2008-044-RES APPROVING AND AUTHORIZING THE EXECUTION OF A CONSULTING SERVICES AGREEMENT WITH J. STOWE & CO. FOR WATER RESOURCE AND COSTING CONSULTING SERVICESRESOLUTION NO. 2008-044
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 FINDINGS 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.
ATTEST:
J nice Ellis, City Clerk
APPROVED AS TO FORM:
W. Kent McIly ty Attorney
CONSULTING SERVICES AGREEMENT
THIS AGREEMENT is made and entered by and befinreen 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 "ProjecY'); 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
and Consultant and shall remain in force
reasonably required to complete the Scope
amendments thereto, as it relates to the F
Agreement. Consultant shall make all reasoi
out herein as expeditiously as possible and
City.
upon execution of the Agreement by City
and effect for a period which may be
of Services, including any revisions or
roject. Time is of the essence in this
iable efforts to complete the services set
to meet the schedule established by the
CONSULTING SERVICES AGREEMENT
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EXHIBIT A.. PAGE 1
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. Indemni
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.
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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 befinreen 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. Assiqnment 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
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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. Complete Contract
This Agreement, including referenced Exhibits, constitutes the entire agreement
by and between 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. Mailin4 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
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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.
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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:
This Agreement shall be effective on the date last signed by the parties hereto.
SIGNED on the date indicated below.
DATE:
DATE:
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
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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
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EXHIBIT "A"
SCOPE OF SERVICES
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Scope of Services to be
provided by J. Stowe &
Co. in conjunction with
the Paris Project team
HistoricaUForecasted Water Usage - Paris/R.W. Beck/J. Stowe & Co.
a. Examine historical (10 years) peak day, peak month, average day, and average
month water usage on a system wide basis and contract customer basis, complete
by March 28 (Pazis and R. W. Beck)
b. Forecast water demands under various scenarios, including the Irving scenarios,
and compare to Irving's projections, complete by March 28 (Paris and R.W.
Beck)
c. Examine availability and amount of additional water supplies, complete by March
28 (CD1V)
d. Determine optimal level of use and pattern of use, including additional water
supplies (may need to revisit depending on TWDB Volumetric Survey results);
compare to Irving's, completion dependent upon Committee input (CDIV)
e. Determine effects of optimal level of use and pattern of use on pricing structure,
completion dependent upon Committee input (R.W. Beck and J. Stowe & Co.)
2. Discuss "Surplus Water" Available for Sale - All
a. Meeting or Conference Call to discuss "surplus water" in light of contractual
obligations and historicaUforecasted water usage. Timing dependent upon
Committee input.
3. Reservoir Operations - CDM
a. Address operating impacts on Pat Mayse reservoir recognizing various operating
scenarios. Completion dependent upon Committee input
4. Water Valua,tion - R. W. Beck and J. Stowe & Co.
a. Determine value of Pat Mayse as a storage facilitylbalancing reservoir,
completion dependent upon Committee input
b. Determine market value of water rights, completion dependent upon Committee
input
5. Contract Terms - All
a. Prepare memo setting forth potential contract terms (Mathews & Freeland),
completion dependent upon Committee input
b. Discuss memo of potential contract terms by conference call or meeting, timing
dependent upon Committee input
c. Prepare draft contract (Mathews & Freeland), timing dependent upon Committee
input
6. Ad-hoc Committee - Paris
a. Establish frequency of Committee meetings (anticipated monthly; may occur bi-
monthly)
b. Establish milestones to be reached before each Committee meeting
c. Establish meetings/communications with Pazis Project Team prior to each
Committee meeting to discuss approach/goaLs
d. Assign Project Team roles to respond to Committee questions or requests for
information
7. Dissemination/Review of Public Information - All
a. Review of information to be made publicly available by Paris and/or Irving (Paris
examining the possibility of receiving some outside assistance with public
information/education for the project)
Coordination with Irving on Website Setup/Information - Paris (Paris to meet with Irving
the week of March 17`'')
9. Determination of Content of Information to be Provided to Paris by Irving - Paris
From the March 136 conference call the following information will be need to be provided:
. Letter to be drafted by Mathews and Freeland to the Corps of Engineers to
formalize agreement tha.t the methodology used by TWDB will be accepted by the
Corps.
. Paris to provide copy of 1994 Volumetric Survey of Pat Mayse.
. Paris to provide copy of Lamar Power's proposed contract (provided on March
13`}`)
. Paris to provide Corps contact information (provided on March 13,11)
. Paris to provide minutes of March 12, 2008 Corps meeting (provided on March
13'')