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OR BK9644 P(; 88
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<br /> date of such request shall be utilized. Any party who will be relying uponan expert report or repair estimate at the
<br /> mediation shall provide the mediator and the other parties with a copy of the reports. If one or more issues directly
<br /> or indirectly relate to alleged deficiencies in design,materials or construction,all parties and their experts shall be
<br /> allowed to inspect,document(by photograph,videotape or otherwise)and test the alleged deficiencies prior to
<br /> mediation. Unless mutually waived in writing by the Grantor and Grantee,submission to mediation is a condition
<br /> precedent to either party taking further action with regard to any matter covered hereunder.
<br /> (2) If the Dispute is not fully resolved by mediation,the Dispute shall be submitted to binding
<br /> arbitration and administered by the AAA In accordance with the AAA's Home Construction Arbitration Rules in
<br /> effect on the date of the request. If there are no Home Construction Arbitration Rules currently in effect,then the
<br /> AAA's Construction Industry Arbitration Rules In effect on the data of such request shall be utilized. Any judgment
<br /> upon the award rendered by the arbitrator may be entered in and enforced by any court having jurisdiction over
<br /> such Dispute. If the claimed amount exceeds$250,000.00 or Includes a demand for punitive damages,the
<br /> Dispute shall be heard and determined by three arbitrators;however,if mutually agreed to by the parties,then the
<br /> Dispute shall be heard and determined by one arbitrator. Arbitrators shall have expertise in the area(s)of Dispute,
<br /> which may include legal expertise if legal issues are involved. All decisions respecting the arbitrability of any
<br /> Dispute shall be decided by the arbitrator(s). At the request of any party,the award of the arbitrator(s)shall be
<br /> accompanied by detailed written findings of fact and conclusions of law. Except as maybe required bylaw or for
<br /> confirmation of an award,neither a party nor an arbitrator may disclose the existence,content,or results of any
<br /> arbitration hereunder without the prior written consent of both Grantor and Grantee.
<br /> (3) The waiver or invalidity of any portion of this Section E shall not affect the validity or enforceability
<br /> of the remaining portions of Section E of the Deed. Grantee and Grantor further agree(1)that any Dispute
<br /> involving Grantor's affiliates,directors,officers,employees and agents shall also be subject to mediation and
<br /> arbitration as set forth herein,and shall not be pursued in a court of law or equity;(2)that Grantor may,at its sole
<br /> election,include Grantor's contractors,subcontractors and suppliers,as well as any warranty company and insurer
<br /> as parties in the mediation and arbitration;and(3)that the mediation and arbitration will be limited to the parties
<br /> specified herein.
<br /> (4) To the fullest extent permitted by applicable law,Grantor and Grantee agree that no finding or
<br /> stipulation of fact,no conclusion of law,and no arbitration award in any other arbitration,judicial,or similar
<br /> proceeding shall be given preclusive or collateral estoppel effect in any arbitration hereunder unless there is
<br /> mutuality of parties. In addition,Grantor and Grantee further agree that no finding or stipulation of fact,no
<br /> conclusion of law,and no arbitration award in any arbitration hereunder shall be given preclusive or collateral
<br /> estoppel effect in any other arbitration,judicial,or similar proceeding unless there is mutuality of parties.
<br /> (5) Unless otherwise recoverable by law or statute,each party shall bear its own costs and expenses,
<br /> including attorneys'fees and paraprofessional fees,for any mediation and arbitration. Notwithstanding the
<br /> foregoing,if a party unsuccessfully contests the validity or scope of arbitration in a court of law or equity,the
<br /> noncontesting party shall be awarded reasonable attomays'fees,paraprofessional fees and expenses incurred in
<br /> defending such contest,including such fees and costs associated with any appellate proceedings, In addition,if a
<br /> party falls to abide by the terms of a mediation settlement or arbitration award,the other party shall be awarded
<br /> reasonable attorneys'fees,paraprofessional fees and expenses incurred in enforcing such settlement or award.
<br /> (6) Grantee may obtain additional information concerning the rules of the AAA by visiting its website,
<br /> at www.adr.org or by writing the AAA at 335 Madison Avenue,New York,New York 10017,
<br /> (7) Grantor supports the principles set forth in the Consumer Due Process Protocol developed by the
<br /> National Consumer Dispute Advisory Committee and agrees to the following:
<br /> (a) Notwithstanding the requirements of arbitration stated in Section E(2)of this Deed,
<br /> Grantee shall have the option,after pursuing mediation as provided herein,to seek relief In a small claims court
<br /> for disputes or claims within the scope of the courts jurisdiction in lieu of proceeding to arbitration. This option
<br /> does not apply to any appeal from a decision by a small claims court.
<br /> (b) Any mediator and associated administrative fees incurred shall be shared equally by
<br /> Grantor and Grantee;however,Grantor and Grantee each agree to pay for their own attomeys'fees and costs.
<br /> (c) The fees for any claim pursued via arbitration shall be apportioned as provided in the
<br /> Home Construction Rules of the AAA or other applicable rules.
<br /> (8) Notwithstanding the foregoing,if either Grantor or Grantee seeks injunctive relief,and not
<br /> monetary damages,from a court because irreparable damage or harm would otherwise be suffered by either party
<br /> before mediation or arbitration could be conducted,such actions shall not be interpreted to indicate that either
<br /> party has waived the right to mediate or arbitrate. The right to mediate and arbitrate should also not be considered
<br /> waived by the filing of a counterclaim by either party once a claim for injunctive relief had been filed with a court-
<br /> (9) GRANTOR AND GRANTEE AGREE THAT THE PARTIES MAY BRING CLAIMS AGAINST THE
<br /> OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A MEMBER IN ANY PURPORTED CLASS OR
<br /> REPRESENTATIVE ACTION OR COLLECTIVE PROCEEDING,THE ARBITRATOR(S)MAY NOT
<br /> CONSOLIDATE OR JOIN CLAIMS REGARDING MORE THAN ONE PROPERTY AND MAY NOT OTHERWISE
<br /> PRESIDE OVER ANY FORM OF A CONSOLIDATED,REPRESENTATIVE,OR CLASS PROCEEDING.ALSO,
<br /> THE ARBITRATORS)MAY AWARD RELIEF(INCLUDING MONETARY,INJUNCTIVE,AND DECLARATORY
<br /> RELIEF)ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT
<br /> NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).ANY RELIEF
<br /> AWARDED CANNOT BE AWARDED ON CLASS-W IDE OR MASS-PARTY BASIS OR OTHERWISE AFFECT
<br /> PARTIES WHO ARE NOT A PARTY TO THE ARBITRATION.NOTHING IN THE FOREGOING PREVENTS
<br /> GRANTOR FROM EXERCISING ITS RIGHT TO INCLUDE IN THE MEDIATION AND ARBITRATION THOSE
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