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<br />, <br /> <br />WHEREAS, the CDOW is developing a comprehensive description of the process through which declining .,::;;;: <br />species will be identified and priorities for habitat improvement and Facility plans will be developed ("the <br />Comprehensive Plan"); and <br /> <br />WHEREAS, the CDOW and the CWCB staffs have compiled a detailed feasibility study on the Facility <br />("Feasibility Study"), and, based on this information, the CWCB staff has evaluated the technical and <br />economic feasibility of the proposed development and operation of the Facility in conformance with the <br />Guidelines for Financial Assistance through the Colorado Water Conservation Board Construction Fund. <br /> <br />WHEREAS, on September 29, 1997, CDOW entered into an option contract with Chiles Farms ("the <br />Option Contract") for the purchase and sale of certain land and water rights located in the San Luis Valley <br />of Colorado ("Chiles property"), which contract is incorporated herein by reference; and <br /> <br />WHEREAS, pursuant to the terms of the Option Contract, CDOW must exercise its option to purchase the <br />subject land and water rights no later than March I, 1998, and ifCDOW exercises its option, then closing <br />shall occur on or before June 30, 1998; and <br /> <br />WHEREAS, the CWCB staff has considered the property that is the subject of the Option Contract and <br />concurs with CDOW that it is suitable for purposes of constructing and operating the Facility. <br /> <br />NOW, THEREFORE, the CWCB and the CDOW hereby agree that: <br /> <br />I. Agreement Contingent lipon Exercise by CDOW of Option. This Agreement is <br />contingent upon the exercise by CDOW of its option to purchase under Paragraphs 2 and 3 of the Option . <br />Contract between CDOW and Chiles Farms. If CDOW exercises its opinion, then it shall forward to <br />CWCB a copy of the Written Notice sent to Chiles Farms. If CDOW does not exercise its option, then <br />this Agreement shall become null and void and CWCB shall not disburse any funds to the CDOW. If <br />CDOW exercises its option but for whatever reason closing on the subject property does not occur, <br />CWCB shall not disburse any funds under this MOU. <br /> <br />2. Time of Performance This MOU shall become effective upon signature by the parties and <br />the Colorado Division of Natural Resources Controller, and shall remain effective until three (3) years from <br />advertisement by CDOW of the notice of final settlement of construction claims required pursuant to ~ 38- <br />26-107, C.R.S. The CDOW recognizes that time is of the essence in the performance of its obligations <br />under this MOU, and therefore shall complete design and construction of the facility as soon as possible. If <br />for any reason the Facility is not completed by December 31, 2001, the CWCB shall not be obligated to <br />fund work performed on the Facility after that date. <br /> <br />3. Design and Construction of Facility, The design and construction of the Facility shall be <br />accomplished in accordance with applicable State procurement requirements and procedures. To the extent <br />compatible with those requirements and procedures, the CWCB staff shall participate in the design and <br />construction of the Facility as follows: <br /> <br />a) The CDOW shall consult with the CWCB staff regarding the selection of an <br />engineer, who shall be registered in the State of Colorado, hereinafter referred to as the <br />Consultant, to prepare plans and specifications for the Facility. The CDOW shall also consult <br />with the CWCB staff regarding the Facility plans and specifications prior to construction bid <br />opening. <br /> <br />. <br /> <br />Page 2 of5 <br />