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Home My WebLink About20091713.tiffRESOLUTION RE: APPROVE APPOINTMENT OF DELEGATE ON PROXY FOR VOTING STOCK REGARDING PROPOSED ADDITION TO RURAL DITCH COMPANY BY-LAWS AND AUTHORIZE CHAIR TO SIGN WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, it is necessary to assure a quorum either by attendance or by proxy at the Special Stockholder's Meeting of the Rural Ditch Company, which is scheduled for August 20, 2009, and WHEREAS, the Board deems it advisable to appoint either Bruce Barker, County Attorney, Greg Nelson, Weld County Department of Public Works, or Steve Nguyen, P.E., Clear Water Solutions, Inc., as the delegate to represent Weld County at said meeting. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that either Bruce Barker, County Attorney, Greg Nelson, Weld County Department of Public Works, or Steve Nguyen, P.E., Clear Water Solutions, Inc., be, and hereby is, appointed as the delegate to represent Weld County at the Special Stockholder's Meeting of the Rural Ditch Company, said meeting being scheduled for August 20, 2009. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign the proxy appointing the President of the Ditch Board to represent Weld County at said meeting if a delegate is not present. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 27th day of July, A.D., 2009. BOARD OF COUNTY COMMISSIONERS WELD COU COLORADO ATTEST: Weld County Clerk to the Board BY: Deputy'Clerk to the Board API)ROVAS T bara Kirkmeyer my A orney Date of signature 8/_sjo 9 Davi• E. Long 2009-1713 BC0040 Elizabeth Strong From: Sent: To: Cc: Subject: Hi Elizabeth - Steve Nguyen [Steve@clearwatercolorado.com] Monday, July 20, 2009 2:32 PM Elizabeth Strong Bruce Barker; Greg Nelson RE: Rural Ditch Company I think the proposed change in the provision is fine and very standard for ditch companies. The County should not feel any negative impact from this and if anything will be protected from excessive seepage losses. Please let me know if you have additional questions. Steve Steve Nguyen, P.E., President Clear Water Solutions, Inc. (T) 970.223.3706 (F) 970.223.3763 www.clearwatercolorado.com Original Message From: Elizabeth Strong [mailto:estrong@co.weld.co.us] Sent: Monday, July 20, 2009 11:41 AM To: Steve Nguyen Cc: Bruce Barker; Greg Nelson Subject: Rural Ditch Company Mr. Nguyen, Would you mind reviewing the attached documents from the Rural Ditch Company and advising us of how you would like to proceed? If you review them by the end of July, we can place them on the agenda for the first week in August. Thank you for your time! Elizabeth Strong, Deputy Clerk to the Board (970) 356-4000 extension 4219 1 2009-1713 July 20, 2009 Shareholders Rural Ditch Company Re.: Proposed addition to the By -Laws Dear Shareholders: Please find enclosed copies of By -Laws for the Rural Ditch Company with a proposed addition which is paragraph 7.5 and specifically states: "River Headgate Diversions. All water diverted under any priority decreed to the Rural Ditch off of Boulder Creek and/or Idaho Creek and all waters otherwise diverted by the company off of Boulder Creek and/or Idaho Creed must enter the Rural Ditch at its river headgate. Likewise, all water to which any stockholder is entitled by virtue of the stockholder's ownership of company stock cannot bypass the Rural Ditch river headgate or the measuring structure, if any, of the Rural Ditch." This paragraph 7.5 change/addition to the By -Laws is the only consideration at this time. As indicated in Article XI (paragraph 11.1) by-laws may be amended or repealed with approval by a majority of stock represented in person or by proxy at an annual meeting or a special meeting of the stockholders called for that purpose and at which a quorum is represented in person or by proxy. THIS LETTER IS A NOTICE OF A SPECIAL STOCKHOLDER'S MEETING TO BE HELD IN CONJUNCTION WITH THE REGUARLY SCHEDULED BOARD OF DIRECTORS MEETING WHICH WILL BE AUGUST 20, 2009 AT 3:00 P.M. IN THE GUARANTY BANK AND TRUST BUILDING, 401 MAIN STREET, LONGMONT, COLORADO 80501 FOR THE PURPOSE OF APPROVING THE CHANGE/ADDITION TO THE BY-LAWS AS PRESENTED AND FOR THE TRANSACTION OF SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE MEETING. Even if you expect to be present, please sign, detach, and mail the Proxy NOW. If you are present, the Proxy will not be used, but we cannot have a legal meeting unless we have a majority of stock represented. PROXY FOR VOTING STOCK KNOW ALL BY THESE PRESENTS, that 1(We), Board of Weld County Commissioners , do hereby constitute and appoint the President, or of my Attorney and Agent for me, and in my name, place and stead, to vote as my proxy at the Special Meeting of the Shareholders of the Rural Ditch Company or any adjournment thereof to be held at 3:00 p.m. August 20, 2009 according to the number of votes 1 should be entitled to vote if there personally present. WITNESS MY H ND, THIS 27th day of 1 , 2009 SIGNED ATTEST: BY x The Board of Directors has been discussing this matter on sevs with the intention of addressing the heretofore lack of a prohibition against Ditch Company water passing by the river headgate. The proposed By-law change would require all Ditch Company water to go through the headgate with an intention to protect against transit loss and for the better administration and accounting for water delivered back to the river for compliance with augmentation plans; water in conjunction with court decreed Changes in Use of Share water; as well as irrigation water delivered for shareholder use. The Board of Directors unanimously supports the proposed change in the By -Laws. If you are not able to attend the Special Meeting, please submit your questions and comments prior to August 20, 2009. Sincerely, Dan Grant Secretary/Treasurer Rural Ditch Company (303) 678-4179 P.O. Box 1826 Longmont, Co. 80502-1826 Enc. CCy-/7/: BYLAWS OF THE RURAL DITCH COMPANY ARTICLE I Principal Office 1.1 The principal office of the Rural Ditch Company ("company") shall be determined by the board of trustees of the company and located in or within the vicinity of Longmont, Colorado. ARTICLE II Stockholders 2.1 Annual Meetings. Annual meetings of the stockholders shall be held each year at a date, time and place determined by the board of trustees for the purpose of electing trustees and for the transaction of such other business as may come before the meeting. 2.2 Special Meetings. Special meetings of the stockholders may be called for any purpose by the board of trustees and shall be called by the board of trustees upon the written request signed by stockholders owning one-third or more of the total stock of the company. 2.3 Notice of Meetings. Notice of the annual meeting of the stockholders shall be given to the holders of outstanding common stock by written notice stating the place, date and time of the meeting. Notice of a special meeting shall also be given by written notice and shall include the purpose or purposes for which the meeting is called. All notices shall be delivered to each stockholder entitled to vote at such meeting, either in person or by mail, not less than 10 nor more than 60 days before the date of the meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the stockholder at the address as it appears on the stock transfer books of the company with postage prepaid. 2.4 Quorum. A majority of the outstanding shares of the stock of the company, represented in person or by proxy, shall constitute a quorum at the meeting of the stockholders. 2.5 Voting of Shares. Each outstanding share of stock as shown by the records of the company shall be entitled to one vote at any meeting of the stockholders. A stockholder may vote by proxy executed in writing. ARTICLE III Board of Trustees 3.1 General Powers. The business and affairs of the company shall be managed by its board of trustees. 3.2 Trustees. There shall be 5 trustees, and each trustee shall serve a 2 -year term. Trustees must be stockholders or authorized representatives of a stockholder of the company. Authorized representatives serving as trustees must deliver a letter signed by the stockholder(s) of record of a particular stock certificate stating that the authorized representative represents the stockholder(s) of record and is authorized to serve as trustee of the company. Such letter must be notarized and delivered to the company within 30 days after the authorized representative was elected as trustee. The terms of the trustees shall be staggered so that no less than 2 and no more than 3 trustees shall be elected at each annual meeting. For the first year that this bylaw provision is in effect, 2 trustees shall be elected for a 1 -year term, and 3 trustees shall be elected for a 2 -year term. Each elected trustee shall hold office until his or her successor shall have been elected and qualified. 3.3 Meetings. A meeting of the board of trustees may be called at any time by the president or by 2 trustees upon 3 -days written notice by mail or 24 -hour notice in person, by telephone or by electronic communication. Trustees may attend meetings by teleconference or other electronic means approved by the board of trustees. 3.4 Meetings without Notice. For a meeting that does not have the required notice, the acts of a meeting shall be valid as if the meeting had been duly and regularly called and held if: [1] all trustees are present at the meeting; [2] all trustees sign a written consent to the meeting on the records of the meeting; or [3] all trustees sign an approval of the minutes of the meeting. 3.5 Quorum. Three trustees shall constitute a quorum for the transaction of business at any meeting of the board of trustees. 3.6 Vacancies. Any vacancy occurring on the board of trustees may be filled by the affirmative vote of a majority of the remaining trustees. 3.7 Compensation. Trustees may be reimbursed for expenses of attendance at each meeting of the board of trustees. They may be paid a fixed sum for attendance or a stated salary with the approval of the stockholders. ARTICLE IV Officers 4.1 Officers. The officers of the company shall consist of a president, vice president, secretary, treasurer and superintendent. The offices of secretary and treasurer may be held by one person. The president and vice president shall be elected by the trustees at their first board meeting following the annual meeting. The other officers do not need to be stockholders or authorized representatives of stockholders of the company and shall be appointed by the board of trustees at any meeting and shall hold office at the will of the board of trustees. 4.2 President. The president shall preside at the meetings of the trustees and the stockholders and shall call special meetings of the board of trustees at such times as he or she may deem ^, 000UMEnrs. ANO 51.1111NUIPANaru a.noAL g=plas,THAPOR6ELUNIERNEI S'C PRQ QO c4WA Pd N PO4r. 2 .{Deleted: 4/16/2009 + Deleted: F:\CLIENTS\R\RURAD\B r I YLAWS\DRAFT BYLAWS.DOC necessary. The president shall have general charge and supervision of the company's business and sign certificates of stock, notes, bonds, agreements, deeds and other documents to be entered into by the company. The president shall perform other duties as are usually performed by the chief executive officer of a company. 4.3 Vice President. The vice president shall perform all the duties of the president in case of the absence or other inability of the president to act. 4.4 Secretary. The secretary shall keep a correct record of all meetings of the stockholders and trustees and other records that are required to be kept by the board of trustees. The secretary shall collect all moneys due to the company and pay them to the treasurer. The secretary shall be the custodian of the seal, books and papers of the company and shall keep a record of all of the company's business transactions. The secretary shall give notice of the meetings of the stockholders and trustees and shall perform other duties as the board of trustees may direct. 4.5 Treasurer. The treasurer shall be responsible for all funds and securities of the company, for receiving and giving receipts for moneys due and payable to the company, and for depositing all such moneys in the name of the company. The treasurer shall keep accurate accounts of all receipts and disbursements and when requested by the board of trustees, provide a complete statement of accounts of the company. In the discretion of the board of trustees, the treasurer shall provide a bond for the faithful performance of the treasurer's duties in an account as the board of trustees may determine appropriate. 4.6 Superintendent. The superintendent, under the supervision of the president and the board of trustees, shall have charge of the ditch and the repairs thereof. The superintendent shall keep the time of the laborers and report the same to the board of trustees at each regular meeting or whenever called upon by the president. The superintendent shall control the headgates, measuring boxes, flow of water and distribution of the water in the ditch. The board of trustees shall supervise the duties of the superintendent. 4.7 Salaries. The salaries of the officers shall be fixed by the board of trustees. No officer shall be prevented from receiving such salary by reason of the fact that he or she is also a trustee of the company. 4.8 Term of Office. The president and vice president shall each hold office for 1 year until his or her successor has been duly elected and qualified, or until his or her death, resignation, or removal from office by the board of trustees. ARTICLE V Stock 5.1 Fractional Shares. No transfer of stock less than 0.25 of a share shall be transferred without the express written consent of the board of trustees. Deleted: 446/2009 Deleted: F:\CLIENTS\R\RURAD\B YLAWS\DRAFT BYLAWS.DOC c mac n-:cr!?s n s r ry oR4m-g cA nnc sr zEn'Oelaie T IE.+I+ET as PI .L:9mS.ept.PQ.. PQ QP.AMEPPIrta PP4..... _.. ...... 3 5.2 Certificates. Certificates representing shares in the company shall be in such form as may be determined by the board of trustees. Such certificates shall be signed by the president and secretary. Certificates for shares shall be consecutively numbered. The person or entity in whose name appears on the books of the company shall be deemed by the company to be the owner (or lien holder) for all purposes. 5.3 Transfers. No new certificates shall be issued until the original certificate for the same number of shares is surrendered and canceled. No stock shall be transferred while the stockholder requesting to transfer such stock is indebted to the company. Transfer of stock shall be made on the stock transfer books of the company by the stockholder of record or by its legal representative upon surrender for such cancellation of the certificate for such stock and a duly executed assignment thereof. The assignee shall pay the company a transfer fee plus any reasonable attorney's fees and other costs incurred by the company over and above those generally incurred, if any, related to the transfer of stock, including but not limited to researching and reviewing documents, and, if necessary, filing and prosecuting an interpleader action to determine ownership of certificates of which the company receives conflicting claims or requests to transfer. The transfer fee shall be determined on an annual basis by the board of trustees. 5.4 Lost Stock Certificates. In case of a lost or destroyed stock certificate, the stockholder requesting the replacement certificate must comply with the requirements of C.R.S. 7-42-113, 114, 115 and 116 as they now exist or hereafter are amended. In the alternative, the board of trustees may, in its sole discretion, approve the issuance of a replacement certificate if the stockholder provides a lost instruments bond to the company. ARTICLE VI Liens and Assessments 6.1 Levying Assessments. 6.1.1 Board Recommendation. The board of trustees shall recommend to the stockholders of the company at the annual meeting or a special meeting called for that purpose the assessment upon each share of stock for the costs incurred for the operation and the maintenance of the ditch for the next year. 6.1.2 Stockholders' Levy. No assessment shall be made unless a quorum is present at such an annual meeting or a special meeting and a majority of the voting shares represented at the meeting, either in person or by proxy, vote in favor of levying such assessments. Assessments levied by stockholders at annual or special meetings shall be due and payable to the Company within 30 days of the date of the notice sent to the stockholders. 6.1.3 Directors' Levy. If the stockholders either fail to hold any such meeting or fail to authorize any such assessment pursuant to ¶6.1.2, then the board of trustees shall have the power to make such assessment for such year at any regular or special meeting called for ,IjOQUACEJ.ITSNo ,t HAS:fEM.ORRHYINTERNET Fixf h 1l,“1,0,RRAWS F!RONSEAFRUIP,nNT 4 4,20 00 At Deleted: 4/16/2009 I. Deleted: F:\CLIENTS\R\RURAD\B YLAWS\DRAFT BYLAWS.DOC that purpose. Said assessments shall be due and payable to the company on or before a date established by the board of trustees at such meeting, but no less than 30 days after notice of such assessment is sent to the stockholders. 6.2 Minimum Assessments. Stockholders owning less than 0.50 shares shall be assessed for 0.50 shares, and stockholders owning more than 0.50 shares but less than I share shall be assessed for I share. 6.3 Forfeiture and Sale. 6.3.1 Notice of Forfeiture. If any stockholder fails to pay the assessments owed on any share of stock when due, then the secretary or treasurer shall deem the share(s) forfeited and sell so much of the stock as necessary to pay such assessment, accrued interest, reasonable attorneys' fees, publication costs and other expenses of sale upon first giving 60 days written notice and demand for payment by certified mail, return receipt requested, deposited in the United States mail addressed to the stockholder at the address as it appears on the stock transfer books of the company with postage thereon prepaid. 6.3.2 Commercial Sale. All sales in connection with forfeitures shall be held in a commercially reasonable manner and shall include publishing notice of the sale of the stock being sold in newspapers of general circulation in Boulder County not less than 4 times prior to the sale of the stock. Any proceeds of the sale in excess of the past due assessments and expenses incurred to sell the stock shall be paid to the forfeiting stockholder. 6.3.3 Purchase by Company. The company may purchase any forfeited stock and hold it as treasury stock of the company. 6.4 Failure to Pay Assessments. Stockholders with past due assessments shall not be entitled to the distribution of water pursuant to their stock while their assessments remain unpaid, and the board of trustees may withhold the distribution of water from any stockholder until said delinquent assessments are paid. 6.5 Right to Vote. The right of a stockholder to vote at any meeting of stockholders shall be suspended during the period that any assessment is overdue and not paid as determined by the board of trustees. 6.6 Lien on Stock. The company shall have a perpetual lien on all shares of stock and the water rights represented thereby for any unpaid assessments until the stockholder fully pays the assessments, the special assessments, accrued interest and penalties or the company deems the stock forfeited and sells the stock for nonpayment of assessments. 6.7 Interest Due. All assessments or indebtedness of the company if not paid when due, after 60 days of such delinquency, shall draw interest at the rate of 18 percent per annum until paid. 5 aELLINCOINEEQBANY IMfENES vicEsn-Koz.w904l ttAW PirMSEP_AMEN2MENT POS., g9e ;{ Deleted: 4/16/2005 r Deleted: F:\CLIENTS\R\RURAD\B 11 YLAWS\DRAFT BYLAWSDOC J 6.8 Legal Action. An action may be maintained in the name of the company to recover any installment of any assessment that is dub and unpaid for the period of at least 60 days after written demand has been deposited in the United States mail addressed to the stockholder at the address as it appears on the stock transfer books of the company with postage thereon prepaid. This remedy is cumulative and shall not affect or impair the right of the company to forfeit and sell the stock as provided in these bylaws. ARTICLE VII Headgates, Ditches and Water Administration 7.1 Headgates. The superintendent shall divert water from the main ditch of the company to the stockholders into headgates that are approved and authorized by the board of trustees. All headgates and diversion structures for taking water out of the main ditch shall be under the control of the board of trustees and superintendent. Any construction of headgates must be approved by the board of trustees and shall be in accordance with best irrigation and water usage practices and engineering feasibility. The cost of all headgates shall be paid for by the stockholders served by the headgate. No new headgate shall be constructed unless the amount of water to be delivered is equal to or greater than the amount the owner of one share of stock is entitled to receive. 7.2 Responsibility for Laterals. The company is responsible only for maintaining the main ditch and for delivering water to the headgates serving the stockholders. Lateral ditches off of the main ditch must be maintained and kept in good condition by the individual stockholders using those lateral ditches. Stockholders shall hold the company harmless for any damages incurred as a result of improper maintenance of the lateral ditches. 7.3 Interference with Ditch. No stockholder shall construct or install any structure that crosses or encroaches upon the ditch easement or relocate or pipe the ditch without the company's prior written approval. The stockholder shall pay the company a fee for the interference and reimburse the company for its reasonable attorneys' fees, engineers' fees and other expenses and costs incurred in approving the crossing, encroachment, relocation or piping. 7.4 Administration of Water. Subject to the laws of the State of Colorado and any contracts or other agreements entered into by the company, the board of trustees and the superintendent, as directed by the board of trustees, shall have all authority and discretion to determine how and when to run water in the company's ditch for the collective benefit of the stockholders. The company and board of trustees shall not be liable for a shortage of water from any cause whatsoever and shall have the right at all times, when in the judgment of the board of trustees it may be reasonably necessary, to stop the running of water in order to make repairs, changes or alterations. 7.5 River Headgate Diversions. All water diverted under any priority decreed to the Rural Ditch off of Boulder Creek and/or Idaho Creek and all waters otherwise diverted by the company off of Boulder Creek and/or Idaho Creek must enter the Rural Ditch at its river headgate. Likewise, all water to which any stockholder is entitled by virtue of the stockholder's ownership c."40.0uNLIENT5APIP SF IN SVe,NFVUP .Pt,1/41 a sl 26 S ws_ NIERNE !' 2PNren ,M, PRP4SEP.NAENQIfEtl?B9A... 6 ADeleted: ail 6/2009 ,. (Deleted: F9CLIENTS\R\RURAD\B YLAWS\DRAFT BYLAWS.DOC of company stock cannot bypass the Rural Ditch river headeate or the measuring structure, if any, of the Rural Ditch. ARTICLE VIII Indemnification 8.1 Except to the extent that such sums are covered by insurance, the company shall indemnify any trustee, officer or employee who is a party to or may be made a party to any threatened or pending civil action, suit, or proceeding arising out of a tort committed by an employee or resulting from his actions taken as a trustee, officer or employee, for expenses (including attorney's fees), judgments and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, or proceeding, unless such person's acts or omissions were dishonest, fraudulent, malicious, criminal, ultra vires or the result of gross negligence. The protection afforded in this section shall not restrict other common-law protections and rights that a trustee or officer may have. ARTICLE IX Rules and Regulations 9.1 The board of trustees may adopt and revise rules and regulations for the operation and administration of the ditch. ARTICLE X Effect of Bylaws 10.1 If any paragraph of these bylaws is declared void by a court of law, the remaining paragraphs of these bylaws shall remain in full force and unaffected. ARTICLE XI Amendments 11.1 These bylaws may be amended or repealed with approval by a majority of the stock represented in person or by proxy at an annual meeting or a special meeting of the stockholders called for that purpose and at which a quorum is represented in person or by proxy. ARTICLE XII Bylaw Certificate 12.1 The secretary of the company shall certify that he/she is the secretary of the Rural Ditch Company, a Colorado mutual ditch corporation, and further certify that these bylaws are authorized by the company and are a complete and correct copy of the presently effective bylaws of the company. Such certificate shall be executed on behalf of the company. crffs N+e 7 sxi r suan ct+c^++v. 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