AgdaPkt 2014-05-12 Joint with Planning

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7.1.F. - Page 138 If the Association has reason to believe that the applicable statute of limitations will expire before the Association is able to give notice, hold the hearing and file the civil action, the Association may file the civil action first and then give the notice within thirty (30) days after filing of the action. D. Judicial Reference for Certain Disputes: Subject to the alternative non- adversarial pre-litigation procedures referred to in Section 9.15.B for any action by the Association or any Owner against the Declarant, any architect, engineer or other consultant, or any contractor, subcontractor or materials supplier engaged by or on behalf of Declarant for the design and/or construction of the Project, or any element thereof ("Developer Parties"), subject to the provisions of Civil Code Sections 895 through 938 and Civil Code Sections § 6000 and 6100, or any other action by the Association or any Owner against the Declarant, except as otherwise provided herein, such claim shall be submitted to Judicial Reference as hereinafter provided: (1) The dispute shall be submitted to binding general judicial reference pursuant to California Code of Civil Procedure Sections 638 through 645.2, or any successor statutes thereto pertaining to proceedings under judicial reference ("Judicial Reference"). The parties shall cooperate in good faith to ensure that all necessary and appropriate parties are included in the Judicial Reference proceeding. Declarant shall not be required to participate in the Judicial Reference proceeding unless it is satisfied that all necessary and appropriate parties will participate. The parties shall share the fees and costs of the referee for the Judicial Reference proceeding as determined by the referee. (2) The referee shall have the authority to try all issues, whether of fact or law, and to report a statement of decision to the court. The parties shall use the procedures adopted by Judicial Arbitration and Mediation Services ("JAMS") for judicial reference (or any other entity offering judicial reference dispute resolution procedures as may be mutually acceptable to the parties), provided that the following rules and procedures shall apply in all cases unless the parties agree otherwise: (a) If the Declarant is a party to the Judicial Reference, then any fee to initiate the Judicial Reference shall be paid by Declarant, provided however, that the cost of the judicial reference shall ultimately be borne as determined by the referee; (b) The proceedings shall be heard in the County; (c) The referee must be a neutral and disinterested party who is a retired judge or a licensed attorney with at least ten (10) years' experience in relevant real estate matters; (d) Any dispute regarding the selection of the referee shall be resolved by JAMS or the entity providing the reference services, or, if no entity is involved, by the court with appropriate jurisdiction; (e) The referee may require one or more pre-hearing conferences; (f) The parties shall be entitled to discovery, and the referee shall oversee discovery and may enforce all discovery orders in the same manner as any trial court judge; (g) A stenographic record of the Judicial Reference proceedings shall be made, provided that the record shall remain confidential except as may be necessary for post-hearing motions and any appeals; (h) The referee's statement of decision shall contain findings of fact and conclusions of law to the extent applicable; (i) The referee shall have the authority to rule on all post- hearing motions in the same manner as a trial judge; 75 [DRAFT][05.03.14] C:\Program Files\Neevia.Com\Document Converter\temp\4056.doc