Brentwood Property Appraisal, Inc.

Appraisal Service Provider Agreement

 

This Appraisal Service Provider Agreement (“Agreement”) between Brentwood Property Appraisal, Inc. (“BPA”), an appraisal management company registered and operating under the laws of California and New York, and under the laws of any other states in which it may do business, and the real estate fee appraiser firm executing this Agreement (“APPRAISAL SERVICE PROVIDER”) shall be effective as of the date accepted by APPRAISAL SERVICE PROVIDER electronically on a website platform utilized for that purpose by BPA (this date of acceptance will be referred to as the “Effective Date” below).

BPA and APPRAISAL SERVICE PROVIDER agree and, with respect to the information about themselves below, represent to each other:

  1. APPRAISAL SERVICE PROVIDER is and, for the duration of this Agreement will remain, a sole proprietorship, partnership, limited liability company, limited liability partnership or corporation.
  2. APPRAISAL SERVICE PROVIDER is and, for the duration of this Agreement will continue to be, engaged in the business of providing professional real estate appraisal services performed by one or more licensed or certified appraisers affiliated with APPRAISAL SERVICE PROVIDER as owners, partners, members, shareholders or employees. (Appraisers affiliated with APPRAISAL SERVICE PROVIDER who will provide services under this Agreement on behalf of APPRAISAL SERVICE PROVIDER are referred to as “APPRAISER(S)” in this Agreement.)
  3. APPRAISAL SERVICE PROVIDER and its APPRAISER(S) are “fee appraisers” in accordance with the definition in the Appraisal Independent Requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
  4. BPA is an appraisal management company, under the Dodd-Frank Wall Street Reform and Consumer Protection Act and under state laws applicable to the registration of appraisal management companies, providing appraisal management services to mortgage lending and other clients. As an appraisal management company, BPA selects and retains independent real estate fee appraisal firms, and contracts with these firms to perform appraisal assignments for BPA and manages the appraisal process which includes administrative services such as collecting fees and reviewing the work of the independent real estate appraisal firms.
  5. APPRAISAL SERVICE PROVIDER desires to provide Professional Appraisal Services performed by its APPRAISER(S) to BPA under the terms and conditions of this Agreement and in accordance with all requirements for legally proper classification as an independent contractor under applicable states (including for services performed in California, Assembly Bill 5, enacting California Labor Code section 2750.3). Neither BPA nor APPRAISAL SERVICE PROVIDER intends or desires to create any employee relationship between each other or between BPA and any APPRAISER(S) performing services on behalf of APPRAISAL SERVICE PROVIDER.

Accordingly, APPRAISAL SERVICE PROVIDER and BPA agree that APPRAISAL SERVICE PROVIDER will provide professional appraisal services to BPA on the following terms and conditions:

1.      General Nature of APPRAISAL SERVICE PROVIDER’s Services to BPA. APPRAISAL SERVICE PROVIDER, through one or more of its APPRAISER(S) who are members of BPA’s panel of eligible real estate appraisers, will provide Professional Appraisal Services in accordance with the terms and conditions of this Agreement for appraisal orders accepted by APPRAISAL SERVICE PROVIDER in separate engagement letters or in other forms of appraisal service requests from BPA (via electronic ordering portals or by other means), identifying the subject property, requested completion date, report format and other assignment-specific information pertinent to each appraisal engagement (each such engagement letter or request is referred to as an “Order” in this Agreement).

Each Order will identify an APPRAISER affiliated with the APPRAISAL SERVICE PROVIDER who is a qualified, eligible member of BPA’s appraiser panel and who has been selected in accordance with federal and state requirements as having the requisite license, education, expertise and experience necessary to complete the appraisal assignment for the particular market and property type. Depending on its own capacity and whether APPRAISAL SERVICE PROVIDER has other eligible APPRAISERS on its staff, APPRAISAL SERVICE PROVIDER may arrange with BPA for another APPRAISER affiliated with the APPRAISAL SERVICE PROVIDER to complete the Order, upon verification that the other APPRAISER possesses the requisite license, education, expertise and experience and meets the requirements of this Agreement.

2.      Acceptance of Orders and Payment of Appraisal Fees. APPRAISAL SERVICE PROVIDER agrees and represents that its APPRAISER(S) are authorized to accept Orders on APPRAISAL SERVICE PROVIDER’s behalf and that such accepted Orders are subject to and will be performed under the terms of this Agreement. Payment for completed Orders accepted by APPRAISAL SERVICE PROVIDER and meeting the requirements of this Agreement will be made by BPA only to APPRAISAL SERVICE PROVIDER and not to an individual APPRAISER.

To receive payment, APPRAISAL SERVICE PROVIDER must provide BPA a completed IRS Form W-9 bearing APPRAISAL SERVICE PROVIDER’s name as the business entity and an IRS-issued EIN for APPRAISAL SERVICE PROVIDER.

Nothing in this Agreement requires APPRAISAL SERVICE PROVIDER to accept any Order from BPA, and nothing in this Agreement promises or guarantees APPRAISAL SERVICE PROVIDER any particular volume of Orders or revenue for any particular time period.

3.      APPRAISAL SERVICE PROVIDER’s Responsibilities and Representations to BPA. APPRAISAL SERVICE PROVIDER agrees and represents that:

a.      Business Entity. APPRAISAL SERVICE PROVIDER is a sole proprietorship (owned either by an APPRAISER or a different individual), partnership, limited liability company, limited liability partnership or corporation engaged in the business of providing real estate appraisal services through licensed or certified real estate appraisers. The person authorized to accept this Agreement on behalf of APPRAISAL SERVICE PROVIDER will accurately indicate APPRAISAL SERVICE PROVIDER’s type of business entity. The business name of APPRAISAL SERVICE PROVIDER is and will continue to be accurately reflected in the profile(s) of its APPRAISER(S) maintained in BPA’s electronic appraisal management platform.

b.      License or Certification of APPRAISER(S). No APPRAISER performing services on behalf of APPRAISAL SERVICE PROVIDER under this Agreement has had an appraisal license or certification revoked or denied in any state or jurisdiction or has relinquished any appraisal license or certification with disciplinary charges pending. APPRAISAL SERVICE PROVIDER will notify BPA immediately upon any suspension, revocation or relinquishment of an appraisal license or certification in any state or jurisdiction of any APPRAISER(S) performing services on APPRAISAL SERVICE PROVIDER’s behalf under this Agreement. APPRAISAL SERVICE PROVIDER will not accept an Order for or allow the performance of any appraisal unless the APPRAISER performing the accepted Order is actively licensed or certified as an appraiser in the state in which the subject property is located and legally authorized to perform appraisals in that state or jurisdiction as of the dates of assignment and performance. APPRAISAL SERVICE PROVIDER will provide BPA with a copy of its APPRAISER(S)’s licenses or certifications upon request.

c.       Qualifications and Competency of APPRAISER(S). APPRAISAL SERVICE PROVIDER will only allow APPRAISER(S) to perform appraisal assignments on its behalf when all the following criteria are met:

(i)     the APPRAISER is legally qualified to perform the assignment under the applicable state’s licensing and certification laws,

(ii)    the APPRAISER is competent to perform appraisals of the subject property’s type,

(iii)   the APPRAISER possesses relevant geographic competency for the assignment,

(iv)   the APPRAISER does not possess a present or prospective interest in the subject property and does not have a personal interest with respect to the parties involved or any personal bias or conflict of interest,

(v)    the APPRAISER has access to appropriate data sources for the assignment. APPRAISAL SERVICE PROVIDER agrees to notify BPA immediately in writing if APPRAISAL SERVICE PROVIDER or any APPRAISER later determines that the APPRAISER is not qualified or competent to complete an appraisal assignment, and

(vi)   the APPRAISER is not on any exclusionary list of a lender identified in an Order.

APPRAISAL SERVICE PROVIDER and its APPRAISER(S) are aware that misrepresentation of qualifications or competency may violate applicable state law, may violate the Uniform Standards of Professional Appraisal Practice (“USPAP”), and may require BPA to report matters under its mandatory obligations concerning reporting of USPAP violations or other misconduct to state appraiser licensing and certification agencies.

d.      Compliance with Standards and Laws. APPRAISAL SERVICE PROVIDER’s APPRAISER(S) will perform the appraisal services contracted under this Agreement in conformity with USPAP, the Appraisal Independence Requirements of the Dodd-Frank Act, and all other applicable laws, regulations and guidelines pertaining to professional appraisal services.

e.      Adherence to Service Level Standards. BPA will from time-to-time prepare service level standards. APPRAISAL SERVICE PROVIDER agrees that its APPRAISER(S) will follow the service level standards applicable and currently in effect.  

4. APPRAISAL SERVICE PROVIDER’s Contracting Relationship with BPA. APPRAISAL SERVICE PROVIDER and BPA acknowledge and agree that this Agreement is between independent businesses that are separately owned and operated. The parties intend this Agreement to create the relationship only of principal and independent contractor and not that of employer and employee – either between APPRAISAL SERVICE PROVIDER and BPA or between any APPRAISER(S) and BPA. This independent contractor relationship is in accordance with definition “fee appraiser” found in the Dodd-Frank Wall Street Reform and Consumer Protection Act (15 U.S.C. § 1639e) and regarding “appraiser panels” under the appraisal management company laws of California and New York.

APPRAISAL SERVICE PROVIDER and BPA agree and represent to each other that the contracting relationship between them is consistent with the criteria described below in this section 4 - and that they will continue to maintain their contracting relationship in a manner that is consistent with these criteria for the duration of the Agreement. If APPRAISAL SERVICE PROVIDER discovers at any time in the future that any of these criteria are not being met, APPRAISAL SERVICE PROVIDER agrees that it will inform BPA immediately and cooperate with BPA in resolving the issue. APPRAISAL SERVICE PROVIDER and BPA desire to remain independent contractors to each other.

a.      APPRAISAL SERVICE PROVIDER and Its APPRAISER(S) Are Free from the Control and Direction of BPA. BPA does not and will not control or direct performance of the appraisal services rendered by APPRAISAL SERVICE PROVIDER and its APPRAISER(S). APPRAISAL SERVICE PROVIDER and its APPRAISER(S) are solely responsible for determining the manner and means in which they perform the contracted appraisal services in compliance with USPAP, in accordance with applicable laws, regulations and guidelines, and in satisfaction of service level standards implemented by BPA. In accordance with both the Code of Federal Regulations Title 12, § 34.211, subd. (c) and (d), and the California Business and Professions Code § 11302, subd. (d) and (e), BPA will only “manage the process” of having an appraisal performed.

b.      APPRAISAL SERVICE PROVIDER Is Providing Services to BPA. The appraisal services contracted under this Agreement are being rendered and delivered to BPA, and BPA is solely responsible for paying for the services rendered to BPA. APPRAISAL SERVICE PROVIDER agrees that neither it nor its APPRAISER(S) will charge or invoice any party other than BPA for services provided under this Agreement. BPA is the “customer” of APPRAISAL SERVICE PROVIDER in engaging, paying for and receiving delivery of the services contracted under this Agreement.

c.       Contractual Nature of Agreement Between APPRAISAL SERVICE PROVIDER and BPA. This agreement is a written contract between APPRAISAL SERVICE PROVIDER and BPA and governs all services performed by APPRAISAL SERVICE PROVIDER and its APPRAISER(S) for BPA. The Agreement constitutes the complete, final, entire, and exclusive agreement between the parties about such services, and it supersedes any and all prior agreements, representations and understandings of the parties, written or oral. Except as otherwise specifically provided in this Agreement, no addendum, supplement, modification or amendment of this Agreement will be binding unless agreed to in writing by the parties.

d.      APPRAISAL SERVICE PROVIDER’s Responsibility for Any Required Business Licenses or Tax Registrations. If APPRAISAL SERVICE PROVIDER or its APPRAISER(S) are required by law, regulation or ordinance to have a business license or business tax registration in any city, county or other jurisdiction, APPRAISAL SERVICE PROVIDER agrees and represents that it will obtain and continue to maintain any such required business licenses or business tax registrations.

e.      Business and Work Location. APPRAISAL SERVICE PROVIDER and its APPRAISER(S) maintain their own business location(s) separate from BPA’s business location and will perform the appraisal services contracted under this Agreement at their own business location(s) or other work locations that are separate from any business or work location of BPA.

f.       APPRAISAL SERVICE PROVIDER Is an Independently Established Business. APPRAISAL SERVICE PROVIDER is an independently established business separate from BPA and customarily engages in the business of providing real estate appraisal services.

g.      APPRAISAL SERVICE PROVIDER Provides Services to Other Customers. APPRAISAL SERVICE PROVIDER actually and regularly contracts with other businesses besides BPA to provide the same types of real estate appraisal services provided under this Agreement. APPRAISAL SERVICE PROVIDER further understands and agrees that it is free, and expected, to maintain its own clientele and to provide services to other customers, including direct competitors to BPA, without any restrictions from BPA.

h.       APPRAISAL SERVICE PROVIDER Advertises and Holds Itself Out as a Separate Business. APPRAISAL SERVICE PROVIDER advertises (such as in business cards, websites or appraiser listings) and holds itself out to the public in general as providing appraisal services and does not limit its appraisal services only to BPA.

i.       APPRAISAL SERVICE PROVIDER Is Responsible for All Resources Necessary to Perform the Appraisal Services. APPRAISAL SERVICE PROVIDER is solely responsible for providing the resources needed to perform the appraisal services contracted under this Agreement, such as licenses, computer equipment, software, phones and phone service, transportation, data subscriptions and insurance, and is solely responsible for the costs and expenses associated with such resources.

j.       Negotiation of Appraisal Fees. Regardless of whether an Order may offer an appraisal fee for a specific assignment, APPRAISAL SERVICE PROVIDER (and its APPRAISER(S)) are free to negotiate different fees for appraisal services, to inform BPA that an offered fee is not acceptable, and/or to decline any Orders. In addition, as a registered appraisal management company, BPA seeks to pay fees for appraisal services that are customary and reasonable for each appraisal. In the event that APPRAISAL SERVICE PROVIDER believes that any offered fee is not customary and reasonable, APPRAISAL SERVICE PROVIDER will inform BPA.

k.       Hours and Location of Work. APPRAISAL SERVICE PROVIDER is free to set its own hours and location of the services contracted under this Agreement, consistent with the nature of such appraisal services in terms of setting appropriate times for any inspection of subject properties.

In the event that any APPRAISER(S) performing services on behalf of APPRAISAL SERVICE PROVIDER or any of APPRAISAL SERVICE PROVIDER’s other personnel seek to establish liability or classification of BPA, or any of its officers, directors, employees, shareholders or other affiliated parties, as an employer of such APPRAISER(S) or other personnel in any legal action or proceeding, APPRAISAL SERVICE PROVIDER agrees to indemnify and hold BPA and its officers, directors, employees, shareholders and other affiliated parties harmless from any costs, expenses, taxes, penalties or damages (including attorney's fees) incurred in relation to or as the result of any such action or proceeding under any federal, state or municipal statute, including, but not limited to, the California Labor Code, including section 201, et seq. and section 970, et seq., the California Family Rights Act, as amended; and California Labor Code sec. 2900 et seq.; the California Unruh Civil Rights Act,the California Private Attorneys General Act of 2004; the Orders of the Industrial Welfare Commission, or any other similar local, state, or federal anti-discrimination laws, and any other federal, state or local fair employment practices or civil rights law, ordinance, regulation, executive order and/or other law or regulation governing the terms and conditions of employment.

5.      Confidentiality and Privacy. APPRAISAL SERVICE PROVIDER and its APPRAISER(S) will maintain the confidentiality and privacy of client and consumer information obtained in the course of performing services under this Agreement and of any “nonpublic personal information” about “customers” and “consumers” as those terms are defined in the Gramm-Leach-Bliley Act (“GLBA”) and in any other applicable privacy laws, including the California Consumer Privacy Act (“CCPA”) (collectively, all such information shall be referred to as “Confidential Information” in this section). APPRAISAL SERVICE PROVIDER represents and agrees that its APPRAISER(S) and other personnel will not use or disclose any Confidential Information other than as necessary to carry out the permitted purposes for which such information was disclosed to or obtained or as required by law or legal process in performing the appraisal services contracted for under this Agreement. APPRAISAL SERVICE PROVIDER will not further collect, sell, or use Confidential Information of any consumer in California except as necessary to perform the services described in this Agreement, and, in accordance with the CCPA, if applicable, APPRAISAL SERVICE PROVIDER agrees that it will delete Confidential Information of any consumer in California as required under the CCPA when an appropriate request is made by any such consumer to BPA or to customers served by BPA. APPRAISAL SERVICE PROVIDER agrees to take all reasonable measures, including without limitation such measures as APPRAISAL SERVICE PROVIDER takes to safeguard its own confidential information, to ensure the security and confidentiality of all Confidential Information, to protect against anticipated threats or hazards to the security or integrity of such Confidential Information and to protect against unauthorized access to or use of such Confidential Information. APPRAISAL SERVICE PROVIDER shall promptly notify BPA and all potentially affected parties in writing of each instance of (i) unauthorized access to or use of Confidential Information that could result in substantial harm or inconvenience to a customer or consumer or (ii) unauthorized disclosure, misuse, alteration, destruction or other compromise of Confidential Information.

6.      Professional Liability (E&O) Insurance. APPRAISAL SERVICE PROVIDER shall ensure that its APPRAISER(S) at all times during the term of this Agreement are covered by professional liability insurance (“E&O Insurance”) covering damages arising from the appraisal services performed by its APPRAISER(S) under this Agreement. Such E&O Insurance shall: (i) have a minimum liability limit of $500,000 per claim and $1,000,000 in aggregate for all claims, and (ii) be issued by an insurance carrier having a Best’s Financial Strength rating of A- or better and Financial Size Category of at least Class X. Upon request, APPRAISAL SERVICE PROVIDER shall provide to BPA or its authorized representatives evidence of such insurance in the form of a certificate of insurance naming BPA or its designated agent as a certificate holder.

7.      Workers’ Compensation Coverage. To the extent required by any applicable jurisdiction in which APPRAISAL SERVICE PROVIDER provides services, APPRAISAL SERVICE PROVIDER agrees that during the term of this Agreement, APPRAISAL SERVICE PROVIDER will maintain such required workers’ compensation coverage and any other similar coverage required for its personnel, including APPRAISER(S).

8.      Indemnification and Liability. To the extent permitted by applicable law (including state appraisal management company laws), APPRAISAL SERVICE PROVIDER agrees to indemnify and hold harmless BPA, and its officers, directors, employees, representatives and agents, from and against any and all claims, causes of action, damages, losses, or liabilities resulting from or arising out of any negligence, errors, omissions, or criminal or intentional misconduct by APPRAISAL SERVICE PROVIDER or its personnel, including APPRAISER(S). APPRAISAL SERVICE PROVIDER agrees to indemnify BPA from claims arising under any federal, state or municipal statute, including, but not limited to, the California Labor Code, including section 201, et seq. and section 970, et seq., the California Family Rights Act, as amended; and California Labor Code sec. 2900 et seq.; the California Unruh Civil Rights Act,  the California Private Attorneys General Act of 2004; the Orders of the Industrial Welfare Commission, or any other similar local, state, or federal anti-discrimination laws, and any other federal, state or local fair employment practices or civil rights law, ordinance, regulation, executive order and/or other law or regulation governing the terms and conditions of employment. In the event that the indemnification provision in this section is broader than permitted by any applicable appraisal management laws or regulations of a state, this section shall be limited to the extent of the indemnification permitted by such law or regulation in that state. The indemnification provision in this section shall not apply to APPRAISERS performing appraisal services in Vermont.

9.      Tax Filings. APPRAISAL SERVICE PROVIDER acknowledges and agrees that BPA will not withhold any taxes, income or otherwise, from payments to APPRAISAL SERVICE PROVIDER or for any APPRAISER(S) and that APPRAISAL SERVICE PROVIDER will be required to file corporate, partnership, and/or individual tax returns and to pay taxes in accordance with applicable federal, state and local laws.

10.    General Provisions. The following general provisions apply to this Agreement:

a.      Non-Assignability. APPRAISAL SERVICE PROVIDER may not assign this Agreement without the written consent of BPA.

b.      Headings. Headings in this Agreement are for convenience only, are not part of the Agreement, and should not be used to interpret the Agreement.

c.       Invalidity or Unenforceability. The invalidity or unenforceability of any term or provision in this Agreement shall not affect the validity or enforceability of the remainder of this Agreement.

d.      Waiver. No change, waiver or discharge of this Agreement will be valid unless in writing and agreed to by an authorized officer of BPA. A waiver by either of the parties of any provision or breach shall not be a waiver of a preceding or subsequent breach of the same or any other provision nor shall it be a waiver of any other provisions or breach.

e.      Acceptance and Execution. This Agreement will be binding and effective upon acceptance on behalf of the APPRAISAL SERVICE PROVIDER electronically in a website portal utilized by BPA. The Agreement shall not require the separate execution or signature by any party.

f.       Term and Termination. This Agreement shall be effective on the Effective Date and shall continue in force until terminated in writing by either of the parties. This Agreement may be terminated by either of the parties, with or without reason, upon written notice. Despite termination of this Agreement, the following sections of this Agreement shall remain in full force and effect and be continuing obligations:  2, 3, 4, 5, 8, 9, 10 and 11.

g.      Notices. Any notices or correspondence under this Agreement from BPA to Appraiser may be provided by BPA via email to APPRAISAL SERVICE PROVIDER at a current email address provided by APPRAISAL SERVICE PROVIDER or may be delivered by U.S. Mail, unless otherwise required by law or regulation to be delivered via other means.

h.       Prior Agreements Superseded. This Agreement supersedes any and all prior agreements, service level agreements or contractor agreements between APPRAISAL SERVICE PROVIDER, its APPRAISER(s) and BPA.

11.    Mutual Arbitration Provision. With the limited exception of disputes for which a specific alternative dispute resolution procedure is required under a state’s appraisal management law in a state with jurisdiction over the dispute (and then only to the extent of the parties’ completion of that procedure), APPRAISAL SERVICE PROVIDER and BPA mutually agree to resolve any disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court as follows:

a.      Application of Arbitration. APPRAISAL SERVICE PROVIDER and BPA agree that this Mutual Arbitration Provision is governed exclusively by the Federal Arbitration Act ("FAA") and shall apply to all claims between the parties, including but not limited to those arising out of or relating to this Agreement, APPRAISAL SERVICE PROVIDER’s or its APPRAISER(S)’s classification as independent contractors relative to BPA, APPRAISAL SERVICE PROVIDER’s provision of services under this Agreement, the fees received by APPRAISAL SERVICE PROVIDER for performing appraisals, the termination of this Agreement, and all other aspects of APPRAISAL SERVICE PROVIDER’s relationship with BPA, past or present, whether arising under federal, state or local law, including without limitation harassment, discrimination, and/or retaliation claims and claims arising under or related to the Civil Rights Act of 1964 (or its state or local equivalents), Americans with Disabilities Act (or its state or local equivalents), Age Discrimination in Employment Act (or its state or local equivalents), Family Medical Leave Act (or its state or local equivalents), Fair Labor Standards Act (or its state or local equivalents), state and local wage and hour laws, state and local statutes or regulations addressing the same or similar subject matters, and all other federal, state and/or local claims arising out of or relating to APPRAISAL SERVICE PROVIDER’s relationship or termination of that relationship with BPA. Any disputes regarding application of the FAA shall be resolved exclusively by an arbitrator. In the event, but only in the event, the arbitrator determines the FAA does not apply, the state law governing arbitration agreements in the state in which APPRAISAL SERVICE PROVIDER performs services shall apply. Only an arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision, including without limitation any dispute concerning arbitrability.

b.      BY AGREEING TO ARBITRATE DISPUTES BETWEEN THEM, THE PARTIES TO THIS AGREEMENT AGREE THAT ALL SUCH DISPUTES WILL BE RESOLVED THROUGH BINDING ARBITRATION BEFORE AN ARBITRATOR AND NOT BY WAY OF A COURT OR JURY TRIAL.

c.       CLASS ACTION WAIVER. APPRAISAL SERVICE PROVIDER and BPA mutually agree that any and all disputes or claims between the parties will be resolved in individual arbitration. The parties further agree that by entering into this Agreement, they waive their right to have any dispute or claim brought, heard or arbitrated as a class and/or collective action, or to participate in any class and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”).

d.      REPRESENTATIVE ACTION WAIVER.  Except as otherwise required under applicable law, (1) APPRAISAL SERVICE PROVIDER and BPA expressly intend and agree that class action (class action involves representative members of a large group, who claim to share a common interest seeking relief on behalf of the group) and representative action procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this Agreement; (2) APPRAISAL SERVICE PROVIDER and BPA agree that each will not assert class action or representative action claims against the other in mediation, arbitration or otherwise; and (3) APPRAISAL SERVICE PROVIDER and BPA shall only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person.  The arbitrator(s) shall not consolidate claims of different employees into a single proceeding, nor shall the Arbitrator have the power to hear an arbitration as a class action.

e.      Notwithstanding any other clause contained in this Agreement, this Mutual Arbitration Provision, or the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), any claim that all or part of the Class Action Waiver and/or Representative Action Waiver is unenforceable, unconscionable, void, or voidable shall be determined only by a court of competent jurisdiction and not by an arbitrator. As stated above, all other disputes regarding interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision shall be determined exclusively by the arbitrator.

f.       Initiation of Arbitration. If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought.

g.      AAA Rules. Any arbitration shall be governed by the AAA Rules, except as follows: (1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a retired judge with experience in the law underlying the dispute; (2) Unless applicable law provides otherwise, as determined by the arbitrator, APPRAISAL SERVICE PROVIDER and BPA shall equally share filing fees and other similar and usual administrative costs, as are common to both court and administrative proceedings. BPA shall pay any costs uniquely associated with arbitration, such as payment of the Arbitrator and room rental; (3) The arbitrator may issue orders (including subpoenas to third-parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes; (4) Except as provided in the Class Action Waiver and Representative Action Waiver, the arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The arbitrator shall apply the state or federal substantive law, or both, as is applicable; (5) The arbitrators shall not have the power to commit errors of law or legal reasoning. The award may be vacated or corrected on appeal to a court of competent jurisdiction for any such errors or any failure of the arbitrator to abide by the terms of this Agreement. (6) The arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions; (7) The arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law; (8) Either BPA or APPRAISAL SERVICE PROVIDER may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this section may be rendered ineffectual. The AAA Rules may be found at www.adr.org.

h.       Right to Opt Out of Arbitration. Arbitration is not a mandatory condition of APPRAISAL SERVICE PROVIDER’s contractual relationship with BPA, and therefore APPRAISAL SERVICE PROVIDER may opt out of this Mutual Arbitration Provision. To opt out, APPRAISAL SERVICE PROVIDER must notify BPA of APPRAISAL SERVICE PROVIDER’s intention to opt out by submitting to BPA, via USPS Priority Mail or hand delivery to Michael J. Friedman, Brentwood Property Appraisal, Inc., 12100 Wilshire Blvd. Suite 280, Los Angeles, CA 90025, a written notice stating that APPRAISAL SERVICE PROVIDER is opting out of this Mutual Arbitration Provision. This written notice must be signed by APPRAISAL SERVICE PROVIDER’s owner or authorized member, partner or officer, and not any attorney, agent, or other representative of APPRAISAL SERVICE PROVIDER. In order to be effective, APPRAISAL SERVICE PROVIDER’s opt-out notice must be postmarked or received by BPA within thirty (30) days of the Effective Date of this Agreement. If APPRAISAL SERVICE PROVIDER opts out as provided in this paragraph, it will not be subject to any adverse action as a consequence of that decision and may pursue available legal remedies without regard to this Mutual Arbitration Provision. If APPRAISAL SERVICE PROVIDER does not opt out within thirty (30) days of the Effective Date of this Agreement, APPRAISAL SERVICE PROVIDER’s failure to do so shall constitute mutual acceptance of the terms of this Mutual Arbitration Provision.

j.       Right to Consult with an Attorney. APPRAISAL SERVICE PROVIDER has the right to consult with private counsel about APPRAISAL SERVICE PROVIDER’s choice, at APPRAISAL SERVICE PROVIDER’s own expense, with respect to any aspect of, or any claim that may be subject to this Mutual Arbitration Provision (or with respect to any other matter in this Agreement).

k.       In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, the remainder of this Mutual Arbitration Provision will be enforceable. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver and/or Representative Action Waiver is invalid or unenforceable, the class, collective, or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver and Representative Action Waiver that is valid and enforceable shall be enforced in arbitration.

The person accepting this Agreement is doing so on behalf of and with the authority of the APPRAISAL SERVICER PROVIDER with which such person is affiliated (whether as an owner, member, officer or employee) and represents that all statements and representations on behalf of the APPRAISAL SERVICE PROVIDER in this Agreement are true and correct. If this is not the case, the Agreement should not be accepted.