ARTICLE XII
Dispute Resolution and Limitation on Litigation
12.1 Agreement to Encourage Resolution of Disputes Without Litigation.
(a) Declarant, all persons subject to this Declaration, and any person not otherwise subject to this Declaration who agrees to submit to this Article (collectively, "Bound Parties"), agree that it is in the best interest of all concerned to encourage the amicable resolution of disputes involving the Project without the emotional and financial costs of litigation. Accordingly, each Bound Party agrees not to file suit in any court with respect to a Claim described in Section 12.l(b) below, unless and until it has first submitted such Claim to the alternative dispute resolution procedures set forth in Section 12.2 in a good faith effort to resolve such Claim.
(b) As used in this Article, the term "Claim" shall refer to any claim, grievance or dispute arising out of or relating to
(i) the interpretation, application, or enforcement of this Declaration;
(ii) the rights, obligations, and duties of any Bound Party under this Declaration; or
(iii) The design or construction of improvements within the Project; except that the following shall not be considered "Claims" unless all parties to the matter otherwise agree to submit the matter to the procedures set forth in Section 12.2:
(iv) any suit by the Declarant to obtain a temporary restraining order ( or emergency equitable relief) and such ancillary relief as the court may deem necessary in order to maintain the status quo and preserve the Declarant's ability to enforce the provisions of this Declaration relating to creation and maintenance of community standards;
(v) any suit between Owners, which does not include Declarant as a party, if such suit asserts a Claim which would constitute a cause of action independent of this Declaration;
(vi) any suit in which any indispensable party is not a Bound Party; and
(vii) any suit as to which any applicable statute of limitations would require within 180 days of giving the notice required by Section 12.2(a), 23 unless the party or parties against whom the claim is made agree to toll the statute of limitations as to such Claim for such period as may reasonably be necessary to comply with this Article.
12.2 Dispute Resolution Procedures.
(a) Notice. The Bound Party asserting a Claim ("Claimant") against another Bound Party ("Respondent") shall give written notice to each Respondent and Declarant (the latter only so long as Declarant is the Owner of any Lot in the Project) stating plainly and concisely:
(i) the nature of the Claim, including the persons involved and the Respondent's role in the Claim;
(ii) the legal basis of the Claim (i.e., the specific authority out of which the Claim arises); (iii) the Claimant's proposed resolution or remedy; and
(iv) the Claimant's desire to meet with the Respondent to discuss in good faith ways to resolve the Claim.
12.3 Negotiation. The Claimant and Respondent shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a copy of the notice, Declarant (so long as Declarant is the Owner of any Lot in the Project) may appoint a representative to assist the parties in negotiating a resolution of the Claim.
12.4 Mediation. If the parties have not resolved the Claim through negotiation within 30 days of the date of the notice described in Section 12.2(a) (or within such other period as the parties may agree upon), the Claimant shall have 30 additional days to submit the claim to mediation with an entity mutually approved by the parties or to an independent agency providing dispute resolution services in Utah. If the Claimant does not submit the Claim to mediationwithin such time, or does not appear for the mediation when scheduled, the Claimant shall be deemed to have waived the Claim, and the Respondent shall be relieved of any and all liability to the Claimant (but not third parties) on account of such Claim. If the Parties do not settle the Claim within 30 days after submission of the matter to mediation, or within such time as determined reasonable by the mediator, the mediator shall issue a notice of termination of themediation proceedings indicating that the parties are at an impasse and the date that mediation was terminated. The Claimant shall thereafter be entitled to file suit or to initiate administrative proceedings on the Claim, as appropriate. Each party shall bear its own costs of the mediation, including attorneys' fees, and each party shall share equally all fees charged by the mediator.
12.5 Settlement. Any settlement of the Claim through negotiation or mediation shall be documented in writing and signed by the parties. If any party thereafter fails to abide by the terms of such agreement, then any other party may file suit or initiate administrative proceedings to enforce such agreement without the need to again comply with the procedures set forth in this Section. In such event, the party taking action to enforce the Declaration or award shall, upon prevailing, be entitled to recover from the non-complying party (or if more than one noncomplying party, from all such parties in equal proportions) all costs incurred in enforcing such agreement or award, including, without limitation, attorneys' fees and court costs.