Filed by Bowne Pure Compliance



 




Exhibit 10.22


WATER USE AGREEMENT

(Eldorado
Artesian Springs, Inc.)


THIS AGREEMENT is made
this 16th day of October, 2007, by and between the City of Louisville, a
Colorado home rule municipal corporation (hereinafter referred to as the
“City”), and ELDORADO ARTESIAN SPRINGS, INC., a Colorado
corporation (hereinafter referred to as “EAS”).


WITNESETH:


WHEREAS, EAS is the
owner of certain real property located at 1783 Dogwood Street, Louisville,
Colorado, which is legally described as Lot 2A, Block 1, The Park at CTC Replat
B and which property is located in the Colorado Technological Center (the
“Property”); and


WHEREAS, EAS operates
a bottling facility at the Property and has requested permission to bottle for
sale water received from the City water system; and


WHEREAS, EAS
acknowledges that City requirements, including but not limited to
Chapter 13.08 of the Louisville Municipal Code and the final PUD
development plan for the facility, require EAS to obtain permission from the
City for bottling and sale of City water; and


WHEREAS, the City is
willing to allow EAS to bottle and sell City water for a limited period of time
and upon terms and conditions of this Water Use Agreement and applicable City
ordinances, rules, regulations, specifications and policies, as amended and in
effect from time to time; and


NOW, THEREFORE, for
and in consideration of the recitals, promises and covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, EAS and the City agree as follows:


1.   Incorporation of Recitals. The foregoing recitals are incorporated into
this Agreement.


2.   Bottling
Use Allowed. The City agrees that, for the five-year period commencing
January 1, 2008, EAS may bottle for sale City potable water delivered to
Property. EAS may bottle not more than 75 acre feet of City water per year, and
shall not be permitted to carry over to any subsequent year any unused
allocation from a prior year. EAS agrees that upon expiration of such five-year
term, or upon earlier termination of this Agreement as provided herein, it
shall discontinued any bottling of City water and will disable the means by
which City water is bottled.


3.   Water
Facilities. Water used for bottling shall be delivered through and taken
from a City tap and water service connection. Any taps, lines, valves and other
facilities required for such use or service to the Property and located on the
Property (collectively the “Facilities”) shall be installed at
EAS’s sole expense and in accordance with the ordinances, rules,
regulations, specifications and policies of the City, as amended and in effect
from time to time. The City will provide any necessary meter and appurtenances.
All facilities for water service to the Property (excluding the City meter)
from the City shutoff shall be private facilities owned, operated, maintained,
repaired and replaced by EAS at its sole expense.


  


 









 





4.   Compliance with Laws; Payment of Fees. EAS agrees to comply with this
Agreement and all ordinances, rules, regulations, specifications and policies
of the City applicable to City water service, as amended and in effect from
time to time. EAS shall timely pay for the water delivered all rates, tolls,
charges, tap fees and other fees set by the City at then-applicable rates.
Throughout the term of this Agreement the City reserves the right to modify
City water rates, tolls, charges, and fees through enactments of generally
applicability to like classes and types of water users. Further, EAS
acknowledges that any bottling of City water after expiration or termination of
this Agreement must be authorized by separate written agreement with the City,
and that any such future agreement may require the payment of differential
rates, tolls, charges, and fees specific to the use of City water for bottling
purposes. Nothing in this Agreement shall limit or impair the utility
rate-setting authority of the City.


5.   Permits;
Easements. EAS shall secure at its sole expense any necessary City, County,
State, or federal permits, licenses, and temporary or permanent easements
necessary for the construction, operation, maintenance, repair and replacement
of the Facilities.


6.   Metering
and Monitoring. Water service to the Property shall be individually
metered. EAS shall allow City representatives to access the Property and the
EAS facility, and shall allow the City to install measuring and other devices
on water Facilities, for monitoring of water use by EAS and for monitoring
compliance with this Agreement. EAS agrees to provide the City with information
regarding its water use and bottling operations, at times requested by the
City, and to cooperate with the City in measuring water uses and monitoring
compliance hereunder.


7.   Limitations on Water Use and Service. EAS acknowledges that the water
supplied to the Property may require additional treatment beyond normal City
treatment. EAS at its sole expense shall be responsible for any additional
treatment desired beyond normal City treatment. EAS further acknowledges that
water service is provided on an interruptible basis and that the City may
interrupt water service to the Property for reasons including, but not limited
to, failure of supply, drought, failure of mains or the City facilities, or
causes beyond the control of the City. EAS further acknowledges that City water
service is on a first-come, first-serve basis with other water customers of the
City water system. By this Agreement, EAS shall not receive any preference for
or assurance of the availability of water service from the City. EAS
specifically agrees that the City shall not be liable for any damages caused or
resulting from any interruption of water service or the limitations on water
service contained in this Agreement, and hereby releases the City from any such
damages and liability.


9.   Rights Personal. The
permission hereunder for EAS to bottle City water for sale is personal to
EAS,
and EAS shall not assign, pledge, encumber, hypothecate or delegate
this Agreement or any portion hereof without the
City’s prior written
consent, which consent may be granted or withheld in the City’s sole
discretion. Any purported
assignment, pledge, encumbrance, hypothecation,
or delegation made without such prior written consent of the City 3
shall be of no force or effect.


  


2









 





10.   Indemnity and Release. EAS, for itself and its successors and assigns,
hereby agrees to release, discharge, defend, indemnify, protect, and hold the
City, its employees, agents, and officers free and harmless from any and all
claims, demands, actions, liabilities, damages, losses, costs, and expenses,
caused or occasioned by any intentional or negligent acts, representations, or
omissions of EAS or its employees, agents, officers, contractors, or
distributors and (1) arising out of the failure to perform any of the
terms, conditions, and obligations described in and arising from this
Agreement; (2) arising out of any treatment, bottling, sale or
distribution by EAS of City water; or (3) otherwise arising out of or
being connected with performance or nonperformance under this Agreement,
including without limitation claims of injury, illness, death, property damage,
or lost profits. This indemnification shall include, but not be limited to,
attorneys’ fees, paralegal fees, expert witness costs, court costs, and
settlement amounts paid in payment of claims and satisfaction of judgments. In
executing this Agreement, the City in no way waives or intends to waive the
limitations on liability which are provided to the City and its employees under
the Colorado Governmental Immunity Act, C.R.S. ‘ 24-10-101 et. seq.


11.   Amendment. This Agreement may not be amended except by subsequent
written agreement of the parties.


12.   Notice.
All notices, demands, requests, consents, approvals, offers, statements,
and other instruments or communications required or permitted to be given
hereunder shall be in writing and shall be deemed to be effective upon hand
delivery, upon facsimile receipt, or seventy-two (72) hours after mailing
by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:


	 	 	 
	
If to EAS: 

	 	Eldorado Artesian Springs, Inc.

attn: Douglas A. Larson,

President P.O. Box 445

Eldorado Springs, CO 80025

fax:

 

	
If to the City: 

	 	City Manager

City of Louisville

749 Main Street

Louisville, CO 80027

fax: 303-673-9043





13.   Venue.
The venue for any dispute under this Agreement shall be the District Court
in and for the County of Boulder, State of Colorado.


 


3









 





IN WITNESS WHEREOF,
the parties have executed this Agreement in duplicate originals on the day and
year first written above.



	 	 	 
	 	CITY OF LOUISVILLE

 
	 	By:   	/s/ Don Brown, Jr.
	 	 	Don Brown, Jr., Mayor Pro Tem
	 
	ATTEST: 	 
	 
	/s/ Nancy Varra, City Clerk	 
	 	 

 

ELDORADO ARTESIAN SPRINGS, INC.,

a Colorado corporation

	 
	 	By:   	/s/ Douglas A. Larson, President
	 	   	Douglas A. Larson, President 






	 	 	 	 	 
	ACKNOWLEDGMENT

 

STATE OF COLORADO
	 	)	 	 
	 
	 	)ss
	
COUNTY OF BOULDER

	 	)	 	 





The foregoing
instrument was acknowledged before me this 16th day of November, 2007, by
Douglas A. Larson, President, Eldorado Artesian Springs, Inc., a Colorado
corporation partnership.


	 	 	 
	
 

My commission expires on: February 7, 2009 

	 	Witness my hand and official seal. 
	
 

	 	 
	
(S E A L) 

	 	/s/ Destiny Phoenix

Notary Public









  


4