2002-173FILE REFERENCE FORM I 2002-173 I
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First Amendmem to Agreement (original is attached) 01/14/03 JW
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH
JAMES DUNCAN & ASSOCIATES, INC. FOR PROFESSIONAL ENGINEERING
AND CONSULTING SERVICES PERTAINING TO THE PREPARATION OF AN
UPDATED IMPACT FEE STUDY FOR THE WATER AND WASTEWATER
UTILITIES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems that it is in the public interest to engage James
Duncan & Associates, Inc., dfo/a Duncan Associates, a Texas Corporation (hereafter
"Duncan"), situated in Austin, Texas to provide professional engineering and consulting
services pertaining to the preparation of an updated impact fee study for the water and
wastewater utilities; and
WHEREAS, the City staff has reported to the City Council that there is a
substantial need for the above-referenced professional engineering and consulting services,
as required by applicable law; that limited City staff cannot legally perform the specialized
services and tasks with its own personnel; and that it is accordingly necessary for the City
to engage an outside consulting firm to complete an update of the previous 1998 impact fee
study for the water and wastewater utilities; 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; NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1: That the City Manager is hereby authorized to execute a
Professional Services Agreement with James Duncan & Associates, Inc. d/b/a Duncan
Associates, a Texas Corporation, of Austin, Texas, for professional engineering and
consulting services pertaining to the preparation of an updated impact fee study for the
water and wastewater utilities; in substantially the form of the Professional Services
Agreement attached hereto and incorporated herewith by reference.
SECTION 2: That the award of this Agreement by the City is on the basis of the
demonstrated competence, knowledge, and qualifications of Duncan and the demonstrated
ability of Duncan to perform the services needed by the City for a fair and reasonable
price.
SECTION3: That the expenditure of fimds as provided in the attached
Professional Services Agreement is hereby authorized.
SECTION 4: That this ordinance shall become effective immediately upon its
passage and approval.
PASSED AND APPROVED this the //~-~ day of &~ ,2002.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
By:
S:\Our Documents\Ordinances\02~Duncan Associates-PSA WWW Updtd Impact Fee Study.doc
STATE OF, TEXAS
COUNTY OF DENTON
PROFESSIONAL SERVICES AGREEMENT
FOR THE WATER AND WASTEWATER IMPACT FEE UPDATE
~ vH IaSn dA ~ elel~Ee eMnEt~ eT ~l~ado~ ~edn~nt .er~de~m;s°. aaS ~xtha: ~Ya~ %o~~/")~ its'
200~, y ' y , , ' 'p rlsoranon, with
principal offices at 215 East McKinney Street, Denton, Texas 76201 (hereafter "OWNER") and
James Duncan and Associates, Inc., doing business as Duncan Associates, a Texas corporation,
with its offices at 13276 Research Boulevard, Suite 208, Austin, Texas 78750 (hereafter
"CONSULTANT"); the parties acting herein, by and through their duly-authorized
representatives and officers.
WITNESSETH, that in consideration of the mutual promises, covenants, agreements
herein, and in consideration of the premises, the parties hereto do mutually AGREE as follows:
ARTICLE I
EMPLOYMENT OF CONSULTANT
The OWNER hereby contracts with CONSULTANT, as an independent contractor, and
the CONSULTANT hereby agrees to perform the services herein in connection with the Project
as stated in the Articles to follow, with diligence and in accordance with the professional
standards customarily obtained for such services in the State of Texas. The professional services
set forth herein are in connection with the following described project (the "Project"):
Professional engineering services pertaining to the update of the City's water and
wastewater impact fees.
ARTICLE II
SCOPE OF SERVICES
The CONSULTANT shall perform the following Basic Services in a professional
manner:
A. To perform those professional services as set forth in the Scope of Work and Fee Proposal -
Water and Wastewater Impact Fee Update for the City of Denton, dated April 24, 2002,
prepared by CONSULTANT for OWNER; which document is attached hereto as Exhibit"
A," and is incorporated herein by reference; which document is comprised of, and subdivided
into the following three (3) sections:
Exhibit "A": Scope of Services
Exhibit "B": Project Schedule
Exhibit "C": Cost Proposal
B. If there is any conflict, or if any conflict arises between the terms of this Agreement and
Exhibits "A", "B" and "C" attached to this Agreement, the terms and conditions of this
Agreement shall control over the terms and conditions of the Exhibits.
ARTICLE III
ADDITIONAL SERVICES
Any additional services to be performed by the CONSULTANT, if authorized by the OWNER,
which are not included as Basic Services in the above-described Scope of Services, set forth as
provided by Article II. above, shall be later agreed-upon by OWNER and CONSULTANT, who
shall determine, in writing, the scope of such additional services, the amount of compensation for
such additional services, and other essential terms pertaining to the provision of such additional
services by the CONSULTANT.
ARTICLE 1V
PERIOD OF SERVICE
This Agreement shall become effective upon its execution by the OWNER and the
CONSULTANT, and upon the issuance of a notice to proceed by the OWNER, and shall remain
in force and effect for the period that 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. CONSULTANT shall make all reasonable efforts to
complete the services set forth herein as expeditiously as possible and to meet the schedule
reasonably established by the OWNER, acting through its City Manager or his designee.
ARTICLE V
COMPENSATION
A. BILLING AND PAYMENT:
For and in consideration of the professional services to be performed by the CONSULTANT
herein, the OWNER agrees to pay CONSULTANT, based upon the satisfactory completion
of the Basic Services tasks set forth in the Scope of Services as shown in Article II above; as
follows:
1. CONSULTANT shall perform its work on this Project in accordance with the provisions
of those tasks which are described and as set forth in the "Scope of Services" of Exhibit
"A" attached hereto and incorporated herewith by reference. For and in consideration of
the professional services to be performed by the CONSULTANT herein, the OWNER
agrees to pay a total fee per task as set forth in Exhibit "C". The total compensation for
all services described in Exhibit "A" is $39,560.
2. Partial payments to the CONSULTANT will be made monthly in accordance with the
statements reflecting the actual completion of the Basic Services, rendered to and
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approved by the OWNER through its City 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 ten
(10%) percent of the above total contract amount until satisfactory completion of the
Project by the CONSULTANT.
Nothing contained in this Article shall require the OWNER to pay for any work which is
unsatisfactory as reasonably determined by the City Manager or his designee, or which is
not submitted by CONSULTANT to the OWNER in compliance with the terms of 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 not-to-
exceed amount as stated hereinabove, without first having obtained the prior written
authorization from the OWNER. CONSULTANT shall not proceed to perform any
services to be later provided for under Article III: "Additional Services" without first
obtaining prior written authorization fi'om the OWNER.
B. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in
Article III. hereinabove, CONSULTANT shall be paid based on a to-be-agreed-upon Schedule of
Charges. Payments for additional services shall be due and payable upon submission by the
CONSULTANT, and shall be in accordance with Article V.B. hereinabove.
CONSULTANT shall bill from time sheets, on a once-monthly basis, in minimum 1/4
hour or smaller time increments, at the hourly Billing Rates shown in Exhibit "C",
which is incorporated herewith by reference
"Subcontract Expense" is defined as those expenses, if any, incurred by
CONSULTANT in the employment of others in outside firms, for services in the area
of professional engineering, or related services. Any subcontractor or sub-consultant
billing reasonably incurred by the CONSULTANT in connection with authorized
additional services for the Project shall be invoiced to OWNER at the actual cost plus
ten pement.
"Direct Non-Labor Expense" is defined as that expense, based upon actual cost, for
any out-of-pocket expense reasonably incurred by the CONSULTANT in the
performance of additional services under this Agreement for long distance telephone
charges, telecopy charges, messenger services, printing and reproduction expenses,
out-of-pocket expenses for purchased computer time, prudently incurred travel
expenses related to the work on the Project, and similar incidental expenses incurred
in connection with the additional services for the Project.
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C. PAYMENT: Statements for Basic Services and any Additional Services shall be submitted
to OWNER no more frequently than once monthly. If the OWNER fails to make payments
due the CONSULTANT for services and expenses within forty-five (45) 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%) per month from and after the said forty-fifth
(45th) day, and in addition, thereafter, the CONSULTANT may, after giving ten (10) days
written notice to the OWNER, suspend services under this Agreement until the
CONSULTANT has been paid in full for all amounts then due and owing, and not disputed
by OWNER, for services, expenses and charges. Provided, however, nothing herein shall
require the OWNER to pay the late charge of one percent (1%) per month as set forth herein,
if the OWNER reasonably determines that the CONSULTANT's work is unsatisfactory, and
OWNER has notified CONSULTANT of that fact in writing.
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 of its subcontractors or sub-consultants.
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 the Agreement in another project or for other purposes than
specified herein any of the information or materials developed pursuant to this Agreement,
CONSULTANT is released from any and all liability relating to their usc in that project.
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 fight arising from
employee status.
ARTICLE IX
INDEMNITY AGREEMENT
The CONSULTANT shall indemnify and save and hold harmless the OWNER and its
officials, officers, agents, attorneys and employees from and against any and all liability, claims,
demands, damages, losses and expenses, including but not limited to court costs and reasonable
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attorney fees incurred by the OWNER, and including without limitation damages for bodily and
personal injury, death, or property damage, resulting from the negligent acts or omissions of the
CONSULTANT or its officers, shareholders, agents, subcontractors, subconsultants, attorneys,
and/or employees 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 party's 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 immtmity, which defenses are hereby
expressly reserved.
ARTICLE X
INSURANCE
During the performance of the Services under this Agreement, CONSULTANT shall
rna'retain the following insurance with an insurance company licensed to do business in the State
of Texas by the State Insurance Board or any successor agency, that has a rating with A. M. Best
Rate Carders of at least an "A-" or above:
A. Comprehensive General Liability Insurance with bodily injury limits of not less than
$1,000,000 for each occurrence and not less than $I,000,000 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 for not
less than $100,000 for each accident.
C. Worker's Compensation Insurance in accordance with statutory requirements and Employer's
Liability Insurance with limits of not less than $100,000 for each accident.
D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate.
E. CONSULTANT shall furnish insurance certificates or insurance policies to the OWNER to
evidence such insurance coverage. The insurance policies shall name the OWNER as an
additional insured on all such policies to the extent that is legally possible, and shall contain a
provision that such insurance shall not be cancelled or modified without at least 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 of coverage,
deliver copies of any such substitute policies, furnishing at least the same policy limits and
coverage, to OWNER.
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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 arising 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 terminate this
Agreement by providing thirty (30) days advance written notice to the other party.
B. This Agreement may alternatively be terminated in whole or in part in the event of either
party substantially failing to fulfill its obligations under this Agreement. No such termination
will be effected unless the other party is given (1) written notice (delivered by certified mail,
return receipt requested) of intent to terminate and setting forth the reasons specifying the
nonperformance or other reason(s), 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 this Agreement is terminated prior to completion of the services to be provided hereunder,
CONSULTANT shall immediately cease all services upon receipt of the written notice of
termination from OWNER, and shall render a final bill for services to the OWNER within
twenty (20) days after the date of termination. The OWNER shall pay CONSULTANT for
all services properly rendered and satisfactorily performed, and for reimbursable expenses
prior to notice of termination being received by CONSULTANT, in accordance with Article
V. of this Agreement. Should the OWNER subsequently contract with a new consultant for
the continuation of services on the Project, CONSULTANT shall cooperate in providing
information to the OWNER and to the new consultant. If applicable, OWNER shall allow
CONSULTANT a reasonable time to transition and to turn over the Project to a new
consultant. 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 files.
ARTICLE XIII
RESPONSIBILITY FOR CLAIMS AND LIABILITIES
Approval of the work by the OWNER shall not constitute, nor be deemed a release of the
responsibility and liability of the CONSULTANT, its officers, employees, agents,
subcontractors, and sub-consultants for the accuracy and competency of their designs or other
work performed pursuant to this Agreement; nor shall such approval by the OWNER be deemed
as an assumption of such responsibility by the OWNER for any defect in the design or other
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work prepared by the CONSULTANT, its principals, officers, employees, agents,
subcontractors, and sub-consultants.
ARTICLE XIV
NOTICES
All notices, communications, and reports required or permitted under this Agreement
shall be personally delivered to; or telecopied to; or mailed to the respective parties by depositing
same in the United States mail at the addresses shown below, postage prepaid, certified mail,
return receipt requested, unless otherwise specified herein:
To CONSULTANT:
To OWNER:
James B. Duncan, President
Duncan Associates
13276 Research Blvd., Ste. 208
Austin, Texas 78750
Fax: (512) 258-9994
City of Denton, Texas
City Manager
215 East McKinney
Denton, Texas 76201
Fax: (940) 349-8596
All notices given under this Agreement shall be effective upon their actual receipt by the
party to whom such notice is given.
ARTICLE XV
ENTIRE AGREEMENT
This Agreement consisting of eleven (11) pages and three (3) Exhibit(s) 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
SEVERABILTY '
If any provision of this Agreement is found or deemed by a court of competent
jurisdiction to be invalid or unenfomeable, it shall be considered severable from the rema'mder of
this Agreement, and shall not cause the remainder to be invalid or unenforceable. In such event,
the parties shall reform this Agreement, to the extent reasonably possible, to replace such
stricken provision with a valid and enforceable provision which comes as close as possible to
expressing the original intentions of the parties respecting any such stricken provision.
ARTICLE XVll
COMPLIANCE WITH LAWS
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The CONSULTANT shall comply with all federal, state, local laws, rules, regulations,
and ordinances applicable to the work performed by CONSULTANT hereunder, as they may
now read or as they may hereafter be amended.
ARTICLE XVIII
DISCRIMINATION PROHIBITED
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. 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 immediately inform the OWNER in writing of any conflict of interest
or potential conflict of interest that CONSULTANT may discover, or which may arise during
the term of this Agreement.
B. Ail services required hereunder will be performed by CONSULTANT or under its direct
supervision. All personnel engaged in performing the work provided for in this Agreement,
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. CONSULTANT shall further promptly notify OWNER in
writing of any change of its name as well as of any significant change in its corporate structure,
its business address, its operations, or regarding its solvency.
ARTICLE XXI
MODIFICATION
No waiver or modification of this Agreement or of any covenant, condition, limitation
herein contained shall be valid unless in writing and duly executed by the party to be charged
therewith. No evidence of any waiver or modification shall be offered or received in evidence in
any proceeding arising between the parties hereto arising out of, or affecting this Agreement, or
the rights or obligations of the parties hereunder, unless such waiver or modification is in
writing, duly executed. The parties further agree that the provisions of this Article will not be
waived unless as herein set forth.
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ARTICLE XXII
MISCELLANEOUS
A. The following Exhibits are attached to, incorporated herewith by reference, and are made a
part ofth/s Agreement for all purposes pertinent:
Exhibit "A": Scope of Services
Exhibit "B": Project Schedule
Exhibit "C": Cost Proposal
B. CONSULTANT agrees that OWNER shall, until the expiration of four (4) years after the
final payment made by OWNER 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
examinations or audits in compliance with this Article. OWNER shall give CONSULTANT
reasonable advance notice of all intended examinations or 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 purposes of this Agreement, the parties agree that the Project Principal shall be James B.
Duncan, President, FAICP, and the key persons who will perform most of the work as the
Project Team, include the Project Manager, Clancy Mullen, AICP. This Agreement has been
entered into with the understanding, expectation, and the OWNER's reliance, that the above-
stated employees of CONSULTANT shall perform all or a significant portion of the work on
the Project. Any proposed changes regarding the change of the Project Manager or other key
personnel, requested by CONSULTANT, respecting one or more of the above-stated
employees, shall be subject to the approval of the OWNER, which approval the OWNER
shall not unreasonably withhold. Nothing herein shall limit CONSULTANT from using
other qualified and competent members of its firm to perform the other incidental services
required herein, under its supervision or control.
E. CONSULTANT shall commence, carry on, and complete its work on the Project with all
applicable dispatch, and in a sound, economical, efficient manner, and in accordance with the
provisions hereof in accomplishing the Project, CONSULTANT shall take such steps as are
appropriate to ensure that the work involved is properly coordinated with any related work
being carried 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 to, and make all provisions for the
CONSULTANT to enter in or upon, pubhc and private property as required for the
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CONSULTANT to perform professional services under this Agreement. OWNER and
CONSULTANT agree that CONSULTANT is entitled to rely upon information furnished to
it by OWNER without the need for finther inquiry or investigation into such information.
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.
IN WITNESS WHEREOF, the OWNER, the City of Denton, Texas has executed this
Agreement in four (4) original counterparts, by and through its duly authorized City Manager;
and CONSULTANT has execute~t~, this Agree. l~0ent by and through its duly authorized
undersigned officer on this the /¢~Zc day of ~ ,200 ~..
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: MICHAEL A. C I~FF
CITY MANAG~R(~D
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
By:
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"CONSULTANT"
ATTEST:
James Duncan and Associates, Inc.
A Texas Corporation doing business as
Duncan Associates
JameS. Duncan, FAICP, President
By
Cl2ncy I~ul~e~j A~, Senior Associate
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EXHIBIT "A"
SCOPE OF SERVICES
Project Understanding and Approach
The purpose of this project is to assist the City of Denton in updating its existing water
and wastewater impact fees for treatment facilities and expanding these fees to cover
distribution and collection line costs as well. The update will bring the fees in line with
current costs, and comply with the requirement of Chapter 395 that the Capital
Improvements Plan and fees be updated every five years (recently changed from three
years).
One of the things the City wishes to do differently this time is to include interest costs in
the impact fee calculations. The City wants to have revenue credits calculated as they
were last time, but to compare these results with the alternative, provided by last year's
amendments to Chapter 395, of reducing the fees by half in lieu of calculating revenue
credits.
The City recently completed an analysis of capital improvement needs for the water
distribution system and the wastewater collection system based on the land use
assumptions contained in the recently-completed comprehensive plan. With some
additional analysis, this will serve as the basis for the capital improvements plan. All
elements of the capital improvements plan required by Chapter 395 to be certified by a
professional engineer will be prepared by the City or the City's engineering consultant.
No engineering work is included as part of this proposal.
The update study will explore the possibility of basing the impact fees for new
residential customers on a dwelling unit basis rather than meter size. The study will
also explore varying the fees for single-family development on the basis of dwelling unit
size. Finally, the update study will explore the possibility of excluding an older,
developed "infill" area from the service area for the line component of the fees.
Task 1: Project Organization
Immediately upon contract execution, the Consultant will meet with key members of City
staff to gather available information related to the project; identify major technical and
policy issues involved; coordinate staff and consultant responsibilities; and refine the
project schedule. The City staff will include representatives from water and wastewater,
engineering, planning, finance and law. The Consultant will need to gain a clear
understanding of the City's current policy of line extensions and developer contributions
for off-site improvements. This will also be a good opportunity to identify boundaries for
a potential infill area to be excluded from the service areas for the purpose of the line
components.
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The City should provide the Consultant, without charge, copies of all relevant plans,
studies and documents needed to perform the scope of work. These may include, but
are not limited to:
capital improvement plans for water and wastewater
maps of service area boundaries (letter size)
map showing "infill area" to be excluded from service areas for line fees
current and historical data (last five years) on number of customers and
consumption by meter size and customer class
most recent annual budget and comprehensive financial report
debt payment schedules for outstanding water/wastewater bond issues
prospectus from recent water/wastewater bond issues
data on existing and projected land use and serviced population within the
service areas
At the conclusion of the task, the Consultant will prepare a memorandum summarizing
the organizational framework for the project and listing additional data needs. The
memorandum will be delivered within two weeks of the organizational meeting.
Deliverable: Project Organization Meeting
Project Organization Memorandum
Task 2: Land Use Assumptions
City staff will develop 2002 to 2012 growth projections for the City's water service area
(Certificate of Convenience and Necessity or CCN) and wastewater service area.
Projections shall include total population, housing units, and nonresidential land use
(acres and building floor area) and may also include estimates of population served by
City water and sewer systems.
City staff will also prepare maps of the service areas. This can be done as a single map
showing the water service area, the portion of the water service area that is excluded
from the wastewater service area, and the "infill" area that will be excluded from the
service areas for the line component of the water and wastewater fees.
Consultant will coordinate with City staff on the nature and format of the land use
assumptions and will review the draft City resolution establishing a public hearing date
and draft public notices for compliance with Chapter 395. It is assumed that City staff
will handle all public hearings relating to adoption of the Land Use Assumptions.
Deliverable: Assistance on Land Use Assumptions
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Task 3: Draft Capital Improvements Plan
City staff or a consulting engineering firm will prepare the list of water and wastewater
capital improvements required to accommodate growth over the 2002-2012 planning
horizon based on the land use assumptions. Some of these improvements may be
existing facilities that have excess capacity that will be used by new customers. For
each improvement, the estimated cost and the percent of the cost attributable to growth
over the planning horizon based on capacity utilized will be provided. Anticipated
interest costs for planned improvements and past and future interest costs for existing
improvements with excess capacity should be included in the cost estimates. Any
improvements, or the share of the cost of any improvements that are required to correct
existing capacity or quality deficiencies or to meet upgraded standards should be
identified as non-growth-related costs. The City or its consulting engineer will provide
this information to the Consultant in a report certified with the seal of an engineer
licensed in the State of Texas.
The Consultant will coordinate with the City or consulting engineer on the report
described above that will be the basis for the impact fee Capital Improvements Plan. In
this task, the Consultant will prepare the initial draft of the water and wastewater Capital
Improvements Plan. The report will describe the methodology and formula used to
calculate the fees, document all data sources and assumptions, and include a fee
schedule that represents the fees that could be charged. At least one full working draft
will be delivered to City staff for review and comment prior to delivery of the draft study.
Deliverables: Working Draft for Staff Review
Public Review Draft Capital Improvements Plan
Task 4: Draft Ordinance Amendments
The Consultant will prepare an initial draft of amendments to the City's impact fee
ordinance to implement the updated water and wastewater treatment impact fees and
new water and wastewater line impact fees. The amendments will also address other
issues identified in the study, which may include incorporating interest costs as an
eligible impact fee expenditure, exempting an "infill" area from the line fees, basing
residential fees on dwelling units rather than meter size, and basing single-family fees
on unit size.
Deliverables: Working Draft for Staff Review
Public Review Draft Impact Fee Ordinance
Task 5: Local Review Meetings
During the course of the project, the Consultant will make up to two trips to Denton to
meet with City staff, the Capital Improvements Advisory Committee, the City Council or
-14-
other groups. The role of the Advisory Committee will be to review the methodology
and calculations in the Capital Improvements Plan, to provide input on policy issues to
be incorporated into the amended impact fee ordinance, and to develop community
consensus and support for the project. These policy issues include whether the fee
should be charged at some percentage of the full cost, whether they should be phased
in gradually and how credits should be provided for required developer contributions.
Additional participation in public meetings may be provided on a time-plus-expense
basis.
Deliverables: Two (2) Person-Trips
Task 6: Final Study/Ordinance
Following review and comment on the draft capital improvements plan and impact fee
ordinance amendments by City staff and the Advisory Committee, the Consultant will
make appropriate revisions and provide final drafts of both documents.
Deliverables: Final Capital Improvements Plan
Final Impact Fee Ordinance Amendments
Task 7: Adoption Hearings
The Consultant will attend up to three public hearings to present the Capital
Improvements Plan and ordinance amendments to the City Council and/or other review
bodies. Additional participation in adoption meetings may be provided on a
time-plus-expense basis.
Deliverables: Three (3) Person-Trips
-15-
EXHIBIT "B"
PROJECT SCHEDULE
The project schedule outlined in the scope of services is summarized in the following
flowchart. As shown below, the project could be completed in six months, although this
schedule is ambitious and would require expedited work by City staff to prepare the land
use assumptions and engineering analysis for the capital improvements plan and to
provide quick reviews of Consultant's draft work products.
Jun Jul Aug Sep Oct Nov
1: Project Organization (1 trip) ~'
2: Land Use Assumptions ~,~i~::~"
3: Draft Capital Tmprovements
Plan '
4: Draft Ordinance Amendments
5: Local Review Meetings (2 trips)
6: Final Study/Ordinance []
7: Adoption Hearings (3 trips)
draft deliverable ~ = final deliverable ¢r = meeting/presentation
EXHZBZT"C"
COST PROPOSAL
The total cost of the professional services described in this proposal is $39,560. This lump-
sum budget includes all direct and indirect expenses incurred by the consultant team in
performing the services. The breakdown of project cost by task is presented below. The
City will be billed monthly based on percent completion of individual tasks.
Task Cost
1: Project Organization
$3,460
2: Land Use Assumptions
$2,640
3: Draft Capital Improvements Plan
$14,960
4: Draft Ordinance Amendments
$5,600
5: Local Review Meetings (2 trips)
$3,400
6: Final Study/Ordinance
$4,400
7: Adoption Hearings (3 trips)
$5,100
Total Project
$39,560
Additional services beyond those included in the scope of services may be provided at the
following standard hourly rates: .lames B. Duncan, FAICP-$150; Clancy Mullen, AICP-$125,
Eric Damian Kelly, Esq., FAICP-$175, support planning staff-S85. Direct expenses will be
limited to travel costs (airfare, hotel, rental car, parking and meals) and direct mail costs.
Additional trips may be provided on a time-plus-direct expense basis, or on a flat rate of
$1,700 per person-day.
STATE OF TEXAS
COUNTY OF DENTON
FIRST AMENDMENT TO
PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES
REGARDING THE UPDATING OF WATER & WASTEWATER IMPACT FEES
THIS FIRST AMENDM.E~T./TO A~'tREEMENT (hereatter the "Fkst Amendment") is
made and entered into as of the/_,/~day of~ 2003, by and between the City of
Denton, Texas, a Texas Municipal Corporation/with its pril~fzfpal offices at 215 East McKinney Street,
Denton, Texas 76201 (hereinafter "OWNER"); and James Duncan & Associates, Inc., a Texas
Corporation, with its offices at 13276 Research Boulevard, Suite 208, Austin, Texas 78750 (hereinafter
"CONSULTANT"); the parties acting herein by and through their respective duly-authorized
representatives and officers.
WlTNESSETH, that in consideration of the mutual promises, covenants, agreements herein
contained, and in consideration of the premises, the parties hereto do mutually AGREE as follows:
ARTT(2T .F. I
EMPLOYMENT OF CONSULTANT
This First Amendment contains additional work in the scope of services, over and above the
scope of work provided in the original Agreement, dated June 18, 2002, executed by and between
OWNER and CONSULTANT. The OWNER and CONSULTANT intend that this First Amendment
shall be in lieu of, and in substitution for that certain previous Professional Services Agreement (hereafter
the "Agreement"), dated June 18, 2002, providing for payment of not to exceed $39,560 from
OWNER to CONSULTANT.
The OWNER hereby contracts with CONSULTANT, as an independent contractor, and the
CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated
in the Ardcles to follow, with diligence and in accordance with the professional standards customarily
obtained for such services in he State of Texas. The professional services set forth herein are in
connection with the following described project (the "Project"):
Providing professional consulting services to the City of Denton, Texas pertaining to the project
organization, prepare land use assumptions, draft capital improvements plan, draft amended Ordinance,
prepare final study, and attend the adoption hearings regarding any adoption of amended impact fees.
ARTI(2T .g. IT
SCOPE OF SERVICES
The CONSULTANT shall perform the following Basic Services in a professional manner:
To perform those services as are set forth in the attachments hereto, consisting of six (6) total
pages, marked as Exhibit "A" ("Scope of Services''); Exh/bit "B" ("Project Schedule"), and
Exhibit "C" ("Cost Proposal"); which Exhibits are attached hereto, and the same are
incorporated herewith by reference.
Page 1 of 10
If there is any conflict that arises between the terms of this First Amendment and any or all of the
Exhibits referenced in II.A. hereinabove, then the terms and conditions of this First Amendment
shall control over the terms and conditions of the attached Exhibits.
ARTI(~I .F. III
ADDITIONAL SERVICES
Any Additional Services to be perfomaed by CONSLrLTANT, if authorized by the OWNER,
which are not included as Basic Services in the above-described Scope of Services, set forth in Article
II above, shall be later agreed-upon by OWNER and CONSULTANT, who shall detem~ine, in writing,
the scope of such Additional Services, the mount of compensation for such Additional Services, and
other essential terms pertaining to the provision of such Additional Services by the CONSULTANT.
AR TIC~I .I~. IV
PERIOD OF SERVICE
This First Amendment shall become effective, and shall be in all things be ratified and confirmed
as of October 18, 2002 by agreement of OWNER and CONSULTANT. It shall remain in force and
effect for the period that may reasonably be required for the completion of the Project, including
Additional Sexvices, if any, and any required extensions approved by the OWNER. The pan/es shall
generally follow Exhibit "B" "Project Schedule" regarding the professional services rendered. This First
Amendment may be sooner terminated in accordance with the pmvisions hereof. Time is ofthe essence
in the perfommnce and completion of this First Amendment. CONSULTANT shall make all
reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the
schedule(s) reasonably established by the OWNER, acting through its City Manager, its Assistant City
Manager for Utilities, or his designee.
ARTI(~T .~ V
COMPENSATION
A. COMPENSATION TERMS:
1. "Subcontract Expense" is defined as those expenses, if any, incurred by
CONSULTANT in the employment of others in outside firms, for services in the area of
professional consulting, or other related services. Any subcontractor or sub-consultant billing
reasonably incurred by the CONSULTANT in furtherance and connection with the Project shall
be invoiced to OWNER.
2. "Direct Non-Labor Expense" is defined as that expense, based upon actual cost, for
any out-of-pocket expense reasonably incurred by the CONSULTANT in the performance of
this First Amendment for long distance telephone charges, telecopy charges, messenger services,
printing and reproduction expenses, out-of-pocket expenses for purchased computer time,
prudently incun'ed travel expenses related to the work on the Project, and similar incidental
expenses incurred in connection with the Project.
B. BILLING AND PAYMENT:
For and in consideration of the professional services to be performed by CONSULTANT herein,
OWNER agrees to pay CONSULTANT, based upon the satisfactory completion of the Basic
Page 2 of 10
Services tasks set forth in the Scope of Services as shown in Exhibit "A" above; as follows:
1. CONSULTANT shall perform its work on this Project in accordance with the
provisions of those tasks which are described and are set forth in the "Scope of Services"
defined in Exhibit "A" attached hereto and incorporated herewith by reference.
CONSULTANT shall bill on a once-monthly basis in accordance with the provision of the hourly
billing rates, on a lump-sum basis as applicable, and as otherwise provided in Exhibit "C" ("Cost
Pmposal"). For and in consideration of the professional services to be performed by
CONSULTANT herein, the OWNER agrees to pay, in accordance with Exhibit "C" hereto,
which is incorporated herewith by reference, a total fee, including reimbursement for direct non-
labor expenses and for its subcontractor expenses, an amount not to exceed $49,360.
2. Partial payments to the CONSULTANT shall be made monthly in accordance with
the statements reflecting the actual completion of the Basic Services, rendered to an approved by
the OWNER through its City Manager, or its Assistant City Manager for Utilities, 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 ten
(10%) percent of the above not-to-exceed amount until satisfactory completion of the Project by
the CONSULTANT.
3. Nothing contained in this Paticle shall require the OWNER to pay for any work that
is not submitted in compliance with the terms of this Agreement. OWNER shall not be required
to make any payments to CONSULTANT at any time when CONSULTANT is in default under
this First Amendment.
4. It is specifically understood and agreed that the CONSULTANT shall not be
authorized to undertake any work pursuant to tiffs First Amendment which would require
additional payments by the OWNER for any charge, expense or reimbursement above the not-
to-exceed amount as stated bere'mabove, without first having obtained the prior written
authorization of the OWNER. CONSULTANT shall not proceed to perform any services to be
later provided for under Article m. "Additional Services" without first obtaining prior written
authorization from the OWNER.
ADDITIONAL SERVICES: For Additional Services authorized in writing by the OWNER in
Article III. hereinabove, CONSULTANT shall be paid based on a to-be-agreed-upon Schedule
of Charges. Payments for Additional Services shall be due and payable upon submission by the
CONSULTANT, and shall be paid in accordance with Article V.B. hereinabove. Statements for
Basic Services and any Additional Services shall be submitted to OWNER no more frequently
than once monthly.
PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services
and expenses within forty-five (45) days after receipt of the CONSULTANTs undisputed
statement thereof, the amounts due the CONSULTANT will be increased by the rate of one
percent (1%) per month fi'om and after the said forty-fifth (45th) day, and in addition, thereafter,
the CONSULTANT may, after giving ten (10) days written notice to the OWNER, suspend
services under this First Amendment until the CONSULTANT has been paid in full for all
amounts then due and ow'rog, and not disputed by OWNER, for services, expenses and charges.
Provided, however, nothing herein shall require the OWNER to pay the late charge of one
percent (1%) per month as set forth herein, if the OWNER reasonably determines that the
Page 3 of 10
CONSULTANT's work is not submitted in accordance with the terms of this Fkst Amendment,
or is unsatisfactory, in accordance with Pu-ticle V.B. of this First Amendment, and OWNER has
promptly notified CONSULTANT of that fact in writing.
ARTI(~T F. 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 CONSULTANT or any of its
subcontractors or sub-consultants.
A RTTC~T .1~ VII
OWNERSHIP OF DOCUMENTS
All documents prepared or furnished by the CONSULTANT pursuant to this First Amendment
are instruments of service and shall become the property of the OWNER upon the termination of this
First Amendment. 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 the First Amendment in another project or for other purposes
than specified herein any of the information or materials developed pursuant to this Fimt Amendment,
CONSULTANT is released fi:om any and all liability relating to their use in that project.
ARTTC'J g VIII
INDEPENDENT CONTRACTOR
CONSULTANT shall provide services to OWNER as an independem contractor, not as an
employee of the OWNER. CONSULTANT shall not have or claim any right aris'rog from employee
status.
ARTTC~T .lc'.
INDEMNITY AGREEMENT
The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials,
officers, agents, attomeys and employees from and against any and all liability, claims, demands,
damages, losses and expenses, including but not limited to court costs and reasonable attorney fees
incurred by the OWNER; and including without limitation damages for bodily md personal injury,
death, or property damage, resulting from the negligent acts or omissions of the CONSULTANT or its
office~s, shareholdem, agents, attomeys and employees in the execution, operation, or performance of
this F~t Amendment.
Nothing in this First Amendment shall be construed to create a liability to any person who is not a
party to this First Amendment and nothing here'm shall waive any of the party's defenses, both at law or
equity, to any claim, cause of action or litigation filed by anyone not a party to this First Amendment,
including the defense of governmental immunity, which defenses are hereby expressly reserved.
ARTT(~I .R X'
INSURANCE
Page 4 of 10
During the performance of the Services under this First Amendment, CONSULTANT shall
maintain the following insurance w/th an insurance company licensed to do business in the State of Texas
by the State Insurance Board or any successor agency, that has a rating with A. M. Best Rate Carriers
of at least an "A-" or above:
Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000
for each occurrence and not less than $1,000,000 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.
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 for not less than
$100,000 for each accident.
C. Worker's Compensation Insurance in accordance with statutory requirements, and Employer's
Liability Insurance with limits of not less than $100,000 for each accident.
D. Professional Liability Insurance or appropriate Errors & Omissions Insurance with limits of not
less than $1,000,000 annual aggregate.
CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's
request to evidence such coverages. 2he insurance policies shall name the OWNER as an
additional immred on all such policies to the extent that is legally 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 of coverage, deliver copies of any such
substitute policies, furnishing at least the same policy limits and coverage, to OWNER.
ARTICI F
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The parties will make efforts to settle any disputes arising under this First Amendment by
submitting the dispute to arbitration or other means of altemate dispute resolution such as mediation.
However, no arbitration or other form of alternate dispute resolution arising out of, or relating to this
Fhst Amendment involving one party's disagreement may include the other party to the disagreement
without the others approval.
AI~TICI .F. X'II
TERMINATION OF AGREEMENT
Notwithstanding any other provision of this First Amendment, either party may terminate this First
Amendment by providing thirty (30) days advance written notice to the other party.
This First Amendment may alternatively be terminated in whole or in part in the event of either
paw substantially failing to fulfill its obligations under this First Amendment. No such termination
will be effected unless the other party is given (1) written notice (delivered by certified mail, return
receipt requested) of intent to terminate and setting forth the reasons specifying the
nonperformance or other reason(s), and not less than thirty 00) calendar days to cure the failure;
and (2) an opportunity for consultation with the terminating party prior to termination.
Page 5 of 10
If the First Amendment is terminated prior to completion of the services to be provided
hereunder, CONSULTANT shall immediately cease all services upon receipt of the written
notice of termination f~om OWNER, and shall render a final bill for services to the OWNER
within twenty (20) days af~ the date of temfination. The OWNER shall pay CONSULTANT
for all services properly rendered and satisfactorily performed, and for reimbursable expenses
prior to notice of termination being received by CONSULTANT, in accordance with Ardcle V.
of this First Amendment. Should the OWNER subsequently contract with a new consultant for
the continuation of services on the Project, CONSULTANT shall cooperate in pmviding
information to the OWNER and to the new consultant. If applicable, OWNER shall allow
CONSULTANT a reasonable time to transition and to tum over the Project to a new consultant.
CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT
pursuant to this First Amendment to the OWNER on or before the date of termination, but may
maintain copies of such documents for its files.
ARTI(21 .G 'Xr I'll
RESPONSIBILITY FOR CLAIMS AND LIABILITIES
Approval of the work by the OWNER shall not constitute nor be deemed a release of the
responsibility and liability of the CONSULTANT, its officers, employees, or agents, for the acctracy
and competency of their work performed pursuant to this Fhst Amendment; nor shall such approval by
the OWNER be deemed as an assumption of such responsibility by the OWNER for any defect in the
work prepared by the CONSULTANT, its principals, officers, employees, and agents.
ARTTIT1.1~ ~'TV
NOTICES
All notices, communications, and reports required or permitted under this First Amendment shall
be personally delivered to; or telecopied to; or mailed to the respective parties by depositing same in the
United States mail at the addresses shown below, postage prepaid, certified mail, return receipt
requested, unless otherwise specified herein.
To CONSULTANT:
To OWNER:
James Duncan & Associates, Inc.
13276 Research Boulevard
Suite 208
Austin, Texas 78750
Fax: (512) 258-9994
City of Denton, Texas
City Manager
215 East McKirmey Street
Denton, Texas 76201
Fax: (940) 349-8596
All notices under this First Amendment shall be effective upon their actual receipt by the patly to
whom such notice is given, or three (3) days after mailing of the notice, whichever event shall first occur.
ART~C~I .F. ~
ENTIRE AGREEMENT
This First Amendment consisting of ten (10) pages and three (3) Exhibits constitutes the complete
and final expression of the agreement of the patties and is intended as a complete and exclusive
statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises,
Page 6 of 10
representations, negotiations, discussions, communications, understandings, ~md agreements which may
have been made in connection with the subject matter of this First Amendment.
ARTICI .I~. ~
SEVERABILITY
If any provision of this First Amendment 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 First
Amendment, and shall not cause the remainder to be invalid or unenforceable. In such event, the pardes
shall reform this First Amendment, to the extent reasonably possible, to replace such stricken provision
with a valid and enforceable provision which comes as dose as possible to expressing the original
intentions of the pa~ties respecting any such stricken provision.
AI~ TI~'I .~ XVII
COMPLIANCE WITH LAWS
CONSULTANT shall comply with all federal, state, local laws, niles, regulations, and ordinances
applicable to the work performed by CONSULTANT hereunder, as they may now read or as they
may hercatter be amended.
ARTII~T .~. ~
DISCRIMINATION PROHIBITED
In performing the services required hereunder, CONSULTANT shall not discriminate against any
person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap.
A R TI(2I ,I~ XqX'
PERSONNEL
CONSULTANT represents that it has or will secure at its own expense all personnel required to
perform all the services required under this First Amendment. Such personnel shall not be
employees or officers of, nor have any contractual relations with the OWNER. CONSULTANT
shall immediately inform the OWNER ia writing of any conflict of interest or potential conflict of
interest that CONSULTANT may discover, or which may arise during the term of this First
Amendment.
OWNER requires that CONSULTANT carefully safeguard any documents, data, and
information provided by OWNER to CONSULTANT incident to this engagement.
All services required hereunder will be performed by CONSULTANT or under its direct
supervision. All personnel engaged in performing the work pmvided for in this First Amendment,
shall be qualified, and shall be authorized and permitted under applicable state and local laws to
perform such services.
AR TIC~I .l~ XX
ASSIGNABILITY
Page 7of 10
The CONSULTANT shall not assign any interest in this First Amendment and shall not transfer
any interest in this Fimt Amendment (whether by assignment, novation or othamfise) without the prior
written consent of the OWNER. CONSULTANT shall promptly notif3, OWNER, in writing, of any
change of its name as well as of any material change in its corporate structure, its location, and/or in its
operations.
AI~TIC~I IR ~
MODIFICATION
No waiver or modification of this First Amendment or of any covenant, condition, limitation herein
conlained shall be valid unless in writing and duly executed by the party to be charged therewith. No
evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising
between the parties hereto out of or affecting this First Amendment, or the fights or obligations of the
parties hereunder, unless such waiver cr modification is in writing, duly executed. The parties further
agree that the provisions of this Article will not be waived unless as herein set forth.
ARTICT .I;. XXII
MISCELLANEOUS
A. The following exhibits are attached to, incorporated herewith by reference, and are made a part
of this First Amendment for all purposes pertinent:
Exhibit "A"
Exhibit "B"
Exhibit "C"
Scope of Services
Project Schedule
Cost Proposal
CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final
payment made by OWNER under this F~t Amendment, have access to and the right to examine
any directly pertinent books, documents, papers and records of the CONSULTANT involving
transactions relating to this First Amendment. 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 examinations or audits in
compliance with this Article. OWNER shall give CONSULTANT reasonable advance notice of
all intended examinations or audits.
Venue of any suit or cause of action under this Fkst Amendment shall lie exclusively in Denton
County, Texas. This First Amendment shall be governed by and construed in accordance with
the laws of the State of Texas.
CONSULTANT shall commence, carry on, and complete its work on the Project with all
applicable dispatch, and in a sound, economical, efficient manner, and in accordance with the
provisions hereof. In accomplishing he Project, CONSULTANT shall take such steps as are
appropriate to ensure that the work involved is properly coordinated with related work being
carried on by the OWNER.
For purposes of this First Amendment, the parties agree that the Project Principal shall be James
B. Duncan, FAICP. The key persons who will perform most of the work will include Clancy
Mullen, AICP and Eric Damian Kelly, Esq.. This First Amendment has been entered into with
the understanding, expectation, and the OWNER's reliance, that the above-stated employees of
Page 8 of 10
CONSULTANT shall perform and supervise all or a significant portion of the work on the
Project. Any proposed changes regarding the change of the Project Principal or other key
personnel, requested by CONSULTANT, respecting one or more of the above-stated
employees, shall be subject to the approval of OWNER, which approval the OWNER shall not
unreasonably withhold. Nothing herein shall limit CONSULTANT from using other qualified and
competent members of its firm to perform the other incidental services required herein, under its
supervision or control.
The OWNER shall assist and fully cooperate with CONSULTANT by placing at the
CONSULTANT's disposal all available information pertinent to the Project, including previous
repo~s, any other data relative to the Project and arranging for the access to, and make all
provisions for the CONSULTANT to enter in or upon, public and private property as required
for the CONSULTANT to perform professional services under this First Amendment. OWNER
and CONSULTANT agree that CONSULTANT is entitled to rely upon background information
furnished to it by OWNER without the need for further inquiry or investigation into such
information.
G. The captious of this First Amendment are for informational purposes only and shall not in any way
affect the substantive terms or conditions of this First Amendment.
IN WITNESS WHEREOF, the City of Denton, Texas has executed this First Amendment in
four (4) original counterpaas, by and through its duly authorized City Manager; and CONSULTANT
7~day this~t Amendment by and through its duly authorized undersigned officer, on this the
of~, 2003.
"CITY"
CITY OF DENTON, TEXAS
A Municipal Corporation
Michael A Conduff, C~t~gl~ager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
Page 9 of i 0
ATTEST:
"CONSULTANT"
JAMES DUNCAN AND ASSOCIATES, INC.
A Texas Corporation
S:\Our Documents\Contracts\03~Duncan & Associates-PSA Consulting Svc-lmpact Fees-2003.doc
Page 10 of 10
EXHIBIT "A"
REVISED SCOPE OF SERVICES
Project Understanding and Approach
The purpose of this project is to assist the City of Denton in updating its existing water
and wastewater impact fees for treatment facilities and expanding these fees to cover
distribution and collection line costs as well. The update will bring the fees in line with
current costs, and comply with the requirement of Chapter 395 that the Capital
Improvements Plan and fees be updated every five years (recently changed from three
years).
One of the things the City wishes to do differently this time is to include interest costs in
the impact fee calculations. The City wants to have revenue credits calculated as they
were last time, but to compare these results with the alternative, provided by last year's
amendments to Chapter 395, of reducing the fees by half in lieu of calculating revenue
credits.
The City recently completed an analysis of capital improvement needs for the water
distribution system and the wastewater collection system based on the land use
assumptions contained in the recently-completed comprehensive plan. With some
additional analysis, this will serve as the basis for the capital improvements plan. All
elements of the capital improvements plan required by Chapter 395 to be certified by a
professional engineer will be prepared by the City or the City's engineering consultant.
No engineering work is included as part of this proposal.
The update study will explore the possibility of basing the impact fees for new
residential customers on a dwelling unit basis rather than meter size. The study will
also explore varying the fees for single-family development on the basis of dwelling unit
size. Finally, the update study will explore the possibility of excluding an older,
developed "infill" area from the service area for the line component of the fees.
Task 1: Project Organization
Immediately upon contract execution, the Consultant will meet with key members of City
staff to gather available information related to the project; identify major technical and
policy issues involved; coordinate staff and consultant responsibilities; and refine the
project schedule. The City staff will include representatives from water and wastewater,
engineering, planning, finance and law. The Consultant will need to gain a clear
understanding of the City's current policy of line extensions and developer contributions
for off-site improvements. This will also be a good opportunity to identify boundaries for
a potential infill area to be excluded from the service areas for the purpose of the line
components.
-1-
The City should provide the Consultant, without charge, copies of all relevant plans,
studies and documents needed to perform the scope of work. These may include, but
are not limited to:
capital improvement plans for water and wastewater
maps of service area boundaries (letter size)
map showing "infill area" to be excluded from service areas for line fees
current and historical data (last five years) on number of customers and
consumption by meter size and customer class
most recent annual budget and comprehensive financial report
debt payment schedules for outstanding water/wastewater bond issues
prospectus from recent water/wastewater bond issues
data on existing and projected land use and serviced population within the
service areas
At the conclusion of the task, the Consultant will prepare a memorandum summarizing
the organizational framework for the project and listing additional data needs. The
memorandum will be delivered within two weeks of the organizational meeting.
Deliverable: Project Organization Meeting
Project Organization Memorandum
Task 2: Land Use Assumptions
City staff will develop 2002 to 2012 growth projections for the City's water service area
(Certificate of Convenience and Necessity or CCN) and three wastewater service areas
(the Clear Creek Draina.qe Basin, the Hickory Creek Basin and the remainder of the
wastewater CCN). Projections shall include total population, housing units, and
nonresidential land use (acres and building floor area) and may also include estimates
of population served by City water and sewer systems.
City staff will also prepare maps of the service areas. This can be done as a single map
showing the water service area, the portion of the water service area that is excluded
from the wastewater service area, and the "infill" area that will be excluded from the
service areas for the line component of the water and wastewater fees.
Consultant will coordinate with City staff on the nature and format of the land use
assumptions and will review the draft City resolution establishing a public hearing date
and draft public notices for compliance with Chapter 395. It is assumed that City staff
will handle all public hearings relating to adoption of the Land Use Assumptions.
Deliverable: Assistance on Land Use Assumptions
-2-
Task 3: Draft Capital Improvements Plan
City staff or a consulting engineering firm will prepare the list of water and wastewater
capital improvements required to accommodate growth over the 2002-2012 planning
horizon based on the land use assumptions. Some of these improvements may be
existing facilities that have excess capacity that will be used by new customers. For
each improvement, the estimated cost and the percent of the cost attributable to growth
over the planning horizon based on capacity utilized will be provided. Anticipated
interest costs for planned improvements and past and future interest costs for existing
improvements with excess capacity should be included in the cost estimates. Any
improvements or the share of the cost of any improvements that are required to correct
existing capacity or quality deficiencies or to meet upgraded standards should be
identified as non-growth-related costs. The City or its consulting engineer will provide
this information to the Consultant in a report certified with the seal of an engineer
licensed in the State of Texas.
The Consultant will coordinate with the City or consulting engineer on the report
described above that will be the basis for the impact fee Capital Improvements Plan. In
this task, the Consultant will prepare the initial draft of the water and wastewater Capital
Improvements Plan. The report will describe the methodology and formula used to
calculate the fees, document all data sources and assumptions, and include a fee
schedule that represents the fees that could be charged. Four fee schedules will be
developed for water impact fees1 wastewater impact fees in the Clear Creek Drainage
Basin, wastewater impact fees in the Hickory Creek Drainaqe Basin, and wastewater
impact fees in the remainder of the wastewater CCN. At least one full working draft will
be delivered to City staff for review and comment prior to delivery of the draft study.
Deliverables: Working Draft for Staff Review
Public Review Draft Capital Improvements Plan
Task 4: Draft Ordinance Amendments
The Consultant will prepare an initial draft of amendments to the City's impact fee
ordinance to implement the updated water and wastewater treatment impact fees and
new water and wastewater line impact fees. The amendments will also address other
issues identified in the study, which may include incorporating interest costs as an
eligible impact fee expenditure, exempting an "infill" area from the line fees, basing
residential fees on dwelling units rather than meter size, and basing single-family fees
on unit size. Different wastewater impact fees will be assessed in the Clear Creek
Drainage Basin, the Hickory Creek Drainage Basin and in the remainder of the
wastewater CCN.
Deliverables: Working Draft for Staff Review
Public Review Draft Impact Fee Ordinance
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Task 5: , ~.., =~..; .... M~.~:... Reserved
Task 6: Final Study/Ordinance
Following review and comment on the draft capital improvements plan and impact fee
ordinance amendments by City staff and the Advisory Committee, the Consultant will
make appropriate revisions and provide final drafts of both documents. The final
documents will include different wastewater impact fees for the Clear Creek Draina.qe
Basin, the Hickory Creek Drainaqe Basin and the remainder of the wastewater CCN.
Deliverables: Final Capital Improvements Plan
Final Impact Fee Ordinance Amendments
Task 7: Adoption Hearings
The Consultant will attend up to three public hearings to present the Capital
Improvements Plan and ordinance amendments to the City Council and/or other review
bodies. Additional participation in adoption meetings may be provided on a
time-plus-expense basis.
Deliverables: Three (3) Person-Trips
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EXHIBIT "B"
PROJECT SCHEDULE
The project schedule outlined in the scope of services is summarized in the following
flowchart. As shown below, the project could be completed in six months, although this
schedule is ambitious and would require expedited work by City staff to prepare the land
use assumptions and engineering analysis for the capital improvements plan and to
provide quick reviews of Consultant's draft work products.
Jun Jul Aug Sep Oct Nov
Project Organization (1 trip)
1:
2: Land Use Assumptions
3: Draft Capital Improvements Plan ,;, ~,,,,, ~,~ ,~v ~t v
4: Draft Ordinance Amendments
6: Final Study/Ordinance
7: Adoption Hearings (3 trips)
draft deliverable e = final deliverable ~- = meeting/presentation
EXHIBZT"C"
COST PROPOSAL
The total cost of the professional services described in this proposal is ~ $49.360.
This lump-sum budget includes all direct and indirect expenses incurred by the consultant
team in performing the services. The breakdown of project cost by task is presented
below. The City will be billed monthly based on percent completion of individual tasks.
Task Cost
1: Project Organization
$3,460
2: Land Use Assumptions
$3.960
3: Draft Capital Improvements Plan
$21,840
4: Draft Ordinance Amendments
$8,400
6: Final Study/Ordinance
$6,600
7: Adoption Hearings (3 trips)
$5,100
Total Project
$49.360
Additional services beyond those included in the scope of services may be provided at the
following standard hourly rates: .]ames B. Duncan, FAICP-$150; Clancy Nullen, AICP-$125,
Eric Damian Kelly, Esq., FAICP-$175, support planning staff-S85. Direct expenses will be
limited to travel costs (airfare, hotel, rental car, parking and meals) and direct mail costs.
Additional trips may be provided on a time-plus-direct expense basis, or on a flat rate of
$1,700 per person-day.