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<br />Agreement between Client, KCDA and Contractor - Washington Page 10
<br />156691459.1
<br />13.3 Dispute Resolution. All claims, disputes
<br />and other matters in question of the Contractor, direct or
<br />indirect, arising out of, or relating to, the Contract Documents
<br />or the breach thereof (“Claims”), except Claims which have
<br />been waived under the terms of the Contract Documents, shall
<br />be decided exclusively by the following dispute resolution
<br />procedure; claims that have been waived under the terms of the
<br />Contract Documents are not permitted to be brought in any
<br />forum. The Contractor shall diligently carry on the Work and
<br />maintain the progress schedule during the dispute resolution
<br />procedure, including any litigation proceedings, unless the
<br />parties mutually agree in writing otherwise.
<br />
<br />13.3.1 Notice of Claim. The Contractor shall submit
<br />notice of all Claims to both KCDA and the Client in writing
<br />within seven days of the event giving rise to them and shall
<br />include a clear description of the event and its probable effect.
<br />Failure to comply with these requirements shall constitute
<br />waiver of the Claim.
<br />
<br />13.3.2 Claim Submission. Within 21 days of the
<br />Notice of Claim, the Contractor shall provide both KCDA and
<br />the Client in writing with a Claim, which shall include a clear
<br />description of the Claim, any and all changes in cost and in time
<br />to which the Contractor and its Subcontractors of any tier may
<br />be entitled under this Agreement for the Claim, and data
<br />supporting the Claim. The claim of a Subcontractor may be
<br />brought only through the Contractor and only after the
<br />Contractor notifies KCDA and the Client in writing that the
<br />Contractor has reviewed and agrees with the Claim. No act,
<br />omission, or knowledge, actual or constructive, of the Client
<br />shall in any way be deemed to be a waiver of the requirement
<br />for a timely written Claim unless the Client provides the
<br />Contractor with an explicit, unequivocal written waiver.
<br />Failure to comply with these requirements shall constitute
<br />waiver of the Claim.
<br />
<br />13.3.3 Informal Resolution. KCDA and the Client
<br />will make a determination of the Claim. If no determination is
<br />made within two weeks of submission of the Claim, the Claim
<br />shall be deemed rejected. If the Contractor disagrees with
<br />KCDA and the Client’s determination and wishes to pursue the
<br />Claim further, the Contractor must, within fourteen days of
<br />receipt of the determination, provide KCDA and the Client with
<br />a written request that a representative of the Contractor, KCDA,
<br />and the Client meet, confer, and attempt to resolve the Claim.
<br />This meeting will then take place at a mutually convenient time
<br />within thirty days of the request, unless the Client elects to
<br />proceed directly to mediation.
<br />
<br />13.3.4 Mediation. The Contractor may bring no
<br />litigation against the Client or KCDA unless the Claim is first
<br />subject to non-binding mediation under the Construction
<br />Mediation Rules of the American Arbitration Association
<br />(“AAA”). The Contractor is responsible for initiating the
<br />mediation process. This requirement cannot be waived except
<br />by an explicit written waiver signed by KCDA, the Client, and
<br />the Contractor. To initiate the mediation process, the
<br />Contractor shall submit a written mediation request to KCDA
<br />and the Client within thirty days of the meeting undertaken in
<br />Section 13.3.3. If the parties are unable to agree to a mediator
<br />within thirty days after KCDA and the Client’s receipt of the
<br />written request for mediation, any party may submit a request
<br />for mediation to the AAA. An officer of the Contractor and of
<br />KCDA and the Superintendent or designee of the Client, all
<br />having full authority to settle the Claim (subject only to
<br />ratification by the Client’s Board of Directors), must attend the
<br />mediation session. To the extent there are other parties in
<br />interest, such as Subcontractors, their representatives, with full
<br />authority to settle the Claim, shall also attend the mediation
<br />session. Unless KCDA, the Client, and Contractor mutually
<br />agree in writing otherwise, all unresolved Claims in the Project
<br />shall be considered at a single mediation session which shall
<br />occur prior to Final Acceptance by the Client.
<br />
<br />13.3.5 Litigation. The Contractor may bring no
<br />litigation on Claims unless such Claims have been properly
<br />raised and considered in the dispute resolution procedures of
<br />Sections 13.3.1 through 13.3.4 above. All unresolved Claims
<br />of the Contractor shall be waived and released unless the
<br />Contractor has strictly complied with the time limits of the
<br />Contract Documents, and litigation is served and filed within
<br />the earlier of (a) 120 days after the Date of Substantial
<br />Completion as designated in writing by the Client or (b) 60 days
<br />after Final Acceptance. This requirement cannot be waived
<br />except by an explicit written waiver signed by KCDA, the
<br />Client, and the Contractor. The pendency of a mediation
<br />(calculated as the period from the written request for mediation
<br />through the day following the mediation proceeding) shall toll
<br />these filing requirements.
<br />
<br />13.4 Notices and Claims. All notices and Claims
<br />shall be made in writing as required by the Agreement.
<br />
<br />13.4.1 Any notice of a Claim of the Contractor
<br />against KCDA or the Client and any Claim of the Contractor,
<br />whether under the Agreement or otherwise, must be made
<br />pursuant to and in strict accordance with the applicable
<br />provisions of the Contract Documents. Failure to comply with
<br />these requirements shall constitute waiver of the Claim. No act,
<br />omission, or knowledge, actual or constructive, of KCDA, the
<br />Client, or the A/E shall in any way be deemed to be a waiver of
<br />the requirement for timely written notice and a timely written
<br />Claim unless KCDA, the Client, and the Contractor sign an
<br />explicit, unequivocal written waiver approved by KCDA and
<br />the Client’s Board of Directors.
<br />
<br />13.4.2 The fact that KCDA, the Client, and the
<br />Contractor may continue to discuss or negotiate a Claim that
<br />has or may have been defective or untimely under the Contract
<br />shall not constitute waiver of the provisions of the Contract
<br />Documents unless KCDA, the Client, and Contractor sign an
<br />explicit, unequivocal written waiver approved by the Client’s
<br />board of directors.
<br />
<br />13.4.3 The Contractor expressly acknowledges and
<br />agrees that the Contractor’s failure to timely submit required
<br />notices or timely submit Claims has a substantial impact upon
<br />and prejudices KCDA and the Client, including but not limited
<br />to the inability to fully investigate or verify the Claim, mitigate
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