This excerpt taken from the RVBD 10-K filed Feb 15, 2008.
ATTACHED TO AND MADE A PART OF THIS LEASE
If a dispute arises between the parties concerning any matter pertaining to (i) the determination of the Commencement Date pursuant to Subsection 2.4 of the Lease, (ii) the determination of the amount payable by Tenant pursuant to Subsection 6.2.3 of the Lease, (iii) the determination of the amount payable by Tenant pursuant to Subsections 6.3.1(a) through 6.3.1(c) of the Lease, (iv) the results of any audit performed on Tenants behalf pursuant to Subsection 6.8 of the Lease, (v) deleted, (vi) the determination of the proper amount of the invoice for repair under Subsection 11.2 of the Lease, (vii) the amount of any Rent Differential payable pursuant to Subsection 14.5 of the Lease, (viii) any amount billed to Tenant by Landlord pursuant to Subsection 23.3 of the Lease, (ix) any dispute under the provisions of the last three sentences of Subsection 23.6.2 of the Lease, (x) the portion of any Award for the bonus value of leasehold payable to Tenant under Subsection 25.2.5, (xi) the determination of the Fair Market Rate for parking spaces in comparable parking facilities pursuant to Section 42, or (xii) the resolution of any dispute under of Exhibit B, and any such dispute cannot be resolved by mutual agreement, the dispute shall be submitted to arbitration. The judgment or the award rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between the parties.
1. If the dispute has continued for more than thirty (30) days following written notice from either party to the other that such thirty (30) day period for the resolution of the matter shall commence as of the date of such written notice, then at the end of such 30-day period, either party may demand arbitration in writing by notice to the other within ten (10) business days after the expiration of such thirty (30) day period, which notice shall include the arbitrator designated by the requesting party. Such arbitrator shall have recognized expertise in the subject to which the dispute relates and shall have at least ten (10) years experience in such subject matter as it pertains to office leases of space in Comparable Buildings and shall have not previously been employed by the party appointing such arbitrator (for purposes of determining whether such arbitrator shall have previously been employed, the fact that such arbitrator shall have previously served as a third party in a dispute resolution matter shall not apply, but such fact must be fully disclosed to the other party). If the disputed subject concerns earthquake insurance or premiums therefor, such arbitrator shall be an insurance broker. If the disputed subject concerns Tenants audit of Operating Expenses (other than costs attributable to earthquake insurance), such arbitrator shall be an accountant. If the disputed subject concerns a construction matter, such arbitrator shall be a construction manager. If the disputed subject concerns a market rental rates, such arbitrator shall be a real estate broker. If the disputed subject concerns any other matter, such arbitrator shall be a real estate attorney. Such arbitrator shall be a person who would qualify as an expert witness over objection to give testimony addressed to the issue in controversy in a court of competent jurisdiction. Failure on the part of either party to make a timely and proper demand for such arbitration shall constitute a waiver of the partys right to demand arbitration, but not a waiver of such partys right to pursue any other legal or equitable remedies (provided the other party does not timely and properly demand arbitration as herein provided).
2. Within ten (10) business days after the service of demand for arbitration, the responding party shall give notice (the Response) to the demanding party specifying (i) with particularity the responding partys proposed resolution of the matter in issue and (ii) the name and address of the person designated by the responding party to act as arbitrator on its behalf who shall be qualified as set forth in paragraph (1) above. If the responding party fails to notify the demanding party of the appointment of its
arbitrator, within or by the time above specified, then the arbitrator appointed by the demanding party shall be the arbitrator to determine the issue. The arbitration shall be conducted in San Francisco, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
3. If two (2) arbitrators are chosen pursuant to the above, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed, and if within ten (10) business days after such first meeting the two arbitrators shall be unable to agree promptly upon a determination of the matter in issue, they shall appoint a third arbitrator, who shall be competent and impartial person with qualifications similar to those required of the first two arbitrators pursuant to Paragraph (1) above. If they are unable to agree upon such appointment within five (5) business days after expiration of said ten (10) day period, the third arbitrator shall be selected by the parties themselves, if they can agree thereon, within a further period of ten (10) business days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then Chief Judge of the United States District Court having jurisdiction over the City and County of San Francisco, acting in his private non-judicial capacity. Request for appointment shall be made in writing with a copy given to the other party. Each party agrees that said Judge shall have the power to make the appointment. The three (3) arbitrators shall decide the dispute, if it has not previously been resolved, by following the procedure set forth below,
4. The three (3) arbitrators shall attempt to decide the issue within fifteen (15) business days after the appointment of the third arbitrator. Within such fifteen (15) business day period the arbitrators shall hold a hearing in accordance with the aforesaid Rules at which each party may submit evidence, be heard and cross-examine witnesses, with each party having at least ten (10) business days advance notice of the hearing. The hearing shall be conducted so that each of Landlord and Tenant shall have reasonably adequate time to present oral evidence or argument, but either party may present whatever written evidence it deems appropriate prior to the hearing (with copies of any such written evidence being sent to the other party prior to the hearing). The arbitrators shall have the right to consult experts and competent authorities with factual information or evidence pertaining to the determination of the matter at issue, but any such consultation shall be made in the present of both parties with full right on their part to cross- examine. The decision in which any two (2) arbitrators so appointed and acting hereunder concur shall be the final decision of the arbitration and the arbitrators shall render the decision and award in writing with counterpart copies to each party. The arbitrators shall have no power to modify the provisions of this Lease. Any decision derived from the foregoing arbitration process shall be binding and conclusive upon the parties. If the arbitrators are unable to render a decision in accordance with the foregoing, or if the decision of the arbitrators shall be held by a court of competent jurisdiction to be unenforceable for any reason, then the matter submitted to arbitration shall be subject to litigation in the courts of the State of California, and Landlord and Tenant each hereby waive its right to a jury trial in any such court proceeding.
5. If any arbitrator fails, refuses or is unable to act, his successor shall be appointed by him, but in the case of the third arbitrator, his successor shall be appointed in the same manner as provided for appointment of the third arbitrator. The losing party shall pay the fees and costs of the arbitrators and of the expert witnesses (if any) of the prevailing party as well as those of its expert witnesses. The losing party shall be determined by the arbitrators as a part of the arbitration and such determination shall be based upon an assessment of which partys major arguments or positions taken in the arbitration could fairly be said to have lost to the other partys major arguments or positions on major disputed issues in the arbitrators decision.
6. Tenant shall not withhold payment of disputed rental amounts claimed in good faith by Landlord to be due and owing under the terms and conditions of the Lease. If Tenant pays such amounts
under protest and subsequently prevails in contesting such amounts under the foregoing provisions of this Exhibit or under any other dispute resolution proceeding allowed under the Lease for such dispute, Landlord shall reimburse Tenant for such amount, together with interest, accruing from the date of Tenants payment to Landlord, at an interest rate equal to the Interest Rate. Such reimbursement shall be paid within ten (10) business days after the final resolution of such dispute.
7. The arbitrator shall have the authority to award any remedy or relief that a court of this state could order or grant, including, without limitation, specific performance of any obligation created under this Lease; except that the arbitrator shall have no authority to award punitive damages or any other damages not measured by the prevailing partys actual damages. Further, the arbitrator shall have no right to modify the provisions of this Lease.
8. The non-prevailing party shall reimburse the prevailing party for any reasonable attorneys fees or costs incurred by the prevailing party in enforcing any judgment or award rendered in its favor in any arbitration under this Exhibit.