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2000-292 ORDINANCE NO d~F~c~ AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH JOHN G HIRSCHY OF JOHN G HIRSCHY & ASSOCIATES OF DALLAS TO PROVIDE REAL PROPERTY APPRAISAL SERVICES FOR THE WEST ELECTRIC TRANSMISSION LINE AND STATION PROJECT, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it in the public interest to engage John G Hlrschy & Associates of Dallas ("Consultant"), to provide real property apprmsal services to the City, and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-described real estate appraisal services, and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Servmes Procurement Act", generally promdes 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 fmr and reasonable price, and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the real estate apprmsal services, as set forth m the Professional Services Agreement, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 The City Council approves, and the City Manager is hereby authorized to execute a Professional Services Agreement with Consultant for real property appraisal services in connection with the West Electric Transmission Line and Station ProJect, in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference SECTION2 The award of tlus Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Consultant and the ability of Consultant to perform the services needed by the City for a fair and reasonable price SECTION 3 The expenditure of funds as provided in the attached Professional Services Agreemen~ is hereby authorized SECTION 4 This ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the ~ day of C~.d~)~ff./9'L~/f'-- 2000 EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT_~~ ~ATTORNEY S \Our Docum~nts\Ordmances\00\HIRSCHY_ORD1 doc Page 2 PROFESSIONAL SERVICES AGREEMENT FOR APPRAISAL RELATING TO THE WEST TRANSMISSION LINE & STATION PROJECT STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the ~Jtl~tay of~, 2000, by and between the City of Denton, Texas, a Texas mumcipal corporation, with its pnnmpal office at 215 East McK~nney Street, Denton, Texas 76201, hereinafter called "OWNER", and John G I-hrschy & Associates, Inc, with its offices at 446 W Bethel Road (PO Box 2009), Coppell, Texas 75019, hereinafter called "CONSULTANT", OWNER and CONSULTANT are acting herein, by and through their duly-authorized officials and representatives WITNESSETH, that m consideration of the covenants and agreements herein contained, the parties hereto do mutually AGREE as follows ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, with diligence and m accordance with the tughest professional standards customarily obtained for such sermces m the State of Texas The professional services set out herein are m connection with the following described project (herematter referred to as the "Project") The Project shall include, without hmatation A The project shall include wnhout llrmtatlon, all appraisal services necessary to assist the city ~n acqumng right-of-way for the WEST TRANSMISSION LINE & STATION PROJECT, witlun the City of Denton and umncorporated Denton County, Texas ("ProJect") ARTICLE H SCOPE OF SERVICES The CONSULTANT shall perform the following sennces in a professional manner A The CONSULTANT shall perform all those Basic Services as necessary, and as described in the CONSULTANT'S August 15, 2000 letter to the OWNER, which is attached hereto and incorporated herewith by reference as Exlubit "A" B If there is any conflict between the terms of tlus Agreement and extubits attached to this Agreentent, the terms and condmons of ttus Agreement will control over the terms and cond~tions of the attached exlublts ARTICLE IH ADDITIONAL SERVICES Additional serrates to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above-described Basra Serwces, are described as follows A Assisting OWNER or contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by tlas Agreement Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to tbas Agreement B Any additional senaces not included m Basic Services ARTICLE IV PERIOD OF SERVICE Tlus Agreement shall become effective upon execution of tlas Agreement by the OWNER and the CONSULTANT and upon the ~ssuance of a notice to proceed by the OWNER, and shall remain in force for the period wl~ch may reasonably be required for the completion of the ProJect, including Additional Services, if any, and any reqmred extensions approved by the OWNER Tlas Agreement may be sooner tenmnated in accordance with the provisIons hereof Time is of the essence in tlas Agreement The CONSULTANT shall make all reasonable efforts to complete the services set forth here~n as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or las designee ARTICLE V COMPENSATION A COMPENSATION TERMS 1 "Subcontract Expense" ~s defined as expenses incurred by the CONSULTANT in employment of others in outside finns for services 2 "D~rect Non-Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation, travel, commumcatlons, subsistence, and lodging away from home, and simalar incidental expenses in connection with that assignment B BILLING AND PAYMENT For and in consideration of the professional services to be performed by the CONSULTANT here~n, the OWNER agrees to pay a total fee, including reimbursement for direct non-labor expenses, not to exceed Twenty Thousand Dollars and No Cents ($20,000 00) Part~al payments to the CONSULTANT will be made on the bas~s of detmled monthly statements rendered to and approved by the OWNER through its City Manager or las 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 w~thhold the final five percent (5%) &the contract amount until satisfactory completion of the ProJect Page 2 Nothing contained ~n th~s Article shall require the OWNER to pay for any work which xs unsatxsfactory, as reasonably deternuned by the C~ty Manager or Ins designee, or winch ~s not submitted m comphance with the terms of this Agreement The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under tins Agreement It Is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to tins Agreement winch would require addmonal payments by the OWNER for any charge, expense, or reimbursement above the maxamum not to exceed fee as stated, w~thout first having obtained written authonzatmn from the OWNER The CONSULTANT shall not proceed to perform the services listed m Article III "Additional Serwces," w~thout obta~mng prior wntten authonzaUon from the OWNER C ADDITIONAL SERVICES For addmonal serwces authorized In writing by the OWNER in Article III here~nabove, the CONSULTANT shall be paid $ 125 00 per hour, as stipulated m CONSULTANT'S August 15, 2000 letter to the OWNER, winch IS attached hereto and ~ncorporated herewith by reference as Exluint "A" Payments for addmonal sevaees shall be due and payable upon subrmss~on by the CONSULTANT w~th CONSULTANT's regular monthly statement as provided for heremabove Statements shall not be subrmtted more frequently than monthly D PAYMENT If the OWNER fails to make payments due the CONSULTANT for servxces and expenses w~tinn sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1 00%) per month from the said s~xt~eth (60t~) day, and, in addmon, the CONSULTANT may, after g~vmg seven (7) days written not, ce to the OWNER, suspend servxces under tins Agreement until the CONSULTANT has been pa~d m full all amounts due for serrates, expenses, and charges, prowded, however, notinng hereto shall require the OWNER to pay the late charge of one percent (l 00%) set forth hereto ~f the OWNER reasonably detenmnes that the work ;s unsatisfactory, In accordance with tins Article V, "Compensation" ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT wdl exercise reasonable care and due diligence m discovering and promptly reporting to the OWNER any defects or deficiencies ~n the work of the CONSULTANT or any subcontractors or subconsultants ARTICLE VH OWNERSHIP OF DOCUMENTS All documents prepared or furmshed by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to tins Agreement are instruments of service, and shall become the property of the OWNER upon the tenmnatmn of this Agreement The CONSULTANT is entitled to retain cop~es of all such documents The documents prepared and furmshed by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents m other projects shall be at OWNER's sole risk and expense In the event the OWNER uses any of the ~nformat~on or materials developed pursuant to flus Agreement m another project or for other purposes than specified herein, CONSULTANT ~s released from any and all hainhty relating to their use m that project Page 3 ARTICLE VIH INDEPENDENT CONTRACTOR CONSULTANT shall pro,nde services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or clmm any right arising from employee status ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT shall lndemmfy and save and hold harmless the OWNER and ItS officials, officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not hrmted to court costs and reasonable attorney's fees Incurred by the OWNER, and Including, w~thout hrmtatlon, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or onusslons of the CONSULTANT or its officers, agents, employees, subcontractors and subconsultants, in the execution, operation, or performance of tlus Agreement Notinng m tins Agreement shall be construed to create a liability to any person who is not a party to tlus Agreement, and notlung herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to tlus Agreement, including the defense of governmental lmmumty, winch defenses are hereby expressly reserved ARTICLE X INSURANCE Dunng the performance of the servmes under tlus Agreement, CONSULTANT shall maintain the following Insurance w~th an Insurance company licensed to do business in the State of Texas by the State Insurance Conumsslon or any successor agency, that has a rating with A M Best Rate Careers of at least an A- or above A Comprehensive General L~abd~ty Insurance w~th bodily inJUry hnuts of not less than $500,000 for each occurrence and not less than $500,000 In the aggregate, and w~th property damage hnuts of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate B Automobile Liability Insurance w~th bodily injury hnuts of not less than $500,000 for each person and not less than $500,000 for each accident, and wath property damage hmats of not less than $100,000 for each accident C Worker's Compensation Insurance m accordance with statutory requirements, and Employers' Liability Insurance wath hrmts of not less than $100,000 for each accident Page 4 D The CONSULTANT shall furmsh insurance certificates or insurance pohcies at the OWNER's request to ewdence such coverages The insurance policies shall name the OWNER as an add~tional insured on all such policies to the extent possible, and shall contain a provision that such insurance shall not be cancelled or modified wathout tlurty (30) days prior written notice to OWNER and CONSULTANT In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, deliver to OWNER substitute policies or certificates furmshmg the same coverage ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under flus Agreement by subnutting the d~spute to arbitration or other means of alternate dispute resolution, such as mediation No arbitration or alternate dispute resolution arising out of or relating to tlus Agreement, involving one party's disagreement, may include the other party to the disagreement wathout the other's approval ARTICLE XII TERMINATION OF AGREEMENT A Notw:thstandmg any other prov~sion of th~s Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party B Tlus Agreement may be tenmnated in whole or m part in the event of either party substantially failing to fulfill its obligations under ttus Agreement No such ternunatlon wall be affected unless the other party Is given (1) written notice (delivered by certified mini, return receipt requested) of intent to ternunate and setting forth the reasons speclf3ang the non-performance, and not less than tlurty (30) calendar days to cure the failure, and (2) an opportunity for consultation wath the temunating party prior to terrmnation C If the Agreement ~s ternunated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for servaces to the OWNER watlun tlurty (30) days after the date of tern~nation The OWNER shall pay CONSULTANT for all senaces properly rendered and satisfactorily performed and for reimbursable expenses to terrmnation incurred prior to the date of ternunation, m accordance wath Anmle V "Compensation" Should the OWNER subsequently contract wath a new consultant for the continuation of serwces on the Project, CONSULTANT shall cooperate m prowdmg information The CONSULTANT shall turn over all documents prepared or furmshed by CONSULTANT pursuant to tins Agreement to the OWNER on or before the date of tenmnation, but may maintain copies of such documents for its own use ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their work, nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the work prepared by the CONSULTANT, its employees, associates, agents, subcontractors and subconsultants Page 5 ARTICLE XIV NOTICES All notices, commumcat~ons, and reports required or pernutted under this Agreement shall be personally dehvered or mailed to the respective parties by depositing same m the Umted States mall to the addresses shown below, certified mall, return receipt requested, unless otherwise specified herein To CONSULTANT To OWNER John O I-hrschy Paul Wdhamson John G I-hrschy & Associates Rtght-of-Way Agent P O Box 2009 City of Denton Coppell, Texas 75019 221 N Elm Street Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days at, er the date of marling ARTICLE XV ENTIRE AGREEMENT Ttus Agreement, consisting of rune (9) pages and one (1) extub~t, 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, pronuses, representations, negotiations, discuss~ons, commumcatlons, understandings, and agreements wluch may have been made m connection w~th the subject matter oftlus Agreement ARTICLE XVI SEVERABILITY If any prows~on of tlus Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of flus Agreement and shall not cause the remainder to be mvahd or unenforceable In such event, the parties shall reform this Agreement to replace such stricken prowslon w~th a valid and enforceable provision wluch comes as close as possible to expressing the intention of the stricken prowslon ARTICLE XVH COMPLIANCE WITH LAWS The CONSULTANT shall comply w~th all federal, state, and local laws, rules, regulations, and ordinances apphcable to the work covered hereunder as they may now read or herema~er be amended Page 6 ARTICLE XVIH DISCRIMINATION PROHIBITED In perforrmng the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, ralig~on, sex, national ongm or ancestry, age, or physical handicap ARTICLE XIX PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under tlus Agreement Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise dunng the term oftlus Agreement B All services required hereunder will be performed by the CONSULTANT or under its superxnslon Ail personnel engaged in work shall be qualified, and shall be authorized and pemutted under state and local laws to perform such services ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in tlus Agreement, and shall not transfer any interest in tlus Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER ARTICLE XXI MODIFICATION No wtuver or moddicatlon of tlus Agreement or of any covenant, condition, or hnutation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in exadence in any proceeding arising between the parties hereto out of or affecting flus Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed by the parties The parties further agree that the provisions oftl~s Article will not be waived unless as set forth herein P~e7 ARTICLE XXH MISCELLANEOUS A The following Extub~t is attached to, incorporated herewith by reference, and made a part of this Agreement Exhibit A Letter fi.om CONSULTANT to OWNER dated August 15, 2000 B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under flus Agreement, have access to and the right to exanune any directly pertinent books, documents, papers, and records of the CONSULTANT involving transactions relating to flus Agreement CONSULTANT agrees that OWNER shall have access dunng normal worhng hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate workang space in order to conduct audits in comphance with this section OWNER shall give CONSULTANT reasonable advance notice of intended audits C Venue of any suit or cause of action under flus Agreement shall lie exclusively in Denton County, Texas Tlus Agreement shall be governed by and construed in accordance w~th the laws of the State of Texas D For the purpose of flus Agreement, the key person who will perform most of the work hereunder shall be John G I-hrschy However, notlung herein shall llnm CONSULTANT fi.om using other qualified and competent members of its firm to perform the sennces required herein E CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, econonucal, and efficient manner and in accordance with the provisions hereof In accomphslung the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being camed on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available reformation pertinent to the ProJect, including previous reports, any other data relative to the ProJect, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon pubhc and private property as required for the CONSULTANT to perform services under flus Agreement G The captions of flus Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions oftlus Agreement Page 8 1N WITNESS HEREOF, OWNER and CONSULTANT have hereby executed this Agreement ~n four (4) original counterparts, the OWNER acting by and through ~ts duly-authorized C~ty Manage~r~ and the CONS ~ULTANT gctmg by and through ~ts duly-authorized, undersigned officer, on ttus the day of ~')]~27t~Z/b~d'~ ,2000 "OWNER." CITY OF DENTON, TEXAS MICf-Lf~EL Wtt/~Z: C~t~h/_ANAGER ATTEST JENNIFER WALTERS, CITY SECRETARY By ~t~ J~/~ ~., APPR.OVED AS TO LEGAL FORM ~ "CONSULTANT" JOHN G HIRSCHY & ASSOCIATES, 1NC By JOHN G HIRSCHY WITNESS Page 9 John G. Hirschy & Associates of Dallas 446 West Bethel Road John G Hlrschy MAi SRA P O Box 2009 President Coppell, Texas 75019 8009 Office (972) 304 0909 (972) 304 0811 EXHIBIT A August 15, 2000 Paul H Wflhamson Paght-of-Way Agent Ctty of Denton Eng~neenng Department 221 North Elm Street Denton, Texas 76201 Page 1 of 3 Re' West Transmission Line & Station ProJect Dear Mr Wfihamson Thank you for allowmg me to subrmt tlus proposal for the real estate apprmsal of approxtmately twelve parcels m the above referenced project The purpose of the apprmsal ts to esttmate the market value of the fee stmple interest of each parcel as tt contributes to the value oftts whole property The apprtusals wdl be completed ~n accordance with the Umform Standards of Professmnal Apprmsal Practice (USPAP), and the Standards of Professional Practme and the Code of Professional Etlucs of the Apprmsal Institute A narrative Self-Contatned Appratsal Report, as defined by USPAP, wall be completed for each parcel Three copras of each report wall be proxnded The intended use of the appraisals and apprmsal reports ts to asstst the C~ty of Denton m the acqms~t~on of the parcels for the above referenced project Fwe value esttmates wdl be provtded m each apprmsal report the value of the whole property, the value of the parcel to be acqmred, the value of the remainder before the acqms~tton, the value of the rematnder after the acqms~t~on, and total compensatton The three tradmonal approaches to value - the sales comparison approach, the cost approach, and the income approach - wdl be used to estimate the value of the subject properttes, as far as they are apphcable Ifa property ts ~mproved, but ~t ~s apparent that the remamder after the acqms~t~on w~ll not be damaged due to the acqmsmon, only a general estimate of the value of the tmprovements wdl be provtded Real Estate Appraisal and Counseling Services Paul H Wdhamson Raght-of. Way Agent City of Denton August 15, 2000 Page 2 of 3 The exact location and number of parcels to be acqmred has not yet been finalized by the C~ty of Denton Due to tbas hnntatmn, exact fees for the appraisals cannot be g~ven for all of the parcels You, Roger Wilkinson, and I mspected the general routing of the proposed transnusslon hne today Based on th~s inspection, my fee for the appraisal of the parcels along FM-2449 and Underwood Road ~s $2,000 per parcel Tl~s fee presumes that there are no damages to the remainders after the acquisitions Should there prove to be damages to the remaander after the acqmslt~on, wl~ch ~s not anticipated for these parcels, the fee per parcel would need to be adjusted up, w~th the amount of the adjustment dependant upon the work reqmred to estimate the damages to the remmnder after the acquisition The appraasal fee per parcel for the balance of the parcels cannot be deterrmned, due to the routmg not yet being finalized, but it is not anticipated that any fee per parcel vail exceed $6,500 Examples of possible appraisal fees per parcel would be $4,500 for the appraisal of the apartments on Oak Street, $5,000 for the appraisal of the apartments on IH~35, $3,500 for the appraisal of the single tenant industrial building used by Edsco Fasteners on IH-35, and $6,500 for the appraisal of Peterbilt plant, lf~t was apparent that the remmnder after the acquis~t~on would be damaged due to the acqms~tlon These fees per parcel wall need to be finalized after it is detenmned where the parcels will be located for the proposed transnuss~on hne Due to the exact location and number of parcels to be acquired not being finahzed, ~t is not possible to g~ve exacting dehvery dates for the appraisals It ~s anticipated that between $8,000 and $10,000 of appraisal work bemg completed per month, begmmng w~th the month of September, ~fI am authorized to start the work m the ~mmed~ate future My fee per hour for court room testmaony and for t~me prepanng for court room testimony as an expert w~tness Is $125 per hour, vath t~me commencing when I leave my office for such testimony and ending at the end of the court room appearance It is understood that tbas agreement will be Extub~t A in the Professional Services Agreement for Appraisal Relating to the West Transmass~on Line & Station Project if the assignment is awarded to me Thank you again for allowing me to subnut tins proposal If you have questions, or ~fl can be of further serwce, please call Respectfully, John G Hlrschy & Assocmtes of Dallas John G H~rschy, MAI, SRA Paul H Wflhamson R~ght-of-Way Agent City of Denton August 15, 2000 Page 3 of 3 Following ~s a table of possible appraisal fees for various products Potential Damages Appraisal Product to the Remainder Parcels Fee Subtotal Acreage Land No 3 $2,000 $6,000 Acreage Land Yes 1 Up to $3,000 $3,000 Urban Land No 1 $2,000 $2,000 Urban Land Yes 1 Up to $3,000 $3,000 Apartments No 1 $2,000 $2,000 Apartments Yes I Up to $4,500 $4,500 Industrial - Non-Complex No 1 $2,000 $2,000 Industrial - Non-Complex Yes 1 $3,500 to $4,500 $4,500 Industrial - Complex No 1 $2,000 $2,000 Total 11 $29,000