16-032 The Schmidt - Prescott Group, Inc., Consultant Services for a Park Dedication Fee StudyAGREEMENT BETWEEN THE CITY OF CUPERTINO AND
THE SCHMIDT -PRESCOTT GROUP, INC.
FOR CONSUI.TANT SERVICES FOR
A PARK DEDICATION FEE STUDY
THIS AGREEMENT, for reference dated Mwt,\I\ 1 , 2016, is by and
between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to
as "City"), and THE SCHMIDT -PRESCOTT GROUP, INC., a California
corporation, whose address is 2010 North First Street, Suite 390, San lose, CA
95131 (hereinafter referred to as "Consultant"), and is made with reference to the
following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing
under the laws of the State of California with the power to carry on its business
as it is now being conducted under the Constitution and the statutes of the State
of California and the Cupertino Municipal Code.
B. Consultant is specially trained, experienced and competent to
perform the special services which will be required by this Agreement; and
C. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement
on the terms and conditions described herein.
D. City and Consultant desire to enter into an agreement for
consultant services for a Park Dedication Fee Study upon the terms and
conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties as follows:
1. TERM:
The term of this Agreement shall commence on the date this agreement is
executed and shall terminate on June 30, 2016, unless terminated earlier as set
forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A".
titled "Scope of Services" which is attached hereto and incorporated herein by
this reference.
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The Schmidt -Prescott Group, Inc. for Park Dedication Fee Study
3. SCHEDULE OF PERFORMANCE:
The Services of Consultant are to be completed by June 30, 2016.
Consultant agrees to provide City a first draft of the report no later than June 1,
2016.
4. COMPENSATION TO CONSULTANT:
The maximum compensation to be paid to Consultant under this
agreement shall not exceed Seventeen Thousand Five Hundred Dollars ($17,500).
The rate of payment is set out in Exhibit A, which is attached hereto and
incorporated herein.
Consultant shall furnish to City a detailed statement of the work
performed for compensation during the term of this Agreement. Consultant may
submit monthly invoices for interim progress payments during the course of
each phase, clearly stating as a minimum the total Contract amount, amount paid
to date, percent complete and amount due.
5. TIME IS OF THE ESSENCE:
Consultant and City agree that time is of the essence regarding the
performance of this Agreement.
6. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner
commensurate with the prevailing standards of like professionals in the San
Francisco Bay Area and agrees that all services shall be performed by qualified
and experienced personnel who are not employed by the City nor have any
contractual relationship with City.
7. INDEPENDENT PARTIES:
City and Consultant intend that the relationship between them created by
this Agreement is that of employer-independent contractor. The manner and
means of conducting the work are under the control of Consultant, except to the
extent they are limited by statute, rule or regulation and the express terms of this
Agreement. No civil service status or other right of employment will be acquired
by virtue of Consultant's services. None of the benefits provided by City to its
employees, including but not limited to, unemployment insurance, workers'
compensation plans, vacation and sick leave are available from City to
Consultant, its employees or agents. Deductions shall not be made for any state
or federal taxes, FICA payments, PERS payments, or other purposes normally
associated with an employer-employee relationship from any fees due
Consultant. Payments of the above items, if required, are the responsibility of
Consultant.
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8. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Consultant assumes any and all responsibility for verifying the identity
and employment authorization of all of his/her employees performing work
hereunder, pursuant to all applicable IRCA or other federal, or state rules and
regulations. Consultant shall indemnify and hold City harmless from and
against any loss, damage, liability, costs or expenses arising from any
noncompliance of this provision by Consultant.
9. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are
unacceptable employer/employee conduct, Consultant agrees that harassment or
discrimination directed toward a job applicant, a City employee, or a citizen by
Consultant or Consultant's employee or subcontractor on the basis of race,
religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, or sexual orientation will not be tolerated.
Consultant agrees that any and all violations of this provision shall constitute a
material breach of this Agreement.
10. PROJECT COORDINATION
CITY: Director of Public Works shall be representative of City for all
purposes under this Agreement. Chad Mosley is hereby designated as the
Director of Public Works' designee and Project Manager, and shall supervise the
progress and execution of this Agreement.
CONSULT ANT: Consultant shall assign a single Consultant Project
Manager to have overall responsibility for the progress and execution of this
Agreement for Consultant. Should circumstances or conditions subsequent to
the execution of the Agreement require a substitute Consultant Project Manager
for any reason, the Consultant Project Manager designee shall be subject to the
prior written acceptance and approval of the City Project Manager. The
designated Consultant Project Manager shall be Wayne Prescott.
11. HOLD HARMLESS:
Indemnification:
A. Claims for Professional Liability. Where the law establishes a standard
of care for Consultant's professional services, and to the extent the
Consultant breaches or fails to meet such established standard of care, or
is alleged to have breached or failed to meet such standard of care,
Consultant shall, to the fullest extent allowed by law, with respect to all
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The Schmidt -Prescott Group, Inc. for Park Dedication Fee Study
services performed in connection with the Agreement, indemnify, defend,
and hold harmless the City and its officers, officials, agents, employees
and volunteers from and against any and all liability, claims, actions,
causes of action or demands whatsoever against any of them, including
any injury to or death of any person or damage to property or other
liability of any nature, that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of Consultant or
Consultant's employees, officers, officials, agents or independent
contractors. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation. Consultant shall not be obligated under this Agreement to
indemnify City to the extent that the damage is caused by the sole
negligence or willful misconduct of City, its agents or employees.
B. Claims for Other Liability. Consultant shall, to the fullest extent
allowed by law, with respect to all services performed in connection with
the Agreement indemnify, defend, and hold harmless the City and its
officers, officials, agents, employees and volunteers from and against any
and all liability, claims, actions, causes of action or demands whatsoever
against any of them, including any injury to or death of any person or
damage to property or other liability of any nature, that arise out of,
pertain to, or relate to the performance of this Agreement by Consultant
or Consultant's employees, officers, officials, agents or independent
contractors. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation.
12. INSURANCE:
On or before the commencement of the term of this Agreement,
Consultant shall furnish City with certificates showing the type, amount, class of
operations covered, effective dates and dates of expiration of insurance coverage
in compliance with paragraph 12A, B, C, D and E. Such certificates, which do
not limit Consultant's indemnification, shall also contain substantially the
following statement: "Should any of the above insurance covered by this
certificate be canceled or coverage reduced before the expiration date thereof, the
insurer affording coverage shall provide thirty (30) days' advance written notice
to the City of Cupertino by certified mail, Attention: City Manager." It is agreed
that Consultant shall maintain in force at all times during the performance of this
Agreement all appropriate coverage of insurance required by this Agreement
with an insurance company that is acceptable to City and licensed to do
insurance business in the State of California. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
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The Schmidt -Prescott Group, Inc. for Park Dedication Fee Study
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following
minimum limits:
Bodily Injury: $500,000
each occurrence
$1,000,000
aggregate -all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate
limits in the amounts of $1,000,000 will be considered
equivalent to the required minimum limits shown above.
(3) Automotive:
Comprehensive automotive liability coverage in the
following minimum limits:
Bodily Injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
(4) Professional Liability:
Professional liability insurance which includes coverage for
the professional acts, errors and omissions of Consultant in
the amount of at least $1,000,000.
B. SUBROGATION WAIVER:
Consultant agrees that in the event of loss due to any of the perils for
which he/she has agreed to provide comprehensive general and automotive
liability insurance, Consultant shall look solely to his/her insurance for recovery.
Consultant hereby grants to City, on behalf of any insurer providing
comprehensive general and automotive liability insurance to either Consultant or
City with respect to the services of Consultant herein, a waiver of any right to
subrogation which any such insurer of said Consultant may acquire against City
by virtue of the payment of any loss under such insurance.
C. FAIL URE TO SECURE:
If Consultant at any time during the term hereof should fail to secure or
maintain the foregoing insurance, City shall be permitted to obtain such
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The Schmidt -Prescott Group, Inc. for Park Dedication Fee Study
insurance in the Consultant's name or as an agent of the Consultant and shall be
compensated by the Consultant for the costs of the insurance premiums at the
maximum rate permitted by law and computed from the date written notice is
received that the premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards and commissions, officers, employees and
volunteers shall be named as an additional insured under all insurance
coverages, except any professional liability insurance and automotive insurance,
required by this Agreement. The naming of an additional insured shall not affect
any recovery to which such additional insured would be entitled under this
policy if not named as such additional insured. An additional insured named
herein shall not be held liable for any premium1 deductible portion of any loss, or
expense of any nature on this policy or any extension thereof. Any other
insurance held by an additional insured shall not be required to contribute
anything toward any loss or expense covered by the insurance provided by this
policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being
sufficient to protect Consultant. Consultant is advised to confer with
Consultant's insurance broker to determine adequate coverage for Consultant.
13. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to
perform the services required by this Agreement. Consultant may be required to
fill out a conflict of interest form if the services provided under this Agreement
require Consultant to make certain governmental decisions or serve in a staff
capacity as defined in Title 2, Division 6, Section 18700 of the California Code of
Regulations.
14. PROHIBITION AGAINST TRANSFERS:
Consultant shall not assign, sublease, hypothecate, or transfer this
Agreement, or any interest therein, directly or indirectly, by operation of law or
otherwise, without prior written consent of City. Any attempt to do so without
said consent shall be null and void, and any assignee, sublessee, hypothecate or
transferee shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer. However, claims for money by
Consultant from City under this Agreement may be assigned to a bank, trust
company or other financial institution without prior written consent. Written
notice of such assignment shall be promptly furnished to City by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner
or joint venturer or syndicate member or cotenant, if Consultant is a partnership
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The Schmidt-Prescott Group, Inc. for Park Dedication Fee Study
or joint venture or syndicate or cotenancy, which shall result in changing the
control of Consultant, shall be construed as an assignment of this Agreement.
Control means fifty percent (50%) or more of the voting power of the
corporation.
15. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those people and
subcontractors whose names are included in this Agreement shall be used in the
performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors
shall be required to furnish proof of workers' compensation insurance and shall
also be required to carry general, automobile and professional liability insurance
in reasonable conformity to the insurance carried by Consultant. In addition,
any work or services subcontracted hereunder shall be subject to each provision
of this Agreement.
16. PERMITS AND LICENSES:
Consultant, at his/her sole expense, shall obtain and maintain during the
term of this Agreement, all appropriate permits, certificates and licenses
including, but not limited to, a City Business License, that may be required in
connection with the performance of services hereunder.
17. REPORTS:
A. Each and every report, draft, work product, map, record and other
document, hereinafter collectively referred to as "Report", reproduced, prepared
or caused to be prepared by Consultant pursuant to or in connection with this
Agreement, shall be the exclusive property of City. Consultant shall not
copyright any Report required by this Agreement and shall execute appropriate
documents to assign to City the copyright to Reports created pursuant to this
Agreement. Any Report, information and data acquired or required by this
Agreement shall become the property of City, and all publication rights are
reserved to City. Consultant may retain a copy of any report furnished to the
City pursuant to this Agreement.
B. All Reports prepared by Consultant may be used by City in
execution or implementation of:
(1) The original Project for which Consultant was hired;
(2) Completion of the original Project by others;
(3) Subsequent additions to the original project; and/or
(4) Other City projects as appropriate.
C. Consultant shall, at such time and in such form as City may
require, furnish reports concerning the status of services required under this
Agreement.
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The Schmidt -Prescott Group, Inc. for Park Dedication Fee Study
D. All Reports required to be provided by this Agreement shall be
printed on recycled paper. All Reports shall be copied on both sides of the paper
except for one original, which shall be single sided.
E. No Report, information or other data given to or prepared or
assembled by Consultant pursuant to this Agreement shall be made available to
any individual or organization by Consultant without prior approval by City.
F. Electronic and hard copies of Consultant's work product shall
constitute the Project deliverables. Plans to be in CAD and PDF formats, and
other documents to be in Microsoft Word and PDF formats. City holds
Consultant harmless for any modifications to the documents.
18. RECORDS:
Consultant shall maintain complete and accurate records with respect to
sales, costs, expenses, receipts and other such information required by City that
relate to the performance of services under this Agreement.
Consultant shall maintain adequate records of services provided in
sufficient detail to permit an evaluation of services. All such records shall be
maintained in accordance with generally accepted accounting principles and
shall be clearly identified and readily accessible. Consultant shall provide free
access to such books and records to the representatives of City or its designees at
all proper times, and gives City the right to examine and audit same, and to
make transcripts therefrom as necessary, and to allow inspection of all work,
data, documents, proceedings and activities related to this Agreement. Such
records, together with supporting documents, shall be kept separate from other
documents and records and shall be maintained for a period of three (3) years
after receipt of final payment.
If supplemental examination or audit of the records is necessary due to
concerns raised by City's preliminary examination or audit of records, and the
City's supplemental examination or audit of the records discloses a failure to
adhere to appropriate internal financial controls, or other breach of contract or
failure to act in good faith, then Consultant shall reimburse City for all
reasonable costs and expenses associated with the supplemental examination or
audit.
19. NOTICES:
All notices, demands, requests or approvals to be given under this
Agreement shall be given in writing and conclusively shall be deemed served
when delivered personally or on the second business day after the deposit
thereof in the United States Mail, postage prepaid, registered or certified,
addressed as hereinafter
provided.
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The Schmidt-Prescott Group, Inc. for Park Dedication Fee Study
All notices, demands, requests, or approvals from Consultant to City shall
be addressed to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Chad Mosley
All notices, demands, requests, or approvals from City to Consultant shall
be addressed to Consultant at:
20. TERMINATION:
In the event Consultant fails or refuses to perform any of the provisions
hereof at the time and in the manner required hereunder, Consultant shall be
deemed in default in the performance of this Agreement. If such default is not
cured within the time specified after receipt by Consultant from City of written
notice of default, specifying the nature of such default and the steps necessary to
cure such default, City may terminate the Agreement forthwith by giving to the
Consultant written notice thereof.
City shall have the option, at its sole discretion and without cause, of
terminating this Agreement by giving seven (7) days' prior written notice to
Consultant as provided herein. Upon termination of this Agreement, each party
shall pay to the other party that portion of compensation specified in this
Agreement that is earned and unpaid prior to the effective date of termination.
In the event of termination, Consultant shall deliver to City, copies of all
reports, documents, and other work performed by Consultant under this
Agreement.
21. COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances,
rules and regulations enacted or issued by City.
22. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of
the State of California excepting any choice of law rules which may direct the
application of laws of another jurisdiction. The Agreement and obligations of the
parties are subject to all valid laws, orders, rules, and regulations of the
authorities having jurisdiction over this Agreement (or the successors of those
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The Schmidt -Prescott Group, Inc. for Park Dedication Fee Study
authorities.)
Any suits brought pursuant to this Agreement shall be filed with the
courts of the County of Santa Clara, State of California.
23. ADVERTISEMENT:
Consultant shall not post, exhibit, display or allow to be posted, exhibited,
displayed any signs, advertising, show bills, lithographs, posters or cards of any
kind pertaining to the services performed under this Agreement unless prior
written approval has been secured from City to do otherwise.
24. WAIVER:
A waiver by City of any breach of any term, covenant, or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant, or condition contained herein, whether of
the same or a different character.
25. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all preliminary
negotiations and agreements of whatsoever kind or nature are merged herein. ·
No verbal agreement or implied covenant shall be held to vary the provisions
hereof. Any modification of this Agreement will be effective only by written
execution signed by both City and Consultant.
26. GIFTS:
A. Consultant is familiar with City's prohibition against the
acceptance of any gift by a City officer or designated employee, which
prohibition is found in City Administrative Procedures.
B. Consultant agrees not to offer any City officer or designated
employee any gift prohibited by the Administrative Procedures.
C. The offer or giving of any prohibited gift shall constitute a material
breach of this Agreement by Consultant. In addition to any other remedies, City
may have in law or equity, City may terminate this Agreement for such breach as
provided in Section 19 of this Agreement.
27. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the
Agreement shall be deemed to be enacted herein, and the Agreement shall be
read and enforced as though each were included herein. If through mistake or
otherwise, any such provision is not inserted or is not correctly inserted, the
Agreement shall be amended to make such insertion on application by either
party.
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The Schmidt-Prescott Group, Inc. for Park Dedication Fee Shtdy
28. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of
the Agreement and in no way affect, limit or amplify the terms or provisions of
this Agreement.
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The Schmidt -Prescott Group, Inc. for Park Dedication Fee Study
P.O. No.: io \ 0 ,-t?D.t\
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed.
THE SCHMIDT-PRESCOTT
GROUP, INC
By4L'69
Name lt.i:,;._,ue /2 r:l.c C{) tf
(/
-/J ~ t:Y-o Title lf0u A2 ·
I
Date ~ ;; /J-o/C:.
I
Taxl.D. No.: 72--0;3//6~--
CITY OF CUPERTINO
A Municipal Corporation
Timm Borden, Director of Public Works
Date ~,/7/l
APPROVED AS TO FORM:
Address: 0-CYO tJ.41~ 1-sf Si-~ >Le :;>)i'O
...c~ (jQ.w) o1 1SJ3/ ~
~ Randolph Stevenson Hom
D '--city Attorney
ATTEST:
Grace Schmidt, City Clerk 3 --3 eJ --//o
Contract Amount: $17,500
Account No.: l 00-01-go'"\ 70fJ-70?-
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The Schmidt-Prescott Group, Inc. for Park Dedication Fee Study
EXHIBIT A
~-· ... ~
, l'.fHE SGBMIDT & PRES(;OTT GROUP, INC. ~-~ ll ... • ..
Frank E. Schmidt, MAI, SRA
January 26, 2015
Chad Mosley
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Matthew D. Watson
Nancy Bigham
Christine Pltam
Kate Le Vesque
Wayne F. Prescott, MAI, CClM
Re: Summary and Evaluation of Land selling Prices -Park Dedication Fee Study
Dear Mr. Mosley:
I am pleased to advise that we could deliver a summary of residential land selling price data for
Cupertino land that will report the prices paid on a spreadsheet that will delineate:
• price paid
• street address
• lot size {acres)
• lot size {square feet)
• price paid per unit {SF or acres as appropriate)
• market conditions or "time" adjustment factor
• adjustment to the appropriate entitlement status and level of
improvement
• whether improvements were demolished and/or reconstructed
• adjustment for demolition costs if warranted
• indicated value for the land sale
We will discover the sales data using these resources:
• MLSListings.com
• Realquest Summary of the Public Record
• Costar.com Commercial Sales Database
• Loopnet.com database of property for sale
• Trulia.com
• Zillow.com
2010 North First Street, Suite 390, San Jose, CA 95131 (408)255-6840 FAX (408)255-1788 email: wprescott@valuatio11co11sulta11t.11et
Summary and Evaluation of Land selling Prices -Park Dedication Fee Study 2105
• City of Cupertino property records
Most of the data for the higher-density categories will come from Costar and Loopnet, which
are commercial subscription services that we utilize when we need data on the sale of
development sites.
The data base within each resource will be searched using these parameters:
• Located in Cupertino
• Date of Sale -January 1, 2013 to Present
• Land or Lots
• Key Words -Bare Land, Finished Lot, Teardown, Fixer-Upper
For consistency, we should adjust each sale to a similar level of entitlement and/or physical
status. I suspect that "finished lot" status might be the appropriate level for the lower
densities, because I expect that most of the data that we discover will be individual finished lot
sales {including teardowns). For the higher density product, the tentative map stage might be
appropriate, since that is the point of entitlement that typically sets the basis for such
transactions.
The data will be displayed on a spreadsheet, arranged within the residential Land Use
categories based on density, discussed in Envision Cupertino 2015-2040:
• HD
• MHD
• MD
• LM
• Low
• VLD
• VLD
• VLD
35 Units per acre
20-35 Units per acre
10-20 Units per acre
5-10 Units per acre
1-6 Units per acre
Slope-Density formula
1-2 Acres/Lot; 0.5-1.0 Units per acre
5-10 Acres/Lot; 0.05-0.10 Units per acre
A further breakdown by Neighborhood identified in Envision Cupertino can also be applied: Oak
Valley, Inspiration Heights, Rancho Rinconada, etc. School district will also be identified. For
those land use categories with limited sales data at either end of the density range {both the
higher density classes and low density/formula classes), I propose that we expand the search to
neighboring cities if necessary to provide enough data points to be meaningful. The theory that
applies here is that a developer with the financial capability to develop a high-density unit
project will not restrict his search for suitable sites to one municipality; and that a home
purchaser seeking the kind of semi-rural view lot in the slope/density class may not restrict his
search to Cupertino, with due consideration for the quality of the school district.
The Schmidt-Prescott Group, Inc. -Complete Property Valuation Services
Summary and Evaluation of Land selling Prices -Park Dedication Fee Study 2105
The narrative report will describe the various sections and discussion points in the Envision
statement and Park Dedication Fee statute that will enable the reader to understand why the
data was prepared and presented in this way. Although this will not be an "appraisal reporf'
since we are not appraising a property, it will be prepared and written to conform with the
Uniform Standards of Professional Appraisal Practice (USPAP) and the Code of Ethics and
Standards of Professional Practice of the Appraisal Institute.
I believe our study presented in this manner will enable you to customize the way you apply the
data. I propose to prepare this report at a price capped at a minimum of $8,500 and a
maximum of $17,500, at an hourly rate of $250, to be delivered about 8 weeks after
engagement. That will result in delivery in April. The exact cost will be largely a function of
how much data we discover. The more data available to evaluate, the more precise the results
will be. Please call me to talk about this at your convenience.
Very Truly Yours,
Wayne F. Prescott, MAI, CCIM
State Certified Real Estate Appraiser, Certificate No. AG001533
The Schmidt-Prescott Group, Inc. -Complete Property Valuation Services