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HomeMy WebLinkAboutRes 04-22 Amending the Articles of Incorporation and the Bylaws for the Westlake Academy FoundationTOWN OF WESTLAKE RESOLUTION NO. 04-22 A RESOLUTION APPROVING AMENDMENTS TO THE ARTICLES OF INCORPORATION AND BYLAWS FOR THE WESTLAKE ACADEMY FOUNDATION AND RESOLVING RELATED MATTERS WHEREAS, this Board of Aldermen (the "Board"), as the governing body of the Town of Westlake, Texas (the "Town"), hereby finds that it is in the public interest that the Articles of Incorporation (the "Articles") and the Bylaws (the "Bylaws") of the Foundation shall take be amended; WHEREAS, this Board intends, by the adoption of this Resolution, to take all action necessary to effect the amendment of the Articles, in substantially the form of the First Amended and Restated Articles of Incorporation, attached hereto as Exhibit -A, and the Bylaws, in substantially the form of the First Amended and Restated Bylaws, in the form attached hereto as Exhibit -B; WHEREAS, it is the intent of this Board that the Foundation be qualified as an exempt corporation under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and that the Mayor, members of the Board, and Town Manager be authorized to take all action necessary or appropriate to qualify the Foundation thereunder; WHEREAS, the meeting at which this Resolution has been considered was open to the public as required by law, and public notice of the time, place, and subject of the meeting has been given in accordance with Chapter 551, Government Code; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1. The findings and declarations contained in the preamble of this Resolution are hereby incorporated as part of this Resolution. SECTION 2. This Board hereby approves the First Amended and Restated Articles of Incorporation, in substantially the form attached to this Resolution as an Exhibit -A, and hereby approves t he F irst Amended and R estated Bylaws, in s ubstantially the form attached t o t his Resolution as Exhibit -B. SECTION 3. It is intended that the Foundation be qualified as an exempt non-profit corporation under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and that the Mayor, members of the Board, and the Town Manager be authorized to take all action necessary or appropriate to enable the Foundation to be qualified thereunder Section. SECTION 4. This Resolution shall take effect immediately upon its adoption. PASSED AND APPROVED ON THE 10TH DAY OF MAY 2004 ATTEST: L- 6�7' ',' ,, 6ingAT Crosswy, To ecxetary APPROVED AS TO FORM: l L. anton o T Attorney BeY, MaScott or Trent etty,' Manager FIRST AMENDED AND RESTATED ARTICLES OF INCORPORATION of WESTLAKE ACADEMY FOUNDATION In accordance with Article 1396-4.06. of the Texas Non -Profit Corporation Act, TEX. REV. CIV. STAT. ANN. Art 1396 (Vernon 1997), the Board of Directors of the Westlake Academy Foundation (the "Foundation") has duly adopted this First Amended and Restated Articles of Incorporation of the Westlake Academy Foundation at a meeting of the Board of Directors held on May 10, 2004 by a vote of a majority of the Board of Directors; the Foundation is a non-profit corporation without members and therefore no member approval is required; and the text of the entire articles of incorporation as amended and supplemented by all certificates of amendment previously issued by the Secretary of State and as further amended by the First Amended and Restated Articles of Incorporation are included herein, as follows: ARTICLE I The name of the Corporation is "Westlake Academy Foundation." ARTICLE II The Foundation is a nonprofit corporation created under the Texas Non -Profit Corporation Act and is organized exclusively for charitable and educational purposes, including for such purposes, the making of distributions to organizations under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (or any corresponding section under any future Federal tax code). ARTICLE III The duration of the Foundation is perpetual (subject to dissolution according to law as provided in these Articles of Incorporation). ARTICLE IV The purpose of the Foundation is to act on behalf of the Town of Westlake (the "Town") as its duly constituted authority and instrumentality and, in connection therewith, to exercise all powers and authority granted under the Texas Non -Profit Corporation Act and other applicable law. Notwithstanding any other provision of these articles the Foundation shall not carry on any other activities not permitted to be carried on, (a) by a corporation/organization exempt from Federal income tax under Section 501(c)(3) of the Internal Revenue Code of 1986,as amended (or corresponding section of any future Federal tax code) or (b) by a corporation/organization, contributions to which are deductible under Section 170(c)(2) of the Internal Revenue Code of 1986,as amended (or corresponding section of any future Federal tax code). ARTICLE V The Foundation shall have no members and is a nonstock corporation. ARTICLE VI The street address of the initial registered office of the Foundation is 2650 J. T. Ottinger Road, Westlake, Texas 76262, and the name of the initial registered agent at that address is Scott Bradley. ARTICLE VII All powers and authority of the Foundation shall be vested in a board of directors (the "Board"), subject to limitations imposed by law or otherwise. The number of directors, their manner of election, and their terms of office shall be fixed by the bylaws of the Foundation consistent with the Texas Non -Profit Corporation Act. The directors shall serve without compensation, except that they shall be entitled to reimbursement for the actual expenses they incur in the performance of their official duties. ARTICLE VIII The number of directors constituting the initial Board shall be nine. The respective names and addresses of the initial directors, are as follows: Name of Initial Director Michelle Corson, Chairperson 2. Kelly Bradley 3. Steve Yetts 4. Becky Rogers 5. Mike Abbott 6. Juan Fontanes 7. Dana Babb McGowan 8. Vanessa Van Trease 9. Vacant Address 1303 Eagle Bend Drive Southlake, TX 76092 10 Paigebrooke Lane Westlake, TX 76262 2001 Highway 114, Ste. 100 Trophy Club, TX 76262 403 Bryn Meadows Southlake, TX 76092 2300 Vaquero Club Drive Westlake, TX 76262 1845 Broken Bend Drive Westlake, TX 76262 5323 Ridgedale Drive Dallas, TX 75206 2104 Cavalier Way Flower Mound, TX 75022 ARTICLE IX The respective names and street addresses of the incorporators, each of whom is a citizen of the State of Texas and at least 18 years of age, are as follows: Name of Incorporators 1. Scott Bradley 2. Fred Held 3. Don Redding 4. Larry Sparrow Address 10 Paigebrooke Lane Westlake, TX 76262 4105 Aspen Lane Westlake, TX 76262 5925 Janet Court Westlake, TX 76262 4035 Aspen Lane Westlake, TX 76262 5. Buddy Brown 13298 Thornton Drive Westlake, TX 76262 6. Bill Frey 5924 Janet Court Westlake, TX 76262 ARTICLE X On March 10, 2003 the governing body of the Town duly adopted a resolution ordering the creation of the Foundation, authorizing the Foundation to act on behalf of the Town as its duly constituted authority and instrumentality, and approving the form of the initial Articles of Incorporation. ARTICLE XI These Articles of Incorporation and/or the Bylaws of the Foundation may be amended from time to time by a majority vote of the entire membership of the Board with the approval of the governing body of the Town. Neither the Foundation's initial bylaws nor any amendment thereof shall take effect until approved by the governing body of the Town, ARTICLE XII No dividends shall be paid by the Foundation, and no part of the net earnings of the Foundation shall inure to the benefit of, or be distributable to its members, trustees, directors, officers, or any private persons, except that the Foundation shall be authorized to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of Section 501(c)(3) purposes. No substantial part of the activities of the Foundation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Foundation shall not participate in, or intervene in, (including the publishing or distribution of statements) any political campaign on behalf of, or in opposition to, any candidate for public office. ARTICLE XIII To the extent permitted by law, the governing body of the Town, in its discretion and without any action by the Board, may at any time change the structure, organization, programs, or activities of the Foundation or may dissolve the Foundation.. If the Board determines that the Foundation's purposes have been substantially accomplished, and all of the Foundation's debts and claims have been satisfied, or satisfaction thereof has been provided for, the Board shall, upon approval by the governing body of the Town, dissolve the Foundation. Any dissolution of the Foundation shall be subject to any limitations on the impairment of contracts prescribed by the respective constitutions and other applicable law of the United States of America and State of Texas. If the Foundation is dissolved when it has, or is entitled to, any interest in any funds or other property of any kind (real, personal, or mixed), the interest shall not be transferred to private ownership but shall either be distributed for one or more exempt purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, (or corresponding section of any future Federal tax code) or be transferred and delivered to the Town (after satisfaction or provision for satisfaction of the Foundation's debts and claims has been made) to be used for public purposes. ARTICLE XIV Regardless of any other provisions of these Articles of Incorporation or the laws of the State of Texas, the Foundation shall not: 1. Permit any part of the net earnings of the Foundation to inure to the benefit of any private individual (except that reasonable compensation may be paid for personal services rendered to or for the Foundation affecting one or more of its purposes); 2. Devote more than an insubstantial part of its activities to attempting to influence legislation by propaganda or otherwise; or 3. Participate in, or intervene in (including the publication or distribution statements), any political campaign on behalf of any candidate for public office. fN WITNESS WHEREOF, I have executed these First Amended and Restated Articles of Incorporation on this 10th day of May, 2004. Michelle Corson, President FIRST AMENDED AND RESTATED BYLAWS of WESTLAKE ACADEMY FOUNDATION ARTICLE I POWERS AND OPERATIONS IN GENERAL SECTION 1.1. Powers of Foundation. (a) The Westlake Academy Foundation (the "Foundation") shall have all of the powers and authority granted to non-profit corporations under the Texas Non -Profit Corporation Act, TEX. REV. CIV. STAT. ANN. Art. 1396 (Vernon 1997), as amended (the "Act"). (b) The Foundation is being created as an instrumentality of the Town of Westlake (the "Town") for the purpose of aiding the open -enrollment charter school (the "Westlake Academy") to be operated by and on behalf of the Town. (c) The goals of the Foundation are, among others, to benefit the Westlake Academy, as follows: (i) creating endowment fund; (ii) providing financial support to the Westlake Academy; and (iii) taking any other action that may benefit the Westlake Academy. (d) In implementing its goals, the Foundation may take any lawful action consistent with the actions of a corporation qualified as exempt under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. SECTION 1.2. Records. (a) The Foundation shall keep complete corporate and financial records and minutes of the proceedings of its board of directors (the `Board") and of committees (if any) of the Board in accordance with applicable law. (b) The records and minutes shall be made available for inspection at all reasonable times by any member of the Board (any member, a "Director") or by the Director's authorized agent or by any authorized representative of the Town of Westlake (the "Town"). SECTION 1.3. Regulations. (a) The Foundation, by action of the Board, may promulgate regulations (the "Regulations") governing the Foundation's operation. (b) The Regulations shall not conflict with, and shall be subject to, these Bylaws and the Foundation's Articles of Incorporation (the "Articles"). SECTION 1.4. Staffing Functions. (a) Staff functions of the Foundation may be performed by employees of the Town, under the direction of the Town Manager, subject to payment by the Foundation of the actual costs of the staff functions to be performed, as from time to time may be billed to the Foundation by the Town. (b) The Foundation shall pay the bills upon receipt (or as promptly thereafter as practicable) from any of its funds available for the payment. ARTICLE 11 BOARD OF DIRECTORS SECTION 2.1. Management of Foundation. The Board is responsible for the management of the Foundation. SECTION 2.2. Number, AppointmentTerm, Disqualifications, and Removal of Directors. Articles. (a) The Directors constituting the initial Board of Directors are those specified in the (b) The Board of Directors shall consist of six Directors. (c) Successor Directors (including Directors filling vacancies) shall be appointed by the Board of Aldermen. (d) The term of each Director shall be two years. (e) As a Director's term expires, the Director shall continue to serve until a successor is appointed and assumes office; provided that, if a Director is removed or resigns, the Director's office shall be deemed vacant upon the removal or resignation. (f) Any Director may be removed at any time (with or without cause) by a majority vote of the Town's Board of Aldermen. SECTION 2.3. Resignation. (a) Any Director may resign at any time. (b) A resignation shall be made by written instrument and shall take effect at the time specified therein or, if no time is specified, at the time of its receipt by the President or the Secretary of the Foundation. (c) The acceptance of a resignation is not necessary to make it effective unless expressly provided in the instrument of resignation. SECTION 2.4. Meetings of Directors (a) The Board may hold its meetings at any place designated (from time to time) by the Board. In the absence of any designation, meetings shall be held at the principal office of the Foundation. (b) Regular meetings of the Board shall be held at such times and places as designated by resolution of the Board. (c) A special meeting of the Board shall be held whenever called by the President or the Secretary of the Foundation or by the Board at the time and place specified by the authority calling the special meeting. Unless otherwise indicated in the notice of a special meeting, any matter that may be acted upon by the Board at a regular meeting may be acted upon at a special meeting. (d) Except as otherwise provided by law, notice to Directors of a regular meeting is not required. (e) Notice of the time and place of each special meeting shall be given to each Director (either by personal delivery, United States mail, telephone, or telecopy) not later than 24 hours in advance of the meeting. (f) Notice of any Board meeting to persons other than Directors shall be given if and to the extent required by law. (g) Attendance of a Director at a meeting shall constitute a waiver by the Director of the notice of meeting, unless the Director attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called or convened. (h) A waiver of a notice in writing, signed by any person entitled to notice (whether before or after the time for giving the notice) shall be deemed to be the equivalent to the giving of notice. SECTION 2.5. Quorum. (a) A majority of the number of Directors fixed by these Bylaws as constituting the Board shall constitute a quorum for the transacting of the business of the Foundation. (b) The act of a majority of the Directors present at a meeting at which a quorum is in attendance shall constitute the act of the Board except as otherwise required by law or by these Bylaws or the Articles. SECTION 2.6. Order of Business The Board shall consider the matters before it in such order as the Board may determine SECTION 2.7. Committees. (a) The Board, by resolution adopted by a majority of the Directors in office, may designate one or more committees that, to the extent provided in the resolution, shall have the authority of the Board in the management of the Foundation. (b) Each committee shall consist of two or more Directors. (c) Committees that do not have the authority of the Board in the management of the Foundation may be designated by resolution of the Board or by the president of the Foundation, and membership on any committee need not be limited to Directors. SECTION 2.8 Compensation of Directors. Directors are not entitled to receive any compensation for their services as Directors, except for reimbursement of their actual expenses incurred in the performance of their official duties. ARTICLE III OFFICERS SECTION 3.1. Titles of Officers. The officers of the Foundation shall be a president (the "President"), a vice president (the "Vice President"), a secretary (the "Secretary"), a treasurer (the "Treasurer"), and such other officers as the Board may from time to time appoint. SECTION 3.2. Appointment, Term Removal Vacancy of Offices. (a) Each officer shall be appointed by the Board of Directors for a term of two years and, in the absence of resignation or removal, shall continue to serve until his/her successor is appointed and assumes office. (b) Each officer is subject to removal from office (with or without cause) at any time by the vote of a two-thirds majority of the Directors in office. (c) A vacancy in any office shall be filled in the same manner as the original appointment for the unexpired term thereof. SECTION 3.3 President. (a) The President shall preside at all meetings of the Board. (b) The President is the chief executive officer of the Foundation and, subject to the control of the Board, shall have general charge and supervision of the management of the affairs of the Foundation. (c) The President shall cause all orders and resolutions of the Board to be put into effect. 4 (d) The President shall sign and execute all legal documents and instruments in the name of the Foundation when authorized to do so by the Board, except when the signing and execution thereof is delegated by the Board to some other officer or to an agent of the Foundation. SECTION 3.4. Vice President. The Vice President shall, in the event of the absence or disability of the President, discharge the powers and duties of the President, and the Vice President shall perform such additional duties as may be assigned from time to time by the Board. SECTION 3.5. Secretary. (a) The Secretary shall have charge of the records and correspondence of the Foundation under the direction of the President. (b) The Secretary is responsible for the giving of notice of meetings of the Board, and the Secretary shall attend the Board meetings and shall take and keep minutes of, and record all votes cast at, the meetings. (c) The Secretary shall discharge such other duties as may be assigned from time to time by the president or the Board. SECTION 3.6. Treasurer. (a) The Treasurer shall have the custody of all the funds and securities of the Foundation and shall deposit them to the credit of the Foundation in such banks or other depositories as the Board may designate. (b) The Treasurer shall keep proper books of account and other records showing at all times the amount of the funds and other property belonging to the Foundation and of all receipts and disbursements of the Foundation. (c) The Treasurer shall, under the direction of the Board, disburse all money and sign all checks and other instruments drawn on or payable out of the funds of the Foundation and shall also make such transfers and other dispositions of the securities of the Foundation as may be ordered by the Board. (d) The Treasurer shall also discharge such additional duties as may be assigned from time to time by the Board. (e) The Treasurer shall give bond only if required to do so by the Board. (f) The Treasurer shall render to the President and to the Directors an account of all transactions of the treasurer and of the financial condition of the Foundation upon request. (g) Notwithstanding any provision of these Bylaws, the President shall not be permitted to serve as Treasurer. 5 SECTION 3.7. Compensation of Officers. Officers are not entitled to receive any compensation for their services as officers, except for reimbursement of their actual expenses incurred in the performance of their official duties; provided that, the Secretary and Treasurer may be compensated for services rendered. ARTICLE IV MISCELLANEOUS PROVISIONS SECTION 4.1. Time for Taking Effect. These Bylaws shall take effect upon their adoption by the Board. SECTION 4.2. Resignation. (a) Any Director or any officer of the Foundation may resign at any time. (b) A resignation shall be made by written instrument and shall take effect at the time specified therein or, if no time is so specified, at the time of its receipt by the president or the secretary of the Foundation. (c) The acceptance of a resignation is not necessary to make it effective unless expressly so provided in the instrument of resignation. SECTION 4.3. Fiscal Year. The fiscal year of the Foundation shall be the annual period determined by resolution of the Board. SECTION 4.4. Seal. (a) The official sea] of the Foundation shall be as determined by the Board. (b) The seal shall not be necessary to the proper execution by the officers of the Foundation of any document or instrument unless otherwise specified by the Board. SECTION 4.5. Special Requirements. The Foundation shall comply with the following special requirements: (a) The Foundation shall maintain its books and records separate and apart from any other legal entity. (b) The Foundation shall not commingle its assets with the assets of any other legal entity. (c) The Foundation shall maintain financial records separate from any other legal entity. (d) The Foundation shall maintain an "arm's-length" relationship with all other legal entities except as it otherwise required by law. 6 (e) The Foundation shall pay the salaries of its own employees. SECTION 4.6. Amendments. These Bylaws may be amended at any time, and from time to time, by resolution of the Board, which amendment shall not take effect until approved by the governing body of the Town. SECTION 4.7. Interpretation. (a) These Bylaws shall be liberally construed to effect the purposes of the Foundation. (b) If any part of these Bylaws is ruled invalid by a court of competent jurisdiction, the remainder of these Bylaws shall remain in effect to the fullest extent possible under the application of the ruling. (c) References in these Bylaws to the singular number shall include the plural and vice versa (unless the context otherwise requires). 7