AGREEMENT FOR THE SALE AND PURCHASE OF SPRING WATER THIS AGREEMENT is entered into as ofthe 33 day of .lo \3 2002, by and between CUCAMONGA COUNTY WATER DISTRICT. 3 public agency ("District"), and NESTL WATERS NORTH AMERICA, INC.. a Delaware corporation - RB TALS: (A) District and Purchaser have signed a letter of intent dated October 28, 1999, which was amended in certain respects by letters dated May 26, 2000 and October 25. 2000, respectively, (collectiVely, the "Letter of Intent") with regard to the possible ptuehase by Purchaser from District of water from Districh "Deer Canyon Springs" (the ?Springs?) which Purchaser would bottle for solo to its customers. The Springs writeuplated herein are referred to as "Tunnel "Thayer Tunnel?, "East Calamity Canyon Diversion" and ?Ten CenyonDiversion?. (B) District and Purchaser have determined that they are prepared pointer A agreement with respect to the design, construction, maintenance and operation of certain facilities regarding the Spring and Purchaser's purchase them District and of water ?-om the Springs (?Spring Water"), and that is the purpose of this Aw?nt. NOW, THEREFORE, in consideration of the preceding recitals and the provisions of the letter of intent, and the mutual covenants hereinafter contained. the parties agree as follows: ARTICLE I BASIC PROVISIONS 1.1 m. This Article I is included in this Agreement as a convenience to summarize the basic obligations and rights of District and Purchaser under this Agreement. Neither Section 1.2. or Section 1.3 is intended or shall be interpreted to in any way to change, qualify or limit the obligations and rights of Purchaser or District that are provided for in the sections of this Agreement which are referenced in Sections 1.2 and 1.3, or in any other section of this Agreomont. SB 3056? VI ?307920.031! 1305613 vl:007920.001l In mhange, District shall be responsible to: The Spring Water shall he made available exclusiVely to Purchaser 62.10)). ARTICLE 11 SALE AND PURCHASE cs WATER Wat . Commcing upon completion ofthc ccnsu?ucticn to the Collection System and the New Delivery System (as identi?ed in Article 111), or if P?uchascr elects to construct a landing facility pmsuant tc Secticn 5.3, commencing on the date when Purchaser commences taking deliveries of Spring Water from loading facility, District shall. pursuant to Section 2.1[b) below. sell exclusively to Spring Water in such quantities as may be requested by Purchaser I. in each fiscal year. Purchaser shall have the exclusive right to take delivery of and purchac the Spn'ng Water ?'cm District for the Term of this Agree- menti and which is obtainable ?-orn the Springs in accordance with applicable law, except that where PurchaSer declines to take delivery of Spring Water. 2 District may take such water into its distribution system and serve it to its municipal and industrial automate for use within its service area. District hereby that Purchaser?s exclusive right to purchase Spring Watar from District is amaccri? term of this District shall not, except as provided above. permit any other person or entity to pquhaec or use any Spring Water or to develop the Springs during the Term of this Agreement. 2.3 mm. District shall bill Purchaser for the meta-ed quantity Spring Water which is received by Purchaser in each calendar month on or before the 15th day of the succeeding month. Purchaser shall pay all such bills by the 30th day following its receipt of the District's invoice. . . 2.4. mgr-41g. For poi-noses of determining the quantities of the Spring Water which Purchaser purchases in each month. District shall purchase and install. at the expense of Purchaser. 3 SB some uncommon as part of the New Delivery System, a meter satisfactory to Purchaser and of adequate size, calibra- tion and volume to accurately measure the quanti?es of the Spring Water which Purchaser receives thmugh the New Delivery System. District shall read such meter at the end of each month and notify Purchaser in each bill to be delivered pursuant to Section 2.3 of the quantity of the Spring Water that was received by Pin-chaser according to the meta- during that month. Purchaser shall have the right to read andlor inspect the rector at any time and from time to tirne and at such intervals as it deter-canes are appropriate and District shall gent access to the meter whenever requested by Purchaser. Purchaser shall also have the right. at its sole cost. to have the meter tested from time to time and at any time during the Term to determine if it is accurately recording the quantities of Spring Water delivered to Purchaser. If the meter is determined by such a test to be operating inaccurately by more than the American Wicc- Works Association standard variability for a func? ticning meter, District shall have the meter repaired or replaced and add the coat thereof to the annual cost of the operation and maintenance of the New Delivery System forpurpeaea of Section 5.1. 2.6 in ddi a career. in a letter dated January 25, 2002 to the District. the California Department of Health Sender-.5 (DES) that water collected from Tunnel A may be represented as ?spring water" in accordance with Federal Food and Drug Administration regulations forbottled water Standards of Identity (21 CFR. 165.110). District agrees to make all reasonable efforts to assist Purchaser in obtaining DHS spring water recognition and rivan source water operator licenses pursuant to California Health Safety Code sections 111070 through 111195 for Thayer Tunnel, East Calamity Canyenpiveraicn and-Fan Canyon Diversion. ARTICLE DESIGN, CONSTRUCTION AND OWNERSHIP OF FACILITIES 53 305613 3.2 MW. District shall. design and eonstmet the improvements to the Collection System and the New Delivery System in seem-dance with plans mid speci?cations approved by'Pttrehaser in advance in writing. District shall, - cooperate and assist thase: in complying with all reasonably necessary or reasonably required anviromnental or regulatory review by local. state and/or federal agencies, and in obtaining all necessary pernn'ts and easements for the construction, operation, maintenance and repair of the Collection System and the New Delivery System. District shall set as lead agency with respect to any environmental or other reviews regarding the construction of the improvements to the Collection System and the New Delivery System when and to the extent it is legally permitted to do so. District shall also cooperate with Purchaser in by issuing all District permits, licenses and other approvaJs that District may require for the relationship and Mentions contemplated herein. Distriet shall take all steps which are reasonably necessary to ensure the protection of the quality and quantity ofthe Springs and Spring Water. 33 305513 91:007910.th 3.4 mean District shall authorize the Design Engineer to proceed with the design of the Collection improvements and the New Delivery System and the preparation of the plans and speci?cations therefor. District and the Design Engineer shall consult ma coordinate with Purchaser as design progresses and Purchaser shall have the right and be afforded the ongoing opportunity to review and approve all preliminary and progress design documents and to attend all meetings between District and the Design Engineer regarding the design of the Collection System improvements and the New Delivery System. The design of the Collection System improvements and the New Delivery System and the plans and speci?cations therefor shall not be deemed to be ?nal until they are approved in writing by both District and Ptu'chaser. 3.5 Contracts. Upon such written approval of the design of the Collection System improvmnents and the New Delivsry System and the plans and speci?cations theretbr by both District and Purchaser, District shall negotiate a contract or contacts and a contract price or prices satisfactory to Pmchaser for the construction of such facilities with a pro-quali?ed contractor or pre- quali?ed contractors who islerc approved in writing by Purchaser. Upon completion of such negotiations, District shall provide a copy of each such contract which shall include the contract price to Purchaser for Pinehaaw?s prior written approval. Purchaser must approve or disapprove of such contracts in writing within 15 {?fteen} business days of Purchaser?s receipt of such contacts. In the event that Purchaser disapprotres any such contract, District shall exercise reasonable e??orts to renegotiate such cone-act to the satisfaction of Purchaser. 3.7 MW. Within 30 (thirty) days after the date when District and Purchaser agree upon the award of a contract or contracts for the construction of the Collection System improvements and the New Delivery System. Piuchaser shall deposit into the Escrow Account an amount equal to ?fty percent of the total amount of the contract price(s) of the contractor or contractors to whom the contract or contracts will-he awarded. The Eacrow Agent shall utiliZe the mount thereof, including interest earnings thereon. for the payment of progress payments to the contractor-(a) as construction progresses. Upon the payment of each pre- gress payment to the contractoris). Escrow Agent shall notify Pincltaser efthe total amount thereof in writing and Purchaser shall deposit into the Escrow Account, within 30 (thirty) days after the date of receipt of each such notice, an amount equal to at least percent of the total balance of the contract price, it being the intent of District and Purchaser that the Barn-ow Account shall at all 6 SB JUSGIJ vttcomcncu times, until the construction of the Collection System improvements and the New Delivery System is riontpleterlIr have available from Pin-chascr?s deposits. together with. the interest coatings thereon, an amount equal to at least ?fty percent of the total balance of the contract price?s) for the construction of the Collection System improvements and the New Delivery System. Purchaser shall deposit into the Escrow Account on amount suf?cient to make ?nal payment to the contractor-(s) at least 10 (ten) days prior to the date that such ?nal payment will be due to the connector?s). Upon completion of the construction of the Collection System improvements and the New Delivery System and when the Escrow Agent has paid the full amount of the contract prices for the construction of such facilities, and when District hes been paid or reimbursed for all costs and expenses which it has advanced and which are to be paid?by Purchasorheremder. the Escrow Agent shall pay any remaining amount ofPurchaset?s deposits and the interest earned thereon to Purchaser. 3.8 W. District shall provide Purchaser with a copy of each progress payment request, together with any supporting documents. Purchaser shall have 10 (ten) days to epprove or disapprove each such payment. If approval or by Purchaser is not made within 10 (ten) days, then District may authorize the Escrow Agent to make the progress payment. 3.9 W. Upon Purchaser?s deposit into the Escrow Account as provided for in Section 3.7. District shall award at contract or contracts for the construction of the Collection System improvements and the New Delivery System to the contractor or contractors jointly selected by District and Purchaser. as provided in Section 3.5, and shall issue a notice or code to proceed to the controctor(s} upon satisfaction by the contractor(s) of the conditions precedent to. the issuance of such a notice, as set forth in the plans and Speci?cations. 3.10 Mon. District shall be responsible for the inspection of the construction ofthe Collection System impmvenrents and the construction of the New Delivery System in accordance with the terms of the construction contract-Ks} and the construction schedule set forth in such cou- Purchaser, its agents. employees and its consultants shall have access to the construction n'tos on an ongoing basis as construction progresses and District shall confer and cooperate with Purchaser and its consultants to melts sure that both the Collection System improvements and the New Delivery System are constructed in accordance with the plans and Speci?cations and construc- tion schedule therefor so that such facilities, when completed, will satisfy Purchaser?s standards, speci?cations and requirements for the delivery of the Spring Water to its bottling plant. 3.11 More. Purchaser shall have the right to make changes in the Collection System improvements andfor the New Delivery System from time to time and at any time as construction progresses by giving District and the connector written direction to make such changes 7 55 3056? "1007920301! (each such change is herein referred to as a "Chsrige Order?) and District shall negotiate with the contractor any changes in the scope of the construction work to accomplish the Change Order and any corresponding increase in the eonhaetor's contract priee in a manner satisfactory to Pmehaser. District shall notify Purchaser in writing of any such negotiated increase in the contract price and Purchaser shall approve or disapprove ofsuch increase in writing within ?ve (5) business days after Purchaser?s receipt of Dian-let's notice. IfPurchaser approves of any such in the contract price. the amount thereof shall he adder! to the contract price ibr purposes of determining the amount of Purchaser's deposits pursuant to Section 3.1. Ii'Purehaser disapproves any such increase in the contract price. Purchaser may revise its requested changes and so notify District in writing, and District shall treat such revised change as anew Charge Order and follow the procedures as set forth herein. 3.12 mm. Upon completion ofthe construction of the Collection System improve- ments and the New Delivery System, and acceptance thereof by District and Master, District shall become the owner oftho Collection System itnprovemts and the New Delivery System without payment by District of any amount to Purchaser. District shall pay all real property __tases and assessments levied upon the Springs, the Collection System or the New Delivery System. However, for the Term of this Agreement, and subject to the provisions of this Agreement. including but not limited to Sections 2.1113) and 4.3, We: shall have the exclusive right to use the Collection System and New Delivery System as provided in this Agreement. ARTICLE IV TEMPORARY RBDIVERSIONS 4.2 Won. Notwithstanding the provisions of Section 4.1, Purchaser may terminate this Agreement and the Term at any time or for any reason by delivering to District written notice oftermina?on 30 (thirty) days in advanee ofthe teonination date selected by Pmehsser. Upon termination oi? this Agreement. neither party shall have any ?n'ther obligation to the other, except for obligations incite-red. prior to the date ofterminntion. In no event shall Purchaser be obligated to restore the Spn'nge, the Collection System or the New Delhrery System to any pro-Agrennt condi- tion. EB 305613 ARTICLE OPERATION AND MAINTENANCE EXPENSES: LEASE OF NEW DELIVERY INTERN LOADING FACILITY 5.1 I ?on once as. Diatriot shall, open-ate and maintain the Collection System and the: Now Delivery System in a good and workman- like manner in accordance with generally aooepted standards among water supply entities in Southern California for the operation and maimananoo of similar facilities. 5.2 MW. on the: date when Pumhaser begins receiving Spring Water through the Now Dolivory Syatmn. Pomhasnr shall have the exclusive: right to use the New Delivery Sysm, including any necessary rights to underlying real property which District holds an of the date of tho gxcoution of this Astana-mt, SB 3055i! vhomzomm 5.3 Loading Facility. If Purchaser elects to do so, Purchaser may construct a loading facility on property to be acquired by PurchaSer receiving Spring Water 1 t. IfPurchaSer elects to construct such loading facility, it shall notify District in writing. and Purchaser shall construct such loading facility; the time of or prior to the construction of the New Delivery System. Purchaser shall acquire the necessary property and complete the construction of the loading facility. At Purchaser's request. District shall cooperate with and assist Purchaser in obtaining the property. easements and permits and complying with all reasonably necessary or required environ? mental or regulatory review by local. state and/or federal agencies with respect to the constitution and/or liberation of such loading facilitv." I ARTICLE VI REPRESENTATIONS AND WARRANTIES 6.1 gg?senta?ons and Warranties. Purchaser hereby represents and warrants that Purchaser has all requisite authority and corporate power to entet into and perform this Agreement. and is not subject to any other agreements. restrictions. easements or other legal . requirements which would prevent Purchaser from entering into and performing its obligations under this Agreement; and (ii) has the appropriate governmental approvals and permits to engage in its business in th State where the Springs are located. 6.2 District's Rates matings and Waggtieg. District hereby represents and warrants as follows: 10 SB 305613 a. W. District has all requisite authority. power and capacity to enter into and perform this Agreement; and (ii) is not precluded by any agreement, oral or written, or by any law, regulation. restriction or other legal requiremmt. from entering inn: and ?il?lling District's obligations under this Agreement. ?ag: Eights. District has the rights to water from the Springs; (ii) develop, collect ancUor transmit the Spring Water to its system; and sell andfor assign the Spring Water to Piuchaser as provided in this Agreement. District shall, at its sole cost and expense; take whatever legal action is reasonably necessary to protect and defend the foregoing rights. e. W. To the District's knowledge, there have not been any spills, disposal, discharge or release of any hazardous materials into. upon or from the property on which the Springs are located or into or upon the Springs. d. m. There arena actions, suits or proceedings pending against or, to the best of District's knowledge, threatened or affecting the Springs the property on which the Springs are located, whether at law or in equity. Nor are there any claims challenging the right of District under its existing licenses and easements to transmit the water from the Springs and into its system. ARTICLE GENERAL PROVISIONS 7.1 District and Purchaser acknowledge and agree that the obliga- tions of the parties under this Agreement are conditioned on District completing proceedings under the California Environmental Quality Act, Section 21000. e: sag, of the Public Resources Code and the expiration of the applicable period for any challenge to the adequacy ofDisuict?s compliance with CEQA without any challenge being ?led. a Purchaser shall select a quali?ed environmental consultant acceptable to District to prepare the underlying documentation for District's review and consideration as may be required by CEQA and applicable law. Purchaser shall direct the quali?ed consultant and both Purchaser and the envirorunontal consultant shall coordinate the preparation of the analysis with District to ensure a full, fair and complete consideratiOn of potential envirorunental impacts. Any submitted by Pureltaser shall be su?cicnt for District to make a fair decision in accordance with applicable law. 11 SB 305513 v! . Purchaser shall also have the right but not the obligation to assume the defense of District in any challenge to a potential approval of the improvements to the Collection System or the New Delivery System or the- adequacy of environmental review. District shall cooperate with Purchaser in any such defame. District and Pmchasor aclotowledge that any modi?cations to the improvements to the Collection System or the New Delivery System resulting horn District?s compliance with CEQA may necessitate to this Agreement in a crucially acceptable manner. Neitherme shall he bound-hereby unless and until District's compliance with CEQA is completed and there is no possibility of a challenge pinsuant to CBQA. 7 .2 Man. The parties acknowledge and agree that this Agreement is subject to the covenant of good faith and fair dealing. 7.3 Legal, Eons. All disputes of any nature whatsoever arising out of this Agrcernent or in connection with the underlying transactions, including but not limited to negotiation or termination of this Agreement. shall be resolved by arbitration. The arbitration shall be governed by the rules ofpractioe and procedure for the arbitration of conuneroial disputes of Judicial Mbitrav lion and Mediation Services, Inc. JAMS/Endisputo shall serve as the arbitrator and the arbitration shall he conducted at the JAMS/Endemic o?oo in California closest to Purchaser. if JAMSIEndisputo is precluded from serving. then the American Arbitration Association will act as arbitrator in Groaned-ch. Cormoc?cut. The parties agree that neither party shall be entitled to request orrccover punitive, exemplary. treble or any other similar form of damages against the other, regardless of the claims raised. In the event of the bringing of any arbitration action by either party against the other party to this Agreement by reason of any breach of any of the covenants. conditions, agreements or provisions on the part of such other party arising out of this Agreement, the party in whose favor ?nal judgment shall be entered shall be entitled to have and recover of and from the other party its actual and reasonable costs and expenses of the arbitration, including reasonable attorneys? fees (or, in the event of any arbitration action to enforce this Agreement, the prevailing party shall be entitled to recover all of its costs and errpenses of the action, including reasonable attorneys' fees), as determined by the arbitrator. 7.4 m. Except as otherwise speci?ed herein, all notices or other communication provided for in this Agreement shall he in writing, and shall he delivered personally. sent by reputable overnight mail equivalent carrier, or sent by registered or certi?ed mail, return receipt requested, postage prepaid, addressed to the person to receive such notice or at the following addresses and shall be effective upon receipt orre?rsal to accept delivery: 12 SB vl 90791110013 If to District: Cuceinonga County Water-District 10440 Ashford Street Rancho Cucarnonga, CA 91730 Attention: General Manager/CEO Telephone: (909) 987-9871 Facsimile: (909) 476-8032 If to Purchaser: Nestle Waters North America. Inc. 5772. Jump: Siret Ontario, CA 91761 Attention: Natural Resource Manager With a copy to: Nestle Waters North America. Inc. 777 West Putnam Avenue Greenwich; CT 06830 Attention: Vice Resident and General Counsel Notice of change of address shall be giVen by written notice in the manner set forth in this sub- section. 7.5 W. This Agreement shall be binding upon and shall inure to the bene?t ofthc par?es and their respective heirs. executors. administrators, successors and assigns. Purchaser shall have the right to assign its rights or delegate any of its obligations or duties under this Agreement without District's consent. Any of this Agreement by District shall require Ptuchaser's prior written consent. litany of the rights grained to Purohnser hereunder are or become subj eat to any mortgage or deed oftrust, District shall use its best efforts to obtnirr and deliver to a subordination agreement from the holder of the mortgage or deed of trust, in form and content reasonably satifsotory to Purchaser, acloiowledging that Purchaser and its successors shall have quiet enjoyment of the rights and interests conferred by this Agreement. provided Purchaser continues to ful?ll its obligations hereunder. 7.6 mm. District and Purchaser ages to execute all reasonable and documents and to take all reasonable actions as may be required in order to consummate the transactions contemplated by this Agreement. 7-7 Access- 3. At all times during the Term of this Agreement, Purchaser and its agents shell 13 53 305613 have unlimited access to the Springs, the Collection System and the New Delivery System for all purposes contemplated by this Agreement. District shall cooperate with Purchaser to obtain those easements necessary for Purchaser to perform its obligations and exercise its rights hereunder. including, without limitation, to develop, collect and/or ttansmit the Spring Watet' to Purchaser?s bottling facilities. b. Dish-lot shall make available to Purchaser and its counsel. accountants, agents, consultants, employees, and representatives all of District?s books, records. properties, agents and consultants for the purpose of reviewing and analyzing the Springs and the Spring Water and related property rights. District shall disclose to and inform PurchaSer of all information know to District concerning the Springs and Spring Water, including, without limita- tion. quality, quantity, contamination in the soils, waters or properties of District, and any hivestigations to detetmine the existence of any such contamination and the result of any such studies conducted within the last ?ve years. 7.8 Wt. This Agreement contains the entire agreement between the parties consenting the subject matter of this Agreement and supersedes any prior agreements, under- standings or negotiations (whether oral or written) including. without limitation, the Letter of Intent. No addition or modi?cation of any term or provision shall be e?'eotive unless set forth in writing and signed by District and Purchaser. 7.9 gm. This Agreement may be executed in sonata-parts, ch of which shall be deemed an original, but all of which, together. shall constitute one and the same 7.10 Several-tiling. If any portion of this Agl'eeinent shall be declared by any court of com- petent jurisdiction to be invalid, illegal or unenforceable, such portion shall .be deemed severed from this Agreement, and the remaining parts of this Agreement shall remain in full force and e?'ect. as fully as though such invalid, illegal or imenforceahle portion had never been part ofthis Agreement. 7.11 Headings. Headings at the beginning of each section and subsection are solely for convenience of reference and are not a part of this Agreement. 7.12 Construction. Whenever the context of this Agreement requires the same, the sin- gular shall include the plural and the masculine, feminine and neuter shall include the others. With- out limitation, any de?ned term used in the plural shall refer to all members of the relevant class. and any de?ned term used in the singular shall refer to any member of the relevant class. This Agree- ment shall not be constme'd as if it had been prepared by one of the parties, but rather as if both parties had prepared it. Unless otheIWise indicated, all references to sections and subsections are to 14 as northwest-920.com this Agreement. All exhibits are incorporated in this Agreement by reference, and the term "Agree- ment" includes such exhibits. If the day on which either party is required to take any action wider- the terms ofthis Agreement is not a business day. the action shall be taken on the next succeeding business day. Any reference in this Agreement to an agreement or other instrument shall mean such agreement or instrument as it may '?orn time to time be supplemented. modi?ed, amended and extended in accordance with the terms of this Agreement. This Agreement is executed and delivered in the State of California and shall be construed and enforced in accordance with. and governed by. the laws of the State of California. 7.13 No ?ing. No waiver by either party of any default by the other party under this Agreement shall be implied from any omission or delay by the nondei?aulting party to take action on account of the default if the default persists or is repeated. Any waiver of any covenant. term or condition contained in this Agt'eenteut must be in writing. Any such express written waiver shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. nor shall it affect any default other than the default expressly made the subject of the waiver. Any such express waiver shall be operative only for the time and to the extent stated in the waiver. The consent or approval by a party to or of any act by the other party shall not be deemed to waive or render unnecessary consent or approval to or of any subsequent act. 7.14 tion . Pin-chaser and District agree that the relationship between th is intended to be and shall at all times remain, in connection with the transactions eon- templated by this Agreement. that of a private party as to Purchaser and a public agency as to and no party is intended to be or shall be continued as apertner, joint venturer. alter ego, manager, controlling person or other business associate or participant of any kind of any other party or any of its af?liates, and no party intends to ever assume such status. 7.15 W. This Agreement shall not be deemed to confer any rights upon my individual or entity which is not a party hereto. and the parties hereto expressly disclaim any such third-party bene?t. 7.16. District and Purchaser agree that any trade secrets, confidential or proprietary htforrnation. literattu'e. data. business and technical htfortnation related to this Agreerrtent sndfor the transactions contemplated hereby will be kept in strict con?dence pursuant to Government Code Sections 54950 and 6254; provided, however. that District expressly authorizes Purchaser to release such htfonnation as is necessary to be included in regulatory applications or disclosure documents related to the transactions contemplated in this Agreement or such information that is otherwise required to be disclosed by applicable law, regulations, judicial or adrninisnative process. The parties agree to implement such systems as are reasonany necessary to maintain the con?den- tiality and proprietary nature ofsuch information. Neither party shall issue a public concurrent-tent consuming this Agreement without the prior written approval of the other party, except as may be required by law. Other than to speci?cally accomplish the purpose and intent of this Agreement. this Agreement, to the extent reasonably possible, shall remain con?dential and shall not be disclosed 15 $3 3056!! without the prior written consent of the other party. 7.17 Effectiveness of The e?'eetiveness of this Agreement and any agreements entered into by the parties shall be expressly contingent upon 7.18 a. Force gj cure. Encept as otherwise provided in this Agreement, each party shall be entitled to an extension of the date of any performance required of such party under this Agreement ifthe failure of the party to duly perform was solely because of a Force Majeure Event {de?ned below); provided, however, that a Force Majeure Event shall not be recognized under this Agreement unless (I) the party seeking to assert such an event gives notice of such event to the other party, which notice shall explain in reasonable detail the nature of the Force Majeure Event. the obligations that have been affected by the Force Majeure Event. and how such Force Majeure Event has impaired the performance of such obligations, and (2) such Force Majeure Event actually and materially impairs the due performance of such party?s obligations and continues for not less than 20 (twenty) consecutive business days. On receipt of the notice of the Force Majeure Event by the other party and the continuation of such Force Majeure Event for 20 (twenty) consecutive days, the performance required of the notifying party shall be excused on a day?by?day basis commencing on the date the notice of the Force Maj cure Event was given until such Force Majeure Event has terminated. Any reciprocal obligations of the other party shall also be temporarily excused for this period of time. Both parties shall make best efforts to end or resolve the Force Maj eure Event. If the Force Majeure Event continues for ?ve years, either party may, on the giving of written notice to the other, rescind this Agreement. A ?Force Majeure Event" shall be an act of God, riot, war, act of terrorism, civil unrest, ?ood, earthquake, or other cause beyond a party's reasonable control (including, without limitation, any mechanical, electronic, or communi- cations failure, but excluding failure caused by a party?s negligence). IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date ?rst above written. SB 305613 16 CUCAMONGA CO WATER DISTRICT 5 3f Presth of 111:: Boh?h'?biractors . ofthe Board 1? Directors NESTLE WATERS NORTH AMERICA. INC.. a Delaware corporation Bani/m Presidant By: 1 1?7 SB