2007M44-EDC/Bylaws
ORDINANCE NO.07 -M-44
AN ORDINANCE AUTHORIZING AMENDED AND RESTATED
ARTICLES OF INCORPORATION 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 of 1979,
as amended, Texas Revised Civil Statutes, Article 5190.6 (the "Act"); and
WHEREAS, the Council has reviewed and approved proposed amendments to the
Articles of Incorporation and Bylaws of the Corporation and has determined to authorize and
approve such amendments; and
WHEREAS, the Council desires to appoint directors to 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 Amended and Restated Articles of
Incorporation (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 Ramon Cook, Mark Roberts, and Roy
Richard for terms expiring on September 30, 2007 and Arthur Jones, Carl Douglas, Steve White,
and for terms expiring September 30, 2008, as the directors of the Corporation, as set
forth in the Articles of Amendment.
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
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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.
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PASSED ON FIRST READING on the 21st day of August, 2007.
PASSED AND ADOPTED on second and final reading on the ~day ofd~ '
2007.
By:
ATTEST:
t!2~~,~h~
(SEAL OF THE CITY)
I.
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S-I
20120168.2
EXHIBIT A
AMENDED AND RESTATED ARTICLES OF INCORPORATION
(see Attached)
A-I
AMENDED AND RESTATED ARTICLES OF INCORPORATION
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 Article 1396-4.06 of the Texas Non-Profit Corporation Act, as amended, and
Sections 17 and 20 of the Development Corporation Act of 1979, as amended, hereby adopts
amended and restated articles of incorporation which accurately copy the articles of
incorporation and all amendments thereto that are in effect to date and as further amended by
such amended and restated articles of incorporation as hereinafter set forth and which contain no
other change in any provision thereof.
2. Each such amendment made by these amended and restated articles of
incorporation has been effected in conformity with the provisions of the Texas Non-Profit
Corporation Act, as amended, and the Development Corporation Act of 1979, as amended, and
such amended and restated articles of incorporation and each such amendment made by these
amended and restated articles of incorporation were duly approved by the City Council of the
City of Schertz, Texas on September 4, 2007 in accordance with Sections 17(b) and 20( c) of the
Development Corporation Act of 1979, as amended.
3. The articles of incorporation and all amendments and supplements thereto are
hereby amended and superseded by the following amended and restated articles of incorporation,
which accurately copy 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:
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AMENDED AND REST A TED
ARTICLES OF INCORPORATION
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 of 1979, as amended (Texas Revised Civil Statutes
Article 5190.6) (the "Act") and shall be governed by Section 4B 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 provlSlons of Article Thirteen 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 Section 4B 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 Section 4B 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 Code of 1986, as amended, and the Corporation is authorized to act on behalf
of the City as provided in the Act and these Articles of Incorporation.
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(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
Section 4B 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 Texas Non-
Profit Corporation Act, as amended (Texas Revised Civil Statutes Article 1396-101, et seq.).
(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 Section 4B 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 or 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 from the revenues and funds received by the Corporation from the sources
authorized by Section 4B 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.
(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
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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 corporation.
Article Seven
Sales Tax
Upon receipt from the City of the proceeds of the sales and use tax imposed under
Section 4B of the Act, the Corporation may use the proceeds as permitted by the Act as now
existing or as may be amended and these Articles of Incorporation.
Article Eight
Amendment
These Articles of Incorporation 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 the Articles of
Incorporation 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 these Articles of
Incorporation, 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 these Articles of
Incorporation 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 these Articles of
Incorporation and alter or change the structure, 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 these
Articles of Incorporation or articles of dissolution at a meeting of the Council, and delivering
articles of amendment or dissolution to the Secretary of State, as provided in the Act. Restated
Articles of Incorporation may be filed with the Secretary of State as provided in the Act without
the consent of the Council.
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 Bierschwale.
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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 these Amended and Restated Articles of Incorporation shall be as follows:
Three (3) of the directors shall be appointed to terms expiring September 30, 2007 and four (4)
of the directors shall be appointed to terms expiring September 30, 2008 Thereafter, the terms of
directors shall be two (2) years, expiring on September 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 boundaries 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 these Amended and Restated Articles of Incorporation and the dates of
expiration of their terms as directors, are as follows:
Expiration
Names Addresses of Term
Ramon Cook 1400 Schertz Parkway 09/30/2007
Schertz, TX 78154
Mark Roberts 1400 Schertz Parkway 09/30/2007
Schertz, TX 78154
Roy Richard 1400 Schertz Parkway 09/30/2007
Schertz, TX 78154
Arthur Jones 1400 Schertz Parkway 09/30/2008
Schertz, TX 78154
Carl Douglas 1400 Schertz Parkway 09/30/2008
Schertz, TX 78154
Steve White 1400 Schertz Parkway 09/30/2008
Schertz, TX 78154
[Vacant] 1400 Schertz Parkway 09/30/2008
Schertz, TX 78154
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.
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(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 September 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
Open Records 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 these Articles of Incorporation,
govern the initial affairs of the Corporation until and unless amended in accordance with the
provisions of the Act and these Articles of Incorporation.
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 these
Articles of Incorporation, and the City has by such Ordinance, approved the Corporation's
Articles of Incorporation. 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 Councilor 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
Section 4B of the Act is eligible for termination in accordance with the provisions of Section
4B(i) 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 these Articles, in any manner or at any time 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:
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(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)
the Code.
shall not make any taxable expenditures as defined in section 4945( d) of
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 Section 4B of the Act thereafter accruing in connection with projects
financed pursuant to Section 4B of the Act, and lease payments received in connection with
projects financed pursuant to Section 4B of the Act shall be used solely for the purposes
permitted by Section 4B of the Act and Article 4(a) of these Articles.
(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
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.
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Dated this 4th day of September, 2007.
20120024.2
CITY OF SCHERTZ ECONOMIC
DEVELOPMENT CORPORATION
By:
By:
CITY OF SCHERTZ, TEXAS
By:
,
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City Secretary
8
ACKNOWLEDGEMENT
THE STATE OF TEXAS S
S
COUNTY OF GUADALUPE S
On this the -.aL day of September, 2007, before me, the undersigned Notary Public,
personally appeared c..(-'\r- \ C. Oou(. \~".l , who acknowledged to me that he is the
President of the City of Schertz Econo~ic Development Corporation, and that he, as such
official, being duly authorized to do so, executed the foregoing Amended and Restated Articles
of Incorporation 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.
L /'{\ € (~. ~L-A.r
Notary Public of the State of Texas
20120024.2
ACKNOWLEDGEMENT
THE STATE OF TEXAS ~
S
COUNTY OF GUADALUPE S
On this the c1f! day of January 2008, before me, the undersigned Notary Public,
personally appeared l:1"~:) () JU'.mGnV\.. , who acknowledged to me that he/she is the
Secretary of the City of Schertz Economic Development Corporation, and that he/she, as such
official, being duly authorized to do so, executed the foregoing Amended and Restated Articles
of Incorporation of the City of Schertz Economic Development Corporation by signing his/her
name in such capacity.
IN WITNESS WHEREOF, I have hereon to set my hand and official seal.
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MISTY M. NICHOLS
MY COMMISSION EXPIRES
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SCHERTZ 4B BOARD AMENDED ARTICLES OF INCORPORATION.doc
ACKNOWLEDGEMENT
THE STATE OF TEXAS S
S
COUNTY OF GUADALUPE S
On this the 3141ay of Jal}\lary 2008, before me, the undersigned Notary Public,
personally appeared "tB~ ~ , 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 Articles of Incorporation 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.
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/~/~~~~\ MARY l YBARRA
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(Notary Seal)
SCHERTZ 4B BOARD AMENDED ARTICLES OF INCORPORATION.doc
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