HomeMy WebLinkAbout215-16 RESOLUTION113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 215-16 ARCHIVED
File Number: 2016-0545
AMENDED RESTATED ARTICLES OF INCORPORATION OF THE WALTON ARTS CENTER
FOUNDATION, INC.:
A RESOLUTION TO APPROVE THE AMENDED AND RESTATED ARTICLES OF
INCORPORATION OF THE WALTON ARTS CENTER FOUNDATION, INC. AND TO AUTHORIZE
MAYOR JORDAN'S SIGNATURE THEREON.
WHEREAS, on July 1, 2014, the City Council approved the Fifth Amendment of the Articles of
Incorporation of the Walton Arts Center Foundation, Inc. by Ordinance No. 5693; and
WHEREAS, Mayor Jordan signed this Fifth Amendment on July 7, 2014; and
WHEREAS, it would be helpful for persons in the future to review a single document, rather than the
original and five amendments of the Articles of Incorporation, to determine whether a proposed action
by the Walton Arts Center Foundation, Inc. is within its corporate power; and
WHEREAS, the attached Amended and Restated Articles of Incorporation for the Walton Arts Center
Foundation, Inc. properly combines the existing six documents into one complete, comprehensive and
correct document for later reference.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves the Amended and
Restated Articles of Incorporation of the Walton Arts Center Foundation, Inc. and authorizes Mayor
Jordan's signature thereon.
PASSED and APPROVED on 12/6/2016
Page 1 Printed on 12/7/16
Resolution: 215-16
File Number. 2016-0545
Attest:
. " 'c' , Sondra E. Smith, City Clerl %% r; ��
Y Ox-!
FAYETTEVELLL;
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Page 2 Printed on 1217116
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
i (479) 575-8323
Text File
File Number: 2016-0545
Agenda Date: 12/6/2016 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Resolution
Agenda Number: A. 10
AMENDED RESTATED ARTICLES OF INCORPORATION OF THE WALTON ARTS
CENTER FOUNDATION, INC.:
A RESOLUTION TO APPROVE THE AMENDED AND RESTATED ARTICLES OF
INCORPORATION OF THE WALTON ARTS CENTER FOUNDATION, INC. AND TO
AUTHORIZE MAYOR JORDAN'S SIGNATURE THEREON
WHEREAS, on July 1, 2014, the City Council approved the Fifth Amendment of the Articles of
Incorporation of the Walton Arts Center Foundation, Inc. by Ordinance No. 5693; and
WHEREAS, Mayor Jordan signed this Fifth Amendment on July 7, 2014; and
WHEREAS, it would be helpful for persons in the future to review a single document, rather than the
original and five amendments of the Articles of Incorporation, to determine whether a proposed action
by the Walton Arts Center Foundation, Inc. is within its corporate power; and
WHEREAS, the attached Amended and Restated Articles of Incorporation for the Walton Arts Center
Foundation, Inc. properly combines the existing six documents into one complete, comprehensive and
correct document for later reference.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves the Amended
and Restated Articles of Incorporation of the Walton Arts Center Foundation, Inc. and authorizes Mayor
Jordan's signature thereon.
City of Fayetteville, Arkansas Page 1 Printed on 12/7/2016
Legistar ID No.: 020 I b- 0 5 4 S
AGENDA REQUEST FORM
FOR: Council Meeting of December 6, 2016
FROM:
City Attorney Kit Williams
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
A RESOLUTION TO APPROVE THE AMENDED AND RESTATED ARTICLES
OF INCORPORATION OF THE WALTON ARTS CENTER FOUNDATION, INC.
AND TO AUTHORIZE MAYOR JORDAN'S SIGNATURE THEREON
APPROVED FOR AGENDA:
City Attorney Kit Williams Date
Nil
OFFICE OF THE
CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorney
Patti Mulford
TO: Mayor Jordan Paralegal
City Council
CC: Don Marr, Chief of Staff
Paul Becker, Finance Director
FROM: Kit Williams, City Altot'tie
DATE: November 10, 2016
RE: Amended and Restated Articles of Incorporation for the Walton Arts
Center Foundation, Inc.
A portion of the year and half negotiations with the Walton Arts Center and
the University to facilitate the renovation and enlargement of the Walton Arts
Center on Dickson Street was the agreement of the six page Fifth Amendment to
the Articles of Incorporation of the Walton Arts Center Foundation. One of the
primary things this amendment accomplished was to make available to the City
$1.5 Million for the Parking Deck or Walton Arts Center expansion. The
Foundation had had custody of this $1.5 Million since its establishment to ensure
sufficient maintenance, etc. of the Walton Arts Center.
The City Council approved this Fifth Amendment by Ordinance No. 5693
(July 1, 2014) which authorized Mayor Jordan to sign the amendment which he
did on July 7, 2014. This coincided with the approval and signature of the new
long term lease of the Walton Arts Center, the new Interlocal Agreement with the
University of Arkansas, the Sixth Amendment of the Walton Arts Center Council,
Inc.'s Articles of Incorporation and other documents.
The overall objective of our negotiations was to ensure that the Walton Arts
Center on Dickson Street would remain as active and vibrant as ever - even if
another venue was built in Bentonville. The upcoming reopening of the renovated
and enlarged Walton Arts Center served by the City's new parking deck is
evidence that Mayor Jordans and my long negotiations have been successful.
Recently you may remember, the Fayetteville City Council approved the
Amended and Restated Articles of Incorporation for the Walton Arts Center
Council. This placed all current provisions of the Articles in one document so
persons would not have to look through six or seven documents to determine
whether a proposed action by the Walton Arts Center Council was authorized by
its Articles of Incorporation. We now need to do this for the Foundation also.
Walton Arts Center attorney Marshall Ney prepared the Amended and
Restated Articles of Incorporation for the Walton Arts Center Foundation. I
reviewed them, checking the other six Articles and Amendments to the Articles of
Incorporation for accuracy. I have corrected the only two minor discrepancies or
typos that I found and now can recommend these Amended and Restated Articles
for your consideration and approval.
AMENDED & RESTATED ARTICLES OF INCORPORATION
OF
THE WALTON ARTS CENTER FOUNDATION INC.
WE, THE UNDERSIGNED, in order to form a nonprofit corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the Arkansas Nonprofit Corporation
Act (Acts 1963, No. 176), Ark. Stat. Ann. §§ 64-1901-1924, DO HEREBY CERTIFY as
follows:
FIRST: The name of the corporation is THE WALTON ARTS CENTER
FOUNDATION, INC.
SECOND: The duration of the existence of this organization shall be perpetual.
THIRD: The purposes for which this corporation is organized and the activities
proposed to be transacted, promoted or carried on by it are as follows, to -wit:
(a) To have all powers and authorities set forth in or contemplated by the Arkansas
Nonprofit Corporation Act, A.C.A. §§ 4-28-201 et seg. and any amendments
thereto.
(b) To acquire by gift, lease, purchase, or otherwise, and to hold, own or lease any
real, personal or mixed property, for the uses and benefit of the Walton Arts
Center in Fayetteville, the proposed new performing arts venue in Bentonville, the
Arkansas Music Pavilion in Rogers, and various performing arts and
entertainment venues on the University of Arkansas campus, with its consent, and
after the planned expansion and enhancement of the Walton Arts Center on
Dickson Street as presented to the Fayetteville voters in 2013 is completed, the
construction, acquisition and/or operation of other facilities to meet the arts and
AMENDED & RESTATES, ARTICLES OF INCORPORATION
THE WALTON ARTS CENTER FOUNDATION, INC.
Page 2
entertainment needs of Northwest Arkansas as determined by the Walton Arts
Center Council, Inc.; to receive, invest, reinvest and manage funds received from
the University of Arkansas, individuals, corporations, the Walton Arts Center
Council, Inc., and others as agent for the University of Arkansas as long as those
University funds remain under the control of the Walton Arts Center Foundation,
Inc. Investments of funds received from the University of Arkansas and the City
of Fayetteville shall be made in accordance with the investment policies of the
University of Arkansas and the City of Fayetteville and all applicable laws of the
State of Arkansas. This corporation shall promptly return to the City of
Fayetteville its initial $1.5 Million investment which together with the
University's $1.5 Million investment created the Foundation. This $1.5 Million
dollar investment shall be returned to the City of Fayetteville for its use for the
City's construction of the Parking Deck to be built on a portion of Block Six (6)
of the Original Plat of the Town of Fayetteville, Arkansas (upon which the
Walton Arts Center is located on a remaining portion of Block Six) or as
otherwise determined by the Fayetteville City Council. Once this $1.5 million has
been returned to the City, the Foundation shall no longer be an agent of the City
of Fayetteville. Regarding the deposit of the $1.5 million invested by the
University of Arkansas to initially fund the Foundation, the Foundation is
empowered to maintain or, with the University of Arkansas' consent, expend the
funds for the proposed enlargement and enhancement project for the Walton Arts
Center on Dickson Street. Once these funds have been fully used for the project,
the Foundation shall no longer be an agent for the University of Arkansas. Funds
AMENDED & RESTATE. ARTICLES OF INCORPORATION
THE WALTON ARTS CENTER FOUNDATION, INC.
Page 3
received from the Walton Arts Center Council, Inc., individuals, corporations and
others may be invested in a reasonable, prudent and sound financial manner based
upon a policy of this Corporation to be followed in future investment activity and
any applicable requirements of law. This Corporation may employ an investment
advisor to invest the assets of the Corporation in accordance with the above
investment policies.
(c) To establish an endowment; to use a portion of the amount appropriated for
expenditure from the endowment to pay the reasonable expenses of the
Corporation; to pay all or part of the remaining amount appropriated for
expenditure to the Walton Arts Center Council, Inc., for the operation,
maintenance and management of the Walton Arts Center in Fayetteville, the
proposed performing arts venue in Bentonville and the Arkansas Music Pavilion
in Rogers operated and maintained by the Walton Arts Center Council, Inc., as
well as other potential performing arts venues on the University of Arkansas at
Fayetteville campus with the University's consent, and after the planned
expansion and enhancement of the Walton Arts Center on Dickson Street as
presented to the Fayetteville voters in 2013 is completed, and the construction,
acquisition and/or operation of other facilities to meet the arts and entertainment
needs of Northwest Arkansas as determined by the Walton Arts Center Council,
Inc.
(d) To employ such employees and agents as it may deem proper to carry out the
purposes of the Corporation.
AMENDED & RESTATE,.. ARTICLES OF INCORPORATION
THE WALTON ARTS CENTER FOUNDATION, INC.
Page 4
(e) To borrow money and issue notes or other evidences of indebtedness, upon
approval of the -Walton Arts Center Council, Inc.
(f) To receive and have the opportunity to review the annual budget of the Walton
Arts Center Council, Inc., for its operations, maintenance and fundraising.
(g) To sell, lease, or dispose of any property of the corporation conditioned upon
approval of the Walton Arts Center Council, Inc., except that it shall not be
necessary to obtain approval to sell any property which is donated, sold in the
ordinary course of business, or purchased by the corporation for the purpose of
immediate resale, nor to transfer property to the Walton Arts Center Council, Inc.,
nor to buy, sell or trade property held in an investment portfolio.
(h) To enter into agreements with the City, the University, any other city or county,
the State of Arkansas, the U.S. Government, or any agency or instrumentality
thereof, or with any private group, to exchange, borrow or loan property of the
corporation.
(i) To enter into any lawful contracts and do all other things which are convenient or
necessary to fulfill the purposes of the corporation.
0) The purposes of this corporation are expressly declared not to be for gain or
individual profit and it shall be operated entirely on a nonprofit basis. No part of
its income shall be distributed to its members, directors or officers; provided
however, that officers, directors and employees may be reimbursed for expenses
incurred in attending to their authorized duties. In the event this corporation is
dissolved, voluntarily or involuntarily, all of its net assets shall be distributed and
paid out for such purposes as may be determined by the last Board of Directors of
AMENDED & RESTATEL ARTICLES OF INCORPORATION
THE WALTON ARTS CENTER FOUNDATION, INC.
Page 5
the corporation, subject to the approval of the City Council of the City of
Fayetteville and the Board of Trustees of the University of Arkansas in
accordance with the provisions of the Arkansas Nonprofit Corporation Act, Ark.
Stat. Ann. § 64-1901 et seq., and the Interlocal Cooperation Agreement.
(k) To do each and every act, which is ordinary, necessary, or reasonable to obtain
and maintain the status of a tax exempt organization for the purposes of federal
and state income taxation and ad valorem taxation.
(1) The purposes for which the corporation is organized are exclusively religious,
charitable, scientific, literary and educational within the meaning of Internal
Revenue Code 501(c)(3) or the corresponding provision of any future United
States Internal Revenue Law.
(m) Notwithstanding any other provisions of these articles, this organization shall not
carry on any other activities not permitted to be carried on by an organization
exempt from Federal income tax under Internal Revenue Code 501(c)(3) or the
corresponding provision of any future United States Internal Revenue Law.
(n) This corporation is a public benefit corporation.
(o) In the event of dissolution, the residual assets of the organization will be turned
over to one or more organizations which themselves are exempt as organizations
described in sections 501(c)(3) and 170(c)(2) of the Internal Revenue Code or
corresponding sections of any prior or future Internal Revenue Code, or to the
Federal, State or local government for exclusive public purpose.
AMENDED & RESTATE,j ARTICLES OF INCORPORATION
THE WALTON ARTS CENTER FOUNDATION, INC.
Page 6
FOURTH: The names and addresses of the incorporators are as follows:
Name Address
1. Dr. Stanley Smith 2209 Golden Oaks Drive
Fayetteville, Arkansas 72703
2. Scott Linebaugh
3. Linda Malone
4. Elaine M. Longer
5. Winfred Thompson
717 Calvin
Fayetteville, Arkansas 72701
1216 W. Lakeridge
Fayetteville, Arkansas 727013
2387 Twelve Oaks Drive
Fayetteville, Arkansas 72703
508 N. Sequoyah Drive
Fayetteville, Arkansas 72701
6. Billie J. Starr 210 Ravenwoods Lane
Fayetteville, Arkansas 72701
FIFTH: The principal office of this Corporation shall be located at 229 North
School Street, Fayetteville, Arkansas 72701, or at such place as the Board of Directors of this
Corporation shall from time to time designate as the location of the principal office.
SIXTH: The registered agent of the corporation shall be the Executive
Director/CEO of the Walton Arts Center, 229 N. School Avenue, Fayetteville, AR 72701, who is
currently Peter Lane. The Walton Arts Center Foundation Board of Directors may designate the
name of the new registered agent for service of process upon the appointment of a new or interim
Executive Director/CEO without the need for any approval by the City or University by properly
filing such new agent's name with the Secretary of State.
SEVENTH: The initial Board of Directors shall consist of six (6) directors. The
persons who are to serve as initial directors are:
AMENDED & RESTATE,-, ARTICLES OF INCORPORATION
THE WALTON ARTS CENTER FOUNDATION, INC.
Page 7
1. Dr. Stanley Smith 2. Scott Linebaugh
(3 year initial term) (_ year initial term)
3. Linda Malone 4. Elaine M. Longer
(1 year initial term) (_ year initial term)
5. Winfred Thompson 6. Billie J. Starr
(2 year initial term) (_ year initial term)
The initial directors will serve until their successors qualify.
EIGHTH:
(a) Effective July 1, 1993, the affairs and business of this Corporation shall be
controlled and conducted by a Board of Directors consisting of nine (9) Directors,
who shall be appointed as follows:
(i) The Board of Trustees of the University of Arkansas and the Fayetteville
City Council shall each appoint three (3) Directors.
(ii) The remaining three (3) Directors shall be jointly appointed by the Mayor
of the City of Fayetteville and the Chancellor of the University of
Arkansas, Fayetteville, from nominees submitted by the Directors of the
Corporation. The appointments shall be subject to the approval of the
Fayetteville City Council and the Board of Trustees of the University of
Arkansas. The Directors of the Corporation shall nominate a number of
persons equal to three (3) times the number of available Director positions.
The nominees shall be residents of the region served by the Walton Arts
Center and shall have demonstrated an interest in the Walton Arts Center
and the ability to oversee the management and investment of the funds of
AMENDED & RESTATE,., ARTICLES OF INCORPORATION
THE WALTON ARTS CENTER FOUNDATION, INC.
Page 8
this Corporation in the best interest of the Walton Arts Center. The Mayor
and the Chancellor may consider all of the nominees for any vacancy.
(b) The term of office for each position on the Board of Directors shall be three (3)
years beginning on July 1 of the year of appointment, and ending on June 30 of
the third year thereafter. The terms shall be staggered so that the terms of one
Director respectively appointed by the Fayetteville City Council, the Board of
Trustees, and the Mayor and Chancellor shall end each year. The initial terms of
the three Directors appointed by the Mayor and Chancellor shall be staggered, so
that the term of one Director shall end on June 30, 1994; the term of one Director
shall end on June 30, 1995; and the term of one Director shall end on June 30,
1996. Each Director shall continue to hold his/her position until his/her successor
has been appointed and qualified. The City Council and the Board of Trustees
shall have the right to remove any Directors appointed by them at any time, with
or without cause. Those Directors appointed by the Mayor and Chancellor may
only be removed in the event of permanent disability rendering the Director
incapable of performing his/her duties as Director, or upon unexcused absences
from three (3) consecutive Board meetings.
(c) The City, University of Arkansas, Mayor and Chancellor each shall lose
his/her/its right of appointment and removal upon the respective use or return of
the initial $1.5 million investment made by the City and the University of
Arkansas to this Corporation, with such power of appointment and removal
thereafter being vested in the Walton Arts Center Council, Inc.
AMENDED & RESTATE, ARTICLES OF INCORPORATION
THE WALTON ARTS CENTER FOUNDATION, INC.
Page 9
(d) Effective July 1, 1990, no Director shall serve more than two (2) consecutive
complete three (3) year terms. For Directors appointed to terms which began
prior to July 1, 1990, this limitation shall apply only for terms beginning on or
subsequent to July 1, 1990.
(e) The Board of Directors may make rules, policies, and regulations for the
management of the affairs of this Corporation from time to time, including the
appointment of an Executive Committee and other committees, to oversee and
conduct the Corporation's activities. Any committee shall have and may exercise
such powers and shall be subject to such limitations as may be set out in the By-
laws of the Corporation or in the resolution creating the committee.
NINTH: This Corporation shall have no members. The University of Arkansas,
and the City of Fayetteville, Arkansas, acting through their respective governing bodies, shall
have and exercise the rights to select, appoint and remove directors of the corporation as set forth
elsewhere in these Articles, the By -Laws, and the Interlocal Cooperation Agreement, and to the
extent that Ark. Stat. Ann. § § 64-1910 or 64-1911 shall ever be construed to require membership
in the corporation in order to exercise such rights, then the University of Arkansas and the City
of Fayetteville shall be and constitute such members.
TENTH: The Corporation shall indemnify to the fullest extent permitted by law any
present or former officer or director of the Corporation who is made or threatened to be made a
party to any civil, criminal, administrative or arbitrative action, suit or proceeding and any appeal
thereof (and any inquiry or investigation which could lead to such action, suit or proceeding).
This indemnification shall extend to all expenses, liabilities, and losses, including attorney's fees,
judgments, fines and amounts paid or to be paid in settlement, reasonably incurred by reason of
AMENDED & RESTATEL ARTICLES OF INCORPORATION
THE WALTON ARTS CENTER FOUNDATION, INC.
Page 10
the fact that such person is or was a director or officer of the Corporation. The Board of Directors
of the Corporation may cause the Corporation to purchase and maintain insurance on behalf of
any present or former officer or director of the Corporation against any liability asserted against
such person and incurred in his or her capacity as an officer or director of the Corporation.
ELEVENTH: These Articles of Incorporation may be amended by the approving vote of
not less than two-thirds (2/3) of all directors of the Corporation provided, however, that no
amendment to Articles Three, Eight, Nine and Eleven shall be effective until it has been approved
by the Fayetteville City Council and by the Board of Trustees of the University of Arkansas.
APPROVED by Resolution No. 215-16 adopted by the City Council of the City of
Fayetteville, on this 6"day of December, 2016
CITY OF FA ETTEVILLE
B� : �.w--
Mayor/,rio/ekl Jordan
ATTEST:
City Cleric
Date:2A1irr►►►►r
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AMENDED & Rt-,S`FA'CED ARTICLES OF INCORPORATION
THE WALTON ARTS CC?N'F[?R FOUNDATION, INC.
Page I 1
APPROVE[) by Resolution adopted by the Board of "fustees of the University of
Arkansas on this 7th day of September, 2017.
ATTEST:
Nt�t ry Public
Date: ," 1 2 2017
BOARD OF TRUSTEES OF THE
UNIVERSITY OF ARKANSAS, ACTING
FOR THE UNIVERSITY OF ARKANSAS,
FAYI TTEVILLE
By
JL •cph E. Steinmetz
anecllor
Approved by more than two thirds of' the membership of the Board of Directors of the
Walton Arts Center Foundation, Inc. at a regular meeting of the Board of Directors, at which
time ___ members voted in favor hereof.
WALTON ARTS CENTER
YFOUNDAT INC.
i'••r
Chairman ofthe Board
ATTES"T:
i 0,ryPubi
Date: 201/i
KAREN S PERCIVAL
WASHINGTON COUNTY
NOTARY PUBLIC —ARKANSAS
y Commission Expires Sapt" 6, 2021
i. ion N(2.12384127 ".___ "-
MARCIA OVERBY
MY COMMISSION M 12398258
EXPIRES: May 15.2024
Washington County
Approved by more than two thirds of' the membership of the Board of Directors of the
Walton Arts Center Foundation, Inc. at a regular meeting of the Board of Directors, at which
time ___ members voted in favor hereof.
WALTON ARTS CENTER
YFOUNDAT INC.
i'••r
Chairman ofthe Board
ATTES"T:
i 0,ryPubi
Date: 201/i
KAREN S PERCIVAL
WASHINGTON COUNTY
NOTARY PUBLIC —ARKANSAS
y Commission Expires Sapt" 6, 2021
i. ion N(2.12384127 ".___ "-