Amended and Restated Bylaws of The Bessemer Irrigating Ditch Company

As adopted: May 11, 2009
As amended: Nov. 12, 2019; Dec. 7, 2017; Dec. 8, 2016; Aug. 12, 2015; Sept. 9, 2010

ARTICLE VI - STOCK

SECTION 1. Each stockholder of the Company shall receive a certificate or certificates for the number of shares of capital stock to which he may be entitled. All such certificates shall be signed by the President and Secretary, and bear the seal of the Company, and shall be numbered and registered in the order in which they are issued.

SECTION 2. Shares of stock shall be transferable to any natural person, and to any entity, including, without limitation, any corporation, unincorporated entity, governmental entity, quasi- governmental entity, or special district. The transfer of shares of stock shall be effective only when transferred upon the books of the Company on application of the owner thereof, or the owner's designated legal representative, and upon the surrender of the certificates, properly endorsed, and no transfer of shares of stock shall be made unless all assessments, interest and charges due thereon shall have been paid.

A minimum charge of $50.00 shall be made for each certificate of stock issued by way of transfer, which charge shall be paid at the time a certificate of stock is presented to the Secretary for transfer. If the Board of Directors requires legal, or other consulting services in conjunction with the issuance of any certificate of stock issued by way of transfer, or incurs necessary publication costs respecting such transfer, all costs of such legal and consulting services and publication shall also be paid by the stockholder requesting the change, and shall be paid prior to the Company issuing the new certificate.

SECTION 3. All surrendered certificates of stock shall be duly canceled and preserved by the Secretary.

SECTION 4. No duplicate certificate shall be issued in place of one stated to be lost, mislaid or destroyed, except upon compliance with either: (I) receipt by the Board of Director of satisfactory bond of indemnity against such lost certificate, and then only by order of the Board of Directors, after affidavit or affidavits satisfactory to the Board of Directors of the loss or destruction of such certificate shall have been submitted; or (2) with the statutory requirements respecting issuance of duplicate certificates set forth at 7-42-113 C.R.S. through 7-42-117, C.R.S ., as amended, and as set forth below:

1. A stockholder, having paid in full all assessments made against his or her stock, must first file with the Secretary of the Company a statement under oath that the certificate of stock has been lost, mislaid, or destroyed and that the certificate is the property of the person making the statement and that the stock has not been transferred or hypothecated by the stockholder, and requesting the reissuance of a duplicate certificate;
2. Upon receipt of such statement, the Company shall publish, at the expense of the person making the demand, at least once a week for five successive weeks, the fifth publication being on the twenty-eighth day after the first publication, in a newspaper of general circulation in Pueblo County, stating the demand in full and stating that the corporation will issue, on or after a date therein stated, following the last publication of the notice by at least thirty days, a duplicate certificate to the registered owner, the registered owner's legal representative or assignee, or any lienholder named in the books of the company as a lienholder on the lost certificate unless a contrary claim is filed with the Company prior to the date state in the notice;
3. If no claim of interest or ownership other than that made by the person filing the demand is on file with the Secretary of the Company prior to the date stated in the notice, the Company shall issue a duplicate certificate to the person, the person' s legal representative or assignee, or any lienholder named in the books of the Company as a lienholder on the lost certificate, and all rights under the original certificate shall thereafter immediately cease.
4. In addition to the foregoing, the Company may require any legal representative or assignee of a stockholder of record to prove the stockholder's legal right to such certificate as a legal representative or assignee of the stockholder of record. The Company may require any lienholder named in the books of the Company as a lienholder on the lost certificate to prove the lienholder' s legal right to such certificate.
5. The Company will charge a $200 administrative fee as well as payment of all legal, consulting, publication and other related costs incurred by the Company with respect to the issuance of a duplicate certificate. All such fees and costs shall be paid by the person or entity making the demand for the duplicate certificate. The person or entity seeking the duplicate certificate shall make a preliminary cost deposit with the Company in a sum equal to the estimated total charges and fees, which deposit must be made prior to the Company proceeding with the statutory steps required for the issuance of a duplicate certificate. In the event any such request results in litigation between claimants for the missing certificate, the person or entity seeking the certificate shall be responsible for all of the Company's related legal fees and costs. All such litigation related expenses, fees and charges incurred by the Company shall be paid prior to the Company issuing the duplicate certificate following such litigation.

SECTION 5. DELIVERY OF WATER

1. No stockholder shall be permitted to change the point of diversion, type of use, or place of use of water except upon the written order and approval of the Board of Directors first had and obtained. No such change may be effective during the current year based on request received after January 31, and in no event prior to approval by the Board of Directors as set forth below.
2. No stockholder shall be permitted to change the point of diversion out of the main ditch, or the type and place of use of water until the stockholder demonstrates to the Board of Directors that such change or changes can be accomplished under terms and conditions approved by the Board of Directors that will not result in (1) increased conveyance losses to stockholders who continue to take delivery of water through the main ditch; (2) increased cost of operating and maintaining the main ditch and related structures; (3) increased delivery lateral conveyance losses to shares historically delivered through the lateral from which shares are proposed to be removed; (4) increased cost of operating and maintaining a delivery lateral from which shares are proposed to be removed; and (5) any other material injury to the water rights owned by and historically diverted and used by the Company. The Board of Directors may require, as a condition of its approval, that the stockholder acquire such additional real property interests, if any, as are necessary for the stockholder's use of the Company's main ditch and related structures in connection with the stockholder' s change in point of diversion or type and place of use of water. Any shar s transferred out of the Bessemer Ditch shall remain subject to assessments and payment of assessments levied by the Company. The Board of Directors may, by resolution, delegate to the ditch superintendent the authority to grant informal and administrative approval for rotation of a stockholder's water within and among ditch laterals for the irrigation of the stockholder's lands within close proximity to each other.
3. Each stockholder desiring to change the point of diversion of the water represented by its shares out of the main ditch, or to change the type or place of use of its shares, shall make a written request to the Board of Directors of the Company. The written request shall contain a detailed report summarizing the proposed change of use, and engineering and other information sufficient to enable to Board to determine the terms and conditions necessary to ensure that the proposed change complies with the requirements of Section 5.B. The Board of Directors may request and the stockholder may submit supplemental information as reasonably necessary for this purpose. The Board of Directors shall act upon the request within a reasonable time. The change shall be allowed subject to terms and conditions described in Section 5.B. No Board member shall be disqualified from participating in the action of the Board in considering, granting, or denying such a request by virtue of being an owner of the stock subject to the request or by virtue of being an officer, director, or designated representative of the owner of the stock subject to the request; provided that any such determination involving a director who is also an owner of stock subject to the request, or who is an officer, director, or other designated representative of an entity that is an owner of stock subject to the request, shall be deemed a "conflicting interest transaction" with respect to such director and shall be subject to the provisions of Colorado Revised Statutes section 7-128-501 concerning conflicting interest transactions.
4. Any judicial review of the terms and conditions imposed by the Company to assure that the change will not result in the types of injury described in Section 5.B above shall be brought in the Water Court for Water Division 2, or District Court for Pueblo County, as jurisdiction is appropriate, by the stockholder requesting the change. Any such review may be consolidated with, and finally determined in, proceedings in the Water Court for the change of the water rights. In any such proceeding, the Water Court shall not be limited to a review of the record of the decision made by the Company, and the arbitrary and capacious standard of review shall not apply. Rather, there shall be a presumption that the terms and conditions imposed by the Company are necessary to prevent the types of injury described in Section 5.B above. The operation of this presumption places on the stockholder seeking the change of water rights the initial burden of going forward with evidence to rebut or meet the presumption, but it does not shift the burden of proof, which is by a preponderance of the evidence, and which remains on the applicant in change of water right proceedings in the Water Court.
5. The Board of Directors from time to time shall adopt procedures for the change of place of use of water between laterals, which shall provide for notice to all stockholders on unincorporated laterals and to the Board of Directors of incorporated laterals involved in such changes of place of use. The stockholder seeking the change of point of diversion, type of use, or place of use shall pay all expenses of such proceedings including postage expense.
6. If the Board of Directors requires legal, engineering, or other consulting services for the purpose of making the determination that the requested change of point of diversion, type of use or place of use, may be made in conformity with Section 5.B., above, then the reasonable cost of such legal and engineering services shall be paid by the stockholder requesting the change. The Board of Directors may require that the estimated cost thereof be paid to the Company prior to the Company incurring such legal, engineering expense, or other consulting. The Board of Directors may without penalty or liability, defer any such determination until such estimated cost has been paid to the Company. Any stockholder requesting a change in the point of diversion, type of use or place of use, shall pay the reasonable costs of the Company' s participation in the water court proceeding to the extent necessary to ensure the decree entered by the water court is consistent with the terms and conditions imposed by the Company under Section 5.B. Any unpaid portion of the actual reasonable cost of the legal, engineering services, or other consulting not paid to the Company upon demand shall be a lien upon the shares of stock owned by such stockholder in the same manner as an unpaid levied assessment and may be collected by the Company in the same manner as a delinquent assessment.
7. The provisions of this Subsection 5.G. of this Article VI, and the provisions of Subsections 5.B., 5.C., 5.D., and 5.F., above, cannot be amended or repealed by the Board of Directors. The stockholders cannot amend or repeal the provisions of Subsections 5.B., 5.C., 5.D., 5.F., and 5.G. of this Article VI, unless such action is approved by no less than the same number of shares that were cast in favor of this Subsection 5.G. Any other new or amended bylaw of the Company that purports, or is applied, to limit or further condition the rights of the stockholders under Subsections 5.B., 5.C., 5.D., 5.F., or 5.G., of this Article VI shall be void, unless such new or amended bylaw is approved by no less than the same number of shares that were cast in favor of the adoption of this subsection 5G.
8. Any stockholder requesting a change in point of diversion, type of use or place of use shall pay the costs of any capital improvements that are required to the main ditch or other Company facilities in order to comply with this Article VI, Section 5. The Company shall require any other stockholder who requests a change in point of diversion, type of use or place of use within fifteen (15) years after the installation of such capital improvements and who benefits from the capital improvements paid for by other stockholders as a requirement of earlier changes in point of diversion, or type of use or place of use, to pay to the installing stockholder a pro rata share of the costs of such capital improvements determined by the relative number of shares involved in the initial change and the number of shares changed subsequently.

SECTION 6. Any stockholder seeking to impose a conservation easement on shares of stock in the Company, or dedicate stock to instream flow or conservation purposes, shall obtain the written approval from the Board of Directors. If, in the opinion of the Board of Directors, such easement or dedication can be made without injury to the ditch, the Company, or the other stockholders, such easement or dedication shall be approved. In order to avoid any injury, any conservation easement shall subordinate the restrictions of the easement to the lien for unpaid assessments described in Article VII of the Company's bylaws. The approval of the Board of Directors shall be conditioned upon the stockholder's agreement in writing that the affected stock is subject to the Company's bylaws and rules and regulations. The stockholder will provide a legal description of the property and headgate name and number. Any subsequent owner of a conservation easement will subordinate to the bylaws of the Company.