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Version: 2019.12.03

VIII. Binding Arbitration Procedure

Any disputes between You and Us, or parties acting on Our behalf, related to or arising from this Limited Warranty, design or construction of the home or the common elements or the purchase of the home or transfer of title to the common elements will be resolved by binding arbitration. Binding arbitration shall be the sole remedy for resolving any and all disputes between You and Us, or Our representatives. Disputes subject to binding arbitration include but are not limited to:

  • A. Any disagreements that a condition in the home or common elements is a construction defect and is therefore covered by this Limited Warranty;

  • B. Any disagreements as to whether a construction defect has been corrected in compliance with this Limited Warranty;

  • C. Any alleged breach of this Limited Warranty;

  • D. Any alleged violations of consumer protection, unfair trade practice, or other statutes;

  • E. Any allegations of negligence, strict liability, fraud, and/or breach of duty or good faith, and any other claims arising in equity or from common law;

  • F. Any disputes concerning the issues that should be submitted to binding arbitration;

  • G. Any disputes concerning the timeliness of Our performance requests and/or Your notifications under this Limited Warranty;

  • H. Any disputes as to the payment or reimbursement of the arbitration-filing fee;

  • I. Any dispute as to whether this Limited Warranty or any provision hereof, including, but not limited to any waiver hereunder, is unenforceable;

  • J. Any other claim arising out of or relating to the sale, design or construction of Your home or the common elements, including, but not limited to any claim arising out of, relating to or based on any implied warranty or claim for negligence or strict liability not effectively waived by this Limited Warranty.

Mediation and Arbitration​

MEDIATION AND ARBITRATION. If any dispute arising out of or related to the purchase, home, or common elements whether in contract, tort or statutory, including any claims against Our officers, directors and/or employers occurs, the parties agree to submit the dispute to non-binding mediation. We and You shall jointly appoint an acceptable mediator and shall share equally in the costs of such mediator. Mediation shall be a condition precedent to arbitrating any dispute. If mediation proves unsuccessful, either party may demand arbitration within thirty (30) calendar days of the date of the mediation. If no party demands arbitration within the specified time, the parties shall, to the fullest extent permitted by law, irrevocably waive any and all right to proceed to arbitration and any and all claims they may have against the other party(ies).

Following the mediation period and in a timely written demand for arbitration, arbitration shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, with an arbiter appointed by Us. The costs of the arbitration shall be borne equally by the parties, subject to reallocation by the Arbiter. Both parties shall have the right to be represented by legal counsel and to join subcontractors and/or suppliers into any arbitration proceeding.

In any arbitration proceeding, You agree that the sole manner which may be used to establish breach of any of Our obligations, any obligations which may exist by law or reason of any statutes, any applicable industry standards, and/or Your damages, including, but not limited to, appropriate repair costs, shall be through the testimony of a homebuilder currently licensed by the Pikes Peak Regional Building Department who has built and sold at least five (5) homes with a sales price exceeding $400,000 in the two (2) calendar years immediately preceding the calendar year in which the claim is brought. The Arbiter shall completely exclude the testimony of any tendered expert who does not meet the foregoing qualifications.

The decision of the arbiter shall be final and conclusive and judgment may be entered upon the award by any court having jurisdiction thereover. In determining any question, matter, or dispute before them, the arbitrators shall apply the provisions of the Purchase Agreement and the Limited Warranty without varying from them in any respect and they shall not have the power to add to, modify or change any of the provisions hereof. Exclusive venue for any arbitration proceeding shall be in El Paso County, Colorado.

After evidence is presented by You, Us or Our representatives, a decision will be rendered by the arbiter. The decision is final and binding on You and Us. The arbiter first will determine whether any claimed or alleged construction defects exists and whether it is Our responsibility. Second, if the arbitrator finds Us responsible for a construction defect, the arbiter will determine the scope of any repair or replacement, Our cost of any such repair or replacement, and the diminution in fair market value, if any, caused by such construction defects. Based upon the arbitrator's decision, We shall choose whether We shall repair or replace the construction defect or pay to You the actual amount it would cost Us to repair or replace the construction defect. The decision to repair, replace, or to make payment to You is at Our or Our authorized representative's sole option. In addition, the arbiter shall render a decision resolving any other disputed matters or issues related to or arising from this Limited Warranty, the design or construction of the home or the common elements or the sale of the home or transfer of title to the common elements.