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HomeMy WebLinkAbout2000-292ORDINANCE NO -4 AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH JOHN G HIRSCHY OF JOHN G HIRSCHY & ASSOCIATES OF DALLAS TO PROVIDE REAL PROPERTY APPRAISAL SERVICES FOR THE WEST ELECTRIC TRANSMISSION LINE AND STATION PROJECT, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it in the public interest to engage John G Hirschy & Associates of Dallas ("Consultant'), to provide real property appraisal services to the City, and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above -described real estate appraisal services, and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act", generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price, and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the real estate appraisal services, as set forth in the Professional Services Agreement, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 The City Council approves, and the City Manager is hereby authorized to execute a Professional Services Agreement with Consultant for real property appraisal services in connection with the West Electric Transmission Line and Station Project, in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference SECTION 2 The award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Consultant and the ability of Consultant to perform the services needed by the City for a fair and reasonable price SECTION 3 The expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized SECTION 4 This ordinance shall become effective immediately upon its passage and approval ,-/� n- PASSED AND APPROVED this the day of (lJ�b' 2000 r ATTEST JENNIFER WALTERS, CITY SECRETARY By APPROVED AS TO LEGAL FORM HER-- m S \Our Documents\Ordmances\00\HIRSCHY ORDI doe EULINE BROCK, MAYOR Page 2 PROFESSIONAL SERVICES AGREEMENT FOR APPRAISAL RELATING TO THE WEST TRANSMISSION LINE & STATION PROJECT STATE OF TEXAS COUNTY OF DENTON § 54 THIS AGREEMENT is made and entered into as of the Ray of � �00, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Texas 76201, hereinafter called "OWNER", and John G Hirschy & Associates, Inc, with its offices at 446 W Bethel Road (P O Box 2009), Coppell, Texas 75019, hereinafter called "CONSULTANT", OWNER and CONSULTANT are acting herein, by and through their duly -authorized officials and representatives WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually AGREE as follows ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas The professional services set out herein are in connection with the following described project (hereinafter referred to as the "Project") The Project shall include, without limitation A The project shall include without limitation, all appraisal services necessary to assist the city in acquiring right-of-way for the WEST TRANSMISSION LINE & STATION PROJECT, within the City of Denton and unincorporated Denton County, Texas ("Project") ARTICLE H SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A The CONSULTANT shall perform all those Basic Services as necessary, and as described in the CONSULTANT'S August 15, 2000 letter to the OWNER, which is attached hereto and incorporated herewith by reference as Exhibit "A" B If there is any conflict between the terms of this Agreement and exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits ARTICLE III ADDITIONAL SERVICES Additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above -described Basic Services, are described as follows A Assisting OWNER or contractor to the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to this Agreement B Any additional services not included in Basic Services ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon the issuance of a notice to proceed by the OWNER, and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the OWNER This Agreement may be sooner terminated in accordance with the provisions hereof Time is of the essence in this Agreement The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER acting through its City Manager or his designee ARTICLE V COMPENSATION A COMPENSATION TERMS 1 "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services 2 "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment B BILLING AND PAYMENT For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay a total fee, including reimbursement for direct non -labor expenses, not to exceed Twenty Thousand Dollars and No Cents ($20,000 00) Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its City Manager or his designee, however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered The OWNER may withhold the final five percent (5%) of the contract amount until satisfactory completion of the Project Page 2 Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably deternuned by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER The CONSULTANT shall not proceed to perform the services listed in Article III "Additional Services," without obtaining prior written authorization from the OWNER C ADDITIONAL SERVICES For additional services authorized in writing by the OWNER in Article III heremabove, the CONSULTANT shall be paid $ 125 00 per hour, as stipulated in CONSULTANT'S August 15, 2000 letter to the OWNER, which is attached hereto and incorporated herewith by reference as Exhibit "A" Payments for additional services shall be due and payable upon submission by the CONSULTANT with CONSULTANT's regular monthly statement as provided for heremabove Statements shall not be submitted more frequently than monthly D PAYMENT If the OWNER fads to make payments due the CONSULTANT for services and expenses within sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1 00%) per month from the said sixtieth (60a') day, and, in addition, the CONSULTANT may, after giving seven (7) days written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1 00%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation " ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any subcontractors or subconsultants ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement The CONSULTANT is entitled to retain copies of all such documents The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project Page 3 ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or claim any right ansing from employee status ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not linuted to court costs and reasonable attorney's fees incurred by the OWNER and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, agents, employees, subcontractors and subconsultants, in the execution, operation, or performance of this Agreement Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved ARTICLE X INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency, that has a rating with A M Best Rate Carriers of at least an A- or above A Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate B Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident C Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with linuts of not less than $100,000 for each accident Page 4 D The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages The insurance policies shall name the OWNER as an additional insured on all such policies to the extent possible, and shall contain a provision that such insurance shall not be cancelled or modified without thirty (30) days prior written notice to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, deliver to OWNER substitute policies or certificates furnishing the same coverage ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation No arbitration or alternate dispute resolution ansing out of or relating to this Agreement, involving one party's disagreement, may include the other party to the disagreement without the other's approval ARTICLE XII TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terimnate by giving thirty (30) days' advance written notice to the other party B This Agreement may be termnated in whole or in part in the event of either party substantially fading to fulfill its obligations under this Agreement No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to ternunate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure, and (2) an opportunity for consultation with the terminating party prior to termination C If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termmnation, in accordance with Article V "Compensation " Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its own use ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their work, nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the work prepared by the CONSULTANT, its employees, associates, agents, subcontractors and subconsultants Page 5 ARTICLE XIV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the addresses shown below, certified mail, return receipt requested, unless otherwise specified herein To CONSULTANT John G Hirschy John G Ihrschy & Associates P O Box 2009 Coppell, Texas 75019 To OWNER Paul Williamson Right -of -Way Agent City of Denton 221 N Elm Street Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after the date of mailing ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of rune (9) pages and one (1) exhibit, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, understandings, and agreements which may have been made in connection with the subject matter of this Agreement ARTICLE XVI SEVERABILTTY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision ARTICLE XVH COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended Page 6 ARTICLE XVIH DISCRIMINATION PROHHiITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap ARTICLE XIX PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may anse during the term of this Agreement B All services required hereunder will be performed by the CONSULTANT or under its supervision All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER ARTICLE XXI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding ansing between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed by the parties The parties further agree that the provisions of this Article will not be waived unless as set forth herein Page 7 ARTICLE XXII MISCELLANEOUS A The following Exhibit is attached to, incorporated herewith by reference, and made a part of this Agreement Exhibit A Letter from CONSULTANT to OWNER dated August 15, 2000 B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of the CONSULTANT involving transactions relating to this Agreement CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section OWNER shall give CONSULTANT reasonable advance notice of intended audits C Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas This Agreement shall be governed by and construed in accordance with the laws of the State of Texas D For the purpose of this Agreement, the key person who will perform most of the work hereunder shall be John G Hirschy However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein E CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being tamed on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement G The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement Page 8 IN WITNESS HEREOF, OWNER and CONSULTANT have hereby executed this Agreement in four (4) original counterparts, the OWNER acting by and through its duly -authorized City Manager and the CONSULTANT Acting by and through its duly-authonzed, undersigned officer, on this the 'tiZ�" day of 2000 ATTEST JENNIFER WALTERS, CITY SECRETARY By APPROVED AS TO LEGAL FORM HERBERT L OU, CIT T By T ilfl"AAl"ill CITY OF DENTON, TEXAS w '�_ i t `✓r "CONSULTANT" JOHN G HIRSCHY & ASSOCIATES, INC By Jz/ 4 J� � JOHN G HIRSCHY WITNESS By i Page 9 John G. Hirschy & Associates of Dallas 446 West Bethel Road P O Box 2009 Coppell, Texas 75019 8009 Office (972) 304 0909 Fax (972) 304 0811 EXHIBIT A August 15, 2000 Paul H Williamson Right -of -Way Agent City of Denton Engineering Department 221 North Elm Street Denton, Texas 76201 Page 1 of 3 Re- West Transmission Line & Station Project Dear Mr Williamson John G Hirschy MAI SRA President Thank you for allowing me to submit this proposal for the real estate appraisal of approximately twelve parcels in the above referenced project The purpose of the appraisal is to estimate the market value of the fee simple interest of each parcel as it contributes to the value of its whole property The appraisals will be completed in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP), and the Standards of Professional Practice and the Code of Professional Ethics of the Appraisal Institute A narrative Self -Contained Appraisal Report, as defined by USPAP, will be completed for each parcel Three copies of each report will be provided The intended use of the appraisals and appraisal reports is to assist the City of Denton in the acquisition of the parcels for the above referenced project Five value estimates will be provided in each appraisal report the value of the whole property, the value of the parcel to be acquired, the value of the remainder before the acquisition, the value of the remainder after the acquisition, and total compensation The three traditional approaches to value — the sales comparison approach, the cost approach, and the income approach — will be used to estimate the value of the subject properties, as far as they are applicable If a property is improved, but it is apparent that the remainder after the acquisition will not be damaged due to the acquisition, only a general estimate of the value of the improvements will be provided Real Estate Appraisal and counseling services Paul H Williamson Right -of -Way Agent City of Denton August 15, 2000 Page 2 of 3 The exact location and number of parcels to be acquired has not yet been finalized by the City of Denton Due to this limitation, exact fees for the appraisals cannot be given for all of the parcels You, Roger Wilkinson, and I inspected the general routing of the proposed transmission line today Based on this inspection, my fee for the appraisal of the parcels along FM-2449 and Underwood Road is $2,000 per parcel This fee presumes that there are no damages to the remainders after the acquisitions Should there prove to be damages to the remainder after the acquisition, which is not anticipated for these parcels, the fee per parcel would need to be adjusted up, with the amount of the adjustment dependant upon the work required to estimate the damages to the remainder after the acquisition The appraisal fee per parcel for the balance of the parcels cannot be determined, due to the routing not yet being finalized, but it is not anticipated that any fee per parcel will exceed $6,500 Examples of possible appraisal fees per parcel would be $4,500 for the appraisal of the apartments on Oak Street, $5,000 for the appraisal of the apartments on IH-35, $3,500 for the appraisal of the single tenant industrial building used by Edsco Fasteners on IH-35, and $6,500 for the appraisal of Peterbilt plant, if it was apparent that the remainder after the acquisition would be damaged due to the acquisition These fees per parcel will need to be finalized after it is determined where the parcels will be located for the proposed transmission line Due to the exact location and number of parcels to be acquired not being finalized, it is not possible to give exacting delivery dates for the appraisals It is anticipated that between $8,000 and $10,000 of appraisal work being completed per month, beginmng with the month of September, if I am authorized to start the work in the immediate future My fee per hour for court room testimony and for time preparing for court room testimony as an expert witness is $125 per hour, with time commencing when I leave my office for such testimony and ending at the end of the court room appearance It is understood that this agreement will be Exhibit A in the Professional Services Agreement for Appraisal Relating to the West Transmission Line & Station Project if the assignment is awarded to me Thank you again for allowing me to submit this proposal If you have questions, or if I can be of further service, please call Respectfully, John G Hirschy & Associates of Dallas John G Hirschy, MAI, SRA Paul H Williamson Right -of -Way Agent City of Denton August 15, 2000 Page 3 of 3 Following is a table of possible appraisal fees for various products Product Potential Damages to the Remainder Parcels Appraisal Fee Subtotal Acreage Land No 3 $2,000 $6,000 Acreage Land Yes 1 Up to $3,000 $3,000 Urban Land No 1 $2,000 $2,000 Urban Land Yes 1 Up to $3,000 $3,000 Apartments No 1 $2,000 $2,000 Apartments Yes 1 Up to $4,500 $4,500 Industrial — Non -Complex No 1 $2,000 $2,000 Industrial —Non-Complex Yes 1 $3,500 to $4,500 $4,500 Industrial — Complex No 1 $2,000 $2,000 Total 11 $29,000