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HomeMy WebLinkAbout2001 S Planning - Tichler & Associates forProposed Amendment to Agreement for Student Generation Rate and School Impact Fee Studies to Include Parks and Recreation Payment in Lieu, Impact Fee AnalysisAMENDMENT TO CONSULTANT AGREEMENT BETWEEN TISCHLER & ASSOCIATES, INC. AND ORANGE COUNTY, NORTH CAROLINA THIS AGREEMENT, entered into this 2 day of October, 2000, by and between Orange County, North Carolina, hereinafter called the "County ", and Tischler and Associates, Inc., hereinafter called the "Consultant" is amended with addition of Exhibit "C" and Exhibit "D" this day of May, 2001. WHEREAS the County is in need of certain services; and WHEREAS the Consultant has expertise in student generation rates and impact fee preparation. WHEREAS the Orange County Board of Commissioners approved the awarding of the contract to Tischler & Associates at their April 11, 2000, meeting and authorized the County Manager to sign an agreement incorporating substantially the same terms as the proposal, subject to final review by staff and the County Attorney. NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS HEREIN CONTAINED, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party to the other, it is hereby agreed as follows: 1. The Consultant shall provide those services to the County as more particularly identified in the attached Exhibits "A" and "C ". 2. (A) In performing the services identified in the attached Exhibits "A" and "C ", the consultant shall perform all steps necessary to the full and effective performance of the tasks specifically referenced in Exhibits "A" and "C ". (B) The County RFP dated November 19, 1999, and as it may have been amended, and the Consultant Proposal dated January 3, 2000, are hereby each made a part of this Agreement. The Agreement shall be interpreted by reading it and the other two documents together. Discrepancies between these Agreement documents shall be resolved, first by reference to the form of this Agreement, second by reference to the Consultant Proposal and third by reference to the County RFP. 3 Consultant shall provide sufficient qualified personnel to perform all services as required herein, including but not limited to inspections and preparation of reports, as reasonably requested by representatives of the County. 4. (A) The term of this agreement shall be from the date of execution of the Agreement, and shall terminate upon the completion to the satisfaction of the County of Tasks 1 -2 in Section A and Tasks 1 -9 in Section B specified in Exhibit "A ", and Tasks 1 — 5 in specified in Exhibit "C ". (B) Notwithstanding the foregoing, this Agreement may be terminated by the County upon ten (10) days written notice, with or without cause. If this Agreement is terminated, the Consultant shall be paid for services performed to the date of Consultant's receipt of such termination notice. Tischler & Associates, Inc. 5. Any notices to be given by either party to the other must be in writing, and personally delivered or mailed by prepaid postage and certified mail, at the following address: County: Craig Benedict, Orange County, 132 East King Street, PO Box 8181, Hillsborough, NC 27278. Facsimile number (919) 644 -3002. Consultant: Paul S. Tischler, Tischler & Associates, Inc., 4701 Sangamore Road, Suite N210, Bethesda, MD 20816. Facsimile number (301) 320 -4860. 6. This Agreement is non - assignable by the Consultant and its subcontractors. 7. The County shall pay to Consultant the amounts indicated in Exhibit "B" for tasks in Exhibit Sections A and B, and the amounts indicated in Exhibit "D" for tasks in Exhibit "C ", Tasks 1 - 5. Payment will be made by the County within 30 days of receipt of invoice. 8. This Agreement shall be construed under the laws of North Carolina. 9. This Agreement and Exhibits "A ", "B ", "C" and "D" represent the entire and integrated Agreement between the County and the Consultant and supersede all prior negotiations, representations, or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the County and the Consultant. Written and signed amendments shall automatically become part of the Agreement, and shall supersede any inconsistent provision therein; provided, however, that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary. 10. In the event any provision of the Agreement shall be held to be invalid and unenforceable, the remaining provisions shall be valid and binding upon the parties. One or more waivers by either party of any provisions, terms, conditions, or covenant shall not be construed by the other party as a subsequent breach of the same by the other party. 11. The Consultant hereby agrees to indemnify and hold harmless the County, its departments and divisions, its employees and agents, from any and all claims, liabilities, expenses or lawsuits caused by the Consultant's breach of contract or the negligent performance by Consultant (or by any person acting for the Consultant or for whom the Consultant is responsible). 12. The consultant shall secure and maintain during the life of this Agreement, insurance coverage which shall include comprehensive general and automobile liability in the amount of at least $1,000,000.00 coverage with an insurer acceptable to the County. Consultant shall also maintain errors and omissions insurance in the amount of at least $250,000.00 for the duration of the contract and a period of two years after completion of the contract. Consultant shall provide the County with proof of such insurance in a form acceptable to County upon request. 13. No oral orders, objection, claim, or notice by any party to the other shall affect or modify any of the terms or obligations contained in the Agreement, and none of the provisions of this Agreement shall be held to be waived or modified by reason of any act whatsoever, other than by a definitely agreed waiver or modification thereof in writing. No evidence of modification or waiver other than evidence of any such written notice, waiver, or modifications shall be introduced in any proceeding. 2 Tischler & Associates, Inc. IN WITNESS WHEREOF, the parties have caused the Agreement to be signed by their duly authorized representatives as of the JR ( day of APR14- , 2001. COUNTY, NPRTH CAROLINA 'County Manager CON T Paul S. Tischler Tischler & Associates, Inc. Tischler & Associates, Inc. "EXHIBIT A" SCOPE OF WORK A. Student Generation Rate Scope of Work The suggested tasks are discussed below. Task 1: Discuss and Agree on Public School Student Generation Rate Methodology. TA will meet with the client to discuss the various approaches to calculating public school student generation rates. Assuming mutual agreement as to the methodology and data to be utilized, TA will prepare a memorandum summarizing the public school student generation rate methodology. Work Product: Memorandum Summarizing Public School Student Generation Rate Methodology Task 2: Public School Student Generation Rate Memoranda. Based on the above task, TA will review the data provided by the County by District and by type of school and by type of house. TA will raise any questions regarding data and supplemental information with appropriate County staff. TA will then prepare a memorandum reformatting the data for inclusion in the impact fee report. The memorandum for each school district will list the public school student generation rate by type of housing unit for each type of school. Work Product: Public School Student Generation Rate Memoranda B. Impact Fee Scope of Work As noted in our cover letter, our scope of work is comprehensive. The proposed tasks are noted below. Task 1. Assess Current Impact Fee Program. The initial assessment of the County's current impact fee program pertaining to the two school districts will include reviewing existing impact fee methodologies. This will include the geographic subareas currently utilized in relation to the rational nexus requirements. The work in 4 Tischler & Associates, Inc. this task will be based on onsite interviews. We will recommend what changes should be made to the existing school impact fees. We will prepare a draft memorandum discussing recommended impact fee changes, relating to methodological or policy issues. After mutually agreed upon changes are made, we will issue a final memorandum. Work Product: Memorandum Discussing Recommended Impact Fee Changes Task 2. Ascertain Level of Service for Each School District. Once the County and school districts agree on the various choices, we will begin Task 2. One important subtask is calculating the appropriate level of service. Impact fees usually reflect the existing levels of service for purposes of calculating the new demand, unless there are extenuating circumstances. We will determine the appropriate current level of service through additional onsite interviews with the service providers and analysis of local data. As noted in the RFP, "existing school construction standards will be analyzed as well as the construction standards for new schools. This information will be used to project school capital improvement costs to 2005 and 2010. The above will enable us to ensure that two important impact fee legal requirements are met; namely the proportional benefit and the rational nexus relationships. The information from this task will be prepared in a written format which will then be submitted to the County and school districts for its review. As part of this task, we also will review cost estimates prepared by each school district for all completed and planned infrastructure improvements. Work Product: See Below Task 3. Review Capital Needs and Costs and Allocate to Growth. This task will determine relevant capital needs and associated capital facility costs due to the proposed development. A. Long Range Capital Needs. In this subtask, TA will further review the various studies and other data germane to the relevant school categories. TA will work with staff to forecast the capital facility needs due to development to 2005 and 2010. The discussions may include not only an understanding of the specific costs to provide the schools, but also include discussions pertaining to whether these capital facilities needs were due to normal replacement, catch -up, or new demand. Tischler & Associates, Inc. B. Review Cost Estimates. In this subtask we will review, as relevant, the various capital costs for facilities. As part of this subtask, we will ascertain whether the facilities are likely to be bonded, and if so, the amortization schedule. As part of calculating the impact fees, the County may include the construction contract price; the cost of acquiring land, improvements, materials and fixtures; the cost for planning, surveying, and engineering fees for services provided for and directly related to the construction system improvement; and debt service charges, if impact fees are used to pay the debt service to finance the cost of the system improvements. As requested in the RFP, "the work product will reflect the appropriate Orange County construction and space standards for public elementary, middle and high- school building areas and costs and the projection of school capital improvement costs to 2005 to 2010." Work Product: Capital Improvement Needs Accommodating New Growth Task 4. Calculate "Credits" to be Applied Against Capital Costs. A consideration of "credits" is an integral part to the development of a legally valid impact fee calculation methodology. There is considerable confusion among those who are not immersed in impact fee law about the definition of a credit and why it may be legally or equitably required. There are, in fact, two (2) types of "credits," each with specific, distinct characteristics, but both of which will be included (or, at least considered) in the development of all impact fees. The first is a credit due to possible double payment situations. This could occur when future contributions are made by the property owner toward the capital costs of the public facility already covered by the impact fee. The second, which we will call an adjustment (as opposed to a credit), is a credit toward the payment of an impact fee due for the required dedication of public sites and/or public improvements provided by the developer and for which the impact fee is imposed. As indicated in the RFP, this task will credit, as appropriate, new development based on housing type and value with public school facilities costs already incurred through property taxes, sales taxes and other sources of funding. Work Product: See Impact Fee Report Below 6 Tischler & Associates, Inc. Task 5: Conduct Funding Source and Cash Flow Analyses In order to calculate the feasible capital improvements needs required by each school district over time as development occurs, it is important to evaluate the anticipated funding sources. In this subtask, we will prepare a cash flow analysis which indicates the sources of funding, independent of impact fees. This calculation will allow the County and each district to better understand the various revenue sources available, including impact fees and the additional amount which might be needed if the impact fees were not adopted or were discounted. It will also provide a good understanding of the cash flow needed to cover the capital facilities both for existing and new development. The initial cash flow analysis will indicate whether additional funds might be needed or whether the capital improvements schedule might need to be changed. This could also affect the total credits calculated in the previous task. Therefore it is likely that a number of iterations will be conducted in order to refine the cash flow analysis reflecting the capital improvement needs. We believe that this is an extremely important component of an impact fee analysis; and, that the absence of this analysis frequently distorts the impact fee analysis and fee schedules. Work Product: Cash Flow Analyses Reflecting Public School Capital Improvement Needs and Applicable Impact Fees Task 6: Complete Impact Fee Methodology and Calculation. The completion of the above tasks will enable the impact fee methodology to be appropriately and equitably determined and finalized. Per the RFP, the impact fee that results from this methodology will be the maximum legally defensible fee for new development in the two Orange County school districts that could be charged while meeting all of the statutory requirements for impact fees. (The Client will subsequently decide what percentage of the maximum justifiable fee it wants to charge.) Work Product: See Impact Fee Report Below Task 7. Preparation of Public School Impact Fee Reports. We will prepare a draft report for each district which summarizes the need for the impact fees for the appropriate district and which provides the relevant methodology for determining the fee amount. The report will include at a minimum the following information: • Executive Summary • A detailed description of the methodologies used during the study • A detailed description of all formulas used and accompanying rationale 7 Tischler & Associates, Inc. • A detailed schedule of proposed fees listed by land use type and activity • Summary of capital improvement needs generated by the new development • Other information which explains and justifies the resulting recommended impact fee schedules After client review, we will make mutually agreed upon changes and produce five copies of the final report for each district. The impact fee report will have flow diagrams clearly indicating the methodology and approach, a series of tables for each activity showing all of the data assumptions and figures, and a narrative explaining all of the data assumptions, sources and methodologies. The report will be a stand -alone document which will be clear, concise and readily understood by all interested parties. Because of our extensive experience in calculating impact fees and preparing such reports, we have developed a very succinct written product which provides the client with a well - understood paper trail. Work Product: Public School Impact Fee Reports Task 8. Meetings/Presentations. Since we intend to work as part of a team and view ourselves not only as technical consultants but also as facilitators, we anticipate and have included in this work program several onsite staff meetings during this assignment. We also will attend three public hearings to explain the analysis and conclusions. Work Product: Appropriate Materials and Graphics Task 9. Provide Revised Impact Fee Automated Spreadsheet -Based Models. We will provide an automated spreadsheet model to allow each district to calculate the impact fees. The model will be compatible with each district's existing computer system. An easy to understand manual will be provided as part of this task. We have provided similar models to other communities and they have proven to be readily implemented and utilized. Work Product: Impact Fee Automated Spreadsheet -Based Models with Supporting Documentation 8 Tischler & Associates, Inc. "EXHIBIT B" Tischler & Associates, Inc. "EXHIBIT C" SCOPE OF WORK — Parks & Recreation, and Open Space Task 1. Review Existing Requirements and Reports /Data We will review the existing County requirements and printed information. Work Product: See Fee Report Task 2. Calculate Maximum Supportable Parks & Recreation Impact Fees and Open Space Impact Fees There are several important components to this task. Theses tasks are as follows: Reflect land as a separate component. • Reflect proportionate benefit for each fee. Reflect nexus of each fee. Work Product: See Next Task Task 3. Prepare Impact Fee Report for Parks & Recreation, and Open Space The impact fee report will include the following: • Calculate maximum supportable impact fee by relevant land use type. Recommend changes to overall existing requirements from a non -legal perspective. Issue draft and final impact fee reports. Work Product: Fee Report Task 4. Recommend Technical Changes to Land Dedication and Payment in Lieu of Recreation and Open Space This task will include the following actions: Review current application as regards existing standards. Compare existing to proposed standards for community parks. Recommend technical changes to land dedication and payment in lieu of recreation and open space. Work Product: Memorandum on Recommended Technical Changes to Land Dedication and Payment In Lieu Ordinance 10 Tischler & Associates, Inc. Task 5. Presentation This task will include the following actions: Present findings and recommendations at a mutually agreed upon time. • Answer questions at presentation. Work Product: Appropriate Materials and Graphics 11 Tischler & Associates, Inc. "EXHIBIT D" TIME AND COST Time The draft report will be available about 60 days after the startup. Cost The cost is $30,000, including out -of- pocket expenses. 12 Tischler & Associates, Inc.