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2002-173FILE REFERENCE FORM I 2002-173 I Additional File Exists Additional File Contaim Records Not Public, According to the Public Records Act Other FILE(S) Date Initials 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 -2- 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. -3- 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 -4- 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. -5- 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 -6- 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 -7- 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. -8- 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 -9- 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: -10- "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 -Il - 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. -12- 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 -13- 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 -3- 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 -4- 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.