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HomeMy WebLinkAboutItem 06 - 4B Economic Development CorporationCreation of the Grapevine 4B Economic Development Corporation Following approval by the City Council, the Articles of Incorporation will be submitted to the Secretary of State of the State of Texas for certification. After the Secretary of State has certified the Articles of Incorporation and notified the City, the 413 Board will meet and adopt its bylaws. The City Council will then approve the bylaws by ordinance. At its first meeting, the 4B Board will also elect its president and secretary and appoint any other officers it deems appropriate. Staff recommends approval. WAG/sit rup • a • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS, AUTHORIZING AND APPROVING THE CREATION OF THE GRAPEVINE 4B ECONOMIC DEVELOPMENT CORPORATION; APPROVING THE CORPORATION'S ARTICLES OF INCORPORATION AND APPOINTING ITS INITIAL DIRECTORS; DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE WHEREAS, pursuant to the authority granted by the Development Corporation Act of 1979, Article 5190.6, Texas Revised Civil Statutes, as amended (the "Act"), this City Council finds it advisable to authorize the creation of a non-profit corporation (the "Corporation") to be named the Grapevine 413 Economic Development Corporation, to act on its behalf in financing, under the Act, eligible "projects"; and WHEREAS, such projects are hereby deemed to be for the benefit of the public; and WHEREAS, the Corporation may exercise such other powers for such purposes as may be consistent with the Act, and subject to the approval of the City Council from time to time; and WHEREAS, the City of Grapevine is an eligible city as defined by Section 4B of the Act; and WHEREAS, the Corporation shall be governed by Section 4B of the Act, as now existing or as it may be amended. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1. That the findings and declarations contained in the preamble of this Ordinance are incorporated herein as part of this Ordinance. Section 2. That the City Council hereby finds and determines that cooperative action with the Corporation will provide a means of financing needed public improvements within the City, consistent with the Act. Section 3. That this City Council hereby creates the Grapevine 4B Economic Development Corporation and approves the Articles of Incorporation (the "Articles") for the Corporation in substantially the form attached hereto as Exhibit "A" and authorizes the filing of the Articles with the Secretary of the State of Texas in accordance with the Act. r Section 4. That this City Council hereby appoints those persons named in the Articles, each of whom on the date of his or her appointment is duly qualified in accordance with the Act, to serve as the initial members of the Board of Directors of the Corporation, such service to be at all times subject to the powers of the City Council under the Articles. Section 5. That it is intended that the Corporation be a duly constituted authority and instrumentality of the City, with the power to act on its behalf and to accomplish the public purposes of the City within the meaning of regulations and revenue rulings of the Treasury Department of the Internal Revenue Service of the United States promulgated under Sections 103 and 115 of the Internal Revenue Code of 1986, as amended. Section 6. The fact that the present ordinances and regulations of the City of Grapevine, Texas are inadequate to properly safeguard the health, safety, morals, peace and general welfare of the public creates an emergency which requires that this ordinance become effective from and after the date of its passage, and it is accordingly so ordained. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on this the 17th day of April, 2007. ATTEST: APPROVED AS TO FORM: ORD. NO. 2 APPLICATION FOR CREATION OF A 4B CORPORATION AND ADOPTION OF THE ARTICLES OF INCORPORATION FORTHE GRAPEVINE 4B ECONOMIC STATE OF TEXAS } COUNTY OF TARRANT ) CITY OF GRAPEVINE ) WE, THE UNDERSIGNED natural persons, not less than three in number, each of whom is at least 18 years of age, and each of whom is a qualified elector of the City of Grapevine, Texas (which is a duly established municipality under the Texas Constitution), make this application under the "Development Corporation Act of 1979", as amended (Art. 5190.6, Vernon's Texas Civil Statutes) and request that the City Council of the City of Grapevine, Texas (the "City") approve the following Articles of Incorporation and establish a public instrumentality and non-profit industrial development corporation (the "Corporation") to act on behalf of the City: ARTICLE ONE NAME The name of the Corporation is "Grapevine 4B Economic Development Corporation". The Corporation is a non-profit corporation and is an industrial development corporation under the Development Corporation Act of 1979, Article 5190.6, Vernon's Texas Civil Statutes (the "Act"), and shall be governed by Section 4B of said Act, as now existing or as may be amended. ARTICLE THREE DURATION The period of duration of the Corporation is perpetual. The Corporation is organized for the purposes of benefiting and accomplishing public purposes of, and to act on behalf of, the City, for the promotion and development of industrial and manufacturing enterprises to promote and encourage employment and 1 the public welfare of the City, and the Corporation may issue bonds on behalf of the City t for the financing, development and operation of projects as defined in the Act. The Corporation may finance and undertake any such project, subject to the regulations and limitations set forth in Section 413 of the Act. 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 City Council of the City of Grapevine. The Corporation is a constituted authority and a public instrumentality within the meaning of 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 (the "Code"), and the Corporation is authorized to act on behalf of the City as provided in these Articles of Incorporation. However, the Corporation is not a political subdivision or political corporation of the State of Texas within the meaning of its Constitution and laws, including, without limitation Article III, Section 52 of said Constitution, and no agreements, bonds, debts or obligations of the Corporation are or shall ever been deemed to be the agreements, bonds, debts or obligations, or the lending of credit, or a grant of public money or thing of value, of or by 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. ARTICLE FIVE FINANCING (a) Before the consummation of the sale and delivery of any bonds, notes or other forms of debt instruments, the Corporation shall obtain approval by the City 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 purposes 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 proposed to be issued by the Corporation, shall be stated and described in the proceedings authorizing the bonds, notes or other debt instruments, and must be included as a part of the approval process of the City Council required above. In connection with the issuance of its obligations, the Corporation shall select bond counsel and financial advisors acceptable to the City Council. (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 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. E ARTICLE SIX MEMBERS The Corporation has no members and is a non -stock 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. 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. 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 City Council a written application requesting approval of the amendments to the Articles of Incorporation, specifying in such application the amendments proposed to be made. The City Council shall consider such application and, if it shall, by resolution, 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 the Articles of Incorporation by adopting such amendment at a meeting of the Board of Directors and delivering said amendments to the Secretary of State; or (2) The City 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 the constitutions and laws of the impairment of contract entered into by the Corporation) by resolution adopting the amendment to the Articles of Incorporation of the Corporation or Articles of Dissolution at a meeting of the City 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. 3 ARTICLE NINE REGISTERED OFFICE AND AGENT The mailing address of the initial registered office of the Corporation is P.O. Box 95104, Grapevine, Texas 76099 and the name of its initial registered agent at that address is Bruno Rumbelow. 1:10Y-111 15 ! •' i (a) The qualifications, manner of selection, duties and terms and other matters related to the Board of Directors (the "Board of Directors") shall be provided in the Bylaws of the Corporation. The persons to serve as members of the Board of Directors of the Corporation, being seven (7) in number, shall be appointed by the City Council of the City. (b) The names and addresses of the persons who are to serve as the initial directors of the Corporation are as follows: NAMES ADDRESS William D. Tate P. O. Box 95104, Grapevine, TX 76099 Sharron Spencer P. O. Box 95104, Grapevine, TX 76099 C. Shane Wilbanks P. O. Box 95104, Grapevine, TX 76099 Darlene Freed P. O. Box 95104, Grapevine, TX 76099 10 • • :Lei • - The name and street address of each incorporator are: NAMES ADDRESS William D. Tate P. O. Box 95104, Grapevine, TX 76099 Sharron Spencer P. O. Box 95104, Grapevine, TX 76099 4 C. Shane Wilbanks P. O. Box 95104, Grapevine, TX 76099 Darlene Freed P. O. Box 95104, Grapevine, TX 76099 ARTICLE TWELVE RESTRICTIONS No dividends shall ever be paid by the Corporation and no part of its net earnings remaining after payment of its expenses shall be distributed to or inure to the benefit of its directors or officers or any individual, firm, corporation or association, except in reasonable amounts for services rendered, provided that, if the Board of Directors determines that sufficient provision has been made for the full payment of the expenses, bonds and other obligations of the Corporation, then any net earnings of the Corporation thereafter accruing shall be paid to the City. In the event the Board of Directors of the Corporation shall determine that sufficient provision has been made for the full payment of the expenses, bonds and other obligations of the Corporation issued to finance its public purposes, then the Board of Directors shall convey such information to the City Council and shall petition the Comptroller of Public Accounts of the State of Texas to cease the levy and collection of the sales tax and any net earnings of the Corporation thereafter accruing shall be paid to the City. Regardless of any other provisions of these Articles or the laws of the State of Texas, the Corporation shall not: (1) permit any part of the net earnings of the Corporation to inure to the benefit of any private individual (except that reasonable compensation may be paid for personal services rendered to or for the Corporation affecting one or more of its purposes; or (2) attempt to influence the outcome of any specific public election or to carry on, directly or indirectly, any voter registration drives. ARTICLE THIRTEEN TAXES If the Corporation is ever determined to be a private foundation within the meaning of Section 509(a) of 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 FOURTEEN INDEMNIFICATION; INSURANCE A. (1) As provided in the Act, the Corporation is, for the purposes of the Texas Tort Claims Act (Subchapter A, Chapter 101, Texas Civil Practices and Remedies Code), a governmental unit and its actions are governmental functions. The Corporation shall indemnify any director or officer, or former director or officer, of the Corporation, to the fullest extent and manner permissible under the Act, the Texas Non - Profit Corporation Act (Art. 1396-1.01, et seq., Vernon's Texas Civil Statutes) (the "Non - Profit Act"), or other applicable rules, regulations or laws. (2) (a) The Corporation shall indemnify and advance expenses to persons who are not or were not officers, employees or agents of the Corporation, but who are or were serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, a partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, to the same extent it is authorized to indemnify and advance expenses to directors under the Act, the Non -Profit Act and this Article Fourteen. (b) The Corporation shall indemnify and advance expenses to an officer, employee, agent or person indemnified in subparagraph (a) above and who is not a director to such further extent, consistent with law, as may be provided by the Articles of Incorporation, its Bylaws, general or specific action of its Board of Directors, or contract, or as permitted or required by common law. B. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation or who is or was serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in such capacity or arising out of his status as such a person to the fullest extent under the Act, the Non -Profit Act and this Article Fourteen. C. As used in this Article Fourteen, the terms "director" and "expenses" shall have the meanings given such terms in Art. 1396-2.22A(A) of the Non -Profit Act. ARTICLE FIFTEEN LIMITATION OF LIABILITY No director of this Corporation shall be personally liable to the Corporation for monetary damages for an act or omission in the director's capacity as a director, except that this Article Fifteen does not eliminate or limit the liability of a director to the extent the director is found liable for: (i) a breach of the director's duty of loyalty to the Corporation or its members; (ii) an act or omission not in good faith that constitutes a breach of duty of the director to the Corporation or an act or omission that involves intentional misconduct or a knowing violation of the law; (iii) a transaction from which the director received an improper benefit, whether or not the benefit resulted from an action taken within the scope of the director's office; or (iv) an act or omission for which the liability of a director is expressly provided for by statute. Neither the amendment nor repeal of this Article Fifteen, nor the adoption of any provisions of the Articles of Incorporation of this Corporation inconsistent with this Article Fifteen, shall eliminate or reduce the effect of this Article Fifteen in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article Fifteen, would accrue or arise, prior to such amendment, repeal or adoption of any inconsistent provision. If, after approval of this Article Fifteen, the Non -Profit Act or the Texas Miscellaneous Corporation Laws Act (Art. 1302-1.01 et seq., Vernon's Texas Civil Statutes") (the "TMCLA") is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of this Corporation shall be eliminated or limited to the fullest extent permitted by the Act, the Non -Profit Act or the TMCLA, as so amended from time to time. ARTICLE SIXTEEN OTHER PROVISIONS A. Except as otherwise provided in these Articles of Incorporation, the Corporation shall have all of the powers provided in the Act and the Non -Profit Act to the extent not inconsistent with the Act. B. Notwithstanding any of the purposes set forth in Article Four above, the Corporation shall not, except to an insubstantial degree, engage in any activities or exercise any powers that are not in furtherance of the purposes of the Corporation as set forth in Article Four. C. No substantial part of the activities of the Corporation shall consist of the carrying on of propaganda or otherwise intending to influence legislation, and the Corporation shall not participate in or intervene in (including the publication or distribution of statements) a political campaign on behalf of any candidate for public office. D. Notwithstanding any other provision of these Articles, the Corporation shall not conduct or carry on any activities not permitted to be conducted or carried on by an organization exempt from taxation under Section 501(c) of the Code, and the regulations promulgated thereunder as they now exist or may hereafter be amended. E. Upon the dissolution of the Corporation or the winding up of its affairs, after paying or making provision for the payment of all liabilities of the Corporation, the net assets of the Corporation shall be distributed exclusively for the purposes of the Corporation or to organizations which would then be described in Section 501(c) of the Code and exempt from taxation thereunder and the regulations promulgated thereunder as they now exist or may hereafter be amended, or to the federal government or a state or local government for public purposes. No private individual shall be entitled to share in the distribution of any of the corporate assets upon such a dissolution or winding up of the affairs of the Corporation. F. All references in these Articles of Incorporation to statutes, regulations or other sources of legal authority shall refer to the authorities cited or their successors, as they be amended from time to time. William D. Tate Sharron Spencer C. Shane Wilbanks Darlene Freed