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06/05/2012 04H WWTP Struvite Production Operation/Disposition Agreement with Multiform Harvest Inc. (MHI) ,‘ f_ ., Nu h ' - ' .' , p., . ( -,� . e �a� BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT r f Item No. il 11 For Meeting of: June 5, 2012 ITEM TITLE: Resolution authorizing an Agreement with Multiform Harvest Incorporated (MHI) for the Operation and Product disposition of Struvite Production from the City's Wastewater Treatment Plant (WWTP) SUBMITTED BY: Scott Schafer, Wastewater Division Manager Dean Smith, Wastewater Utility Project Manager CONTACT Dean Smith /575 -6077 PERSON /TELEPHONE: SUMMARY EXPLANATION: The City of Yakima (City) Wastewater Division is nearing the completion of the construction of a Struvite system at the WWTP which removes phosphorus from the wastestream prior to discharge to the Yakima River. The product generated from this process (struvite) is used as a fertilizer due to its high phosphorus concentration. This process will assist the City in complying with future NPDES discharge permit compliance limitations for phosphorous. MHI has the intellectual knowledge and crystallizer- reactor technology for the conversion of phosphorus into struvite. In exchange for providing such technology and assistance to the City, MHI desires to obtain the struvite produced at the WWTP for marketing purposes to others. The attached Agreement between the City and MHI is solely for the purpose of defining responsibilities for the operation and product disposition utilizing a struvite production facility that will beneficially recover phosphorus from the wastestream. The term of this Agreement shall be for ten (10) years, with the option for additional renewable one (1) year terms, dependent upon the mutual agreement of the City and MHI for said renewals. At the end of the first year of this Agreement, MHI and the City agree to review and discuss the following two issues for potential amendment: 1) the possibility of MHI returning a percent of the profits to the City from the sale of the product generated at the WWTP to offset operational costs, and 2) Allowance for a portion of the product to be used by the City on City -owned property for demonstration purposes. Resolution X Ordinance Other (specify) Contract: X Mail to: Keith Bowers, PhD, Multiform Harvest, Inc., 2033 Sixth Ave., Ste 253, Seattle, WA. 98121 -2580 Contract Term: 10 Years Amount: Expiration Date: Insurance Required? No Funding Revenue shall be credited to Wastewater Phone: (206)725 -3305 Source: Operating Fund 473 APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Staff respectfully requests City Council approve the Resolution. BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download 0 Multiform Harvest Agreement Resolution D Struvite Operation Agreement RESOLUTION NO. R -2012- A RESOLUTION authorizing the City Manager to enter into an Agreement between the City of Yakima and Multiform Harvest Incorporated (MHI) for the operation and product disposition of a Struvite Production from the City's Wastewater Treatment Plant (WWTP). WHEREAS, the City of Yakima (City) owns and operates wastewater collection and treatment facilities in accord with applicable Federal, State and Local regulations; and WHEREAS, the City is nearing the completion of the construction of a struvite system at the WWTP to remove phosphorous from the wastestream prior to discharge to the Yakima River; and WHEREAS, the product generated from this process (struvite) is high in phosphorous concentration and will assist the City in complying with future NPDES permit compliance limitations for phosphorous in wastewater discharge; and WHEREAS, phosphorous is recognized as a limited resource that can be reclaimed and utilized as fertilizer, and; WHEREAS, MHI has the intellectual knowledge of a process using crystallizer- reactor technology for the conversion of phosphorous into struvite and in exchange for providing such technology and assistance to the City, MHI shall obtain the struvite produced at the City's WWTP for marketing purposes to others; and WHEREAS, the Agreement between the City and MHI, attached hereto and incorporated herein by this reference, is solely for the purpose of defining responsibilities for the operation and product disposition of a struvite production facility at the WWTP; and WHEREAS, the Agreement allows the City and MHI to negotiate the possibility of returning a percentage of the profits from the sale of struvite to the City to offset a portion of the operational costs, as well as the potential for the use of some of the product on City -owned property; and WHEREAS, it is in the best interest of the City to remove struvite from its wastestream to accomplish NPDES compliance goals, reclaim and reuse the limited phosphorous resource, and potentially offset some operation costs to help stabilize future rates; now therefore; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached and incorporated Agreement between the City and MHI to provide for the operation and product disposition resulting from a Struvite Production facility at the City's WWTP. ADOPTED BY THE CITY COUNCIL this 5 day of June, 2012. ATTEST. Micah Cawley, Mayor Sonya Claar -Tee, City Clerk STRUVITE PRODUCTION FACILITY TECHNOLOGY & PRODUCT DISPOSITION SERVICES AGREEMENT THIS AGREEMENT is made and entered into this day of 2012, by and between the City of Yakima, a Washington municipal corporation, hereinafter called "Yakima ", and Multiform Harvest Inc, a Washington corporation, hereinafter called "MHI ", for the purpose of defining responsibilities for the operation and product disposition of a Struvite Production Facility (SPF) which will beneficially recover phosphorus from Yakima's Wastewater Treatment Facility (YWWTF). WITNESSETH • WHEREAS, Yakima owns and operates a wastewater treatment and collection system which is subject to National Pollutant Discharge Elimination System (NPDES) permits issued by the Washington State Department of Ecology; and WHEREAS, the NPDES permits allow Yakima to discharge treated wastewater from the Yakima owned and operated Wastewater Treatment Plant (WWTP) into the Yakima River subject to permit and regulatory conditions; and WHEREAS, The Clean Water Act, as part of a nationwide focus on nutrient reduction, may soon require phosphorous reduction by dischargers, including Yakima; and WHEREAS, the technology to recover and beneficially utilize phosphorus from municipal wastewater is a new and emerging field of science and discovery; and WHEREAS, MHI has intellectual knowledge and property using crystallizer - reactor technology for wastewater treatment to convert phosphorus into struvite, a process which may assist Yakima in complying with future NPDES discharge permit compliance limitations; and WHEREAS, MHI is a key member of the Design team working with Yakima to provide design, startup and commissioning of a SPF; and WHEREAS, MHI, as a key member of the Design team, will be responsible for startup and performance testing of the SPF; and WHEREAS, in exchange for providing the technology and assistance to Yakima that is necessary to extract the struvite during the wastewater treatment process MHI desires to obtain the struvite produced at the SPF for marketing to others; and WHEREAS, MHI wishes, to the maximum extent legally possible, to protect and preserve MHI's current patent rights related technology and Trade Secrets; NOW, THEREFORE, in consideration of the foregoing premises, it is agreedby the parties hereto: A. SERVICES OVERVIEW The Services that are subject to this Agreement may be provided in a single phase involving the use of the completed and commissioned SPF built under the Design and Construction agreements to produce struvite using the Estimated Startup Loads as described by the municipality. B. TERM The term of this Agreement shall be for ten (10) years, with the option for additional renewable one (1) year terms, dependent upon the mutual agreement of Yakima and MHI for said renewals. At the end of the first year of this agreement MHI and Yakima agree to review and discuss the following two issues for potential amendment: 1) the possibility of MHI returning a percent of the profits from the sale of the product generated at the YRWWTP to offset operational costs, and 2) Allowance for a portion of the product to be used by Yakima on City -owned property for demonstration purposes. Any other negotiations regarding this agreement during the term of this Agreement may be initiated by either party by providing written notice of the intent to do so. If either party wishes to seek an extension of this Agreement following the initial ten year term, said party shall provide written notice of such intent to the other party no less than ninety (90) days prior to expiration of the existing Agreement. Any annual renewals of this Agreement shall be executed prior to the expiration date of the underlying Agreement and shall be subject to the mutual agreement of the parties to the terms. C. PHASE 1 SERVICES 1. MHI RESPONSIBILITIES a. MHI will cooperate with Yakima and provide technical assistance to: 1. Train Yakima staff to operate the facilities; 2. Establish operational parameters; 3. Provide Standard Operating Procedures Manual; 4. Troubleshoot to resolve operational issues; 5. Provide Yakima a royalty -free license to MHI technology for as long as the struvite extraction equipment remains operational b. MHI shall be responsible for the disposal of all struvite generated by the SPF. MHI shall remove from Yakima's WWTP and haul for further process, including all costs of on -site and off -site treatment, all equipment necessary for treatment and all personnel necessary to provide pre and post- transport treatment, all at MHI's sole cost and risk, as shall be necessary to produce a safely transportable product. MHI shall be 2 responsible for all regulatory requirements related to transport and disposition of the product, together with all aspects of marketing the struvite as MHI deems appropriate. Yakima agrees to store a maximum of twenty (20) tons or one semi -truck load, whichever volume is less, of struvite on -site at the WWTP pending MHI taking possession of the material. Yakima will assume all risks associated with the storage of the struvite up to the point when MHI takes possession for any necessary pre- treatment and/or transport. Yakima shall have no obligation to dispose of the struvite or to store struvite in excess of the quantity stated above. MHI shall remove the stored material from Yakima's property within thirty (30) days of written notification to do so by Yakima, which written notification may include e -mail. If the struvite is not removed in accord with these terms Yakima shall dispose of the product as it sees fit. Two or more consecutive failures to remove the stored struvite when requested shall be considered a breach of the contract terms subject to the notification and potential contract termination procedure set forth in this Agreement. c. MHI agrees that it is an independent contractor and is not an employee of Yakima; and further agrees that all labor and services provided to Yakima shall be provided at no cost to Yakima. 2. YAKIMA RESPONSIBILITIES a. Yakima agrees to: 1. Provide qualified personnel and other necessary resources to enable the operation and maintenance of the Struvite Production Facility; 2. Operate the SPF generally in conformance with protocols and standards developed cooperatively by Yakima and MHI. Yakima, in its sole discretion, may modify and /or operate the test facility in a manner it deems necessary for safe and proper treatment plant operations. The parties agree that Yakima makes no promise or warranty whatsoever as to the amount of struvite the WWTP will produce at any time during the term of this Agreement and the quantity of struvite that is produced shall not be considered as a basis for non - performance of this Agreement. 3. Grant MHI the right to take all struvite derived from the Struvite Production Facility. Yakima will provide reasonable accommodations to MHI for storing the struvite product. If MHI fails to remove the struvite as agreed by the terms of this Agreement, Yakima may, at its discretion, take possession of the struvite in excess of the storage terms set forth in paragraph C(1)(b) herein and dispose of it as it deems appropriate. 3 However, Yakima shall have no obligation to dispose of the struvite. 4. Cooperate with MHI to protect MHI's intellectual property rights associated with the development and operation of the SPF. Yakima will share all information and data developed by it during Phase 1 with MHI at no cost to MHI. b. Yakima may, for operational, regulatory or safety reasons as determined in its sole discretion, choose to discontinue operation of the SPF after providing MHI with written notification thirty (30) days prior to suspension of operations. D. TERMINATION Either party may terminate this Agreement at any time for reasons that may include, but are not specifically limited to 1) the necessity to preserve • public health and safety, 2) to comply with environmental mandates, 3) failure of the equipment and /or technology to meet acceptable design performance expectations and/or 4) to meet regulatory restrictions that may affect the conditions and obligations set forth herein, by providing at least one - hundred eighty (180) days written notice to the other party of the intent to terminate, said notice to include the basis for said termination. If this Agreement is terminated prior to the expiration of the initial ten -year term for reasons other than equipment or technology performance failure, the parties agree that they will participate in a negotiated resolution of any justified losses in anticipated economic benefits. Further, either party's failure to comply with the terms and conditions of this Agreement shall be considered a breach of the Agreement. Any such breach that is not corrected by the breaching party within fifteen (15) days of receipt of written notification of said breach shall be cause for immediate termination of this Agreement. Upon termination, all obligatons under this Agreement by either party shall cease. E. INTELLECTIONAL PROPERTY RIGHTS 1. PREEXISTING INTELLECTUAL PROPERTY. All Intellectual Property Rights existing as of the effective date of this Agreement shall remain the property of the party owning such Intellectual Property Rights as of the effective date. 2. DEVELOPED INTELLECTUAL PROPERTY. Any Intellectual Property Rights associated with the Struvite Production Facility developed, created, conceived, originated or invented on or after the effective date of this Agreement by either party pursuant to this Agreement shall be owned by MHI subject to the continued right of Yakima to use those Rights without cost. Yakima may be named as an inventor or co- inventor in any applications for Patents arising from such Intellectual Property Rights, consistent with the requirements of applicable patent law. Any such invention shall be assigned to MHI subject to the continued right of Yakima to use such invention without cost. 4 3. INTELLECTUAL PROPERTY PROTECTION. Yakima (including all of its employees) will cooperate with respect to preparing, filing and processing applications and other documents that may be necessary to secure or protect Patents based on inventions developed, created, conceived, originated or invented on or after the Effective Date by either party pursuant to this Agreement. All such applications and other filings will be in the name of, and for the benefit of, MHI. Any enforcement action that MHI may deem necessary to protect any patent or patent rights claimed by MHI shall be solely the responsibility of MHI to prosecute and shall not obligate Yakima in any way to participate in said enforcement action. 4. FURTHER ASSURANCES. Each party will, at the request of the other party, execute and deliver all reasonable instruments and other documents for the requesting party's exercise of its rights with respect to any Intellectual Property Rights, including the procurement, maintenance and enforcement of any Patent. F. CONFIDENTIALITY 1. CONFIDENTIAL INFORMATION. Each party acknowledges that certain Confidential Information and Confidential Materials may be made available to Yakima by MHI solely for the purpose of performing its obligations under this Agreement. Other than as required hereunder or by law, including but not limited to the Washington Public Records Act, neither party will use, disclose, disseminate or distribute any Confidential Information or Confidential Materials of the other party without the other party's prior written consent. All patent data will be protected as Confidential Information under the terms of this Agreement. For purposes of this Agreement, "Confidential Information" means non - public information that either party designates as being confidential or which under the circumstances surrounding disclosure ought to be treated as confidential. "Confidential Information" includes, without limitation, any trade secret or other information of MHI that is not generally available to the public, whether of a technical, business or other nature (including information relating to trade secrets, source and object code, data, forms, technology, software, services, designs, techniques, methodologies, business plans, purchasing, accounting, finances, marketing plans, and information about MHI 's customers, suppliers, prospects or other affairs), whether relating to current, under development or pending activities. Confidential Information also includes any information that has been made available to MHI by third parties that MHI is obligated to keep confidential. Confidential Information does not include any information that the receiving party can prove: (a) is already known to the receiving party without an obligation to maintain the same as confidential; (b) became publicly known through no wrongful act of the receiving party; (c) is rightfully received from a third party without breach of an obligation of confidentiality owed to the disclosing party; (d) is independently developed by the receiving party without any use or reference to the Confidential Information of the disclosing party;, or (e) is 5 required by law to be disclosed. For purposes of this Agreement, "Confidential Materials" means any document, diskette, tape, writing or other tangible item that contains any Confidential Information, whether in printed, handwritten, coded, magnetic or other form. 2. PROTECTION OF CONFIDENTIAL INFORMATION. To the extent permitted by law, each party will protect any Confidential Information and Confidential Materials it receives from the other party from any unauthorized use, disclosure, copying, dissemination or distribution. Without limitation of the foregoing, each party will: (a) make the Confidential Information and Confidential Materials available only to those employees, consultants and subcontractors (including the employees, consultants and subcontractors of Affiliates) who have a need to know the same for the purposes set forth herein, and who are subject to a legally binding confidentiality obligation; (b) not disclose the Confidential Information or Confidential Materials to any Third Party (other than the entities specified in Section F.(2)(a); (c) make or copy the Confidential Information and Confidential Materials only as reasonably required under this Agreement; and (d) not remove or obliterate markings (if any) on Confidential Information or Confidential Materials indicating its proprietary or confidential nature. 3. REQUIRED DISCLOSURES. Notwithstanding Section F.(2), each party may disclose or produce any Confidential Information or Confidential Materials if and to the extent required by any specific provision of law, discovery request, subpoena, court order, securities authority or governmental action, provided that the disclosing party gives the other party reasonable advance notice of the same to afford the other party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure. 4. OWNERSHIP OF CONFIDENTIAL INFORMATION. Except as expressly provided herein, this Agreement will not be interpreted or construed as granting any license or other right under any Intellectual Property Rights. Each party reserves without prejudice the ability to protect its rights under any such patents, copyright, trademarks, trade secrets or other proprietary right except as otherwise provided herein. G. NO OTHER CONSIDERATION Except as specified herein, neither Yakima nor MHI will be entitled to any other benefit, monetary or otherwise, in consideration of Yakima's or MHI's performance of its obligations under this Agreement. Further, except as specifically set forth in this Agreement, or as may be mutually agreed in writing during the term, each party shall be solely responsible for the costs it incurs in performing its obligations under this Agreement. H. COMPLIANCE WITH LAWS 6 MHI shall comply with all laws, orders, and regulations of federal, state and municipal authorities, and, at its sole expense, shall obtain all licenses and permits which are required for the performance of its obligations under this Agreement. I. INDEMNITY BY YAKIMA Yakima shall indemnify and save and hold harmless MHI from and for any and all losses, claims, actions or judgments for damages or injuries to persons or property or losses and expenses, including reasonable attorney fees, caused by or incurred as a result of the negligent actions. of Yakima, its elected officers, servants, agents, employees, and independent contractors or any other person, firm, partnership, company, corporation or association hired, retained or employed by Yakima to perform or to do any act or thing herein required of Yakima under this Agreement, resulting from the performance of this Agreement. • J. INDEMNITY BY MHI MHI shall indemnify and save and hold harmless Yakima from and for any and all losses, claims, actions or judgments for damages or injuries to persons or property or losses and expenses, including attorney fees, caused by or incurred as a result of the negligent actions of MHI, its servants, agents, employees and independent contractors or any other person, firm, partnership, company, corporation or association hired, retained or employed by MHI to perform or to do any act or thing herein required of MHI under this Agreement, resulting from the performance of this Agreement. MHI further indemnifies Yakima from all risks whatsoever, including but not limited to claims and alleged damages associated with the handling, processing, transporting, distributing, marketing, application and commercial use of struvite material, in the form it is in as received from Yakima by MHI as well as in any other form it may take through any process ultimately affected upon it by MHI. K. CAP ON LIABILITY. Notwithstanding any other provision contained in this agreement, neither party's maximum aggregate liability to the other for any and all claims arising out of or in connection with this agreement, its termination or expiration, whether such liability arises from any claim based upon contract, warranty, tort, failure of essential purpose, trade usage or otherwise, will in any case exceed fifty thousand dollars ($50,000), unless such claim is found by a court of competent jurisdiction to be a result of such party's negligence or willful misconduct. L. INSURANCE. At all times during performance of the Services, MHI shall secure and maintain in effect insurance to protect Yakima and MHI from and against all claims, damages, losses, and expenses arising out of or resulting from the performance of this Contract. MHI shall provide and maintain in force insurance in limits no less than that stated below, as 7 applicable. Yakima reserves the right to require higher limits should it deem it necessary in the best interest of the public. 1. Commercial General Liability Insurance. Before this Contract is fully executed by the parties, MHI shall provide Yakima with a certificate of insurance as proof of commercial liability insurance and commercial umbrella liability insurance with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) general aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall nameYakima, its elected officials, officers, agents, employees, and volunteers as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving Yakima thirty (30) calendar days prior written notice (any language in the clause to the effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent). The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. 2. Commercial Automobile Liability Insurance. a. If MHI owns any vehicles, before this Agreement is fully executed by the parties, MHI shall provide Yakima with a certificate of insurance as proof of commercial automobile liability insurance and commercial umbrella liability insurance with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage. Automobile liability will apply to "Any Auto" and be shown on the certificate. b. If MHI does not own any vehicles, only "Non -owned and Hired Automobile Liability" will be required and may be added to the commercial liability coverage at the same limits as required in that section of this Agreement, which is Section L(1) entitled "Commercial General Liability Insurance ". c. Under either situation described above in Section 2.a and Section 2.b, the required certificate of insurance shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name Yakima, its elected officials, officers, agents, employees, and volunteers as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving Yakima thirty (30) calendar days prior written notice (any language in the clause to the 8 effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent). The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. 3. Worker's Compensation. Statutory workers' compensation and employer's liability insurance as required by state law. 4. Professional Liability Coverage. Before this Agreement is fully executed by the parties, MHI shall provide Yakima with a certificate of insurance as proof of professional liability coverage with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per claim combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall contain a clause that the insurer will not cancel or change the insurance without first giving Yakima thirty (30) calendar days prior written notice (any language in the clause to the effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent). The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide. If the policy is written on a claims made basis the coverage will continue in force for an additional two years after the completion of this contract. Failure of either or all of the additional insureds to report a claim under such insurance shall not prejudice the rights of Yakima, its officers, employees, agents, and representatives there under. Yakima and Yakima's elected officials, officers, principals, employees, representatives, and agents shall have no obligation for payment of premiums because of being named as additional insureds under such insurance. None of the policies issued pursuant to the requirements contained herein shall be canceled, allowed to expire, or changed in any manner that affects the rights of Yakima until thirty (30) days after written notice to Yakima of such intended cancellation, expiration or change. M. NO ASSIGNMENT No party to this Agreement shall assign any portion of this Agreement or any privilege hereunder, either voluntarily or involuntarily, without the prior written consent of the other party. N. BINDING ON SUCCESSORS 9 This Agreement shall be binding upon and shall inure to the benefit of the successors of the parties hereto. O. RELATIONSHIP OF THE PARTIES Each party is and shall perform its obligations under this Agreement as an independent contractor and, as such, shall have and maintain complete control over and responsibility for all of its respective employees, agents and operations. P. ENTIRE AGREEMENT This Agreement is the final, complete and exclusive statement of the parties with relation to the subject matter of this Agreement, it being understood that there are no oral representations, understandings or agreements covering the same subject matter as this Agreement. This Agreement supersedes, and cannot be varied, contradicted or supplemented by evidence of, any prior or contemporaneous discussions, correspondence, or oral or written agreements of any kind. Q. NOTICES All notices or other communications required or permitted hereunder shall be in writing and may be given by depositing the same in United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, by overnight courier or by delivering the same in person to such party. If to Yakima: Attn: Scott Schafer Wastewater Division Manager, Wastewater Treatment Plant 2220 East Viola Yakima, WA 98901 If to MHI: Attn: Keith Bowers, PhD Multiform Harvest, Inc 2033 Sixth Ave, Ste 253 Seattle, WA 98121 -2580 206 - 725 -3305 (office), 206 - 920 -3557 (cell) Notice shall be deemed given and effective the day personally delivered, the day after being sent by overnight courier, subject to signature verification, and three business days after the deposit in the U.S. mail of a writing addressed as above and sent first class mail, registered or certified, return receipt requested. Any party may change the address for notice by notifying the other party of such change in writing, and in accordance with this Section. R. GOVERNING LAW - VENUE i0 This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to any choice or conflict of law provision or rule (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Washington. Any legal action taken to enforce the provisions of this Agreement shall be maintained in a court of competent jurisdiction in Yakima County, Washington. S. ATTORNEYS' FEES Should any litigation be commenced between the parties under this Agreement, the successful party in such litigation shall be entitled to recover, in addition to such other relief as the court may award, its reasonable attorneys' fees, expert witness fees, litigation related expenses, and court or other costs incurred in such litigation or proceeding. For purposes of this clause, the term "successful party" means the net winner of the dispute, taking into account the claims pursued, the claims on which the pursuing party was successful, the amount of money sought, the amount of money awarded, and offsets or counterclaims pursued (successfully or unsuccessfully) by the other party. If a written settlement offer is rejected and the judgment or award finally obtained is equal to or more favorable to the offeror than an offer made in writing to settle, the offeror is deemed to be the successful party from the date of the offer forward. T. FORCE MAJEURE If either party is delayed or prevented from the performance of any act required in this Agreement by acts of God, strikes, lockouts, labor disputes, civil disorder, acts of terrorism or other causes without fault and beyond the reasonable control of the party obligated, performance of such act shall be excused for the period of the delay. U. SEVERABILITY In case any provision of this Agreement shall be invalid, illegal or unenforceable, it shall, to the extent possible, be modified in such manner as to be valid, legal and enforceable but so as most nearly to retain the intent of the parties. If such modification is not possible, such provision shall be severed from this Agreement. In either case the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. 11 IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by their duly authorized officers the day and year first above written. Multiform Harvest, Inc By: Its: President Date Attest: CITY OF YAKIMA By: Michael A. Morales, Interim C.M. Date 12