CARROUSEL-BARDENPHO SYSTEM USE AGREEMENT
)-
I
I
CARROUSEL@-BARDENPHO SYSTEM USER AGREEMENT
This confirmatory AGREEMENT, by and between EIMCO PROCESS EQUIPMENT COMPANY
with offices at 669 West Second South, Salt Lake City, Utah 84110 (the "LICENSOR"
or "EIMCO") and the city of Clearwater, Florida (the " LICENSEE" or
"OWNER").
WIT N E SSE T H :
WHEREAS, the LICENSOR represents that it has full authority and right to
grant a non- exclusive, non-assignable perpetual sub-license, for a sewage
treatment process known as the CARROUSEL-BARDENPHO Method ("METHOD" ),:- and the
CARROUSEL-BARDENPHO System (" SYSTEM")* and to assist LICENSEE and/or its
designated consulting engineer ("ENGINEER"), in the design, construction and
operation of the CARROUSEL-BARDENPHO SYSTEM and,
WHEREAS, ENGINEER has prepared utilizing confidential, proprietary
information of LICENSOR pertaining to the CARROUSEL-BARDENPHO SYSTEM and with
the assistance of the LICENSOR and based upon certain information furnished by
the LICENSEE with respect to its sewage treatment requirements, a design for a
CARROUSEL-BARDENPHO SYSTEM that the LICENSEE proposes to have built as part of
a wastewater treatment plant (the "INSTALLATION") at the East Advanced
Pollution control Facility at clearwater, Florida. ("LOCATION");
NOW, THEREFORE, in consideration of the mutual premises and agreements
contained herein, the parties agree as follows:
*The CARROUSEL-BARDENPHO METHOD is defined, for purposes of this Agreement as
that part of the INSTALLATION which includes the first anoxic, aerobic, second
anoxic and reaeration basins at the INSTALLATION at the WCATION. The CARROUSEL-
BARDENPHO SYSTEM refers to the METHOD plus an initial anaerobic reactor. The
term Carrousel~ System refers to an orbital system for activated sludge waste
treatment as to which LICENSOR has certain rights in proprietary, technical
knowledge and data owned by DHV of the Netherlands.
I
I
ARTICLE ONE
Grant of License
~
I
~
I
l.l The LICENSOR hereby grants to the LICENSEE a paid-up, non-exclusive
perpetual sub -license to use the CARROUSEL-BARDENPHO METHOD AND SYSTEM, including
a similar sub-license under U.S. Patent 3,964,998 and Eimco proprietary know-
how with respect to the Patent and to certain proprietary know-how and technical
data directed to the Carrousel System to construct, own and operate the
INSTALLATION at said WCATION.
I
I
1.2 The LICENSOR further grants to LICENSEE a paid-up, non-exclusive
perpetual license under any patent or patent application owned or controlled by
LICENSOR which is an improvement to said Patent and is utilized in the design,
construction or operation of the INSTALLATION as originally designed and
constructed.
I
1.3 The LICENSOR further grants to LICENSEE, its ENGINEER and CONTRACTOR,
the right to use for the purpose of design, construction, operation and
maintenance of the INSTALLATION any LICENSOR technical data on the
CARROUSEL-BARDENPHO METHOD and SYSTEM and on the Carrousel System which has been
or is transmitted to LICENSEE or its ENGINEER by LICENSOR. LICENSOR shall
furnish during the design phase of the INSTALLATION to LICENSEE or the ENGINEER
only such technical data in its possession, namely design information, equipment
specifications, and general operating instructions for the CARROUSEL-BARDENPHO
METHOD and SYSTEM, and the Carrousel System.
I
I
I
1.4 The LICENSOR agrees that it will provide three copies of a written
process operation manual (specific to this INSTALLATION) which will provide a
detailed description of the process and its intended methods of start-up
operation and control!
I
I
The LICENSOR shall consult with and render supervisory assistance to the
ENGINEER and/or LICENSEE for up to six (6) man-days for a period of twelve (12)
months after the date on which the INSTALLATION is completed.
I
All other assistance shall be provided by separate contract at the
LICENSOR'S hourly rate then in effect of all its customers, including its most
valued customers (including personnel travel time to and from the INSTALLATION
and including those reimbursable expenses previously agreed to by the parties).
I
I
1.5 LICENSOR shall indemnify and hold harmless the LICENSEE and its
ENGINEER and CONTRACTOR from and against any and all claims, damages, judgements,
losses and expenses arising out of or resulting from the infringement of third
party patents resulting from the use of the CARROUSEL-BARDENPHO METHOD and SYSTEM
or the Carrousel System at the WCATION.
I
I
Specifically, without limiting the preceding paragraph, LICENSOR
shall indemnify and hold harmless the LICENSEE and its ENGINEER and CONTRACTOR
against any and all claims, damages, or judgements arising out of or resulting
from any litigation alleging infringement of a presently existing patent right
alleged to belong to Air Products and Chemicals, Inc. caused by the design for
the LICENSEE by its ENGINEER, or by the construction and operation of the
CARROUSEL-BARDENPHO SYSTEM at the WCATION.
CjdrJJ
I
I
I
2
I
I
The LICENSOR shall have the obligation and full authority and sole
control and direction to defend any infringement litigation, and LICENSEE and
its ENGINEER will give LICENSOR reasonable information and assistance to enable
it to do so.
ARTICLE TWO
License Fee
2.1 In consideration of the grant of the sub-license and use of Eimco
proprietary know-how under ARTICLE ONE, the LICENSEE hereby agrees to payor
cause to be paid to the LICENSOR, a lump sum one-time license fee in the amount
of $244,000 which is based on the representation by LICENSEE that the ini tia11y
installed capacity of the CARROUSEL-BARDENPHO METHOD to be provided for in the
construction contract is 5.0 MGD, and the Carrousel System horsepower to be
installed by said construction contract is 250 HP. Such fee shall be paid to
LICENSOR within 90 days of the date on which the construction contract is
awarded.
2.2 The LICENSEE agrees that the capacity of the INSTALLATION shall not
be increased by any additions or enlargements of the CARROUSEL-BARDENPHO METHOD
unless the LICENSEE shall payor cause to be paid to the LICENSOR, an additional
lump-sum, non-refundable license fee calculated my multiplying (i) the ratio of
the incremental increase in new capacity over the original capacity by (ii) the
lump sum fee set forth in Article 2.1 above, adjusted only to reflect the change
from the second quarter 1989, up or down, in the United States Environmental
Protection Agency Sewage Treatment Plant Construction Cost Index. The LICENSEE
agrees to advise LICENSOR of any additions or enlargements of the
CARROUSEL-BARDENPHO METHOD, or any contract to construct an addition or
enlargement thereof, in order to determine the amount of any additional license
fee payable hereunder. Changes in plant operational methods shall not be
considered an addition or enlargement.
ARTICLE THREE
Performance Warranties
The LICENSOR, as the EimcojHubert aerator and Eimco mixer equipment supplier,
guarantees that the CARROUSEL-BARDENPHO System is capable of treating the
screened and degritted wastewater at the lOCATION having the follpwing
characteristics:
FLOW, AVERAGE DESIGN
FWW, MAXIMUM DAY
BIOCHEMICAL OXYGEN DEMAND
SUSPENDED SOLIDS
TOTAL NITROGEN
TOTAL PHOSPHORUS
ALKALINITY
TEMPERATURE
5.0 MGD
7.5 MGD
:5: 200 mg/ I
:5: 180 mgjl
:5: 35 mgjl
:5: 8 mg/l
Sufficient
200C - 300C
3
I
I
The CARROUSEL-BARDENPHO System is warranted for and guaranteed to produce
an average effluent at or below the following levels:
BODs (sand filter effluent)
TOTAL NITROGEN AS N (sand filter effluent)
TOTAL PHOSPHORUS AS P (sand filter effluent)
5 mg/l
3 mg/l
* mg/l
*The average effluent filtered phosphorus, without chemical addition,
shall be no greater than the quantity (Pj - 0.035 BODj + 0.175) mg/l,
where Pj and BODj are the average influent total phosphorus and BOD
concentrations, respectively.
B. This performance is warranted provided that:
(I) The CARROUSEL-BARDENPHO System is incorporated into a flowsheet
which includes screening and grit removal preceding the SYSTEM.
(2) The daily flow is from 75-100% of the average daily flow listed
herein as the basis for design.
(3) The average influent BOD/TKN ratio is at least 5.7, and
(4) Maximum daily flows do not exceed 1.5 times the average daily flow.
Effluent pollutant values shall be evaluated on an arithmetic mean basis
averaged over the length of the test period. Sampling shall be in accordance
with present Florida DER procedures. All analyses performed shall be in
accordance with the Manual of Methods for Chemical Analysis of Water and Wastes
as established by the U.S. EPA Manual 625/6-74-003.
Within ninety (90) days of plant start-up, the LICENSOR will instruct the
OWNER's operators in proper operation of the CARROUSEL-BARDENPHO SYSTEM's
equipment and processes. At least three (3) working days of on-site instruction
will be given by the LICENSOR and performance tests shall be conducted as soon
as practical (following in-plant) instruction) once the plant has achieved
steady-state operating conditions. The test period shall be two (2) months, and
SYSTEM operation shall be in strict compliance with operating instruc.tions
provided, in writing, by the LICENSOR.
The OWNER agrees to cooperate with the LICENSOR (during the test period) by
providing necessary operations personnel and sampling and analyses required for
the test. If the test is interrupted due to conditions beyond the control of
the LICENSOR, the test will be restarted without loss of previously completed
test days. If the test is not completed within three hundred (300) days of
start-up (due to conditions beyond the control of the LICENSOR), then the test
shall be deemed to be satisfactorily completed, and LICENSOR shall be released
from any further obligations under the performance warranty.
4
I
I
If the CARROUSEL-BARDENPHO System is unable to attain the required effluent
quality during the 2-month test period, then the LICENSOR shall supply additional
technical assistance, at no cost to the OWNER, to improve the operation or to
determine the cause of such failure. In case of a failure, LICENSOR shall
expeditiously, and at no cost to the OWNER, make modifications to its equipment
which are, in its judgment, necessary to improve the CARROUSEL-BARDENPHO process
performance.
In the event that the required effluent quality (in terms of BOD and
nitrogen) is still not achieved, the OWNER in cooperation with the LICENSOR and
ENGINEER, shall conduct a standard, laboratory-scale biological treatability
study simulating the full-scale process to identify the cause(s) of such failure.
If the standard laboratory tests demonstrate that failure is due to improper
performance of the full-scale process, then LICENSOR shall make a one-time, lump
sum payment to the Owner in an amount equal to $l, 100. 00 per mg/l of alum
required to produce the guaranteed effluent phosphorus value, plus $l, 400.00 per
mg/l of methanol required to produce a 3.0 mg/l effluent total nitrogen value.
In no event, however, shall LICENSOR's total liability exceed 20% of its SYSTEM
equipment contract value.
ARTICLE FOUR
Reoresentation and A~reements
of the Licensee
4.1 The INSTALLATION, when constructed by the LICENSEE, may be marked
with the Patent, pursuant to 35 U.S.C. Sec. 287, and may be marked with the
Trademark "BARDENPHO" in the manner of display as provided and directed by the
LICENSOR, provided that said Trademark shall not be displayed in a manner which
would violate any local ordinance.
4.2 The LICENSEE agrees that, at the request of the LICENSOR, it will
provide LICENSOR and other existing or prospective licensees of LICENSOR or their
consulting engineers with access, during regular business hours and upon 24 hours
notice to LICENSEE, to the Installation and to the operating records and
operating data relating to the installation.
4.3 The LICENSEE is duly authorized to enter into this License Agreement
and to perform its obligations hereunder.
4.4 The LICENSEE agrees that it will keep secret and confidential any
knowledge, information and technical data not in the public domain furnished by
Licensor hereunder and shall not reveal same except as required in its exercise
of the rights and license granted hereunder and to the degree that such
confidentiality is permitted under local statutes. The LICENSEE further agrees
that it will not authorize its ENGINEER to release any such secret and
confidential knowledge, information and technical data except as required in
the exercise of the rights and license granted hereunder.
5
I
I
4.5 The LICENSEE agrees that the obligations of the LICENSOR of the
warranty under 1.5 and Article Three above are exclusive and LICENSEE expressly
waives any and all other warranties including warranty of merchantability and
fitness for particular purpose, whether written, oral, express, implied or statu-
tory and LICENSOR has no liability for any consequential damage or loss of time
or any other expenses, costs or damages whatsoever. other than as expressed
above or contained in LICENSOR's written warranty against defects in material
and workmanship with respect to any equipment furnished by LICENSOR.
ARTICLE FIVE
Miscellaneous
5~1 The Licensor EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND
WARRANTIES NOT PROVIDED BY THIS LICENSE AGREEMENT.
5.2 Any dispute arising out of or in connection with this License Agreement
shall be finally settled by binding arbitration before a single arbitrator selected
and acting under the then-existing rules of the American Arbitration Association.
This Agreement shall be governed and construed in accordance with the laws
of the State of Florida.
5.3 This License Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, without
limitation. including any sewage authority which may be an assignee or successor
to the LICENSEE.
i a Garvey
Mayor-Commissioner
CITY OF CLEARWATER, FLORIDA
By ~ --?I -$<--
Ron H. Rabun
City Manager
Approved as to form
and correctness
JJ1/0~
M. A. Galbraith, Jr. G
City Attorney
Attest:
)' F1 r:
C. /~~.Nt.....LL
Goudeau
ST A TE OF FLORIDA )
COUNTY OF PINELLAS )
BEFORE ME personally appeared Rita Garvey, Ron H. Rabun, M.A. Galbraith,
Jr., and Cynthia E. Goudeau, to me well known, and known to be the individuals
described in and who executed the foregoing instrument as Mayor-Commissioner,
City Manager, City Attorney and City Clerk, respectively, of the above-named
City and that the seal affixed to the foregoing instrument is the City seal of
said City and the said instrument is the free act and deed of said City. -
WITNESS my hand and official seal this :;'/ft day tJ(f;t~{/ . 199z.
<AM1LJJ1, ~
Nota~~tzblic My Commission Expires:
6
P"'" !I'ol'""' "u1..';( \".<.' f"'''
'11 _, " v,. .....~uIe ~ t:afiQ'a
My Commission E::1=:r.:;~ ,~\?ril -:'J 11'03
Bonced riiru Troy .:il.n '1;";H"I;(,,'~ .-.~c.. l J ,
,
, .
I
I
AcCesCjWiCnesse" ~
~~ '
t&<< aLt!t~~iD
CO PROCESS EQU
, i "
~
David DiGregorio
Manager of Process Marketing & Development
SWORN to and subscribed freely and voluntarily for the purposes therein
expressed before me by David DiGregorio, Manager of Process Marketing and
Development for Eimco Process Equipment Company, known to me to~the person
des:z:ed in and who executed the foregoing instrument, this '-.5 ~ day
of ~,p(/f(~), 1989.
-- I
7
~
I
CL 87072-2 CRS
BRILE~ WILD
AND ASSOCIATES
RECEIVED
January 19, 1990
JAN 19 1990
Ms. Cynthia E. Goudeau
City Clerk
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
~ CLrnK
Re: East Advanced Pollution
Control Facility
Per your request, please find enclosed a revised "Page 2" of the CARROUSEL (R) -
BARDENPHO SYSTEM USER AGREEMENT, with David DiGregorio's original initials, for
the equipment at the East Advanced Pollution Control Facility.
Dear Ms. Goudeau:
If we can be of further assistance, please feel free to call.
Very truly yours,
BRILEY, WILD & ASSOCIATES, INe.
CONSULTING ENGINEERS
.A4-
JFD:sa
cc: Ms. Janis M. Przywara, Legal Dept.
Briley, Wild and Associates, Inc.
Consulting Engineers and Planners
1421 Court Street, Suite C
Clearwater, FL 3461 6
813/442-7196. FAX 813/461-3827
Offices in Bradenton, Clearwater,
Daytona Beach, Orlando & Ormond Beach. FL
.
,
~'
ARTICLE ONE
Grant of License
l.l The LICENSOR hereby grants to the LICENSEE a paid-up, non-exclusive
perpetual sub-license to use the CARROUSEL-BARDENPHO METHOD AND SYSTEM, including
a similar sub-license under U.S. Patent 3,964,998 and Eimco proprietary know-
how with respect to the Patent and to certain proprietary know-how and technical
data directed to the Carrousel System to construct, own and operate the
INSTALLATION at said WCATION.
1.2 The LICENSOR further grants to LICENSEE a paid-up, non-exclusive
perpetual license under any patent or patent application owned or controlled by
LICENSOR which is an improvement to said Patent and is utilized in the design,
construction or operation of the INSTALLATION as originally designed and
constructed.
1.3 The LICENSOR further grants to LICENSEE, its ENGINEER and CONTRACTOR,
the right to use for the purpose of design, construction, operation and
maintenance of the INSTALLATION any LICENSOR technical data on the
CARROUSEL-BARDENPHO METHOD and SYSTEM and on the Carrousel System which has been
or is transmi tted to LICENSEE or its ENGINEER by LICENSOR. LICENSOR shall
furnish during the design phase of the INSTALLATION to LICENSEE or the ENGINEER
only such technical data in its possession, namely design information, equipment
specifications, and general operating instructions for the CARROUSEL-BARDENPHO
METHOD and SYSTEM, and the Carrousel System.
1.4 The LICENSOR agrees that it will provide three copies of a written
process operation manual (specific to this INSTALLATION) which will provide a
detailed description of the process and its intended methods of start-up
operation and control!
The LICENSOR shall consult with and render supervisory assistance to the
ENGINEER and/or LICENSEE for up to six (6) man-days for a period of twelve (12)
months after the date on which the INSTALLATION is completed.
All other assistance shall be provided by separate contract at the
LICENSOR'S hourly rate then in effect of all its customers, including its most
valued customers (including personnel travel time to and from the INSTALLATION
and including those reimbursable expenses previously agreed to by the parties).
1.5 LICENSOR shall indemnify and hold harmless the LICENSEE and its
ENGINEER and CONTRACTOR from and against any and all claims, damages, judgements,
losses and expenses arising out of or resulting from the infringement of third
party patents resulting from the use of the CARROUSEL-BARDENPHO METHOD and SYSTEM
or the Carrousel System at the LOCATION.
Specifically, without limiting the preceding paragraph, LICENSOR
shall indemnify and hold harmless the LICENSEE and its ENGINEER and CONTRACTOR
against any and all claims, damages, or judgements arising out of or resulting
from any litigation alleging infringement of a presently existing patent right
alleged to belong to Air Products and Chemicals, Inc. caused by the design for
the LICENSEE by its ENGINEER, or by the construction and operation of the
CARROUSEL-BARDENPHO SYSTEM at the WCATION.
~
2