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CAC Backup Documents 05/14/2009 NOTE: SUBSTANTIAL AMENDMENT OF ENTIRE ARTICLES OF INCORPORATION. FOR PRESENT TEXT SEE EXISTING ARTICLES OF INCORPORATION. AMENDED AND RESTATED ARTICLES OF INCORPORATION OF ESTUARY CONSERVATION ASSOCIATION, INC. --' 'C"P~ ~)~ l> :"',,"'- "(;2...~;:::~-\ ,.s:j\.......... ,," S-\~;; ~ C"..L. ((\.5 (./ ~<(-;"... ~, "" C.} Pursuant to Section 617.1007, Florida Statutes, the Articles of Incorporation of Estuary Conservation Association, Inc., a Florida corporation not for pr~~t, formerly known as Wiggins Pass Conservancy, Inc. which was originally incorporated on April 15 , 19 ~ are hereby amended and restated in their entirety. All amendments included herein have been adopted pursuant to Section 61 7.0201 (4), Florida Statutes, and there is no discrepancy between the corporation's Articles of Incorporation as heretofore amended and the provisions of these Amended and Restated Articles other than the inclusion of amendments adopted pursuant to Section 617.0201(4) and the omission of matters of historical interest. The Amended and Restated Articles of Incorporation of Estuary Conservation Association, Inc., shall henceforth be as follows: ~ .....~:.. '6 .' t:: <f' ;; ARTICLE I NAME: The name ofthe corporation, herein called the "Association," is Estuary Conservation Association, Inc., and its address is c/o Samouce, Murrell & Gal, P.A., 5405 Park Central Court, Naples, Florida 34109. ARTICLE II PURPOSE AND POWERS: The purpose for which the Association is organized is to provide an entity: . To promote and conduct scientific research into the maintenance and improvement of water quality and conservation of environmental values in the vicinity of Wiggins Pass and all its estuarial waters in Collier County, Florida. . To educate the public generally, through public forums, lectures and printed material, to study and recommend alternatives which promote multiple water uses and improvement. . To improve the navigational capacity of the Wiggins Pass and all its estuarial waterways consistent with maximum protection of the fragile Gulf marine eco-system. The Association is organized and shall exist on a non-stock basis as a corporation not for profit under the laws of the State of Florida, within the purview of Section 501 (C)(3), Internal Revenue Code. and no portion of any earnings of the Association shall be distributed or inure to the pri vate benefit of any member, Director or officer of the Association. For the accomplishment of its purposes, the Association shall have all of the common law and statutory powers and duties of a corporation not for profit under the laws of the State of Florida, except as expressly limited or modified by these Articles, or the Bylaws of the Association as they may be amended from time to time. As a means of accomplishing the foregoing purposes, the corporation shall have the following powers: ARTICLES OF INCORPORATION -2- SAMODCE, MURRELL & GAL, P.A.. 5405 Park Central Court. Naples, FL 34108 Phone (239) 596-9522 . Fax (239) 596-9523 1. To accept, acquire, receive, take and hold by bequest, devise, grant, gift, purchase, exchange, lease, transfer, judicial order or decree or otherwise, for any of its objects and purposes, any property, both real and personal of whatever kind, nature or description and wherever situated. 2. To sell, exchange, convey, mortgage, lease, transfer, or otherwise dispose of, any such property, both real and personal, as the objects and purposes of the corporation may require, subject to such limitations as may be prescribed by law. 3. To apply for, register, obtain, purchase, lease, take licenses in respect of, or otherwise acquire, and to hold, own, use, operate, develop, enjoy, turn to account, grant licenses, and immunities in respect of, and to introduce, sell, assign, mortgage, pledge, or otherwise dispose of, and, in any manner deal with and contract with reference to copyrights, designs, and similar rights granted by or recognized under the laws of the United States or of any state or subdivision thereof, or of any foreign country or subdivision thereof, and all rights connected therewith or appertaining thereunto.] 4. To borrow money, and from time to time, to make, accept, endorse, execute, and issue promissory notes and other obligations of the corporation, and to secure the payment of any such obligation by mortgage, pledge, deed, indenture, agreement, or other instrument of trust, or by other lien upon, assignment of, or agreement in regard to all or any part of the property, rights or privileges of the corporation wherever situated, whether now owned or hereafter to be acquired. 5. To invest and reinvest its funds in such stock, common or preferred bonds, debentures, mortgages, or in such other securities and property as the Board of Directors shall deem advisable, subject to the limitations and conditions contained in any bequest, devise, grant, or gift. 6. To retain or to disburse and distribute materials, property and funds in accordance with the purpose of this corporation and the specific directions of donors with regard to property donated by them, except where such directions would impair the classification of the corporation as a tax exempt, non-profit organization under the laws of the United States or the State of Florida. 7. In general, to exercise such other powers which now are or hereafter may be conferred by law upon a corporation organized for the purposes hereinabove set forth, or necessary or incidental to the powers so conferred, or conducive to the attainment of the purposes of the corporation, subject only to such limitations as are or may be prescribed by law, and these Articles of Incorporation. ARTICLE III MEMBERSHIP: (A) The members of the Association shall be individuals at least eighteen (18) years of age as further provided in the Bylaws. (B) Joint members shall be entitled to one (1) vote in Association matters as further set forth in the Bylaws. ARTICLE IV TERM: The term of the Association shall be perpetual. ARTICLES OF INCORPORATION -3- SAMODCE, MURRELL & GAL, P.A.. 5405 Park Central Court. Naples, FL 34108 Phone (239) 596-9522 . Fax (239) 596-9523 ARTICLE V BYLA WS: The Bylaws ofthe Association may be altered, amended, or rescinded in the manner provided therein. ARTICLE VI DIRECTORS AND OFFICERS: (A) The affairs of the Association shall be administered by a Board of Directors consisting of the number of Directors determined by the Bylaws, but not less than ten (10) Directors, and in the absence of such determination, shall consist often (10) Directors. (B) Directors of the Association shall be elected by the members in the manner determined by the Bylaws. Directors may be removed and vacancies on the Board of Directors shall be filled in the manner provided by the Bylaws. (C) The business of the Association shall be conducted by the officers designated in the Bylaws. The officers shall be elected each year by the Board of Directors at its fIrst meeting after the annual meeting of the members of the Association, and they shall serve at the pleasure of the Board. (D) The Board of Directors may appoint an individual to serve as the Executive Director of the Association, and may prescribe the manner of appointment, term of office, duties and compensation of the Executive Director. The Executive Director may be an ex-officio member of the Board of Directors and shall attend it's meetings. The Executive Director may be removed only by concurrence of a majority of the members of the Board of Directors. ARTICLE vn AME~"1)MENTS: Amendments to these Articles shall be proposed and adopted in the following manner: (A) ProposaL Amendments to these Articles may be proposed by a majority of the Board or by written petition, signed by at least one-fourth (1/4th) ofthe voting interests. (B) Procedure. Upon any amendment to these Articles being proposed by said Board or members, such proposed amendment shall be submitted to a vote of the members not later than the next annual meeting for which proper notice can be given. (C) Vote Required. Except as otherwise required by law, a proposed amendment to these Articles of Incorporation shall be adopted if it is approved by at least two-thirds (2/3rds) of the voting interests present in person or by proxy and voting at any annual or special meeting, or by approval in writing of two-thirds (2/3rds) of the voting interests without a meeting, provided that notice of any proposed amendment has been given to the members of the Association, and that the notice contains a fair statement of the proposed amendment. ARTICLES OF INCORPORATION -4- SAMOUCE, MURRELL & GAL, P.A. . 5405 Park Central Court. Naples, FL 34108 Phone (239) 596-9522 . Fax (239) 596-9523 (D) Effective Date. An amendment shall become effective upon proper filing with the Secretary of State and recording a certified copy in the Public Records of Collier County, Florida, with the same formalities as required by law for recording an amendment to the Bylaws. . ARTICLE VIn INDEMNIFICATION: To the fullest extent permitted by Florida law, the Association shall indemnify and hold harmless every Director, officer and volunteer of the Association against all expenses and liabilities, including attorneys fees, actually and reasonably incurred by or imposed on him in connection with any legal proceeding (or settlement or appeal of such proceeding) to which he may be a party because of his being or having been a Director, officer or volunteer of the Association. The foregoing right of indemnification shall not be available if a judgment or other fmal adjudication establishes that his actions or omissions to act were material to the cause adjudicated and involved: (A) Willful misconduct or a conscious disregard for the best interests of the Association, in a proceeding by or in the right of the Association to procure a judgement in its favor. (B) Violation of criminal law , unless the person seeking indemnification had no reasonable cause to believe his action was unlawful or had reasonable cause to believe his action was lawfu1. (C) A transaction from which the person seeking indemnification derived an improper personal benefit. (D) Recklessness, or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and wilful disregard for human rights, safety or property, in an action by or in the right of someone other than the association or a member. In the event of a settlement, the right to indemnification is subj ect to the fmding by at least a maj ority of the disinterested Directors that the settlement is in the best interest of the Association. The foregoing rights of indemnification shall be in addition to and not exclusive of all other rights to which a Director or officer may be entitled including rights under an Association Directors' and Officers' liability insurance policy, if any. ARTICLES OF INCORPORATION -5- SAMODCE, MURRELL & GAL, P.A.. 5405 Park Central Court. Naples, FL 34108 Phone (239) 596-9522 . Fax (239) 596-9523 CERTIFICA TE The undersigned, being the duly elected and acting President of Estuary Conservation Association, Inc., hereby certifies that the foregoing were approved and adopted by concurrence oftwo-thirds of those present at a meeting of the Board of Directors held on December 13, 2004, where a quorum was present, and ratified by the membership at a meeting also held on December 13, 2004 which was called for the purpose of such amendment, after due notice, in accordance with the requirements of the Articles ofIncorporation for their amendment, and that said vote was sufficient for their amendment. The foregoing both amend and restate the Articles ofIncorporation in their entirety. The number of votes cast was sufficient for their amendment. Executed this Li' day V'" ~""7 ESTUARY CONSERVATION ASSOCIATION, INC. , 2005. Attest: ~~--=-:; ---C2--- Jim Owens, Sr., Secretary (SEAL) STATE OF FLORIDA COUNTY OF Cnl/I'ev Subscribed to before me this J<J day of ~ti4U1..~/ ,2005 by Joseph A. Moreland, President, and Jim Owens, Sr., Secretaf'j of Es ary Conserv tJon ASSOCIatIon, Inc., a Flonda corporation not for profit, on behalf of the corporation. He is personally knovm to me or did produce_ as identification. \\"'~";"'" TERESA MURREll :I'" MY COMMISSION # DD 067518 ~ '.0-;. s.: ~*: ~.. ./;} EXPIRES: November 16, 2005 "'~'Rf.:&~\ Bond€d Thru Notary Public Underwriters ~.~. ~UA- /lkA//~ Signature afNotary Public (Print, Type or Stamp Commissioned Name of Notary Public) (Affix Notarial Seal) ARTICLES OF INCORPORATION -6- SAMOUCE, MURRELL & GAL, P.A. . 800 Laurel Oak Drive, Suite 300 . Naples, FL 34108 Phone (239) 596-9522 . Fax (239) 596-9523 NOTE: SUBSTANTIAL AMENDMENT OF ENTIRE BYLAWS. FOR PRESENT TEXT SEE EXISTING BYLAWS. AMENDED AND RESTATED BYLAWS OF ESTUARY CONSERVATION ASSOCIATION, INC. 1. GENERAL. These are the Amended and Restated Bylaws of Estuary Conservation Association, Inc., hereinafter the "Association," a corporation not for profit organized under the laws of Florida for the purposes described in the Articles ofIncorporation ofthe Association. All prior Bylaws are hereby revoked and superseded in their entirety. 1.1 Principal Office. The principal office of the Association shall be at such place within the county as the Board of Directors may determine. 2. MEMBERS. The members of the Association shall be individuals of at least eighteen (18) years of age or corporations who have been approved for membership by the Board of Directors under the process and in the manner the Board deems fit. (A) Members shall pay annual and special dues in amounts as determined from time to time. (B) The Board may designate various classes of members from time to time such as individual members, family members and corporate members. (C) A membership shall terminate upon a member's failure to pay any dues when specified and the member shall no longer have the right to vote on Association matters. (D) A corporate membership shall terminate upon the approval of termination by two-thirds (2/3rds) of the members of the Board of Directors. 2.2 V otin!! Ri!!hts: V otine Interests. The members of the Association are entitled to one (1) vote for each non-corporate membership owned by them. Corporate members may not vote. The total number of votes ("voting interests") is equal to the total number of non-corporate memberships. The vote of a membership is not divisible. If a membership is owned by one (1) natural person, that person is entitled to one (1) vote. If a membership is owned jointly by two (2) or more natural persons, that membership's vote may be cast by any one (1) of the joint members. If two (2) or more joint members ofajoint membership do not agree among themselves how their one (1) vote shall be cast on any issue, that vote shall not be counted on that issue. 2.3 Approval or Disapproval of Matters. Whenever the decision of a member is required upon any matter, whether or not the subject of an Association meeting, such decision may be expressed by any person authorized to cast the vote of such membership at an Association meeting as stated in Section 2.2 above. 2.4 Termination of Membership. Termination of membership in the Association does not relieve or release any former member from liability or obligation incurred under or in any way connected with the Association during the period of his membership, nor does it impair any rights or remedies the Association BYLAWS -1- SAMODCE, MURRELL & GAL, P.A.. 5405 Park Central Court. Naples, FL 34109 Phone (239) 596-9522 . Fax (239) 596-9523 may have against any former member arising out of or in any way connected with such membership and the obligations incident thereto. 3. MEMBERS' MEETINGS; VOTING. 3.1 Annual Meetini!. There shall be an annual meeting of the members in each calendar year. The annual meeting shall be held in Collier or Lee County each year during the first three (3) months of the calendar year at a day, place and time designated by the Board of Directors, for the purpose of transacting any business duly authorized to be transacted by the members. During the annual meeting, ballots cast in the annual election of Directors shall be counted and results announced. 3.2 Special Members' Meetin!!s. Special meetings of the members must be held whenever called by the President or by a majority of the Directors, and may also be called by members having at least forty percent (40%) of the votes of the entire membership. Such requests shall be in writing, shall state the purpose or purposes of the meeting, and shall be signed by all the members making the request. Business at any special meeting shall be limited to the items specified in the notice of meeting. 3.3 Notice ofMeetini!s. Notices of all meetings of the members must state the time, date, and place of the meeting and include an agenda for the meeting. The notice must be mailed or e-mailed to each member at the mailing address or e-mail address which appears on the books of the Association, or may be furnished by personal delivery. The member bears the responsibility for notifying the Association of any change of mailing address or e-mail address. The notice must be mailed, e-mailed or delivered at least fourteen (14) days before the meeting. Notice of any meeting may be waived in writing by any person entitled to receive such notice. Attendance at any meeting by a member constitutes waiver of notice by that member, unless the member objects to the lack of notice at the beginning of the meeting. 3.4 Quorum. A quorum at members' meeting shall be attained by the presence, either in person or by proxy, of persons entitled to cast at least one-third (1/3rd) of the votes of the entire membership. 3.5 Vote Required. The acts approved by a majority of the votes cast at a duly called meeting of the members at which a quorum has been attained shall be binding upon all members for all purposes, except where a greater or different number of votes is expressly required by law or by any provision of the Association documents. 3.6 Proxy Votini!. To the extent lawful, any person entitled to attend and vote at a members meeting may establish his presence and cast his vote by proxy. Proxies may be used in electing Directors. "General proxies" may be used for all Association matters. A proxy may be given by any person entitled to vote, but shall be valid only for the specific meeting for which originally given and any lawful adjournment of that meeting, and no proxy is valid for a period longer than ninety (90) days after the date of the first meeting for which it was given. Every proxy is revocable at the pleasure of the person executing it. To be valid, a proxy must be in writing, dated, signed by a person authorized to cast the vote for the member, and specify the date, time and place of the meeting for which it is given. The original must be delivered to the Secretary at or before the time of the meeting or adjournment thereof. Holders of proxies must be members. No proxy is valid if it names more than one person proxyholder, but the proxyholder has the right, if the proxy so provides, to substitute another person to hold the proxy. 3.7 Adiourned Meetin!!s. Any duly called meeting of the members may be adjourned to be reconvened at a specific later time by vote of the majority of the voting interests present, regardless of whether a quorum BYLAWS -2- SAMODCE, MURRELL & GAL, P.A.. 5405 Park Central Court. Naples, FL 34109 Phone (239) 596-9522 . Fax (239) 596-9523 has been attained. Any business which might have been conducted at the meeting as originally scheduled may instead be conducted at the continuance. 3.8 Order of Business. The order of business at members' meetings shall be substantially as follows: (A) Counting of ballots in Election of Directors (if necessary) (B) Call of the roll or determination of quorum (C) Reading or disposal of minutes of last members' meeting (D) Reports of Officers (E) Reports of Committees (F) Unfinished Business (G) New Business (H) Adjournment 3.9 Minutes. Minutes of all meetings of the members, and of the Board of Directors, shall be kept in a businesslike manner, for at least seven (7) years after the meeting. 3.10 Parliamentarv Rules. Roberts' Rules of Order (latest edition) shall govern the conduct of the Association meetings when not in conflict with the law or with these Bylaws. The presiding officer may appoint a Parliamentarian whose decision on questions of parliamentary procedure shall be final. Any question or point of order not raised at the meeting to which it relates shall be deemed waived. 3.11 Action bv Members Without Meeting. Except for the holding of the annual meeting and annual election of Directors, any action required or permitted to be taken at a meeting of the members may be taken without a meeting if written consents or other instruments expressing approval ofthe action proposed to be taken are signed and returned by members having not less than the minimum number of votes that would be necessary to take such action at a meeting at which all of the voting interests were present and voting. If the requisite number of written consents are received by the Secretary within sixty (60) days after the earliest date which appears on any of the consent forms received, the proposed action so authorized shall be of full force and effect on the date the requisite number of written consents are received, as if on the date the requisite number of written consents are received the action had been approved by vote of the members at a meeting of the members held on said date. Within ten (10) days after the date the requisite number of consents is received, the Board shall send written notice of the action taken to all members who have not consented in writing. Nothing in this paragraph affects the rights of members to call a special meeting of the membership, as provided for by Section 3.2 above, or by law. If the vote is taken by the method described in this section, the list of members on record with the Secretary at the time of mailing the voting material shall be the list of qualified voters. 4. BOARD OF DIRECTORS. The administration of the affairs of the Association shall be by aBoard of Directors. All powers and duties granted to the Association by law, as modified and explained in the Articles ofIncorporation, and these Bylaws, shall be exercised by the Board, subject to approval or consent of the members only when such is specifically required. 4.1 Number and Terms of Office. The number of Directors which shall constitute the whole Board of Directors shall be twenty (20). In order to provide for continuity of experience by establishing a system of staggered terms, in the 2005 annual election, the number of Directors to be elected shall be twenty (20). The ten (10) candidates receiving the highest number of votes shall be elected for two (2) year terms. The ten (10) candidates receiving the next highest number of votes shall be elected for one (1) year terms. Ifthere BYLAWS -3- SAMODCE, MURRELL & GAL, P.A.. 5405 Park Central Court. Naples, FL 34109 Phone (239) 596-9522 . Fax (239) 596-9523 are twenty (20) or fewer candidates, the determination of who will serve the longer terms shall be made among them by agreement or by lot. Thereafter, all Directors shall be elected for two (2) year terms. A Director's term ends at the annual election at which his successor is to be duly elected. Directors shall be elected by the members as described in Section 4.3 below, or in the case of a vacancy between annual elections, as provided in Section 4.4 below. 4.2 Qualifications. Each Director must be a non-corporate member. 4.3 Elections. At each annual meeting the members shall elect as many Directors as there are regular terms of Directors expiring or vacancies to be filled. The nominating committee, if any, shall nominate its recommended candidates for the office of Director on the floor at the annual meeting, at which time any other eligible person may also be nominated as a candidate. Directors shall be elected by a plurality of the votes cast in person or by proxy at the annual meeting. In the election of Directors, there shall be appurtenant to each membership as many votes for Directors as there are Directors to be elected, but no membership may cast more than one vote for any candidate, it being intended that voting for Directors shall be non- cumulati ve. The candidates recei ving the highest number of votes shall be elected. The votes may be broken by agreement among the candidates who are tied, or if there is no agreement, by a run-off election. 4.4 Resienation: Vacancies on the Board. Any Director may resign at any time by giving written notice to the Association, and unless otherwise specified therein, the resignation shall become effective upon receipt. If the office of any Director becomes vacant for any reason, a majority of the remaining Directors, though fewer than a quorum, shall promptly choose a successor to fill the remaining unexpired term. If for any reason there shall arise circumstances in which no Directors are serving and the entire Board is vacant, the members shall elect successors at a special meeting. 4.5 Removal of Directors. Any or all Directors may be removed, with or without cause, by a majority vote of the voting interests either by a written petition or at any meeting called for that purpose. If a meeting is held or petitions are filed for the removal of more than one Director, the question shall be determined separately as to each Director sought to be removed. If a special meeting is called by twenty five percent (25%) of the voting interests for the purpose of recall, the notice of the meeting must be accompanied by a dated copy ofthe signature list, stating the purpose ofthe signatures. The meeting must be held not less than fourteen (14) days nor more than sixty (60) days from the date that notice of the meeting is given. If removal is effected by petition, the vacancy or vacancies shall be filled as provided in Section 4.4 above. If removal is effected at a meeting, any vacancies created thereby shall be filled by the members at the same meeting. Any Director who is removed from office is not eligible to stand again for election to the Board until the next annual election, and must turn over to the Association within 72 hours any and all records and other property of the corporation in his possession. If a Director who is removed does not relinquish his office or turn over records as required, the circuit court in the county where the Association has its principal office may summarily order the Director to relinquish his office and turn over corporate records upon application of any member. In any such action, the prevailing party shall be entitled to recover its attorney's fees and costs. 4.6 On~anizational Meetim~. The organizational meeting of a new Board of Directors shall be held within ten (10) days after the election of new Directors, at such place and time as may be fixed and announced by the Directors at the meeting in conjunction with which they were elected. 4.7 Other Meetinl!s. Meetings ofthe Board may be held at such time and place as shall be determined from time to time by the President or by a majority of the Directors. Notice of meetings shall be given to each Director, personally or by mail, e-mail, telephone or telegram at least two (2) days before the day of the meeting. BYLAWS -4- SAMODCE, MURRELL & GAL, P.A.. 5405 Park Central Court. Naples, FL 34109 Phone (239) 596-9522 . Fax (239) 596-9523 4.8 Waiver of Notice. Any Director may waive notice of a meeting before or after the meeting, and such waiver is deemed equivalent to the giving of notice. If all Directors are present at a meeting, no notice to Directors shall be required. 4.9 Ouorum of Directors. A quorum at a Board meeting exists only when at least seven (7) Directors are present in person at a duly called meeting. Directors may participate in any meeting ofthe Board, or meeting of an executive or other committee, by conference telephone call or similar communicative arrangement whereby all persons present can hear and speak to all other persons. Participation in a meeting by such means is equivalent to presence in person. Directors may not vote or participate in Board meetings by proxy or by secret ballot, except that officers may be elected by secret ballot. 4.10 Vote Required for Action. The acts approved by a majority of those Directors present and voting at a meeting at which a quorum exists, but no fewer than five (5), constitute the acts of the Board of Directors, except when approval by a greater number of Directors is required by the association documents or by applicable statutes. A Director who is present at a meeting of the Board is deemed to have voted in favor of every action taken, unless he voted against an action, or abstained from voting because of an asserted conflict of interest. The vote or abstention of each Director present on each issue voted upon shall be recorded in the minutes. 4.11 Adiourned Meetin2s. A majority ofthe Directors present at any meeting of the Board, regardless of whether a quorum exists, may adjourn the meeting to be reconvened at a specific time and date. At any reconvened meeting, provided a quorum is present, any business may be transacted that might have been transacted at the meeting originally as called. 4.12 The Presidin~ Officer. The President ofthe Association, or in his absence, the Vice President, is the presiding officer at all meetings of the Board. If neither officer is present, the presiding officer shall be selected by majority vote of the Directors present. 4.13 ComDensation of Directors and Officers. Neither Directors nor officers shall receive compensation for their services as such. Directors and officers may be reimbursed for all actual and proper out-of-pocket expenses related to the proper discharge of their respective duties. 4.14 Committees. The Board of Directors may appoint from time to time such standing or temporary committees as the Board may deem necessary and convenient for the efficient and effective operation of the Association. Any such committee shall have the powers and duties assigned to it in the resolution creating the committee. Standing committees can include, but are not limited to, Milestone, Funding, Media and Information, Public Safety, Homeowners Advisory, Public Information Forum, Technical Resources, Environmental Advisory, Legal and Membership. 5. OFFICERS. 5.1 Officers and Elections. The executive officers of the Association shall be a President, a Vice President, a Treasurer and a Secretary, all of whom must be Directors and shall be elected by a majority vote of the Board of Directors, and shall serve for the same terms as their Director seat unless removed earlier with or without cause at any meeting by vote of a maj ority of all Directors at any meeting. Any person, except the President, may hold two (2) or more offices. The Board may, from time to time, appoint such other officers, and designate their powers and duties, as the Board shall find to be required to manage the affairs of the Association. If the Board so determines, there may be more than one (1) Vice President. Any officer may BYLAWS -5- SAMODCE, MURRELL & GAL, P.A.. 5405 Park Central Court. Naples, FL 34109 Phone (239) 596-9522 . Fax (239) 596-9523 resign at any time by giving written notice to the Corporation and unless otherwise specified therein, the resignation shall become effective upon receipt. 5.2 President. The President shall be the chief executive officer of the Association; he shall preside at all meetings of the members and Directors, shall be ex officio a member of all standing committees, shall have general and active management of the business of the Association, and shall see that all orders and resolutions of the Board are carried into effect. The President shall execute bonds, mortgages and other contracts requiring the seal of the Association, except where such are permitted by law to be otherwise signed and executed, and the power to execute is delegated by the Board of Directors to some other officer or agent of the Association. 5.3 Vice Presidents. The Vice Presidents, in the order of their seniority shall, in the absence or disability of the President, perform the duties and exercise the powers of the President; and they shall perform such other duties as the Board of Directors shall assign. 5.4 Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the members and shall cause all votes and the minutes of all proceedings to be recorded in a book or books to be kept for the purpose, and shall perform like duties for standing committees when required. He shall give, or cause to be given, proper notice of all meetings of the members and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board or the President. He shall keep in safe custody the seal of the Association and, when authorized by the Board, affix the same to any instrument requiring it. The Secretary shall be responsible for the proper recording of all duly adopted amendments to the association documents. Any of the foregoing duties may be performed by an Assistant Secretary, if one (1) has been designated. 5.5 Treasurer. The Treasurer shall be responsible for Association funds and securities, the keeping of full and accurate accounts of receipts and disbursements in books belonging to the Association, and the deposit of all monies and other valuable effects in the name and to the credit of the Association in such depositories as may be designated by the Board of Directors. The Treasurer shall oversee the disbursement of Association funds, keeping proper vouchers for such disbursements, and shall render to the President and Directors, at meetings of the Board, or whenever they may require it, a full accounting of all transactions and of the financial condition of the Association. Any of the foregoing duties may be performed by an Assistant Treasurer, if one (1) has been designated. 6. FISCAL MATTERS. The provisions for fiscal management of the Association shall be as follows: 6.1 Depositorv. The Association shall maintain its funds in federally insured accounts or investments with such financial institutions authorized to do business in the State of Florida as shall be designated from time to time by the Board. Withdrawal of monies from such accounts shall be only by any ofthe four (4) officers of the Association with check signing authorization. Withdrawals of more than $1 ,000 require the signatures of two (2) officers. Withdrawals for unbudgeted expenditure can be made only with the prior approval of all four (4) officers and each withdrawal cannot exceed $500 and all unbudgeted withdrawals for a fiscal year cannot exceed $2,500. All unbudgeted expenditure withdrawals must be disclosed by an officer to the Board of Directors at the next Board meeting following the withdrawal(s). 6.2 Budl!et. The Board of Directors shall adopt a budget in advance for each fiscal year. BYLAWS -6- SAMODCE, MURRELL & GAL, P.A.. 5405 Park Central Court. Naples, FL 34109 Phone (239) 596-9522 . Fax (239) 596-9523 6.3 Fidelitv Bonds. The President, Secretary and Treasurer, and all other persons who are authorized to sign checks or have access to Association funds, shall be bonded in such amounts as may be required by law or otherwise determined by the Board of Directors. The premiums on such bonds is a common expense. 6.4 Fiscal Year. The fiscal year for the Association shall begin on the first day of January of each calendar year. The Board of Directors may adopt a different fiscal year in accordance with law and the regulations of the Internal Revenue Service. 7. RULES AND REGULATIONS. The Board of Directors may, from time to time, adopt and amend administrative rules and regulations governing the operation of the Association. 8. AMENDMENT OF BYLA WS. Amendments to these Bylaws shall be proposed and adopted in the following manner: 8.1 Proposal. Amendments to these Bylaws may be proposed by a majority of the Board, or by written petition to the Board, signed by at least one-fourth (1I4th) of the voting interests. 8.2 Procedure. Upon any amendment or amendments to these Bylaws being proposed by said Board or members, such proposed amendment or amendments shall be submitted to a vote of the members not later than the next annual meeting for which proper notice can still be given. 8.3 Vote Required. Except as otherwise provided by law, a proposed amendment to these Bylaws shall be adopted if it is approved at least two-thirds (2/3rds) of the voting interests present in person or by proxy at ' any annual or special meeting called for the purpose, provided that notice of the proposed amendment has been given to the members in accordance with law. 9. MISCELLANEOUS. 9.1 Gender. Whenever the masculine or singular form of a pronoun is used in these Bylaws, it shall be construed to mean the masculine, feminine or neuter; singular or plural, as the context requires. 9.2 Severabilitv. Should any portion hereof be void or become unenforceable, the remaining provisions of the instrument shall remain in full force and effect. 9.3 Conflict. If any irreconcilable conflict between these Bylaws and the Articles ofIncorporation should exist or arise, the provisions of the Articles of Incorporation shall prevail over the provisions of these Bylaws. BYLAWS -7- SAMODCE, MURRELL & GAL, P.A. . 5405 Park Central Court. Naples, FL 34109 Phone (239) 596-9522 . Fax (239) 596-9523 McAlpinGary From: Sent: To: Subject: WertJack Monday, May 11, 20093:33 PM McAlpinGary RE: CAC May 14, 2009 web link A hotel or other accommodation collects the TO tax for any occupancy of 6 months or less and pays that tax to the Collier Tax Collector. Rooms booked through a third party such as an internet site like Hotels.com is supposed to collect the tax due on the hotel room sale, but they typically only collect the tax due on the amount they pay the hotel, leaving the tax due on the difference (what the consumer pays the third party for the room) in their pocket vs. the tax collector. This is an issue that our tourism department, Visit Florida, the Florida eVB Association and the International CVB association all have been addressing for several years, but with little success. It is going to take more state level legislation to collect that lost revenue. Jack Wert, FCOME Executive Director Naples, Marco Island, Everglades Convention & Visitors Bureau 3050 N. Horseshoe Dr. # 218 Naples, FL 34104 (239-252-2402 (F) 239-252-2404 (M) 239-595-4825 iack wert(G)coll iergov .net Discover I,'lorido's 1,0.'1'1 Pnrwli....c lhink Green' Print This i\1essage Only I/Neces.\iJrv ~.' 'V From: McAlpinGary Sent: Monday, May 11, 20093:10 PM To: WertJack Subject: FW: CAC May 14, 2009 web link Comment? I think the hotels are responsible to pay the tax so I don't think it matters who the booking is from. Thoughts? .J. Gary McAlpin, Director Coastal Zone Management 3300 Santa Barbara Blvd. Naples, Florida 34116 GarvMcAlpin@collier2ov.net (239) 252-5342 Fax: (239) 353-4061 From: hambright_g Sent: Friday, May 08, 20096:14 PM To: McAlpinGary Subject: FW: CAC May 14, 2009 web link Do you know anything about Forcht's comment below? I've not heard anything about this. 1 From: Ted Forcht [mailto:TForcht@cityofmarcoisland.com] Sent: Friday, May 08, 2009 5:10 PM To: hambright_9 Subject: RE: CAC May 14, 2009 web link I hate to not be their Thursday but 1m called out of town on business. I did have one question though", My Cousin is a County Commissioner in Avery Co. NC and he was telling me about people avoiding Hotel Room Tax by booking through services like PriceLine. Do you know anything about this and/or are we taking action to prevent it? 1I1 for sure be their next month, have a good week. weekend. Ted Forcht Councilman -----Original Message----- From: hambright_g (mailto:Gaill-lambright@colliergov.net] Sent: Fri 5/8/20094:35 PM Subject: CAC May 14,2009 web link http://www .coll iergov. net/i ndex .aspx ?page=2 70 7 <http://www.colliergov.net/index.aspx?page=2707> Gail D. Hambright, Accountant Coastal Zone Management 3300 Santa Barbara Blvd. Naples, Florida 34116 Phone: (239)252-2966 Fax: (239) 353-4061 Picture (Device Independent Bitmap) Please note: Florida has a very broad public records law. Most written communications to or from City officials regarding city business are public records, and are available to the public and media upon request. Your e-mail communications, including your email address, may therefore be subject to public disclosure. This message, together with any attachments, is intended only for the addressee. It may contain information which is legally privileged, confidential and exempt from public disclosure. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, use, or any action or reliance on this communication is strictly prohibited. (fyou have received this e-mail in error, please notifY the City of Marco Island immediately by telephone (239-389-5000) or by return e- mail and delete the message, along with any attachments. 2 McAlpinGary From: Sent: To: Subject: Attachments: hambright_g Tuesday, May 12, 20098:06 AM McAlpinGary FW: Florida info on Room Tax Cheating. image001.png FYI from Forcht CJaif iJ. ~, ffixowdant Coastal Zone Management 3300 Santa Barbara Blvd. Naples, Florida 34116 Phone: (239) 252-2966 Fax: (239) 353-4061 t\;.,/{ h. \:i... ~"r.:. t,. ,0; ,. of//" .I ""::'Y \" J"" I tV' &,:."'''~ ,', From: Ted Forcht [mailto:TForcht@cityofmarcoisland.com] Sent: Saturday, May 09, 20093:56 PM To: hambrighCg Subject: Florida info on Room Tax Cheating. Here is some better research from Florida. Ted FLORIDA: BITING THE HAND THAT FEEDS YOU? Florida counties battle online companies over bed taxes Image via pennsylvaniafiduciarylitigation.com Related Articles Baltimore seeks hotel tax from online firms Hawaii lawmakers consider more tourist taxes Denver unveils 'tourism stimulus,' including attraction discounts South Florida hotels see no bottom in tourism decline Mexican Tourism: Beach areas down but still not out BY MIAMIHERALD.COM I FEB 01, 2009 TALLAHASSEE - Counties and cities allover Florida are waging a war against online hotel-booking companies like Priceline and Expedia, alleging the companies are bilking them out of millions in tax dollars. In January, Broward County became the latest Florida government embroiled in a legal battle over whether online hotel-booking companies owe tourism taxes. As much as $200 million could be at stake statewide, according to Broward's attorney in the case. The companies say they don't owe a cent and that state officials are trying to impose a new tax. 1 Pinellas County Tax Collector Diane Nelson persuaded Tampa-area lawmakers to file legislation that would resolve the argument by forcing online booking companies to come up with tax dollars. Last week, Broward County commissioners said that passing such a law is among their top priorities. Right now, online travel companies buy up blocks of hotel rooms and the hotel owners remit sales and local tourism taxes on the wholesale price, say $50 a room. Then the online companies mark up the rooms, to say $100 a room, and keep the difference. The companies and local governments are fighting about whether the markup should be subject to the bed tax that funds tourism initiatives. Local government officials contend the tax should be levied on the consumers who occupy the rooms and on the prices consumers pay. "It should be paid by the person who is buying the right to occupy the room," said Orange County Comptroller Martha Haynie. "If the name on that room has changed hands, I don't care. I want the person who occupied the room to remit the proper amount of taxes." 'MONEY GRAB' Local governments are going on a "money grab," trying to tax services online companies provide, said Expedia lobbyist Jennifer Green. Green and others in her industry contend that current law taxes the price paid to occupy the room, which they said is paid at the wholesale rate, not the services associated with it. And online travel companies have a powerful ally who says this should be kept tax-free. Sen. Mike Haridopolos, R-Indialantic, filed legislation last year to prevent the markup from being taxed, although he hasn't yet filed similar legislation this year. "We need to bring tourists into Florida and if it's more expensive to vacation here, these companies are going to direct their services someplace else," said Haridopolos, whom many expect to be the next Senate president. MIAMI-DADE Jacksonville and Miami-Dade and Orange counties have been waging legal battles with online travel companies for several years. Miami-Dade began trying to collect tax revenue from online travel websites in 2006, when the county commission voted to sue the companies. Miami-Dade's tax collector's office then sent bills to more than 15 companies the following year, after a judge said the county needed to exhaust its normal collection procedures before taking the fight to court. That process still continues, and Monroe County has joined the effort, as well. BROW ARD In Broward's case, the county last year sought $4.9 million in taxes and penalties from seven online travel companies for rooms booked between the beginning of2002 and August 2007. The companies (Orbitz, Internetwork Publishing, Priceline, Travel Web, Hotwire, Hotels.com and Expedia) each filed a separate lawsuit against Broward County in Leon County Circuit Court earlier this month, saying they don't owe the tourism development tax. Steven Wolens, an attorney representing Broward, said local governments weren't aware of room-price gap until recently -- one of the earliest cases was filed in Los Angeles in 2004. 'CHEATING' In Florida, counties haven't had any successes. "The money is owed to the county," Wolens said. "These folks have been cheating the county and the state for at least a decade." Wolens also has consulted with other Florida governments, including Miami-Dade County, which also wants to collect from the online companies. And he said he's aware of similar claims filed in 18 states. It's difficult to determine exactly how many hotel rooms are booked using online travel companies, said Nicki Grossman, president of the Greater Fort Lauderdale Convention & Visitors Bureau, which administers the county's tourist development tax money. But based on numbers provided by local hotels, she estimates that in Broward about 150,000 rooms out of the roughly 3 million booked each year are reserved online. TAX-MONEY USES 2 In Broward, the tourist development tax brought in about $42.8 million during the fiscal year that ended in September 2008, according to the tourist development tax section of the county's revenue-collection division. Along with paying for the operation of the Convention & Visitors Bureau, the money is used to buy about $5.5 million a year in advertising and other promotions, including a wintertime billboard in Times Square in New York City displaying the temperature in Fort Lauderdale. OTHER USES Broward's tourism development tax money also is used to operate tourism offices in Europe and South America, to operate and market the Fort Lauderdale Convention Center, and to make debt payments for the Florida Panthers' hockey arena in Sunrise. Grossman said the money has become more important as falling home values have caused property-tax collections to drop. "As available property-tax collections diminish, bed-tax money becomes something local governments all over the state begin to covet," she said. ""...,."."...~"_",_~""",.._._'''>2<"'''~''_,_l.'''-o';',:,,,,., ".....MM..,~......."'_~.".u:<..l"'"-.-,.~_"''''.;''''''''v~~..,--_''';_ ,,""""'Ci.'_-"""""#'-'-""" Please note: Florida has a very broad public records law. Most written communications to or from City officials regarding city business are public records, and are available to the public and media upon request. Your e-mail communications, including your email address, may therefore be subject to public disclosure. This message, together with any attachments, is intended only for the addressee. It may contain information which is legally privileged, confidential and exempt from public disclosure. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, use, or any action or reliance on this communication is strictly prohibited. If you have received this e-mail in error, please notify the City of Marco Island immediately by telephone (239-389-5000) or by return e-mail and delete the message, along with any attachments. 3