MEMORANDUM OF ARTICLES OF ASSOCIATION OF THE "HOSPITAL DE L’ILLA DEL REI" FOUNDATION
HEADING I
General dispositions
Article I
Name, nature and founder members
With the name FUNDACIÓ "HOSPITAL DE L’ILLA DEL REI", a private non-profit making organisation of a foundational nature is established, the patrimony of which is subject to, on a permanent basis, carrying out the objectives of general interest which are set out in Article 6 of these Articles of Association.
Article 2
Status and capacity
Once registered with the Foundation Registry, the Foundation which has been set up has its own legal status and ability to act fully ; as a result, it can take all necessary action to fulfill the objectives for which it has been created, subject to that which is established in legal rules.
Article 3
System
The Foundation is governed by the Law 50/2002 of 26th December, and other legal and current dispositions, at the wish of the founder persons shown in these Articles of Association and by the rules and dispositions which the Board may establish for their interpretation and development.
Article 4
Nationality and domicile.
The Foundation to be created, will have Spanish nationality.
The domicile of the Foundation is located at L’HOSPITAL DE L’ILLA DEL REI, Puerto de Mahón, s/n, POBox 777, 07700 Mahón.
The Board may instigate a change of domicile by means of the corresponding statutory modification, and must make this known immediately to the Protectorate in the manner provided for in current legislation.
Article 5
Scope of activity
The foundation will carry out its activities throughout the territority of the Autonomous Community of the Balearic Islands, and in particular on the Island of Menorca.
HEADING II
Objectives of the Foundation and basic rules to determine beneficiaries and the use of resources.
Article 6
Objectives
The objectives of the Foundation, which are of general and cultural interest, are :
The defense and promotion of L’Illa del Rei, or Illa de l’Hospital.
The promotion and organisation of activities relating to the Island.
Article 7
Foundational activities
In order to achieve its objectives, the Foundation may carry out and organise promotional activities relating to the aims set out in the previous Article.
The functions which the Foundation is to perform will be done in conjunction with the promotional activities which may be carried out by the Consell Insular de Menorca and Mahón Town Hall, via their Cultura and Education Services. Likewise the functions of the Foundation will be coordinated, when necessary, with the Consellería de Educación y Cultura del Govern de les Illes Balears, via their General Culture Management.
Article 8
Freedom of action
The Board will have total liberty in determining the Foundation´s activities which are necessary to achieve the most suitable or advantageous specific objectives at all times, at the discretion of the Board and within the completion of its aims.
Article 9
Beneficiary persons
The beneficiaries of the Foundation are an indeterminate group of users and participants in the activities to be organised or promoted by the Foundation.
Article 10
Assignation of revenue and income
In order to achieve the fundational aims, a minimum of 70% of the results of the economic trading carried out and of the income obtained from any other concept, once the relevant costs incurred have been deducted, must be set aside. The remainder must be used to increase foundational appropiation or is be kept in reserve as agreed by the Board.
The Foundation can bring this into effect during the period between the beginning of the financial year in which the profit and income is obtained and the four years following closure of this financial year.
HEADING III
Board and other bodies of the Foundation
Article 11
Nature of the Board
The Board is the body of government, representation and administration of the Foundation which carries out the duties for which it is responsible, and which is subject to legal rules and to these Articles of Association. The Board is responsible for fulfilling the foundational aims and administration of the assets and rights which make up its patrimony, and it will endeavour to obtain maximum return and profit.
Article 12
Composition of the Board
The Board will appoint, from its constituent members, a President, one or more Vice Presidents and a Treasurer.
The other Patrons will be Committee Members
The President of the Board : this duty will devolve upon the person of the President of the Asociación de "Amics de l’Illa de l’Hospital". He will retire from this position when he ceases to act as President of the afore mentioned association.
The Association "Amics de l’Illa de L’Hospital" may appoint, in addition to the President, thras affiliated founder members, three Patrons considered as such because of their duties.
A Secretary will also be named and this can be someone who is not a member of the Board, however in this case he will be able to attend meetings but he will not be able to vote.
Notwithstanding this orginal set-up, and by means of an uninamously adopted agreement by the Board, other members (Public Administrations, Institutions or other legal entities) who agree with the Foundation’s aims, and who make a financial contribution, in each case to be agreed by the Board, may be affiliated to the Foundation. These legal entities will be known as affiliated founder members.
In addition, these agreements of affiliation of members must be approved or ratified by the founder Public Administrations and by the Association "Amics de l’Illa de l’Hospital" in accordance with their own working rules.
Should it be agreed that other members be affiliated, in accordance with the afore mentioned paragraphs, these affiliated founder members may propose patrons in their representation (one patron per member). However, the maximum total number of patrons shall be twenty.
Article 13
Duration of the mandate
The President´s mandate will be in accordance with what is established in Article 12, and will be designated and promoted by the Asociación "Amics de l’Illa de l’Hospital".
The remaining patrons will carry out their duties for four years, and may be re-elected an indefinite number of times. If they are patrons because of their post, Article 16 will apply.
Article 14
Appointment and replacement of patrons
The appointment of patrons – either to complete the maximum number of members or to cover vacancies which may arise – is the Board’s responsbility, as long as this is proposed by the original founder members and corresponding affiliated members.
The time limit to cover vacancies is two months from the time when the position becomes vacant.
Article 15
Acceptance of the position of patron
The patrons will start to carry out their duties after having expressly accepted their appointment in a public document, in a private document with the signature legalised by a Notary or by means of an appearance to this effect in the Foundation Registry.
They can also accept the position before the Board on presentation of a certificate drawn up by the Secretary, and with the signature legalised by a Notary.
In any case the acceptance must be formally communicated to the Protectorate and must be registered in the Foundation Registry.
Article 16
Cessation of patrons
The cessation of the Foundation´s Patrons occurs in the following cases :
Death, or declaration of death, as well as the extinction of the legal entity.
Resignation, which will be communicated by means of the same formalities as those of acceptance.
Incapacity, inhabilitation or incompatability, as established by Law.
Cessation in the position for which reason they were named as members of the Board.
Judicial resolution.
Termination of their period of mandate, if they were appointed for a specific period of time.
Article 17
The President
The President must represent the Foundation before all types of persons, authorities and public or private entities : give notice of Board meetings, chair them, manage the debates and, if required, carry out the agreements. To this effect the President may carry out all types of acts and sign necessary documents to this end.
Article 18
The Vice-president
The Vice-president will be responsible for carrying out the duties of the President should this position become vacant owing to absence or illness of the President. He may also represent the Foundation should the Board so determine by means of an agreement.
Article 19
The Treasurer
The Treasurer will ensure that any amounts of money which the Foundation may receive be paid into a current bank account or a savings account.
Article 20
The Secretary
The duties of the Secretary are the safekeeping of all documentation relevant to the Foundation ; to issue the Minutes referring to Board meetings ; to draw up certificates and necessary reports and carry out all duties which may be expressly delegated to him. In case of illness, absence or vacancy, the Board’s Treasurer must take over the Secretary´s duties.
The Foundation Manager may also act as Secretary, and will be allowed to attend meetings, but will not be entitled to a vote.
Article 21
Powers of the Board
Its scope is extended to resolve all incidents which concern the goverment, the representation and the administration of the Foundation, as well as the interpretation and the modification of these Articles of Association.
Independently from the duties which the Board is granted by these Articles of Association and even though it may request specific spoken instructions from the Patronate, the faculties of the Board are :
To carry out management, inspection, supervision and direction of the Foundation´s work.
To interpret the constituent Articles of Association – and develop them in accordance with the necessary supplementary norms, should there be any – and adopt agreements on the modification of the same, as long as it is in the interest of the Foundation and towards achievement of its aims.
To agree to the opening and closing of centres, of offices and of branch offices.
To appoint general or special proxies and grant the necessary powers for them to act, as well as revoking these.
To agree to a plan of action and the annual accounts.
To adopt agreements for the merger, extinction and the liquidation of the Foundation as provided for by Law.
To delegate its faculties in one or more patrons, although it cannot delegate the agreement of a plan of action, the annual accounts, the modification of the Articles of Association, the merger and the liquidation of the Foundation, and those matters which require the authorisation of the Protectorate.
Article 22
Meetings of the Board and their notice.
The Board must meet at least twice a year and at all times which may be necessary for the smooth running of the Foundation. The President must give notice of the Board meetings on his own initiative, or when a third of its members so request.
The Secretary must give notice of the meeting in writing, and send notification of this to each Member at least five days before the date of the meeting. He has to use a method which can prove that this notification has been received. When a meeting is convened, the place, the day and the time of the meeting must be stated, as well as the Agenda.
It is not necessary to give notice of a meeting in advance when all patrons are present and unanimously agree to hold a meeting.
Article 23
Ways in which to discuss and make agreements.
The Board is validly constituted when at least half the members plus one are in attendance and requires the presence of the President and the Secretary or, if applicable, those people who may replace them.
The Board’s agreements are to be carried out immediately and must be approved by the absolute majority of the votes of the persons in attendance, with the casting vote of the President.
However, a favourable unanimous vote of the Board’s members is required to make agreements which refer to :
Reform or modification of the Articles of Association.
Appointment of new patrons and positions on the Board ; with the exception of patrons nominated by the founding institutions, who will be appointed by the corresponding bodies of these institutions.
Dismissal of patrons and duties for legal or statutary reasons.
Transfer or charge on the assets forming part of the patrimony.
Merger and extinction of the Foundation.
If necessary, it will also require previous agreement or ratification by the founding Public Administrations, in accordance with their own procedural rules.
The Secretary must write up the Minutes of the Board’s meetings, and these must be signed by all members in attendance, and must be approved at the same meeting or at the following one. Once approved, they must be written up in the relevant Minutes Book, and must be signed by the Secretary and the President.
With regard to what is not foreseen in these Articles of Association, this will be governed by the Law 30/1992 of 26th November, by the legal system of Public Administration and by the common administrative procedure, in that which refers to the functioning of collegiate bodies.
Article 24
The Board’s liabilities
In its procedure the Board must adapt to the rules of current legislation and to the wishes of the founder members shown in these Articles of Association.
The Board must carry out the foundation´s aims and administrate the assets and rights – maintaining full return and profit – which make up the Foundation´s patrimony.
The Board must give sufficient information in respect of its aims and activities of the Foundation so that the beneficiaries and other interested parties may be aware of them.
Article 25
Liabilities and responsibility of the patrons
Amongst other things, the patron´s liabilities are :
To ensure that the Foundation´s aims are fulfilled
To attend meetings to which they have been summoned.
To occupy their position with the required attention and promptness of a legal representative.
To maintain in a good state of preservation and production the assets and the values of the Foundation.
To fulfill by means of their actions what is determined by the current legal dispositions and by these Articles of Association.
The Patrons must respond jointly before the Foundation for damages which may be caused by harmful and unlawful actions or those against the Articles of Association or for actions carried out without due care in accordance with their position.
Those who have voted against the agreement are exempted from responsibility and those who can prove that – without having been involved in adopting them and carrying them out – who were unaware that they had been adopted or, if knowing so, had done everything in their power to avoid the damage or had been expressly opposed to them being carried out.
Article 26
Free nature of the position of Patron
The Patrons will carry out their duties gratitiously ; under no circumstances may they receive a salary for carrying out their duties.
The Patrons have the right to be reimbursed for duly justifiable expenses incurred whilst carrying out their duties.
Article 27
Executive Committee
The Board will appoint the Executive Committee for the executive direction and the management of the Foundation, and this will be made up of a minimum of four and a maximium of ten persons, who do not necessarily have to be Patrons, with the exception of the President of the Board who will also be President of the Executive Committee.
The Manger of the Foundation may also hold the position of Secretary of the Executive Committee : he will be able to attend meetings, but he will not be able to vote.
The Executive Committee will carry out the actual administation of the Foundation, including the hiring of staff, the adoption of organisational methods and the running of the Foundation, the carrying out of internal regulations, the drawing up of the proposals for the Plan of Action and Annual Accounts, the advance planning of which will be prepared by the Manager.
The Executive Committee will meet at least once a month, and whenever the President or two of his Committee members so request. Otherwise, the convening of meetings will conform to the rules established for calling a Board meeting.
Article 28
The Manager
The Board will appoint a Manager of the Foundation. This position may be salaried and will be incompatible with that of being a Patron.
The Manager may hold the position of Secretary of the Board and of the Executive Committee.
He will have the following duties :
To manage the ordinary running of the Foundation.
To prepare in advance the Plan of Action and the Annual Accounts which will be presented to the Executive Committee for their final formulation.
To be head of personnel and manage the staff at the Foundation.
To carry out matters related to the promotion of activities, to draw up programmes, to deal with the media, advertising, public relations, etc.
HEADING IV
Economic system
Article 29
Foundation Patrimony
The Foundation´s Patrimony may consist of all types of assets, rights and obligations subject to economic valuation.
All these must to be in the Foundation´s name and must be shown in their Inventory, in the Foundation Registry and in other relevant registries.
Article 30
Appropriation of the Foundation´s patrimony
The appropriation of the Foundation´s patrimony consists of the assets and rights which make up the original endowment of the Foundation and of those of the same nature which may be incorporated into the Foundation in the future.
Article 31
Finance and economic resources
In order to carry out its activities the Foundation is financed by the resources which may arise from the return on its patrimony, and, if applicable, by those coming from aid, grants or donations which it may receive from persons or entities, both public and private. In particular, the Foundation may count on contributions from the Govern de les Illes Balears, the Consell Insular de Menorca, Mahón Town Hall, the entity Amics de l’illa de l’Hospital, and, where appropriate, from other founder members affiliated at a later date.
In the same way, the Foundation may obtain income from its activities as long as this does not involve an unjustified limitation to possible beneficiary persons.
Article 32
Administration
The Board is authorised to make any necessary modifications to the composition of the Foundation´s patrimony, in accordance with economic advice received at all times, and without detriment in requesting the relevant authorisation from, or due communciation to, the Protectorate.
Article 33
Financial system
The financial year must coincide with a calendar year.
The Foundation must keep a Day book, a Mandatory Book of Trial Balances and a Balance Sheet, Annual Accounts and any other books necessary for adequately carrying out its activities and monitoring its bookkeeping.
In its economic and financial management the Foundation must be governed by the principles and the general critera determined by current legislation.
Article 34
Plan of action, annual accounts and audit
In the last three months of each financial year, the Board must draw up a plan of action in which the objectives and activities to be developed in the following year must be shown. At the same time, this must be sent to the Board.
The manager will present to the Executive Committee the annual accounts for their definitive formulation, and these must be approved by the Board within a period of six months from the closing of the financial year.
The annual accounts – which consist of the Balance Sheet, Profit and Loss Account and Annual Report – make up a unit, which must be drawn up clearly and which has to show the true image of the Patrimony, the financial situation and the trading results of the Foundation.
The Annual Report must complete, elaborate and discuss the information contained in the Balance Sheet and the Profit and Loss account, and an Inventory of the elements of patrimony must be included.
At the same time, the foundation´s activities, the changes in its bodies of government, management and representation must be included in the Annual Report, as well as the level of fulfilment of the plan of action. The resources used must also be shown, from where they come and the number of beneficiary persons in respect of each action carried out, and the degree of fulfilment in the application of return and income.
Once the annual accounts have been approved by the Foundation’s Board, these have to be presented to the Protectrate within ten working days from the date of approval in order to be examined and then deposited in the Registry of Foundations.
Should the Foundation err in the established legal requisites, the afore mentioned documents must be submitted to an external audit, and a report on this must be sent to the Protectorate together with the annual accounts.
Article 35
Principles of action
With regard to estimates, bookkeeping, and auditing of accounts, as well as the application of the Law 50/2002 of 26th December, the Foundation is answerable to the autonomous norms and the rules of external control applicable to bodies in which the Govern de les Illes Balears participate.
Staff selection will be made subject to the principles of equality, merit, capability and advertising. In the same way, the hiring of staff will be conform to the principles of advertising, attendance and objectivity, except when the nature of the operation be incompatible with these principles.
HEADING V
Modification, merger and extinction
Article 36
Modification to the Articles of Association
By agreement of the Board, the Articles of Association may be modified as long as this is in the interest of the Foundation. The modification must be done when the circumstances which were dominant when the Foundation was established have changed in a way that it cannot function in a satisfactory manner in accordance with the current Articles of Association.
To adopt the agreement of statutory modification, it will be necessary for a majority of two thirds and the unanimity of the founder members and the affiliated founder members.
The modification or the new writing-up of the Articles of Association agreed by the Board must be communicated to the Protectorate before signing the Public Deed ; afterwards it must be registered in the Registry of Foundations.
Article 37
Merger with another Foundation
The Board can decide to merge the Foundation with another one, on previous agreement with the latter to this effect.
The merger agreement must be approved by a majority of two thirds and the unanimous agreement of the founder members and the affiliated members, and has to be communicated to the Protectorate before signing the public deed : afterwards it must be registered in the Registry of Foundations.
Article 38
Extinction of the Foundation
The Foundation will be extinguished for the causes and in accordance with the procedures established in the current legislation.
Article 39
Liquidation and disposal of assets
The extinction of the foundation will mean starting a liquidation procedure, which, as agreed by favourable vote of the majority stated in Article 37, has to be completed by the Board under the control and previous authorisation of the Protectorate and in accordance with that established in Article 33 of the Foundation Law 50/2002 of 26th December. The assets which make up the Goodwill will be assigned to the Association "Amics de l’Illa de l’Hospital". If this should not be possible for any reason, they will be assigned to Mahón Town Hall. And if this is not possible either then they will be assigned to any public non-foundational entity, or non-profit making private entity with similar aims of general interest to those of the Foundation, which the Board may determine, and which at the same time may be benefited by the special tax law established in the Law 49/2002 of 23rd December.