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Subcontract#: 061804-017 <br /> Page 26/Rev 171204 <br /> a) Contractor shall make good faith efforts to settle any disputes with Owner, but-Feta+e <br /> 'fi6ereti(-, ` ?etf' and to tender to Subcontractor the amount due to <br /> Subcontractor according to that settlement. This tender shall operate to release and discharge <br /> Contractor and Owner from all further liability to Subcontractor on the settled issue. <br /> b) Subcontractor agrees that Contractor shall have the right to join Subcontractor as a party in <br /> any dispute resolution process between Contractor and Owner where, in Contractor's <br /> onablr discretion, the dispute is related to Subcontractor's performance of the Work. <br /> Subcontractor consents to the jurisdiction of any arbitration proceeding to which it is joined <br /> under this provision. <br /> c) If Contractor pursues a claim against Owner to recover payments owed to Subcontractor, <br /> Subcontractor shall pay a proportionate share of attorney fees and costs incurred by <br /> Contractor. Contractor may, in its b reas4ti; discretion, permit Subcontractor to pursue <br /> a claim against Owner without Contractor's participation, in which case Subcontractor's pursuit <br /> of payment shall be at its own cost and expense. <br /> d) Contractor is not obligated or required to pursue a claim on behalf of Subcontractor if <br /> Contractor determines in its _; easonable discretion that Subcontractor's claim is meritless. <br /> e) Contractor's receipt of payment from Owner for any Subcontractor claim is a condition <br /> precedent to payment to Subcontractor under this Section. <br /> 11.3 Proportionate Recovery: Subcontractor's recovery of additional cost, time, or both cost and <br /> time for any claim attributable to Owner shall be limited to the proportionate recovery by Contractor <br /> against Owner based on the amount claimed by Subcontractor as compared to the total amount <br /> claimed by Contractor. <br /> 11.4 Dispute Resolution Process: Either Contractor or Subcontractor may initiate this Dispute <br /> Resolution Process under this Section if a dispute arises between them in any way related to the <br /> Contract Documents or the Work. <br /> a) Mediation: Either Contractor or Subcontractor may request mediation of any dispute between <br /> the parties through a written request for mediation. The mediation process shall be completed <br /> within 60 days of submitting the request for mediation. Contractor and Subcontractor shall <br /> participate in the mediation process in good faith. <br /> b) Arbitration or Litigation: If the dispute is not resolved by mediation, only then may either party <br /> elect to commence a legal action against the other in a court of competent jurisdiction. <br /> Alternatively, Contractor may, in its -::ele reasonable discretion, elect to initiate formal <br /> arbitration of the dispute in accordance with the Construction Industry Rules of the American <br /> Arbitration Association in effect on the date of the Agreement. If the parties cannot agree on <br /> an arbitrator, they shall seek appointment of an arbitrator by a district court in the state and <br /> county where the Work was performed. <br /> c) Attorney Fees and Costs: The prevailing party in any litigation or arbitration under this Section <br /> shall be entitled to its reasonable attorney fees and its litigation or arbitration costs from the <br /> non-prevailing party. <br /> d) JurK Wavier: DUE TO THE SPECIALIZED NATURE OF CONSTRUCTION LITIGATION, <br /> BOTH CONTRACTOR AND SUBCONTRACTOR WAIVES ITS RIGHT TO A JURY TRIAL. <br /> Equal Opportunity/Affirmative Action Employer <br />