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HomeMy WebLinkAboutRes 03-23 Creating a Nonprofit Corporation Pursuant to the Texas Non-Profit Corporation ActTOWN OF WESTLAKE RESOLUTION NO. 03-16 A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, ORDERING THE CREATION OF A NONPROFIT CORPORATION PURSUANT TO THE TEXAS NON-PROFIT CORPORATION ACT, APPROVING ARTICLES OF INCORPORATION AND BYLAWS FOR, AND APPOINTING THE INITIAL DIRECTORS OF, THE CORPORATION, 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 a non-profit corporation (the "Foundation") be created under the Texas Non -Profit Corporation Act (the "Act") to act on behalf of the Town as its duly constituted authority and instrumentality, within the meaning of the Internal Revenue Code of 1986, as amended, for the purpose of providing certain facilities; WHEREAS, the Act empowers, among other things, the Foundation to raise funds and take other actions in order to enhance the educational opportunities to be offered by the open - enrollment charter school operated by the Town (the "Westlake Academy"); WHEREAS, the Board finds that enhancing the educational opportunities offered by the Westlake Academy will contribute to the economic development, civic improvement, and provide educational, cultural, and recreational benefits to the Town and its residents; WHEREAS, it is the intent of this Board that the Foundation shall have all powers authorized under the Act and other law to enable it to engage in fund raising and take other actions for the benefit of the Westlake Academy; WHEREAS, the Articles of Incorporation (the "Articles") of the Foundation shall provide that no modification of the Articles or the Bylaws (the "Bylaws") of the Foundation shall take effect unless approved by this Board; WHEREAS, this Board intends, by the adoption of this Resolution, to take all action necessary to order the creation of the Foundation with all of the corporate powers and authority granted under the Act and other law; 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 finds and determines that it is in the best interest of the Town and its inhabitants that the Foundation, to be named as specified in the Articles, be created pursuant to the Act to act on behalf of the Town as its duly constituted authority and instrumentality for the purposes and with the powers and authority prescribed by the Act and other law. SECTION 3. This Board hereby orders the creation of the Foundation and approves the Articles in substantially the form attached to this Resolution as an exhibit, and hereby authorizes the incorporators of the Foundation (as identified in such Articles) to file the Articles with the Secretary of State in accordance with law. In the event that the name for the Foundation specified in the Articles is not available, the incorporators are hereby authorized to change the Foundation's name in the Articles without the further approval of the Town. SECTION 4. This Board hereby appoints the persons identified in the Articles to serve as the initial members of the board of directors of the Foundation. SECTION 5. This Board hereby approves the initial Bylaws of the Foundation in substantially the form attached to this Resolution as an exhibit. SECTION 6. It is intended that the Foundation be a duly constituted authority and instrumentality of the Town within the meaning of regulations and/or revenue rulings of the Treasury Department and/or the Internal Revenue Service of the United States promulgated under Section 115 of the Internal Revenue Code of 1986. SECTION 7. This Resolution shall take effect immediately upon its adoption. PASSED AND APPROVED ON THIS 10TH DAY OF MARCH 2003. ATTEST: Scott Brad ey, Mayor in rCrosswy, Townwnecretary Trent O. Petty,I Town anager APPROVED AS TO FORM-., / L. ARTICLES OF INCORPORATION of WESTLAKE ACADEMY FOUNDATION We, the undersigned natural persons, of the age of eighteen (18) years or more, acting on behalf of and as directed by the Town of Westlake, Texas (the "Town'), as the incorporators of a nonprofit corporation (the "Foundation') created under the Texas Non -Profit Corporation Act, TEX. REV. CIV. STAT. ANN. Art. 1396 (Vernon 1997), as amended (the "Texas Non -Profit Corporation Act'), do hereby adopt the following Articles of Incorporation for the corporation ("Foundation'): ARTICLE 1 The name of the Corporation is "Westlake Academy Foundation." ARTICLE 11 The Foundation is a nonprofit corporation created under the Texas Non -Profit Corporation Act. 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 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. 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 3 Village Circle, Suite 207, 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 seven. The respective names and addresses of the initial directors, are as follows: Name of Initial Director 1. Michelle Corson, Chairperson 2. To be appointed 3. To be appointed 4. To be appointed 5. To be appointed 6. To be appointed 7. To be appointed Address 1303 Eagle Bend Drive Southlake, TX 76092 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 Scott Bradley 2. Fred Held 3. Don Redding 4. Larry Sparrow 5. Buddy Brown 6. Bill Frey 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 13298 Thornton Drive Westlake, TX 76262 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 these 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 X11 No dividends shall be paid by the Foundation, and no part of its earnings shall be distributed to or inure to the benefit of the Foundation's directors or officers or to any private person, firm, corporation, or association except in reasonable amounts for services rendered. 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 be transferred and delivered to the Town (after satisfaction or provision for satisfaction of the Foundation's debts and claims has been made). 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. IN WITNESS WHEREOF, we have executed these Articles of Incorporation on this 10th day of March, 2003. Sparrow, Incorporator Buddy Brown, Incorporator Incorporator 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 "Acf'). (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 for teaching stipends and rewards for specific academic, technological, and extracurricular disciplines; (iii) providing for the academic and extracurricular needs of special needs students; (iv) providing teacher travel stipends for International Baccalaureate training and certifications; and (v) taking any other action that may benefit the Westlake Academy. (d) In implementing its goals, the Foundation may take any action, as follows: (i) plan, organize, and sponsor special events and fundraising events in support of the Westlake Academy and other civic organizations aiding the Westlake Academy; (ii) seeking and obtaining grants from governmental and non-governmental entities and private individuals; and (iii) taking any action authorized or permitted by law intended to benefit the Westlake Academy. 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 II BOARD OF DIRECTORS SECTION 2.1. Management of Foundation. The Board is responsible for the management of the Foundation. SECTION 2.2. Number, Appointment, Term, Disqualifications, and Removal of Directors. (a) The Directors constituting the initial Board of Directors are those specified in the Articles. (b) The Board of Directors shall consist of seven 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. (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. E (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. 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 TakingEffect. ffect. 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 seal 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. (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