AMENDED AND RESTATED ARTICLES OF INCORPORATION OF EAST MILL CREEK WATER company
The undersigned, a nonprofit corporation, hereby fully amends and restates its Articles of Incorporation in the manner authorized by Section 16-6a-1006 of the Utah Revised Nonprofit Corporation Act (the “Act”), which shall supersede and take the place of any existing articles as follows:
- name of corporation
The name of this Corporation is the East Mill Creek Water Company, hereinafter “the Corporation.”
- NAMES OF INCORPORATORS
The original incorporators of this Corporation are set forth in the original Articles of Incorporation heretofore filed with the Utah Department of Commerce.
- PRINCIPAL PLACE OF BUSINESS
The principal place of business and office of the Corporation shall be located at 2419 East 3510 South, Salt Lake City, Utah 84109.
The duration of the Corporation shall be perpetual, unless terminated sooner as provided by law.
- purposes and corporate powers
The Corporation is organized as a nonprofit mutual water company for the purposes of providing a water supply for beneficial uses by its stockholders. In furtherance of, and not in limitation of the powers now or hereafter conferred on nonprofit corporations by the laws of the State of Utah, the Corporation shall have the following objects, purposes and powers:
- to own and control rights to the use of water for irrigation, domestic, municipal, industrial, livestock, hydroelectrical generation and any other recognized beneficial use or purpose; and to divert, store, convey, manage, conserve and distribute such waters to its stockholders;
- to acquire and hold water or water rights or stock in other irrigation companies and associations by appropriation, purchase, gift, lease, contract, exchange or any other lawful means;
- to acquire, own, lease, construct, operate, manage, repair and maintain, pipelines, pressurized irrigation systems, canals, ditches, reservoirs, dams, weirs, flumes, headgates, wells and all appurtenant and related facilities, as may be necessary to provide, convey, conserve and distribute water to its stockholders, or other water users;
- to purchase, acquire, receive, hold, own, sell, lease and otherwise deal with any real or personal property necessary or advantageous to carry out corporate operations, purposes and powers;
- to make, enter into and perform contracts of any nature or description, including contracts with governmental entities and agencies, for the acquisition, use and development of water and water rights and for the use, maintenance, repair, improvement or construction of any water conveyance or storage facilities, or to carry out the purposes and objectives of the Corporation;
- to assess all outstanding shares of stock in the Corporation for all corporate purposes, in accordance with the laws of the State of Utah and as provided herein and in the corporate Bylaws;
- to borrow money or incur liabilities to such an extent and upon such terms and conditions as may be determined by the Board of Directors and to issue notes, bonds, or other evidence of indebtedness to secure any of its obligations;
- to issue certificates of shares of stock evidencing, in part, the right to receive a proportionate share of the water distributed by the Corporation;
- to exercise the power of eminent domain as permitted by the laws of the State of Utah;
- to own and operate reservoirs and water storage projects for use within the State of Utah; and
- engage in any lawful act for which a nonprofit corporation may be organized under the laws of the State of Utah.
The foregoing clauses shall be construed both as purposes and powers and are not intended to limit or restrict the general powers of the Corporation under the Act or the applicable laws of the State of Utah. The purposes and powers set forth in each of the paragraphs of this article shall be regarded as independent purposes and powers.
The members of the Corporation are those persons or entities who are the record owners of stock in the Corporation. When a nonmember who has acquired stock, or someone acting on behalf of such nonmember, presents a request for the transfer of ownership of stock on the records of the Corporation, such presentation shall constitute a request and consent to the Corporation to become a member, and the nonmember shall become a member upon the completion of the transfer of stock upon the records of the Corporation.
The right to receive water distributed by the Corporation shall be evidenced by the holding of shares of stock in the Corporation, as herein after provided. Shares of stock in the Corporation shall be issued, held and transferred or cancelled only in the manner set forth in the Bylaws of the Corporation or as otherwise determined by the Board of Directors.
The Corporation shall have the authority to issue shares of stock of the following classes, and each class shall consist of the following maximum, aggregate number of shares:
- Class A Stock: A total of 2,900 issued and outstanding shares of “Class A” stock, which shall represent a proportional right in and to the Corporation’s primary water supply for irrigation purposes.
All shares of Class A stock shall be designated as diverting water from either:
- The Brigham Young Ditch;
- The Franklin and John Neff Ditch; or,
- The Amos Neff Ditch.
Each certificate of Class A stock shall contain, on its face, a notation designating the ditch from which said shares are to be diverted. Class A shares may not be moved from their designated ditch without the prior written consent of the Board of Directors who shall determine, among other things, that such a change will not exceed the safe carrying capacity of the ditch and will not unreasonably disrupt the irrigation schedules for such ditch.
- Class B Stock: Any valid existing shares of “Class B” stock represent culinary use only. The Corporation shall have no obligation to deliver such culinary water to the holders of Class B stock, and does not own or maintain a culinary water distribution system. Any holders of Class B stock must make proper arrangements for the delivery of such water with the Salt Lake City Public Utilities Department. Class B stock shall be non-voting stock, and shall be subject to other restrictions as may be set forth in the Corporation’s Bylaws.
Except as specifically set forth in these Articles, or in the Bylaws of the Corporation, each share of stock of a particular class shall be identical in all respects and shall have the same rights, privileges, preferences and obligations as each of the other shares of such class.
- board of directors
The powers and management of the Corporation shall be exercised by a Board of seven (7) Directors consisting of the following: one Director representing the Amos Neff ditch; one Director representing the Franklin and John Neff ditch; two Directors representing the Brigham Young ditch; and three Directors elected at large. A director shall be a Class A shareholder or a duly authorized representative of an entity which is a Class A shareholder, and shall be at least twenty‑one (21) years of age. Directors representing a specific ditch, as provided herein, shall be a shareholder in such ditch, or the duly authorized representative of an entity owning shares in such ditch.
At any meeting of the Board of Directors, a majority of Directors currently in office shall constitute a quorum to transact Corporation business. The number of Directors may be changed from time to time as provided in the Bylaws, but in no event shall the number of Directors be less than five (5), nor more then seven (7).
- election and term of directors
Election of Directors shall take place at the annual meeting of the members of the Corporation. Directors shall each be elected for a term of one (1) year. Any Director may be removed for cause by a majority vote of the members present at a meeting of the members duly called and held for that purpose. The Directors who shall hold office until their successor(s) are duly elected are as follows:
|Terry Wasescha||Brigham Young Ditch|
|Ann Hackett||Brigham Young Ditch|
|Michael Taylor||Franklin & John Neff Ditch|
|William D. Callister||Amos Neff Ditch|
|Brian Gurr||At large|
|Steven L. Anderson||At large|
|Willem E. Leeflang||At large|
Any vacancy on the Board of Directors caused by death, incapacity, resignation, removal, or otherwise may be filled by an affirmative vote of the majority of the remaining Directors, even though less than a quorum, and each Director so designated to fill a vacancy shall serve any unexpired term. In electing Directors, cumulative voting shall not be allowed.
The Board of Directors shall elect from their membership a President and Vice President of the Corporation and shall elect a Secretary and Treasurer who may, but need not be, a member of the Board of Directors. The offices of President and Secretary shall not be held by the same person. The offices of Secretary and Treasurer may be held by the same person. Officers shall be elected for a term of one (1) year. Any officer may be removed by a majority of the Directors whenever, in their judgment, the best interests of the Corporation and its members and stockholders will be served. A vacancy in any office, by reason of death, incapacity, resignation, removal, or otherwise, may be filled by a majority vote of the Directors. All officers serving upon adoption of these Amended and Restated Articles of Incorporation shall continue in office until successors have been duly elected as herein provided.
- members’ meeting
An annual meeting of the members of the Corporation shall be held during the month of March at a location in Salt Lake County, Utah, at the date, time and place designated by the Board of Directors. At the annual meeting, the members shall elect Directors to fill the positions of any Directors whose terms expire or to fill any vacant positions; consider an annual budget, and to conduct such other business as may lawfully come before the meeting. Special meetings of the members may be called as provided in the Bylaws.
- annual budget
The Board of Directors shall prepare and submit to the members for approval at the annual members’ meeting a budget, giving an estimate of the expenses that it will be necessary to incur in the conduct of the business of the Corporation during the following year. The budget shall be taken into consideration by the Board of Directors in fixing the amounts of assessments necessary to be levied and collected.
- notice of meetings
Notice of the annual and special meetings of the members shall be given as provided in the Corporation’s Bylaws or in the Act.
At all meetings of the members, the owners of the outstanding Class A stock present in person, or by written proxy, and voting at such meeting shall constitute a quorum and enable the Corporation to transact and conduct all business properly brought before the meeting.
At any annual or special meeting of the members, each member owning Class A stock whose assessments are current shall be allowed to vote on the basis of stock ownership. Class B stock shall have no voting rights. Each share of stock shall be entitled to one (1) vote. Voting may either be in person or by written proxy signed by the member owning the stock and filed with the Secretary. Every question, motion or election at a meeting of the members, except as otherwise provided for in these Articles, the Bylaws or the Act, shall be decided by a majority of votes cast at any such meeting. The voting members of the Corporation shall have the right to take action by written consent in the manner authorized and permitted by § 16-6a-707 of the Act. Treasury shares held by the Corporation shall not be voted.
- powers of board of directors
In addition to any other powers for authority now or hereafter conferred by the laws of the State of Utah or contained in these Articles and the Bylaws, the Board of Directors shall have the authority to manage the general operation and affairs of the Corporation.
The Board of Directors shall have the authority to enter into contracts with the United States, the State of Utah, their agencies and divisions, for which the water rights or distribution system(s) of the Corporation are conveyed to such governmental entity as security for loans used to construct, improve, replace or repair any water diversion, storage or distribution facilities of the Corporation.
The Board of Directors shall make all decisions affecting the water rights or distribution facilities of the Corporation. The Board of Directors shall have full and complete power and authority, without prior authorization or subsequent ratification by the stockholders, to take any and all actions they deem necessary and prudent to protect and maintain in good standing the water rights of the Corporation; file applications to appropriate, change applications, exchange applications, or other applications or protests in the name of and on behalf of the Corporation with the Utah Division of Water Rights (also known as the Utah State Engineer), as the Board determines to be in the best interest of the Corporation and to prosecute appeals from decisions of the Utah State Engineer, as provided by law. The Board of Directors may also file water user claims and protests and participate on behalf of the Corporation in any general water adjudication action brought under the laws of the State of Utah.
In anticipation of or during an emergency caused by a catastrophic event, such as, but not limited to, earthquake, flood, foreign attack, civil insurrection or terrorist act, the Board of Directors may exercise emergency powers as provided for in the Bylaws.
No stockholder or member shall have authority to file a change application or exchange application involving the water rights of the Corporation, without the approval of the Corporation and following the procedures set forth in the Bylaws and Section 73‑3‑3.5 Utah Code Annotated, as amended.
In the event of a forfeiture of a portion of the Corporation’s water rights pursuant to Section 73-1-4 Utah Code Annotated, as amended, the Board of Directors shall have the power and authority to apportion any such loss by forfeiture to any and all stockholders pursuant to § 73-1-4.5.
- stockholder liability
The private property of the stockholders and members of this Corporation shall not be held liable or taken for the debts or obligations of this Corporation.
The stock of the Corporation shall be assessed in such amounts and at such times and in such a manner as determined, from time to time, by the Board of Directors, to the extent permitted by the laws of the State of Utah. All shares of stock in a designated class shall be assessed on an equal basis for general corporate expenses, but stockholders using water from any of the ditches set forth herein, may be assessed separately and in unequal amounts to pay the operation and maintenance costs of each such ditch, as determined by the Board of Directors. Notice of assessments shall either be delivered personally to each stockholder or sent by regular mail addressed to each stockholder at the address shown on the records of the Corporation. Notice of assessment by publication shall not be required. Should any stockholder fail to pay all or a portion of an assessment, the Corporation may foreclose on said defaulting stockholder’s shares by following the procedure set forth in Section 16‑4-4, et seq., Utah Code Annotated, as amended. If all of a stockholder’s shares are sold, that stockholder’s membership in the Corporation shall be terminated. The Corporation may also withhold the delivery of water until any delinquent assessments are paid in full.
The Corporation shall indemnify any Director or Officer of the Corporation against expenses, including attorney’s fees, judgments and amounts paid in settlement actually or reasonably incurred in connection with any action, lawsuit, or proceeding in which the Director or Officer is made a party by reason of being or having been a Director or Officer, or for taking any action or failing to take any action as a Director or Officer; provided, such Director or Officer acted in good faith and in a manner reasonably believed to be in the best interest of the Corporation. A Director or Officer will not be entitled to indemnification in connection with any action or proceeding by the Corporation in which the individual was adjudged liable to the Corporation or where the action or failure to act constitutes willful misconduct or constitutes intentional infliction of harm on the Corporation or its members.
- registered agent and office
The name and address of the registered agent of the Corporation is:
2419 East 3510 South
Salt Lake City, Utah 84109
- bylaws and rules
The Board of Directors shall have the power to adopt such Bylaws, rules and regulations, not contrary to law or inconsistent with these Articles, as may be necessary for the management and business of the Corporation, and shall have the power to alter, amend or repeal the same, and the same shall be valid until amended or repealed by the Board or disapproved by a majority vote of the stock of the Corporation present at any general or special meeting of the members; provided, that whenever the Board of Directors adopts any new Bylaws, rules or regulations, repeals or makes any substantive amendments thereto, the same shall be presented to the members for approval at the next annual meeting of the Corporation or at a special meeting of the members duly called for that purpose.
- amendment of articles
The Board of Directors may make amendments to the Articles of Incorporation without member or stockholder approval to:
- delete or change the names and addresses of the initial Directors or their successors;
- delete or change the name and address of the initial registered agent or registered office;
- change the name of the Corporation; or
- add, delete, or change a geographical attribution.
All other amendments or changes to these Articles of Incorporation may be proposed by the Board of Directors or by a request of members holding twenty five percent (25 %) of the voting stock and shall be submitted to the members and stockholders for approval at the annual meeting of the members or at a special meeting of the members duly called for that purpose. Notice to the members and stockholders of any proposed amendments and any meeting called for a vote on the same shall be given as set forth in the Bylaws.
IN WITNESS WHEREOF, the undersigned, being the current President and Secretary, respectfully, of the Corporation, sign and verify these Amended and Restated Articles of Incorporation this ____ day of ________________ 2007.