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01-044 Treadwell & Rollo~~ ~ CUPEI~TINO V~ AGREEMENT CITY OF CUPERTINO 10300 Torn: Avenue Cupertino, t~A 95014 (408) 77'7-3200 BY THIS AGREEMENT, made and entered into on the May by and between the CITY OF CUPERTINO (Hereinafter referred to as CITY) and Name (1) TREADWELL & RO~,LO _ (2) Address 555 MONTGOMERY ST_ , STF._ 1'00 City SAN FRAN(:TS('0 Zip 941 1 1 Phone (41 5.~ g~55-90L~0 (Hereinafter referred as CONTRACTOR), in consideration of their mutual covenants, the parties hereto agree as follows: CONTRACTOR shall provide or furnish the following specified serviaas and/or materials: GEOTECHNICAL INVESTIGATION FOR LIBRARY SITE EXHIBITS: The following attached exhibits hereby are made part of this Agreement: EXHIBIT "A" PROPOSAL TERMS: The services and/or materials furnished under this Agreement shall commence on May 30, 2001 and shall be completed before August 1, 2001 COMPENSATION: For the full performance of this Agreement, CITY shall pay CONTRACTOR: NOT TO EXCEED $20,000.00 California Labor Code, Section 1771 requires the payment of prevailing wages to all workers employed on a Public Works contract in excess of $1,000.00. GENERAL TERMS AND CONDITIONS Hold Harmless: Contractor agrees to save and hold harmless the Ci1:y, its officers, agents and employees from any and all damage and liability 'ncluding all costs of defending any claim, caused by or arising out of the performance of this Agreement. City shall not be liab~for acts of Contractor in performing services described herein. due to negligence, errors and omissions, Insurance: Should the City require evidence of insurability, Contract~~r shall file with City a Certificate of Insurance before commencing any services under this Agreement. Said Certificate shall be subject to the approval of City's Director of Administrative Services. Non-Discrimination: No discrimination shall be made in the employment of persons under this Agreement because of the race, color, national origin, ancestry, religion or sex of such person. Interest of Contractor: It is understood and agreed that this Agreement is not a contract of employment in the sense that the relationship of master and servant exists between City and undersigned. At all times, Contractor shall be deemed to be an independent contractor and Contractor is not authorized to bind the City to any contracts or other obligations in executing this agreement. Contractor certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of City. Changes: This Agreement shall not be assigned or transferred without the written consent of the City. No changes or variations of any kind are authorized without the written consent of the City. CONTRACT CO-ORDINATOR and representative for CITY shall be: NAME r.auNEN LYNAUGH _ DEPARTMENT PUBLIC WORKS This Agreement shall become effective upon its execution by CITY, in witness thereof, the parties have executed this Agreement the day and year first written above. CONTRACTOR: CITY OF PERTINO: Y Y Title .•rt~: •c- l Title Soc. Sec. # ~ AI?PROVALS „ EXPENDITURE DISTRIBUTION 11 ACCOUNT NUMBER A NT HE DATA" / AMOUNT ` Id i l l./ CITY C K DATE ~ ~ ~ /o ~ +23- -930X $20, 000.00 o~ day of 30 20 O1 White City Clerk /~ Green: Finance Yellow: Contractor jII~ ~Pin~C: Receiving Gold: Department U ~ rj pWIB1T A lYeadwe~8dlolb 23 May 2001 PO1-156 Ralph A. Qualls, Jr. Director of Public Works City of Cupertino 10300 Torre Avenue Cupertino, California 95014 Subject: Proposal for Geotechnical Investigation Cupertino Public Library Replacement Project Cupertino, California Dear Mr. Qualls: Treadwell & Rollo is pleased to present this proposal and cost estimate to perform a geotechnical investigation for the proposed new public library to be constructed in Cupertino, California. This proposal is based on discussions with Ms. Laura F:ambin of Simon Martin-Veque Winkelstein Moris (SMWM), a review of geotechnical reports for sites in the vicinity of this project, and a review of the Siting Diagram, Alternative B, preps~red by Guzzardo Partnership dated 15 November 2000. The project site is in the existing City Center and its bound by the existing City Hall and Rodrigues Avenue to the north, the Santa Clara C~~unty Food Control Creek to the west, the former library to the south and the west side of thf; former Library and City Hall and north side of the existing lawn to the east. A Site Plan showiing proposed boring layout is attached. The area designated for the new library is approximately 35,000 square feet (sf) and is currently occupied by the lawn between former library and existing City Hall. Plans for the development include a two story library with 70,000 sf (approximately 35,000 sf/floor). We understand one level of below grade parking may be included for the site; the underground parking would require an excavation on the order of 10 to 15 feet. The remaining area to the north, south, and west is designated for surface parking walkways and landscaping. SUBSURFACE CONDITIONS Based on our review of available geotechnical data, we anticipate the site is underlain by interbedded sand, gravel, clay and silt to a depth of at least 60 feet. Previous studies indicate that groundwater is at least 60 feet below the ground surface. The primary geotechnical concern is the anticipated variation of soil types. The soil in the area is very lenticular and has widely varying properties related to potential settlement Ind bearing capacity. These and other issues will be addressed in our report. Treadwell & Rollo, Inc. Environmental & Geotechnical Consultants 555 Montgomery Street, Suite 1300, San Francisco, CA 94111 Telephone (415) 955-9040 Facsimile (415) 955-9041 Ralph A. Qualls, Jr. Director of Public Works City of Cupertino 23 May 2001 Page 2 SCOPE OF SERVICES • The purpose of our geotechnical investigation will be to evaluate subsurface conditions and provide recommendations for the geotechnical aspects of the project. To evaluate subsurface conditions and obtain representative samples of the soil for laboratory testing, we propose to drill 6 shallow and 5 deep borings at the locations shown on the attached plan. The shallow and deep borings will extend to depths of 10 and 40 feet, respectively. The borings will be drilled using truck mounted, hollow stem auger drilling equipment. Prior to drilling, we will obtain a permit from the Santa Clara Valley Water District (SCVWD), as required. Also, we will review the A.L.T.A swvey for the site and notify the Underground Service Alert (USA) for underground utilities. Oi~r field engineer will observe the drilling of the borings and log the soil encountered. Samples will be obtained at selected intervals for laboratory testing. In addition, we will collect bulk samples in the area of the planned surface parking lots and walkways. The samples will be tested to measure strength, compressibility, moisture content, dry density, fines content (percent passing the No. 200 sieve), plasticity, and corrosivity as appropriate. The bulk samples will be tested to determine compaction characteristics. Upon completion of the field investigation, the borings will be backfilled with cement and bentonite grout, in accordance with the permit obtained from SCVWD. Cuttings from the borings will be placed in 55 gallon drums and stoned on site at a location determined by you. Once tested, we will dispose of them accordingly. We anticipate seven drums will be required. During the field and office phases of our investigation, we will advise the design team of our findings and consult with its members while develloping our recommendations. On the basis of our field investigation and our engineering analyses, we will provide information about the soil and groundwater conditions at the site and our conclusions and recommendations for the geotechnical aspects of the project. Specifically, ~~ve will provide conclusions and recommendations regarding: • appropriate foundation type(s) for the proposed building • design parameters for the'recommended foundation type(s), including vertical and lateral capacity • estimates of foundation settlement • appropriate temporary shoring system(s), if required • lateral earth pressures for the recommended shoring system(s), if required • subgrade preparation for pavement, concrete slab/mat and exterior slabs Ralph A. Qualls, Jr. ~~~~~~ Director of Public Works City of Cupertino 23 May 2001 Page 3 • lateral earth pressures for design of retaining walls, if required • site seismicity and seismic hazards, if any • 1997 Uniform Building Code (UBC) site :;oil type and earthquake near source factors, Na and Nv • site grading and excavation, including criteria for fill quality and compaction • construction considerations • corrosion potential of the near-surface soils The results of our investigation will be presented i:n a detailed report (six copies), complete with field and laboratory data. Our scope of services does not include a site specific seismic analysis; however, if during our investigation subsurface conditions indicate that such a study would be appropriate, or if it is required by the design team. we will provide a proposal for additional services at that time. FEE ESTIMATE AND SCHEDULE We propose to perform our work on atime-and-e~:pense basis in accordance with our 2001 Schedule of Charges and Conditions, which is attached. The estimated fees are detailed as follows: Task Estimated Fee Drilling Permit, Utility Clearance, and Coordination ............................ $ 1,500 Field Exploration Shallow Borings (6 at 10 feet) ......................................................... 3,000 Deep Borings (5 at 40 feet) .............................................................. 6,000 Laboratory Testing Geotechnical (engineering analysis) ................................................ 1,500 Environmental (drum disposal) ........................................................ 500 Engineering Analyses ............................................................................ 3,500 Report Preparation and Meeting (one half-day) .................................... 4.000 TOTAL ......................... $20,000 We will not exceed the estimated fee unless the scope of work changes and we receive your prior authorization. Ralph A. Qualls, Jr. ~~~~~ Director of Public Works City of Cupertino 23 May 2001 Page 4 We can begin the field work within about two to three weeks of authorization to proceed, subject to the availability of a drilling contractor. The field and laboratory tests will take about three weeks to complete. We estimate the final report will be available 3 to 4 weeks after completion of the laboratory tests. However, during the cour:ce of our work, we will provide information to you and the design team as it becomes available s~~ design can proceed prior to our report being completed. Our 2001 Schedule of Charges and Conditions is :attached to this proposal and incorporated herein by reference. When you wish us to proceed pursuant to the terms presented in this proposal, please sign in the space indicated and return one executed copy of this proposal to us at our address presented on the first page of this proposal. We appreciate the opportunity to present this proposal. If you have any questions, please call. Sincerely yours, TREADWELL & ROLLO, INC. Frank J. Rollo, PE, GE Senior Engineer P0115601.FJR Attachments: Site Plan Showing Proposed Borin;; Layout Authorization to Proceed 2001 Schedule of Charges and Conditions ~upartino Library + Site Planning studies ` : - ~. ~~ Siting Diagram - 6rtEll9o~l ~. Akernate B _ q~~~e~N~ ~dcF MICiMa Cupertino, California ~ ~~r .n.... ~..r ... ~ ~. .- ~~~ ~ ~ ~~ ROVE DWOOD - . - rr 1R~ ~J. IYinW~7 ~~'~ ~ . • ~ ~ I ~ c N~,~„', ..~, ~ 3 ~ -'_. . ~ . t~ veu~w ~. 4 ~~ 5~ Ll ~ -- U - ~ ~ 1~ ~ N ~ w ~ r ~ `~ ~ ~ ~' ..: _~ - •- G R B E - -w-- td.r.r ~1 d1~AIm0 m 1 . M111f~lYRrc l"'!"1 /.l~rox l N-C'K ~ !ea i ss~es ~.r.rr~rn-~rrr~ trri W ~r,w.wrr y~~ir AOO ~ + ~ ~N~ IpCtY0W ~N01i~11s1m fII1LlI r~.r~ ergs r..~~ rw ' ~ ® de~~ bore KS,,, . ,~ 5liwllow boc~~. s,r~ ~~l,~a S~ow'~ P~o~~os~d go~~-~ ~o~ T,reAdw~ll ~ ~~10 Luc . l ~d rte... ~ ~ AUTHORIZATION TO PROCEED By signing in the space indicated below, the undersigned are entering into a binding contract between Treadwell & Rollo, Inc. and the City of Cupertino, pursuant to the provisions of the Proposal dated 23 May 2001, including without limitation the provisions of the 2001 Schedule of Charges and Conditions. TREADWELL & ROLLO, INC. By: ~' ~'~' -v Name: Richard .Rodgers Title: Principal Date: 23 May 2001 CITY OF CUPERTINO By: _ Name: Title: Date: PO1-156 2001 Schedule of Charges and Conditions TREADWELI~ & ROLLO This Schedule of Charges and Conditions is incorporated in the proposal of Treadwell & Rollo, Inc. ("Consultant's to which it is attached (the "Proposal'. As used herein, "Client" refers to the person to whom the Proposal is addressed; "Services" refers to services described in the "Scope of Services" section of the Propoxsl; "Project Site" refers to the property with respect to which Services may be performed; "Agreement" refers to the written contract between Consultant and Client, as set forth in the Proposal and the documents attached thereto. Charges for personnel, outside services, materials and equipment, and Consultant equipment shall be as follows. Personnel Charges -Charges for Consultant's personnel shall be at the hourly rates indicated below: Personnel Category Technical Document Processing/Production Hour 60 y Rate f to Sl 85 Graphics/Senior Editor 65 to 85 Technician 65 to 90 Staff Engineer/Scientist 75 to 90 Senior Staff Engineer/Sciendst/Coordinator 80 to 105 Project Engineer/Scientist 95 to 115 Senior Project Engineer/Scientist 110 to 135 Senior Engineer/Scientist 130 to 160 Associate Engineer/Scientist 150 to 180 Principal Engineer/Scientist 180 to 250 Consultant may augment in-house personnel with subconsultants. Hourly rates for subconsultants shall not exceed those for in- house personnel. Charges for personnel engaged in litigation support shall be at the rates shown above, except that a 4hour per day minimum shall apply to any person being deposed or assisting in any deposition, and an 8-hour per day minimum shall apply to any person aPP~B in court as an expert witness or consultant. OLtside Services. Materials and Eq~iDment Charges - Charges'for services, materials and equipment fiunished by firms other than Consultant shall be equal to 1.15 times (1) amounts charged Consultant for such services, materials, and equipment; and, (2) costs of (a) insurance on subcontracts relating to this Agreement, (b) administration of billing verification and approval and (c) processing of payments in connection with such services, goods, and materials. Eauinment Rental -Charges for equipment owned by Consultant ~u~e as follows:., Automobiles, Vans, and Small Trucks• S 12.50 per hour (•travel time plus time on site) Nuclear Moisture-Density Gauge. 512.50 per hour . Special Computer or Analytical Software Usage 530.00 per hour . Rates for other equipment, such as geotechnical field instrumentation equipment, geophysical exploration equipment, water resources and quality equipment, special exploration support vehicles and equipment, seismology equipment, and geology equipment may be obtained upon request. Revision of Charges -The charges provided for in the foregoing provisions may be revised annually by Consultant without the . consent of Client and more frequently with the prior written consent of Client. Ipy41g6q -Consultant shall issue invoices on at least a montlily basis. All amounts invoiced shall be due and payable on receipt. Late charges of 1'h% per month shall accrue on all past due balances 30 calendar days after the date of invoice, and shall be payable without firrther action by Consultant. However, if the late, charge provided for herein exceeds the maximum charge allowed by law, the applicable charge shall consist of such legal maximum. Performance -Consultant shall perform the Services in a manner consistent with the level of care and skill ordinarily exercised by consultants performing comparable services under comparable circumstances in the general location of the Project Site. TREADWELL & ROLLO, INC. 2001 Schedule of Charges and Conditions Page 1 of 4 Rev. 00 (11 December 2000) Notwithstanding any provision of this Agreement, Consultant makes no representation, warranty or guarantee, express or implied, and expressly disclaims any representations,. warranties or guarantees, whether made orally or in writing, and whether made prior to.or contemporaneously herewith. Analyses FindinYs (''onclusions and RecornmendatiorL -The analyses, findings, conclusions and recommendations to be furnished by Consultant pursuant to this Agreement will be based in part on data obtained firm subsurface exploration. Such tests indicate subsurface conditions only at the specific locations and depths, and only at the specific times, tested. Such tests do not reveal strata variations between different locations or depths, or at different times. Consequently, analyses, findings, conclusions and recommendations made by Consultant on the basis of such tests will be based on assumptions made by Consultant (based in part on the results of such tests) about subsurface conditions in locations not specifically tested. Such conclusions and recommendations are therefore subject to reassessment as subsequent construction work progresses. For this reason, it is advised that Consultant be retained to monitor any such subsequent activities for the purpose of verifying or modifying the accuracy of its analyses, findings, conclusions and recommendations. proposed Chances in Facilities -Changes in the nature, design or location of any planned facilities may alter the analyses, findings, conclusions and recommendations to be famished by Consultant pursuant to this Agreement. Client undertakes to notify Consultant in writing of any such proposed changes on a timely basis. Consultant shall notify Client in writing, within a reasonable time of any such notice by Client. Sight ofof Entry_ Dama¢e to Proper or Environment -Client shall grant permission to, or arrange permission for, Consultant to enter and remain for any necessary periods on the project Sites, and any areas required for access to such project Site, regardless of whether Client has any interest in such real property. Client acknowledges that the Services may unavoidably. alter conditions or affect the environment of such real property and undertakes to repair or remediate any such matters at its sole expense. Undereround Utilities -Client shall Punish Consultant with accurate maps or plans showing the location of aU surface and subsurface easements and all subsurface structures, including without limitation, pipes, tanks, cables and utilities, [and of all known subsurface watercourses and aquifers] affecting any project Site. Client warrants the accuracy of any such information famished Consultant. Client undertakes sole responsibility for any damage or injury resulting from Client's failure to furnish Consultant with such information or for the inaccuracy of any information firrnished by Client to Consultant. Ha~nrdous or Unsafe Condidona_ -Client represents that it has fully informed Consultant of the type, quantity and location of any hazardous, toxic or dangerous materials and of any unsafe or unhealthy conditions which may affect the Services of which Client is or should be aware. Client shall immediately notify Consultant of any such condition of which Client becomes aware, or should be aware, during the term of the Agreement. The discovery or occurrence of any such condition shall be considered a changed condition. Client hereby undertakes to reimburse Consultant for any costs or expenses incurred by Consultant in taking emergency measures to protect the health or safety of any persons or to prevent environmental harm or other damage or injury from any of the conditions referred to in this section. $gnorting~nd Di~osal Requirements -Nothing contained in the Agreement shall be construed as requiring Consultant to assume the status of an owner, operator, generator, person who arranges for disposal, transporter, storey or operator of a disposal facility, within the meaning of any federal or state statute governing the treatment, storage and disposal of hazardous or toxic substances and waste. Client shall bear sole responsibility for notifying all appropriate federal, state, municipal or other governmental agencies of the existence of any hazardous or toxic materials located on or in any real property which maybe affected by the Services. Client shall, at its sole cost and expense, make all necessary arrangements and be responsible for the lawful removal, transportation, storage, treatment, recycling or other handling of any hazardous or toxic substances or wastes, including without limitation, any materials referred to below. • $aa~ples and Cuttin¢s -Consultant shall not be obligated to preserve any materials for more than 45 calendar days after the issuance of any document containing data obtained from such samples. Thereafter, Consultant may dispose of such materials, other than hazardous materials. Ha'ardoLC_ Materials -Client recognizes that, when it is known, assumed or suspected that hazardous materials exist on or beneath the surface of a project Site, certain waste materials should be handled as if such materials were hazardous materials within the meaning of federal and state environmental laws. Accordingly, Consultant will appropriately contain and label such materials, will promptly inform Client that such action has been performed and will leave the containtrs on site for proper lawful removal, transportation, storage, treatment, recycling or other handling by Client. Health and Safetv -Client assumes all responsibility for the health and safety of all persons affected by the project Site or the Services, except the Consultant and persons under the direct control, supervision, or direction of the Consultant. TREADWELI.Bc ROI.I,O, INC. 2001 Schedule of Charges and Conditions Page 2 of 4 Rev. 00 (11 December 2000) Subcontractors -Consultant may, in its discretion, subcontract for the services of others. Client shall pay for such subcontractor services pursuant to the above Schedule of Charges. Ownershjp of Documents -All documents and other materials obtained, prepared, or created by Consultant shall be owned by Client. Consultant shall have the right to retain copies of such materials. No Third Party Reliance -Consultant and Client agree that all analyses, findings, conclusions and recommendations of Consultant made pursuant to this Agreement are for the sole benefit of Client and may not be relied on by any other person. Indemnification -Consultant agrees to indemnify, defend and save harmless Client, its officers, agents and employees, and any subcontractors employed by Client incident to this Agreement, from and against all losses, claims, costs, damages, liabilities and other expenses, including reasonable attomeys' fees (whether incurred in a third party action or in an action brought by Client against Consultant to enforce Client's rights under this provision) arising out of (a) material breach or failure to perform any material provision of this Agreement by Consultant, or (b) the negligence, gross negligence, or willful misconduct of Consultant. Client agrees to indemnify, defend and save harmless Consultant, its officers, agents and employees, and any subcontractors employed by Consultant incident to this Agreement, fiom and against all losses, claims, costs, damages, liabilities and other expenses, including reasonable attomeys' fees (whether incurred in a third party action or in an action brought by Consultant against Client to enforce Consultant's rights under this provision) arising out of (a) material breach or failure to perform any material provision of this Agreement by Client, or (b) the negligence, gross negligence, or willful misconduct of Client. Limitation of Liability -Notwithstanding any other provision hereof, in no event, shall Consultant or subcontractors have any liability for losses, claims, costs, damages, liabilities or other expo:nses, including without limitation, reasonable attorneys' fees, arising under this Agreement or otherwise, which exceed in the aF;gregate, the greater of (a) S 100,000, or (b) the total personnel charges paid and owing to Consultant by Client pursuant hereto. • Ind -Consultant shall maintain during the performance of the Services: (a) if reasonably available, worker's compensation insurance in accordance with statutory requirements; (b) if reasonably available, employer liability, commercial general liability, professional liability (including errors and omissions), and autom~~bile liability coverages of at least Sl million. Such coverages may be on a claims made or occurrence basis. Ts~inatiQII -Client or Consultant msy terminate this Agreement at any time on 30 days prior written notice to the other party. Termination for Insolvency. etc. -This Agreement shall terminate without any action of a party in the event either Client or Consultant becomes insolvent or subject to.proceedings under anv law relating to bankruptcy, insolvency or the relief of debtors. Payments in the Event of Termination - In the event of termination of this Agreement pursuant to the foregoing provisions of this section or the following section, Client shall pay Consultant for (i) Services famished prior to the effective date of termination, and (ii) Services famished, and costs and expenses nrcurred, in connection with such termination, including, without limitation, such Services, costs and expenses required to complete analysis, records and reports necessary to document job states at the time'of termination and costs and expenses incurred in ternrinating contracts with subcontractors, including any termination penalties applicable thereto. Changed Conditions - If, during the term of this Agreement, conditions or circumstances which were not contemplated by Consultant at the time of entering into this Agreement, either develop or are discovered by Consultant, and such changed conditions or circumstances materially alter Consultant's ability to perform the Services, or materially increase Consultant's cost of performing the Services, Consultant shall so notify Client in writing within a reasonable time thereafter. In any such event, Consultant and Client shall attempt to renegotiate in good faith the terms of this Agreement. In the event the parties are unable to agree on such amendments to the provisions of this Agreement within [10] business days of Client's receipt of Consultant's notice hereunder, Consultant may terminate this Agreement, subject to the provisions above. Right of InsFection and Audit -Client shall at reasonable times during the term of this Agreement have reasonable access to inspect and to audit project-related documents and other materials resulting fiom Consultant's activities pursuant to this Agreement. Client shall reimburse Consultant for Consultant's reasonable costs in assisting with any such inspections and audits. Assi¢nment and Delegation -Neither party shall assign its rights or delegate any portion of its duties hereunder without the prior written approval of the other party. Independent Contractor Status -Nothing in this Agreement shall be construed to make Consultant an employee of Client. Consultant shall be an independent contractor and shall have resFbnsibility for and control over the details and means for TREADWELL 8c ROLLO, INC. 2001 Schedule of Charges and Conditions Page 3 of 4 Rev. 00 (11 December 2000) performing the Services. Consultant shall be subject to the directions of Client only with respect to the scope of Services and the general results required, to the extent not inconsistent with the provisions of this Agreement. Notices -Any notice to a party in connection with this Agreement must be in writing and addressed to the party at its address as set forth in the Proposal, or such other address or addresses as to which the parties may notify each other from time to time. Any notices made to Consultant shall be addressed to Consultant's project manager or principal in charge of the project described in the Proposal. All notices made hereunder shall be deemed effective on receipt. Ceverability -Any provision of this Agreement that is invalid or unenforceable in any circumstance or jurisdiction shall remain valid and enforceable in all other circumstances or jurisdictions and all remaining provisions of this Agreement shall continue valid and binding upon the parties. ov rninQ Law: Interpretation: Waiver -This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice or conflict of lady provision or rule that would cause the application of the laws of any other jurisdiction. No provision of this Agreement shall be construed for or against any party on the basis of its contribution, or lack of contribution, to the drafting of such provision, and the provisions of Section 1654 of the California Civil Code shall have no application to this Agreement. The failure of any party to enforce any provision of this Agreement shall not in any way be construed as a waiver of any such provision and shall not prevent that party from thereafter enforcing such o; any other provision of this Agreement. Titles and Headin¢s -Titles and headings contained in this Agreement are presented solely for purposes of convenience and shall not affect interpretation of this Agreement. Countemarts -This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Rntire Agreement -This Agreement constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements, understandings, arrangements, communications, representations or warranties, whether oral or written, of the parties made with respect thereto. This Agreement may be amended, and any provision hereof maybe waived, only by a writing signed by the parties to be bound thereby. Non-Bindin¢ Mediation -Any dispute or controversy between the parties relating to this Agreement shall be attempted to be resolved in good faith pursuant to non-binding mediation. The parties shall attempt to select the mediator by mutual agreement: If they are unable to do so within fifteen (I S) calendar days from the date the dispute is first identified by the party first to assert a claim, the party fast asserting one or more claims shall provide the other party with a written list of names of five (S) potential mediators. The other party shall either select the mediator from such list, or shall provide the other party with a written list of names of five (5) additional potential mediators. The mediator thereupon shall be selected from such list of tea (10) names by the parties alternately striking names from such list, the first party to strike a name being selected by the parties' flip of a coin. The last name remaining to be stricken from the list shall be the mediator. The parties shall proceed to resolve the dispute through non-binding mediation within forty-five (45) calendar days from the date of the mediator's~selection, or such longer period as the parties may mutually agree upon. If the parties are unable to resolve the dispute by such means after making every reasonable effort to do so, the parties thereafter may pursue such other remedies as may be available to them under the provisions of this Agreement and pursuant to the laws of the State of California. This paragraph shall not apply to claims made by Consultant pursuant to Mechanics Lien laws. ### TREADWELL & ROLLO, INC. 2001 Schedule of Charges and Conditions Page 4 of 4 Rev. 00 (11 December 2000)