HomeMy WebLinkAbout06/05/2012 04H WWTP Struvite Production Operation/Disposition Agreement with Multiform Harvest Inc. (MHI) ,‘ f_ ., Nu
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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
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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
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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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