11-M-21 Reinstated and Amended SEDC By LawsORDINANCE 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 TIIE 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 dmectors of the Corporation, as set forth in the
Articles of Amendment:
50429378.2
Name Term to l;xnire
Ange]ine Galvez-Kiser
Tim Brown
Roy Richard, 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
I1/30/20I2
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 u•ue,
and such recitals are hereby made a part of this Ordinance for all piuposes 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, deteirnined, 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 fiom and after its final passage,
and it is so ordered.
[The remainder of this page intentionally IeJt blank)
50429378.2 2
PASSED ON FIRST READING on the 5°i day of July, 2011.
PASSED AND ADOPTED on second and final reading on the 12~h day of July, 2011.
CTI'Y OF SCHER,~Z ,TEXAS
ATTEST:
Ey:
c
ecretary
(SEAL OF TFIE CITY)
soaz9s~s.z S-1
EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF FORMATION
(see Attached)
50429375.2 A-I
EXIIBIT B
AMENDED AND RESTATED BYLAWS
(see Attached)
50429378.2 B-1
Corporations Section
P.O.Box 13697
Austin, Texas 78711-3697
y~PTE oF~
w
Z
Y
Office of the Secretary of State
July 14, 2011
Capitol Services Inc
P O Box 1831
Austin, TX 78767 USA
RE: "CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION"
File Number: 147790301
Hope Andrade
Secretary of State
It has been our pleasure to file the Restated Certificate of Formation for the referenced entity. Enclosed is
the certificate evidencing filing. Payment of the filing fee is acknowledged by this letter.
If we may be of fiuther service at any time, please let us know.
Sincerely,
Corporations Section
Business & Public Filings Division
(512)463-5555
Enclosure
Come visit us on the Internet at http://mvw.sos.state.tx.us/
Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-1-1 For Relay Services
Prepared by: Lisa Sariin TID: 10323 Document: 376953360002
Corporations Section y`~P.rg D~'),
P.O.Box 13697
Austin, Texas 78711-3697 x
F
Office of the Secretary of State
CERTIFICATE OF FILING
OF
Hope Andrade
Secretary of Sfate
"CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION"
147790301
The undersigned, as Secretary of State of Texas, hereby certifies that a Restated Certificate of Formation
for the above named domestic nonprofit corporation has been received in this office and has been found
to conform to the applicable provisions of law.
ACCORDINGLY, the undersigned, as Secretary of State, and by virtue of the authority vested in the
secretary by law, hereby issues this certificate evidencing filing effective on the date shown below.
Dated: 07/13/2011
Effective: 07!13/2011
E
,w . ~ ~„
H ~~~
Hope Andrade
Secretary of State
Come visit us on the Internet at http://www.sos.slate.tx.us/
Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-1-1 for Relay Services
Prepared by: Lisa Sartin TID: 10313 Document: 376953360002
F~LE®
An the®~t~ ®of Texas
Secretary
JUL 13 2011
AMENDED AND RESTATED COEF TIFICATE OF FORMATIO~V~r~Qr~~~o~5 SeCtlofl
CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORAT((I;;ON
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 Cl,
Texas Local Government Code, and such amended and restated certificate of formation and each
such amendment made by this emended 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 tn~entionally left blank)
40429377.1
AMENDED AND RESTATED
CERTIFICATE OF FORMATION
OF
CPfY 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 Cl, 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 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 forma 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 ewnomic development within the City and the State of Texas in order to eliminate
unemployment and under employment and to promote and enwurage 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 fast 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 pwsuant to sections 103 and 141 of the Internal Revenue
soaz93~~.t 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 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, wntracts and agreements shall be payable
solely and exclusively from 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 1'tivo
I}nancing
(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 fulfilhnent 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
(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
substantial]y to the effect that any grant, conveyance, transfer, mortgage, encumbrance, pledge or
assignment of property owned by the City is prohibited.
Article Sue
No Members
The Corporation has no members and is a nonstock corporation.
Article Seven
Ssles 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 maybe 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
Fonnation by adopting such amendment at a meeting of the Board of Directors and delivering
such amendments to the Secretary of State; or
(2) The Councll may, at its sole discretion, and at any time, amend this Certificate of
Formation 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 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,
soo2vs~zi 4
t
i
Article Nine
Registered OBice and Registered AgenE
The street address of the registered office of the Corporation is 1400 Scheriz 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 tha CouncIl. The terms of the board of
directors named in this Amended and Restated Certificate of Formation shall be as follows:
Three (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
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 this Amended and Restated Certificate of Fomuition and the dates of
expiration of their terms as directors, are as follows:
F.apiration
Names Addresses of Term
Angelina I. T. Kiser 1400 Scheriz 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 Parkway 11/30/2012
Schertz, TX 78154
Holly Mc Breariy ~ 1400 Scherkz Parkway 11/30/2012
Schertz, TX 78154
Rosemary Scott 1400 Schertz Parkway 11/30!2012
Schertz, TX 78154
soaz~rzi
j 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 aze 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 Goverunent 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 boazd 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'l~velve
Council Approval
The City has specifically authorized the Corporation by Ordinance dated September 4,
2007 to act on its behalf to fiuther 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 pwsuant to paragraph (a) of this Article or pursuant to
paragraph (b) of Article Fifteen of this Certificate of Formation, in any manner or st any time
ssazv~rr.i
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 became subject to the tax on undistributed income imposed by section
4942 of the Code;
(2) shall not engage in any act ofself-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; apd
(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, end 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 duectors 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 currant expenses, together with all
amounts payable on fire contracts, agreements, bonds, notes, and other obligations of the
Corporation, and that all of the teens, provisions, and covenants therein have been met, then any
net earnings derived from sources other than the sales and use taxes collected for rho 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 SOS 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, persona] or mixed, such funds or property or
soa2vsrr.i
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 ofpage lntenttonally left blank)
50429377.1 8
Dated this \ \'~'~ day of July, 2011.
By
sy
CITY OF SCHERTZ, TEXAS
r
B ~ A A
City Secretary
50429377.1
CITY OF SCHERTZ ECONOMIC
DEVELOPMENT CORPORATION
ACKNOWLEDGEMENT
THE STATE OF TEXAS
COUNTY OF GUADALUPE §
On this the it~-t^ day of July, 2011, before me, the undersigned Notary Public, personally
appeared Harry Whitney, who aclmowledged to me Wat 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,
ERIN MATLOCK
~ eal) NoteryPublW
Stets ofTexsa
Comm. Exp.08-762014
~ ~~~
Notary Public of We State of Texas
50429377.1
ACKNOWLEDGEMENT
' THE STATE OF TEXAS §
COUNTY OF GUADALUPE §
On this the llkb,day of July, 2011, before me, the undersigned Notary Public, personally
appeared Tim Brown, who acknowledged to me that he is the Secretaryll'reasurer 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.
I IN WITNESS WHEREOF, I have hereon to set my hand and official seal.
•- Notary Public of the State of Texas
I ERIN HAYCOCK
NotaryPuMOo
`. Seal) state a/l§xae
4 Comm. Exp. 011ti2014
50429377.1
ACKNOWLEDGEMENT
THE STATE OF TEXAS
COUNTY OF GUADALUPE
On this the day of July, 2011, before me, the undersigned Notary Fublic, personally
appeared Brenda Dennis, who aclmowledged 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
NOlery Publb
(N. ~ Sfsle Of Texas
Comm. Eq,.031&2014
~-~... '-4y-~o.~~a e,l.a.
Notary Fublic of the State of Texas
50429377.1 12