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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 20120168.2 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) 20120168.2 2 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. 20120168.2 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: (remainder of page intentionally left blank) 20120024.2 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. 20120024.2 2 (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 20120024.2 3 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. 20120024.2 4 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. 20120024.2 5 (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: 20120024.2 6 (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. (remainder of page intentionally left blank) 20120024.2 7 Dated this 4th day of September, 2007. 20120024.2 CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION By: By: CITY OF SCHERTZ, TEXAS By: , ,"""'\ : \ (, \ "'~ ~.~.- , (", , ....... ~_ L- "'-, -', 'II _ ~ ) :J ~,:,..""'J -( ." - \. ._"-~. \ \. X \.-\~ ) 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. ~~~...:.~~ I.. .;... ! : : ! ':.. ...~ .~ .....~....~ "r9r.,~,;" MISTY M. NICHOLS MY COMMISSION EXPIRES n May 3,2010 f ~1 ".I 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. .~~;;;.;....... /~/~~~~\ MARY l YBARRA ! . ('~ ) * I Notary Public \...~",,/ j StateofTexas ~ ~ \~~'E o""':"'~~l Commission Expires ~ .....-......... 05-01-2010 Notary ~iC the State of Texas (Notary Seal) SCHERTZ 4B BOARD AMENDED ARTICLES OF INCORPORATION.doc 11