INCURRED IN CONNECTION WITH
NEGOTIATIONS WITH TENANT AND SALARIES FOR LANDLORD'S EMPLOYEES;
(14)
COSTS FOR PRE-EXISTING ENVIRONMENTAL CONDITIONS
AS SET FORTH IN SECTION 3.4 OF THIS LEASE;
(15)
BONUSES OR OTHER SPECIAL COMPENSATION EXCEPT FOR
INCENTIVES SET FORTH IN THE GENERAL CONTRACT SUCH AS A SHARING OF ANY COST
SAVINGS BELOW THE GUARANTEED MAXIMUM PRICE;
(16)
EXCESS COST OF CAUSING COMPLIANCE WITH
APPLICABLE LAWS AS PROVIDED IN SECTION 3.2(A) OF THIS LEASE;
(17)
ANY MANAGEMENT FEE PAYABLE TO LANDLORD OR AN
AFFILIATE OF LANDLORD EXCEPT FOR THE DEVELOPMENT FEE PAYABLE PURSUANT TO CLAUSE
(10) OF SECTION 5.1(A) HEREOF;
(18)
INSURANCE AND TAXES PAID BY TENANT PURSUANT TO
SECTION 5.8 HEREOF; AND
(19)
ANY OTHER COST OR EXPENSE NOT SPECIFICALLY
IDENTIFIED IN CLAUSES (1) THROUGH (14) OF SECTION 5.1(A) ABOVE.
(C)
LANDLORD SHALL KEEP DETAILED AND ACCURATE
BOOKS AND RECORDS (INCLUDING FINANCIAL RECORDS) IN CONNECTION WITH THE
CONSTRUCTION OF THE PREMISES, AND IN ACCORDANCE WITH CUSTOMARY STANDARDS FOR
SIMILAR PROJECTS.
LANDLORD SHALL PROVIDE TO TENANT A SCHEDULE SHOWING THE
CALCULATION OF TOTAL PROJECT COSTS AND TENANT OR ITS ARCHITECTS OR OTHER AGENTS
SHALL HAVE THE RIGHT TO INSPECT AND AUDIT LANDLORD'S BOOKS AND RECORDS RELATING
THERETO, SO LONG AS TENANT REQUESTS SUCH INSPECTION OR AUDIT WITHIN ONE HUNDRED
TWENTY (120) DAYS AFTER RECEIPT FROM LANDLORD OF LANDLORD'S CALCULATION OF TOTAL
PROJECT COSTS.
TENANT SHALL PAY TO LANDLORD THE MONTHLY BASE RENT BASED UPON
LANDLORD'S CALCULATION OF TOTAL PROJECT COSTS BEGINNING WITH THE COMMENCEMENT
DATE.
IN THE EVENT THAT TENANT'S INSPECTION AND/OR AUDIT OF LANDLORD'S BOOKS
AND RECORDS DETERMINES THAT TOTAL PROJECT COSTS HAVE BEEN MISCALCULATED, (1)
THERE SHALL BE AN APPROPRIATE ADJUSTMENT OF MONTHLY BASE RENT PREVIOUSLY PAID
AND A PAYMENT BY EITHER LANDLORD TO TENANT OR TENANT TO LANDLORD OF THE AMOUNT
OF ANY OVERPAYMENT OR UNDERPAYMENT, AS THE CASE MAY BE AND (2) IF LANDLORD
OVERSTATED TOTAL PROJECT COSTS BY MORE THAN THREE PERCENT (3%), THEN LANDLORD
SHALL PAY ALL OF TENANT'S REASONABLE OUT-OF-POCKET COSTS OF ITS AUDIT OR
INSPECTION PLUS INTEREST ON EXCESS RENT PAID BY TENANT AT A RATE OF NINE AND
FIVE-TENTHS PERCENT (9.5%) PER ANNUM.
IF THE PARTIES ARE UNABLE TO AGREE UPON
AN ADJUSTED MONTHLY BASE RENT, THE PARTIES AGREE
16
that arbitration shall constitute the exclusive remedy for settlement of any
such dispute.
If either Landlord or Tenant desires to exercise its right
pursuant to this paragraph, such party shall deliver written demand for
arbitration to the other party, setting out the basis for the controversy.
Any
arbitration proceeding undertaken pursuant to this paragraph shall be held in
front of a retired judge working with JAMS or another similar group, or if no
such groups exists, a single neutral arbitrator shall be chosen by mutual
agreement or, if the parties fail to agree, by the presiding judge of the San
Diego Superior Court upon ex parte application.
The arbitration shall take
place in San Diego, California.
The decision of the arbitrator shall be
conclusive, final and binding upon Landlord and Tenant.
Judgment