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5.77D
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HUGHES WATER & SEWER, LTD.
dba: Hughes Supply, Inc. Branch 7539
10013 Martin Luther King Jr. Way South
Seattle, WA 98178
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(206) 725-3441
(800) 621-9292
CONSULTING AGREEMENT
This Consulting Agreement #06-2105 (this "Agreement") is made and entered into between Hughes
Water & Sewer, LTD. dba: Hughes Supply, Inc. Branch 7539 (the "Consultant") and City of Port
Angeles, located at PO Box 1150, Port Angeles, WA 98362 (the "Client").
I. SCOPE OF SERVICES
The Consultant will provide consulting services to the Client for a Leak Detection Project, which,
together with the scope of services to be provided, is described in Appendix A to this Agreement,
which is attached hereto and incorporated herein by reference.
It is important to note that not all leaks create noise levels that can be detected using even the most
sophisticated leak detection instrumentation. The Consultant will perform all work under this
contract at the highest level of professional workmanship in its industry, however, Consultant
cannot guarantee the detection of any leak. Client has read the above paragraph and understands
that there is no guarantee that any leakage will be detected or pinpointed during this project. As
such, Client agree~/to pay Consultant as outlined herein. (initial)
II. COMPENSATION
The charges to the Client for the services provided by the Consultant of work to be completed under
this Agreement will be approximately 5 day(s) of surveying and pinpointing at $990.00 per day, plus
a mobilization charge of $0.00, for a total minimum charge of Four Thousand Nine Hundred Fifty
and 00/100 dollars ($4,950.00).
In the event that less time is needed to complete the proposed footage (as per Bill Beverford) and
pricing is based upon time to complete (i.e. "by the day"), the Consultant will charge, and will be
entitled to, the total charge stated in the preceding paragraph; provided, however, that this shall not
apply if the Consultant is responsible for the reduction in time.
The Client will make monthly progress payments based on work completed, the terms of which
shall be net 30 days.
III. IDENTIFICATION OF CONSULTING AGREEMENT DOCUMENTS; INTEGRATION
This Agreement includes Appendix A attached hereto, which is hereby incorporated herein by
reference. This Agreement constitutes the final agreement between the parties. It is the complete
and exclusive expression of the parties' agreement on the matters contained in this Agreement. All
prior and contemporaneous negotiations and agreements between the parties on the matters
contained in this Agreement are expressly merged into and superseded by this Agreement. The
provisions of this Agreement may not be explained, supplemented, or qualified through evidence of
trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied
upon any statement, representation, warranty, or agreement of the other party except for those
expressly contained in this Agreement. There are no conditions precedent to the effectiveness of
this Agreement other than those expressly stated in this Agreement.
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IV. IDENTIFICATION OF PARTIES TO THIS CONSULTING AGREEMENT
Client and Consultant are further identified as follows:
CLIENT
City of Port Angeles
PO Box 1150
Port Angeles, WA 98362
CONSULTANT
HUGHES WATER & SEWER, LTD.
dba: Hughes Supply, Inc. Branch 7539
10013 MLK Jr. Way South
Seattle, WA 98178
The undersigned has the authority to commit CLIENT and CONSULTANT to the project as
identified in these documents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
CLIENT
Date:
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Signature
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Title: DlnfT-TbfL?W ~U
Name: G /.,f:;"lVN A... Cv'11-6'L
(please print or type name)
Attest:
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City Cle
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Date:2/23/2006 Signature:
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Title: Consultant
CONSULTANT
~ Tom Ruppenth
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Facsimile signatures shall be sufficient unless originals are required by a third party. If original signature is
not on file with the Consultant, please follow with original signature on this document by mail.
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Appendix A
To Consulting Agreement
V. SCOPE OF WORK
(Procedures and Methods for Water Distribution Lines)
The Consultant will survey for and pinpoint water leaks using highly sophisticated leak detection
technology. The Consultant uses a sonic leak detection sound amplification instrument in
conjunction with a transducer capable of 1.5 VG (volts per "G") or greater sensitivity minimum
output for survey. The Consultant uses various types of equipment including ground
microphones, computer based correlators, etc. for leak pinpointing. Trained experienced
professionals operate the Consultant's equipment. A detailed report of leak locations, estimated
gallons per minute (GPM) loss, and area covered is supplied daily. A progress report is
provided on a monthly basis and a final report is provided at the completion of the project. The
report includes an Executive Summary of the project, Survey Review, Reports on each
individual leak with a diagram of its location and a conclusion.
VI. SPECIFICS
A. The first step in the Consultant's survey is to review the distribution maps of the Client's
system for familiarization of the pipe network and available appurtenances (valves, services,
hydrants etc.) to be used as contact points.
B. The Consultant then conducts a comprehensive survey by making physical contact with all
available main line appurtenances (valves, hydrants, etc.) and selected customer services.
The Consultant uses a sonic leak detection sound amplification instrument designed for this
purpose with a greater transducer rated at a minimum of 1.5 VG or greater. The Consultant
will determine the distance that even quiet leak sounds travel in various pipe materials, pipe
sizes and pressure zones in each area of the Client's system. This will be done by slightly
turning on fire hydrants, hose bibs, etc., creating a simulated quiet leak sound. (When
surveying PVC pipelines, the Consultant will make contact with all available service shut-
offs, unless otherwise agreed to by Client)
C. The Consultant will then make contact with pipe appurtenances at intervals no greater than
350 feet where contact points are available and accessible, or at pre-determined distances
as noted in paragraph B above (whichever distance is less). This procedure allows for even
quiet leaks to be located.
D. The Consultant will compile a detail report of decibel levels at suspected leak sound
locations and field observations. This report will be used during the survey for re-
investigation and possible pinpointing at a later time. This reinvestigation is to increase the
speed of the survey and it will eliminate correlating on most false leak sounds (i.e. service
draw.)
E. All indications of leaks found during the survey will be verified a second time, after which the
leak noise shall be pinpointed with a computer based leak sound correlator where
applicable. Pinpointing leak locations through interpretation of sound intensity, either by ear,
decibel metering or other like methods, is not used when contact points are available for use
with correlation.
F. The equipment utilized does not normally require valves to be operated during surveying
and pinpointing, however, on occasion, services or valves may be operated to eliminate
service draw noises or to change velocity flow noise.
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G. The correlation equipment used will have the capability to prompt the operator to input the
variables when different pipe size and/or pipe materials are encountered in the same span
to be investigated. This is necessary to insure accuracy of results based on the automatic
computation of the correct leak sound velocity in leak pinpointing operations. The
Consultant's eqUipment has the capability of correlating up to four various pipe sizes and
types at one time in a given span.
H. The Consultant will furnish to the Client daily leak reports, when pinpointed, and shall also
furnish a Final Report within fifteen (15) business days (20 days for overseas Clients) from
the completion of the project. This report shall include:
1) Executive Summary showing individually recorded time for, correlating, surveying, and
other time spent on the project. This summary also includes footage covered,
approximate gallons per day (GPD) loss, types of leaks found, and quantity of leaks
found.
2) Proiect Observations detailing field observations and remarks recommending
improvements that may be made to the Client's distributions system.
3) Survev Review explaining the Procedures and Methods used during this survey.
4) Leak Reports with detailed drawings showing each leak location that was pinpointed,
and an estimate of the gallons per minute (GPM) loss and computer justification when
applicable. (These same reports shall be supplied daily to the Client when leaks are
found.)
I. Whenever the Client repairs any leak detected by the Consultant prior to the completion of
the field work, the Consultant shall resurvey that section of the system, to ensure that no
very quiet leaks were missed due to over powering noisy leak sound.
J. The Consultant will furnish a trained field technician, leak detection instruments, equipment
and tools to complete the survey and leak pinpointing.
K. To provide an accurate, comprehensive leak survey, a relatively large contiguous area must
be covered. Spot-checking to locate a leak is not considered an effective survey and
requires special pricing. The Consultant will perform spot-checking only upon the request of
the Client.
L. It is important to note that not all leaks create noise levels that can be detected using even
the most sophisticated leak detection instrumentation. The Consultant will perform all work
under this contract at the highest level of professional workmanship in its industry, however,
Consultant cannot guarantee the detection of any leak.
VII. SERVICES TO BE PROVIDED BY THE CLIENT
A. The Client will furnish, at no cost to the Consultant, a complete set of maps and line data on
the water distribution system to be surveyed, showing line size, type, and location of mains,
valves, and fire hydrants. Consultant shall be entitled to rely on the accuracy and
completeness of the information furnished to Consultant and shall be under no duty or
obligation to verify the accuracy or completeness thereof, or to notify Client of any errors or
omissions contained therein.
B. The Client will make the water system valves, valve boxes, customer service stops, and
boxes accessible by hand, operating key or probe and, if necessary, assist in field locating
of all pipelines within the designated service area.
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C. The Client shall provide a qualified helper to locate and operate valves, services, hydrants,
etc. when requested by Consultant, and generally provide information to assist the
Consultant when requested by Consultant.
D. The Client shall provide a qualified helper and necessary equipment (flags, traffic cones,
etc.) as required to meet local, state, and federal regulations in controlling vehicular traffic
for man and equipment safety.
E. Upon request of Consultant, Client shall provide additional access points on the water
system as may be required on an occasional basis by the Consultant in order to effectively
complete the survey when normal contact points are not available within a reasonable
distance for correlation.
VIII. RELATIONSHIP OF THE PARTIES
The parties intend that the Consultant, in performing services herein specified, shall act as
an independent contractor and shall have control of its work and the manner in which it is
performed. The Consultant shall be free to contract for similar services to be performed for
others while the Consultant is under contract with the Client. The Consultant is not to be
considered an agent or employee of the Client and is not entitled to participate in any
pension plans, workers' compensation insurance, or similar benefits that the Client provides
for its employees.
IX. MODIFICATION; WAIVER
This agreement may not be modified, altered or amended except by a subsequent written
instrument executed by both parties hereto. No waiver of any provision of this Agreement
shall be binding unless evidenced by a subsequent written instrument executed by the party
against whom such waiver is sought to be charged.
X. PROJECT DATA AND DOCUMENTS
The Consultant shall be entitled to rely upon the accuracy of all data furnished by the Client
to the Consultant, which is or may be used by the Consultant in the provision of services
under this Agreement. The Consultant has the right to retain and use all data furnished to it,
and all plans, designs, specifications and other work product created by the Consultant
during its provision of service under this Agreement
XI. INDEMNIFICATION
Client shall indemnify Consultant and its directors, officers, employees, agents, subsidiaries
and other affiliates for, and hold each of them harmless from and against, any and all
Losses arising from or in connection with (i) the breach of any covenant or agreement of
Client contained in this Agreement, or (ii) any wrongful or negligent act or omission of Client
related to the performance of its obligations under this Agreement.
Consultant shall indemnify Client and its directors, officers, employees, agents, subsidiaries
and other affiliates for, and hold each of them harmless from and against, any and all
Losses arising from or in connection with (i) the breach of any covenant or agreement of
Consultant contained in this Agreement, or (ii) any wrongful or negligent act or omission of
Consultant related to the performance of its obligations under this Agreement.
For purposes hereof, "Losses" shall mean all fees, costs, damages, judgments, penalties
and expenses incurred by either party, including reasonable attorneys' fees and expenses,
in connection with the investigation, prosecution or defense of any claim, arising from or to
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an act or omiSSion for which indemnity is granted herein, or in connection with the
enforcement of the obligation to indemnify contained in this Agreement. Notwithstanding
anything to the contrary in this Agreement, neither party shall be liable to the other or to any
third party for consequential, special, punitive, indirect or exemplary damages in any action,
proceeding or dispute arising out of or relating to the Agreement or the performance or non-
performance by either party under the Agreement.
XII. TERMINATION OF AGREEMENT
Either the Consultant or the Client may terminate this Agreement upon thirty (30) days
written notice to the other sent to the addresses listed on the first page of this Agreement.
In the event that Client terminates this Agreement, the Client specifically agrees to pay the
Consultant for all services rendered and costs incurred or for which commitment theretofore
has been made by Consultant through the termination date.
XIII. DISPUTE RESOLUTION; VENUE; WAIVER OF JURY TRIAL; GOVERNING LAW
A. The parties will attempt in good faith to resolve through negotiation any dispute, claim or
controversy arising out of or relating to this Agreement. Either party may initiate negotiations
by providing written notice in letter form to the other party, setting forth the subject of the
dispute and the relief requested. The recipient of such notice will respond in writing within
three (3) business days from receipt with a statement of its position on, and recommended
solution to, the dispute. If the dispute is not resolved by this exchange of correspondence,
then the parties will meet at a mutually agreeable time and place within seven (7) business
days of the date of the initial notice in order to exchange relevant information and
perspectives, and to attempt to resolve the dispute. If the dispute is not resolved by these
negotiations within 15 business days following the date of the initial written notice, the matter
will be submitted to mediation in according with subsection (B) below.
B. Except as provided herein, no civil action with respect to any dispute, claim or controversy
arising out of or relating to this Agreement may be commenced until the parties have
attempted in good faith to resolve the matter through a mediation proceeding, under the
mediation procedure of the CPR Institute for Dispute Resolution ("CPR"), JAMS/Endispute,
the American Arbitration Association ("AAA"), or as otherwise agreed upon by the parties.
Either party may commence mediation by sending a written request for mediation to the
other party, setting forth the subject of the dispute and the relief requested. Unless the
parties agree otherwise in writing, the mediation shall be conducted by a single mediator,
and the mediator shall be selected from an appropriate CPR, JAMS/Endispute, AAA or other
panel as agreed upon by the parties. The mediation shall be conducted in Clallam County,
Washington. Each party shall pay an equal share of the fees and expenses of the mediator
and administrative fees and expenses of mediation. Either party may seek equitable relief
prior to or during the mediation to preserve the status quo pending the completion of that
process. Except for such an action to obtain equitable relief, neither party may commence a
civil action with respect to the matters submitted to mediation until after the completion of
the initial mediation session, or 45 days after the date of filing the written request for
mediation, whichever occurs first. Mediation may continue after the commencement of a
civil action, if the parties so desire.
C. The parties further agree that in the event any dispute between them relating to this
Agreement is not resolved under subsection XIV (A) or (B) above, exclusive jurisdiction shall
be in the trial courts located within Clallam County, Washington, any objections as to
jurisdiction or venue in such court being expressly waived. In the event of a breach or
threatened breach by Client of this Agreement, Consultant in its sole discretion may, in
addition to other rights and remedies existing in its favor and without being required to post
a bond or other security, apply to any court for specific performance and/or injunctive or
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other relief in order to enforce, or prevent the violation of, this Agreement. BOTH CLIENT
AND CONSULTANT HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRAIL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATIONS,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
D. All issues and questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by, and construed in accordance with, the
laws of the State of Washington without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of Washington or any other jurisdiction) that would
cause the application hereto of the laws of any jurisdiction other than the laws of the State of
Washington. In furtherance of the foregoing, the internal law of the State of Washington
shall control the interpretation and construction of this Agreement, even though under any
other jurisdiction's choice of law or conflict of law analysis the substantive law of some other
jurisdiction may ordinarily apply.
XIV. ATTORNEY'S FEES
In the event of any litigation between the parties hereto arising from or with respect
to this Agreement, the breach of any warranty, representation or breach of any other
terms hereof, and/or the performance of the obligations hereunder, the losing party
shall pay all costs and expenses incurred by the prevailing party in connection with
such litigation, including, but not limited to, reasonable attorneys' fees and costs,
reasonable accountant's fees and costs, and reasonable expert fees and costs,
whether incurred at the pre-trial, trial or appellate levels, and/or bankruptcy or other
creditors rights' proceedings.
XV. TERMS OF SALE
The terms of sale between the Client and the Consultant shall be net 30 days unless
otherwise agreed upon in writing signed by each party.
XVI. SERVICE CHARGE
In the event any particular billing is not paid when due, all sales, regardless of prior terms,
will become immediately due and owing upon demand by the Consultant. A service charge
will be assessed on past due or delinquent accounts at the rate of 1.5 % per month.
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XVII. MISCELLANEOUS
Neither party shall have the right to assign any or all of its rights or delegate its duties under
this Agreement to any person, firm or company without prior written consent of the other
party. An attempted assignment or delegation without prior written consent of the other
party will be invalid and ineffective against the non consenting party. This Agreement shall
inure to the benefit or and shall be binding upon the parties hereto and their respective
heirs, legatees, administrators, legal representatives, successors and permitted assigns. In
the event any court of competent jurisdiction shall deem any of the provisions of the
Agreement invalid, the same shall be deemed severable, and as never having been
contained herein, and this Agreement shall then be construed and enforced in accordance
with the remaining provisions hereof. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and
the same instrument. Facsimile signatures shall have the same effect as original signatures.
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