and for the purposes of the Corporation upon the signature of its treasurer and such other persons as the Board designates. The accounts, reconciliation, and investment of such funds and accounts shall be performed by the City Manager of the City, or his designee. Section 4.5. Expenditure of Corroorate Money. The sales and use taxes collected pursuant to Chapter 501, Chapter 502, and Chapter 505 of the Act and the proceeds fiom the investment of funds of the Corporation, the proceeds fiom the sale of property, revenues generated by any Projects as defined in Chapter 501, Chapter 502, and Chapter 505 of the Act and payable to the Corporation or any other source of revenues that are payable to the Corporation, and the proceeds derived from the sale of Obligations, may be expended by the Corporation for any of the purposes authorized by the Act, the Certificate of Formation, the City's Home Rule Charter, and the Election, subject to the following limitations: Expenditures that may be made from a fund created with the proceeds of Obligations, and expenditures of money derived from sources other than the proceeds of Obligations may be used for the purpose of financing or otherwise providing one or more Projects, as defined in Chapter 501, Chapter 502, and Chapter 505 of the Act and in accordance with the Election; All other proposed expenditures shall be made in accordance with and shall be set forth in the annual budget required by Section 4.2 or• in contracts meeting the requirements of Section 4.1(d) of this Article. Section 4.6. Issuance of Obli ations. No Obligations, including refunding obligations, shall be authorized or sold and delivered by the Corporation unless the Council approves such Obligations by action taken prior to the date of initial delivery of the Obligations to the initial purchasers thereof. ARTICLE V MISCELLANEOUS PROi~ISIONS Section 5.1. Princinal Office. (a) The principal office and the registered office of the Corporation shall be the registered office of the Corporation specified in the Certificate of Formation. (b) The Corporation shall have and shall continually designate a registered agent at its office, as required by the Act. Section 5.2. Fiscal Year. The fiscal year of the Corporation shall be the same as the fiscal year of the City. 50429380.1 -6- Section 5.3. Seal. The seal, if any, of the Corporation shall be determined by the Board. Section 5.4. Resienations. Any director or officer may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or, if no time is specified, at the time of its receipt by the president or secretary. The acceptance of resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Section 5.5. Approval or Advice and Consent of the Council. To the extent that these Bylaws refer to any approval by the City or refer to advice and consent by the Council, such advice and consent shall be evidenced by a certified copy of a resolution, ordinance, or motion duly adopted by the Council. Section 5.6. Services of City Staff and Officers. To the extent possible, the Corporation shall utilize the services and the staff employees of the City. All requests for staff time or inquiries of staff will be requested tlu~ough the City Manager's Office. Section 5.7. Indemnification of Directors Officers and Employees. (a) As provided in the Act, the Corporation is, for the proposes of the Texas Tort Claims Act, as amended (Subchapter A, Chapter 101, Texas Civil Practices and Remedies Code), a governmental unit and its actions are governmental functions. (b) The Corporation shall indemnify each and every member of the Board, its officers and its employees and each member of the Council and each employee of the City, to the fullest extent permitted by law, against any and all liability or expense, including attorneys fees, incurred by any of such persons by reason of any actions or omissions that may arise out of the sanctions and activities of the Corporation. The legal counsel for the Corporation is authorized to provide a defense for members of the Board, officers, and employees of the Corporation. ARTICLE VI EFFECTIVE DATE, AMENDMENTS Section 6.1. Effective Date. These Bylaws shall become effective upon the approval of these Bylaws by the Council. Section 6.2. Amendments to Certificate of Formation and Bvlaws. The Certificate of Formation of the Corporation and these Bylaws may be amended only in the manner provided in the Certificate of Formation and the Act. Adopted: July 12, 2011 50429380.( _ 7 _ A RESOLUTION BY THE BOARD OF DIRECTORS OF THE CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION AUTHORIZING AN AMENDED AND RESTATED CERTIFICATE OF FORMATION AND AMENDED AND RESTATED BYLAWS OF THE CORPORATION AND RECOMMENDING APPROVAL THEREOF BY THE CITY OF SCHERTZ, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the Board of Directors of the City of Schertz Economic Development Corporation has determined that it is in the best interest of the Corporation to amend and restate the existing Articles of Incorporation (now known as a Certificate of Formation) and Bylaws of the Corporation. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF SCHERTZ, ECONOMIC DEVELOPMENT CORPORATION THAT: Section 1. The Board of Directors hereby approves the Amended and Restated Certificate of Formation of the Corporation and the Amended and Restated Bylaws of the Corporation attached hereto as Exhibit A and Exhibit B, respectively, and recommends approval thereof by the City Council of the City of Schertz, Texas. The Resolution and the attached Exhibits shall be the required application to the City Council that the attached amended and restated documents be approved by the City Council. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a pal•t of the judgment and findings of the Board of Directors. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be conshued and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the Board of Directors hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. 50429519.1 Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this l l~h day of July, 2011. CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION ATTEST: ~~ Secret ry (SEAL) 50429519.1 EXHIBIT A AMENDED AND RESTATED CERTIFICATE OF FORMATION 50429519. I A_ ] EXHIBIT B AMENDED AND RESTATED BYLAWS saizvs i~. i B-1