EITHER OF
THE DETERMINATIONS.
(VI)
THE ARBITRATOR SHALL RENDER HIS OR HER DETERMINATION AS TO THE
SELECTION OF A DETERMINATION IN A SIGNED AND ACKNOWLEDGED WRITTEN INSTRUMENT,
ORIGINAL COUNTERPARTS OF WHICH SHALL BE SENT SIMULTANEOUSLY TO THE PARTIES
HERETO, WITHIN SEVEN (7) BUSINESS DAYS AFTER THE EARLIER TO OCCUR OF (A) HIS OR
HER DETERMINATION OF THE APPROPRIATE RESOLUTION OF THE ISSUE IN QUESTION
PURSUANT TO CLAUSE (III) ABOVE OR (B) THE CONCLUSION OF THE HEARING(S) REFERRED
TO IN CLAUSE (IV) OF THIS SUBSECTION.
(C)
THE ARBITRATION DECISION, DETERMINED AS PROVIDED IN THIS
SECTION 16.2, SHALL BE CONCLUSIVE AND BINDING ON THE PARTIES, SHALL CONSTITUTE
AN "AWARD" BY THE ARBITRATOR WITHIN THE MEANING OF THE AAA RULES AND APPLICABLE
LAW AND JUDGMENT MAY BE ENTERED THEREON IN ANY COURT OF
COMPETENT JURISDICTION.
(D)
EACH PARTY SHALL PAY ITS OWN FEES AND EXPENSES RELATING TO THE
ARBITRATION DESCRIBED HEREIN (INCLUDING, WITHOUT LIMITATION, THE FEES AND
EXPENSES OF ITS COUNSEL AND OF
124
EXPERTS AND WITNESSES RETAINED OR CALLED BY IT).
EACH PARTY SHALL PAY ONE-HALF
OF THE FEES AND EXPENSES OF THE AAA AND OF THE ARBITRATOR; PROVIDED THAT IF
EITHER PARTY FAILS TO SUBMIT A DETERMINATION WITHIN THE PERIOD PROVIDED
THEREFOR, SUCH NON-SUBMITTING PARTY SHALL PAY ALL OF SUCH FEES AND EXPENSES.
(E)
TIME SHALL BE OF THE ESSENCE AS TO ALL OBLIGATIONS OF LANDLORD AND
TENANT SET FORTH IN THIS SECTION 16.2.
SECTION 16.3
EXPEDITED ARBITRATION.
(A)
IF EITHER
PARTY HERETO DESIRES TO INVOKE THE ARBITRATION PROCEDURE SET FORTH IN THIS
SECTION 16.3, THE PARTY INVOKING THE ARBITRATION PROCEDURE SHALL GIVE AN
ARBITRATION NOTICE TO THE OTHER PARTY STATING THAT THE PARTY SENDING THE
ARBITRATION NOTICE DESIRES TO MEET WITHIN THREE (3) BUSINESS DAYS TO ATTEMPT TO
AGREE ON AN ARBITRATOR TO DETERMINE THE QUESTION AT ISSUE.
THE ARBITRATOR
APPOINTED SHALL BE COMPETENT, QUALIFIED BY TRAINING AND EXPERIENCE,
DISINTERESTED AND INDEPENDENT, AND AN INDIVIDUAL HAVING NOT LESS THAN TEN
(10) YEARS EXPERIENCE RELATING TO COMMERCIAL REAL ESTATE IN NEW YORK CITY.
IF
THE PARTIES HERETO HAVE NOT AGREED ON THE ARBITRATOR WITHIN THREE (3) BUSINESS
DAYS AFTER THE GIVING OF THE ARBITRATION NOTICE, THEN EITHER PARTY HERETO, ON
BEHALF OF BOTH, MAY APPLY TO THE AAA FOR APPOINTMENT OF THE ARBITRATOR, OR, IF
THE AAA SHALL NOT THEN EXIST OR SHALL FAIL, REFUSE OR BE UNABLE TO ACT SUCH THAT
THE ARBITRATOR IS NOT APPOINTED BY THE AAA WITHIN TWENTY (20) BUSINESS DAYS
AFTER APPLICATION THEREFOR, THEN EITHER PARTY MAY APPLY TO THE COURT, FOR THE
APPOINTMENT OF THE ARBITRATOR AND THE OTHER PARTY SHALL NOT RAISE ANY QUESTION
AS TO THE COURT'S FULL POWER AND JURISDICTION TO ENTERTAIN THE APPLICATION AND
MAKE THE APPOINTMENT.
THE DATE ON WHICH THE ARBITRATOR IS APPOINTED BY THE
AGREEMENT OF THE PARTIES, BY APPOINTMENT BY THE AAA OR BY APPOINTMENT BY SUCH
COURT IS REFERRED TO HEREIN AS THE "APPOINTMENT DATE".
IF ANY ARBITRATOR
APPOINTED HEREUNDER SHALL BE UNWILLING OR UNABLE, FOR ANY REASON, TO SERVE, OR
CONTINUE TO SERVE, A