HomeMy WebLinkAboutRelease, Hold Harmless and Indemnification AgreementRELEASE, HOLD HARMLESS, AND INDEMNIFICATION AGREEMENT
THIS RELEASE, HOLD HARMLESS, AND INDEMNIFICATION AGREEMENT
("Agreement"), is made and entered into this 4 day of August , 20 20, by
Make -A -Wish Foundation of
Southern Florida Inc. a not for profit corporation ("Applicant") to the City of
Miami, Florida, a municipal corporation of the State of Florida, in the County of Miami -Dade
("City"); and
WHEREAS, the Applicant has applied to the City for
Rezoning ("Request(s)") for the Property located at
approximately 615 NW 4 Avenue, 365 NW 6 Street, 353 NW 6 Street 343 NW 6 Street, 335 NW 6 Street,
348 NW 6 Street, 330 NW 6 Street, 540 NW 3 Court, 534 NW 3 Court, 530 NW 3 Court, 350 NW 6 Street,
358 NW 6 Street, 364 NW 6 Street, 537 NW 4 Avenue, 590 NW 3 Court and 531 NW 3 Court
("Property"); and
WHEREAS, the Applicant's Request(s) require(s) one or more Proceedings (as hereinafter
defined); and
WHEREAS, the City has been holding virtual public meetings due to the Novel
Coronavirus ("COVID-19") pandemic pursuant to the Governor's Executive Order Number 20-
69, as extended by Executive Orders 20-112 and 20-139, which suspends any statutory
requirement that physical quorum be present in order to hold a public meeting and permits local
governments to use communications media technology to hold public meetings; and
WHEREAS, Miami -Dade County ("County") has issued several Emergency Orders
associated with the COVID-19 pandemic, including Emergency Order 10-20 which provides that
no group of 10 or more individuals shall gather on a public street, alley, public sidewalk, or
government facility open to the public in the County, with some exceptions; and
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WHEREAS, the City Commission adopted Ordinance No. 13903 on May 28, 2020, which,
inter alia, modified the requirements regarding the swearing in of parties and participants for any
planning and zoning items and quasi-judicial hearings, including all appeals from both,
(collectively, "Proceedings") during the COVID-19 pandemic; and
WHEREAS, Ordinance No. 13903 temporarily suspends any requirement of members of
the general public who are not parties to be sworn in and temporarily allows parties to appear
virtually and make arrangements to be sworn in by oath or affirmation in -person at their location
by an individual qualified to perform such duty or be physically present at City Hall to be sworn
in by oath or affirmation by the City Clerk; and
WHEREAS, all physical proceedings will include certain social distancing requirements,
screenings, and protective measures consistent with the all Federal, State, and Local Emergency
Orders, Executive Orders, and guidelines in order to protect the health, safety, and welfare of the
employees and residents of the City; and
WHEREAS, the Applicant still wishes to proceed with the virtual Proceedings as described
herein on its Request(s) at their own risk; and
WHEREAS, the City requires the execution of this Agreement as a condition precedent to
move forward with virtual Proceedings on the Request(s);
NOW, THEREFORE, in consideration of the City allowing the Applicant to move forward
with the virtual Proceedings on the Request(s), subject to the terms and conditions set forth herein,
and in further consideration of these premises, the Applicant does hereby agree as follows:
1. The Applicant acknowledges that the foregoing recitals are true and correct and are
incorporated herein by reference as if fully set forth in this Section.
Release, Hold Harmless, and Indemnification Page 2 of 8
2. The Applicant understands that they have the option to wait until the COVID-19
pandemic ends to proceed with the Proceedings required for the Applicant' s Request(s).
Notwithstanding this option, the Applicant has requested to move forward with its Request(s)
without delay.
3. The Applicant acknowledges and agrees that if they proceed with their Request(s)
without delay, the City will hold virtual Proceedings on the Applicant' s Request pursuant to the
Governor's Executive Order and Ordinance No. 13903 as described above, with the Applicant, the
Applicant' s representative(s), and all those that intend to testify required to make arrangements to
be sworn in by oath or affirmation in -person at their off -site location by an individual qualified to
perform such duty or to coordinate with the City to be sworn in at City Hall.
4. The Applicant also acknowledges that per Ordinance No. 13903, the general public will
not be required to physically appear at the Proceedings' location to be sworn by oath or affirmation,
but will have several different avenues for public comment, which may include prerecorded phone
and video submission, an online public comment form, and preregistration for a live call back
during the meeting.
5. The Applicant, for themselves, their heirs, grantees, personal representatives,
successors, and assigns, expressly and unequivocally agrees to release, waive, forever discharge,
and covenant not to sue the City, and its officers, officials, directors, employees, personnel,
volunteers, agents, assigns, successors, representatives, attorneys, contractors, and all other
persons, entities, organizations, instrumentalities, and corporations affiliated therewith
(collectively, "Released Parties") from any and all claims, demands, suits, causes of action
(including by way of illustration and not limitation, actions to challenge, set aside, or void any
proceeding or entitlement; actions to assert any constitutional, due process, or property rights
Release, Hold Harmless, and Indemnification Page 3 of 8
claims or violations; any actions or claims for loss, injury, loss of life), appeals, administrative
appeals, damages, losses, liabilities, costs, and expenses (including, without limitation, court costs
and attorney' s fees, at all levels of proceedings [administrative, trial, and appellate levels] for any
and all defense, investigation, or processing thereof whatsoever), judgments, orders, decrees, and
settlements in any way based on, arising from, relating to, incidental to, or connected to, directly
or indirectly, in whole or in part, any one or more of the following enumerated matters
(collectively, "Released Matters"): (i) this Agreement; (ii) the virtual Proceedings on Applicant's
Request(s), including, without limitation, the City's procedures found in Ordinance No. 13903,
the swearing -in procedures, the public comment procedures, the scheduling procedures, and all
other aspects involving the virtual Proceedings and the City's procedures thereon (including,
without limitation, any due process claim(s), claim(s) of defective notice, or any other claim(s)
arising from the format, legal sufficiency, or technological specifications of the virtual Proceedings
or communications media technology used to conduct the virtual Proceedings); (iii) the City's use
of communications media technology and inability of the City to conduct an in -person meeting
while social distancing guidelines remain in place; or (iv) any and all third -party claim(s),
challenge(s), appeal(s), or other proceeding(s) arising from any of the matters described in this
Section, in whole or in part.
6. Applicant hereby agrees to defend, indemnify, and hold harmless the Released Parties
against any and all claims, demands, suits, causes of action (including by way of illustration and
not limitation, actions to challenge, set aside, or void any proceeding or entitlement; actions to
assert any constitutional, due process, or property rights claims or violations; any actions or claims
for loss, injury, loss of life), appeals, administrative appeals, damages, losses, liabilities, costs, and
expenses (including, without limitation, court costs and attorney's fees, at all levels of proceedings
Release, Hold Harmless, and Indemnification Page 4 of 8
[administrative, trial, and appellate levels] for any and all defense, investigation, or processing
thereof whatsoever), judgments, orders, decrees, and settlements in any way based on, arising
from, relating to, incidental to, or connected to, directly or indirectly, in whole or in part, any of
the Released Matters.
7. Nothing herein is intended to waive or deprive Applicant of its right to appeal a
determination of the body for reasons wholly unrelated to, and not at all associated with, the virtual
nature of the Proceedings, to the extent such a right to appeal exists.
8. The Applicant is voluntarily executing this Agreement and has not been pressured,
forced, threatened, or coerced to execute this Agreement or to proceed with the virtual Proceedings
required for the Applicant's Request(s). The Applicant understands that they have a right to
consult with an attorney before signing this Agreement and have either consulted with an attorney
or knowingly and voluntarily decided not to consult with an attorney. The Applicant is not under
the influence of any drugs, alcohol, medication, any other narcotic or have any mental illness that
might tend to affect the ability to knowingly enter into this Agreement and move forward with the
Proceedings.
9. The Applicant has read and understand(s) the terms of this Agreement.
10. The Applicant acknowledges and agrees that nothing in this Agreement shall prejudice
the City' s right to impose protections pursuant to State, County, City, or any other agency orders,
regulations, guidelines, resolutions, and ordinances otherwise necessary to ensure the public
health, safety, and welfare of the citizens and employees of the City; nor shall the City be estopped
from enforcing the terms of this Agreement for any reason.
11. Invalidation of any of provisions of this Agreement by judgment of a court shall not
affect any of the other provisions, which shall remain in full force and effect.
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12. The undersigned confirms that they are the authorized representative(s) of the
Applicant, are authorized to enter this Agreement, and have authority to bind the Applicant. As
applicable, the most recent Sunbiz and a duly adopted Resolution from the Applicant entity is
attached hereto.
13. This Agreement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, and such counterparts shall together constitute but one
and the same Agreement. The parties shall be entitled to sign and transmit an electronic signature
of this Agreement (whether by facsimile, PDF or other email transmission), which signature shall
be binding and have the same effect as original signatures.
[Signature pages follow]
This space intentionally left blank
Release, Hold Harmless, and Indemnification Page 6 of 8
IN WITNESS WHEREOF, the Applicant has caused these presents to be executed and
signed in its name by its proper officer on the day set forth above.
Signed, Sealed and Delivered
Fibt,'ce-1,W1.sk u }a yn_
(Name of Applicant)
a 1001\-- ?CO R`t4
(Type of ;.any or Individual)
By:
(Si nature)
KOf MAI\ W42-daa 60
(Name of Person Authorized to Sign)
Qt..e w60,1 CEO
(Title)
STATE OFF )
jj ) SS
COUNTY OF (fc 4,► •-t1J` )
The foregoing instrument was acknowledged„ before me by means of ✓ physical
presence OR online notarization, this +-111- day of crcti , 2020. by
"(Nn WaCOCLA‘00i0 a as C& k CG.D of
- S. P , . Personally Known fr Produced Identification
Type of Identification Produced 1 ,
TAMMYt.KUHNS
MY COMMISSION # GG 300027
oFa 7IRES:May 14, 2023
'"t°ef,t°• BondePea Notary Put unaeraniters
• - {--
Release.Hold Hatnticss, and Indemnification
rm or Sta f ai e:
Notary Public, State of4c .
Commission No.:
My Commission Expires:
Page 7of8
CITY OF MIAMI, a municipal corporation of the
State of Florida
By:
Arthur Noriega, V
City Manager
ATTESTED:
By:
Todd B. Hannon
City Clerk
APPROVED AS TO LEGAL FORM AND
CORRECTNESS:
Victoria Mendez, City Attorney
Release, Hold Harmless, and Indemnification Page 8 of 8
2020 FLORIDA NOT FOR PROFIT CORPORATION ANNUAL REPORT
DOCUMENT# N12127
Entity Name: MAKE -A -WISH FOUNDATION OF SOUTHERN FLORIDA, INC.
Current Principal Place of Business:
4491 S STATE ROAD 7
STE 201
FT LAUDERDALE, FL 33314
Current Mailing Address:
4491 S STATE ROAD 7
STE 201
FT LAUDERDALE, FL 33314 US
FEI Number: 59-2620322
Name and Address of Current Registered Agent:
WEDDERBURN, NORMAN E
4491 S STATE ROAD 7
STE 201
FT LAUDERDALE, FL 33314 US
FILED
Feb 26, 2020
Secretary of State
8968557843CC
Certificate of Status Desired: Yes
The above named entity submits this statement for the purpose of changing its registered office or registered agent, or both, in the State of Florida.
SIGNATURE: NORMAN WEDDERBURN
02/26/2020
Electronic Signature of Registered Agent
Officer/Director Detail :
Title
Name
Address
City -State -Zip:
Title
Name
Address
City -State -Zip:
Title
Name
Address
City -State -Zip:
Title
Name
Address
City -State -Zip:
TREASURER
SIRAVO, JODI
4491 S STATE ROAD 7 STE 201
FT. LAUDERDALE FL 33314
CHAIR -ELECT
BATY, GREG
4491 S STATE ROAD 7 STE 201
FT LAUDERDALE FL 33314
COO
KELLY, RICHARD
4491 S STATE ROAD 7
STE 201
FT LAUDERDALE FL 33314
VP, MISSION DELIVERY
MULLINS, KAREN
4491 S STATE ROAD 7
STE 201
FT LAUDERDALE FL 33314
Title
Name
Address
City -State -Zip:
Title
Name
Address
City -State -Zip:
Title
Name
Address
City -State -Zip:
Title
Name
Address
City -State -Zip:
BOARD CHAIR
WEISSMAN, RICHARD
4491 S STATE ROAD 7 STE 201
FT LAUDERDALE FL 33314
CEO
WEDDERBURN, NORMAN E
4491 S STATE ROAD 7 STE 201
FT LAUDERDALE FL 33314
VP, MISSION RESOURCES
KATZ, JULIE
4491 S STATE ROAD 7
STE 201
FT LAUDERDALE FL 33314
CFO
JACKSON, BETH
4491 S STATE ROAD 7
STE 201
FT LAUDERDALE FL 33314
Date
I hereby certify that the information indicated on this report or supplemental report is true and accurate and that my electronic signature shall have the same legal effect as if made under
oath; that I am an officer or director of the corporation or the receiver or trustee empowered to execute this report as required by Chapter 617, Florida Statutes; and that my name appears
above, or on an attachment with all other like empowered.
SIGNATURE: NORMAN WEDDERBURN
PRESIDENT/CEO
02/26/2020
Electronic Signature of Signing Officer/Director Detail
Date
State of Florida
Department of State
I certify from the records of this office that MAKE -A -WISH FOUNDATION
OF SOUTHERN FLORIDA, INC. is a corporation organized under the laws of
the State of Florida, filed on November 18, 1985.
The document number of this corporation is N12127.
I further certify that said corporation has paid all fees due this office through
December 31, 2020, that its most recent annual report/uniform business report
was filed on February 26, 2020, and that its status is active.
I further certify that said corporation has not filed Articles of Dissolution.
Given under my hand and the
Great Seal of the State of Florida
at Tallahassee, the Capital, this
the Fourteenth day of July, 2020
Secretary of State
Tracking Number: 1154850388CU
To authenticate this certificate,visit the following site,enter this number, and then
follow the instructions displayed.
https://services.sunbiz.org/Filings/CertificateofStatus/CertificateAuthentication
Make -A -Wish Southern Florida Board of Directors
2020-2021
Appleton, Michael
Barnes, Jennifer
Baty, Greg
Bensaadon, Gal
Cesarano, Sheila
Crowley, Dennis
Dimitrijevic, Marko
Diskin, Arthur
Exelbert, Brian
Fernandez, Marcus
Fernandez, Mayte
Frenkel, Eugene
Gang, Taylor
Glaser, Todd
Gutierrez, Sherri
Helms, Scott
Johnson, Kristin
Jove, Terry
Kane-Hanan, Lani
Killidar, Ameen
Malnik, Shareef
Mandala, Drew
Perez, Joe
Rose, Brett
Rubinstein, Danielle
Siravo, Jodi
cnnricrc rlvl6n
Skolnick, Barry
Valdes, Angie
Weissman, Richard
Proposed Resolution
Be it Resolved, that the Sixth Amended and Restated Bylaws of the Make -A -
Wish Foundation of Southern Florida, attached hereto as Exhibit A, as adopted and
that the changes indicated to the Sixth Amended and Restated Bylaws by the redline
notations in appended as Exhibit B, are hereby approved and ratified.
SEVENTH AMENDED AND RESTATED BY LAWS
OF
MAKE -A -WISH FOUNDATION OF SOUTHERN FLORIDA, INC.
(THE "FOUNDATION")
AS OF August 24, 2015
A NOT -FOR -PROFIT CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF FLORIDA
ARTICLE 1
OFFICES, PURPOSES & MEMBERS
1.0 Offices. The principal office of the corporation shall be located at its
principal place of business or such other place as the Board of Directors (the "Board")
may designate. The Foundation may have such other offices in the territory as the
Board may designate and as the business of the Foundation may require from time to
time.
1.1 Purpose. The purpose of the Foundation is to grant the wish of each
child who has reached the age of two and one-half (21/2) and is under the age of eighteen
(18) who has a life -threatening medical condition, i.e., a progressive, degenerative or
malignant medical condition that has placed the child's life in jeopardy. The
Foundation is organized and shall be operated exclusively for scientific, charitable and
educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
1.2 Members. In accordance with the Articles of Incorporation, as amended,
the Foundation has no membership.
ARTICLE 2
BOARD OF DIRECTORS
2.1 General Powers. The Board, except as otherwise provided by the law,
the Articles of Incorporation or these Bylaws shall manage the affairs and business of
the Foundation.
(15).
2.2 Number of Directors. The Board shall consist of not less than fifteen
2.3 Terms of Office. The term of office of a member of the Board shall be as
follows:
(a) An initial term of one (1) year (the "Probationary Term")
(b) If reappointed, a second term of two (2) years (the "Initial
Reappointment Term")
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(c) If reappointed after the Initial Reappointment Term, an
additional term of three (3) years (the "Second Reappointment
Term").
(d) If a director has otherwise served the terms set forth in (a), (b)
and (c) above, such person shall be eligible to be reappointed to
an additional term of two (2) years, subject to the limitations set
forth below (the "Third Reappointment Term").
In no event may any person serve more than eight (8) years as a Director and
one (1) year as a Trustee -Advisor (as defined in Section 3.10) consecutively but
not necessarily in that order (the "Maximum Period"). Any person subject to
the foregoing nine- (9) year limitation shall again be eligible to serve on the
Board, as if such person had never held such position, one (1) year following the
expiration of the Maximum Period.
2.4 Participation on Operating Committees. Each Board member shall, if
asked, be required to serve on at least one of the following: (i) the Executive Committee,
(ii) the Audit Committee or (iii) a standing Operating Committee or a subcommittee
thereof. Except as otherwise provided in these Bylaws, the Chair of the Board shall
make all appointments to committees.
2.5 Resignation. A Director may resign at any time by delivering written
notice to the Chair.
2.6 Removal. A Director may be removed from office, with or without cause,
at a regularly scheduled Board meeting, or at a special meeting called expressly for
that purpose, by a vote of two-thirds (2/3) of the Board members present and entitled
to vote on the election of Directors.
2.7 Vacancies. Any vacancy that needs to be filled on the Board of Directors
shall be filled by an affirmative vote of the majority of remaining Directors.
2.8 Compensation. Directors shall not receive compensation for their
services as such, although the reasonable expenses of Directors for expenditures on
behalf of the Foundation may be reimbursed.
2.9 Trustee -Advisors. Upon request to the Executive Committee and
approval thereof, a Director may ask, if serving a Second Reappointment Term, to be
designated a Trustee -Advisor during any one of the three years (3) constituting the
Second Reappointment Term. If so designated as a Trustee -Advisor, such person shall
no longer have any voting rights as a member of the Board during such one (1) year
period but shall have all other rights and privileges of a Director and shall be entitled
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to continue to attend all Board meetings and provide advice and counsel to the Board.
A Trustee -Advisor shall be eligible to serve as an Officer of the company except as
President. After the completion of the one- (1) year appointment as a Trustee -Advisor,
such person shall fulfill the unexpired portion of his or her Second Appointment Term.
The year of service as a Trustee -Advisor shall not count against the unexpired portion
of such person's term as a Director. No person shall serve as a Trustee -Advisor for
more than one (1) year and shall only be eligible for such appointment during the
Second Reappointment Term.
ARTICLE 3
MEETINGS OF THE DIRECTORS
3.1 Annual Meeting. The Annual Meeting of the Board shall be held in
August of each year, on the date and time set by the Board. Matters to be presented at
the Annual Meeting shall include (a) election of Directors whose terms shall commence
as of the first day of the next fiscal year, (b) election of Officers whose terms shall
commence as of the first day of the next fiscal year, and (c) the transaction of such
business as may properly come before the Board.
3.2 Regular Meetings. Regular meetings of the Board may be specified as to
the date, time, and place for holding by resolution adopted by the Board. Notice of
such meetings for either Board or committees is not necessary other than said
resolutions. Including the Annual Meeting but excluding the Recognition Meeting and
the Retreat, the Board shall meet no less than two (2) times per year.
3.3 Retreat. Each year, the Chair, in consultation with the Executive
Committee shall determine whether to hold a retreat for the purposes of engaging in
strategic planning and educational programming pertaining to the business of the
Foundation. A retreat shall be held no less than every other year. In those years in
which a retreat is held, the Chair, in consultation with the Executive Committee, shall
be responsible for planning the time, place and content of the retreat.
3.4 Special Meetings. Special Meetings of the Board or any committee
designated and appointed by the Board may be called by or at the written request of
the Chair or any two (2) Directors, or in the case of a committee meeting, by the
chairperson of the committee with no less than three (3) days written or telephone
notice prior to the time of the special meeting shall be given. Neither the business to be
transacted at, nor the purpose of the special meeting need be specified in the notice of
such meeting, unless specifically required by the Articles of Incorporation or these
Bylaws.
3.5 Meetings by Telephone. Members of the Board or any committee
designated by the Board may participate in a meeting by means of a conference
telephone or similar communications equipment by which all persons participating can
hear each other. Participation by such means shall constitute presence in person at a
meeting.
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3.6 Action Without a Meeting. Any action that could be taken at a meeting
of the Board may be taken without a meeting if a consent in writing setting forth the
action so taken shall be signed by all of the Directors entitled to vote with respect to the
subject matter of the action. Such consent shall have the same force and effort as a
unanimous vote of the Directors.
3.7 Waiver of Notice. Any Director may waive notice of any meeting in
writing. The attendance of any Director shall constitute a waiver of notice of such
meeting except where a Director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not properly called or
convened.
3.8 Quorum. The quorum requirement of the Board for the transaction of
business at any Board meeting will be one-third (1/3) of the total number (rounded up
to the next whole number) of Directors then holding office. If a quorum is not present
at the meeting, a majority of the Directors present may adjourn the meeting and set a
date and time for the meeting to reconvene. No Director may vote or act by proxy at
any meeting of the Board.
3.93 Manner of Acting. The act of a majority of the Directors present at a
meeting duly held at which a quorum is present shall be the act of the Board, unless
the act of a greater number is required by these Bylaws, the Articles of Incorporation,
or applicable Florida law.
ARTICLE 4
ADVISORY BOARD and ADVISORY COUNCIL
4.1 The Creation and Purpose of an Advisory Board or Advisory Council.
The Board may establish an Advisory Board or Advisory Council as it deems
appropriate. The purpose of the Advisory Board or Advisory Council shall be to assist
the Foundation in promoting and enhancing its image, to support and participate in
development and fundraising activities, to facilitate and promote the growth of the
Foundation consistent with its purposes.
4.2 Number, Tenure and Election. The President shall approve the
appointment of all members of the Advisory Board or Advisory Council.
4.3 Meetings. Meetings of an Advisory Board or Advisory Council may be
called at the request of the Chair or President and shall be held on such date and at
such place as determined by the person calling such meeting.
ARTICLE 5
BOARD COMMITTEES
5.1 The Executive Committee. The following Officers, unless otherwise not
a member of the Board, shall be members of the Executive Committee: the Chair, the
Chair -Elect, the Chair -Elect Designate and the Treasurer. The two immediate past
Chairs shall be members of the Executive Committee unless he or she is not a member
of the Board or is unwilling to serve on the Executive Committee. In the event that a
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vacancy exists because one or both immediate past Chairs are unable to serve, the
Chair may appoint any past Chair that is a current member of the Board to serve in
the position(s) designated for the two immediate past Chairs. Any officer who is not a
member of the Board but who is a Trustee -Advisor and either of the immediate past
two Chairs who is not a member of the Board but who is a Trustee -Advisor shall serve
ex-officio as non -voting advisors to the Executive Committee. In addition to the
foregoing persons, the Chair shall appoint five (5) additional members of the Board to
serve on the Executive Committee; provided, however, the Chair shall have the option
of appointing 5 "voting" members and as many non -voting members as desired to
serve on the Executive Committee in order to ensure that there are no less than nine
(9) voting members of the Executive Committee and to also ensure that the Executive
Committee consists of an odd number of voting members. The President shall be a
non -voting, ex-officio member of the Executive Committee.
5.1.1 Appointment and Term. With respect to any person not serving on the
Executive Committee by virtue of being an Officer or past Chair, such person's
appointment to the Executive Committee shall be for a term of one (1) year. Members
of the Executive Committee, other than ex-officio members of the Executive
Committee, shall be designated by the Chair -Elect immediately preceding such
person's election as Chair and shall be ratified by the Board at the Annual Meeting.
5.1.2 Duties. The Executive Committee shall conduct the affairs of the
Foundation and exercise the powers of the Board when the Board is not in session
subject to the limitations set forth in Section 5.4 and provided further that the
Executive Committee can not override, reverse, rescind, or modify any action taken by
the Board. In addition to its other duties, the Executive Committee shall identify,
recruit and nominate members to the Board and identify, recruit and nominate persons
to fill vacancies that may occur on the Board from time to time. The Executive
Committee shall not be constrained to automatically renominate a sitting Board
member for an additional term. Prior to nominating its slate of candidates for
membership on the Board, the Executive Committee shall survey existing Board
members to determine their willingness to continue to serve. In considering the
nomination of persons for reappointment to the Board, the Executive Committee shall
consider the following factors: (i) consistent attendance at Board and committee
meetings, (ii) service to the Foundation during their prior term, (iii) ability to work
with staff and other Board members, (iv) willingness to serve and (v) achievement of
stated personal goals. The Executive Committee shall make nomination to the Board
with respect to the election of Officers. In nominating persons to serve as Officers, the
Executive Committee shall consider the following factors: (i) commitment to the
Foundation and its mission, (ii) consistent attendance at Board and committee
meetings, (iii) leadership capabilities, and (iv) diversity in the context of other Officers.
The immediate past Chair, in conjunction with current officers of the Foundation, shall
review and report the performance of the President, and recommend to the Executive
Committee, for approval, the President's compensation.
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5.1.3 Meetings. The Executive Committee shall meet in person no less than
once each fiscal quarter unless a majority of the then sitting members of the Executive
Committee vote to hold fewer meetings.
5.2 Audit Committee. The duties and responsibilities of the Audit
Committee shall be to recommend the selection of external auditors to the Board if the
auditors are not otherwise obtained in coordination with the Make -A -Wish Foundation
of America; receive, review, and forward to the Board the annual financial report of
the external auditors; review and approve the Foundation's 990s prior to filing; ensure
that generally accepted accounting principles are practiced by the Foundation; and
such other matters as may warrant its attention. Audit committee shall meet at least
once a year to discuss and review the auditor's preliminary findings before they are
finalized and presented to the Board.
5.2.1 Membership of the Audit Committee. The Audit Committee shall be
comprised of the Treasurer and two or more directors as determined and appointed
annually by the Board upon recommendation of the Chair, each of whom shall be free
from any relationship that, in the opinion of the Board, would interfere with the
exercise of his or her independent judgment as a member of the Audit Committee.
Unless the Board appoints a chair, the Treasurer shall serve as the chair of the Audit
Committee.
5.2.2 Scope of Audit Committee Work. In accomplishing its assigned
responsibilities, the Audit Committee will review the following listed matters and such
other matters as may warrant its attention. It may, with approval of the Board, engage
additional assistance to undertake such reviews of financial management performance,
as it deems necessary.
a. Consistent with Section 5.2.2, recommend to the Board the selection
of the Foundation's external auditors and the annual fees to be paid for services
rendered by the external auditors, review each proposed audit plan developed by
management and the external auditors, periodically review the performance of the
external auditors, and recommend to the Board any proposed retention or discharge
of the external auditors, and report the results of the Foundation's annual audit by the
independent auditing firm to the Board.
b. Review and forward to the Board the annual financial management
letter of the external auditors, with such comments of its own, as may be appropriate.
5.3 Other Board Committees/Appointment. The Board, by resolution
adopted by a majority of the Directors in office, may designate and appoint one or more
standing or temporary board committees, each of which shall consist of one or more
Directors and appoint a committee chairperson as deemed appropriate. The Board
shall have the power to fill vacancies in, to change the size of or membership of, and to
discharge any committee.
5.4 General Powers and Limitations. Each board committee shall have and
exercise the authority of the Board in the management of the Foundation, subject to
such limitations as may be prescribed by the Board; except that no committee shall
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have the authority to: (a) amend, alter or repeal these Bylaws or the Articles of
Incorporation; (b) elect, appoint, or remove any member of any committee or any
Director or officer of the Foundation; (c) adopt a plan of merger or consolidation with
another Foundation; (d) authorize the sale, lease, or exchange of all or substantially all
of the property and assets of the Foundation not in the ordinary course of business; (e)
authorize the voluntary dissolution of the Foundation or reverse proceedings therefore;
(f) adopt a plan for the distribution of the assets of the Foundation; or (g) amend, alter
or repeal any resolution of the Board. The designation and appointment of any
committee and the delegation thereto of authority shall not operate to relieve the Board
or any individual Director of any responsibility imposed upon the Board or any
individual Director by law, the Articles of Incorporation or these Bylaws.
5.5 Composition. Except as specifically provided in these Bylaws with
regard to the composition of the Executive Committee and the Audit Committee, all
other Board committees, shall include at least one (1) Director and shall be appointed
thereto by the Board or if the Board is not meeting, the Executive Committee.
5.6 Quorum and Manner of Acting. A majority of the members of a
committee shall constitute a quorum.
5.7 Vacancies. The Chair may fill a vacancy on any committee after
consulting with the chairperson of the committee for the unexpired term of the vacating
member.
5.8 Resignation and Removal. Any member of any committee may resign at
any time by giving written notice to the Chair of the Foundation. Any such resignation
shall take effect at the time specified therein. If no such time is specified, then it shall
take effect immediately upon receipt by the Chair. A committee member may be
removed with or without cause by a majority vote of the Board.
5.9 Conference Telephone Meetings. Any regular or special meeting of any
committee may be held by telephone conference as long as all members of such
committee participating in the meeting can hear one another. All such members shall
be deemed to be present in person at that meeting.
5.10 Action Without a Meeting. Any action required or permitted to be taken
at a committee meeting may be taken without a meeting if a consent in writing stating
the action so taken shall be signed by all the committee members entitled to vote. Such
consent, may be signed in counterpart, and shall have the same force and effect as a
unanimous voting of the committee members.
ARTICLE 6
OPERATING COMMITEES
6.1 Standing Operating Committees. The Foundation shall have the
following standing Operating Committees: (i) Investment and (ii) Mission Delivery.
The Executive Committee may designate and appoint, upon recommendation of the
Chair, the creation of one or more committees or sub -committees. The Executive
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Committee shall have the power to fill vacancies in, to change the size of or membership
of, and to discharge any such committee or sub -committee.
6.2 Manner of Acting. Each Operating Committee shall be governed as
provided by Article V, Section 5.6, Section 5.7, Section 5.9 and Section 5.10. Each
Operating Committee or sub -committee thereof shall maintain written records of its
actions and activities and provide a copy of the same to the President.
6.3 Authority. Each Operating Committee shall advise the Board on the
business of the Foundation as it relates to the charge of the Operating Committee or
sub -committee thereof. The chair of each Operating Committee or sub -committee
thereof shall, at the request of the Chair, meet with the Board or the Executive
Committee, to advise such body of the committee or sub -committees activities and to
receive charges and instructions. Each chair of an Operating Committee or a sub-
committee thereof shall be afforded the opportunity to meet with the Board or the
Executive Committee upon request to either the Chair or the President.
6.4 Composition. Except as otherwise specifically provided for, each
Operating Committee or sub -committee thereof shall include at least three (3) persons
and may include persons who are not Directors. An Operation Committee or sub-
committee member may be removed with or without cause by a majority vote of the
Executive Committee. The Board or the Executive Committee when the Board is not
in session shall approve, modify or reject all recommendations made by any Operating
Committee or sub -committee thereof.
6.5 Board Liaison. Each standing Operating Committee shall have a Board
Liaison who shall be responsible to: (i) consult with the chair of the Operating
Committee and (ii) monitor and report to the Board or the Executive Committee when
the Board is not in session on the activities of the Operating Committee.
6.6 The Investment Committee.
6.6.1 Purpose. The purpose of the Investment Committee is to monitor the
Foundation's investments.
6.6.2 Duties and Responsibilities. The duties and responsibilities of the
Investment Committee shall be to: (i), (i) recommend to the Board an investment
policy, and updates to the same from time to time, to maximize the Foundation's
income, and (ii) present to the Board recommendations on matters related to financial
institutions, investment and specific funds established by the Foundation.
6.7 The Mission Delivery Committee.
6.7.1 Composition. The Mission Delivery Committee shall include at least one
(1) member of the Board, the Vice President of Mission Delivery and such other
persons as the Board shall determine from time to time. The Chair of the Mission
Delivery Committee need not be a member of the Board.
6.7.2 Purpose. The purpose of the Mission Delivery Committee is to
formulate wish polices and recommend changes to the Board and to provide oversight
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and monitoring of children's wishes granted by the Foundation. The Board shall
approve, modify or reject all recommendations made by the Mission Delivery
Committee.
6.7.3 Duties and Responsibilities. The duties and responsibilities of the
Mission Delivery Committee shall be to: (i) monitor the growth of wishes and analyze
the impact of the growth on the number of volunteers needed, the number of training
sessions conducted, and seek to maintain the quality of wishes, and provide for the re-
training of existing volunteers, (ii) conduct research and investigate other wish
granting organization serving the some geographic area as the Foundation and when
possible to communicate with these charities to avoid duplication of services, (iii)
review wish potential surveys to provide the Executive Committee and the Board with
information necessary for the establishment of the Foundation's annual budget, (iv)
devise methods of communication with Board members regarding emergency wish
situations, (v) develop tools necessary to evaluate the effectiveness of training
volunteers for the wish granting process, (vi) utilize volunteer expertise on the
committee to expand its focus and performance, (vii) monitor outreach to referral
sources to maintain consistent numbers of referral, (viii) monitor relationships with
referral facilities and develop ways to enhance the rapport with staff at these facilities
and (ix) approve wishes with a budget in excess of three (3) times the foundation's prior
year's average cash wish cost or that are non-traditional in nature
ARTICLE 7
OFFICERS
7.1 Number and Qualifications. The Officers of the Foundation shall be the
Chair, Chair -Elect, Chair -Elect Designate, Secretary, Treasurer and President and
except for the Secretary shall be elected by the Board at the Annual Meeting. The Chair
shall appoint from among the other officers one such person to serve as the Secretary.
No person may hold more than one office other than the office of Secretary. Except for
the Chair, Chair -Elect and Chair -Elect Designate, officers may be elected for any
number of terms. Unless an officer resigns, dies, or is removed from office, the officer
shall hold office through the fiscal year. The Chair -Elect shall become Chair upon the
expiration of the term of the Chair -Elect and shall fill the unexpired term (if any) of
the Chair. Unless otherwise voted upon by the Board, the Chair -Elect Designate shall
become the Chair -Elect upon the expiration of the term of the Chair -Elect Designate
and shall fill the unexpired term (if any) of the Chair -Elect. Except for the President,
Officers need not be members of the Board but must be a Trustee -Advisor if not a
member of the Board.
7.2 Election and Term of Office. The officers of the Foundation shall be
elected by the Board at the Annual Meeting to serve for one year. Unless an officer
resigns, dies, or is removed from office, the officer shall hold office until the next
Annual Meeting of the Board. Officers may be elected for any number of terms,
provided, however, no person may serve as Chair for more than two consecutive one-
year terms.
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7.3 Removal. Any officer or agent may be removed from office by the
majority vote of the Board whenever in its judgment the best interest of the Foundation
would be served thereby. Such removal shall be without prejudice to the contract
rights, if any, of the person removed.
7.4 Resignation. Any officer may resign at any time by delivering written
notice to the Chair. Any officer's resignation shall take effect at the time specified in
the notice, and unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. A vacancy in any office, however occurring,
may be filled by the Board for the unexpired portion of the term.
7.5 Authority and Duties of Officers. The officers of the Foundation shall
have the authority and shall exercise the powers and perform the duties specified below
and as may be additionally specified by the Chair, the Board or these Bylaws, except
that in any event each officer shall exercise such powers and perform such duties as
may be required by law.
7.5.1 Chair. The Chair shall be the Chair of the Board. The Chair shall
preside over meetings of the Board. The Chair may sign Chapter agreements, deeds,
mortgages, bonds, contracts, and other instruments, except when the signing and
execution thereof have been expressly delegated by the Board or these Bylaws to some
other officer or agent of the Foundation or is required by law to be otherwise signed or
executed by some other officer or in some other manner. In general, the Chair shall
perform all duties incident to the office of Chair and such other duties as are assigned
to him or her by the Board.
7.5.2 Chair -Elect. The Chair -Elect shall, in the absence of the Chair, perform
all duties and assume all responsibilities of the Chair. The Chair -Elect shall perform
such other duties as from time to time may be assigned to him or her by the Chair or
the Board. If the Chair shall cease to so serve, the Chair -Elect shall thereupon become
the Chair for the remainder of the unexpired term and thereafter serve for the term
for which he or she was elected.
7.5.3 Secretary. The Secretary shall be responsible for ensuring that minutes
are recorded and maintained of meetings of the Board, and to the extent minutes are
recorded of committees of the Board, that such minutes are maintained; see that all
notices are duly given in accordance with the provisions of these Bylaws or as required
by law; be the custodian of the corporate records of the Foundation or appoint such
person or entity as is appropriate to act as such custodian; ensure that records are kept
of the address of each director and of the name and address of each officer, and in
general perform all duties incident to the office of Secretary and such other duties as
from time to time may be assigned to the Secretary by the Chair or the Board.
7.5.4 Treasurer. The Treasurer is the Chief Financial Officer of the
Foundation and is responsible for ensuring the integrity of the Foundation's fiscal
affairs. The Treasurer may serve as the chair of the Audit Committee. The Treasurer
shall cause to be kept an accurate and detailed record of all receipts and disbursements,
which records shall at all times be subject to inspection by any member of the Board.
The Treasurer shall cause to be deposited all Foundation funds coming into his or her
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hands in such banks, trust companies or depositories as the Board may select. All
checks, drafts, notes, or orders drawn against the accounts or funds of the Foundation
shall be signed by the Secretary, Treasurer or such officers, agent, or employee
authorized by resolution of the Board. The Treasurer shall work with staff to develop
the Foundation's annual budget and seek approval of the budget from the Board. The
Treasurer shall review the Foundation's annual financial statements and reports as
required by the Bylaws, including the compliance of the Foundation's accounting and
financial management systems and reports with generally accepted accounting
principles for nonprofit organizations.
7.5.5 President. The President shall be the Chief Executive Officer of the
Foundation and shall not be a Director, but shall be an employee of the Foundation and
is responsible for managing its day-to-day activities and personnel. The President shall
be an ex-officio non -voting member of the Board. The President may sign Chapter
Agreements, deeds, mortgages, bonds, contracts and other instruments which the
Board has authorized to be executed (except in cases where the signing and execution
thereof shall be expressly delegated by the Board, or these Bylaws, to some other officer
or agent of the Foundation or shall be required by law to be otherwise signed or
executed). The President shall perform all duties incident to the office of President and
shall perform such other duties as from time to time may be assigned to him or her by
the Board.
7.5.6 Chair -Elect Designate. The Chair -Elect Designate shall be responsible
for Board development and shall serve as the Board Liaison to the Mission Delivery
Committee. The Chair -Elect Designate shall perform such other duties as from time to
time may be assigned to him or her by the Chair or the Board. The Chair -Elect
Designate shall, in the absence of the Chair -Elect, perform all duties and assume all
responsibilities of the Chair -Elect. If the Chair -Elect shall cease to so serve, the Chair -
Elect Designate shall thereupon become the Chair -Elect for the remainder of the
unexpired term and thereafter serve for the term for which he or she was elected.
7.6 Additional Officers. Officers and assistant officers, in addition to those
described above, established by and who are elected or appointed by the Board, shall
have such authority and perform such duties as are provided in these Bylaws or as may
be provided by Resolution of the Board.
7.7 Compensation and Expenses. Officers shall serve without salary unless
they are also employees of the Foundation. Officers may receive reimbursement for
expenditures incurred on behalf of the Foundation upon approval of the Board.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification. The Foundation shall indemnity its officers, Directors,
employees or agents of the Foundation in accordance with F.S. 607.0850 and 607.0831.
ARTICLE 9
CONTRACTS, CHECKS, DEPOSITS
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9.1 Contracts. The Board may authorize any officer or officers or agents of
the Foundation, in addition to the officer so authorized by these Bylaws, to enter into
any contract or execute and deliver any instrument in the name of and on behalf of the
Foundation. Such authority may be general or confined to specific instances.
9.2 Checks, Drafts Etc. All checks, drafts or orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the Foundation,
shall be signed by such officer or officers, agent or agents of the Foundation in such
manner as shall from time to time be determined by resolution of the Board. In the
absence of such determination by the Board, such instrument shall be signed by the
Secretary or Treasurer and countersigned by the Chair or Chair -Elect of the
Foundation.
9.3 Deposits. All funds of the Foundation shall be deposited in a timely
fashion to the credit of the Foundation in such banks, trust companies or other
depositories as the Board may select.
9.4 Gifts. The Board may accept on behalf of the Foundation any
contribution, gift, bequest, grant or devise for the general purpose of, or for any special
purpose of, the Foundation.
9.5 Loans to Trustees and Officers. No loan shall be made by or to this
Foundation and no evidences of indebtedness shall be issued in its name, unless
authorized by a resolution of the Board. Such authority may be general or confined to
specific instances. No loans shall be made by the Foundation to any of its Directors or
officers.
ARTICLE 10
GENERAL PROVISIONS
10.1 Fiscal Year. The fiscal year of the Foundation shall be September 1
through August 31 of each year, unless otherwise fixed by resolution of the Board.
10.2 Amendments.
10.2.1 Bylaws. These Bylaws may be amended at any regular or special
meeting of the Board of the Foundation by a two-thirds (2/3) affirmative vote.
10.2.2 Articles of Incorporation. The Articles of Incorporation may be
amended at any regular meeting or special meeting of the Board of the Foundation by
a two-thirds (2/3) affirmative vote, provided that the proposed amendment has been set
forth in the notice of the meeting.
10.3 Rules of Procedure. The rules of procedure at meetings of the Board and
committees shall be contained in Robert's Rules of Order on Parliamentary Procedure,
newly revised, so far as applicable and when not inconsistent with these Bylaws, the
Articles of Incorporation or any resolution of the Board.
The foregoing amended and restated Bylaws were adopted by the Board as of January
26, 2015.
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Make -A -Wish Foundation of Southern Florida, Inc.
Secretary
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