A.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT
OF A DISPUTE REGARDING (I) WHETHER A SPECIFIC ITEM OF WORK MEETS THE DEFINITION
OF PUNCHLIST UNDER SECTION 1.1 IN CONNECTION WITH SECTION 11.6, OR (II) IF AND
WHEN RFCD, SUBSTANTIAL COMPLETION OR FINAL COMPLETION HAS OCCURRED, AS
APPLICABLE, IN ACCORDANCE WITH SECTION 11.4A, 11.4B OR 11.7, REPRESENTATIVES OF
OWNER'S SENIOR MANAGEMENT AND CONTRACTOR'S SENIOR MANAGEMENT SHALL MEET
IMMEDIATELY UPON REQUEST OF EITHER PARTY TO ATTEMPT TO RESOLVE SUCH DISPUTE.
EACH SUCH MANAGEMENT REPRESENTATIVE SHALL HAVE FULL AUTHORITY TO RESOLVE SUCH
DISPUTE AND SHALL MEET IN PERSON AT A MUTUALLY AGREEABLE TIME AND PLACE.
THE
PARTIES AGREE THAT IF ANY SUCH DISPUTE IS NOT RESOLVED WITHIN FIVE (5) BUSINESS
DAYS AFTER EITHER PARTY'S REQUEST FOR SUCH MEETING BETWEEN MANAGEMENT
REPRESENTATIVES, THEN EITHER PARTY MAY BY NOTICE TO THE OTHER PARTY REFER THE
DISPUTE TO BE DECIDED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH
SECTION 18.2.
18.2
ARBITRATION.
ANY ARBITRATION HELD UNDER THIS
AGREEMENT SHALL BE HELD IN HOUSTON, TEXAS, UNLESS OTHERWISE AGREED BY THE
PARTIES, SHALL BE ADMINISTERED BY THE DALLAS, TEXAS OFFICE OF THE AMERICAN
ARBITRATION ASSOCIATION ("AAA") AND SHALL, EXCEPT AS OTHERWISE MODIFIED BY THIS
SECTION 18.2, BE GOVERNED BY THE AAA'S CONSTRUCTION INDUSTRY ARBITRATION RULES
AND MEDIATION PROCEDURES (INCLUDING PROCEDURES FOR LARGE, COMPLEX CONSTRUCTION
DISPUTES) (THE "AAA RULES").
THE NUMBER OF ARBITRATORS REQUIRED FOR THE
ARBITRATION HEARING SHALL BE DETERMINED IN ACCORDANCE WITH THE AAA RULES.
THE
ARBITRATOR(S) SHALL DETERMINE THE RIGHTS AND OBLIGATIONS OF THE PARTIES
ACCORDING TO THE SUBSTANTIVE LAW OF THE STATE OF TEXAS, EXCLUDING ITS CONFLICT
OF LAW PRINCIPLES, AS WOULD A COURT FOR THE STATE OF TEXAS; PROVIDED, HOWEVER,
THE LAW APPLICABLE TO THE VALIDITY OF THE ARBITRATION CLAUSE, THE CONDUCT OF THE
ARBITRATION, INCLUDING RESORT TO A COURT FOR PROVISIONAL REMEDIES, THE
ENFORCEMENT OF ANY AWARD AND ANY OTHER QUESTION OF ARBITRATION LAW OR PROCEDURE
SHALL BE THE FEDERAL ARBITRATION ACT, 9 U.S.C.A. § 2.
ISSUES CONCERNING THE
ARBITRABILITY OF A MATTER IN DISPUTE SHALL BE DECIDED BY A COURT WITH PROPER
JURISDICTION.
THE PARTIES SHALL BE ENTITLED TO ENGAGE IN REASONABLE DISCOVERY,
INCLUDING THE RIGHT TO PRODUCTION OF RELEVANT AND MATERIAL DOCUMENTS BY THE
OPPOSING PARTY AND THE RIGHT TO TAKE DEPOSITIONS REASONABLY LIMITED IN NUMBER,
TIME AND PLACE; PROVIDED THAT IN NO EVENT SHALL ANY PARTY BE ENTITLED TO REFUSE
TO PRODUCE RELEVANT AND NON-PRIVILEGED DOCUMENTS OR COPIES THEREOF REQUESTED BY
THE OTHER PARTY WITHIN THE TIME LIMIT SET AND TO THE EXTENT REQUIRED BY ORDER OF
THE ARBITRATOR(S).
ALL DISPUTES REGARDING DISCOVERY SHALL
85
BE PROMPTLY RESOLVED BY THE ARBITRATOR(S).
THIS AGREEMENT TO ARBITRATE IS
BINDING UPON THE PARTIES, CONTRACTOR'S SURETY (IF ANY) AND THE SUCCESSORS AND
PERMITTED ASSIGNS OF ANY OF THEM.
AT EITHER PARTY'S OPTION, ANY OTHER PERSON
MAY BE JOINED AS AN ADDITIONAL PARTY TO ANY ARBITRATION CONDUCTED UNDER THIS
SECTION 18.2, PROVIDED THAT THE PARTY TO BE JOINED IS OR MAY BE LIABLE TO EITHER
PARTY IN CONNECTION WITH ALL OR ANY PART OF ANY