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<br />b. <br /> <br />Water deliv~ through the Pipeline shaH only be ben!iallY used. whetherrhe use <br />is by direct diversion. by exchange or otherwise. in accordance with the cerms of chis <br />Concract: che W acerConservancy Act of Colorado. c.R.S. 99 37 ...is-tO I ~, g 37- <br />33-106; the cuIes, regulations and policies of the Board; and the Colorado-Big <br />Thompson Project Repayment Contract between the District and the United Scates <br />of America dated July 5, 1938, if applicable, or as otherwise allowed with the <br />Board's consent. <br /> <br />4. <br /> <br />SWSP Enterorise Ownershiu. Oueration and Maintenance. <br /> <br />a. <br /> <br />The SWSP Enterprise shall own, conscruct. operate, maintain. replace and repair the <br />Pipeline, subject to the Allonee' s perpetual. vested right to possession of thaI portion <br />of the capacity of the Pipeline alloc:l.ted herein. To tbis end the SWSP Enterprise <br />shall be responsible for all planning. scheduling. right-of-way acquisition, <br />conscruction and engineering contracts relating to the Pipeline; any required permits. <br />impact statements and other procedural or substantive matters ne::essary for <br />completion of the Pipeline; and all operation., maintenance, and replacement of the <br />Pipeline. <br /> <br />b. <br /> <br />The SWSP Enterprise covenants to prudently design. conscruct, operare, maintain, <br />repair and replace the Pipeline in good faith for the benefit of the Alionee and the <br />other Participants. SWSP Enterprise acknowledges thaI Allonee is relying upon this <br />covenant of SWSP Enterprise in executing this Contract and in making payment of <br />all amounts due hereunder. SWSP Enterprise and the Allorree agree thaI non- <br />performance by SWSP Enrerprise of its obligations to design, conscruct, operate, <br />maintain. repair and replace the Pipeline shall result in damages to Allorree which <br />will be difficult to calculate and for which there may not be an adequate remedy at <br />law. Therefore, SWSP Enterprise and Allonee agree thac, so long as the Participants <br />have provided SWSP Enterprise adequate funds to design, conscruct, operate, <br />maintain, repair and replace the Pipeline under this Contract, in the event of non- <br />. performance by SWSp Enterprise, Allonee shall have the right to a remedy of <br />specific performance to require SWSP Enterprise to perform its obligations as set <br />forth herein or the right to damages, or both. Tne SWSP Enterprise's financial <br />obligations to design. conscruct, operate, maintain, repair and replace the Pipeline <br />under this Contract shall be payable solely out of the assets and revenues of the <br />SWSP Enrerprise; provided., however. SWSP Enterorise shall be liable for its <br />negligence or gross negligence. The Allocree does not waive any right of action that <br />it may have against the SWSP Enterprise or the District for liability arising from tort, <br />subjeCt and pursuant to applicable law. In no event shall the SWSP Emerprise be <br />required to expend any money from taxes which is in violation of Section 20(4) of <br />Article X of the Colorado Constitution in the performance of its obligations under <br />this Contract or which would cause SWSP Enterprise to lose its enterprise status as <br />such statUS is defmed in the Colorado Constitution. <br /> <br />MANAGEYlENT/AGREE:YfE'iTS/AllOTMNT.FMG 6 <br />