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Note: Tischler made a proposal 2/20/02, which resulted in this $53,100 contract 7/25/02. The contract has no deadlines. Status reports started 9/19/02. A report on demographic & business projections was received 12/4/02.
CONSULTANT AGREEMENT BETWEEN
TISCHLER & ASSOCIATES, INC.
AND JEFFERSON COUNTY, WEST VIRGINIA
THIS AGREEMENT, entered into this 25th day of July, 2002, by and between Jefferson County, West Virginia, hereinafter called the "County", and Tischler & Associates, Inc. hereinafter called the "Consultant".
WHEREAS the County is in need of certain services; and
WHEREAS the Consultant has expertise in impact fee preparation and related activities,
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 Exhibit "A".
2. In performing the services identified in the attached Exhibit "A", the consultant shall perform all steps necessary to the full and effective performance of the tasks specifically referenced in Exhibit "A".
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 of Tasks 1-8 specified in Exhibit "A".
. (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.
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: Paul Raco, Jefferson County Planning, 104 East Washington Street, P.O. Box 338, Charlestown, West Virginia 25414.
Consultant: Paul S. Tischler, Tischler & Associates, Inc., 4701 Sangamore Road, Suite N210, Bethesda, MD 20817. 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 1-8. Invoices will be issued by the Consultant to the County on a percentage completion basis. Payment will be made by the County within 30 days of receipt of invoice.
8. This Agreement shall be construed under the laws of West Virginia.
9. This Agreement and Exhibits "A" and "B" 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.
14.The Consultant hereby agrees to refrain from entering into a contract with a third party to oppose established County impact fees prepared by the Consultant. In the case of a court proceeding, under separate contract, the Consultant will be available to appear in defense of the impact fees prepared by the Consultant.
IN WITNESS WHEREOF, the parties have caused the Agreement to be signed by their duly authorized representatives as of the 25 day of July, 2002.
COUNTY: James K. Ruland, President County Commission of Jefferson County
CONSULTANT: Paul S. Tischler, President Tischler & Associates, Inc.
EXHIBIT A WORK SCOPE
Task 1 . Confirm Relevant Land Use Assumptions
Consultant will issue a memorandum, which summarizes the relevant land use assumptions so that the likely capital facility needs due to growth and the need for impact fees can be clearly shown when calculated. This will include population, households, housing units by type, employment and nonresidential square footage by type. This will be for at least 10 years and by relevant subarea of the County, as needed.
Task 2. Evaluate Relevant Factors Necessary for Establishing an Impact Fee Calculation Methodology
Consultant will evaluate several relevant factors, including the following:
a. Demand Generators -- Consultant will define the most likely demand generators for each type of capital facility necessary for mitigation of development impacts. For example, transportation is best calculated as a function of trips in which nonresidential and residential demands differ. Schools relates to public school children by type of dwelling unit. Recreation relates to population and household size. During interviews with the service providers, the consultant will confirm the most appropriate demand sources.
b. Level of Service -- Once the demand generators are defined, the appropriate level of service (LOS) will be ascertained in terms of the types of demands generating the capital facility and meeting the impact fee requirements of rough proportionality. The facility may have only one generator or a number of generators.
c. Geographical Nexus -- Locational factors need to be evaluated to calculate the impact of a development and the expected LOS. Consultant recommendations will meet rational nexus requirements.
The above information will be based on: interviews with respective department personnel; information from the consultant's experience; County CIP budgets; adopted land-use policies and planning documents; and reference to recognized professional standards. Consultant will consider characteristics such as land use type and intensity, demographic characteristics such as persons per dwelling unit, and unit size by type and/or subcategory of land use and location. The information will be prepared in a written format, which will then be submitted to the County for review. Where appropriate, the rationale will focus on the marginal or incremental demands for services and the resulting costs as well as revenues pertaining to the particular capital facility.
Task 3. Identify Impacts on Capital Improvements and Calculate Costs Attributable to New Development 4
Based on the above, the consultant will identify the probable impacts of development on relevant capital facilities. This information will be used in the next task. There are three subtasks.
a. Long Range Capital Needs -- In this subtask, the consultant will further review the various studies and other data germane to the relevant client capital facility activities, including the capital facility needs due to new development over the next five plus years. The discussions may include not only an understanding of the specific costs to provide public facilities and services, but also discussions pertaining to whether these capital facilities needs were due to normal replacement, catch-up or correction of existing facility deficiencies, or new demand.
b. Review Cost Estimates -- In this subtask the consultant will review, as relevant, the various capital costs for public facilities. As part of this subtask, the consultant will ascertain whether the facilities are likely to be bonded, and if so, the amortization schedule.
As part of calculating the impact fees, the client 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.
c. Evaluate Different Allocation Methodologies -- As part of the interaction with the client, the consultant will: simultaneously consider different possible allocation methodologies in terms of dollars being utilized for replacement costs versus capital costs being use for expansion of capacity; as well as allocation of those costs to different types of land uses. The consultant will calculate the level of service and allocate the future demands to new and existing needs, with the assistance of County staff.
Task 4. Calculate Credits to Apply Against Capital Costs
A consideration of "credits" is integral 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 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 deduction in the amount of the 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.
Task 5. Conduct Funding Source and Cash Flow Analyses
In order to calculate the feasible capital improvements needs required by the client over time as development occurs, it is important to evaluate the anticipated funding sources. In this task, we will prepare a cash flow analysis that indicates the sources of funding, independent of impact fees. This calculation will allow the client to better understand the various revenue sources available, including the appropriate impact fees and the additional amount that 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 and/or 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.
Task 6. Complete Impact Fee Methodology and Calculation
The completion of the above will enable the impact fee methodology to be appropriately and equitably determined and finalized. The impact fee that results from this methodology will be the maximum legally justifiable fee that could be charged while meeting all of the statutory requirements for impact fees. (The County will subsequently decide what percentage ofthe maximumjustifiable fee it wants to charge.)
Task 7. Prepare an Impact Fee Report
The consultant will prepare a draft report that summarizes the need for
impact fees for the appropriate public facility category and the relevant
methodology. The report will include, at a minimum, the following information:
* A detailed description of the methodologies used during the study;
* A detailed description of all formulas used and accompanying rationale;
* A detailed schedule of all proposed impact fees listed by location and land use type;
* Other information which adequately explains and justifies the resulting recommendations and fee schedule.
After client review, the consultant will make mutually agreed upon changes and produce the final report.
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 that 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.
Task 8. Presentation
TA will make one presentation at a mutually agreed upon time.
The specific deliverables of each phase are summarized by task in the following table.
|
Task |
Deliverable |
|
Task 1 : Confirm Relevant Land Use Assumptions |
Memorandum Projection Population, Housing, Employment and Nonresidential Square Footage |
|
Task 2: Evaluate Relevant Factors Necessary for Establishing an Impact Fee Calculation Methodology |
See Below |
|
Task 3 : Identify Impacts on Capital Improvements and Calculate Costs Attributable to New Development |
Capital Improvement Needs Accommodating New Growth |
|
Task 4: Calculate Credits to Apply Against Capital Costs |
See Impact Fee Report Below |
|
Task 5 : Conduct Funding Source and Cash Flow Analyses |
Cash Flow Analyses Reflecting Capital Improvement Plan(s) and Applicable Impact Fees |
|
Task 6: Complete Impact Fee Methodology and Calculation |
See Impact Fee Report Below |
|
Task 7: Prepare an Impact Fee Report |
Impact Fee Report |
|
Task 8: Presentation |
Appropriate Materials/Graphics |
EXHIBIT B COST
The cost is based on the specific impact fee categories.
|
Fee |
Cost |
|
Schools |
$18,200 |
|
Law Enforcement |
$8,300 |
|
Fire, Ambulance and Rescue |
$8,900 |
|
Parks |
$9,100 |
|
Public Facilities |
$8,600 |
|
TOTAL |
$53,100 |