Common use of Arbitration of Dispute Clause in Contracts

Arbitration of Dispute. (a) If a Dispute has not been resolved through negotiation within a reasonable period of time after the date of the notice of Dispute received pursuant to Section 17.1 (and no later than [*****] from notice of the Dispute unless such longer time is agreed to by the Parties), and Company invokes the provisions of this Section 17.2, the Dispute shall be finally resolved by binding arbitration. Any Dispute involving [*****] or less shall be before a single, neutral arbitrator; any Dispute in involving in excess of [*****] shall be before a panel of three neutral arbitrators. Except to the extent inconsistent with this Section 17.2, the arbitration shall be conducted in accordance with the JAMS Construction Arbitration Rules & Procedures in effect as of the Effective Date (“JAMS Rules”). Company may exercise its right to arbitrate a Dispute in accordance with this Section 17.2 at any time, and any such dispute shall be thereafter exclusively treated as subject to the arbitration proceeding. The arbitrator(s), not the courts, shall decide whether a Dispute is arbitrable. Notwithstanding anything in the JAMS Rules to the contrary, the arbitrator(s) shall apply the law specified in Section 18.7. (b) The Parties will cooperate with one another in promptly selecting the arbitrator(s) and shall further cooperate in scheduling the arbitration to commence not later than [*****] from the date of Company’s initial written demand for arbitration. If, notwithstanding their good faith efforts, the Parties are unable to agree on a mutually acceptable arbitrator or arbitrators, the arbitrator(s) shall be appointed as provided for in the JAMS Rules. The arbitrator(s) shall be either a retired state or federal judge with experience with construction disputes or attorneys with at least twelve (12) years of experience as a construction lawyer. (c) The arbitration proceeding shall be conducted in the County of Los Angeles, California, United States of America, or such other location upon which the Parties to the arbitration proceeding may agree, in the English language; and all testimony or documentary evidence shall be submitted in English. If witness testimony or documents of a Party or is subcontractors or suppliers is not in English, such Party shall be responsible for the translation costs associated with such documents of testimony. (d) To facilitate the comprehensive resolution of related Disputes, and upon request by either Party, the arbitrator(s) may, at any time before the first oral hearing of evidence, consolidate the arbitration proceeding with any other arbitration proceeding between or among the Parties arising from or out of any other contract or relationship between or among them as permitted under the JAMS Rules and by California law. (e) At any hearing of oral evidence, each Party to the arbitration proceeding or its legal counsel shall have the right to present and examine its witnesses and to cross-examine the witnesses of the other Party. No evidence of any Party’s witness shall be presented in written form unless the other Party shall have the opportunity to cross examine such witness, except as the Parties to the arbitration proceeding (f) The Parties may designate experts to testify at the hearing. Any such experts shall be designated in accordance with the scheduling order of the arbitrator(s). Such experts shall prepare written reports and any rebuttal reports as provided for in such scheduling order. The scope of expert testimony shall not be broader than the scope of issues addressed in the expert report. Experts shall be subject to deposition consistent with a scheduling order adopted by the arbitrator(s). With the exception of depositions, expert discovery shall consist only of final reports and documents relied upon; draft reports and communications with counsel and those assisting counsel shall not be produced or inquired into during deposition and hearing testimony. The arbitrator(s) shall not have authority to retain experts to assist the arbitrator(s) as any expert input shall be submitted by the experts retained by the Parties. (g) If the prevailing Party makes a claim during the arbitration proceeding, the arbitral award in favor of such Party shall include an award for pre-award (pre-judgment) interest as provided by California law and costs for legal representation and assistance. (h) The arbitrator(s) shall issue a reasoned arbitration award in writing indicating the facts that support the findings and any relief granted or denied. The award of the arbitrator(s) shall be final and binding upon the Parties to the arbitration proceeding. The Parties hereby waive, to the extent permitted by any Applicable Law, and agree not to invoke or exercise, any and all rights to appeal, review or impugn such decision or award by any court or tribunal. The Parties agree that the arbitral decision or award may be enforced against the Parties to the arbitration proceeding or their assets wherever they may be found, and that a judgment upon the arbitral decision or award may be entered in any court having jurisdiction thereof. (i) If any Party to an arbitration proceeding fails or refuses to comply with any arbitral decision or award within [*****] after the date on which it receives notice of the decision or award, the other Party may immediately proceed to request the judicial approval necessary for the execution of such decision or award before a competent judge of the domicile of such refusing Party or before any other court of competent jurisdiction. Any award of monetary damages shall bear interest from and including the award date to but excluding the date of payment in full at the [*****]. Further, if any prevailing Party is required to retain counsel to enforce the arbitral decision or award, the Party against which the decision or award is made shall reimburse the prevailing Party for all reasonable fees and expenses incurred and paid to said counsel for such service, together with interest thereon from and including the payment date to, [*****]. (j) All deadlines specified in this Section 17.2 may be extended by the written agreement of the Parties to the Dispute. (k) If decided by the arbitrator(s) in consultation with the Parties, the arbitration may be conducted virtually in compliance with the procedures established by the arbitrator(s) in consultation with the Parties in the event that an in-person arbitration cannot be safely conducted due to public health concerns.

Arbitration of Dispute. (a) If a Dispute has not been resolved through negotiation within a reasonable period of time after the date of the notice of Dispute received pursuant to Section 17.1 (and no later than [*****] from notice of the Dispute unless such longer time is agreed to by the Parties), and Company invokes the provisions of this Section 17.2, the Dispute shall be finally resolved by binding arbitration. Any Dispute involving [*****] or less shall be before a single, neutral arbitrator; any Dispute in involving in excess of [*****] shall be before a panel of three neutral arbitrators. Except to the extent inconsistent with this Section 17.2, the arbitration shall be conducted in accordance with the JAMS Construction Arbitration Rules & Procedures in effect as of the Effective Date (“JAMS Rules”). Company may exercise its right to arbitrate a Dispute in accordance with this Section 17.2 at any time, and any such dispute shall be thereafter exclusively treated as subject to the arbitration proceeding. The arbitrator(s), not the courts, shall decide whether a Dispute is arbitrable. Notwithstanding anything in the JAMS Rules to the contrary, the arbitrator(s) shall apply the law specified in Section 18.7. (b) The Parties will cooperate with one another in promptly selecting the arbitrator(s) and shall further cooperate in scheduling the arbitration to commence not later than [*****] from the date of Company’s initial written demand for arbitration. If, notwithstanding their good faith efforts, the Parties are unable to agree on a mutually acceptable arbitrator or arbitrators, the arbitrator(s) shall be appointed as provided for in the JAMS Rules. The arbitrator(s) shall be either a retired state or federal judge with experience with construction disputes or attorneys with at least twelve (12) years of experience as a construction lawyer. (c) The arbitration proceeding shall be conducted in the County of Los Angeles, California, United States of America, or such other location upon which the Parties to the arbitration proceeding may agree, in the English language; and all testimony or documentary evidence shall be submitted in English. If witness testimony or documents of a Party or is subcontractors or suppliers is not in English, such Party shall be responsible for the translation costs associated with such documents of testimony. (d) To facilitate the comprehensive resolution of related Disputes, and upon request by either Party, the arbitrator(s) may, at any time before the first oral hearing of evidence, consolidate the arbitration proceeding with any other arbitration proceeding between or among the Parties arising from or out of any other contract or relationship between or among them as permitted under the JAMS Rules and by California law. (e) At any hearing of oral evidence, each Party to the arbitration proceeding or its legal counsel shall have the right to present and examine its witnesses and to cross-examine the witnesses of the other Party. No evidence of any Party’s witness shall be presented in written form unless the other Party shall have the opportunity to cross examine such witness, except as the Parties to the arbitration proceeding (f) The Parties may designate experts proceeding otherwise agree in writing or except under extraordinary circumstances where the interest of justice requires a different procedure. A Party shall communicate to testify at the hearing. Any such experts shall be designated in accordance with the scheduling order of the arbitrator(s). Such experts shall prepare written reports and any rebuttal reports as provided for in such scheduling order. The scope of expert testimony shall not be broader than the scope of issues addressed in the expert report. Experts shall be subject to deposition consistent with a scheduling order adopted by the arbitrator(s). With the exception of depositions, expert discovery shall consist only of final reports and documents relied upon; draft reports and communications with counsel and those assisting counsel shall not be produced or inquired into during deposition and hearing testimony. The arbitrator(s) shall not have authority to retain experts to assist the arbitrator(s) as and the opposing parties the names and addresses of each witness whose written or spoken testimony it intends to present in the arbitration proceeding and the subject matters upon which, and the languages in which, they will testify at least [*****] prior to the date of the hearing at which such witness may testify. Furthermore, any expert input Person named by a Party to be a witness shall be submitted made available for deposition by the experts retained by opposing parties at least [*****] prior to the Partieshearing at which such witness may testify. Such deposition shall be permitted under Section 1283.05 of California Code of Civil Procedure. (g) If the prevailing Party makes a claim during the arbitration proceeding, the arbitral award in favor of such Party shall include an award for pre-award (pre-judgment) interest as provided by California law and costs for legal representation and assistance. (h) The arbitrator(s) shall issue a reasoned arbitration award in writing indicating the facts that support the findings and any relief granted or denied. The award of the arbitrator(s) shall be final and binding upon the Parties to the arbitration proceeding. The Parties hereby waive, to the extent permitted by any Applicable Law, and agree not to invoke or exercise, any and all rights to appeal, review or impugn such decision or award by any court or tribunal. The Parties agree that the arbitral decision or award may be enforced against the Parties to the arbitration proceeding or their assets wherever they may be found, and that a judgment upon the arbitral decision or award may be entered in any court having jurisdiction thereof. (i) If any Party to an arbitration proceeding fails or refuses to comply with any arbitral decision or award within [*****] after the date on which it receives notice of the decision or award, the other Party may immediately proceed to request the judicial approval necessary for the execution of such decision or award before a competent judge of the domicile of such refusing Party or before any other court of competent jurisdiction. Any award of monetary damages shall bear interest from and including the award date to but excluding the date of payment in full at the [*****]. Further, if any prevailing Party is required to retain counsel to enforce the arbitral decision or award, the Party against which the decision or award is made shall reimburse the prevailing Party for all reasonable fees and expenses incurred and paid to said counsel for such service, together with interest thereon from and including the payment date to, [*****]. (j) All deadlines specified in this Section 17.2 may be extended by the written agreement of the Parties to the Dispute. (k) If decided by the arbitrator(s) in consultation with the Parties, the arbitration may be conducted virtually in compliance with the procedures established by the arbitrator(s) in consultation with the Parties in the event that an in-person arbitration cannot be safely conducted due to public health concerns.