HomeMy WebLinkAboutBylaws - 02/23/20171
BYLAWS OF THE SPRING CREEK LOCAL GOVERNMENT CORPORATION
A Texas Non-Profit Local Government Corporation created by and on behalf of the City
of College Station, Texas
ARTICLE I
Corporate Purpose and Authority
1.01 Purpose. The Spring Creek Local Government Corporation (the “Corporation”) is
organized for the purpose of aiding, assisting, and acting on behalf of the City in the performance
of its governmental functions to promote the common good and general welfare of the City,
including, without limitation, the development of the geographic area of the City included at or in
the vicinity of the “Spring Creek Corporate Campus” as depicted on Exhibit “A”, in furtherance
of the promotion, development, encouragement and maintenance of employment, commerce,
economic development and public facility development in the City of College Station.
The Corporation shall have the power to purchase, exchange, contract for, lease, rent, and
in any and all other ways acquire, own, improve, and hold, and to sell, convey, mortgage, lease,
rent to others, or otherwise dispose of real estate, improvements in real estate, interests in real
estate, and personal property of every kind, character, and description to carry out the purposes of
the Corporation; subject to the approval of the City Council.
In the exercise of the powers of the Corporation, the Corporation may enter into a loan,
lease, trust, or other agreements as authorized by the Act that are necessary and appropriate to the
fulfillment of the public purpose of the Corporation, all of which agreements, and the specific uses,
and the method of withdrawals and expenditure of the proceeds of the bonds or notes, and other
instruments must be included as part of the approval process of the City as required above. In
connection with the issuance of its bonds, notes, or other debt instruments, the Corporation shall
select bond counsel and financial advisors acceptable to the City Manager and City Attorney.
1.02 Non-Profit Corporation. The Corporation shall have and exercise all of the rights,
powers, privileges, and functions given by the general laws of Texas to non-profit corporations
incorporated under the Act, including, without limitation, the Texas Nonprofit Corporation Law
(Tex. Bus. Org. Code, Chapters 20 and 21 and the provisions of Title I thereof to the extent
applicable to non-profit corporations, as amended) or their successor.
1.03 Powers of Non-Profit Corporation. The Corporation shall have all other powers of
a like or different nature not prohibited by law which are available to non -profit corporations in
Texas and which are necessary or useful to enable the Corporation to perform the purposes for
which it was created, including the power to issue bonds, notes or other obligations, and otherwise
exercise its borrowing power to accomplish the purposes for which it was created including the
power to issue bonds, notes or other obligations, and otherwise exercise its borrowing power to
accomplish the purposes for which it was created; provided, however, prior to the consummation
of the sale and delivery of any bonds, notes or other forms of debt instruments, the Corporation
shall obtain the approval thereof from the City Council.
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1.04 Local Government Corporation. The Corporation is created as a local government
corporation pursuant to the Act and shall be a governmental unit within the meaning of Subdivision
(3), Section 101.001, Texas Civil Practice and Remedies Code. The operations of the Corporation
are governmental and not proprietary functions for all purposes, including for purposes of the
Texas Tort Claims Act, Section 101.001, et seq., Texas Civil Practice and Remedies Code.
ARTICLE II
Board of Directors
2.01 Powers Vested in Board. All powers of the Corporation shall be vested in the Board
of Directors consisting of five (5) members (the “Board”). The qualification, selection, terms,
removal, and replacement of the members of the Board of Directors of the Corporation (“Director”
or “Directors”) shall be governed by Article VI of the Certificate of Formation (“Certificate”).
2.02 Initial Board and Transition. The initial Directors shall be those persons named in
Article VIII of the Certificate.
2.03 Governing Documents. All matters pertaining to the internal affairs of the
Corporation shall be governed by these Bylaws, so long as these bylaws are not inconsistent with
the Certificate, and such other documents as required by the City and as the same may be amended
from time to time, or the laws of the State of Texas.
2.04 Voting Rights. All Directors shall have full and equal voting rights. All references
herein to an act, resolution or vote of the Directors shall refer to a vote of the Directors entitled to
vote on the matter as provided herein.
2.05 Meeting Location. The Directors may hold their meetings and may have an office
and keep the books of the Corporation at such place or places within College Station, Texas, as
the Board may from time to time determine; provided, however, in the absence of any such
determination, such place shall be in the registered office of the Corporation.
2.06 Open Meetings. The Board shall meet in accordance with and file notice of each
meeting of the Board for the same length of time and in the same manner and location as is required
of the City under Chapter 551 of the Texas Government Code (the “Open Meetings Act”). In
addition, all Board meetings shall be posted at City Hall and on the City’s website. Board meetings
shall be recorded and, with the exception of recordings of closed sessions under the Open Meetings
Act, such recordings shall be made available on the Corporation’s website, or, in the absence of a
website, on the City’s website.
2.07 Public Information. The Corporation, the Board, and any committee of the Board
exercising the powers of the Board are subject to Chapter 552 of the Texas Government Code (the
“Public Information Act”).
2.08 Annual Meetings. The Board shall hold an annual meeting at a time and at a
location in the City as designated by the Board for the purposes of electing officers and transacting
any other business related to the Corporation.
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2.09 Special and Emergency Meetings. Special and emergency meetings of the Board
shall be held whenever called by the President of the Board or the Secretary of the Board or by
any two (2) of the Directors who are serving duly appointed terms of office at the time the meeting
is called. A majority of the Board must be present for any special called or emergency meeting.
The Secretary shall give notice of each special meeting to each Director in person, by telephone,
by electronic transmission (e.g. facsimile or electronic mail) or mail via the United States Postal
Service at least seventy-two (72) hours prior to the meeting in accordance with the Open Meetings
Act. An emergency meeting may only be held as permitted under the Open Meetings Act.
2.10 Quorum. A majority of the entire Board (three (3) Directors) shall constitute a
quorum for the consideration of matters pertaining to the purposes of the Corporation. If at any
meeting of the Board there is less than a quorum present, those present may adjourn the meeting.
The vote of a majority of the entire membership of the Board in favor of a motion, resolution, or
other act shall be required to constitute the act of the Board, unless the vote of a greater number of
Directors is required by law, by the Certificate, or by these Bylaws.
2.11 Assent Presumed Without Express Abstention or Dissent. A Director who is present
at a meeting of the Board at which any corporate action is taken shall be presumed to have assented
to such action unless such person’s dissent or abstention shall be entered in the minutes of the
meeting or unless such person shall file a written dissent or abstention to such action with the
person acting as the secretary of the meeting before the adjournment thereof. Such right to dissent
or abstain shall not apply to a Director who voted in favor of the action.
2.12 Conduct of Business. At the meetings of the Board, matters pertaining to the
purpose of the Corporation shall be considered in such order as the Board may from time to time
determine. At all meetings of the Board, the President shall preside, and in the absence of the
President, the Vice President shall preside. The Secretary of the Corporation shall act as secretary
of all meetings of the Board, but in the absence of the Secretary, the presiding officer may appoint
any person to act as secretary of the meeting.
2.13 Executive Committee, Other Committees. The Board may, by resolution passed by
a majority of the entire Board, designate two (2) or more Directors to constitute an executive
committee or other type of committee. In addition, the Board may appoint members of the
Corporation staff and citizens and/or employees of the City to be members of a committee, except
for an Audit, Compensation or Governance Committee, which committees may only be composed
of Directors.
2.14 Power of Committees. Except to the extent provided in the authorizing resolution
for the committee, a committee may not exercise the authority of the Board. Each committee so
designated shall keep regular minutes of the transactions of its meetings, shall cause such minutes
to be recorded in books kept for that purpose in the office of the Corporation, and shall report the
same to the Board from time to time. Committees authorized to exercise the powers of the Board
shall give notice of any meeting in the manner required for a meeting of the Board.
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2.15 Compensation of Directors. Directors, as such, shall receive no salary or
compensation for their services as Directors; provided, however, Directors may be reimbursed for
reasonable and necessary expenses incurred in carrying out the Corporation’s purposes.
2.16 Director’s Reliance on Consultant Information. A Director shall not be liable if,
while acting in good faith and with ordinary care, such person relies on information, opinions,
reports or statements, including financial statements and other financial data, concerning the
Corporation or another person that were prepared or presented by:
(a) one or more officers or employees of the Corporation;
(b) an employee of the City;
(c) legal counsel, public accountants, or other persons as to matters the officer
reasonably believes are within the person’s professional or expert competence;
or
(d) a committee of the Board of which the Director is not a member.
ARTICLE III
Officers
3.01 Titles and Terms of Office. The officers of the Corporation shall be a President, a
Vice President, a Secretary, a Treasurer, and such other officers as the Board may from time to
time elect or appoint. Each officer shall be a current Director. One person may hold more than one
office, except the President shall not hold the office of Secretary. The term of office for each officer
shall be one (1) year and shall serve from October 1 through the following September 30, except
that such office shall terminate on the earlier of: (a) the date that the officer is replaced by the
Board; or (b) the date that the officer is no longer a member of the Board.
All officers shall be appointed and subject to removal at any time, with or without cause,
by a vote of a majority of the entire Board.
A vacancy in any office elected pursuant to this Article III shall be filled by a majority of
the entire Board.
3.02 Powers and Duties of the President. The President shall be a member of the Board and
shall preside at all meetings of the Board. The President shall be the principal executive officer of
the Corporation and shall be in general charge of the properties and affairs of the Corporation. In
furtherance of the purposes of the Corporation and subject to the limitations contained in the
Certificate, the President or Vice President may sign and execute all bonds, notes, deeds,
conveyances, assignments, mortgages, contracts and other obligations in the name of the
Corporation. The President shall have such other duties as may be assigned to him or her by the
Board. The President may call meetings of the Board as provided in Article II of these Bylaws.
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3.03 Powers and Duties of the Vice President. A Vice President shall be a member of
the Board and shall have such powers and duties as may be assi gned to such person by the Board
or the President, including the performance of such duties of the President upon the death, absence,
disability, or resignation of the President, or upon the President’s inability to perform the duties of
the office. Any action taken by the Vice President in the performance of the duties of the President
shall be conclusive evidence of the absence or inability to act of the President at the time such
action was taken.
3.04 Treasurer. The Treasure shall have custody of all the funds and securities of the
Corporation which come into possession of the Corporation. When necessary or proper, the
Treasurer: (a) may endorse, on behalf of the Corporation, for collection, checks, notes and other
obligations and shall deposit the same to the credit of the Corporation in such bank or banks or
depositories as shall be designated in the manner prescribed by the Board; (b) may sign all receipts
and vouchers for payments made to the Corporation, either alone or jointly with such other officer
as is designated by the Board; (c) shall enter or cause to be entered regularly in the books of the
Corporation to be kept by such person for that purpose full and accurate accounts of all moneys
received and paid out on account of the Corporation; (d) shall perform all acts incident to the
position of treasurer subject to the control of the Board; and € shall, if required by the Board, give
such bond for the faithful discharge of his or her duties in such form as the Board may require.
The Corporation may contract with the City to provide financial services for the Corporation in
deciding the performance of the duties of the Treasurer set forth in this section 3.04.
3.05 Secretary. The Secretary: (a) shall keep the minutes of all meetings of the Board
in the books provided for that purpose; (b) shall attend to the giving and serving of all notices; (c)
in furtherance of the purposes of the Corporation and subject to the limitations contained in the
Certificate, may sign with the President in the name of the Corporation and/or attest to signatures
thereof, all contracts, conveyances, bonds, deeds, assignments, mortgages, and other instruments
of the Corporation; (d) shall have charge of the Corporation’s books, records, documents and
instruments, except the books of account and financial records and securities of which the
Treasurer shall have custody and charge, and such other books and papers as the Board may direct,
all of which shall at all reasonable times be open to the inspection of any Director upon application
at the office of the Corporation during business hours; and shall in general perform all duties
incident to the office of Secretary subject to the control of the Board. Nothing in this section 3.05
shall be construed as prohibiting the Board or the City from providing to the Secretary such support
as may be reasonable and necessary to assist the Secretary in carrying out the duties set forth
herein.
3.06 Compensation. Officers shall serve without compensation for their duties, but are
entitled to receive reimbursement for their reasonable expenses only in performing their functions
in accordance with any policies that may be adopted by the Board.
3.07 Officer’s Reliance on Consultant Information. In the discharge of a duty imposed
or power conferred on an officer of the Corporation, the officer may in good faith and with ordinary
care, rely on information, opinions, reports or statements, including financial statements and other
financial data, concerning the Corporation or another person that were prepared or presented by:
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(a) one or more officers or employees of the Corporation, including members of
the Board;
(b) an employee of the City; or
(c) legal counsel, public accountants, or other persons as to matters the officer
reasonably believes are within the person’s professional or expert competence.
ARTICLE IV
Financial Responsibilities
4.01 Audit. Not later than one hundred twenty (120) days after the close of each fiscal
year, the Board shall have an annual audit prepared by an independent auditor who is duly licensed
or certified as a public accountant in the State of Texas of the financial books and records of the
Corporation. The Corporation shall provide a copy of the completed audit to the City not later than
fifteen (15) days after its receipt by the Corporation.
4.02 Capital Spending Authority. The Board may expend funds for capital
improvements in accordance with a capital improvement plan approved by the Board for the
current fiscal year budget as follows:
(a) Funds from the City shall be used for the purposes of the Corporation as authorized
and directed by the City.
(b) Funds from other sources, such as donations, may be used at the discretion of the
Board for capital purposes as long as the uses are consistent with the direction of
the City and are not reasonably expected by the Board to increase the operation and
maintenance costs of the Corporation above the limits established in Section 4.04
below, or have a capital cost greater than $100,000.00.
(c) Proceeds of bonds, notes or other obligations shall be expended in accordance with
the terms of the resolution authorizing the issuance of such bonds, notes or other
obligations.
4.03 Issuance of Debt.
(a) The Corporation, with the approval of the City, is authorized to issue short -term
debt in the form of bonds, notes, and other obligations which by their terms mature
and are payable not later than one (1) year from their initial date of issuance. Where
possible, the amount and purpose of the short-term debt shall be projected by the
Corporation in its annual budget to the City. The City shall be given first
opportunity to provide these funds before the Board incurs debt.
(b) The Corporation, with the approval of the City, is authorized to issue long-term
debt in the form of bonds, notes or other obligations which by their terms mature
and are payable beyond one (1) year from their initial date of issuance. Long term
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debt may be issued to finance capital improvements and costs related thereto, and
to refund or refinance any outstanding bonds, notes, or obligations issued or
incurred by the Corporation, or for such other reasons as may be approved by the
City.
(c) Short-term debt as defined in Subsection (a) and long-term debt as defined in
Subsection (b) of this Section 4.03 may be issued only if:
(i) The issuance of said debt is approved by a majority of the entire
Board; and
(ii) The issuance of said debt is approved by resolution or ordinance of
the City.
(d) Any debt issuance approved by the City shall be paid from any source or sources
permitted by law including the income and revenue of the Corporation.
4.04 Increase in O&M Costs. Except for items mandated by changes in state and federal
law or regulation that could not reasonably have been anticipated prior to submission of the
Corporation’s budget to the Cities for review and comment, in the event any one or more items are
added during a fiscal year that would increase or cause the annual operation and maintenance costs
to exceed ten percent (10%) above the budgeted amount for that year, the Board must receive prior
approval from the City prior to making the addition.
4.05 Fiscal Year. The fiscal year of the Corporation shall begin October 1 of each year.
4.06 Annual Budget.
(a) No later than ninety (90) days prior to the beginning of each fiscal year, the Board
shall prepare, or cause to be prepared, and approve a budget (the “Budget”) for the
fiscal year. The Budget must be approved by a majority vote of the entire Board.
After approval by the Board, the Budget shall be submitted to the City for approval.
Failure of the City to reject, to ask for additional information regarding, or to
request a modification of, the Budget approved by the Board on or before the
thirtieth (30th) day after submission of the Budget to the City shall be deemed an
approval of the Budget by the City (and a request for additional information or for
modification may be provided by an employee of the City).
(b) The Budget shall, at a minimum, include capital, operational, debt service and
project-specific expenditures and corresponding revenues. The Budget shall clearly
indicate the sources and purposes of revenues contributed by the City.
(c) If the Board fails to approve the Budget, then the Budget for the prior fiscal year
shall be deemed approved.
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4.07 Sale or Transfer of Assets. The Corporation may not sell, transfer or assign real
property in whole or in part, without the approval of the Board. After approval by the Board, the
proposed sale, transfer or assignment of the assets (the “Asset Transfer”) must be submitted to the
City for approval. Notwithstanding the foregoing, the Board shall not be required to obtain the
City’s consent to sell, convey, or transfer to a third party personal property of the Corporation
determined by the Board to be surplus and which has a depreciated value of less than $1000.00.
ARTICLE V
Indemnification of Directors and Officers
5.01 Right to Indemnification. Subject to the limitations and conditions as provided in
this Article V and the Certificate, each person who was or is made a party or is threatened to be
made a party to or is involved in any threatened, pending or completed action, suit or proceeding,
whether civil, administrative, arbitrative or investigative (hereinafter a “proceeding”), or any
appeal in such a proceeding or any inquiry or investigation that could lead to such a proceeding,
by reason of the fact that he or she, or a person for whom he or she is the legal representative, is
or was a Director or officer of the Corporation shall be indemnified by the Corporation to the
fullest extent permitted by the Texas Nonprofit Corporation Law, as the same exist s or may
hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide prior to such amendment) against judgments,
penalties, fines, settlements, and reasonable expenses (including, without limitation, attorney’s
fees) actually incurred by such person to indemnity hereunder. The rights granted pursuant to this
Article XV shall be deemed contract rights, and no amendment, modification, or repeal of this
Article XV shall have the effect of limiting or denying any such rights with respect to action taken
or proceedings arising prior to any such amendment, modification, or repeal. It is expressly
acknowledged that the indemnification provided in this Article XV could involve indemnification
for negligence or under theories of strict liability. This indemnification does not apply to deliberate
or criminal acts of such person or persons subject to indemnification hereunder.
5.02 Indemnification of Employees and Agents. The Corporation, by adoption of
resolution of the Board, may indemnify and advance expenses to an employee or agent of the
Corporation to the same extent and subject to the same conditions under which it may indemnify
and advance expenses to Directors and officers under this Article V.
5.03 Appearance as a Witness. Notwithstanding any other provision of this Article V,
the Corporation may pay or reimburse expenses incurred by a Director, officer, employee or agent
in connection with his or her appearance as a witness or other participation in a proceeding
involving the Corporation or its business at a time when he or she is not a named defendant or
respondent in the proceedings.
5.04 Non-exclusivity of Rights. The right to indemnification and the advancement and
payment of expenses conferred in this Article V shall not be exclusive of any other right which a
Director, officer, employee or agent indemnified pursuant to Section 5.02 above, may have or
hereafter acquire under any law (common or statutory), provision of this Certificate of Formation
or the Bylaws of the Corporation, agreement, or vote of disinterested Directors or otherwise.
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5.05 Insurance. The Corporation shall purchase and maintain insurance, at its sole cost
and expense to protect itself and any person who is or was serving as 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, venture, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, partnership, joint venture, proprietorship, employee benefit plan,
trust or other enterprise against any expense, liability or loss, whether the Corporation would have
the power to indemnify such person against such expense, liability or loss under this Article V.
5.06 Notification. Any indemnification of a Director or officer in accordance with this
Article XV shall be reported in writing to the members of the Board with or before the notice of
the next regular meeting of the Board and, in any case, within the 12-month period immediately
following the date of the indemnification or advance.
5.07 Savings Clause. If this Article V or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify
and hold harmless each Director, officer or any other person indemnified pursuant to this Article
V as to costs, charges and expenses (including attorneys’ fees), judgments, fines, and in amounts
paid in settlement with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to the full extent permitted by any applicable portion of this Article
V that shall not have been invalidated and to the fullest extent permitted by applicable law.
ARTICLE VI
Code of Ethics
6.01 Policy. It is the policy of the Corporation that Directors and officers conduct
themselves in a manner consistent with sound business and ethical practices; that the public interest
always be considered in conducting corporate business; that the appearance of im propriety be
avoided to ensure and maintain public confidence in the Corporation; and that the Board establish
policies to control and manage the affairs of the Corporation fairly, impartially, and without
discrimination.
6.02 Purposes. This Code of Ethics has been adopted as part of the Corporation’s
Bylaws for the following purposes: (a) to encourage high ethical standards in official conduct by
Directors and corporate officers; and (b) to establish guidelines for such ethical standards of
conduct.
6.03 Conflicts of Interest.
(a) Abide by State and Criminal Laws for Public Officers. All Directors, officers and
employees shall abide by state civil and criminal laws regarding conflicts of
interest, official misconduct and other regulations and restrictions involving their
official duties.
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(b) Disclosure and Abstention. It is the intent of these Bylaws that the Directors and
officers take all steps to avoid the appearance of impropriety in the conduct of their
affairs on behalf of the Corporation. This includes not engaging in any conduct or
business that may be deemed to compromise their independent judgment in
executing their duties as Corporation officials. In the event that a Director or officer
has a financial or equitable interest, direct or indirect, in a transaction that comes
before the Board, or a committee, the affected Director must:
(i) Disclose that interest in writing and file it with the Board Secretary; and
(ii) Refrain from discussing or voting on the same.
(c) Definition of Financial Interest/Relative. The “financial or equitable interest”
contemplated under (b) of this Section requires that the affected person who is the
Director or officer or their relative receive an actual financial benefit from the
transaction with the Corporation. A relative is a person related within the first
degree of consanguinity or affinity to the Director or officer. A financial or
equitable interest does not include the following:
(i) An ownership in the entity transacting business with the Corporation where
the ownership interest is less than one percent (1%).
(ii) Compensation as an employee, officer or director of the entity transacting
business with the Corporation where such compensation is not affected by
the entity’s transaction with the Corporation.
(iii) An investment or ownership in a publicly held company in an amount less
than Ten Thousand Dollars ($10,000.00).
(iv) The status of the person being an employee of a public entity serving as
Director of the Board.
6.04 Acceptance of Gifts. No Director of officer shall accept an y benefit as consideration
for any decision, opinion, recommendation, vote or other exercise of discretion in carrying
out official acts for the Corporation. No Director or officer shall solicit, accept, or agree to
accept any benefit from a person known to be interested in or likely to become interested
in any contract, purchase, payment, claim or transaction involving the exercise of the
Director’s or officer’s discretion. As used here “benefit” does not include:
(a) A fee prescribed by law to be received by a Director or officer or any other benefit
to which the Director or officer is lawfully entitled or for which he gives legitimate
consideration in a capacity other than as a Director or officer;
(b) A gift or other benefit conferred on an account of kinship or a personal,
professional, or business relationship independent of the official status of the
Director or officer;
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(c) An honorarium in consideration for legitimate services rendered above and beyond
official duties and responsibilities if:
(i) Not more than one honorarium is received from the same person in a
calendar year;
(ii) Not more than one honorarium is received from the same service; and
(iii) The value of the honorarium does not exceed $250.00 exclusive of
reimbursement for travel, food, and lodging expenses incurred by the
Director or officer in performance of the services.
(d) A benefit consisting of food, lodging, transportation, or entertainment accepted as
a guest is reported as may be required by law.
6.05 Nepotism. No Director or officer shall appoint, or vote for, or confirm the
appointment to any office, position, clerkship, employment or duty, of any person related within
the second degree of affinity or within the third degree of consanguinity to the Director or officer
so appointing, voting, or confirming, or to any other Director or officer.
ARTICLE VII
Miscellaneous Provisions
7.01 Seal. The seal of the Corporation shall be such as may be from time to
time approved by the Board. The seal of the Corporation shall not be required to be placed on a
document in order for the document to be considered a valid act or agreement of the Corporation.
7.02 Notice and Waiver of Notice. Whenever any notice, other than public
notice of a meeting given to comply with the Open Meetings Act, is required to be given under the
provisions of these Bylaws, such notice shall be deemed to be sufficient if given by depositing the
same in a post office box in a sealed postpaid wrapper addressed to the person entitles thereto at
his or her post office address, as it appears on the books of the Corporation, and such notice shall
be deemed to have been given on the day of such mailing. If transmitted by facsimile or email,
such notice shall be deemed to be delivered upon successful transmission of the facsimile or email.
A Director may waive notice of any meeting. The attendance of a Director at any meeting shall
constitute a waiver of notice of such meeting unless such attendance is for the purpose of objecting
to the failure of notice. A waiver of notice, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent thereto.
7.03 Gender. References herein to the masculine gender shall also refer to the
feminine in all appropriate cases and vice versa.
8.04 City Access to Records of Corporation. Notwithstanding the provisions of
the Public Information Act or any exceptions contained therein to disclosure and the rights or
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limitations thereof regarding the review of record of Texas non-profit corporations, the City shall
have a special right to review and obtain copies of the records of the Corporation, regardless of
format, upon reasonable notice and during regular business hours of the Corporation. Such special
right of access includes the right of the City’s Internal Auditor to access necessary records and to
conduct financial audits at the direction of the City’s governing body.
8.05 Amendments. A proposal to alter, amend or repeal these Bylaws shall be
made by the affirmative vote of a majority of the entire Board at any annual or special meeting if
notice of the proposed amendment be contained in the notice of the special meeting. However, any
proposed change or amendment to the Bylaws must be approved by resolution of the City to be
effective.
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CERTIFICATE OF FORMATION
OF
SPRING CREEK LOCAL GOVERNMENT CORPORATION
We, the undersigned natural persons, each of whom is at least eighteen (18) years of age
or more, and a resident and a qualified voter of the City of College Station, Texas (the “City”), and
a citizen of the State of Texas, acting as incorporators of a corporation under the provisions of
Subchapter D of Chapter 431, Texas Transportation Code (the “Act”), and Chapter 394, Texas
Local Government Code, do hereby adopt the following Certificate of Formation for such
corporation:
ARTICLE I
Corporation Name
The name of the corporation is the SPRING CREEK LOCAL GOVERNMENT
CORPORATION (the “Corporation”).
ARTICLE II
Nature of Corporation
The Corporation is a public non-profit corporation.
ARTICLE III
Duration of Corporation
The period of duration of the Corporation shall be perpetual.
ARTICLE IV
Corporate Purpose and Authority
4.01 The Corporation is organized for the purpose of aiding, assisting, and acting on
behalf of the City in the performance of its governmental functions to promote the common good
and general welfare of the City, including, without limitation, the development of the geographic
area of the City included at or in the vicinity of the “Spring Creek Corporate Campus” as depicted
on Exhibit “A”, in furtherance of the promotion, development, encouragement and maintenance
of employment, commerce, economic development and public facility development in the City of
College Station.
4.02 The Corporation shall have the power to purchase, exchange, contract for, lease,
rent, and in any and all other ways acquire, own, improve, and hold, and to sell, convey, mortgage,
lease, rent to others, or otherwise dispose of real estate, improvements in real estate, int erests in
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real estate, and personal property of every kind, character, and description to carry out the purposes
of the Corporation; subject to the approval of the City Council.
4.03 The Corporation shall have and exercise all of the rights, powers, privileges, and
functions given by the general laws of Texas to non-profit corporations incorporated under the
Act, including, without limitation, the Texas Nonprofit Corporation Law (Tex. Bus. Org. Code,
Chapters 20 and 21 and the provisions of Title I thereof to the extent applicable to non-profit
corporations, as amended) or their successor.
4.04 The Corporation shall have all other powers of a like or different nature not
prohibited by law which are available to non-profit corporations in Texas and which are necessary
or useful to enable the Corporation to perform the purposes for which it was created, including the
power to issue bonds, notes or other obligations, and otherwise exercise its borrowing power to
accomplish the purposes for which it was created; provided, however, prior to the consummation
of the sale and delivery of any bonds, notes or other forms of debt instruments, the Corporation
shall obtain the approval thereof from the City Council.
4.05 In the exercise of the powers of the Corporation, the Corporation may enter into a
loan, lease, trust, or other agreements as authorized by the Act that are necessary and appropriate
to the fulfillment of the public purpose of the Corporation, all of which agreements, and the specific
uses, and the method of withdrawals and expenditure of the proceeds of the bonds or notes, and
other instruments must be included as part of the approval process of the City as required above.
In connection with the issuance of its bonds, notes, or other debt instruments, the Corporation shall
select bond counsel and financial advisors acceptable to the City Manager and City Attorney.
4.06 The Corporation is created as a local government corporation pursuant to the Act
and shall be a governmental unit within the meaning of Subdivision (3), Section 101.001, Texas
Civil Practice and Remedies Code. The operations of the Corporation are governmental and not
proprietary functions for all purposes, including for purposes of the Texas Tort Claims Act, Section
101.001, et seq., Texas Civil Practice and Remedies Code.
ARTICLE V
No Members or Shareholders
The Corporation shall have no members and shall have no stock.
ARTICLE VI
Board of Directors
6.01 All powers of the Corporation shall be vested in the Board of Directors (the
“Board”). To be eligible to serve as a Director, a person must be a resident and qualified elector of
the City. The Board shall consist of five (5) persons who shall be appointed by the City Council
of the City (each a “Director”). The initial five (5) Directors of the Board shall be those persons
named in Article VIII, below. With respect to the initial Board, the terms of the initial Directors
3
shall commence on the date the Secretary of State issues the certificate of incorporation for the
Corporation and each shall serve for the term expiring on the date set forth thereon. The Mayor of
the City shall serve as a Director and shall serve as President of the Board. The remaining Directors
may be members of the City Council of the City, City officers or emplo yees, or residents of the
City whom the City Council determines have a special knowledge or expertise that would be
beneficial to the Corporation, such as a banker or realtor. If a Director ceases to be an elected
official, officer or employee of the City, or a resident of the City, he or she shall be disqualified
from serving as a Director.
6.02 Except as provided herein, each Director shall serve a term of office of two (2)
years, or until his or her successor is appointed by the City Council of the City, unless such Director
has been appointed to fill an unexpired term, in which case the term of such Director shall expire
on the expiration date of the term of the Director who he or she was appointed to replace. Initial
and subsequent Directors shall be eligible for reappointment; provided, however, that no Director
may serve longer than six (6) years consecutively, unless such service is required to complete an
unexpired term or in order to serve until a successor is appointed. A majority of the Board must at
all times be residents of the City. Any Director may be removed from office at any time, with or
without cause, by the City Council of the City.
6.03 Vacancies on the Board that occur before the end of a Director’s term shall be filled
in the same manner as appointments made under this section.
6.04 All other matters pertaining to the internal affairs of the Corporation shall be
governed by the Bylaws of the Corporation, so long as such Bylaws are not inconsistent with this
Certificate of Formation or the laws of the State of Texas.
ARTICLE VII
Registered Office and Agent
The street address of the initial registered office of the Corporation is 1101 Texas Avenue,
College Station, Texas 77842, and the name of the initial registered agent at such address is Kelly
Templin.
ARTICLE VIII
Initial Directors
The names and addresses of the initial Directors are:
NAME ADDRESS INITIAL TERM EXPIRES
Karl Mooney 1101 Texas Avenue September 30, 2018
College Station, Texas 77842
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James Benham 1101 Texas Avenue September 30, 2018
College Station, Texas 77842
Julie Schultz 1101 Texas Avenue September 30, 2019
College Station, Texas 77842
_________________ 1101 Texas Avenue September 30, 2019
College Station, Texas 77842
_________________ 1101 Texas Avenue September 30, 2019
College Station, Texas 77842
ARTICLE IX
Incorporators
The names and street addresses of the incorporators, each of whom resides within the City,
are:
Karl Mooney 1101 Texas Avenue
College Station, Texas 77842
James Benham 1101 Texas Avenue
College Station, Texas 77842
Julie Schultz 1101 Texas Avenue
College Station, Texas 77842
ARTICLE X
Approval of Certificate of Formation
Resolution Number ___________ approving the form and substance of this
Certificate of Formation was adopted b y the City Council of the City of College Station, Texas on
___________.
ARTICLE XI
Director Liability
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 acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, (ii) for any transaction
for 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 (iii) for acts or omissions for which the
liability of the Director is expressly provided by statute. Any repeal or amendment of this Article
5
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,
a Director shall not be liable to the fullest extent permitted by any amendment to the Texas statutes
hereafter enacted that further limits the liability of a Director.
ARTICLE XII
Limits on Use of Corporate Assets; Income of Corporation
12.01 In accordance with the provisions of Section 501(c)(3) of the Internal Revenue
Code (the “CODE”) and regardless of any provisions of this Certificate of Formation or the laws
of the State of Texas, the Corporation shall not:
A. 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 in effecting one or more of its purposes);
B. Direct any of its activities to attempting to influence legislation by propaganda or
otherwise;
C. Participate in, or intervene in (including the publication or distribution of statements),
any political campaign on behalf of any candidate for public office; or
D. Attempt to influence the outcome of any election for public office or to carry on,
directly or indirectly, any voter registration drives.
12.02 Any income earned by the Corporation after payment of reasonable expenses, debt
and such reserves as may be necessary as set forth in the authorizing documents related to the
issuance of debt by the Corporation shall accrue to the City.
12.03 The City shall, at all times, have an unrestricted right to receive any income earned
by the Corporation, exclusive of amounts needed to cover reasonable expenditures and reasonable
reserves for future activities. Any income of the Corporation received by the City shall be
deposited into such account or fund as determined by the City Council of the City. No part of the
Corporation’s income shall inure to the benefit of any private interests.
ARTICLE XIII
Corporation as Private Foundation
If the Corporation is a private foundation within the meaning of Section 509(a) of the Code,
the Corporation: (a) 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; (b) shall not engage in any act of self-dealing as defined in Section 4941(d) of the Code;
(c) shall not retain any excess business holdings as defined in Section 4943(c) of the Code; (d)
6
shall not make any investments in such manner as to subject it to tax under Section 4944 of the
Code; and (e) shall not make any taxable expenditures as defined in Section 4945(d) of the Code.
ARTICLE XIV
Dissolution
14.01 If the Board of Directors determines by resolution that the purposes for which the
Corporation was formed have been substantially met and all bonds issued by and all obligations
incurred by the Corporation have been fully paid or provision made for such payment, the Board
shall execute a certificate of dissolution which states those facts and declares the Corporation
dissolved in accordance with the requirements of the Act or with applicable law then in existence.
In the event of dissolution or liquidation of the Corporation, all assets will be turned over to the
City for deposit into such account or fund as the City Council of the City should direct.
14.02 Subject to any restrictions contained in applicable state law, if the City considers
and approves a resolution or ordinance directing the Board to proceed with the dissolution of the
Corporation, the Board shall promptly proceed with the dissolution of the Corporation. The failure
of the Board to promptly proceed with the dissolution of the Corporation in accordance with this
Section 14.02 shall be deemed a cause for the removal from office of any or all of the Directors as
permitted by Article VI of this Certificate of Formation.
ARTICLE XV
Indemnification of Directors and Officers
15.01 Right to Indemnification. Subject to the limitations and conditions as provided in
this Article XV and the Bylaws of the Corporation, each person who was or is made a party or is
threatened to be made a party to or is involved in any threatened, pending or completed action, suit
or proceeding, whether civil, administrative, arbitrative or investigative (hereinafter a
“proceeding”), or any appeal in such a proceeding or any inquiry or investigation that could lead
to such a proceeding, by reason of the fact that he or she, or a person for whom he or she is the
legal representative, is or was a Director or officer of the Corporation shall be indemnified by the
Corporation to the fullest extent permitted by the Texas Nonprofit Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide prior to such amendment) against
judgments, penalties, fines, settlements, and reasonable expenses (including, without limitation,
attorney’s fees) actually incurred by such person to indemnity hereunder. The rights granted
pursuant to this Article XV shall be deemed contract rights, and no amendment, modification, or
repeal of this Article XV shall have the effect of limiting or denying any such rights with respect
to action taken or proceedings arising prior to any such amendment, modification, or repeal. It is
expressly acknowledged that the indemnification provided in this Article XV could involve
indemnification for negligence or under theories of strict liability. This indemnification does not
apply to deliberate or criminal acts of such person or persons subject to indemnification hereunder.
7
15.02 Indemnification of Employees and Agents. The Corporation, by adoption of
resolution of the Board, may indemnify and advance expenses to an employee or agent of the
Corporation to the same extent and subject to the same conditions under which it may indemnify
and advance expenses to Directors and officers under this Article XV.
15.03 Appearance as a Witness. Notwithstanding any other provision of this Article XV,
the Corporation may pay or reimburse expenses incurred by a Director, officer, employee or agent
in connection with his or her appearance as a witness or other participation in a proceeding
involving the Corporation or its business at a time when he or she is not a named defendant or
respondent in the proceedings.
15.04 Non-exclusivity of Rights. The right to indemnification and the advancement and
payment of expenses conferred in this Article XV shall not be exclusive of any other right which
a Director, officer, employee or agent indemnified pursuant to Section 15.02 above, may have or
hereafter acquire under any law (common or statutor y), provision of this Certificate of Formation
or the Bylaws of the Corporation, agreement, or vote of disinterested Directors or otherwise.
15.05 Insurance. The Corporation shall purchase and maintain insurance, at its sole cost
and expense to protect itself and any person who is or was serving as 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, venture, proprietor, trustee, employee, agent or similar functionary of another
foreign or domestic corporation, partnership, joint venture, proprietorship, employee benefit plan,
trust or other enterprise against any expense, liability or loss, whether the Corporation would have
the power to indemnify such person against such expense, liability or loss under this Article XV.
15.06 Notification. Any indemnification of a Director or officer in accordance with this
Article XV shall be reported in writing to the members of the Board with or before the notice of
the next regular meeting of the Board and, in any case, within the 12-month period immediately
following the date of the indemnification or advance.
15.07 Savings Clause. If this Article XV or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify
and hold harmless each Director, officer or any other person indemnified pursuant to this Article
XV as to costs, charges and expenses (including attorneys’ fees), judgments, fines, and in amounts
paid in settlement with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to the full extent permitted by any applicable portion of this Article
XV that shall not have been invalidated and to the fullest extent permitted by applicable law.
ARTICLE XVI
Amendments
This Certificate of Formation may not be changed or amended unless approved in writing
by the City.
8
IN WITNESS WHEREOF, we have hereunto set our hands this ____ day of _______,
20__.
____________________________
Karl Mooney
Incorporator
____________________________
James Benham
Incorporator
____________________________
Julie Schultz
Incorporator
STATE OF TEXAS }
}
COUNTY OF BRAZOS }
Before me, on this day personally appeared Karl Mooney, known to me to be the person whose
name is subscribed to the foregoing document and, being by me first duly sworn, declared that
the statements therein contained are true and correct.
__________________________________
Notary Public, State of Texas
9
STATE OF TEXAS }
}
COUNTY OF BRAZOS }
Before me, on this day personally appeared James Benham, known to me to be the person whose
name is subscribed to the foregoing document and, being by me first duly sworn, declared that
the statements therein contained are true and correct.
__________________________________
Notary Public, State of Texas
STATE OF TEXAS }
}
COUNTY OF BRAZOS }
Before me, on this day personally appeared Julie Schultz, known to me to be the person whose
name is subscribed to the foregoing document and, being by me first duly sworn, declared that
the statements therein contained are true and correct.
__________________________________
Notary Public, State of Texas
10
EXHIBIT A
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PRELIMINARY Interim review only. Document is not complete and may not be used for regulatory approval, permit, or construction. Architect: Charles N Burris Registration No: 7904 Date: 4/27/15
A1Spring CreekCorporate CampusCollege Station, Texas,Project 1230
April 2015
Revisions
Number!!Date
The Arkitex Studio, Inc. is providing, by
agreement with certain parties, materials
stored electronically. The parties recognize
that data, plans, specifications, reports,
documents, or other information recorded
on or transmitted as electronic media
(including but not necessarily limited to
"CAD documents") are subject to
undetectable alteration, either intentional
or unintentional, due to, among other
causes, transmission, conversion, media
degradation, software error, or human
alteration. Accordingly, all such documents
are provided to the parties for informational
purposes only and not as an end product
or as a record document. Any reliance
thereon is deemed to be unreasonable and
unenforceable. The signed and/or stamped
hard copies of the Architect's Instruments
of Service are the only true contract
documents of record.
1 GENERAL SITE MAP
Scale: +/- 1 : 4800
0'2400'4800'9600'