Exhibit “C”

 

Florida Spray Foam (“FSF”)
Proposal Terms and Conditions Incorporated into Credit Application

 

Identification of ADR Provision: This contract contains a mandatory and binding and all-encompassing mediation and arbitration provision which may be enforced by the parties as set forth herein above.

Non-Waiver of Alternate Dispute Resolution procedures by FSF in the event FSF seeks to preserve and perfect its construction lien rights under F.S. 713:  Customer and FSF acknowledge that in the event FSF seeks to preserve and protect its construction lien rights under F.S. 713, which include, but are not limited to, filing a construction lien and filing a construction lien foreclosure without additional overt acts of waiver of arbitration, then in such event the filing of a lien and the filing of a construction lien action shall not be construed as a waiver of the Alternate Dispute Resolution provisions set forth in this Exhibit C, but rather an allowable activity undertaken by FSF to reasonably preserve and protect its construction lien rights under F.S. 713.         

Alternate Dispute Resolution Encompassing All Contract or Tort Claims:

 

  a.           Informal negotiation and settlement.  It is mutually agreed between the Parties that in the event of any controversy, dispute or claim arising out of or in any way relating to this agreement, including any or all statutory and tort claims arising from either parties’ negligence inclusive of personal injuries, death, or damage to personal property, the Parties shall enter into good faith negotiation over such dispute within five (5) business days of such dispute.  “Good faith negotiation”, for purposes of this particular paragraph, is a bona fide effort made by the Parties to meet or discuss via telephone conference and address their respective disputes for purposes of resolving same without further proceedings.

 

b.            Formal Non-Binding Mediation. The Parties further hereby agree that in the event they are unable to resolve any respective controversy(ies), dispute(s) or claim(s) arising out of or in any way relating to this agreement,  including any or all statutory and tort claims arising from either parties negligence inclusive of personal injuries, death, or damage to personal property, after good faith negotiation, then in such event the Parties shall submit, within ten (10) business days, to non-binding mediation in accordance with the general rules governing 

negotiation as promulgated by the Mediation and Arbitration Division of the Twentieth Judicial Circuit in and for Lee County, Florida with venue for mediation to be in Lee County, Florida. 

 

Appointment of Mediator with Twenty-Five (25) Years’ Experience in Real Estate and Construction Litigation with Automatic Appointment of First Identified and Available Mediator. The controversy or claim shall be submitted to a single mediator, having at least twenty-five (25) years’ experience in the area of real estate and construction litigation who either is (a) mutually agreed upon by the parties within ten (10) days from a demand by either party for mediation, or (b) if the Parties cannot agree upon a mutually acceptable arbitrator, then the Parties agree that the first available mediator who can conduct a mediation proceeding for the disputes arising hereunder from the following group in the sequential order as identified below shall be the mediator elected:

 

  1. Jim Nulman, 15880 Summerlin Road, Suite 300, PMB 146, Fort Myers, FL  33908,
    Phone (239) 433-3539

 

  1. Robin Doyle, 9132 Strada Place, Suite 401, Naples, FL 34108,
    Phone (239) 213-0033

 

  1. Carl Joseph Coleman, 401 E. Jackson Street, Suite 2400, Tampa, FL  33602

                                Phone (813) 222-1108

 

  1. Terry Porter, P.O. Box 61407, Fort Myers, FL 33906-1407,
    Phone (239) 278-0869

 

  1. Leonard Reina, 501 Goodlette Road N, Ste B206, Naples, FL 34102, 
    Phone (239) 263-2059

 

  1. Denise Wheeler Wright, 4600 Summerlin Road, Suite C-2517, Fort Myers,
    FL 33919        Phone (239) 312-3258

 

  1. William Hazzard, 2640 Golden Gate Pkwy #304, Naples, FL 34105,
    Phone (239) 298-5202

 

  1. George Knott, 1625 Hendry Street #310, Fort Myers, FL 33901
    Phone (239) 334-2722

 

  1. Lawrence A. Farese, 711 5th Avenue S., Ste 201, Naples, FL  34102                   

       Phone (239) 213-1973

 

               It is understood and agreed that the procedure for appointment of the mediator in the event of a failure of the Parties to agree upon a mediator within ten (10) days from the demand for such mediation is that the mediators specified hereinabove shall be contacted in sequential order and availability and if a mediation can be scheduled with the initial available mediator within thirty (30) days, then such mediation shall be scheduled with that first available mediator.  Alternatively, if the first mediator is not available, then the second mediator shall be contacted using the same format to schedule the mediation within the thirty (30) day time period.  If none of the mediators are available within the first thirty (30) day time period, then the first mediator available, in sequential order after the thirty (30) day time period, shall be identified as the appropriate mediator to conduct the mediation hereunder. 

 

The Parties specifically acknowledge and agree to the procedure set forth in this Section for the selection of the mediator which, as indicated above, shall be the first mediator on the above list who is readily available to mediate this matter within the first thirty (30) days after either party makes demand for mediation. 

 

As such, it is understood and agreed by the Parties that the procedure for the appointment of the mediator shall be for the party requesting mediation to contact, in sequential order, the identified mediator and schedule the mediation with the initial mediator who meets the requirements of being available within the first thirty (30) day time period.  Such appointment shall take place within fifteen (15) calendar days of the date of the initial demand which would be five (5) calendar days after the ten (10) day time period within which the Parties would have a right to agree upon a mediator.    The mediator either (a) selected by the Parties as set forth above within the ten (10) day time period or (b) the mediator selected by the appointment process as identified herein above, shall be the designated mediator and such mediator shall be fully authorized to act as the mediator with full jurisdiction over the Parties as to any such disputes. The mediator shall, thereafter, schedule the mediation in accordance with Florida Statute 682.03 and conduct the mediation accordingly.   

 

The Parties acknowledge that they are responsible to either agree upon the mediator or submit to the mediator selection process as set forth above.  Failure by either Party to attend a scheduled mediation in front of the selected mediator may result in that Parties’ rights being declared in default and a requirement that the defaulting party submit to binding arbitration and also compensate the non-defaulting party for any costs associated with the failed mediation. 

 

c. Arbitration.   In the event that formal non-binding mediation does not result in settlement of any respective parties’ controversy(ies), dispute(s) or claim(s), arising out of or in any way relating to this agreement including any or all statutory and tort claims arising from either Parties negligence, inclusive of personal injuries, death, or damage to personal property, the Parties acknowledge and agree that they shall thereafter submit all such disputes to arbitration pursuant to the arbitration provision as set forth hereinbelow.

 

It is mutually agreed that any controversy, dispute or claim arising out of or in any way relating to this Agreement, the interpretation thereof, including any or all statutory and tort claims arising from either parties negligence, inclusive of personal injury, death or damages to personal property, that in such event all such controversies, claims or disputes or the breach thereof, shall be settled by arbitration in accordance with the Florida Arbitration Code and to the extent they do not conflict with the arbitration provisions contained herein the parties agree to utilize the Commercial Arbitration Rules promulgated by the American Arbitration Association, although the American Arbitration Association will not be the arbitration administrator. The controversy or claim shall be submitted to a single arbitrator, having at least twenty-five (25) years’ experience in the area of real estate and construction litigation and who is mutually agreed upon by the parties within thirty (30) days of notice of an intent to arbitrate any matter hereunder.  The arbitration of such dispute will be held in Lee County, Florida within thirty (30) days after completion of discovery.  The award of the arbitrator will be final and binding on all parties to the arbitration and judgment may be entered upon it in accordance with law in any court of competent jurisdiction.  In the event of arbitration, the Parties hereto specifically agree that discovery shall be allowed in the form of written interrogatories, depositions of witnesses, production, inspection and copying of documents to the same extent as is provided under the Florida Rules of Civil Procedure.  Provided, however, the time for responding to requests for written interrogatories, production and inspection and copying of documents shall be reduced to ten (10) days.  Any disagreements between the parties to the dispute as to the scope and extent of and compliance with the discovery will be referred to the arbitrator and his determination shall be final.  

 

The Parties further agree that such discovery procedures shall not be extended beyond two (2) months from the selection of the arbitrator; provided, however, that for good cause, the arbitrator shall be permitted in his discretion to extend said time for discovery.  

 

Authority of Arbitrator to Award Attorney Fees and Costs:

a. In the event of any arbitration between Parties hereto to enforce any of the provisions of this Agreement or any right of either Party hereunder (including appellate proceedings), the unsuccessful party to such proceeding agrees to pay to the successful party all costs and expenses, including all reasonable attorneys’ fees, court costs and all other costs and expenses incurred therein by the successful party, all of which shall be included in and as a part of the arbitration award and/or judgment rendered upon such award.  

Obligation of Arbitrator to Apply Significant Issues Test to Award Attorney Fees and Costs:

The Parties hereby expressly confer upon the arbitrator the jurisdiction, authority and the specific obligation to determine the issue of entitlement to attorneys’ fees and costs and award such reasonable attorney fees and costs to the prevailing party in such action (in accordance with the guidelines for costs set forth in the Florida Rules of Civil Procedure).  The arbitrator is specifically instructed and shall apply the “Significant Issues Test” as discussed by a series of cases, including Trytek vs. Gale Industries, Inc., which stands for the proposition that the prevailing party is the party that prevails on the significant issues in the case.   The arbitrator is directed to the case of Moritz vs. Hoyt Enterprises, 604 So. 2d 807 (Fla. 1992) and Prosperi vs. Code, 626 So. 2d 1360 (Fla. 1993) which clearly indicate that the determination for the prevailing party to be applied by the arbitrator is to be based upon the arbitrator determining from the record which of the two parties has in fact prevailed on the “significant issues” tried before the arbitrator at the final arbitration hearing.   The costs that can be awarded to the prevailing party will be based upon the form guideline for costs as identified in the Florida Rules of Civil; Procedure at the time of completion of such action.  Thus, after having determined entitlement based upon who is the prevailing party (pursuant to applicable principles of law in the regard), the arbitrator shall determine the amount of attorneys’ fees to be awarded to the prevailing party.  Evidence of such attorneys’ fees and costs will be submitted to the arbitrator in accordance with the procedures set forth hereinbelow.

 

Delegation of Authority to Arbitrator to Determine the Arbitrability of the Dispute Pursuant to the Arbitration Agreement with Court Retaining Jurisdiction Only to Review a Challenge to the Delegation Provision: 

  1. The Parties to this agreement recognize the authority of the Arbitrator to determine the scope and issues to be arbitrated hereunder.   The Parties, specifically by this provision, delegate full and complete authority to the Arbitrator to determine whether an arbitral issues exists with the sole and exclusive right of the Arbitrator to make such determination, with such final determination subject to review by the Court only in the event of a direct challenge. 

  2. In accordance with the holding of Newman vs. Ernst and Young LLP, 2017 Fla. App.  Lexis 14371 (2017), the parties agree that this delegation provision contained in this agreement controls the determination of what issues are subject to arbitration.   The Parties hereto further acknowledge that this delegation provision, based upon its inclusion in this arbitration agreement, results in the Court only retaining jurisdiction to review a direct challenge to this particular provision.   Further, the Parties acknowledge that, absent a direct challenge, the Court must treat this delegation provision as valid and allow the arbitrator to determine the issue of arbitrability. 

  3. Accordingly, the Arbitrator is delegated by the Parties hereto to make any and all findings as to the arbitrability of any claims asserted by the Parties to this agreement. 

 

Appointment of Arbitrator with Twenty-Five (25) Years’ Experience in Real Estate and Construction Litigation with Automatic Appointment of First Identified and Available Arbitrator. The controversy or claim shall be submitted to a single arbitrator, having at least twenty-five (25) years’ experience in the area of real estate and construction litigation who either is (a) mutually agreed upon by the parties within ten (10) days from a demand by either party for arbitration, or (b) if the Parties cannot agree upon a mutually acceptable arbitrator, then the parties agree that the first available arbitrator who can conduct an arbitration proceeding for the disputes arising hereunder from the following group in the sequential order as identified below shall be the arbitrator elected:

 

  1. Robin Doyle, 9132 Strada Place, Suite 401, Naples, FL 34108,
    Phone (239) 213-0033

 

  1. George Knott, 1625 Hendry Street #310, Fort Myers, FL 33901
    Phone (239) 334-2722

 

  1. Carl Joseph Coleman, 401 E. Jackson Street, Suite 2400, Tampa, FL  33602

                               Phone (813) 222-1108

 

  1. William Hazzard, 2640 Golden Gate Pkwy #304, Naples, FL 34105,
    Phone (239) 298-5202

 

  1. Denise Wheeler Wright, 4600 Summerlin Road, Suite C-2517, Fort Myers,
    FL 33919        Phone (239) 312-3258


     

  2. Terry Porter, P.O. Box 61407, Fort Myers, FL 33906-1407,
    Phone (239) 278-0869

 

  1. Lawrence A. Farese, 711 5th Avenue S., Ste 201, Naples, FL  34102                   

                                Phone (239) 213-1973

 

  1. Leonard Reina, 501 Goodlette Road N, Ste B206, Naples, FL 34102, 
    Phone (239) 263-2059

 

  1. It is understood and agreed that the procedure for appointment of the arbitrator in the event of a failure of the Parties to agree upon an arbitrator within ten (10) days from the demand for such arbitration is that the arbitrators specified hereinabove shall be contacted in sequential order and availability and if an arbitration can be scheduled with the initial arbitrator within thirty (30) days, then such arbitration shall be scheduled with that first available arbitrator.  Alternatively, if the first arbitrator is not available, then the second arbitrator shall be contacted using the same format to schedule the arbitration within the thirty (30) day time period.  If none of the arbitrators are available within the first thirty (30) day time period, then the first arbitrator available, in sequential order after the thirty (30) day time period, shall be identified as the appropriate arbitrator to conduct the arbitration hereunder. 

  2. The Parties specifically acknowledge and agree to the procedure set forth in this Section for the selection of the arbitrator which, as indicated above, shall be the first arbitrator on the above list who is readily available to arbitrate this matter within the first thirty (30) days after either party makes demand for arbitration. 

As such, it is understood and agreed by the Parties that the procedure for the appointment of the arbitrator shall be for the party requesting arbitration to contact, in sequential order, the identified arbitrator and schedule the arbitration with the initial arbitrator who meets the requirements of being available within the first thirty (30) day time period.  Such appointment shall take place within fifteen (15) calendar days of the date of the initial demand which would be five (5) calendar days after the ten (10) day time period within which the parties would have a right to agree upon an arbitrator.    The arbitrator either (a) selected by the Parties as set forth above within the ten (10) day time period or (b) the arbitrator selected by the appointment process as identified herein above, shall be the designated arbitrator and such arbitrator shall be fully authorized to act as the arbitrator with full jurisdiction over the Parties as to any such disputes.  The arbitrator shall, thereafter, schedule the arbitration in accordance with Florida Statute 682.03 and conduct the arbitration accordingly. Such arbitration shall be binding upon the Parties.   

 

The Parties acknowledge that they are responsible to either agree upon the arbitrator or submit to the arbitrator selection process as set forth above.  Failure by either party to attend a scheduled arbitration in front of the selected arbitrator may result in that parties’ rights being declared in default and an entry of an arbitration award in favor of the party appearing and presenting the appropriate evidence accordingly. 

 

The arbitration of such dispute will be held in Lee County, Florida within no more than sixty (60) days after the initial demand for arbitration is made by either Party. The award of the arbitrator will be final and binding on all parties to the arbitration and judgment may be entered upon it in accordance with law in any court of competent jurisdiction.  In the event of arbitration, the Parties hereto specifically agree that discovery shall be allowed in the form of written interrogatories, depositions of witnesses, production, inspection, and copying of documents to the same extent as is provided under the Florida Rules of Civil Procedure.  Provided, however, the time for responding to requests for written interrogatories, production and inspection and copying of documents shall be reduced to ten (10) days.  Any disagreements between the parties to the dispute as to the scope and extent of and compliance with the discovery will be referred to the arbitrator and his determination shall be final.  

 

The Parties further agree that such discovery procedures shall not be extended beyond thirty (30) days from the selection of the arbitrator, unless the arbitrator specifically authorizes such extension; provided, however, that solely for good cause shown, the arbitrator shall be permitted in his discretion to extend said time for discovery keeping in mind the time frames agreed upon by the Members and the Company hereunder.  

 

Procedure to be utilized by Arbitrator for Determination of Reasonable Attorney Fees and Costs to be awarded to the Successful Party: Pursuant to the provisions set forth hereinabove and the case law described therein, the Parties agree that in the event of any arbitration between the Parties hereto to enforce any of the provisions of this Agreement or any right of either party hereunder (including appellate proceedings), the unsuccessful party to such proceeding agrees to pay to the successful party all costs and expenses, including all reasonable attorneys' fees, court costs and all other costs and expenses incurred therein by the successful party, inclusive of any and all attorney fees’ or experts’ fees to establish the reasonable amount of attorney fees incurred by the prevailing party, all of which shall be included in and as a part of the arbitration award and/or judgment rendered upon such award.  

 

The Parties hereby expressly confer upon the arbitrator the jurisdiction and authority to determine the issues of entitlement to attorneys' fees and costs (in accordance with the guidelines for costs set forth in the Florida Rules of Civil Procedure) and the amount to be awarded therefore, based upon prevailing party status.  

 

Thus, after having determined entitlement based upon who is the prevailing party (pursuant to applicable principles of law in the regard), the arbitrator shall determine the amount of attorneys' fees to be awarded to the prevailing party.  Evidence of such attorneys' fees and costs will be submitted to the arbitrator in accordance with the following procedure:

 

Within seven days after the announcement by the arbitrator of the prevailing party, counsel for the prevailing party shall file with the arbitrator (and simultaneously serve upon opposing counsel) an affidavit of actual attorney's fees, setting forth the total number of attorney and paralegal hours for which recovery is sought, the hourly rates applicable thereto, and a separate affidavit of costs.  The fee affidavit shall authenticate copies of all billing statements submitted by the attorney to the client, together with any computer printouts or other backup material from which such billing statements were generated, copies of all which shall be attached to such affidavits or made available for review and copying.  There shall be no need to submit to expert testimony (either live or in the form of affidavits) to substantiate the amount of fees or costs sought.

 

Within seven days after the submission of such attorney fee affidavit to the arbitrator, the non-prevailing party shall have the right to submit to the arbitrator a written challenge questioning any of the attorneys' fees sought to be recovered by the prevailing party.

 

Either party may, within seven days after the submission of such written challenge, request a hearing before the arbitrator for the purpose of oral argument.

 

Based upon the information so submitted, the arbitrator shall award attorney's fees and costs in favor of the prevailing party in an amount determined by the arbitrator to be reasonable under all of the facts and circumstances.

 

The provisions contained in the three (3) methods of Alternate Dispute Resolution described herein shall survive any breach or termination of this Agreement.

  

WAIVER OF JURY TRIAL

THE PARTIES HERETO ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT THIS RIGHT MAY BE WAIVED.  THE PARTIES EACH HEREBY KNOWINGLY, VOLUNTARILY AND WITHOUT COERCION, WAIVE ALL RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF, UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THIS AGREEMENT OR ANY OTHER AGREEMENTS BETWEEN ANY OF THE PARTIES, WHETHER SUCH DISPUTE ARISES OUT OF ACTIONS WHICH TOOK PLACE PRIOR TO THE EXECUTION OF THIS AGREEMENT, OCCURRED DURING THE PERFORMANCE OF THIS AGREEMENT, OR AFTER THIS AGREEMENT TERMINATED, INCLUSIVE OF ANY CLAIMS UNDER THIS CONTRACT OR ACTIONS SOUNDING IN TORT, BAD FAITH, FRAUD, OR OTHERWISE BASED UPON ANY STATUTE THE PARTIES ACKNOWLDGE AND AGREE THAT SUCH WAIVER OF JURY TRIAL ENCOMPASSES ANY AND ALL REMEDIES THAT COULD BE SOUGHT BY THE PARTIES HEREUNDER, INCLUSIVE OF ANY REMEDIES FOR PUNITIVE DAMAGES OR OTHER RELIEF PROVIDED FOR BY CONTRACT, CASE LAW OR STATUTE.   

 

ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THEIR CONSENT TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY AND THE OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THIS PROVISION WAS A MATERIAL INDUCEMENT FOR ENTERING INTO THIS AGREEMENT.