Common use of Third Appraiser Clause in Contracts

Third Appraiser. If two (2) Appraisers have been appointed as provided in Paragraph 2(b)(iii) above, and the appointment of a third Appraiser is required under Paragraph 2(b)(iii) above, then the two (2) Appraisers shall designate a third Appraiser, who shall meet the qualifications described in Paragraph 2(b)(ii) above. If the two appointed Appraisers are unable to agree upon such third Appraiser within ten (10) days after the two Fair Market Rent determinations have been opened, either party may, by giving ten (10) days’ written notice to the other party, petition the Presiding Judge of the County in which the Premises are located to appoint a third Appraiser who meets the qualifications described in Paragraph 2(b)(ii) above. The third Appraiser, however selected, shall be a person who has not previously acted in any capacity for either party. The third Appraiser shall, within forty-five (45) days after his or her appointment, select the one (1) Fair Market Rent determination of one of the previously-appointed two (2) Appraisers that the third Appraiser determines is the more accurate determination of Fair Market Rent. During the forty-five (45) day period, the third Appraiser may conduct a hearing, at which Landlord, Tenant and their respective representatives may each make oral and/or supplemental written presentations, with an opportunity for questioning by the third Appraiser. The decision of the third Appraiser shall be final and binding on the parties and may be enforced in accordance with the provisions of California law. The third Appraiser shall have no right to determine, modify or impose Fair Market Rent other than as provided above. In the event of the failure, refusal or inability of an Appraiser to act, a successor shall be appointed in the manner that applied to the selection of the Appraiser being replaced.

Third Appraiser. If the difference between the two determinations is more than ten percent (210%) Appraisers have been appointed as provided in Paragraph 2(b)(iii) above, and of the appointment of a third Appraiser is required under Paragraph 2(b)(iii) abovehigher determination, then the two (2) Appraisers Third Appraiser shall designate a third Appraiser, who shall meet the qualifications described in Paragraph 2(b)(ii) above. If select one of the two appointed Appraisers are unable determinations as the Fair Market Rent pursuant to agree upon such third Appraiser within ten (10) this Section 8.c.iv no later than 140 days after the Notice Date. A. The sole responsibility of the Third Appraiser will be to determine which of the determinations made by the parties’ two appraisers is most accurate and select that determination as the Fair Market Rent Rent. The Third Appraiser may not propose or determine a middle ground or any modification of either of the determinations have been openedmade by the parties’ apprais- ers. B. Prior to selecting a determination by a party’s appraiser, either the Third Appraiser may elect (but shall not be required) to perform a site visit accompanied by the parties’ appraisers and the parties. The Third Appraiser may ask questions at the site visit and at other times may ask written questions of the parties’ appraisers or make written requests of the parties appraisers for further information or explanation, addressing any written questions or requests to both parties’ appraisers at the same time. A party mayshall not communicate with the Third Ap- praiser in electronic or written form except to respond to such written questions and requests of the Third Appraiser, by giving ten (10) days’ written notice serving a copy of each response on the other party concurrently with provid- ing the response to the other partyThird Appraiser, petition or in connection with (and limited to) arrangements for the Presiding Judge of the County in which the Premises are located to appoint a third Appraiser who meets the qualifications described in Paragraph 2(b)(ii) aboveThird Appraiser’s retention. The third AppraiserThird Appraiser may also elect to meet with the parties’ appraisers no more than once, however selectedin addition to a site visit, shall be a person who has not previously acted in any capacity for either partyto ask questions, make requests and dis- cuss their respective appraisal reports. The third Third Appraiser shallshall have no power to require dis- covery and shall not independently obtain information or evidence pertaining to the Fair Market Rent, within forty-five (45) days after but shall instead rely solely on information provided by the parties pursuant to this Section C. The Third Appraiser: shall render his or her appointmentdecision and award in writing with counterpart copies to each party, select and shall have no power to modify the one (1) Fair Market Rent determination provisions of this Lease. The Third Appraiser’s selection of one of the previously-appointed two (2) Appraisers that the third Appraiser determines is the more accurate determination of Fair Market Rent. During the forty-five (45) day period, the third Appraiser may conduct a hearing, at which Landlord, Tenant and their respective representatives may each make oral and/or supplemental written presentations, with an opportunity for questioning determinations by the third Appraiser. The decision parties’ appraisers pursuant to the foregoing provisions of the third Appraiser this Section 8.c.iv shall be final and binding on binding. D. The fees and other out-of pocket expenses (if any) of the Third Appraiser incurred in connection with the arbitration proceeding shall be paid by the party whose rent determination is not selected within 30 days after the Third Appraiser notifies the parties and may be enforced in accordance with the provisions of California law. The third Appraiser shall have no right to determine, modify or impose Fair Market Rent other than as provided above. In the event of the failureThird Appraiser’s decision. If the Third Appraiser requires an advance payment of or deposit against the Third Appraiser's fee or other expenses, refusal or inability then each party shall advance one-half of the required sum within the time specified by the Third Appraiser, and shall later be reimbursed by the party responsible for the full costs of the Third Appraiser after the Third Appraiser has se- lected a party’s estimate. Each party shall pay the fees and expenses of its own appraiser and attorneys. E. The Third Appraiser will be acting in an arbitration role, and thus the Third Appraiser will have the immunity of a judicial officer from civil liability arising pur- suant to actCode of Civil Procedure Section 1297.119, which states: "An arbitrator has the immuni- ty of a successor shall be appointed judicial officer from civil liability when acting in the manner that applied to the selection capacity of the Appraiser being replacedarbitrator under any sta- tute or contract."