BY-LAWS

 

of

 

OTERO DITCH COMPANY

 

 

 

 

 

 

 

 

 

 

 

 

 

Adopted January 11, 2024

 

 

 

 

 

OFFICERS: Nicholas Knapp – President

                     Phillip Chavez – Vice President

                     Patricia Ptolemy – Secretary/Treasurer

 

 

DIRECTORS: Nicholas Knapp, Phillip Chavez, Patricia Ptolemy, Casey Weaver, Christopher Tomky

 

 

 

 

 

 

 

 

BY-LAWS OF

OTERO DITCH COMPANY

 

The name of the corporation is OTERO DITCH COMPANY, and it is referred to herein as the “Company.” The Company was incorporated pursuant to the Colorado Nonprofit Corporation Act and the Colorado statutes pertaining to mutual ditch companies. Effective July 1, 1998, the Colorado Nonprofit Corporation Act was replaced by the Colorado Revised Nonprofit Corporation Act, Articles 121 to 137 of Title 7 of the Colorado Revised Statutes. The latter is sometimes referred to herein as the "Act."

 

ARTICLE I

OFFICES

 

Section 1.  The principal business and operations of the Company shall be stated in the Articles of Incorporation and the Amendments thereto, to receive, take and carry water from the diversion gate North of Fowler, Colo., or any other source of supply in and through Otero County, situated in the State of Colorado, and to use and dispose of the same for irrigation, domestic and other lawful and proper purposes. 

 

Section 2. The principal business of the Company shall be kept at 917 Elm Street, Rocky Ford in the State of Colorado. The Company may have such other offices in the State of Colorado as the Board of Directors may determine or as the Company’s affairs may require from time to time.

 

ARTICLE II

OFFICERS

 

Section 1. Officers. The officers of the Company shall be a President, Vice-President, Secretary and Treasurer, who shall be chosen or elected by the Directors at their first meeting following the Annual Meeting of the Stockholders in each year.  A Director or officer may hold more than one office at any one time.

 

Section 2. Removal. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the Company would be served thereby. But such removal shall be without prejudice to the contract rights, if any, of the officer so removed.

 

Section 3. Vacancies. A vacancy in any office because of death, resignation or removal, disqualification or otherwise, may be filled by the Board of Directors pursuant to Article III, Section 6 for the unexpired portion of the term.

 

Section 4. President. The President shall be chief executive officer of the Company and shall preside at all meetings of the Directors and Stockholders, sign all Certificates of Stock, orders, contracts and approve Minutes, and shall countersign all warrants drawn by the Secretary and Treasurer before they shall become valid. The President may sign, with the Secretary or any other proper officer of the Company authorized by the Board of Directors, any deeds, mortgages, bonds, contracts or other instruments which the Board of Directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors, or by these bylaws or by statute to some other officer or agent of the Company, and shall perform all such other duties as usually pertain to the office of Presidents of like corporations.

 

Section 5. Vice President. In the absence of the President or in the event of the President’s inability or refusal to act, the Vice President shall perform the duties of the President and when so acting shall have all the powers and be subject to all the restrictions upon the President. Any Vice President shall perform such other duties as from time to time may be assigned by the President or by the Board of Directors.

 

Section 6. Treasurer.  The Treasurer shall be the custodian of and receive all monies, bonds, notes and other property of the Company, and shall receipt to the Secretary therefor.  He or she shall keep a correct and accurate record of accounts in proper books to be kept for that purpose of all  receipts and disbursements showing the business transactions of the Company in detail and shall render a full and detailed report at all regular meetings of the stockholders and Board of Directors. All monies received by the Treasurer shall forthwith be deposited in the name of the Company in the Bank or Banks to be designated by the Board of Directors.  The Treasurer shall pay out no money except upon the order of the President, when countersigned by a second Director. The Treasurer shall do and perform all other acts and duties required by the Board of Directors and usually pertaining to the office of Treasurers of like companies. The Books of the Treasurer shall be open at all reasonable times for the inspection and examination of any stockholder of the Company.

 

Section 7. Secretary. The Secretary shall keep correct minutes of all the proceedings at all Directors' and Stockholders' Meetings of the Company, and shall record the same at length in a book or books to be kept for that purpose, and shall keep an accurate stock book (ledger) and a full and complete record of all such other matters as the Board of Directors may from time to time require. The Secretary shall:

 

1. Keep a record of all Certificates of Stock and shall be the custodian of the corporate seal.

2. Attest both with his or her signature and the corporate seal of the Company all Certificates of Stock and all deeds and mortgages and other documents to be executed on behalf of the Company.

3. Collect all monies due for sale or carrying of water, or upon other demands, and pay the same over to the Treasurer, taking the receipt therefor, and to report to the Board of Directors the amount so collected and paid over.

4. Draw all orders or warrants on the Treasurer for accounts when audited and countersign the same when signed by the President.

5. Keep a full, true, and correct book of accounts and exhibit at each regular meeting of the stockholders a full statement of the assets and liabilities of the Company, setting forth in detail, not only the amounts, but the nature of all demands and indebtedness with the stockholders and others.

 

The books shall be open at all reasonable times for the inspection of any stockholder of the Company. The Secretary shall do and perform such other acts and duties as may be required by the Board of Directors, and shall perform such other duties as usually pertain to the office of Secretary in like corporations.

 

Section 8. Officers to be Directors. All of the officers of the Company shall also be directors thereof, except in the case of the Treasurer and the Secretary.

 

Section 9. Indemnification. The Corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the corporation), by reason of the fact that said person is or was a director, officer, employee, fiduciary or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust, or other enterprise against expenses (including attorney fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by said person in connection with such action, suit, or proceeding, if the person acted in good faith and in a manner they reasonably believed to be in the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful.  The termination of any action, suit, or proceeding  by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person did not act in good faith and in a manner which they reasonably believed to be in the best interests of the corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe their conduct was unlawful. To the extent that a person who may be indemnified under this Section is successful on the merits in the defense of any action, suit or proceeding or in the defense of any claim, issue or matter therein, they shall be indemnified against expenses (including attorney fees) actually and reasonably incurred by them in such defense. In other instances, indemnification shall be made only upon a determination that the applicable standard of conduct in this Section has been met by a person seeking indemnification under this Section. Such a determination may be made at any time. Each such determination shall be made by a committee composed of directors not involved in the matter in controversy (whether or not a quorum). The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, fiduciary or agent of the corporation or who is or was serving at the request of the Corporation as a director, officer, employee, fiduciary or agent of another corporation, partnership, joint venture, trust, or other enterprise against any liability asserted against said person and incurred by them in any such capacity or arising out of their status as such, whether or not the Corporation would have the power to indemnify them against such liability under provisions of this Section.

 

ARTICLE III

DIRECTORS

 

Section 1. Directors. The business of the Company shall be managed and controlled by a 5 Member Board of Directors, who shall be stockholders of the Company and who shall be elected annually by the stockholders for the term of one year, and shall serve until the election and due qualification of their successors.  A director must hold stock in the Otero Ditch Company or be a designated representative of an entity that owns at least one share of stock in the Company. Vacancies occurring in the Board of Directors, by death, resignation or otherwise, may be filled for the unexpired term by a majority vote of the remaining Directors.

 

Section 2. Meetings. A regular meeting of the Board of Directors shall be held at such location agreed on by the Board, including a virtual electronic meeting, on the second Thursday in January in each year and special meetings of the Board may be held at any time at the call of the President, Secretary or any two Directors, who shall give notice of such proposed meeting to each of the Directors, by personal communication, by U.S. mail, or by electronic mail, properly addressed, stating the time and place of such meeting: such notice to be given not less than two days prior to the time designated for such special meeting, or notice may be waived by written consent, and attendance at any meeting of the Directors shall constitute a waiver of such notice. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board needs to be specified in the notice or waiver of notice of such meeting unless specifically required by law or by these bylaws.

 

Section 3. Quorum.  Three members of the Board shall constitute a quorum for the transaction of all business, but if less than a majority of the directors are present at said meeting, the majority of the directors present may adjourn the meeting from time to time without further notice.

 

Section 4. Presence. The Board of Directors may permit any director to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may hear each other during the meeting. A director participating in a meeting by this means is deemed to be present at the meeting.

 

Section 5. Manner of Acting. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the act of a greater number is required by law or by these bylaws.

 

Section 6. Vacancies. Any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of the remaining directors although less than a quorum of the Board of Directors. A director so elected to fill a vacancy shall be elected for the unexpired term of their predecessor in office.

 

Section 7. Compensation. Directors as such shall not receive any stated salaries for their services, but by resolution of the Board of Directors a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board. Nothing herein contained shall preclude any director from serving the Company by any other capacity and receiving compensation therefor.

 

Section 8. Action Without Meeting. Any action required or permitted to be taken at a Board of Directors' meeting may be taken without a meeting if each and every member of the Board, in writing, either (i) votes for such action or (ii) votes against such action or abstains from voting thereon and waives the right to demand that action not be taken without a meeting.

 

8.1       Action is taken under this section only if the affirmative vote for such action equals or exceeds the minimum number of votes that would be necessary to take such action at a meeting at which all of the directors then in office were present and voted.

 

8.2       No action taken pursuant to this section shall be effective unless writings described the action taken and otherwise satisfying the requirements of this section, signed by all directors and not revoked pursuant to subsection 8.3, are received by the Company. Any such writing may be received by the Company by facsimile or other form of electronic communication providing the Company with a complete copy of the document, including a copy of the signature on the document. Action taken pursuant to this section shall be effective when the last writing necessary to effect the action is received by the Company unless the writings describing the action taken set forth a different effective date.

 

8.3       Any director who has signed a writing pursuant to this section may revoke such writing by a writing signed and dated by the director describing the action and stating that the director's prior vote with respect thereto is revoked, if such writing is received by the Company before the last writing necessary to effect the action is received by it.

 

8.4       Action taken pursuant to this section has the same effect as action taken at a meeting of directors and may be so described in any document.

 

8.5       All signed written instruments necessary for any action taken pursuant to this section shall be filed with the minutes of the meetings of the Board of Directors.

 

Section 9. Reports. When deemed necessary, the Board of Directors shall cause its officers to make a full exhibit of their several departments and to prepare written reports for submission to Annual Meetings of stockholders.  The Board of Directors shall appoint an audit committee at the December Board meeting consisting of three shareholders to audit all accounts of the Company and the books of the Secretary and Treasurer before each annual stockholders meeting. The audit committee will present their findings at the annual meeting of shareholders.

 

Section 10. Powers. The Board shall have and exercise general supervision over all affairs of the Company and shall have full power and authority to enforce all rules and regulations prescribed by the By-Laws or otherwise adopted by said Board.

 

Section 11.  Special or Emergency Assessments. The Board of Directors may levy a special or emergency assessment against all water carried in or through the Company's canal, the amount of which shall be equal to or lesser than the amount of the annual assessment per share as established by the stockholders. Said assessment shall be levied pro rata against all water carried in or through the Company's canal, whether carried for the account of stockholders or patrons of the Company, and said assessment when levied shall be a lien against said water until the same is paid in full, and the Company shall have the right to refuse to carry said water or deliver the same to any person, who shall fail to pay said assessment until the same is paid in full.

 

Section 12. Delivery of Water.  The Board shall cause weirs, boxes, gates, locks and all necessary constructions and appliances to be placed at all points by said Board deemed necessary for the measurement, regulation and delivery of water to stockholders and patrons of the Company. All expenses incurred by a stockholder for the purchase and installation of said weirs, boxes, gates, locks and all necessary constructions and appliances shall be the responsibility of said stockholder who shall receive water through such devices and constructions. The Board shall also see that the weirs, boxes, gates, locks, constructions, appliances and devices shall be constructed uniformly so as to be just, fair and equal to all stockholders and patrons and shall keep the same, together with the main ditch or ditches, in a first class condition so as to secure the stockholders distribution of water according to their respective rights.

 

Section 13. Violations. At the beginning of each irrigation season and during said season, the Board of Directors shall cause all boxes, gates, weirs, locks and measuring devices to be placed in  proper condition, and no stockholder or patron shall have the  right to change, alter or permit to be changed or altered any box, gate, weir, lock or other device installed or caused to be installed by the Board of Directors, and if any stockholder or patron shall change, alter, allow or permit any box, gate or device adopted or installed by the Board of Directors to be changed and altered, obstructed, or in any manner interfered with, and shall be reason of such change, alteration or interference receive more than their just and pro rata share of the water in said ditch, they shall be deemed guilty of a violation of the provisions of these By-Laws and the Board of Directors shall, upon evidence satisfactory to it, have the right and power and it shall be the duty of the Board to deprive said stockholder or patron of all water to which they would otherwise have been entitled, except for the violation of these By-Laws, until such violation has been cured and the Board of Directors has voted to resume water delivery, and shall also assess against said stockholder or patron the cost of all necessary repairs or replacements which may be required to be made by reason of such change, alteration or interference, which said amount so assessed against said stockholder or patron shall be paid in full before they shall be entitled to receive any further water from the Company.

 

ARTICLE IV

GENERAL STANDARDS OF CONDUCT FOR DIRECTORS AND OFFICERS

 

Section 1. Required Standard. Each director shall discharge the director's duties as a director, including the director's duties as a member of any committee of the Board, and each officer with discretionary authority shall discharge the officer's duties under that authority in the following manner: (i) in good faith; (ii) with the care that an ordinarily prudent person in a like position would exercise under similar circumstances; and (iii) in a manner the director or officer reasonably believes to be in the best interests of the Company.

 

1.1       In discharging duties, a director or officer is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by:

 

(i)         One or more officers or employees of the Company whom the director or officer reasonably believes to be reliable and competent in the matters presented;

 

(ii)        Legal counsel, a public accountant or another person as to matters the director or officer reasonably believes are within such person's professional or expert competence;

 

(iii)       In the case of a director, a committee of the Board of Directors of which the director is not a member if the director reasonably believes the committee merits confidence.

 

1.2       A director or officer is not acting in good faith if the director or officer has knowledge concerning the matter in question that makes reliance otherwise permitted by this section unwarranted.

 

1.3       A director or officer is not liable as such to the Company or its stockholders for any action taken or omitted to be taken as a director or officer, as the case may be, if, in connection with such action or omission, the director or officer performed the duties of the position in compliance with this section.

 

Section 2. Limitation on Director Liability. Nothing contained in these bylaws shall be deemed to override, amend or lessen any liability protections provided to directors by the Company's Articles of Incorporation.

 

Section 3. Conflicting Interest Transaction. As used in this Article, "conflicting interest transaction" means: A contract, transaction or other financial relationship between the Company and a director or between the Company and a party related to a director or between the Company and an entity in which a director of the Company is a director or officer or has a financial interest.

 

Section 4. Loans. No loans shall be made by the Company to its directors or officers. Any director or officer who assents to or participates in the making of any such loan shall be liable to the Company for the amount of such loan until the repayment thereof.

 

Section 5. Procedure. No conflicting interest transaction shall be void or voidable or be enjoined, set aside or give rise to an award of damages or other sanctions in a proceeding by or in the right of the Company solely because the conflicting interest transaction involved a director of the Company or a party related to a director or an entity in which the director of the Company is a director or officer or has a financial interest or solely because the director is present at or participates in the meeting of the Company's Board of Directors or of the committee of said Board that authorizes, approves or ratifies the conflicting interest transaction or solely because the director's vote is counted for such purpose if:

 

(i)         The material facts as to the relationship or interest and as to the conflicting interest transaction are disclosed or are known to the Board members entitled to vote thereon or to the committee, and the Board of Directors or committee in good faith authorizes, approves or ratifies the conflicting interest transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors are less than a quorum; or

 

(ii)        The conflicting interest transaction is fair to the Company.

 

Section 6. Quorum. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes, approves or ratifies the conflicting interest transaction.

 

Section 7. Related Party. For purposes of this Article, a "party related to a director" shall mean a spouse, a descendant, an ancestor, a sibling, the spouse or descendant of a sibling, an estate or trust in which the director or a party related to a director has a beneficial interest or an entity in which a party related to a director is a director, officer or has a financial interest.

 

ARTICLE V

STOCKHOLDERS

 

Section 1. Stock.  The Company shall have one class of stockholders. To be a Stockholder of the Company, a person must own at least one share of stock in the Company or be a designated representative of an entity that owns at least one share of stock in the Company. Transfers of stock shall be made only on the books of the Company, either in person by the stockholder or their representative or by delivery of the certificate of stock to the Company by certified mail or delivery service. Transfers of stock shall be subject to a transfer fee set from time to time by the Board or Directors, and no transfer shall be made unless all outstanding assessments are paid in full.  The possession of a certificate of stock shall not be regarded as evidence of ownership, unless it appears on the stock books of the Company that said certificate was issued or duly transferred to the holder of the same. Upon the transfer of stock, the old certificate of stock or an affidavit attesting to its loss, must be surrendered for cancellation and a new certificate or certificates will be issued in lieu thereof and delivered, after the person to whom it is issued shall have signed the stock book, receipting therefor. If any certificate shall become lost, mutilated or destroyed, a new certificate may be issued pursuant to the terms of these bylaws and pursuant to statute and also pursuant to such terms and conditions as the Board of Directors may determine, including the imposition of a proper charge for the reissuance of the certificate, as well as proper bond and security conditions to indemnify the company for wrongful issuance of any such lost, mutilated or destroyed certificate.       

 

Section 2. Annual Meeting. An Annual Meeting of the stock­holders for the election of Directors and for other purposes shall be held at the office of the Company in the County of Otero, State of Colorado, or at such other location designated by the Board of Directors, including a virtual electronic meeting, on the second Thursday in January in each year, or on such other date agreed on by the Board. At such meeting, the Directors of the Company shall be elected by ballot and annual assessments for the following year shall be determined.

 

Section 3. Special Meeting. Special meetings of the stockholders may be called at any time by resolution of the Board of Directors or by any five stockholders upon giving written notice, stating therein the time, place and object of such meeting which said notice shall be given as provided in Section 2 hereof.

 

Section 4. Notice of Meetings. Written notice stating the place, day and hour of any meeting of stockholders shall be delivered, personally, by U.S. mail, or by electronic mail to each stockholder entitled to vote at such meeting, not less than 10 nor more than 50 days before the date of such meeting by or at the direction of the President or the Secretary or the officer or persons calling the meeting. In the case of a special meeting or when required by statute or by these bylaws, the purpose or purposes for which the meeting is called shall be stated in the notice.

 

Section 5. Voting. At all meetings of the stockholders, a majority of the shares of the stock of the Company shall constitute a quorum for the transaction of business at any such meeting: each share of stock issued and outstanding shall entitle the holder or owner thereof to one vote, provided such stock stands in the name of such person on the books of the Company and provided all assessments on said stock have been paid. At all meetings of the stockholders, a stockholder may vote in person or by proxy executed in writing by the stockholder or their duly authorized attorney-in-fact and delivered to the Secretary prior to the opening of the meeting for which the proxy is granted, provided that the stockholder's assessments are paid in full to and as of the date of each such meeting. Such proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting. A proxy shall be valid until one of the following occurrences: 1) the date expressly set forth in the proxy form; 2) the proxy is revoked or otherwise modified in writing; or 3) the stockholder or their representative attends a stockholder meeting and indicates their intention to vote the shares directly.

 

Section 6. Closing of Transfer Books or Fixing of Record Date. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or in order to make a determination of stockholders for any other purpose, the Company's Board of Directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, 70 days. If the stock transfer books are closed to determine stockholders entitled to notice of or to vote at a meeting of stockholders, such books shall be closed for at least 10 days immediately preceding such meeting. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of stockholders, such date in any case to be not more than 70 days and, in case of a meeting of stockholders, not less than 10 days prior to the date on which the action requiring such determination of stockholders, is to be taken. If the stock transfer books are not closed and no record date is fixed to determine stockholders entitled to notice of or to vote at a meeting of stockholders, the date on which notice of the meeting is mailed shall be the record date for such determination. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof unless the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting, in which case the Board of Directors shall make a new determination as provided in this section.

 

Section 7. Voting Record. The officer or agent having charge of the stock transfer books for shares of the Company shall make, at least 10 days before such meeting of stockholders, a complete record of the stockholders entitled to vote at each meeting of stockholders or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each stockholder. For a period beginning the earlier of 10 days before the meeting for which the record was prepared or two business days after notice of the meeting is given and continuing through the meeting, the record shall be kept on file at the Company's principal office or at a place identified in the notice of the meeting in the city where the meeting will be held, whether within or outside of the State of Colorado and shall be subject to inspection by any stockholder upon written demand at any time during usual business hours. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder during the whole time of the meeting or any adjournment thereof.  The original stock transfer books shall be prima facie evidence as to who are the stockholders entitled to examine the record or transfer books or to vote at any meeting of stockholders.

 

Section 8. Assessments. The stockholders of the Company shall have the right, at any annual or special meeting called for the purpose, to levy assessments pro rata against all stock issued and outstanding for the purpose of keeping the property of the Company in good repair or for the payment of any claim against the Company not otherwise provided for. The Board shall also have the right to assess or charge all patrons who are not stockholders of the Company such reasonable amount as in their judgment may be advisable as a proper charge or rental for carrying water to persons who are not stockholders in or through the ditch of the Company and may provide that no water shall be carried for persons who are not stockholders of the Company until the assessment or charge for carrying the same shall have been fully paid.  After thirty days, delinquent assessments shall accrue interest at a rate of one percent per month.  If any stockholder fails to pay the required assessment including any outstanding interest for a period of 8 months, their shares may be auctioned off at the next annual meeting, and the proceeds of any sale, over and above the amount due on said shares, shall be paid to the delinquent stockholder.  No forfeiture of stock or of the amount paid thereon shall be declared as against any estate or against any stockholder before demand has been made for the amount due thereon either in person or by written or printed notice duly mailed to the last known address of such stockholder at least thirty days prior to the time the forfeiture is to take effect.

 

ARTICLE VI

CONTRACTS, CHECKS, DEPOSITS AND FUNDS

 

Section 1. 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 Company shall be signed by such officer or officers, agent or agents of the Company in such a manner as from time to time shall be determined by resolution of the Board of Directors.

 

Section 2. Deposits. All funds of the Company shall be deposited from time to time to the credit of the Company in such banks, trust companies or other depositories as the Board of Directors may select.

 

Section 3. Gifts. The Board of Directors may accept on behalf of the Company any contribution, gift, bequest or devise for the general purposes or for any special purpose of the Company.

 

ARTICLE VII

BOOKS AND RECORDS

 

The Company shall keep correct and complete books and records of account and shall also keep minutes of the proceedings of its stockholders and Board of Directors and shall keep it at its registered principal office a record giving the names and address of the stockholders entitled to vote. Any of the books and records of this Company may be inspected by any stockholder or their agent or their attorney during normal business hours upon five business days' advance written demand to the Company. A stockholder may request, if reasonable, a copy of any record that the stockholder may ask to inspect upon payment of the reasonably estimated cost of producing and reproducing the copies requested.

 

ARTICLE VIII

BILLS AND ACCOUNTS

 

All expenditures must be authorized by the Board of Directors before indebtedness is incurred except as to routine matters in the ordinary conduct of the business of the Company and except in cases of emergency when any two officers may authorize expenditures essential to the Company's welfare. The fiscal year of the Company shall begin on the first day of January and end on the last day of December of each year.

 

ARTICLE IX

WAIVER OF NOTICE

 

Whenever any notice is required to be given under the provisions of the Act or under the provisions of the articles of the Act or under the provisions of the Company's Articles of Incorporation or bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.

 

ARTICLE X

AMENDMENTS TO BYLAWS

 

These bylaws may be altered or amended or repealed by the stockholders at any regular or special meeting of stockholders by a two-thirds majority vote of the stock entitled to vote represented at such meeting.

 

ARTICLE XI

SUPERINTENDENT

 

Section 1. Appointment - Control. The Board of Directors shall appoint a superintendent who shall give direct personal supervision for maintenance, repair and operation of the ditches and reservoirs of the company and the distribution of water therefrom. The superintendent shall be employed for such periods and at such salary and upon such conditions as the Board of Directors may from time to time determine, and shall in all matters be subject strictly to the control and direction of the Board of Directors and to such supervision by the Officers of the Company as the Board of Directors may from time to time at its discretion determine. The Board of Directors, in its discretion, may also employ an assistant superintendent or superintendents or other employees as deemed appropriate and upon such terms and conditions as the Board of Directors shall determine.

 

Section 2. Records. The superintendent shall keep proper and complete records of the waters taken into the headgate of the ditch and the waters distributed from the ditch, which records shall be in such form and detail as the Board of Directors may from time to time require.

 

Section 3. Notifications. The superintendent shall promptly notify an Officer of the Company of all encroachments upon its ditches, reservoirs or other properties. Any suspected encroachments or interference shall also be promptly reported. In general, the superintendent shall report any new or unusual circumstance which affects the operation of the Company's facilities.

 

 

ARTICLE XII

MISCELLANEOUS

 

Section 1. Delivery. Each stockholder or patron shall be entitled to have delivered into their respective box or lateral from the ditch of the Company water pro rata according to the number of inches they shall cause to flow into said ditch, provided that they shall first pay into the Treasury of the Company annual assessments as established by the stockholders per share for each share of stock. Annual assessments are due on or before the 1st day of April in each year. Shareholders or patrons shall also pay all other such duties or assessments as may be levied or assessed against their stock or for carrying charges in the event that such water user is not a stockholder of the Company.

 

Section 2. Leasing Water. The Company office must be notified, in writing, of any agreement to lease water forty-eight (48) hours in advance of delivery. Said notification shall include the name, address, phone number and headgate number of the lessee and the lessor's written authorization to deliver the leased water for the entire season.

 

Section 3.  Interference with Ditch Operations. The Board of Directors and Officers of this Company shall have the right and are hereby empowered to offer suitable rewards for information or evidence that any stockholder or patron or any other person is obstructing or attempting to obstruct or in any manner interfere with the natural flow of water through the Company's ditch, or change, alter, or interfere with the ditches, boxes, locks, contrivances or appliances adopted and installed by this Company for the carrying and distribution of water, and are hereby authorized and shall have the right to prosecute any such person or any persons who shall in any manner damage or destroy the property of the Company.

 

Section 4. Change of Use. Each stockholder desiring to change the location of delivery on the Company’s canal to which any water they may be entitled shall make written request therefore to the Board of Directors for approval. The Board shall review the request and said request shall be approved, be approved with conditions, or denied.

 

Each stockholder desiring to change the decreed place of use or type of use to which any water they may be entitled shall make written request therefore to the Board of Directors, including a copy of any proposed Water Court application no less than 120 days before filing the same. The Board shall review the request for the purpose of making a recommendation to the stockholders. The Board will recommend that the request be approved, be approved with conditions, or denied. Any proposed change of the decreed place of use or type of use of Company water must be approved by two-thirds (2/3) of the outstanding shares of stock in the Company at an annual meeting of the stockholders, or at a special meeting of the stockholders called for this purpose as prescribed in the Bylaws. The stockholders may approve, approve with conditions, or deny the requested change, but no request shall be approved by the stockholders if they determine that the approval thereof has the potential to (a) impair or jeopardize the Company’s water rights, (b) adversely affect the operation and administration of the Company, (c) impair the ability of any stockholder to receive its water entitlement, and/or (d) violate any other obligation of the Company.

 

In the event that the Board of Directors, in making any such determination as provided herein, shall require legal and/or engineering services for the purpose of making such determination, the cost of all legal and engineering services shall be paid by the stockholder making such request and the Board of Directors may require that the estimated costs thereof be paid to the company prior to engaging such services by the Board of Directors. In such event the Board of Directors may, without penalty or liability, defer any such determination until such condition has been met.