Common use of Insurance; Waiver of Subrogation Clause in Contracts

Insurance; Waiver of Subrogation. (a) At all times during the term of this Agreement, WaterPro shall carry and maintain at its sole cost and expense, bodily injury liability insurance with limits of not less than $[ ] per person and $[ ] per occurrence insuring against any and all liability of the insured with respect to its premises or arising out of the maintenance, use, or occupancy thereof and property damage liability insurance with a limit of not less than $[ ] per accident or occurrence. All such bodily injury liability insurance and property damage or liability insurance shall specifically insure the performance by WaterPro of the indemnity agreement as to liability for injury to or death of persons and injury or damage to property set forth in this Agreement. (b) At all times during the term of this Agreement, DIC shall carry and maintain, at its sole cost and expense, insurance covering all of the water collection, treatment, distribution, delivery, metering, and other facilities and equipment owned and maintained by it in accordance with subparagraph 7(a) of this Agreement in an amount not less than [80%] of their full replacement cost from time to time during the term of this Agreement, providing protection against any peril within the classifications “fire and extended coverage,” together with insurance against vandalism and malicious mischief. Policy proceeds shall be used first for the repair and replacement of the property damaged or destroyed. (c) All policies of insurance provided for herein shall be issued by insurance companies with the best available general policyholder and financial ratings, as rated in the most current available Best’s Insurance Reports, and qualified to do business in the state of Utah, in the names of WaterPro and DIC for the mutual and joint benefit and protection of DIC and WaterPro. Executed copies of such policies of insurance or certificates thereof shall be delivered by each of WaterPro and DIC to the other within 10 days after the Effective Date of this Agreement and thereafter within 30 days prior to the expiration of the term of each expiring policy. All public liability and property damage policies shall contain a provision that DIC, although named as an insured, shall nevertheless be entitled to recovery under said policies for any loss occasioned to it or its servants, agents, and employees by reason of the negligence of WaterPro. All policies of insurance delivered by either WaterPro or DIC to the other must contain a provision that the insurer writing such policy will give to the other 20 days’ notice in writing in advance of any cancellation or lapse or the effective date of any reduction in the amounts of insurance. All public liability, property damage, and other casualty policies shall be written as primary policies, not contributing with and not in excess of coverage that DIC may otherwise carry. (d) Notwithstanding anything to the contrary contained within this section, the obligations of DIC and WaterPro to carry the insurance provided for herein may be brought within the coverage of a so-called “blanket” policy or policies of insurance carried and maintained by DIC and WaterPro together, provided, however, that each shall be named as an insured thereunder as its interest may appear and that the coverage afforded to either party will not be reduced or diminished by reason of the use of such blanket policy of insurance.

Insurance; Waiver of Subrogation. (a) At all times during the term of this Agreement, WaterPro shall carry and maintain at its sole cost and expense, bodily injury liability insurance with limits of not less than $[ ] per person in amounts and $[ ] per occurrence insuring against any and all liability of the insured with respect to its premises or arising out of the maintenance, use, or occupancy thereof and property damage liability insurance with a limit of not less than $[ ] per accident or occurrencecoverage as specified by DIC. All such bodily injury liability insurance and property damage or liability insurance shall specifically insure the performance by WaterPro of the indemnity agreement as to liability for injury to or death of persons and injury or damage to property set forth in this Agreement. (b) At all times during the term of this Agreement, DIC shall carry and maintain, at its sole cost and expense, insurance covering all of the water collection, treatment, distribution, delivery, metering, and other facilities and equipment owned and maintained by it in accordance with subparagraph 7(a) of this Agreement in an amount not less than [80%] of their full replacement cost from time to time during the term of this Agreement, providing protection against any peril within the classifications “fire and extended coverage,” together with insurance against vandalism and malicious mischief. Policy proceeds shall be used first for the repair and replacement of the property damaged or destroyed. (c) All policies of insurance provided for herein shall be issued by insurance companies with the best available general policyholder and financial ratings, as rated in the most current available Best’s Insurance Reports, and qualified to do business in the state of Utah, in the names of WaterPro and DIC for the mutual and joint benefit and protection of DIC and WaterPro. Executed copies of such policies of insurance or certificates thereof shall be delivered by each of WaterPro and DIC to the other within 10 days after the Effective Date of this Agreement and thereafter within 30 days prior to the expiration of the term of each expiring policy. All public liability and property damage policies shall contain a provision that DIC, although named as an insured, shall nevertheless be entitled to recovery under said policies for any loss occasioned to it or its servants, agents, and employees by reason of the negligence of WaterPro. All policies of insurance delivered by either WaterPro or DIC to the other must contain a provision that the insurer writing such policy will give to the other 20 days’ notice in writing in advance of any cancellation or lapse or the effective date of any reduction in the amounts of insurance. All public liability, property damage, and other casualty policies shall be written as primary policies, not contributing with and not in excess of coverage that DIC may otherwise carry. (dc) Notwithstanding anything to the contrary contained within this section, the obligations of DIC and WaterPro to carry the insurance provided for herein may be brought within the coverage of a so-called “blanket” policy or policies of insurance carried and maintained by DIC and WaterPro together, provided, however, that each shall be named as an insured thereunder as its interest may appear and that the coverage afforded to either party will not be reduced or diminished by reason of the use of such blanket policy of insurance.

Insurance; Waiver of Subrogation. 21.1 Commencing prior to Tenant’s first entry onto the Premises for purposes of installing any improvements, fixtures or personal property, but no later than the Term Commencement Date, and continuing at all times during the term of this Lease, Tenant shall maintain, at Tenant’s expense, commercial general liability insurance, on an occurrence basis, insuring Tenant and Tenant’s agents, employees and independent contractors against bodily injury, property damage, personal injury and other covered loss arising out of the use, occupancy, improvement and maintenance of the Premises and the business operated by Tenant, or any other occupant, on the Premises. Such insurance shall have a minimum combined single limit of liability per occurrence of not less than $1,000,000.00 and a general aggregate limit of $2,000,000.00. Such insurance shall: (ai) name Landlord, and Landlord’s lenders if required by such lenders, and any management company retained to manage the Premises if requested by Landlord, as additional insureds; (ii) include a broad form contractual liability endorsement insuring Tenant’s indemnity obligations under Section 20.1; (iii) include a products liability coverage endorsement (with limits of $2,000,000.00 on a “claims made” basis); (iv) provide that it is primary coverage and noncontributing with any insurance maintained by Landlord or Landlord’s lenders, which shall be excess insurance with respect only to losses arising out of Tenant’s negligence; and (v) provide for severability of interests, such that an act or omission of an insured shall not reduce or avoid coverage of other insureds. 21.2 At all times during the term of this AgreementLease, WaterPro Landlord shall carry maintain, subject to reimbursement by Tenant as an Operating Expense under Section 7.1(b), “special form” insurance, including, but not limited to, coverage against loss or damage by fire, vandalism, and maintain at its sole cost malicious mischief covering the Project (exclusive of excavations, foundations and expensefootings), bodily injury liability insurance with limits the Tenant Improvements and any improvements installed in the Premises by or for any previous tenant of not less than $[ ] per person and $[ ] per occurrence insuring against any the Premises, and all liability other improvements and fixtures that may be constructed or installed on the Premises, in an amount equal to one hundred percent (100%) of the insured with respect full replacement value thereof. If any boilers or other pressure vessels or systems are installed on the Premises, Landlord shall maintain, subject to its premises or arising out reimbursement by Tenant as an Operating Expense under Section 7.1(b), boiler and machinery insurance in an amount equal to one hundred percent (100%) of the maintenance, use, or occupancy thereof and property damage liability insurance with a limit of not less than $[ ] per accident or occurrencefull replacement value thereof. All such bodily injury liability insurance and property damage or liability insurance shall specifically insure the performance by WaterPro of the indemnity agreement as to liability for injury to or death of persons and injury or damage to property set forth in this Agreement. (b) At all times during the term course of this Agreementany major demolition or construction permitted hereunder, DIC or any restoration pursuant to Articles 22 or 23, Tenant shall carry and maintain, at its sole cost and Tenant’s expense, insurance covering “all of the water collectionrisk” builder’s risk insurance, treatmentincluding, distributionbut not limited to, deliverycoverage against loss or damage by fire, metering, and other facilities and equipment owned and maintained by it in accordance with subparagraph 7(a) of this Agreement in an amount not less than [80%] of their full replacement cost from time to time during the term of this Agreement, providing protection against any peril within the classifications “fire and extended coverage,” together with insurance against vandalism and malicious mischief. Policy proceeds shall be used first for , covering improvements in place and all material and equipment at the repair and replacement job site furnished under contract, in an amount equal to one hundred percent (100%) of the property damaged or destroyed. full replacement value thereof. The insurance described in this Section 21.2 shall: (ci) All policies of insurance provided for herein shall be issued insure Landlord, and Landlord’s lenders if required by insurance companies with the best available general policyholder and financial ratingssuch lenders, as rated in the most current available Best’s Insurance Reports, and qualified to do business in the state of Utah, in the names of WaterPro and DIC for the mutual and joint benefit and protection of DIC and WaterPro. Executed copies of such policies of insurance or certificates thereof shall be delivered by each of WaterPro and DIC to the other within 10 days after the Effective Date of this Agreement and thereafter within 30 days prior to the expiration of the term of each expiring policy. All public liability and property damage policies shall their interests may appear; (ii) contain a provision Lender’s Loss Payable Form (Form 438 BFU or equivalent) in favor of Landlord’s lenders and name Landlord, or Landlord’s lender if required by such lender, as the loss payee; (iii) provide for severability of interests, such that DIC, although named as an insured, act or omission of an insured shall nevertheless be entitled to recovery under said policies for any loss occasioned to it not reduce or its servants, agents, and employees by reason of the negligence of WaterPro. All policies of insurance delivered by either WaterPro or DIC to the other must contain a provision that the insurer writing such policy will give to the other 20 days’ notice in writing in advance of any cancellation or lapse or the effective date of any reduction in the amounts of insurance. All public liability, property damage, and other casualty policies shall be written as primary policies, not contributing with and not in excess of coverage that DIC may otherwise carry. (d) Notwithstanding anything to the contrary contained within this section, the obligations of DIC and WaterPro to carry the insurance provided for herein may be brought within the avoid coverage of a so-called “blanket” policy or policies of insurance carried and maintained by DIC and WaterPro together, provided, however, that each shall be named as an insured thereunder as its interest may appear and that the coverage afforded to either party will not be reduced or diminished by reason of the use of such blanket policy of insurance.other insureds;

Insurance; Waiver of Subrogation. 21.1 Commencing prior to Tenant's first entry onto the Premises for purposes of constructing Tenant's Improvements, and continuing at all times during the term of this Lease, Tenant shall maintain, at Tenant's expense and without any cost or expense to Landlord, or any reimbursement or contribution by Landlord, commercial general liability insurance, on an occurrence basis (aor on a claims made basis as long as Tenant makes adequate arrangements for claims made after the expiration of the term or earlier termination of the Lease for occurrences during the term of the Lease), insuring Tenant and Tenant's agents, employees and independent contractors against all bodily injury, property damage, personal injury and other covered loss arising out of the use, occupancy, improvement and maintenance of the Premises and the business operated by Tenant, or any other occupant, on the Premises. Such insurance shall have a minimum combined single limit of liability per occurrence of not less than $3,000,000.00 and a general aggregate limit of $3,000,000.00. Such insurance shall: (i) name Landlord, and Landlord's lenders if required by such lenders, and any management company retained to manage the Premises if requested by Landlord, as additional insureds; (ii) include a broad form contractual liability endorsement insuring Tenant's indemnity obligations under Section 20.1; (iii) include boiler and machinery liability endorsement, and a products completed operations coverage endorsement; (iv) provide that it is primary coverage and noncontributing with any insurance maintained by Landlord or Landlord's lenders, which shall be excess insurance with respect only to losses arising out of Tenant's negligence; and (v) provide for severability of interests or include a cross-liability endorsement, such that an act or omission of an insured shall not reduce or avoid coverage of other insureds. 21.2 At all times during the term of this AgreementLease, WaterPro Tenant shall carry also maintain "all risk" insurance, including, but not limited to, coverage against loss or damage by fire, flood, vandalism, and maintain malicious mischief covering the Premises and all improvements and fixtures therein, whether owned by Landlord or Tenant, and all other improvements and fixtures that may be constructed or installed on the Premises, in an amount equal to one hundred percent (100%) of the full replacement value thereof, subject to commercially reasonable premiums and deductibles. The parties acknowledge that Landlord's investment in the Premises is limited to the Real Property, Land Improvements and Building Shell only and that Tenant, with its own funds, will construct Tenant's Improvements and all other improvements in the Building other than the Building Shell. Landlord and Tenant desire that neither Landlord, any lender of Landlord, nor any other person or entity have any interest in any insurance proceeds attributable to Tenant's Improvements and/or any other improvements constructed by Tenant at its sole cost and expensethat Tenant have exclusive control over any such proceeds (subject to any obligation of Tenant to use proceeds for repairs and reconstruction as set forth herein). To this end, bodily injury liability insurance with limits of not less than $[ ] per person Tenant shall have the right to satisfy its obligations under this section 21.2 by insuring the Land Improvements and $[ ] per occurrence insuring against any Building Shell and all liability other building improvement under one policy of insurance or separately under one or more policies and such policy or policies shall provide that neither Landlord, any Lender of Landlord, nor any other person or entity shall have any interest in, or have the right to exercise any control over, any insurance proceeds attributable to any improvements other than the Land Improvements and the Building Shell and any other (i) Landlord shall be entitled to all proceeds allocable to the Building Shell and Land Improvements, and (ii) (a) if Landlord terminates the Lease, Tenant shall be entitled to all proceeds attributable to Tenant's Improvements and any alterations, additions, and/or improvements subsequently made by Tenant, and (b) if Tenant terminates the Lease, Tenant shall be entitled to the proceeds attributable to Tenant's Improvements and any alterations, additions, and/or improvements subsequently made by Tenant to the extent of the insured with respect unamortized value of Tenant's Improvements, alterations, additions and/or improvements based upon the cost to its premises or arising out construct the same and an amortization period equal to the initial Lease Term. Any deed of trust affecting the Premises and all loan documentation relating thereto shall provide that all insurance proceeds shall be used for the repair and reconstruction of the maintenancePremises pursuant to the terms hereof, useand shall not conflict with the provisions of this Lease concerning the disposition of insurance proceeds. 21.3 At all times during the term of this Lease, or occupancy thereof Tenant shall maintain workers' compensation insurance in accordance with California law and property damage employers' liability insurance with a limit of not less than $[ ] per accident or occurrence. that required by California law. 21.4 All such bodily injury liability insurance and property damage or liability insurance shall specifically insure the performance by WaterPro of the indemnity agreement as to liability for injury to or death of persons and injury or damage to property set forth in this Agreement. (b) At all times during the term of this Agreement, DIC shall carry and maintain, at its sole cost and expense, insurance covering all of the water collection, treatment, distribution, delivery, metering, and other facilities and equipment owned and maintained by it in accordance with subparagraph 7(a) of this Agreement in an amount not less than [80%] of their full replacement cost from time to time during the term of this Agreement, providing protection against any peril within the classifications “fire and extended coverage,” together with insurance against vandalism and malicious mischief. Policy proceeds shall be used first for the repair and replacement of the property damaged or destroyed. (c) All policies of insurance provided for herein referred to in this Article 21 shall be issued written by insurance companies with the best available general policyholder and financial ratings, as rated in the most current available Best’s Insurance Reports, and qualified authorized to do business in California and rated A+VII or better in Best's Insurance Guide, except as otherwise reasonably approved by Landlord. Each insurer referred to in this Article 21 shall agree, by endorsement on the state applicable policy or by independent instrument furnished to Landlord, that it will give Landlord, and Landlord's lenders if required by such lenders, at least ten (10) days' prior written notice by registered mail before the applicable policy shall be cancelled for non-payment of Utahpremium, and thirty (30) days' prior written notice by registered mail before the applicable policy shall be cancelled or altered in coverage, scope, amount or other material term for any other reason (although any failure of an insurer to give notice as provided herein shall not be a breach of this Lease by Tenant). Except as otherwise provided in this Lease, Tenant shall pay all of the names premiums for such insurance and all deductible amounts provided for thereunder. No policy shall provide for a deductible amount in excess of WaterPro that which is commercially reasonable, unless approved in advance in writing by Landlord, which approval shall not be unreasonably withheld. Tenant shall deliver to Landlord, and DIC for the mutual and joint benefit and protection of DIC and WaterPro. Executed to Landlord's lenders if required by such lenders, copies of such policies of the insurance policies, certified by the insurer, or certificates thereof shall be delivered evidencing such insurance policies, issued by each the insurer, together with evidence of WaterPro and DIC payment of the required premiums, prior to the other within 10 days after the Effective Date required date for commencement of this Agreement and thereafter within 30 such coverage. At least thirty (30) days prior to the expiration of the term of each expiring any such policy. All public liability and property damage policies , Tenant shall contain a provision that DIC, although named as an insured, shall nevertheless be entitled deliver to recovery under said policies for any loss occasioned to it or its servants, agentsLandlord, and employees Landlord's lenders if required by reason such lenders, a certificate evidencing renewal, or a certified copy of a new policy or certificate evidencing the same, together with evidence of payment of the negligence of WaterProrequired premiums. All policies of insurance delivered by either WaterPro or DIC If Tenant fails to the other must contain a provision that the insurer writing provide to Landlord any such policy will give or certificate by the required date for commencement of coverage, or within fifteen (15) days prior to the other 20 days’ notice in writing in advance expiration of any cancellation policy, or lapse or to pay the effective date premiums therefor when required, Landlord shall have the right, but not the obligation, to procure said insurance and pay the premiums therefor. Any premiums paid by Landlord shall be repaid by Tenant to Landlord with the next due installment of any reduction in the amounts of insurance. All public liability, property damagerent, and other casualty policies failure to repay the same shall be written have the same consequences as primary policies, not contributing with and not in excess failure to pay any installment of coverage that DIC may otherwise carryRent. (d) Notwithstanding anything 21.5 Tenant may provide the property insurance only required under this Article 21 pursuant to the contrary contained within this section, the obligations of DIC and WaterPro to carry the insurance provided for herein may be brought within the coverage of a so-called “blanket” blanket policy or policies of property insurance carried and maintained by DIC and WaterPro together, Tenant; provided, however, that each shall be named as an insured thereunder as its interest may appear the amount and that the type of coverage afforded to either party will the Landlord shall not be reduced or diminished adversely affected from that which would exist under a separate policy or policies meeting all of the requirements of this Lease by reason of the use of such a blanket policy of property insurance, and provided further that the requirements of this Article 21 are otherwise satisfied. 21.6 Landlord and Tenant each hereby waive any and all rights of recovery against the other or against the officers, directors, partners, employees, agents, subtenants, contractors and representatives of the other, on account of loss or damage to property occasioned to such waiving party or its property or the property of others under its control, to the extent that such loss or damage is caused by or results from risks insured against under any insurance policy which insures such waiving party at the time of such loss or damage (or which would have been insured against under a policy of insurance required to be carried by such waiving party under this Lease had such waiving party carried such insurance), which waiver shall continue in effect as long as the parties' respective insurers permit such waiver under the terms of their respective insurance policies or otherwise in writing. Any termination of such waiver shall be by written notice as hereinafter set forth. Prior to obtaining policies of insurance required or permitted under this Lease, Tenant shall give notice to the insurers that the foregoing mutual waiver is contained in this Lease, and each party shall use its best efforts to cause such insurer to approve such waiver in writing and to cause each insurance policy obtained by it to provide that the insurer waives all right of recovery by way of subrogation against the other party. If such written approval of such waiver of subrogation cannot be obtained from any insurer or is obtainable only upon payment of an additional premium which the party seeking to obtain the policy reasonably determines to be commercially unreasonable, the party seeking to obtain such policy shall notify the other thereof, and the latter shall have twenty (20) days thereafter to either: (i) identify other insurance companies reasonably satisfactory to the other party that will provide the written approval and waiver of subrogation; or (ii) agree to pay such additional premium. If neither (i) nor (ii) are done, the mutual waiver set forth above shall not be operative, and the party seeking to obtain the policy shall be relieved of the obligation to obtain the insurer's written approval and waiver of subrogation with respect to such policy during such time as such policy is not obtainable or is obtainable only upon payment of a commercially unreasonable additional premium as described above. If such policies shall at any subsequent time be obtainable or obtainable upon payment of a commercially reasonable additional premium, neither party shall be subsequently liable for failure to obtain such insurance until a reasonable time after notification thereof by the other party. If the release of either Landlord or Tenant, as set forth in the first sentence of this Section 21.9, shall contravene any law with respect to exculpatory agreements, the liability of the party in question shall be deemed not released but shall be secondary to the other's insurer. 21.7 Any property management firm retained by Landlord to manage the Premises shall be required to maintain commercial general liability insurance with such limits of liability as are commercially reasonable naming Tenant as an additional insured. 21.8 It is understood and agreed that insurance policies required under this Article 21 may be blanket policies covering other locations operated by Landlord or Tenant, or by their affiliates or subsidiaries, subject to the reasonable approval of the other party. 21.9 Notwithstanding anything in this Section 21 or 22 to the contrary, in the event damages attributable to uninsured losses and deductibles relating to earthquake and flood losses exceed twenty percent (20%) of the replacement cost of the Premises, either Landlord or Tenant may terminate this Lease in the manner and within the time periods set forth in Article