CONTROL, A WRITTEN STATEMENT
3
("STATEMENT") SETTING OUT IN REASONABLE DETAIL THE AMOUNT OF OPERATING COSTS AND
REAL ESTATE TAXES FOR THE PRECEDING CALENDAR YEAR.
IF THE AGGREGATE OF MONTHLY
INSTALLMENTS OF OPERATING COSTS AND/OR REAL ESTATE TAXES ACTUALLY PAID BY TENANT
TO LANDLORD DIFFER FROM THE AMOUNT DUE IN THE STATEMENT, THEN, AS THE CASE MAY
BE, TENANT SHALL PAY THE DIFFERENCE TO LANDLORD OR LANDLORD SHALL ISSUE A CREDIT
TO TENANT AGAINST THE RENT REMAINING TO BE PAID HEREUNDER FOR THE DIFFERENCE, OR
IF NO RENT THEN REMAINS TO BE PAID, REFUND THE DIFFERENCE TO TENANT, WITHOUT
INTEREST OR PENALTY, WITHIN THIRTY (30) DAYS AFTER THE DATE OF DELIVERY OF THE
STATEMENT.
HOWEVER, LANDLORD'S FAILURE TO PROVIDE SAID STATEMENT BY THE DATE
SET FORTH HEREIN SHALL IN NO WAY EXCUSE TENANT FROM ITS OBLIGATION TO PAY ITS
PRO-RATA SHARE OF OPERATING COSTS AND REAL ESTATE TAXES OR CONSTITUTE A WAIVER
OF LANDLORD'S RIGHT TO BILL AND COLLECT SUCH PRO-RATA SHARE OF OPERATING COSTS
AND REAL ESTATE TAXES FROM TENANT.
(III)
IN THE EVENT TENANT DISPUTES THE AMOUNTS SET FORTH IN THE
STATEMENT SET FORTH IN SECTION 5(A)(II) ABOVE, UPON NO LESS THAN TEN (10)
BUSINESS DAYS' PRIOR WRITTEN NOTICE TO LANDLORD, TENANT OR TENANT'S IN-HOUSE
EMPLOYEES, OR EXTERNAL AUDITORS WHO ARE CERTIFIED PUBLIC ACCOUNTANTS SHALL HAVE
THE RIGHT TO EXAMINE LANDLORD'S BOOKS AND RECORDS AS TO AMOUNTS DUE IN THE
STATEMENT.
ANY EXAMINATION IS SUBJECT TO A CONFIDENTIALITY AGREEMENT EXECUTED
BY TENANT AND TENANT'S IN-HOUSE EMPLOYEES OR EXTERNAL AUDITORS, AS APPLICABLE,
AND SHALL OCCUR AT THE LOCATION WHERE SAID RECORDS ARE MAINTAINED (IF SUCH
RECORDS ARE GENERALLY MAINTAINED AT THE BUILDING OR ELSEWHERE IN THE DENVER,
COLORADO METROPOLITAN AREA, THEY WILL BE MADE AVAILABLE IN THE DENVER, COLORADO
METROPOLITAN AREA) DURING NORMAL BUSINESS HOURS.
TENANT SHALL HAVE NINETY (90)
CALENDAR DAYS AFTER DELIVERY OF THE STATEMENT SET FORTH IN SECTION 5(A)(II)
ABOVE TO PROVIDE LANDLORD WITH WRITTEN NOTICE OF EXCEPTION OF ANY ITEM IN THE
STATEMENT.
UNLESS TENANT PROVIDES SAID WRITTEN NOTICE OF EXCEPTION DETAILING
ANY DISPUTED CHARGES TO LANDLORD WITHIN SAID TIME, TENANT SHALL CONCLUSIVELY BE
DEEMED TO HAVE ACCEPTED THE ACCURACY OF THE STATEMENT AND TO HAVE WAIVED ANY
RIGHT TO CLAIM ANY READJUSTMENT IN CONNECTION THEREWITH.
IF TENANT MAKES SUCH
TIMELY WRITTEN NOTICE OF EXCEPTION, A STATEMENT AS TO THE PROPER AMOUNT OF ANY
ITEM SET FORTH IN TENANT'S WRITTEN NOTICE OF EXCEPTION SHALL BE MADE BY A
REPUTABLE ACCOUNTING FIRM AND PAID FOR BY TENANT.
UNDER NO CIRCUMSTANCES SHALL
TENANT CONDUCT A REVIEW OF LANDLORD'S BOOKS AND RECORDS WHEREBY THE PERSON OR
FIRM PERFORMING THE REVIEW OPERATES ON A CONTINGENCY FEE OR SIMILAR PAYMENT
ARRANGEMENT OR IF THERE EXISTS AN UNCURED EVENT OF DEFAULT AS DEFINED HEREIN, BY
TENANT.
(B)
OPERATING COSTS:
(I)
OPERATING COSTS SHALL BE DEEMED TO INCLUDE ALL COSTS WHICH, FOR
FEDERAL TAX PURPOSES, MAY BE EXPENSED RATHER THAN CAPITALIZED AND WHICH LANDLORD
WILL INCUR IN OWNING, MAINTAINING AND OPERATING THE BUILDING OR THE LAND,
EXCLUSIVE OF REAL ESTATE TAXES,