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HomeMy WebLinkAboutResolution No. 2011-075CITY OF THE COLONY, TEXAS SOLUTION NO.2011-07 WHEREAS, Subehapter D of Chapter 431, Texas Transportation Code, as amended ("Chapter 431"), authorizes the creation and organization of a public, nonprofit local government corporation to act as a duly constituted authority of a city to aid and assist the city in the performance of one or more of the city's governmental functions; and WHEREAS, Chapter 431 requires a local government corporation to be created pursuant to the provisions of Chapter 394, Texas Local Government Code, as arnended ("Chapter 394'), and requires a local government corporation's articles of incorporation be in the form and be executed, approved, and filed in the manner prescribed by Chapter 394; and WHEREAS, a local government corporation may have and exercise all of the powers prescribed by Chapter 43 1, Chapter 394, and the Texas Non-Profit Corporation Act (formerly Article 1396, Vernon's Texas Civil Statutes, as amended), now codified in the Texas Business Organizations Code as the Texas Nonprofit Corporation Law, as defined in Section 1,008 of the Texas Business Organizations Code, as amended (Chapter 431, Chapter 394 and the Texas Nonprofit Corporation Law are referred to collectively as the "Acts"); and WHEREAS, Chapter 394 requires as condition to the creation of a local government corporation that at least three (3) residents of the City and the State of Texas (the "State") who are at least eighteen (18) years of age submit a written application for the incorporation of the local government corporation; and WHEREAS, there has been presented to and filed with the City Secretary of the City of The Colony. Texas (the "City"), an application executed by three (3) residents of the City who meet the requirements of Chapter 394 requesting the incorporation of The Colony Local Development Corporation (the "Corporation"); and WHEREAS, the Corporation will be organized for the purpose of aiding, assisting, and acting for and on behalf of the City in the performance of the City's governmental functions, including, but not limited to: (A) providing a means to implement and finance, or otherwise pay or reimburse, the costs of projects located within and outside of, and benefitting, the Tax Increment Reinvestment Zone Number One, City of The Colony, Texas (the "Zone"), including the following projects described in (i)-(N°) as follows (collectively referred to as the "Prt jects") and all of the costs of such Projects (the "Prgiect Casts"): (1) public works within and outside such Zone, (ii) public improvements within and outside such Zone, (iii) programs determined by the City Council of the City (the "City Councif') to be necessary or convenient to the implementation of the Zone's Final Project Plan and Reinvestment Zone Financing Plan, as the same may be amended from time to time (the "Final Project and Finance Plat'") for the public purposes of developing and diversifying the economy of the Zone and developing and expanding business and commercial activity within such Zone, (iv) other projects that benefit the Zone, and, (v) costs and expenses incidental to the foregoing works, improvements, programs, and projects, all as more specifically detailed in the Final Project and Finance Plan; (B) causing and arranging for all of the acquisition, design, construction, assembly, installation, implementation, operation and maintenance of the Projects; (C) issuing bonds and notes for the financing of such Projects Costs; and, (D) owning, leasing, selling, granting, transferring, conveying and otherwise being responsible for the Projects; all for the public purpose of encouraging development and redevelopment within the Zone, The Corporation will be further authorized to aid, assist, and act on behalf of the City and the Board of Directors of the Zone in the management of the Zone and the implementation of the Final Project and Finance Plan, including in the exercise of all the powers of the City and the Board of Directors under Chapter 380, Texas Local Government Code, as amended, as provided in Chapter 431. In so acting on behalf of the City, the Corporation will assist the City in the performance of the City's governmental functions to promote, develop, encourage, and maintain employment, commerce, and economic development in the City (including within the Zone) and in the State; and WHEREAS, the City Council of the City (the `.`City Council"), as the governing body of the City, has reviewed and approved the proposed form of the Articles of Incorporation attached hereto and has determined to authorize and approve the creation of a local government corporation, a nonprofit entity, as its constituted authority and instrumentality to accomplish the purposes set forth in Article IV of such Articles of Incorporation pursuant to the provisions of Chapter 431; and WHEREAS, the Council hereby finds and determines that the adoption of this Resolution is in the best interests of the citizens of the City. NOW THEREFORE, ICE T RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: SECTION L The Council hereby finds, determines, and declares that the application for the incorporation of the Corporation was executed and filed in the manner required by Chapter 394, and the Council therefore has authority to consider and act on the application for incorporation of the Corporation. Page 2 SECTION 2. The Council hereby finds, determines, recites, and declares that it is wise, expedient, necessary, and advisable that the Corporation be formed, be created and be organized under the provisions of the Chapter 431, and to the extent required by Chapter 431 the provisions of Chapter 394, as a duly constituted authority of the City, and the Corporation is hereby authorized to aid, assist, and act on behalf of the City in the performance of its governmental functions to promote, develop, encourage, and maintain employment, commerce, and economic development in the City and the State; and to perform the other purposes described in the Articles of Incorporation. SECTION 3. The Corporation may aid, assist, and act for and on behalf of the City to further the public purposes set forth in Article IV of the Articles of Incorporation, as the same may be amended from time to time. In furtherance of those public purposes, the Corporation may cause and arrange for the design, development, construction, implementation, financing and operation of a mixed-use facility on approximately 433 acres, which facility will initially include approximately 1,280,000 square feet for warehouse and distribution uses, approximately 25,000 square feet for a regional corporate headquarters, and approximately 546,000 square feet for retail sales to the general public, and all of the design, construction, assembly, installation, and implementation costs of the public improvements in Reinvestment ..Zone Number One, City of The Colony, Texas, all as more specifically detailed in the Preliminary Reinvestment Zone Financing Plan for the Zone, and as will be set forth in the Final Project and Finance Plan, pursuant to the provisions of State law, and may tale all lawful actions necessary or useful in. furthering such public purposes. SECTION 4. The Corporation is hereby designated as the duly constituted authority and instrumentality of the City (within the meaning of those terins in the regulations of the Treasury and the rulings of the Internal Revenue Service prescribed and promulgated pursuant to section 103 of the Internal Revenue Code of 1986, as amended) and shall be authorized to act on behalf of the City for the public purposes set forth in Section 3 hereof; but the Corporation is not intended to be and shall not be a political subdivision or a political corporation within the meaning of the Constitution and the general laws of the State, including without limitation Article 111, Section 52 of the State Constitution, and the City does not delegate to the Corporation any of its attributes of sovereignty, including the power to tax, the power of eminent domain, or its police power. SECTION 5. This Resolution is adopted for the purpose of satisfying the conditions and requirements of the Acts and of section 103 of the Internal Revenue Code of 1986, as amended, and the regulations prescribed thereunder from time to time and for the benefit of the Corporation, the City, the owners or holders from time to time of the bonds or notes of the Corporation, and all other interested persons. SECTION 6. The Council hereby approves the Articles of Incorporation of the Corporation in substantially final form attached hereto as E.chibit A, and incorporated by reference as a part of this Resolution for all purposes, and authorizes the incorporators of the Corporation to file such Articles of Incorporation with the Secretary of State of the State of Texas in the manner provided by law.. Page 3 SECTION 7. The Council hereby appoints the directors listed in the Articles of Incorporation attached hereto to the initial board of directors for the Corporation. Subsequent Directors shall be appointed as provided in the bylaws to be adopted by the Corporation. SECTION 8. The Council appoints Mayor Joe McCourry as the initial Chairperson of the board of directors. Subsequent chairpersons shall be designated as provided by the bylaws to be adopted by the Corporation. SECTION 9. The Corporation may, under the conditions set forth in the Acts and in this Resolution, issue, or provide for the issuance of, bonds or notes, acquire, lease, sell, or convey certain properties, and enter into purchase agreements, lease agreements, credit agreements, operating agreements, and all other agreements necessary or useful in connection with the Projects; provided that the Corporation shall not issue bonds or notes without the consent of the City Council. Furthermore, bonds or notes issued by the Corporation shall be deemed not to constitute a debt of the State, the City, or of any other political corporation, subdivision, or agency of the State of Texas or a pledge of the faith and credit or taxing power of any of them, but such bonds or notes shall be payable solely from the revenues pledged to the payment of such bonds or notes. In no event shall the Corporation be authorized to levy ad valorem taxes. ;SECTION 10. The Council hereby finds, determines, recites, and declares that any notes, bonds, loans, debts, or other obligations of the Corporation shall not be deemed an indebtedness, liability, general or moral obligation or pledge of the faith or credit of the State, the City, or any other political subdivision or governmental unit, nor shall any such notes, bonds, loans, debts or other obligations constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction or any agreement, obligation, or indebtedness of the City or of the State within the meaning of any constitutional or statutory provision whatsoever. SECTION 11. The Council hereby finds, determines, recites, and declares that it is the purpose, intent, and desire of the City in approving the creation of the Corporation and its Articles of Incorporation, that such actions and the Corporation hereby authorized comply with the requirements of the Internal Revenue Code 1986, as amended, and the Treasury Regulations and Internal Revenue Service rulings promulgated thereunder and the rulings issued pursuant thereto, such that the Corporation shall be decined to be a constituted authority acting on behalf of the City pursuant to the provisions of the Chapter 431. SECTION 12. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are incorporated by reference and are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the Council. SECTION 13. All ordinances and resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters ordained herein. Page 4 SECTION 14. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. SECTION 15. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the Council hereby declares that this Resolution would have been enacted without such invalid provision. SECTION 16. It is officially found, deterniined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. SECTION 17. This Ordinance shall become effective from and after its date of passage in accordance with law. [Remainder ofpage left . blank intentionally.] Page 5 PASSED AND APPROVED Y THE CITY COUNCIL OF THE CITY OF "I ji l L COLONY, 'T'EXAS, THIS 8t'' day of NOVEMBER, 2011. ATTES Christie Wilson, City Secretary APPROVED AS TO FORM: J e McCl , Mayor Jeff Moor e, ity Attorney [Signature Page to the Resolution Approving the Creation of The Colony Local. Development Corporation] Exhihit A Articles of Incorporation For The Colony Local Development Corporation ARTICLES O INCORPORATION O THE COLONY LOCAL, DEVELOPMENT CORPORATION We, the undersigned natural persons, each of whom is at least eighteen (18) years of age or more, and a resident of the city of The Colony, Texas (the "City") and a citizen of the State of Texas (the "State"), acting as incorporators of a corporation under the provisions of Subchapter D of Chapter 431, Texas Transportation Code, as amended (the "Act"), and to the extent required by the Act, Chapter 394, Texas Local Government Code, as amended (the "Local Government Grade"), do hereby adopt the following articles of incorporation for such corporation (the "Articles ofIn corporation"): ARTICLE I The name of the corporation is "THE COLONY LOCAL DEVELOPMENT CORPORATION" (the " Cor°porRation"). ARTICLE II The Corporation is a public, nonprofit corporation. ARTICLE III Subject to the provisions of Article XV, the period of duration of the Corporation shall be perpetual. ARTICLE IV The Corporation is organized for the purpose of aiding, assisting, and acting for and on behalf of the City in the performance of the City's governmental functions, including, but not limited to. (A) providing a means to implement and finance, or otherwise pay or reimburse, the costs of projects located within and outside of, and benefitting, the Tax Increment Reinvestment Zone Number One, City of The Colony, Texas (the "Zone"), including the following projects described in (I)-(v) as follows (collectively referred to as the "Projects") and all of the costs of such Projects (the "Project Casts'"): (i) public works within and outside such Zone, (ii) public improvements within and outside such Zone, (iii) programs determined by the City Council of the City (the "City council") to be necessary or convenient to the implementation of the Zone's Final Project Plan and Reinvestment Zone Financing Plan, as the salne may be amended from time to time (the "Firral Project and Finance lair'") for the public purposes of developing and diversifying the economy of the Zone and developing and expanding business and commercial activity within such Zone, (iv) other projects that benefit the Zone, and, (v) costs and expenses incidental to the foregoing works, improvements, programs, and projects, all as more specifically detailed in the Final Project and Finance Plan; (B) causing and arranging for all of the acquisition, design, construction, assembly, installation, implementation, operation and maintenance of the Projects; (C) issuing bands and notes for the financing of such Projects LGC Articles- 10.30.2011 (Clean).doc/Unknown Costs; and, (D) owning, leasing, selling, granting, transferring, conveying and otherwise being responsible for the projects; all for the public purpose of encouraging development and redevelopment within the Zone. The Corporation is further authorized to aid, assist, and act on behalf of the City and the Board of Directors of the Zone in the management of the Zone and the implementation of the Final Project and Finance plan, including in the exercise of all the powers of the City and the Board of Directors under Chapter 380, Texas Local Government Code, as amended, as provided in the Act. In so acting on behalf of the City, the Corporation will assist the City in the performance of the City's governmental functions to promote, develop, encourage, and maintain employment, commerce, and economic development in the City (including within the Zone) and in the State. The Corporation is formed pursuant to the provisions of the Act, which Act authorizes the Corporation to assist and act on behalf of the City and to engage in activities in the furtherance of the purpose for its creation. To the extent necessary to carry out its authorized purposes, the Corporation shall have and exercise all of the rights, powers, privileges, authority, and functions given by the general laws of the State to corporations incorporated under the Act including, without limitation, all powers not in conflict with the Act granted to domestic nonprofit corporations by the Texas Nonprofit Corporation Law, as defined by Section 1.008 of the Texas Business Organizations Code, as amended, and shall have all other powers of a like or different nature not prohibited by law which are necessary or useful to enable the Corporation to perform the authorized purposes for which it is created. The Corporation is created as a local government corporation pursuant to the Act and shall be a governmental unit within the meaning of Section 101.001, Texas Civil Practice and Remedies Code, as amended. The operations of the Corporation are governmental and not proprietary functions for purposes of the Texas Tort Claims Act, Chapter 101, as amended, Texas Civil Practice and Remedies Code. The Corporation shall not exercise the powers of sovereignty of the City, including the power to tax, eminent domain power, or police power. ARTICLE V The Corporation shall have no members and is a non-stock corporation. ARTICLE VI The City Council has by resolution adopted on the 81h day of November, 2011, authorized the creation of the Corporation as a local government corporation and approved these Articles of Incorporation pursuant to Subchaptcr D of the Act. To the extent necessary to carry out its authorized purposes, the Corporation shall have and exercise all of the rights, powers, privileges, authority, and functions given under the Act, the Local Government Code, and under the general laws of the State to nonprofit corporations incorporated under the Texas Nonprofit Corporation Law which are consistent with the provisions of the Act with respect to the development and operation of the Projects together with all powers incidental thereto or necessary therefor. Notwithstanding the foregoing, before the consummation of the sale and delivery of any bonds or notes, the Corporation shall obtain LGC Atlides - 10.30.2011 (Clean).doa`Unknown -2- approval by the City Council, as evidenced by the adoption of a written resolution of the City Council. Additionally, in the exercise of the powers of the Corporation, the Corporation may enter into any sale, loan, lease, trust, operating, or other agreement as authorized by the Act that are necessary and appropriate to the fulfillment of the authorized purposes of the Corporation as set forth in Article IV hereof. 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 section 103 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 within the meaning of its State constitution and laws, including, without limitation, Article III, Section 52 of the State Constitution, and no agreements, bonds, debts, or obligations of the Corporation are or shall ever be 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, except as provided by State law, or any other political corporation, subdivision, or agency of the State, or a pledge of the faith and credit of any of them. ARTICLE VII These Articles of Incorporation may at any time and from time to time be amended as provided in the Local Government Code so as to make any changes therein and add any provisions thereto permitted by law. Any such amendment not prohibited above shall be effected in either of the following manners: (i) the members of the Board of Directors of the Corporation shall file with the City a written application requesting permission to amend the Articles of Incorporation, specifying in such application the amendments proposed to be made, the City may consider such application and, if it shall by appropriate resolution duly find and determine that it is wise, expedient, necessary or advisable that the proposed amendments be made and shall approve the form of the proposed amendments, then the Board of Directors of the Corporation may amend the Articles of Incorporation by adopting such amendments at a meeting of the Board of Directors and delivering the articles of amendment to the Secretary of State for the State of Texas, or (ii) the City Council may, in its sole discretion, and at any time, amend these Articles of Incorporation, and change the structure, organization, programs, or activities of the Corporation, or terminate or dissolve the Corporation (subject to the provisions of the Act, the Local Government Code, and any limitation provided by the State Constitution and laws of the State and the United States of America on the impairment of contracts entered into by the Corporation), by written 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 for the State of Texas, as provided in the Act. Restated Articles of Incorporation may be filed with the Secretary of State for the State of Texas as provided in the Act. ARTICLE VIII The meetings of the Corporation shall be subject to the Open Meetings Act, Chapter 551, Texas Government Code, as amended, and the Board of Directors is subject to the Texas Public L,GC Articles - 10.3{7.2011 (Clean).doc) Unknown -3° Information Act, Chapter 552, Texas Government Code, as amended, in the same manner as if the Corporation were a political subdivision. ARTICLE IX The initial bylaws of the Corporation 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. The bylaws and each amendment and repeal of the bylaws must be approved by the City Council by resolution. ARTICLE X The street address of the initial registered office of the Corporation is 6800 Main Street, The Colony, Texas 75056, and the name of the initial registered agent at such address is Christie Wilson. ARTICLE XI All powers of the Corporation shall be vested in a Board of Directors (the "Board"') consisting of nine (9) persons, each of whom shall at all times have the qualifications set forth below. The initial directors of the Corporation ("Director" or "Directors") shall be those nine (9) persons named in Article XII. Each initial Director named in Article XII hereof shall serve for an initial term as indicated in Article XII. Subsequent Directors shall be appointed to the Board as prescribed in the bylaws. Except as provided in the Articles of Incorporation, each subsequent Director shall serve for the terra provided in the bylaws. Any Director may be removed from office by the City Council at any time, with or without cause. ARTICLE XII The number- of Directors initially constituting the Board is nine (9). The names and addresses of the nine (9) initial Directors are: Names Addresses Term. Expires Joe McCouriy 5769 Bedford Lane December 31, 2012 The Colony, Texas 750156 Richard Boyer 5900 Southznoor Lane December 31, 2012 The Colony, Texas 75056 Jeff Connelly 5829 Concord Lane December 31, 2012 The Colony, Texas, 75056 Troy Powell 3712 St. Andrews Drive December 31, 2012 The Colony, Texas 75056 Todd Maurina 5868 Stone Mountain Road December 31, 2012 The Colony, Texas 75056 David. Terre 3941 Teal Cove December 31, 2011 The Colony, Texas 75056 Dirk Mikulec 5925 Cypress Cove December 31, 2011 LGC Aeticles - 10.30.2011 (Clean).doc'Unknown -4- The Colony, Texas 75056 Perry Schrag 4308 Cape Cod December 31, 2011 The Colony, Texas 75056 Joel Marks 5622 Foster Street December 31, 2011 The Colony, Texas 75056 All of the initial directors are residents of the City. Pursuant to Section 431.102(c) of the Act, a majority of the Board of Directors will reside within the City. ARTICLE XIII The names and street addresses of the incorporators, each of whom resides within the City, are; Names Addresses Troy Powell 3712 St. Andrews Drive The Colony, Texas 75056 Tim Miller 5524 Green Hollow Lane The Colony, Texas 75056 Tod Maurina 5868 Stone Mountain Road The Colony, Texas 75056 ARTICLE XIV No Director shall be liable to the Corporation for monetary damages for an act or omission in the Director"s capacity as a Director, except for liability (i) for any breach of the Director's duty of loyalty to the Corporation, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for any transaction from which the Director received an improper benefit, whether or not the benefit resulted from an act taken within the scope of the Director's office, or (iv) for acts or omissions for which the liability of a Director is expressly provided by State law. Any repeal or amendment of this Article by the Directors shall be prospective only, and shall not adversely affect any limitation on the personal liability of a Director existing at the time of such repeal or amendment. In addition to the circumstances in which a Director is not personally liable as set forth in the preceding sentences and the bylaws, a Director shall not be liable to the fullest extend permitted by any amendment to the State law hereafter enacted that further limits the liability of a. Director. ARTICLE XV If the Board determines by resolution that the purposes for which the Corporation was formed have been substantially met and all bonds or notes issued by and all other obligations incurred by the Corporation have been fully paid, the Board shall execute a certificate of dissolution which states those facts and declares the Corporation dissolved in accordance with the requirements of Section 394.026 of the Local Government Code, as amended, or with applicable law then in existence. In the event of dissolution of the Corporation, after the LGC Articles - 1 O.30.201 1 (Clean).doc/Unknown -5- payment or satisfaction of all debts, liabilities and obligations, all assets will be turned over to the City, or its successor, unless the City Council shall otherwise direct. ARTICLE XVI A. The City Council, by written resolution, may authorize and direct the dissolution of the Corporation. However, the Corporation shall not be dissolved or liquidated, and its business shall not be terminated, by act of the City Council or otherwise, so long as the Corporation shall be obligated to pay any bonds, notes, or other obligations. B. No action shall be taken pursuant to paragraph A of this Article, 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 XVII As provided in the bylaws, the Corporation may indemnify any director, officer, agent or former director, officer or agent of the Corporation for expenses and costs, including attorney's fees, actually or necessarily incurred by the person in connection with any claim asserted against the person, by action in court or other forum, by reason of such person having been a director, officer or other agent. ARTICLE XVIII These Articles of Incorporation may not be changed or amended unless approved by the City Council by resolution or ordinance. LGC Ailicles - 10.30.201 1 (Clean).dC ciUnknown -6- IN WITNESS WHEREOF, we have hereunto set our hands this the day of November, 2011. R Tod Maurina, In orporator THE STATE OF TEXAS § COUNTY OF DENTON § 1, the undersigned, a Notary Public of the State of Texas, do hereby certify that oil this the day of November, 2011, Troy Powell, Tirn Miller, and Tod Maurina, who each being by nee first duly sworn, severally declared that they are the persons who signed the foregoing document as incorporators and that the statements therein contained are true. IN WITNESS WHEREOF, I have hereunto set my hand and seal the date and year above written. NOTARY PUBLIC IN AND FOR THE STATE. OF TEXAS Wilson state *F Texas li= al hdYry {}k ~ as~~.a ♦b+sd®oosw~ -isssron xplres: L r 95264417.7/11108583 [Signature Page to the A{ticies of lncorporation of The Colony Local Development Corporation]