Health Net 2009 Annual Report Download - page 439

cannot mutually agree to an independent certified public accountant, then the parties agree that Landlord shall choose an independent
certified public accountant to conduct the certification as to the proper amount of Tenant’s Proportionate Share of Operating Costs
due by Tenant for the period in question; provided, however, such certified public accountant shall not be the accountant who
conducted Landlord’s initial calculation of Operating Costs to which Tenant is now objecting. Such certification shall be final and
conclusive as to all parties. If the certification reflects that Tenant has overpaid Tenant’s Proportionate Share of Operating Costs for
the period in question, then Landlord shall credit such excess to Tenant’s next payment of Operating Costs or, at the request of
Tenant, promptly refund such excess to Tenant and conversely, if Tenant has underpaid Tenant’s Proportionate Share of Operating
Costs, Tenant shall promptly pay such additional Operating Costs to Landlord. Tenant agrees to pay the cost of such certification and
the investigation with respect thereto and no adjustments in Tenant’s favor shall be made unless it is determined that Landlord’s
original statement was in error in Landlord’s favor by more than three percent (3%), in which case Landlord shall pay the cost of the
certification and shall reimburse all reasonable Tenant audit costs up to a maximum amount of $3,500.00. Tenant waives the right to
dispute any matter relating to the calculation of Operating Costs or Additional Rent under this Paragraph 3 if any claim or dispute is
not asserted in writing to Landlord within one (1) year after delivery to Tenant of the original billing statement with respect thereto.
Landlord shall maintain in a safe and orderly manner all of its records pertaining to the Additional Rent payable by Tenant pursuant to
this Article 3 for a period of eighteen (18) months after the completion of each calendar year of the Lease Term and shall retain
records for the Base Year for the duration of this Lease. Tenant may include in its audit of the records for any such calendar year a
review of the records for Operating Costs incurred in the Base Year.
(j) Even though the Lease Term has expired and Tenant has vacated the Premises, when the final determination is made of
Tenant’s Proportionate Share of excess Operating Costs for the year in which this Lease terminates, Tenant shall immediately pay any
increase due over the estimated Operating Costs paid, and conversely, any overpayment made by Tenant shall be promptly refunded
to Tenant by Landlord.
(k) Tenant shall not be obligated to pay for Controllable Operating Costs in any calendar year to the extent they have increased
by more than five percent (5%) over the immediately preceding calendar year. For purposes of this Lease, Controllable Operating
Costs shall mean all Operating Costs except for Real Estate Taxes, insurance premiums and utility costs and all costs and expenses for
security for the Building and the Project. Controllable Operating Costs shall be determined on an aggregate basis and not on an
individual basis, and the cap on Controllable Operating Costs shall be determined on Operating Costs as they have been adjusted for
vacancy or usage pursuant to the terms of the Lease.
(l) The Basic Annual Rent, as adjusted pursuant to Paragraphs 2, 3 and 7, and other amounts required to be paid by Tenant to
Landlord hereunder, are sometimes collectively referred to as, and shall constitute, “Rent”.
(a) Landlord’s sole construction obligation under this Lease is set forth in the Work Letter attached hereto as Exhibit B.
(b) Any alterations, additions, or improvements made by or on behalf of Tenant to the Premises (“Alterations”) shall be subject
to Landlord’s prior written consent. Notwithstanding the foregoing sentence to the contrary, Tenant need not obtain Landlord’s
consent for any minor, cosmetic non-structural Alterations totaling less than $50,000 in any calendar year during the Lease Term,
provided Tenant otherwise complies with the provisions of this Paragraph 4 in installing such Alterations. Tenant shall cause, at its
sole cost and expense, all Alterations to comply with insurance requirements and with Laws and shall construct, at its sole cost and
expense, any alteration or modification required by Laws as a result of any Alterations. All Alterations shall be constructed at
Tenant’s sole cost and expense and in a good and workmanlike manner by contractors reasonably acceptable to Landlord and only
good grades of materials shall be used. All plans and specifications for any Alterations shall be submitted to Landlord for its approval,
which approval will not be unreasonably withheld, delayed or conditioned. Landlord may monitor construction of the Alterations.
Landlord’s right to review plans and specifications and to monitor construction shall be solely for its own benefit, and Landlord shall
have no duty to see that such plans and specifications or construction comply with applicable laws, codes, rules and regulations.
Landlord shall have the right, in its sole discretion, to instruct Tenant to remove those improvements or Alterations from the Premises
which
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4. IMPROVEMENTS AND ALTERATIONS