12-19-2019
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12-19-2019
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<br />Page 22 of 25 <br />particularly the contractual risk allocation and liability provisions, shall be interpreted <br />and applied, and the professional accountability determined in such a manner that the <br />integrated nature, shared control of the service performance, and joint decision making <br />roles of the parties and Consultant’s role as agent for the Owner shall be given due and <br />full consideration. Further, the parties agree to re-visit this Agreement, if necessary, to <br />better reflect the parties’ changing roles on the Project, and any changes in Consultant’s <br />role as the Project proceeds. <br /> <br />49. SEVERABILITY AND SURVIVAL. If any court of competent jurisdiction declares, for <br />any reason, any provision or part of this Agreement to be invalid, illegal, or <br />unenforceable, all remaining terms and provisions of this Agreement will remain binding <br />and enforceable. Limitations of liability, indemnities, and other express representations <br />shall survive termination of this Agreement for any cause. <br /> <br />50. WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, <br />IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS <br />THAT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY <br />ACTION, PROCEEDING, COUNTERCLAIM OR DEFENSE BASED ON THIS <br />AGREEMENT, OR ARISING OUT OF, UNDER OR IN ANY CONNECTION WITH <br />THIS AGREEMENT, OR WITH RESPECT TO ANY COURSE OF CONDUCT, <br />COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR <br />ACTIONS OF ANY PARTY HERETO RELATING TO THIS AGREEMENT. THIS <br />PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES ENTERING INTO <br />THIS AGREEMENT. THIS PROVISION APPLIES ONLY TO SUITS BETWEEN THE <br />PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND DOES <br />NOT APPLY TO THIRD PARTY CLAIMS OR SUITS BY OR ON BEHALF OF THE <br />PARTIES FOR PROJECT PROPERTY ACQUISITION AND/OR CONTRACT <br />CLAIMS AND DEFENSES. <br /> <br />51. DISPUTE RESOLUTION. The Owner and Consultant shall endeavor to resolve claims, <br />disputes and other matters in question between them by non-binding mediation. A request <br />for mediation shall be made in writing, delivered to the other party to the Agreement, and <br />filed with the person or entity administering the mediation. The request may be made <br />concurrently with the filing of a complaint or other appropriate demand for binding <br />dispute resolution but, in such event, mediation shall proceed in advance of binding <br />dispute resolution proceedings, which shall be stayed pending mediation for a period of <br />sixty (60) days from the date of filing, unless stayed for a longer period by agreement of <br />the parties or court order. <br /> <br />The parties shall share the mediator’s fee and any filing fees equally. The mediation shall <br />be held in Cass County, North Dakota, unless another location is mutually agreed upon. <br />Agreements reached in mediation shall be enforceable as settlement agreements in any <br />court having jurisdiction thereof. <br /> <br />If the parties do not resolve a dispute through non-binding mediation pursuant to this <br />Section, then the method of binding dispute resolution shall be via formal claims filed in <br />a court of competent jurisdiction.
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