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CITY OF EL MIRAGE
PROFESSIONAL SERVICES CONTRACT
THIS PROFESSIONAL SERVICES CONTRACT is made and entered into this __day of ____
2022, (“Effective Date”) by and between the City of El Mirage, an Arizona municipal
corporation (“City”), and TischlerBise, Inc. (“Consultant”).
RECITALS
A. The City of El Mirage is authorized and empowered by provisions of the City Code to
execute contracts for professional services by and through its Mayor and Council;
B. The City desires to contract for Consultant to provide professional services described in the
attached scope of work (Exhibit “A”) in accordance with the terms of this Contract;
C. Consultant is duly qualified to perform the requested Services.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and obligations set for herein,
the parties hereto agree as follows:
1.1
DESCRIPTION, ACCEPTANCE, DOCUMENTATION
Consultant shall act under the authority and approval of the Contract Administrator for the
City to provide the Services required by this Contract. The Contract Administrator for the
City shall be Robert Nilles, Deputy City Manager or designee. The Contract Administrator
shall oversee the execution of this Contract, assist the Consultant in accessing the
organization, acquiring necessary data and information, and approve payments. The
Consultant shall channel reports and special requests through the Contract Administrator.
City reserves the right to change the Contract Administrator for the City without prior
approval of the Consultant.
1.2
SERVICE DESCRIPTION
Consultant shall provide the Services described in Exhibit “A.” All work will be reviewed,
evaluated, approved, and monitored by the Contract Administrator to determine acceptable
completion. Review and approval by the Contract Administrator shall not relieve
Consultant of any liability for improper, negligent or inadequate services rendered pursuant
to this Contract. Consultant shall provide all work necessary to assure the Services are
completed in a timely and efficient manner consistent with service requirements, including,
but not limited to, working in close interaction with, and interfacing with, City and its
designated employees, and working closely with others, including other consultants or
contractors retained by City. In the event of a discrepancy between this Agreement and
Exhibit “A”, this Agreement shall control over Exhibit “A”. Consultant shall provide
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sufficient qualified personnel to perform all services as required herein, including but not
limited to inspections, research, analysis, recommendations, and preparation of reports and
presentations, and making presentations as reasonably requested by representatives of the
City. The Consultant shall base the analysis on data and information available at the time
of the study.
1.3
DOCUMENTATION AND DATA
All documents, including but not limited to, data compilations, studies, and reports which
are prepared in the performance of this Contract are to be, and remain the property of, the
City and are to be delivered to the Contract Administrator before final payment is made to
the Consultant.
2.1
FEE SCHEDULE, RECORDS, AUDIT RIGHTS
The fee Consultant shall be paid for all Services provided pursuant to the terms of this
Contract pursuant to the terms of Exhibit “B”.
The Contract Administrator reserves the exclusive right to determine the amount of work
performed and payment due the Consultant pursuant to the schedule set forth on Exhibit
“B”. Consultant shall maintain all books, paper documents, accounting records and other
evidence pertaining to such monthly billings and shall make such materials available at all
reasonable times to the Contract Administrator. Monthly billings shall be accompanied by
such documentation as the Contract Administrator may require to make a determination of
work performed and payment due.
2.2
ADDITIONAL SERVICES; PRICE ADJUSTMENT
The total Scope of Work to be performed by Consultant in accordance with this Contract
is set forth herein and in Exhibit “A.” Services not included in this Contract, including
Exhibit “A,” will be considered Additional Services. Consultant shall not perform any
Additional Services without written authorization from the City. It shall be presumed that
all Services performed/provided by Consultant were included in the Contract and
contemplated by Consultant as being part of the original Scope of Work and the fees set
forth herein, unless such Services have been separately approved by the City, in writing, as
Additional Services. Consultant shall not be paid for any Additional Services that are not
authorized by the City in writing.
2.3
OWNERSHIP
Upon receipt of payment for Services, Consultant grants to City, and shall cause its
subconsultants to grant to City, the exclusive ownership of any and all copyrights, if any,
to evaluations, reports, drawings, specifications, project manuals, surveys, estimates,
reviews, minutes, and other intellectual work product as may be applicable ("Work
Product"). This grant is effective whether the Work Product is on paper (e.g., a "hard
copy"), in electronic format, or in some other form. Consultant warrants, and agrees to
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indemnify, hold harmless and defend City for, from and against any claim that any Work
Product infringes on third-party proprietary interests. City may reuse the Work Product at
its sole discretion. In the event the Work Product is used for another project without further
consultations with Consultant, the City agrees to indemnify and hold Consultant harmless
from any claim arising out of the Work Product. In such case, City will also remove any
title block from the Work Product.
3.1
TERM AND EXTENSION
This Contract shall be in full force and effect only when approved and signed by Mayor as
attested by the City Clerk. This Contract begins on the Effective Date and shall terminate
upon the completion of the appropriate tasks specified in Exhibit “A”, Scope of Work
within the timeframe identified in Exhibit “B”, Project Schedule.
3.2
TERMINATION
3.2.1
Termination for Cause
The City has the right to terminate this Contract for cause in the event Consultant
materially breaches any provision of this Contract or portion of the Services and
fails to remedy the breach within five (5) business days of notification of the breach,
if the breach is remedial. If Consultant fails to remedy the breach or if the breach is
not remedial, City may terminate this Contract for cause immediately upon written
notice to Consultant. In the event the City terminates this Contract or any part of
the Services as herein provided pursuant to this Section 3.2.1, the City shall notify
the Consultant in writing, and immediately upon receipt of such notice, the
Consultant shall discontinue all work under this Contract.
Upon termination for cause, Consultant shall immediately deliver to the City all
drawings, research, data, studies, reports, estimates and all other documents or work
product generated by the Consultant under the Contract, together with all unused
material supplied by the City. Consultant shall be responsible only for such portion
of the work which has been completed and accepted by the City. Use of incomplete
data by the City shall be the City’s sole responsibility.
In the event of termination for cause, Consultant shall only be compensated a
portion of the agreed upon fee for such portion of the work that City agrees, in its
sole discretion to accept. City shall have no obligation to accept any portion of
Consultant’s work if the contract is terminated for cause and shall have no
obligation to pay Consultant for any portion of the work, if any, not accepted by
City.
If the Consultant materially fails to fulfill in a timely and proper manner its
obligations under this Contract, of if the Consultant violates any of the covenants,
agreements, or stipulations of this Contract, the City may withhold from payment
due to the Consultant such amounts as are necessary to protect the City’s position
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for the purpose of set-off until such time as the exact amount of damages can be
determined.
3.2.2. Termination for Convenience
The City has the right to terminate this Contract for convenience or to abandon any
portion of the work for which Services have not been performed by the Consultant
with ten (10) day’s written notice.
Upon such termination for convenience or abandonment, the Consultant shall
immediately deliver to the City all drawings, research, data, studies, reports,
estimates and all other documents or work product generated by the Consultant
under the Contract, together with all unused material supplied by the City.
Consultant shall be responsible only for such portion of the work which has been
completed and accepted by the City. Use of incomplete data by the City shall be the
City’s sole responsibility.
The Consultant shall receive as compensation in full for Services performed to the
date of such termination or abandonment, a fee for the percentage of Services
completed and accepted by the City. This fee shall be in an amount to be mutually
agreed upon by the Consultant and the City, based upon the scope of work set forth
in Exhibit “A’ and the payment schedule set forth in Exhibit “B”. If mutual
agreement cannot be reached after reasonable negotiation, the Contract
Administrator shall determine the percentage of satisfactory completion of each
task set forth in the scope of work contained in Exhibit “A” and the amount of
compensation Consultant is entitled to for such work and the Contract
Administrator’s determination in this regard shall be final. The City shall make such
final payment within thirty (30) days after the Consultant has delivered the last of
the partially completed items.
3.3
FUNDS APPROPRIATION
If the City Council does not appropriate funds to continue this Contract and pay for charges
hereunder, the City may terminate this Contract at the end of the current fiscal period. The
City agrees to give written notice, pursuant to Section 3.2, Termination, of this Contract to
the Consultant at least thirty (30) days prior to the end of its current fiscal period and will
pay to the Consultant all approved charges incurred through the end of such period.
The City's fiscal year begins July 1st and ends June 30th each calendar year. The City may
make payment for Services rendered or costs encumbered only during a fiscal year and for
a period of sixty (60) days immediately following the close of the fiscal year, under the
provisions of Arizona Revised Statutes § 42-17108. Therefore, Consultant must submit
billings for Services performed or costs incurred prior to the close of a fiscal year within
forty-five (45) days to allow payment within this period.
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4.1
ENTIRE AGREEMENT
This Contract constitutes the entire understanding of the parties and supersedes all previous
representations, written or oral, with respect to the Services specified herein. This Contract
may not be modified or amended except by a written document, signed by authorized
representatives of each party.
4.2
ARIZONA LAW
This Contract shall be governed and interpreted according to the laws of the State of
Arizona. Any action brought to interpret or enforce any provision of this Contract that
cannot be administratively resolved, or otherwise related to or arising from this Contract,
shall be commenced and maintained in the state or federal courts of the State of Arizona,
Maricopa County, and each of the parties, to the extent permitted by law, consents to
jurisdiction and venue in such courts for such purposes.
4.3
COMPLIANCE WITH LAWS
Consultant shall comply with all existing and subsequently enacted federal, state and local
laws, ordinances, codes, and regulations that are, or become applicable to this Contract. If
a subsequently enacted law imposes substantial additional costs on Consultant, a request
for an amendment may be submitted pursuant to this Contract.
4.4
MODIFICATIONS
Any amendment, modification or variation from the terms of this Contract shall be in
writing and shall be effective only after approval of all parties signing the original Contract.
4.5
ASSIGNMENT
Services covered under this Contract shall not be assigned or sub-contracted in whole or in
part without the prior written consent of the Contract Administrator.
4.6
SUCCESSORS AND ASSIGNS
This Contract shall extend to and be binding upon Consultant, its successors and assigns,
including any individual, company, partnership or other entity with or into which
Consultant shall merge, consolidate or be liquidated, or any person, corporation,
partnership or other entity to which Consultant shall sell its assets.
4.7
ATTORNEYS’ FEES
In the event either party brings any action for any relief, declaratory or otherwise, arising
out of this Contract, or on account of any breach or default hereof, neither party shall be
entitled to receive from the other party attorneys’ fees, costs or expenses.
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4.8
INDEPENDENT CONTRACTOR
The Services Consultant provides under the terms of this Contract to the City are that of an
Independent Contractor, not an employee or agent of the City. The City will report the
value paid for these Services each year to the Internal Revenue Service (I.R.S.) using Form
1099.
City shall not withhold income tax as a deduction from contractual payments. As a result
of this, Consultant may be subject to I.R.S. provisions for payment of estimated income
tax. Consultant is responsible for consulting the local I.R.S. office for current information
on estimated tax requirements. Consultant will not be entitled to any benefits provided by
City to its employees, including, but not limited to, health benefits, workers’ compensation,
unemployment coverage, deferred compensation, and all other typical employee benefits.
4.9
CONFLICT OF INTEREST
The City may cancel any contract or agreement, without penalty or obligation, if any person
significantly involved in initiating, negotiating, securing, drafting or creating the contract
on behalf of the City’s departments or agencies is, at any time while the contract or any
extension of the contract is in effect, an employee of any other party to the contract in any
capacity or a consultant to any other party to the Contract with respect to the subject matter
of the Contract. The cancellation will be effective when written notice from the City is
received by all other parties to the Contract, unless the notice specifies a later time (A.R.S.
§38-511).
4.10
NOTICES
All notices or demands required to be given pursuant to the terms of this Contract shall be
given to the other party in writing, delivered by hand or registered or certified mail, at the
addresses set forth below, or to such other address as the parties may substitute by written
notice given in the manner prescribed in this paragraph.
In the case of Consultant:
L. Carson Bise, AICP
TischlerBise, Inc.,
4701 Sangamore Road,
Suite S240,
Bethesda, MD 20816
In the case of City
City of El Mirage
Attn: City Manager
10000 N. El Mirage Road
El Mirage, Arizona 85335
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With a copy to:
City of El Mirage
Attn: City Attorney
10000 N. El Mirage Road
El Mirage, Arizona 85335
Notices shall be deemed received on date delivered, if delivered by hand, and on the
delivery date indicated on receipt if delivered by certified or registered mail.
4.11
FORCE MAJEURE
Neither party shall be responsible for delays or failures in performance resulting from acts
beyond their control. Such acts shall include, but not be limited to, acts of God, riots, acts
of war, epidemics, governmental regulations imposed after the fact, fire, communication
line failures, power failures, or earthquakes.
4.12
TAXES
Consultant shall be solely responsible for all tax obligations which may result out of the
Consultant’s performance of this Contract. The City shall have no obligation to pay any
amounts for taxes of any type incurred by the Consultant.
4.13
ADVERTISING AND PROMOTION
Consultant shall not publish, release, disclose or announce to any member of the public,
press, official body, or any other third party: (1) any information concerning this Contract,
the Services, or any part thereof; or (2) any documentation or the contents thereof, without
the prior written consent of the City, except as required by law or judicial or regulatory
process. The name of any site on which Services are performed shall not be used in any
advertising or other promotional context by Consultant without the prior written consent of
the City.
4.14
COUNTERPARTS
This Contract may be executed in one or more counterparts, and each originally executed
duplicate counterpart of this Contract shall be deemed to possess the full force and effect
of the original.
4.15
CAPTIONS
The captions used in this Contract are solely for the convenience of the parties, do not
constitute a part of this Contract and are not to be used to construe or interpret this Contract.
4.16
SUBCONSULTANTS
During the performance of the Contract, the Consultant may engage such additional
subconsultants as may be required for the timely completion of this Contract. The addition
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of any subconsultants shall be subject to the prior approval of the City. In the event of
subcontracting, the sole responsibility for fulfillment of all terms and conditions of this
Contract rests with the Consultant.
4.17
INDEMNIFICATION
The Consultant agrees, to the fullest extent permitted by law, to indemnify and hold
harmless the City, its officers, directors and employees (collectively, City) against all
damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, to the
extent caused by the Consultant’s negligent performance of professional services under this
Contract and that of its subcontractors or anyone for whom the Consultant is legally liable.
The City agrees, to the fullest extent permitted by law, to indemnify and hold harmless the
Consultant, its officers, directors, employees and subcontractors (collectively, Consultant)
against all damages, liabilities or costs, including reasonable attorney’s fees and defense
costs, to the extent caused by the City’s negligent acts in connection with the Services and
the acts of its contractors, subcontractors or consultants or anyone for whom the City is
legally liable.
Neither the City nor the Consultant shall be obligated to indemnify the other party in any
manner whatsoever for the other party’s own negligence or for the negligence of others.
4.18
INSURANCE
The Consultant shall secure and maintain at all times that this Contract is in effect,
insurance coverage which shall include statutory workers’ compensation, comprehensive
general and automobile liability, owner’s and Consultant’s protective liability insurance
and errors and omissions professional liability. The comprehensive general and automobile
liability limits shall be no less than one million dollars ($1,000,000) combined single limit.
The owner’s and Consultant’s protective liability limits shall be no less than one million
dollars ($1,000,000) for each occurrence and one million dollars ($1,000,000) policy
aggregate naming the City as an additional insured. The minimum amounts of coverage for
Consultant’s professional liability shall be one million dollars ($1,000,000). In other than
errors and omissions professional liability, City’s and Consultant’s protective liability and
worker’s compensation, the City of El Mirage shall be named as an additional insured.
All insurance coverage shall be written through a carrier licensed in Arizona, or an
approved non-admitted list of carriers published by the Arizona Department of Insurance,
and possessing an A.M. Best rating of at least A- or above with policies and forms
satisfactory to the City.
The Consultant shall submit to the City a certificate of insurance evidencing the coverage
and limits stated in the foregoing paragraph within ten (10) days of award of this Contract.
City shall not issue a “Notice to Proceed” until after Consultant has submitted the
certificate of insurance to City. Insurance evidenced by the certificate shall not expire or be
canceled or materially changed without thirty (30) days prior written notice to the City, and
a statement to that effect must appear on the face of the certificate and the certificate shall
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be signed by a person authorized to bind the insurer. Consultant shall also submit to the
City a copy of Consultant’s insurance policy endorsements indicating that the City is an
additional insured under Consultant’s insurance policies as required herein.
The insurance policies, except Workers’ Compensation required by this Contract, shall
name the City, its agents, representatives, officers, directors, officials and employees as
Additional Insureds.
4.19
FEDERAL AND STATE EMPLOYMENT IMMIGRATION LAWS AND OTHER
REQUIREMENTS
To the extent applicable under A.R.S. § 41-4401, Consultant warrants its and its
subconsultants’ compliance with all federal immigration laws and regulations that relate to
their compliance with the E-verify requirements under A.R.S. § 23-214(A). Consultant’s
or its subconsultants’ breach of the above-mentioned warranty shall be deemed a material
breach of the Contract and may result in the termination of the Contract by the City. The
City retains the legal right to randomly inspect the papers and records of Consultant and its
subconsultants to ensure that the Consultant and its subconsultants are complying with the
above-mentioned warranty.
The Consultant warrants to keep the papers and records open for random inspection during
normal business hours by the City. The Consultant shall cooperate with the City’s random
inspections including granting the City entry rights to Consultant’s property to perform the
random inspections and waiving its right to keep such papers and records confidential. The
failure of Consultant to comply with this warranty regarding the keeping of papers and
records and cooperating with City’s random inspections shall constitute a material breach
of the Contract and the City will have the right to immediately terminate the Contract.
A breach of the Immigration Warranty shall constitute a material breach of this Contract
and shall subject the Consultant to penalties up to and including termination of this
Contract at the sole discretion of the City.
Neither the Consultant nor any Sub-contractor shall be deemed to have materially
breached the Professional Immigration Warranty if the Consultant or Sub-contractor
establishes that it has complied with employment verification provisions prescribed by
Sections 274A and 274B of the Federal Immigration and Nationality Act and the E-Verify
requirements prescribed by A.R.S. § 23-214(A).
The provisions of this Article must be included in any contract the Consultant enters into
with any and all of its Sub-contractors who provide services under this Contract or any
sub-contract. “Services” are defined as furnishing labor, time or effort in the State of
Arizona by a professional or sub-contractor. Services include construction or
maintenance of any structure, building or transportation facility or improvement to real
property.
Consultant understands and acknowledges the applicability to it of the Americans with
Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free
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Workplace Act of 1989. The following is only applicable to construction contracts: The
Consultant must also comply with A.R.S. § 34-301, “Employment of Aliens on Public
Works Prohibited”, and A.R.S. § 34-302, as amended, “Residence Requirements for
Employees”.
4.20
SEVERABILITY
If any term or provision of this Contract shall be found to be illegal or unenforceable, then
notwithstanding such illegality or unenforceability, this Contract shall remain in full force
and effect and such term or provision shall be deemed to be deleted.
4.21
DEGREE OF CARE
Professional shall exercise the same degree of care, skill and diligence in the performance
of the Services as is ordinarily possessed and exercised by a professional under similar
circumstances.
4.22
THIRD PARTY BENEFICIARIES
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other
than the City and Professional.
4.23
ISRAEL BOYCOTT
Consultant certifies that it is not currently engaged in and agrees for the duration of this
Agreement that it will not engage in a “boycott”, as that term is defined in A.R.S. § 35-393,
of Israel.
4.24
FORCED LABOR
Pursuant to and in compliance with A.R.S. § 35-394, Consultant hereby agrees and
certifies that it does not currently, and agrees for the duration of this Agreement that
Consultant will not, use: (1) the forced labor of ethnic Uyghurs in the People’s Republic
of China; (2) any goods or services produced by the forced labor of ethnic Uyghurs in the
People’s Republic of China; or (3) any sub-consultants, subcontractors or suppliers that
use the forced labor or any goods or services produced by the forced labor of ethnic
Uyghurs in the People’s Republic of China. Consultant also hereby agrees to indemnify
and hold harmless the City, its officials, employees, and agents from any claims or causes
of action relating to the City’s action based upon reliance upon this representation,
including the payment of all costs and attorney fees incurred by the City in defending
such as action.
CITY OF EL MIRAGE
CONSULTANT:
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______________________________
_______________________________
By: Carson Bise
By: Alexis Hermosillo
President
Its: Mayor
TischlerBise, Inc.
--
ATTEST:
____________________________
Jill Boltz, City Clerk
APPROVED AS TO FORM:
___________________________
Justin Pierce, City Attorney
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EXHIBIT “A”
SCOPE OF WORK
The following work scope is designed to meet the requirement of SB1525, as well as
national case law. This scope of work assumes the following infrastructure categories:
Fire, Police, Parks and Recreation, and Transportation.
TASK 1: PROJECT INITIATION / DATA ACQUISITION
During this task, we will meet with City staff to establish lines of communication, review
and discuss project goals and expectations related to the project, review (and revise if
necessary) the project schedule, request data and documentation related to new
proposed development, and discuss City staff’s role in the project. The objectives of this
initial discussion are outlined below:
Obtain and review current demographics and other land use information
Review and refine work plan and schedule
Discuss current fee categories and current/future funding arrangements
Assess additional information needs and required staff support
Identify and collect data and documents relevant to the analysis
Identify any relevant policy issues
Meetings: One (1) on-site visit to meet with City project management team/City staff as
appropriate.
Deliverables: Data request memorandum.
TASK 2: PREPARE LAND USE ASSUMPTIONS
TischlerBise will prepare annual projections of population, employment, housing,
commercial, industrial, and other nonresidential square footage data for ten (10) year for
all other development fee categories. This will be based on discussions with City staff and
review of published information. The Consultant will prepare a memorandum discussing
the recommended land use projections (Land Use Assumptions Document) that will serve
as the basis for the IIP and development impact fee schedule. TischlerBise will prepare a
plan that includes projections of changes in land uses, densities, intensities, and
population for a specific service area. A map of the area(s) to which the land use
assumptions apply will also be included in this task.
Meetings: Discussions with Development Services staff will be held as part of Task 1, as
well as conference calls as needed.
Deliverables: TischlerBise will prepare a draft technical memorandum discussing the
recommended Land Use Assumptions. After review and sign-off by the City, a final
memorandum will be issued, which will become part of the final Development Fee Report.
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TASK 3: ASCERTAIN DEMAND FACTORS AND LEVELS-OF-SERVICE FOR
“NECESSARY PUBLIC SERVICES”
Communities in Arizona may assess development fees for “necessary public services”
which have a useful life of more than three years and that are owned and operated on
behalf of the City and within the incorporated boundary.
There are several important subtasks that are outlined below:
Proportionate Share – Determine the proportionate share of the cost of
“necessary public services,” based on service units needed to provide such
services to new development.
Determine Existing Levels-of-Service – The costs for the “necessary public
services” required to serve new development are based on the same level-of-
service being provided to existing development in the service area. We will
determine the existing level-of-service by conducting onsite interviews, evaluating
the appropriate studies, and analyzing relevant local data. These onsite interviews
will also include discussions about and defining of the infrastructure components
to be included in the IIP and development fees.
Determine Service Areas – Specify the area(s) within the City’s boundaries in
which development will be served by the “necessary public services” or facility
expansions and that a substantial nexus exists between the necessary public
services or facility expansions and the development being served as prescribed in
the IIP.
The above subtasks will enable us to ensure that three important development fee
requirements are met, collectively referred to as rational nexus requirements:
demonstration of impact, benefit, and proportionality.
Meetings: Two (2) meetings with City staff to discuss capital facility needs and levels-of
-service. As a no charge option, TischlerBise can meet with a Stakeholder Group if the
City desires.
Deliverables: Technical Memorandum Discussing Recommended Service Areas by
Fee Category.
TASK 4: IDENTIFY CAPITAL NEEDS AND COSTS
This task will determine the relevant capital needs and costs due to growth.
1) Long-Range Capital Need – TischlerBise will focus on relevant documents
such as the relevant planning documents and master plans, the current Capital
Improvements Plan, and other mapping and data that is available. Discussions
will aim not only to understand the specific costs, but also to assess the size and
scope of projects and whether capital facility needs are due to normal
replacement, catch-up, or new demand.
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2) Service Units – TischlerBise will define the standardized measures of
consumption, use, or generation attributable to an individual unit of development
for each category of “necessary public services” or facility expansions.
3) Review Cost Estimates – TischlerBise will review the costs of infrastructure
improvements, real property, financing, engineering, and architectural services
associated with the “necessary public services” to be included in the IIP and
development fees.
4) Financing Costs – TischlerBise will identify projected interest charges and other
financial costs which are to be used for repayment of principal and interest of
debt used to finance construction of “necessary public services” identified in the
IIP.
5) Identify Ineligible Costs – TischlerBise will identify costs that are not eligible for
inclusion in the IIP and development fees. Ineligible costs include projects not
included in the IIP; repair, maintenance, or operation of existing facilities;
projects which serve existing development in order to meet stricter regulatory
requirements; projects which provide a higher level-of-service to existing
development; and administrative, maintenance, and operating costs.
As part of calculating the fee, costs for infrastructure improvements, real property,
financing, engineering, and architectural services will be considered. TischlerBise will
consider all of these components in developing an equitable allocation of costs.
Meetings: Two (2) meetings with City staff.
Deliverables: See Task 7.
TASK 5: DETERMINE NEED FOR “CREDITS” TO BE APPLIED AGAINST CAPITAL
COSTS
A consideration of “credits” is integral to the development of a legally valid impact fee
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 required.
There are two types of “credits” that are included in the calculation of impact fees, each
with specific, distinct characteristics. The first is a credit due to possible double payment
situations. This could occur when a property owner will make future contributions toward
the capital costs of a public facility covered by an impact fee. The second is a credit toward
the payment of an impact fee for the required dedication of public sites and improvements
provided by the developer and for which the impact fee is imposed. Both types of credits
will be considered and addressed in the development fee study.
Deliverables: Memoranda as appropriate. See Task 10.
TASK 6: DISCUSS PRELIMINARY METHODOLOGIES AND POLICY OPTIONS
The requirement that development fees be based on an IIP does not equate to a
requirement that only the plan-based methodology can be used in the calculations. The
IIP can reflect the past capacity investments in infrastructure that will be repaid by new
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development with development fee revenue. Likewise, the City can plan to provide new
development the same level-of-service being currently provided to existing development.
TischlerBise will evaluate different allocation methodologies for each IIP and development
fee component to determine which methodology is the most appropriate measure of the
demand created by new development. These methodologies include:
Cost Recovery Methodology – This methodology is best suited for infrastructure which
has already been built and has excess capacity available to be utilized for new
development.
Incremental Expansion Methodology – Under this approach, new development will
receive the current level-of-service being provided to existing development by the existing
inventory of infrastructure.
Plan-Based Methodology – This methodology primarily evaluates the CIP for new
development’s proportionate share of planned capital projects. It is important to note,
however, that CIP’s are often fiscally constrained and may not reflect the true
requirements of new development. TischlerBise will therefore also evaluate master plans
for different categories of infrastructure.
This comprehensive approach and consideration of alternative methodologies will allow
maximization of the development fees. TischlerBise to prepare draft levels-of-service
tables and methodology recommendations for each infrastructure category and
component. We will discuss this information with City staff to ensure understanding and
acceptance. Policy alternatives will be discussed as appropriate. This should help ensure
“sign-off” and prevent time delays in finalizing the analysis.
Meetings: One (1) meeting with City staff and elected officials (if desired) to discuss and
explain the preliminary findings, assumptions, and results. As a no charge option,
TischlerBise can meet with a Stakeholder Group if the City desires.
Deliverables: TischlerBise will prepare a “story board” for staff review and comment
detailing proposed levels-of-service, cost estimates, service areas, credits and
recommended calculation methodologies.
TASK 7: PREPARE DRAFT INFRASTRUCTURE IMPROVEMENT PLAN (IIP)
In this task, TischlerBise’s qualified professionals will prepare an IIP using generally
accepted engineering and planning practices for each “necessary public service” for
which a development fee can be assessed. Development of the IIP will include the
following subtasks:
Reserve Capacity – The IIP will identify infrastructure capacity to be reserved to
serve future development.
Description of Existing Necessary Public Services in the Service Area(s) –
The IIP will include a description of the existing “necessary public services” in the
service area(s) and the costs to upgrade, update, improve, expand, correct, or
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replace those services to meet existing needs and usage and stricter safety,
efficiency, environmental, and regulatory standards.
Analysis of Total Capacity – The IIP will identify the current usage and
commitments for usage of capacity of the existing “necessary public services.”
Description
of
“Necessary
Public
Services”
Attributable
to
New
Development – The IIP will describe all parts of the “necessary public services” of
facility expansions and their costs necessitated by and attributable to development
in the service area(s) based on the approved land use assumptions. Cost forecasts
will include the costs of infrastructure improvements, real property, financing,
engineering, and architectural services.
Equivalency/Conversion Table – The IIP will include a table establishing the
specific level or quantity of use, consumption, or generation of a service unit for
each category of “necessary public services” or facility expansions. The table will
include the ratio of a service unit to various types of residential, commercial, and
industrial land uses.
Projected Service Units – The IIP will include the total number of projected
service units necessitated by and attributable to new development in the service
area(s), based on the approved land use assumptions.
Projected Demand for Necessary Public Services – The IIP will include a ten-
year projection of the demand for “necessary public services”, or facility
expansions required by new service units.
Forecast of Non-Development Fee Revenues from New Service Units – The
IIP will forecast revenues other than development fees generated by new service
units, such as state-shared revenue, highway user revenue, federal revenue, ad
valorem property taxes, construction contracting or similar excise taxes
attributable to development based on the approved land use assumptions. This
subtask will include a plan to include these contributions in determining the extent
of the burden created by new development.
These subtasks will result in a written plan that identifies each “necessary public service”
or facility expansion that is to be the subject of a development fee and complies with the
requirements of State law.
Meetings: None.
Deliverables: Draft Infrastructure Improvement Plan.
TASK 8: CONDUCT FUNDING AND CASH FLOW ANALYSIS; ESTIMATE ANNUAL
OPERATING COSTS
To prepare a meaningful IIP, it is important to evaluate the anticipated funding sources.
In this task, TischlerBise will prepare a ten-year cash flow analysis. This calculation will
allow the City to better understand the revenue potential of the development fees and the
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amount which would be needed if the fees were discounted. It will also provide a good
understanding of the cash flow needed to cover the infrastructure costs for new
development. The cash flow analysis will indicate whether additional funds might be
needed or whether the IIP might need to be altered. This could also affect the total credits
calculated in the previous task. Therefore, it is likely that several iterations will be
conducted in order to refine the cash flow analysis reflecting the capital improvement
needs. Development fee revenues can only be spent on capital projects that add capacity.
Operating and maintenance costs associated with these capital improvements will have
to be funded from other revenue sources, mostly likely from the General Fund. To
estimate the annual operational and maintenance costs of the projected infrastructure,
TischlerBise will utilize several data sources, including:
Most recently adopted operating budget.
Most recently adopted CIP.
Capital project/program submittal sheets from departments.
Meetings: None.
Deliverables: See Task 10.
TASK 9: COMPLETE DEVELOPMENT FEE METHODOLOGY AND CALCULATIONS
The completion of the previous task will enable the development fee methodology and
calculations to be finalized. TischlerBise will calculate the maximum justifiable fee for
commercial, residential, and industrial development that can be charged and conform to
fee requirements.
Meetings: None.
Deliverables: Draft Development Fee Report.
TASK 10: PREPARE FINAL LAND USE ASSUMPTIONS, IIP AND DEVELOPMENT
FEE REPORT, PUBLIC PRESENTATIONS
TischlerBise will prepare a written report for the City that summarizes the need for
development fees for the “necessary public services” category and the relevant
methodologies employed, as well as documentation for all assumptions and cost factors.
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 level-of-service standards and cost factors used and
accompanying rationale.
An IIP spanning a maximum ten-year planning horizon (15-year for utilities), listing
projects, costs, timing, and financing.
A detailed schedule of all proposed fees listed by land use type and activity.
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Other information which adequately explains and justifies the resulting
recommended fee schedule.
A ten-year cash flow analysis of development fees and estimate of operating costs.
Meetings: One (1) presentation/work session with the City Council to present and
discuss final and Use Assumptions, Development Fee Report and IIP as part of the
legislatively required adoption process.
Deliverables: Final Land Use Assumptions, IIP and Development Fee Report and
presentation materials for meetings.
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EXHIBIT “B”
PROJECT BUDGET