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HomeMy WebLinkAboutNibbler License Agreement - COM Letters / Memos NIBBLER® LICENSE AGREEMENT Jimmy D's Restaurant Belfair,WA This agreement made between NCS Wastewater Solutions, LLC ("NCS" herein) and Jack Johnson Construction("Licensee" herein) for the patented NIBBLER®treatment process which is to be installed pursuant to separate agreements between the parties at the Jimmy D's Restaurant. Licensee and NCS agree as follows: DEFINITIONS Commonly used indicators of wastewater strength are: BOD5 : Biochemical Oxygen Demand- 5 day test, a procedure that measures the rate at which microorganisms use the oxygen in wastewater while stabilizing decomposable organic matter under aerobic conditions. TSS: Total Suspended Solids, a measurement of solids that either float on the surface of, or are in suspension in, wastewater and which are measurable by laboratory filtering. O&G: Oil & Grease, a measurement of the grease and oil levels in wastewater. pH : A measurement to determine acidity or alkalinity. PPD: Pounds Per Day, the average biological loading over a 24 hour period and is measured by the following calculations: Flow x BOD x 0.00000843 =Total PPD of BOD 1. OWNERSHIP OF LICENSED COMPONENTS. The patented NIBBLER® treatment process shall at all times remain and be the sole and exclusive property of NCS, subject to the right of Licensee to use the licensed property subject to the terms of this agreement. The licensed process shall be used only by Licensee or persons under his direct employ or control and only in a matter consistent with this Agreement, Agreement for Management Services and other related documents executed by the parties hereto. NCS represents and warrants that it has the right to grant a non-exclusive License with respect to United States Patent No. 5,030,353, issued July 9, 1991, for an invention entitled Secondary Treatment System, and described generally as follows: A system whereby secondary wastewater, including high strength wastewater, is treated to reduce the levels of wastewater constituents (BOD5, TSS and O&G) to or below those levels customarily found in residential sewage septic tank effluent. For the purpose of this agreement, reference to " NIBBLER® " does not include the other components of the wastewater treatment/disposal system. As defined herein the other components of the treatment/disposal system such as grease traps, septic tanks, surge tanks and drainfield are not part of the NIBBLER® system. 2. MAINTENANCE AND USE. Licensee agrees at all times to keep the NIBBLER® unit in fully operative condition and maintained in accordance with the Operations &Maintenance Manual and Agreement for Management Services. Licensee further agrees not to use, operate, or maintain the NIBBLER®unit in violation of this or any other agreement between the parties, or in violation of any applicable law or regulation, including federal, state, or local authorities, including, but not limited to, all health regulating agencies rules, regulations, and requirements. 3. TERMS. The License granted hereby shall be for a term of 30 years unless sooner terminated by Licensee upon 60 days written notice to NCS. This agreement may also be terminated because of breach on the part of Licensee or otherwise as provided in this or any related document. This License shall automatically be extended for a second 30 year period unless otherwise terminated as provided herein. Licensee acknowledges that in the event of termination,NCS will notify the appropriate authorities, including local health departments of the fact of termination and that the licensed items may be removed pursuant to the terms of this agreement. Notice of these provisions may be contained in a covenant to run with the land and be recorded in the county in which the NIBBLER®unit . is installed. 4. GRANT OF LICENSE. NCS grants to Licensee on the terms and conditions hereinafter stated the non-exclusive right and License under the aforesaid patent and under any divisions, continuations, and continuations-in-part thereof, and under any patent that may issue thereon or any reissues of extensions thereof, to use the invention described and claimed therein at the Jimmy D's Restaurant located at 24171 NE Highway 3 Belfair WA 98528. 5. ADMINISTRATIVE FEE License Agreement Page 2 of 9 Licensee shall pay to NCS the amount of$200.00 on the first day of the first month following installation of the system. Licensee shall pay to NCS an annual administrative fee each year thereafter based upon the following payment schedule: Years 2 through 10 $250.00 Years 11 through 20 $300.00 Years 21 through 30 $350.00 6. COOPERATION. NCS shall provide Licensee with all requested technical information in relation to the licensed invention, provided that such information is in its possession and not considered confidential by NCS. 7. REPORTING. NCS shall submit copies of written reports, as required by the Management Agreement, to Licensee at quarterly intervals or more frequently if so required by the Management Agreement. Each such report shall include: 1. Amount of flow to the NIBBLER®, 2. Sample effluent waste strength for BOD5, TSS, O&G,pH and temperature, 3. A record of all maintenance performed, 4. Measure dissolved oxygen levels of the effluent, and 5. A measure of the amount of sludge in the NIBBLER® and any further information as set forth in the Management Agreement. 8. TERMINATION FOR BREACH. In the event of breach or default in any of the terms or conditions of this agreement or any agreement related hereto, if Licensee shall become insolvent, bankrupt, subject to receivership, or in the event of sale or sublease without formal assumption of the obligation herein including notice to NCS of such transaction, then and in any such case,NCS shall have the right by thirty(30) days notice in writing to Licensee, to terminate this license, if a cure has not been affected within said period, notwithstanding that any previous breaches or defaults may have been unnoticed, waived, condoned, or cured. 9. BANKRUPTCY. In the event of any adjudication of bankruptcy, appointment of receiver, assignment for the benefit of creditors, or levy of execution directly involving Licensee, this agreement shall thereupon terminate. 10. MONITORING. License Agreement Page 3 of 9 NCS and/or the authorized monitoring entity may attach to each NIBBLER®unit installed gauges or indicators as necessary to measure the volume, strength, temperature, or character of the waste processed through the NIBBLER®unit. Licensee agrees that tampering or interfering in any way with such measuring devices shall constitute breach of this agreement and shall subject Licensee to all remedies available to NCS upon breach, including, but not limited to, notification of appropriate health authorities. 11. NOTICES. Any notices to be given by either party to the other shall be given in writing and faxed, mailed or hand delivered to the addresses below: NCS Wastewater Solutions P O Box 73399 Puyallup, WA 98373 (800) 444-2371 (253) 848-2545 Fax Licensee Jack Johnson Construction PO Box 1119 Belfair, WA 98528 Phone: 360-275-5400 12. CROSS DEFAULT. The parties acknowledge that other documents are being signed or will be signed relating to the NIBBLER®. A breach of the provisions of any of these documents shall be deemed a breach of all other related agreements or documents. 13. ATTORNEY'S FEES. License Agreement Page 4 of 9 In the event of breach of the provisions of this or any related document or agreement, the prevailing party shall be entitled to their reasonable attorney's fees and cost. 14. DISPUTE RESOLUTION. A. Resolution by the Parties. It is the objective of the parties to establish procedures to facilitate the informal and inexpensive resolution of any disputes arising under this contract by mutual cooperation and without resort to litigation. To accomplish this objective, the parties agree to follow the procedures set forth below if and when a dispute arises under this contract. The complaining party shall write a description of the alleged breach of contract and send it to the other party by certified mail. This letter shall explain the nature of the complaint and refer to the relevant sections of the contract upon which the complaint is based. The complaining party shall also set forth a proposed solution to the problem including a specific time frame within which the parties must act. The party receiving the letter must respond in writing within ten (10) days with an explanation, including references to the relevant parts of the contract and response to the proposed resolution. Within ten (10) days of receipt of this response, the parties must meet and discuss options for resolving the dispute. The complaining party must initiate the scheduling of this resolution meeting. B. Mediation. A settlement conference must be held within thirty(30) days of an unsuccessful resolution meeting. The settlement conference will be held at the local office of Judicial Arbitration & Mediation Services, Inc. (JAMS). The complaining party must contact JAMS to schedule the conference. The parties may agree on a retired judge from the JAMS panel. If they are unable to agree, JAMS will provide a list of three available judges and each party may strike one. The remaining judge will serve as the mediator at the settlement conference. C. Arbitration. If the dispute is not settled by other prescribed resolution formats, the parties agree to submit the dispute to JAMS for binding arbitration. The parties may agree on a retired judge from the JAMS panel. If they are unable to agree, JAMS will provide a list of three available judges and each party may strike one. The remaining judge will serve as the arbitrator at the settlement conference. License Agreement Page 5 of 9 f The parties agree that arbitration must be initiated within one year after the claimed breach occurred and that the failure to initiate arbitration within the one year period constitutes an absolute bar to the institution of any new proceedings. The aggrieved party may initiate the arbitration by sending written notice of an intention to arbitrate by registered or certified mail to all parties and to JAMS. The notice must contain a description of the dispute, the amount involved, and the remedy sought. If and when a demand for arbitration is made by either party, the parties agree to execute a Submission Agreement, provided by JAMS, setting forth the rights of the parties if the case is arbitrated and the rules and procedures to be followed at the arbitration-hearing. The complaining party shall be liable for one-half(1/2) of the arbitration fees and the responding party or parties shall pay the remaining one-half(1/2). The parties specifically agree that on-site systems such as the one covered by the agreement are unique and not understood by many engineers and others who would normally qualify as "expert witnesses." Accordingly, the parties specifically agree that resolution of any disputes involving this project shall be done by the arbitrator selecting one or more of the following people as expert witnesses whose testimony shall be deemed controlling. This list may be amended by mutual consent of the parties. Professor A.R. Rubin - North Carolina State University Professor James Converse, Ph.D. -University of Wisconsin Professor Stewart Oakley, Ph.D.. - California State University at Chico Professor Ted L. Loudin - Michigan State University Richard Otis, P.E. - Ayres Associates 15. LIMITED WARRANTY. NCS warrants that when used in accordance with the terms of all agreements provided to Licensee that the NIBBLER®will be free, under normal use and service, from defects in material and workmanship throughout the term of this License. License Agreement Page 6 of 9 The NIBBLER®was sized for this site based upon projected maximum flows estimated at 2475 gallons per day and BOD5 not over 1200 mg/L or 24.8 pounds per day(PPD). Based on these values thirty two (R)NIBBLER®pods shall be adequate to reduce the BOD5 to a level below 200 mg/L which is considered to be the maximum waste strength for which this disposal system is suited. *Refer to Attachment A to determine GPD/BOD maximums and their relationship to PPD of BOD loading, The parties specifically acknowledge that the NIBBLER®may be subject to uses and abuse beyond the control of NCS which can significantly affect the performance of the NIBBLER®. Such abuse includes, but is not limited to, vandalism, power outages and introduction of harmful or excessive materials. Accordingly, NCS's obligation under this Limited Warranty shall be limited to the repair or replacement, at NCS's option, of any part or parts which upon examination are found, in NCS's sole judgment, to have been defective in materials or workmanship. It shall be a condition of NCS's obligation under this Limited Warranty claim that Licensee cooperate fully with NCS to evaluate the cause of the problem. All repairs or maintenance must be performed by NCS or someone qualified and authorized by NCS or NCS's obligations under this Limited Warranty shall be void. 16. LIMITATIONS AND EXCLUSIONS OF REMEDY THIS LIMITED WARRANTY, AND NCS OBLIGATIONS HEREUNDER, ARE IN LIEU OF ANY OTHER WARRANTIES OR OBLIGATIONS OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR USE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION CONTAINED HEREIN. NCS SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES. 17. TRANSFERABILITY OF RIGHTS AND OBLIGATIONS. This agreement shall be binding on and inure to the benefit of the successors of the parties, provided that Licensee may not assign any rights herein without written consent of NCS. 18. GOVERNING LAW. Any questions of law regarding this License Agreement or its effect shall be determined in accordance with the laws of the State of Washington. In the event of dispute, venue for any action shall be in King County, Washington. 19. MONITORING AND MAINTENANCE AS EVIDENCED BY A MANAGEMENT AGREEMENT AND COVENANT. License Agreement Page 7 of 9 A. The NIBBLER® functions by using a living organism and must be regularly maintained and monitored or it will fail to function properly. Such failure may result in the damage to the downstream disposal system. Overloading of the system with improper chemicals, compounds, or other improper substances, or interruption of electrical power to the NIBBLER® system, may cause such damage. Because of the potential damage to the sewage disposal system and in accordance with the approval for the NIBBLER® system by regulating agencies, a monitoring and maintenance program shall be in effect at all times. B. Any entity selected to perform the monitoring and maintenance of the NIBBLER® system must be trained in the monitoring and maintenance of NIBBLER® systems and approved by the state and/or county health regulating agencies as to its competency to perform in that capacity. C. The minimum monitoring/maintenance shall include monitoring four(4) times a year at three (3) month intervals. The monitoring tasks shall include: 1. Check the flow to the NIBBLER®. 2. Sample effluent exiting the NIBBLER® and test for Biochemical Oxygen Demand - 5 day test (BODA Total Suspended Solids (TSS), Oil & Grease (O&G) Dissolved Oxygen (DO), pH and temperature. 3. Perform maintenance as needed with record keeping of all maintenance performed; and 4. Measure sludge levels in NIBBLER®. 5. Check all other components of the system necessary for proper operation of the overall wastewater treatment system. D. The specific terms of the monitoring and maintenance program shall be set forth and agreed to both by Licensee and NCS before the system is activated. E. Licensee shall pay the cost of drafting any additional documents required by the regulating agencies. License Agreement Page 8 of 9 20. TERMINATION. Licensee shall have the right to cancel this agreement on 60 days written notice to NCS. After the effective date of cancellation, NCS shall have the right to retrieve the patented portions of the NIBBLER® and the Licensee shall cooperate in all respects. 21. TERMS OF PAYMENT. Licensee shall pay NCS in full upon receipt of statement, however, such payment shall be made no later that 30 days after completion of the job. Overdue balances shall be charged an additional 1.5%per month, compounded monthly. 22. ADDITIONAL TERMS. A. The NIBBLER®system will not be put into operation until NCS has received full payment for the NIBBLER® system and all other charges relating to the NIBBLER® system and/or disposal system billed by NCS. LICENSEE NCS WASTEWATER JACK JOHNSON CONSTRUCTION SOLUTIONS LLC By By Its Its Date Date License Agreement Page 9 of 9