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09 Approve a resolution to enter into a contract with J. Stowe & Co. for water resource and costing consulting servicesCITY COUNCIL AGENDA ITEM BRIEFING SHEET Submittal Date: Originating Department: Presented By: Agenda Item No.: 06/04/08 Shawn Napier, P.E., Ciry Engineer/ Council Date: Clty COUriClI Director of Public Works 9. O6/09/08 RECOMMENDED MOTION: Approve a resolution to enter into a contract with J. Stowe & Co. for water resource and costing consulting services POLICY ISSUE(S): Professional Service Contract BACKGROUND: J. Stowe & Company is a water resource and costing service firm that specializes in determining available volumes of water, the value of water and appropriate rates for the re-sale of water. J. Stowe & Co. will work with the Study Committee and City Staff to determine the water availability in Lake Pat Mayse. The City has used Mr. Stowe since 1985 when he was with R.W. Beck (and its predecessors). Mr. Stowe recently left R.W. beck and started his own firm. BOARD/COMMISSION RECOMMENDATION: EXHIBITS: Resolution and Consulting Services Agreement ACTION: BUDGET INFO: ❑ Financial Report ❑ Minute Order Expense $ ❑ Department Report Z Resolution Budgeted Amt. $ ❑ Presentation ❑ Ordinance y'I'D Actual $ ❑ Public Hearing ❑ Other Acct. Name Acct. Number FISCAL NOTES: REVIEWED AND APPROVED BY: Z Administrarion Z City Cletk ❑ Community Development ❑ EMS/IT ❑ Finance ❑ Fire ❑ Municipal Court 0 Legal ❑ Library ❑ Police Z Eng./Public Works ❑ Utilities City of Paris Revised 2/04/08 OOUu4i DRAFT F.attorney\reswork\current\Jack Stowe & Co Prof Serv Contract Res RESOLUTION NO. May 19, 2008 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, APPROVING AND AUTHORIZING THE EXECUTION OF A CONSULTING SERVICES AGREEMENT WITH J. STOWE & CO. FOR WATER RESOURCE AND COSTING CONSULTING SERVICES; MAKING OTHER FI111DINGS AND PROVISIONS RELATED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Paris is in need of water resource and costing consulting services in connection with the Lake Pat Mayse Reservoir study and negotiations for the sale or acquisition of raw water from Lake Pat Mayse, and J. Stowe & Company, 1560 J. Place, Suite 379, Plano, Texas 75074, has made a proposal for water resource and costing consulting services; and, WHEREAS, is deemed to be in the best interest of the City of Paris that the City enter into a Consulting Services Agreement with J. Stowe & Co. in a form substantially similar to the Agreement attached hereto and incorporated herein as Exhibit "A". NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS THAT: Section 1. The findings set out in the preamble to this resolution are hereby in all things approved. Section 2. The Consulting Services Agreement between the City of Paris and J. Stowe & Co. attached hereto and incorporated herein as Exhibit A, be, and the same is hereby accepted; and, Section 3. The City Manager of the City of Paris be, and he is hereby authorized and directed to execute and negotiate all necessary documents on behalf of the City of Paris to effectuate this Agreement. Section 4. This resolution shall be effective immediately upon passage. PASSED AND ADOPTED this 9th day of June, 2008. Jesse james Freelen, Mayor . 000042 ATTEST: Janice Ellis, City Clerk APPROVED AS TO FORM: W. Kent McIlyar, City Attorney - 00004:i CONSULTING SERVICES AGREEMENT THIS AGREEMENT is made and entered by and between the CITY OF PARIS, TEXAS, a Home-Rule Municipal Corporation, hereinafter referred to as "City", and J. Stowe & Co., hereinafter referred to as "Consultant", to be effective on the date last signed by the parties hereto. WITNESSETH: WHEREAS, the City desires to engage the services of the Consultant to provide water resource and costing consulting services in connection with determining available volumes of water at Lake Pat Mayse, the value of the water and appropriate rates for the re-sale of said water (hereinafter the "Project"); and WHEREAS, the Consultant desires to render such consulting services for the City upon the terms and conditions provided herein. NOW, THEREFORE, for and in consideration of the covenants contained herein, and for the mutual benefits to be obtained hereby, the parties hereto agree as follows: 1. Emplovment of the Consultant The City hereby agrees to retain the Consultant to perform water resource and costing consulting services in connection with the Project. Consultant agrees to perForm such services in accordance with the terms and conditions of this Agreement. II. Scope of Services The parties agree that Consultant shall perform such services in accordance with the Scope of Services attached hereto and incorporated herein as Exhibit "A". The parties understand and agree that amendments or modifications to the Scope of Services may be authorized by the parties from time to time, but must be in writing and signed by both parties. III. Period of Service This Agreement shall become effective upon execution of the Agreement by City and Consultant and shall remain in force and effect for a period which may be reasonably required to complete the Scope of Services, including any revisions or amendments thereto, as it relates to the Project. Time is of the essence in this Agreement. Consultant shall make all reasonable efforts to complete the services set out herein as expeditiously as possible and to meet the schedule established by the City. CONSULTING SERVICES AGREEMENT EXHIBIT PAGE 1 S:/Attomey/Contracts/2008/Jack Stowe Prof Services Draft b00044 IV. Compensation and Method of Pavment The parties agree that Consultant shall be compensated for all services provided pursuant to this Agreement at the rate of $200/hour for Professional Consulting Services and $45.00/hour for administrative services. Provided, however, total compensation under this Agreement shall not exceed $25,000 without prior written authorization from the City Manager of the City of Paris, Texas. V. Information to be Provided bv the Citv The City agrees to furnish all that information requested by Consultant for performance of these services and which is available in City's files and records. VI. Insurance Consultant agrees to meet all insurance requirements set out below, and to require all sub-consultants who perform work for Consultant to meet these insurance requirements as well: Consultant shall maintain insurance with the following required coverages and limits, and upon request will provide insurance certificates to City: Worker's Compensation Employer's Liability Commercial General Liability Commercial Auto Liability Professional Liability Statutory U.S. $1,000,000 U.S. $1,000,000 per occurrence U.S. $1,000,000 aggregate U.S. $1,000,000 combined single limit U.S.$1,000,000 per claim and in the aggregate VII. Indemnitv Consultant shall release, defend, indemnify and hold City and its officers, agents and employees harmless from and against all damages, injuries (including death), claims, property damages (including loss of use), losses, demands, suits, judgments and costs, including reasonable attorney's fees and expenses, in any way arising out of, related to, or resulting from the services provided by Consultant and to the extent caused by the negligent act or omission or intentional wrongful act or omission of Consultant, its officers, agents, employees, subcontractors, licensees, invitees or any other third parties for whom Consultant is legally responsible (hereinafter "Claims"). Consultant is expressly required to defend City against all such Claims. In its sole discretion, City shall have the right to approve defense counsel to be retained by Consultant in fulfilling its obligation hereunder to defend and indemnify City, unless such right is expressly waived by City in writing. City reserves the right to provide a portion or all of its own defense; however, City is under no obligation to do so. CONSULTING SERVICES AGREEMENT PAGE 2 S:/Attorney/Contracts/2008/Jack Stowe Prof Services Draft (2) , O O0(Ut~ J Any such action by City is not to be construed as a waiver of Consultant's obligation to defend City or as a waiver of Consultant's obligation to indemnify City pursuant to this Agreement. Consultant shall retain City approved defense counsel within seven (7) business days of City's written notice that City is invoking its right to indemnification under this Agreement. If Consultant fails to retain counsel within such time period, City shall have the right to retain defense counsel on its own behalf, and Consultant shall be liable for all costs incurred by City. VIII. Independent Contractor Consultant covenants and agrees that Consultant is an independent contractor and not an officer, agent, servant or employee of City; that Consultant shall have exclusive control of and exclusive right to control the details of the work perFormed hereunder and all persons performing same, and shall be responsible for the acts and omissions of its officers, agents, employees, contractors, subcontractors and consultants; that the doctrine of respondeat superior shall not apply as between City and Consultant, its officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Consultant. IX. Assianment and Sublettinq The Consultant agrees that neither this Agreement nor the work to be performed hereunder will be assigned or sublet without the prior written consent of the City. The Consultant further agrees that the assignment or subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Consultant from its full obligations to the City as provided by this Agreement. X. Audits and Records The Consultant agrees that at any time during normal business hours and as often as City may deem necessary, Consultant shall make available to representatives of the City for examination all of its records with respect to all matters covered by this Agreement, and will permit such representatives of the City to audit, examine, copy and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement, all for a period of one (1) year from the date of final settlement of this Agreement or for such other or longer period, if any, as may be required by applicable statute or other lawful requirement. XI. Contract Termination Either party may terminate this Agreement upon thirty (30) days priOr written notice to the other party. City shall pay Consultant for all services rendered by Consultant and accepted by City up through the date of termination. If either party defaults in its obligations hereunder, the non-defaulting party, after giving seven (7) days written CONSULTING SERVICES AGREEMENT PAGE 3 S:/Attomey/Contracts/2008/Jack Stowe Prof Services Draft (2) 000046 notice of its intention to terminate or suspend performance under this Agreement, may, if cure of the default is not commenced and diligently continued, terminate this Agreement or suspend perFormance under this Agreement. XII. Work Product City shall have the unrestricted right to use the documents, analyses and other data prepared by Consultant under this Agreement ('Work Products'); provided, however City shall not rely on or use the Work Products for any purpose other than the purposes under this Agreement and the Work Products shall not be changed without the prior written approval of Consultant. If City releases the Work Products to a third party without Consultant's prior written consent, or changes or uses the Work Products other than as intended hereunder, (a) City does so at its sole risk and discretion, (b) Consultant shall not be liable for any claims or damages resulting from the change or use or connected with the release or any third party's use of the Work Products and (c) City shall hold Consultant harmless from any and all claims or damages related to the City's wrongful release, change or third party use. XIII. Comalete Contract This Agreement, including referenced Exhibits, constitutes the entire agreement by and befinreen the parties regarding the subject matter hereof and supersedes all prior or contemporaneous written or oral understandings. This Agreement may only be amended, supplemented, modified or canceled by a duly executed written instrument. XIV. Mailing of Notices Unless instructed otherwise in writing, Consultant agrees that all notices or communications to City permitted or required under this Agreement shall be addressed to City at the following address: City of Paris, Texas Engineering Department P.O. Box 9037 PARIS, TX 75461-9037 With a copy to: City of Paris, Texas Finance Department P. O. Box 9037 Paris, TX 75461-9037 CONSULTING SERVICES AGREEMENT PAGE 4 S:/Attomey/Contracts/2008/Jack Stowe Prof Services Draft (2) Or, r,O ~7 UU City agrees that all notices or communications to Consultant permitted or required under this Agreement shall be addressed to Consultant at the following address: J. Stowe & Co. 1560 J. Place, Suite 379 Plano, TX 75074 All notices or communications required to be given in writing by either party shall be considered as having been given if addressed in writing as set out above and delivered in person or three (3) days after mailing by first-class registered or certified mail, return receipt requested, postage prepaid. XVI. Miscellaneous A. Paragraph Headings: The paragraph headings contained herein are for convenience only and are not intended to define or limit the scope of any provision in this Agreement. B. Contract Interpretation: Although this Agreement is drafted by the City, should any part be in dispute, the parties agree that the Agreement shall not be construed more favorably for either party. C. Non-Waiver: No waiver of either party's rights under this Agreement shall be deemed to have been made unless expressed in writing and signed by an authorized representative of that Party. D. Venue/Governing Law: The parties agree that the laws of the State of Texas shall govern this Agreement, and that the Agreement is performable in Lamar County, Texas. Exclusive venue shall lie in Lamar County, Texas. E. Successors and Assigns: City and Consultant, and their partners, successors, subcontractors, executors, legal representatives, and administrators are hereby bound to the terms and conditions of this Agreement. CONSULTING SERVICES AGREEMENT PAGE 5 S:/Attomey/Contracts/2008/Jack Stowe Prof Services Draft (2) 000048 F. Severability: In the event a term, condition, or provision of this Agreement is determined to be void, unenforceable, or unlawful by a court of competent jurisdiction, then that term, condition, or provision, shall be deleted and the remainder of the Agreement shall remain in full force and effect. G. Effective Date: DATE: DATE: This Agreement shall be effective on the date last signed by the parties hereto. SIGNED on the date indicated below. APPROVED AS TO FORM: W. Kent Mcllyar CITY ATTORNEY J. STOWE & CO., CONSULTANT BY: NAME: Title: CITY OF PARIS, TEXAS BY: Kevin Carruth CITY MANAGER CONSULTING SERVICES AGREEMENT PAGE 6 1, S:/Attomey/Contracts/2008/Jack Stowe Prof Services DraR (2) ~jfl O r, (lJl ~3 U ACKNOWLEDGMENTS STATE OF TEXAS § § COUNTY OF LAMAR § This instrument was acknowledged before me on the day of , 2008, by KEVIN CARRUTH, City Manager, of the CITY OF PARIS, Texas, a home-rule municipal corporation, on behalf of said corporation. Notary Public, State of Texas STATE OF TEXAS § § COUNTY OF COLLIN § This instrument was acknowledged before me on the day of , 2008, by , , d/b/a , a sole proprietorship, individually and on behalf of said company. Notary Public, State of Texas CONSULTING SERVICES AGREEMENT PAGE 7 S:/Attorney/Contrads/2008/Jadc Stowe Prof Services Draft (2) 00005u EXHIBIT "A" SCOPE OF SERVICES CONSULTING SERVICES AGREEMENT PAGE 8 S:/Attorney/Contracts/2008/Jadc Stowe Prof Seroices Draft (2) 00 005 1