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CC Resolution No. 2587RESOLUTION NO.2587 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND APPROVING THE CREATION OF BAYTOWN HOSPITALITY PUBLIC FACILITIES CORPORATION; AUTHORIZING AND APPROVING THE ARTICLES OF INCORPORATION FOR THIS PUBLIC FACILITIES CORPORATION; MAKING OTHER APPROPRIATE DETERMINATIONS IN CONNECTION TI IEREWITH; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ****************************************************************************** WHEREAS, Chapter 303, Texas Local Government Code, as amended (the "Act"), authorizes municipalities to create one or more nonmember, nonstock, nonprofit public facilities corporations to act on behalf of the sponsoring municipality for the purpose of financing or providing for the acquisition, construction, rehabilitation, renovation, repair, equipping, furnishing, and placement in service of "public facilities" (as defined in the Act) of the sponsor in an orderly, planned manner and at the lowest possible costs (collectively, the "Public Purposes"); and WHEREAS, the City Council (the "Governing Body") of the City of Baytown, Texas (the "City"), has determined that it is in the public interest and to the benefit of its residents and the citizens of the State of Texas (the "State") to authorize the creation of a nonprofit public facilities corporation (the "Corporation") to act on behalf of the City, as such Corporation's sponsoring entity, to accomplish, with respect to certain public facilities within the City, the Public Purposes (with such primary purpose being the Corporation's serving as the owner of the Hotel -Convention Center Project); and WHEREAS, the Governing Body has reviewed the proposed Articles of Incorporation for the Corporation; and WHEREAS, to provide for the Public Purposes heretofore described, the Governing Body determines that it is in the public interest and to the benefit of the City's residents and the citizens of this State that the Corporation be created; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: The Governing Body hereby finds and determines that it is advisable to authorize and approve the creation of the Corporation, to be known as the Baytown Hospitality Public Facilities Corporation. Section 2: The Governing Body hereby approves the Articles of Incorporation substantially in the form attached hereto as Exhibit "A" and made a part hereof for all intents and purposes, and hereby grants authority for the incorporation of the Corporation. Section 3: The Corporation shall have the broadest possible powers available under the terms of the Act and the Corporation's Articles of Incorporation, as are expressly provided (or are necessarily derived by implication) to carry out the Corporation's Public Purposes. Section 4: The Corporation is hereby designated as a public corporation, constituted authority, and public instrumentality of the City authorized to issue bonds on behalf of the City for the purposes of Section 103 of the Internal Revenue Code of 1986, as amended, and shall be authorized to act on behalf of the City for accomplishing the Public Purposes, but the Corporation is not intended to be and shall not be a political subdivision or a political corporation within the meaning of the Constitution and the laws of the State, including, without limitation, Article III, Section 52(a) of the State Constitution. The City does not delegate to the Corporation any of its attributes of sovereignty, including the power to tax, the power of eminent domain, or its police power. Section 5: Upon dissolution of the Corporation, the City may accept title to or other interest in any other real or personal property owned by the Corporation at such time. Section 6: The City Manager and the City Clerk, respectively, of the City (or the designee of either of the foregoing) are hereby authorized to deliver to the Texas Secretary of State an original and an appropriate number of copies of the Articles of Incorporation for the Corporation, a certified copy of this Resolution approving the Articles of Incorporation, and the fee charged for filing these documents under Chapter 22, as amended, Texas Business Organizations Code (or other applicable law), and to do all things proper and necessary to carry out the intent of this Resolution. Section 7: The Governing Body authorizes the City Clerk of the City, or a designee thereof, in consultation with legal counsel and other City consultants and advisors, to take all actions necessary to call and conduct the organizational meeting of the Corporation and to file, at the expense of the Corporation, any and all documents with the offices of the Secretary of State, the Comptroller of Public Accounts, and the United States Department of Treasury, as appropriate, to effectuate the creation and organization of the Corporation. Section 8: The Governing Body authorizes the distribution of an amount not to exceed THREE HUNDRED THOUSAND AND NO100 DOLLARS ($300,000.00) to the Corporation to fund the costs of a technical services agreement and other initial expenses associated with the Hotel -Convention Center Project. Section 9: The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the Governing Body. Section 10: All ordinances and resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 11: If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the 2 application of such provision to other persons and circumstances shall nevertheless be valid, and the Governing Body hereby declares that this Resolution would have been enacted without such invalid provision. Section 12: This Resolution shall take effect immediately from and after its passage by the Governing Body. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 23`d day of May, 2019. BRANDON CAPETILLO, N&yor i APPROVED AS TO FORM: NACIO RAMIREZ, SR., i Attorney R:%KarenTiles City Council Resolutions\2019UNay 23\PFC Resolution.docx Exhibit „A„ CERTIFICATE OF FORMATION BAYTOWN HOSPITALITY PUBLIC FACILITIES CORPORATION A PUBLIC FACILITY CORPORATION AND INSTRUMENTALITY OF THE CITY OF BAYTOWN, TEXAS This is to certify that I, the undersigned, do hereby associate myself for the purpose of forming a nonprofit corporation under and by virtue of the laws of the state of Texas and further certify that; ARTICLE I The name of the Corporation is the Baytown Hospitality Public Facilities Corporation (the "Corporation"). ARTICLE II l . The Corporation has no members and is a nonstock corporation. 2. The Corporation is a nonprofit public facility corporation and is not organized for the private gain of any person. It is organized under Local Government Code Chapter 303, as amended (the "Act"), and under the Texas Business Organizations Code, as amended, to assist the City of Baytown, Texas in financing, refinancing, or providing public facilities. The sponsor of the Corporation is the City of Baytown, Texas, 2401 Market Street, Baytown, Texas 77520 (the "City"). The City has specifically authorized the Corporation to act on its behalf to further the public purpose set forth in this Certificate of Formation, and the City Council of the City (the "Governing Body") has duly approved this Certificate of Formation. 3. The Corporation shall have and possess the broadest possible powers to finance the acquisition of City obligations issued or incurred in accordance with existing law. The specific public purpose of this Corporation, subject to the provisions of Article IV of this Certificate of Formation, is to own, acquire, construct, develop, encumber, lease and sell, and provide for the operation of, a hotel, convention center, parking facility, and related facilities (the "Project") and to do all things necessary or convenient to the provision of such Project, its economic and beneficial financing, use and maintenance in the State of Texas (the "State") in order to promote health, safety and general welfare of the residents of the State, to increase their commerce and industry, to promote their economic development and to advance the efficiency of the citizens of the State and surrounding areas. Any financing of the Project through the sale of revenue indebtedness of the Corporation ("Project Debt") shall not constitute an indebtedness of nor a charge against the full faith, credit or taxing powers of the State or any of its agencies or political subdivisions (including, without limitation, the City or any successor public entity or assignee public entity which succeeds to the functions of the City). Upon the retirement or defeasance of any Project Debt issued by the Corporation, all property provided by such Project Debt, and any additions thereto, will be conveyed by the Corporation to the City for a public purpose or upon the direction of the City, to another agency or political subdivision of the State for a public purpose. Notwithstanding anything contained herein to the contrary, the Corporation shall not engage in any business, and it shall have no purpose, unrelated to the Project, and shall Certificate of Formation, Page 1 not acquire any real property or own assets other than those related to the Project and/or otherwise in furtherance of the purposes of this Corporation. 4. The Corporation shall have no power to, and shall not, issue any Project Debt unless the Governing Body first enacts a resolution authorizing such issuance. The Corporation shall have no power to, and shall not, create or incur any indebtedness of, or a charge against the full faith, credit or taxing powers of, the City. 5. The affairs of the Corporation shall be managed by a Board of Directors. The number of Directors, constituting the initial Board of Directors, shall be eleven (11). If a Director is an employee of the City, the Director's resignation from employment with the City shall be deemed to be a resignation of that person from the Board of Directors. The names and addresses of the initial Board of Directors are: Brandon Capetillo 2401 Market Street, Baytown, Texas 77520 Chris Presley 2401 Market Street, Baytown, Texas 77520 Laura Alvarado 2401 Market Street, Baytown, Texas 77520 Suhey Rios -Alvarez 2401 Market Street, Baytown, Texas 77520 Mary Hernandez 2401 Market Street, Baytown, Texas 77520 Charles Johnson 2401 Market Street, Baytown, Texas 77520 Heather Betancourth 2401 Market Street, Baytown, Texas 77520 Robert C. Hoskins 2401 Market Street, Baytown, Texas 77520 David Himsel 2401 Market Street, Baytown, Texas 77520 David Jirrels 2401 Market Street, Baytown, Texas 77520 Gary Englert 2401 Market Street, Baytown, Texas 77520 The Governing Body has the power to fill all vacancies on the Board of Directors, to remove any Director for cause or without cause, and to appoint a .successor. The number of Directors may be increased or decreased by adoption or amendment of the Bylaws, but at no time shall the Board of Directors be less than three (3) members. The officers of the Corporation, as provided by the Bylaws of the Corporation, shall be elected by the Directors of the Corporation, in the manner therein set out, and shall serve until their successors are elected and have qualified. Officers may, but need not, be Directors. 6. The Corporation shall have, and shall be entitled to exercise, all the powers of every kind lawfully available to a nonprofit public benefit corporation organized under the laws of the State of Texas; provided, however, that the Corporation shall not have the power to, and shall not, do any act or conduct any activity, plan, scheme, design or course of conduct which in any way conflicts with Sections 501(c)(3) or 501(c)(4) of the Internal Revenue Code of 1986, as amended, and regulations promulgated pursuant to such sections as they now exist or as they may hereafter be amended (collectively, the "Code"). ARTICLE III The name of the Corporation's initial registered agent and address in the State of this Corporation's initial registered office for service of process is: Certificate of Formation, Page 2 Registered Agent: Ignacio Ramirez, Sr., Legal Counsel Registered Office: 2401 Market Street, Baytown, Texas 77520 ARTICLE IV The Corporation is not a corporation organized for profit. No part of the net earnings of the Corporation shall inure to the benefit of, or be distributable to, its directors, officers, employees, agents or other private persons except that the Corporation shall be authorized to pay reasonable compensation for services rendered and to make reasonable payments in furtherance of its charitable purposes. No substantial part of the activities of the Corporation shall be carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office. Notwithstanding any other provision of this Certificate of Formation, the Corporation shall not carry on any activities not permitted to be carried on (i) by a corporation exempt from federal income tax under Section 501(c)(3) of the Code or (11) by a corporation, contributions to which are deductible under Section 170(c)(2) of the Code. Upon the dissolution of the Corporation, all of the Corporation's assets shall be distributed (1) to the City or its successor for a public purpose, (2) at the direction of the City, to another agency or political subdivision of the State for a public purpose, or (3) at the direction of the City for one or more exempt purposes within the meaning of Section 501(c)(3) of the Code. The provisions of this Article IV shall supersede any contrary provisions of this Certificate of Formation. ARTICLE V The property of this Corporation is irrevocably dedicated to charitable purposes and no part of the net income or assets of this Corporation shall ever inure to the benefit of any Director, officer, employee or member thereof or to the benefit of any private person or entity. ARTICLE VI The duration of the Corporation shall be perpetual. ARTICLE VII The Governing Body shall have the right to approve by resolution the annual budget of this Corporation, and shall approve by resolution in advance any borrowing transaction including, but not limited to, approval of repayment schedules and procedures. ARTICLE VIII This Certificate of Formation may be amended at any time by the Governing Body at its sole discretion by resolution adopting an amendment to the Certificate of Formation, or by the Board of Directors of the Corporation with the approval of the Governing Body in an appropriate resolution. Certificate of Formation, Page 3 IN WITNESS WHEREOF, the undersigned, being the organizer of this Corporation, has executed this Certificate of Formation, this day of , 2019. Richard L. Davis 2401 Market Street, Baytown, Texas 77520 SIGNATURE PAGE FOR THE CERTIFICATE OF FORMATION