Certificate of Incorporation of Middlesex Beach
As adopted March 13, 2010
In furtherance of a desire to associate ourselves together, as a non-stock corporation, to transact, promote, conduct, carry out and advance the business and the objects and purposes hereinafter set forth, do hereby make and file this Certificate of Incorporation, in writing, in pursuance of the General Corporation Law of the State of Delaware, and certify as follows:
The name of this corporation is: MIDDLESEX BEACH ASSOCIATION, sometimes hereinafter referred to as the “Association”.
The principal office of the Association, within the State of Delaware, shall be located in or near the Town of Bethany Beach, Baltimore Hundred, Sussex County, Delaware, and the name and address of the Resident Agent thereof shall be the Association’s attorney of record as may be determined from time-to-time.
The nature of the business and the objects and purposes to be transacted, promoted, conducted, carried out and advanced by the Association are as follows:
- To engage in the management, supervision, and/or control of MIDDLESEX BEACH, a restricted, real estate development, situate in Baltimore Hundred, Sussex County, Delaware.
- To enforce and carry out, or waive, abandon, terminate, modify, alter, change, amend, and/or add to the Restrictive Covenants, Remedial Clauses and Reservations applicable to the lands and premises comprising MIDDLESEX BEACH, aforesaid, or the title to all and singular the lands and premises comprising the same.
- To collect, receive and/or expend any and all maintenance charges and assessments authorized to be laid or levied upon the lands and premises comprising MIDDLESEX BEACH, aforesaid, in pursuance of the Restrictive Covenants and Remedial Clauses applicable thereto.
- To own, operate, maintain, lease, sell, manage, supervise, control, furnish, provide, deal in and deal with in any manner whatsoever, every and all kinds of services, facilities and/or utilities which may be required or desirable unto MIDDLESEX BEACH, aforesaid.
- To purchase, take, own, hold, deal in, mortgage or otherwise lien, and to lease, sell, exchange, convey, transfer or in any manner whatsoever dispose of real property within or without the State of Delaware, subject to the provisions of Article Eighth, Sections (6) and (7).
- To manufacture, purchase or otherwise acquire, and to hold, own, mortgage, or otherwise lien, pledge lease, sell, assign, exchange, transfer or in any manner dispose of, and to invest, deal and trade in and with goods, wares, merchandise and personal property of any and every class and description, within or without the State of Delaware.
- To acquire the good will, rights and property, and to undertake the whole or any part of the assets and liabilities of any person, firm, association or corporation; to pay for the same in cash, bonds or otherwise; to hold or in any manner to dispose of the whole or any part of the property so acquired; to conduct in any lawful manner the whole or any part of any business so acquired and to exercise all the powers necessary or convenient in and about the conduct and management of such business.
- To guarantee, purchase or otherwise acquire, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of shares of the capital stock, bonds or other evidences of indebtedness created by other corporations, and while the holder of such stock to exercise all the rights and privileges of ownership, including the right to vote thereon, to the same extent as a natural person might or could do.
- To purchase or otherwise acquire, apply for, register, hold, use, sell or in any manner dispose of and to grant licenses or other rights in an in any manner deal with patents, inventions, improvements, processes, formulas, trade-marks, trade-names, rights and licenses secured under letters patent, copyrights or otherwise.
- To enter into, make and perform contracts of every kind for any lawful purpose, with any person, firm, association or corporation, town, city, county, body politic, state, territory, government or colony or dependency thereof.
- To borrow money for any of the purposes of the Association and to draw, make, accept, indorse, discount, execute, issue, sell, pledge or otherwise dispose of promissory notes, drafts, bills of exchange, warrants, bonds, debentures, and other negotiable or non-negotiable, transferable or non-transferable instruments and evidences of indebtedness and to secure the payment thereof and the interest thereon by mortgage or pledge, conveyance or assignment in trust, of the whole or any part of the property of the Association at the time owned or thereafter acquired.
- To have one or more offices and to conduct any or all of its operations and business and to promote its objects, within or without the State of Delaware, without restriction as to place or amount.
- To carry on any other business in connection therewith.
- To do any or all of the things herein set forth as principal, agent, contractor, trustee or otherwise, alone or in company with others.
The objects and purposes specified herein shall be regarded as independent objects and purposes and, except where otherwise expressed, shall be in no way limited nor restricted by reference to or inference from the terms of any other clause or paragraph of this Certificate of Incorporation.
The foregoing shall be construed both as to objects and powers and the enumeration thereof shall not be held to limit or restrict in any manner the general powers conferred on this association by the Laws of the State of Delaware.
- This Association has no authority whatsoever to issue any capital stock.
- Membership in this Association shall be limited and restricted to owners of real estate situate, lying and being in MIDDLESEX BEACH, a restricted, real estate development, situate in Baltimore Hundred, Sussex County, Delaware. Owners may be an individual, group of individuals, or other legal entity.
- Each owner, sometimes hereinafter referred to as “Member”, shall be entitled to one (1) vote at all meetings thereof for each full lot owned by such Member in freehold in Middlesex Beach, aforesaid, either as shown upon the original sub-division plot thereof, or as shown upon any Supplemental Plot Plan thereof bearing the approval of the Association and recorded in the Office of the Recorder of Deeds, in and for Sussex County, at Georgetown, Delaware. At any election of Directors of the Association each Member shall be entitled to cast as many votes thereat as there are Directors to be elected times the number of full lots owned by such Member in freehold as aforesaid. Only one vote may be cast in respect to any lot for any nominee.
- Members may vote in person or by proxy at all meetings or elections of Directors of the Association.
- Whenever a given lot in MIDDLESEX BEACH, shown as aforesaid, is owned by several persons, only that number of votes shall be cast with respect to such lot as would otherwise be permitted if the same were held in single ownership. In the event of such multiple ownership of a lot, only one of the owners, who shall be selected by the other owners of said lot, may cast votes on behalf of all of the owners of said lot and fractional voting shall not be allowed. If the owners of a lot owned by more than one person cannot agree, no vote with respect to such lot shall be cast or accepted.
- In the event any Member of the Association shall cease to be an owner of real estate situate, lying and being in MIDDLESEX BEACH, as aforesaid, such Member’s membership in the Association shall immediately cease.
- Membership in the Association, and all rights, privilege and powers, appertaining thereto shall be non-assignable and nontransferable, except upon transfer of ownership of a lot.
- The Association cannot be dissolved without the consent of eighty percent (80%) of the Members of the Association. In the event of a decision by the Members authorizing the dissolution or liquidation of the Association, the net assets thereof remaining after payment or settlement of all valid, prior claims outstanding against the Association shall be transferred as a majority of the Board, with the concurrence of eighty percent (80%) of the Members of the association, may direct to (a) the Members proportionately in respect to the number of lots owned, (b) one or more organizations not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual; or (c) the State of Delaware, or any political subdivision thereof. In the event the Board of Directors fails to select a qualified recipient of the Association’s net assets within one year of the dissolution of the Association, such net assets shall be transferred to the State of Delaware.
- Further conditions, qualification, limitations, restrictions, rights, duties, privileges and powers appertaining to membership in the Association, not inconsistent herewith, may be provided for in the Bylaws thereof.
The Association shall have perpetual existence.
The private property of the Members of the Association shall not be subject to the payment of the corporate debts thereof to any extent whatsoever.
- Membership on the Board shall be limited to Members, their spouses, daughters and sons of Members, or principals of artificial entities (such as corporations, limited liability companies, trusts, and partnerships) that are owners of lots in Middlesex Beach, provided that no Director shall be less than twenty-one years of age. Whenever any such Director shall cease to be a Member of the Association, his office shall be vacated thereby.
- The number of Directors shall never be less than five (5), but may be more if the Bylaws so provide. The number of Directors shall be an odd number.
- The Board shall be elected by the Members for two year terms. The Board shall be divided into two equal classes as determined by the expiration of the two year term for which they were elected. Directors constituting the classes shall be elected at the End of the Season Membership Meeting (the “September Membership Meeting”) in alternating years as their terms expire. In addition, a former Director who is not continuing to serve as an elected Director shall serve on the Board in accordance with procedures to be set forth in the Bylaws. All Directors shall have equal voting rights.
- An elected Director shall hold office during the term for which he is elected and until his successor is elected and qualified, unless his office be sooner vacated by his death, loss of membership in the Association, resignation, or other disqualifying event. Terms of office shall commence upon the adjournment of the Meeting at which they are elected.
- The Board of Directors shall have power to fill vacancies in its own membership until the next Meeting of the Members at which Directors of the Association are elected.
- The Board of Directors shall have general supervision, management and control over the business and affairs of the Association.
- The Board of Directors shall appoint all officers and managers of the Association, define their authorities and duties, and discharge or relieve them of their respective offices at will, without cause.
- The Board of Directors shall serve without compensation for their services as such, but may be compensated for services performed at the request of the Board, distinct from their duties, responsibilities or obligations as Directors or Officers, in such reasonable amounts as the Board may determine. In the determination of any such compensation, the intended Director or Officer recipient of any such compensation shall absent himself from such discussion and vote.
- The Board of Directors shall fix the salaries or other compensation of the officers, managers, agents, servants, and employees of the Association. The Board may provide for reimbursement of actual expenses incurred by any Director, officer, employee, manager or agent for the benefit of the Association.
- The Board of Directors shall have the power to fix the amount to be reserved as working capital, and to authorize and cause to be executed, mortgages and liens without limit as to the amount, upon the property and franchise of the Association. The Board of Directors shall have the power to dispose of, in any manner, the whole property of the Association; however, no
lands of the Middlesex Beach Association may be sold or otherwise disposed of without the consent of sixty percent (60%) of the Members of the Association.
- The Board shall not enter into any easement agreement(s) that will encumber the lands of the Association, or enter into any agreement, or series of agreements, for any lease, easement or rental involving any of the lands of the Association, for a period of longer than five (5) years without the consent of sixty percent (60%) of the Members of the Association.
- By and with the vote or written consent of no less than sixty percent (60%) of the then owners of all lots situate in MIDDLESEX BEACH, aforesaid, the Board of Directors shall have the power to waive, abandon, terminate, modify, alter, change, amend, or add to the Restrictive Covenants, Remedial Clauses and Reservations, or any of them, applicable to the lands and premises comprising MIDDLESEX BEACH, aforesaid.
- The Board of Directors shall have the power to designate and appoint one or more committees of the Board, which shall have and may exercise such powers as the Board of Directors shall confer upon the same.
- Subject to the Laws of the State of Delaware, the Board of Directors shall have the power and authority to exercise any and all other powers, in addition to those expressly conferred by this Certificate of Incorporation and the Bylaws of the Association, as may be conferred upon the Board of Directors through an appropriate Bylaw provision.
- Membership meetings shall be held in May and at the end of the summer season, usually September, of each year as provided in the Bylaws of the Association at such time and place as the Board shall designate. The Board shall hold its meetings at such time, date and location as it may determine consistent with the Bylaws, keep the books of the Association, and have one or more offices, at such place or places as may be determined, from time to time, by the Board, except as otherwise provided in the Bylaws or required by the laws of the State of Delaware.
- The accounts, books and records of the Association shall be open to inspection by any Member of the Association upon a written request to the Board stating the proper purpose of the request. Within 5 days of receipt of such a request, the Board or its designee shall respond to the requesting Member to make an appointment for such inspection, if appropriate, or to make any further inquiries regarding the purpose of the request, if necessary. An appointment to inspect, when appropriate, shall be scheduled to occur within 15 days of the Board’s or its designee’s response to the requesting Member, or on such other date as may be mutually agreed upon by the parties. No Member shall have the right of inspecting any account, book or record of the Association, if the inspection would be contrary to the laws of the State of Delaware.
The Association reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and all rights, privileges and powers conferred on the Officers, Directors and Members of this Association herein and hereby, are granted subject to this Reservation, provided that the exercise of any such proposed action by the Membership shall be initiated by submitting to the Board, not less than sixty days preceding the next regular Membership Meeting, a written petition containing the proposed action signed by not less than fifty Members or by a written resolution adopted by an absolute majority of the Board. Such petition or resolution shall be presented at the next regular Membership meeting, or at a special Membership Meeting, as the Board shall determine, where it shall be considered and voted upon. Any such petition or resolution shall be submitted in writing by the Board to the Membership not less than fourteen days before said meeting together with notice of the date, time and place of the meeting at which the action will be considered and voted upon. Adoption shall require the affirmative vote of not less than an absolute majority of all Members, provided that Article Fourth, Section (8) of this Certificate of Incorporation, addressing dissolution, may only be amended by the affirmative vote of no less than eighty percent (80%) of the then owners of lots situate in Middlesex Beach and, otherwise, in the manner provided in Article Fourth Section (8); that Article Eighth, Section (6) of this Certificate of Incorporation, addressing the sale or disposition of land, may only be amended by the affirmative vote of no less than sixty percent (60%) of the then owners of lots situate in Middlesex Beach and, otherwise, in the manner provided in Article Eighth Section (6); and that Article Eighth, Section (7) of this Certificate of Incorporation, addressing the lease, rental, or encumbrance by easement of land, may only be amended by the affirmative vote of sixty percent (60%) of the then owners of lots situate in Middlesex Beach and, otherwise, in the manner provided in Article Eighth Section (7); and that Article Eighth, Section (8) of this Certificate of Incorporation, addressing changes in the Covenants of the Association, may only be amended by the affirmative vote of no less than sixty percent (60%) of then owners of lots situate in Middlesex Beach and, otherwise, in the manner provided in Article Eighth Section (8). Not withstanding the foregoing, the Board is authorized to make such grammatical, stylistic, spelling, sequencing, numbering, capitalizing and other nonsubstantive changes in the Certificate of Incorporation as it deems appropriate from time-to-time, provided that any such changes receive the unanimous approval of the Board.
The invalidating of any one of the foregoing provisions, by any court of competent jurisdiction and/or due to a conflict with any existing or future law, shall in nowise affect or impair the full force and effect of all other provisions hereinbefocre set forth, and in any such event all such other provisions as are not expressly invalidated thereby shall remain in full force and effect.