Common Areas. 5.1 Tenant, and it licensees, concessionaires, employees and customers shall have the non-exclusive right to use the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant: 5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. 5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (First State Financial Corp/Fl)
Common Areas. 5.1 TenantAll areas within the Project which are available for the common use of tenants of the Project and which are not leased or held for the exclusive use of Tenant or other tenants, including, but not limited to, parking areas, driveways, sidewalks, loading areas, access roads, corridors, monument signage, landscaping, planted areas, lobbies, corridors, hallways, elevator foyers, restrooms, mail rooms, mechanical and electrical rooms, janitorial closets, and it licensees, concessionaires, employees and customers shall have other similar facilities used by tenants or for the benefit of tenants on a non-exclusive right to use basis. Except as otherwise provided in this Lease, the manner in which the Common Areas are maintained and operated shall be at the reasonable discretion of Landlord, provided that Landlord shall maintain and operate the same in a first class manner substantially consistent with the Comparable Buildings and the use thereof shall be subject to such reasonable, non-discriminatory rules, regulations and restrictions as constituted Landlord may make from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable which rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not be unreasonably or discriminatorily modified or enforced in a manner which shall materially interfere with the rights conduct of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of use from the Premises or the Shopping Center, (2) reduce Tenant’s use of or impede access to the Premises or the Shopping Center, Project or (3) reduce the proximity of the Premises to the parking areas or servicing the impact the convenience of the parking facilities to the Premises or block Tenants drive through facilitysame. The parking ratio for the Shopping Center at the Rental Commencement Date will So long as Landlord provides Tenant with prior written notice (provided that such notice shall not be 5.41 parking spaces for each 1,000 rentable square foot of space required in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency), be designated by prior written notice Landlord, in Landlord’s reasonable discretion, reserves the right to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rentclose temporarily, as herein providedmake alterations or additions to, its share or change the location of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance elements of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping Project and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is so long as such changes do not separately metered change the nature of the Project to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, something other than taxes and insurance, for Landlorda first class office building project or materially affect Tenant’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears for the permitted use, or Tenant’s ingress to or egress from the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of Project, Building or the Premises shall be determined based on or the “as built” site plan approved by parking areas servicing the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensessame.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 2 contracts
Sources: Office Lease (Ziprecruiter, Inc.), Office Lease (Ziprecruiter, Inc.)
Common Areas. 5.1 (a) As used in this Lease, the term Common Areas shall mean all areas and facilities within the Project that are not designated by Landlord for the exclusive use of Tenant, Landlord, or any other tenant of the Project, including but not limited to pedestrian sidewalks, landscaped areas, common bathrooms, lobby areas, parking areas, incinerators, interior stairs and it licenseesbalconies and similar areas and improvements, concessionairesthe truckways, employees roadways, loading docks, loading areas, railroad tracks, roofs, common areas and customers delivery yards.
(b) Landlord shall have exclusive control over the Common Areas, provided that Tenant and Tenant’s employees, agents, suppliers, shippers, customers, and invitees shall have the non-exclusive nonexclusive right to use the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants during the term of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Areathis Lease, subject to such reasonable the rights reserved by Landlord under this Lease and further subject to all rules and regulations as Landlord may governing the use of the Common Areas from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request issued by Landlord, Tenant shall have thirty .
(30c) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion right, without it constituting an actual or constructive eviction of Tenant, without any abatement of rent under this Lease and without notice (unless so stated below) to or the consent of Tenant, to
(i) charge Tenant ten Dollars upon five ($10.005) per day per car parked in days notice to Tenant, close any part of the Common Areas other than those designatedto the extent necessary in Landlord’s opinion to prevent the accrual of any prescriptive rights, and/or provided, however, that access by Tenant shall not be unreasonably disrupted, and Landlord shall, to the maximum extent possible, avoid any disruption to Tenant’s access that exceeds four (4) hours;
(ii) have such car(supon five (5) physically removed from the Shopping Center at days notice to Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may , temporarily close any part of the parking facilities or other portions of the Common Areas to repair and maintain them or for such minimal periods of time as may any other reasonable purpose, provided, however, that access by Tenant shall not be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous propertyunreasonably disrupted, (ii) repairs or alterations in or and Landlord shall, to the Common Areas or maximum extent possible, avoid any disruption to any sewersTenant’s access that exceeds four (4) hours;
(iii) upon five (5) days notice to Tenant, utility facilities or distribution lines located within change the nature of the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as including without limitation changes in the use location, size, shape, and number of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Centerdriveways, provided entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, and walkways, provided, however, that Landlord shall use reasonable its best efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take avoid any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for upon Tenant’s use and its invitees which facilities shall of the Project;
(iiv) cause no net reduction in Tenant’s parking space allocation, upon five (ii5) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written days notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees , eliminate from or add to pay as additional rent, as herein the Project any land or improvement provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”)however, including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration avoid any impact upon Tenant’s use of bills for services rendered the Project;
(v) upon five (5) days notice to Tenant, designate additional property outside the Shopping Center and to any other property owned by Landlord or an affiliate boundaries of Landlord. In the event there exists a conflict as to an expense which is specified Project to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% a part of the CAM Expenses actually incurred by Landlord. Capital expenditures required due Common Areas;
(vi) remove unauthorized persons from the Project;
(vii) upon five (5) days notice to changes in applicable governmental Tenant, change the name or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area address of the Premises bears to Building or the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety Project;
(90viii) upon five (5) days after notice to Tenant, use or allow the commencement use of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such yearwhile engaged in maintenance, such statement repairs, construction, or other alterations to be prepared the Project; and
(ix) perform any other acts and make other changes or alterations in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed and the Project as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord may deem reasonably appropriate, upon notice to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, a reasonable time prior to taking such action or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, making such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenseschanges.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 2 contracts
Common Areas. 5.1 TenantIn addition to the Premises, and it licensees, concessionaires, employees and customers Tenant shall have the use of those certain common areas designated by the Landlord from time to time on the Property; such areas shall include, but not be limited to, parking areas, access roads and facilities, interior corridors, sidewalks, driveways and landscaped and open areas (collectively, “Common Areas”). The use of the Common Areas shall be for the non-exclusive right to use the Common Areas as constituted from time to timeof Tenant and Tenant’s employees, such use to be agents, suppliers, customers and patrons, in common with Landlord, Landlord and all other Tenants tenants of Shopping Center the Property and other Tenants of Shopping Center and all such other persons entitled to whom Landlord has previously granted, or may hereinafter grant, rights of usage; provided that such nonexclusive use the Common Area, shall be expressly subject to such reasonable rules and regulations which may be adopted by the Landlord from time to time, so long as such rules and regulations do not adversely affect Tenant’s use of the Premises and are uniformly enforced. Tenant shall not be entitled to use the Common Areas for storage of goods, vehicles, refuse or any other items. Landlord may reserves the right to alter, modify, enlarge, diminish, reduce or eliminate the Common Areas from time to time prescribein its sole discretion; provided, provided that Landlord shall provide Tenant however, it does not unreasonably and materially interfere with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires ’s use and employees be parked in specific portions occupancy of the Common AreasPremises or access to and from the Premises. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right to modify Common Areas, in its sole discretion order to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designatedimplement new, and/or (ii) have such car(s) physically removed necessary security measures; provided, however, it does not unreasonably and materially interfere with Tenant’s use and occupancy of the Premises or access to and from the Shopping Center at Tenant’s expense without any liability whatsoever to LandlordPremises. If Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods storage of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings any items, Tenant shall pay all fines imposed upon either Landlord or Tenant by any fire, building or other improvements within the Shopping Center or contiguous propertyregulatory body, (ii) repairs or alterations in or and Tenant shall pay all costs incurred by Landlord to clear and clean the Common Areas or to any sewersand dispose of such items, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect including but not limited to, the Common Areas as in the use a disposal fee of good business judgment the Landlord shall reasonably determine to be appropriate twenty-five dollars ($25.00) for the Shopping Centereach pallet or other container and fifty dollars ($50.00) for each drum, provided however, that Landlord shall use reasonable efforts not to unduly interfere together with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areasadditional costs for testing and special disposal, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesrequired.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Truck Hero, Inc.)
Common Areas. 5.1 TenantA. For purposes of this Lease “Common Areas” shall mean all areas, improvements, space, equipment and special services in or at the Complex provided by Landlord for the common or joint use and benefit of tenants, customers, and it licenseesother invitees, concessionairesincluding without limitation garage access roads, employees driveways, entrances and customers exits, retaining walls, landscaped areas, truck serviceways or tunnels, loading docks, pedestrian walk-ways, atriums, walls, courtyards, concourses, stairs, ramps, sidewalks, washrooms, signs identifying or advertising the Complex, maintenance buildings, utility buildings, maintenance and utility rooms and closets, hallways, lobbies, elevators and their housing and rooms, common window areas, walls and ceilings in Common Areas, and trash or rubbish areas.
B. Provided no event of default under this Lease in respect of Tenant has occurred and is continuing, Tenant shall have the non-exclusive right be entitled to use the Common Areas as constituted from time to timeuse, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons others entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect tothereto, the Common Areas as in may be designated from time to time by Landlord, subject however to the terms and conditions of this Lease and to the rules and regulations for the use thereof as may be prescribed from time to time by Landlord. If the size or configuration of good business judgment the Common Areas is diminished or altered, and as long as such diminution or alteration does not materially adversely affect access to the Building, the Premises or the Tenant’s Parking Spaces, Landlord shall reasonably determine not be liable to Tenant therefor, nor shall Tenant be appropriate for entitled to any compensation or diminution or abatement of Rent, nor shall such diminution or alteration of the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with Common Areas be considered a constructive or disrupt Tenant’s businessactual eviction. Notwithstanding anything to the contrary contained in this leaseherein, under no circumstances shall Landlord shall not be permitted to take liable for any action with respect to the Common Areas and/or parking areas alteration or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting that is beyond the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation reasonable control of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent nor shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid Tenant be entitled to any person, firm compensation or corporation related to diminution or otherwise affiliated with Landlord or any general partner, officer, director or shareholder abatement of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either Rent as a corporationresult thereof, partnership, trust nor shall such diminution or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct alteration of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment considered a constructive or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. actual eviction.
C. Landlord agrees to retain cause the books main water valve and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days other components of the result of water-based fire protection and fire alarm systems for the audit. Any discrepancy shall Building to be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does inspected not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly less frequently than required by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the City of Richmond Fire ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇▇, to perform any repairs and make any replacements recommended during such costs or expenses incurred or payments which are made inspections and to comply with the provisions of NFPA 25 and 72 (Standards for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems and National Fire Alarm Code, respectively) promulgated by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant National Fire Protection Association and collectible by Landlord as suchall successors codes and standards.
Appears in 2 contracts
Sources: Deed of Lease (Xenith Bankshares, Inc.), Deed of Lease (Xenith Bankshares, Inc.)
Common Areas. 5.1 The term “Common Areas” is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Building Complex that are provided and designated by the Landlord from time to time for the general non-exclusive use of Landlord, Tenant and other tenants of the Building Complex and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, utility rooms, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas. Landlord hereby grants to Tenant, for the benefit of Tenant and it licenseesits employees, concessionairessuppliers, employees shippers, contractors, customers and customers shall have invitees, during the Primary Lease Term the non-exclusive right to use use, in common with others entitled to such use, the Common Areas as constituted they exist from time to time, such subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any rules and regulations or restrictions governing the use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled the Building Complex. Under no circumstances shall the right therein granted to use the Common AreaAreas be deemed to include the right to store any property, subject temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Landlord or Landlord’s designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord. Landlord or such other person(s) as Landlord may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulationrespect thereto. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right right, in its Landlord’s sole discretion discretion, from time to time: (i) charge Tenant ten Dollars ($10.00) per day per car parked to make changes to the Common Areas, including, without limitation, changes in any Common Areas other than those designatedthe location, and/or size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas and walkways; (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without to close temporarily any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time maintenance purposes so long as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or reasonable access to the Common Areas or Premises remains available; (iii) to any sewers, utility facilities or distribution lines located within designate other land outside the boundaries of the Building Complex to be a part of the Common Areas, ; (iiiiv) preventing the public from obtaining prescriptive rights in or to add additional building and improvements to the Common Areas, (iv) security reasons, or ; (v) doing to use the Common Areas while engaged in making additional improvements, repairs or alterations to the Building Complex, or any portion thereof; and performing (vi) to do and perform such other acts (whether similar or dissimilar to the foregoing) and make such other changes in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by and Building Complex as Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In additionmay, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination exercise of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed sound business judgment deem to be CAM Expenses payable by Tenant and collectible by Landlord as suchappropriate.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Applied Films Corp), Single Tenant Lease (Applied Films Corp)
Common Areas. 5.1 Landlord hereby grants to Tenant, for the benefit of Tenant and it licenseesits employees, concessionairessuppliers, employees shippers, customers and customers shall have invitees, during the term of this Lease, the non-exclusive right to use use, in common with others entitled to such use, the Common Areas as constituted they exist from time to time, subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Building or the Complex and subject to the requirements and limitations on the use of parking areas. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas. Any such use storage shall be permitted only by the prior written consent of Landlord or Landlord's designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord. If Landlord establishes Common Facilities (hereinafter defined), then Tenant may use, in common with Landlord's employees, other Tenants of Shopping Center contractors, agents, invitees, and other Tenants tenants, those portions of Shopping Center the Building that are designated by Landlord from time to time as be available for common use (the "Common Facilities"). The Common Facilities include certain conference and other persons entitled training rooms designated by Landlord from time to time. Notwithstanding the foregoing, Tenant's use of any Common Facilities shall be subject to such rules regarding scheduling and priority as may be promulgated by Landlord from time to time. Tenant shall cause its employees, invitees, guests and contractors to use the Common AreaFacilities (i) in a clean, subject safe and sanitary manner, (ii) in such a way as to minimize interference with any other party's use of any Common Facilities or its occupancy in the Building, and (iii) comply with such reasonable rules and regulations as now or hereafter in existence or established by Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires for the common and employees be parked in specific portions shared use of the Common AreasFacilities. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list The cost of the license numbers of all automobiles operated Common Facilities shall be included in Operating Expenses except for expenses directly incurred by Tenant in connection with its use, which shall be paid by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have reserves the right in its sole and absolute discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designatedclose, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use reduce or expand the Common Areas. Landlord may temporarily close Facilities at any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensestime.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 2 contracts
Sources: Office Lease (Kronos Bio, Inc.), Office Lease (Kronos Bio, Inc.)
Common Areas. 5.1 4.12.1. Tenant shall have and Landlord hereby grants to Tenant, and it licenseesits employees, concessionairescustomers, employees patrons, suppliers, licensees and customers shall have invitees, during the Term of this Lease, a non-exclusive right revocable license to use and enjoy the Common Areas as constituted from time to time, such use to be of DOWNTOWN DISNEY(R) in common with LandlordLandlord and all other tenants or occupants of any property in the vicinity of the Site, and their respective employees, customers, patrons, suppliers, licensees and invitees; subject, however at all times to the Operating Conditions, Rules and Regulations and to any other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations promulgated by Landlord and to the terms and provisions of this Lease. "Common Areas" shall mean, as they may from time to time exist, those portions of DOWNTOWN DISNEY(R) which are exclusive of gross leaseable area and other areas which are set aside as the exclusive use areas of Landlord or its designees and shall include, without limitation, the driveways, entrances and exits, parking areas, roadways, pedestrian passageways, bridges, sidewalks, walkways, roofs, loading docks, delivery areas, landscaped and streetscaped areas, and all other areas or improvements which may be provided by Landlord for the general use of tenants of DOWNTOWN DISNEY(R) and their agents, employees, and customers. Landlord shall be responsible for the operation, management, and maintenance of the Common Areas. The manner in which the Common Areas shall be maintained and expenditures in connection therewith shall be at the sole discretion of Landlord. Tenant may not place anything, including, without limitation, vehicles, within the Common Areas without the prior approval of Landlord which it may withhold in its sole and absolute discretion. Landlord shall at all times have the right to utilize the Common Areas for promotions, exhibits, outdoor shows, displays, other product shows, the leasing of kiosks and food facilities, landscaping, decorative items, and any other use which, in Landlord's sole judgment, tends to attract customers to, or benefit the customers or tenants of DOWNTOWN DISNEY(R). * Tenant acknowledges that the wine bar (and related furniture, fixtures and equipment) currently located across from the Premises is not a kiosk or cart and is not affected by the foregoing provision. Without the same constituting or being considered an eviction or disturbance of Tenant's quiet enjoyment or possession of the Premises, Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of close any such rule area for repairs or regulation. Landlord may require that automobiles owned alterations, to prevent a dedication of or the accrual of prescriptive rights therein, or for any other reason permitted by TenantLaw, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant closure shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or entitle Tenant to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use abatement of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than onceRent. Landlord shall use its best efforts in good faith to effect an equitable proration at all times during the term of bills for services rendered this Lease, subject to the Shopping Center provisions hereof, have the sole and to any other property owned by Landlord or an affiliate exclusive management and control of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the all Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books may at any time and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect during the term hereof, restrain any use or occupancy thereof that Landlord deems necessary or appropriate in Landlord’s books 's sole discretion. Tenant shall keep said areas free and records relating to CAM Expenses, and/or to have such books and records audited at clear of any obstructions created or permitted by Tenant or resulting from Tenant’s expense by a certified public accountant designated by Tenant's operations. Any audit that discloses a discrepancy of more than five percent (5%) If in the annual CAM Expenses shall be at opinion of Landlord’s expense , in its sole and Landlord shall reimburse Tenant for absolute discretion, unauthorized persons are using any of such cost (including reasonable attorneys’ fees) within thirty (30) days areas by reason of the result presence of Tenant in DOWNTOWN DISNEY(R), Tenant, upon demand of Landlord, shall restrain such unauthorized use by appropriate proceedings. Nothing herein shall affect the audit. Any discrepancy shall be promptly corrected by a payment right of Landlord at any time to remove any such unauthorized person from such areas or to prohibit the use of any shortfall to Landlord such areas by Tenant within thirty (30) days after unauthorized persons. * - Redacted Text - Confidential treatment requested; omitted portions have been filed separately with the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding Securities and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM ExpensesExchange Commission.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 2 contracts
Sources: Lease Agreement (Build a Bear Workshop Inc), Lease Agreement (Build a Bear Workshop Inc)
Common Areas. 5.1 TenantAs used in this Lease, the term “Common Areas” means, the parking areas, walkways, landscaped areas, roadways, and it licenseesall other areas and facilities now or hereafter at the Building and intended for common use. Without advance notice to Tenant (except with respect to matters covered by subsection (a) below) and without any liability to Tenant in any respect, concessionaires, employees and customers shall Landlord will have the non-exclusive right to to:
(a) establish and enforce reasonable rules and regulations concerning the maintenance, management, use and operation of the Common Areas;
(b) close off any of the Common Areas as constituted from time to time, such use whatever extent required in the opinion of Landlord and its counsel to be in common with Landlord, other Tenants prevent a dedication of Shopping Center and other Tenants any of Shopping Center and other persons entitled to use the Common AreaAreas or the accrual of any rights by any person or the public to the Common Areas, provided such closure does not deprive Tenant of the substantial benefit and enjoyment of the Demised Premises.
(c) temporarily close any of the Common Areas for maintenance, alteration or improvement purposes, provided that such closure does not substantially interfere with Tenant’s ability to conduct its business;
(d) select, appoint or contract with any person for the purpose of operating and maintaining the Common Areas, subject to such reasonable rules terms and regulations at such rates as Landlord may from time to time prescribedeems reasonable and proper;
(e) change the size, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice use, shape or nature of any such rule Common Areas, provided such change does not deprive Tenant of the substantial benefit and enjoyment of the Demised Premises. So long as Tenant is not thus deprived of the substantial use and benefit of the Demised Premises, Landlord will also have the right at any time to change the arrangement or regulationlocation of, or both, or to regulate or eliminate the use of parking spaces or other public conveniences at the Building, without incurring any liability to Tenant or entitling Tenant to any abatement of rent and such action will not constitute an actual or constructive eviction of Tenant; and
(f) erect one or more additional buildings on the Common Areas, expand the existing Building to cover a portion of the Common Areas, convert Common Areas to a portion of the Building, convert any portion of the Building (excluding the Demised Premises) to Common Areas. Landlord may require that automobiles owned by TenantUpon erection of any additional buildings or change in Common Areas, its licensees, concessionaires and employees the portion of the property upon which buildings or structures have been erected will no longer be parked in specific portions deemed to be a part of the Common Areas. Upon reasonable written request by LandlordProvided, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to receives the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to requisite municipal and/or other governmental approval for the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to erection of said building and the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility providing of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the corresponding parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesrelation thereto.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 2 contracts
Sources: Office Lease Agreement, Office Lease Agreement (Acacia Communications, Inc.)
Common Areas. 5.1 Tenanta. As used in this Lease, "common areas" means all areas, facilities and it licenseesimprovements provided, concessionaires, employees and customers shall have the non-exclusive right to use the Common Areas as constituted from time to time, within the Project for the mutual convenience employees, customers and invitees, which shall include, without limitation, roadways, entrances, sidewalks, stairways, elevators, corridors and halls, delivery areas, landscaped areas, public restrooms and comfort stations and parking areas.
b. Tenant shall have the right, during the Lease term, to use the common areas, along with the other tenants of the Building, on a non-exclusive basis. Landlord shall at all time have the right to determine the nature and extent of the common areas, whether the same be surface, underground, or deck, and to make such changes, rearrangements, additions or reductions, which in Landlord's reasonable opinion, are deemed desirable and in the best interest of all person using the common areas, or which are required by any federal, state or municipal law, rule, ordinance, regulation, guideline or order, including, but not limited to, changes, rearrangements, additions or reductions involving location, relocation or enlargement, reduction of addition of accommodations for access to the Building.
c. Landlord shall have the sole and exclusive control and management of the common areas and may, at any time, exclude and restrain any person from use or occupancy thereof, excepting tenants of the Building and bona fide invitees of Landlord or tenants of the Building who make use of said common areas in accordance with the rules and regulations established by Landlord. The rights of Tenant and in to the common areas shall at all times be subject to the rights of others to use the same in common with LandlordTenant, and it shall be the duty of Tenant to keep all of said common areas free and clear of any obstructions created or permitted by Tenant or resulting from Tenant's operation. Landlord may, at any time, close any or all portions of the common areas to make repairs, to construct additions or improvements, to discourage non-customer parking, pt prevent a dedication of said common areas or part thereof ro the accrual of any rights to any person or to the public therein, and to do and perform such other Tenants acts in and to the common areas as Landlord shall determine to be advisable to improve and maintain the common areas for the convenience and use by tenants of Shopping Center the Building and other Tenants of Shopping Center their employees, agents, customers and invitees and other persons authorized to use the same by Landlord. landlord reserves exclusive control of advertising in the common areas. All common areas and facilities not within the Premises are to be used and occupied by Tenant under a revocable license. If the amount of such areas are diminished or otherwise changed, in Landlord's reasonable discretion, Landlord shall not be subject to any liability nor shall Tenant be entitled to any compensation or diminution or abatement of rent, nor shall such diminution or change be deemed constructive or actual eviction so long as such diminution or change of the common areas does not materially and adversely affect accessibility to and/or Tenant's use and enjoyment of the Premises.
d. The parking areas, or designated portions thereof, shall be available for the use of tenants of the Project and, to the extent designated by Landlord, the employees, agents, customers, and invitees of said tenants and of Landlord and other parties designated by Landlord, subject to reasonable rules, regulations, charges; and rates as set forth by Landlord from time to time; provided, however, that Landlord may restrict parking for the tenants of the Project (including Tenant) and their employees and agents to certain portions of the parking areas, and may designate other areas to be used at large only by customers and invitees of tenants of the Project. Tenant shall be entitled to use 33 parking stalls. Four parking spaces near north main entrance will be labeled "Brain Garden" visitor parking.
e. Pursuant to such an at-large parking system, specific stalls will not be allocated to specific persons or cars, but an areas or areas sufficient for the Common Areapurpose will be designated by Landlord within which authorized cars (selected by Tenant in accordance with reasonable rules promulgated by Landlord) will be allowed to park. Such area or areas may, at Landlord's option, be moved from time to time, upon written notice to Tenant, within the parking facilities of the Project as not or hereafter constituted. Within such large areas Landlord may allot more cars than there are physical stalls so long as, in the sole judgement of Landlord, considering actual experience, the designated number of cars can be satisfactorily served. Landlord may, at its option, change from an at-large system to a specific stall or other system, either as to all or a part of the cars for which Tenant(or any other tenant) enjoys parking rights.
f. Notwithstanding anything to the contrary elsewhere herein Landlord reserves the right from time to time to make reasonable changes in, additions to and deletions from the parking areas and to change the purposes to which the same may be devoted, and the use of parking areas shall at all time be subject to such reasonable rules and regulations as Landlord may from time to time prescribema be promulgated by Landlord, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by not reduce Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the 's parking rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from , although it may change the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenseslocation thereof.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (Whole Living Inc)
Common Areas. 5.1 TenantLandlord and Tenant acknowledge that as the Premises constitutes all (or substantially all) of the Building, there are no “common areas” in the Building to which third parties have general rights of access or use; provided, however, given Landlord’s ownership of the Building, Project and it licenseesongoing obligations and rights set forth in this Lease, concessionairesLandlord may nevertheless reasonably designate certain areas within the Building and Project as “Common Areas,” including certain areas designated for the exclusive use of Landlord, employees or to be shared by Landlord and customers Tenant and, where applicable, third party owners and tenants of properties adjacent to the Project; provided further, however, in no event shall any portion of the Building be deemed Common Area for purposes of such third parties. Subject to the Rules and Regulations, Tenant shall have the non-exclusive right to use in common with Landlord and other reasonably designated parties, such Common Areas. The manner in which the Common Areas are maintained and operated shall be at the reasonable discretion of Landlord and the use thereof shall be subject to such reasonable and non-discriminatory rules, regulations and restrictions as constituted Landlord may make from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide such rules, regulations and restrictions do not unreasonably interfere with the rights granted to Tenant with at least sixty (60) days prior written notice of any such rule or regulationunder this Lease and the permitted use granted under Section 5.1, below. Landlord may require that automobiles owned by Tenantreserves the right to close temporarily, its licenseesmake alterations or additions to, concessionaires or change the location of elements of the Project and employees be parked in specific portions of the Common Areas; provided that no such changes shall be permitted which materially reduce Tenant’s rights or access hereunder. Upon reasonable written request by LandlordExcept when and where Tenant’s right of access is specifically excluded in this Lease, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or Premises, the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safetyBuilding, and the Project parking facility twenty-four (iii24) except in the case of an emergencyhours per day, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); seven (7) Landlord’s general overhead expenses above days per week during the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement “Lease Term,” as set forth that term is defined in Section 8.1 2.1, below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Office Lease (Dexcom Inc)
Common Areas. 5.1 Tenant(a) Subject to the provisions of Sections 6.8 and 6.9, and it licensees, concessionaires, employees and customers Lessee shall have the non-exclusive nonexclusive, shared right to the reasonable use the of all Common Areas as constituted from time to timedescribed on Exhibit 6.10 attached for the purposes intended, such which use to shall be in common compliance with Landlord, other Tenants of Shopping Center all Applicable Laws and other Tenants of Shopping Center Other Requirements and other persons entitled to use the Common Area, shall be subject to such reasonable rules the terms of this Land Lease and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulationthe Rules and Regulations. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant Lessee shall not interfere with the rights of any or all of Lessor, Lessor’s Agents, other persons lessees or licensees, or any other person entitled to use the Common Areas, including any excessive use thereof by Lessee or Lessee’s Agents.
(b) Lessor shall at all times have exclusive control of the Common Areas. Landlord may temporarily Lessor shall have the right, exercisable in its sole and absolute discretion and without the same constituting an actual or constructive eviction and without entitling Lessee to any abatement of Rent or other right or remedy, so long as none of the following prevents or unreasonably restricts Lessee from operating the Lessee Business on the Leased Premises, to: (i) close any part of the Common Areas to whatever extent required in the opinion of Lessor to prevent a dedication thereof or the accrual of any prescriptive rights therein or to permit the holding of events or permit the temporary use thereof for charitable or commercial purposes; (ii) temporarily close the Common Areas to perform repairs or maintenance or for any other reason deemed sufficient by Lessor; (iii) change the shape, size, location and extent or hours of operation of the Common Areas; (iv) eliminate from or add to the Property any land or improvement; (v) make changes to the Common Areas (except for the location of Access Roads which is governed by Section 6.9), including, without limitation, changes in the location of Site Amenities, entrances, passageways, doors and doorways, elevators, stairs, restrooms, exits, parking facilities spaces, parking areas, sidewalks or other portions the direction of the flow of traffic and the site of the Common Areas; (vi) remove unauthorized persons from the Common Areas, the Leased Premises and the Property; and/or (vii) change the name or address of the Property. Lessee shall keep the Common Areas clear of all obstructions, debris or rubbish created or permitted by Lessee. If, in the reasonable opinion of Lessor, unauthorized persons are using any of the Common Areas for by reason of the presence of Lessee at the Property, Lessee, upon demand of Lessor, shall restrain such minimal periods of time as may be reasonably necessary for (i) temporary unauthorized use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to by appropriate proceedings. In exercising any sewers, utility facilities or distribution lines located within such rights regarding the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or Lessor shall make a reasonable effort to minimize any disruption to the Common AreasLessee Business.
(c) The easements, licenses and rights of use granted to Lessee pursuant to Sections 6.7, 6.8, 6.9 and this Section 6.10 and otherwise pursuant to this Land Lease (ivcollectively, “Licenses”) security reasons, shall expire and completely and automatically terminate (without any further action or (vinstrument) doing and performing such other acts (whether similar upon the expiration or dissimilar to sooner termination of the foregoing) in, to and with respect to, the Common Areas as in the Term. In Lessee’s use of good business judgment the Landlord Licenses, Lessee shall reasonably determine cooperate with Lessor to be appropriate for the Shopping Centercreate as little interference as practicable with Lessor’s operations on, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenantand Lessor’s use and its invitees which facilities enjoyment of, the Property. Lessee shall not cause or permit any damage or injury to occur to the portion of the Property that is subject to the Licenses, or any part thereof or person or property located thereon. Lessee shall be solely responsible for any damage caused by Lessee (ior any officer, director or employee, agent, licensee or invitee thereof) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance any of the Common Areas (“CAM Expenses”)and, including without limiting upon Lessor’s request, shall promptly repair any such damage or promptly pay the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result cost of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid repair to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) daysLessor, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenseselected by Lessor.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 TenantIn addition to the Premises, and it licensees, concessionaires, employees and customers Tenant shall have the non-exclusive right use of those certain common areas to use the Common Areas as constituted be reasonably designated by Landlord from time to timetime on the Property (collectively, such the “Common Areas”). Such Common Areas shall include, without limitation, parking areas, access roads and facilities, interior corridors and other common areas of the Building, sidewalks, driveways and landscaped and open areas. The Common Areas shall be for the non‑exclusive use to be of Tenant and Tenant’s employees, agents, suppliers, customers and patrons, in common with Landlord, with all other Tenants tenants of Shopping Center the Property and other Tenants of Shopping Center and with all other persons entitled to whom Landlord has previously granted, or may hereafter grant, rights of usage. Such non‑exclusive use the Common Area, shall be expressly subject to such reasonable rules and regulations as which may be adopted by Landlord may from time to time. Landlord reserves the right to alter, modify, enlarge, diminish, reduce or eliminate the Common Areas from time to time prescribein its sole discretion, provided that so long as no such action unreasonably and materially interferes with Tenant’s use and occupancy of the Premises and the Parking Facilities. Landlord shall provide have the right to modify Common Areas, and if necessary, parts of the Premises, in order to implement any necessary improvements, and Landlord shall endeavor to minimize any adverse effect on Tenant’s use of the Premises. Tenant shall ensure that its use of the Premises and the Property does not block or interfere with at least sixty (60) days prior written notice of any such rule other tenants’ access to or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions use of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall may not interfere with the rights of other persons to use the Common AreasAreas for storage of goods, vehicles, refuse or any other items. Landlord may temporarily close If Tenant uses any part of the parking facilities or other portions of the Common Areas for such minimal periods storage of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings any items, and subject to any and all regulatory or municipal codes, laws and regulations, Tenant shall pay all fines imposed upon either Landlord or Tenant by any fire, building or other improvements within the Shopping Center or contiguous propertyregulatory body, (ii) repairs or alterations in or and Tenant shall pay all costs incurred by Landlord to clear and clean the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result dispose of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesitems.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (Inogen Inc)
Common Areas. 5.1 Tenant(a) During the Term, and it licensees, concessionaires, employees and customers shall have the Landlord hereby grants to Tenant a non-exclusive exclusive, irrevocable right and license to use the Common Areas as constituted from time to time, such use to be and the Employee Common Areas in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Prime Landlord, Tenant shall have thirty and its other lessees and licensees and, as applicable, the respective employees, customers, invitees, business invitees, contractors, agents, and others on or about the Land in connection with any use or activity permitted hereunder (30collectively, “Permitted Users”) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by TenantLandlord, Prime Landlord, and its other lessees and licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Prime Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any promulgate reasonable rules and regulations with respect to such use, provided that the same are non-discriminatory among all lessees of Prime Landlord and shall have exclusive control over and the exclusive right to manage the Common Areas and Employee Common Areas. Tenant shall have no dominion or control over the Common Areas or the Employee Common Areas. Prime Landlord shall have the right to make reasonable alterations, expansions, contractions, relocations and other than those designatedadjustments to the Common Areas and Employee Common Areas from time to time as Prime Landlord deems reasonable or appropriate, and/or (ii) and no alteration or diminution thereof shall be deemed a constructive or actual eviction of Tenant or entitle Tenant to compensation or a reduction or abatement of Rent. In exercising control over and managing the Common Areas and Employee Common Areas, Prime Landlord shall act reasonably and in a manner that does not unreasonably interfere with or have such car(s) physically removed from the Shopping Center at a material adverse impact upon Tenant’s expense without use of the Common Areas or Employee Common Areas.
(b) During the Term, Landlord hereby reserves and Tenant hereby grants to Prime Landlord, Landlord, and their Permitted Users an irrevocable, non-exclusive right and license to use the Casino Public Common Areas in common with Tenant and Tenant’s Permitted Users. Notwithstanding any liability whatsoever to Landlord. other provision of this Lease, Tenant shall not interfere in any manner whatsoever with ingress to and egress from the rights of other persons to use the Common Areas. Landlord may temporarily close any part various interior and exterior parts of the parking facilities or other portions of Resort through the Casino Public Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous propertyby Prime Landlord, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of their Permitted Users. Further, in exercising control over the foregoingCasino Public Common Areas, to the extent the same exceeds arm’s length competitive prices paid Tenant shall act reasonably and in Clearwater, Florida for similar services a manner that does not unreasonably interfere with or goods; (5) costs incurred to remove any hazardous materials or other toxic have a material or substances from either the Shopping Center; (6) costs relating to maintaining adverse effect upon Prime Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation use of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Casino Public Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM ExpensesAreas.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 The term “Common Areas” is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Building Complex and interior utility raceways within the Premises that are provided and designated by the Landlord from time to time for the general non-exclusive use of Landlord, Tenant and other tenants of the Building Complex and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas. Landlord hereby grants to Tenant, for the benefit of Tenant and it licenseesits employees, concessionairessuppliers, employees shippers, contractors, customers and customers shall have invitees, during the term of this Lease the non-exclusive right to use use, in common with others entitled to such use, the Common Areas as constituted they exist from time to time, such subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any rules and regulations or restrictions governing the use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled the Building Complex. Under no circumstances shall the right therein granted to use the Common AreaAreas be deemed to include the right to store any property, subject temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Landlord or Landlord’s designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost of such removal to Tenant, which cost shall be immediately payable upon demand by Landlord. Landlord or such other person(s) as Landlord may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulationrespect thereto. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right right, in its Landlord’s sole discretion discretion, from time to time: (i) charge Tenant ten Dollars ($10.00) per day per car parked to make changes to the Common Areas, including, without limitation, changes in any Common Areas other than those designatedthe location, and/or size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways; (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without to close temporarily any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time maintenance purposes so long as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or reasonable access to the Common Areas or Premises remains available; (iii) to any sewers, utility facilities or distribution lines located within designate other land outside the boundaries of the Building Complex to be a part of the Common Areas, ; (iiiiv) preventing the public from obtaining prescriptive rights in or to add additional building and improvements to the Common Areas, (iv) security reasons, or ; (v) doing to use the Common Areas while engaged in making additional improvements, repairs or alterations to the Building Complex, or any portion thereof; and performing (vi) to do and perform such other acts (whether similar or dissimilar to the foregoing) and make such other changes in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by and Building Complex as Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In additionmay, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination exercise of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed sound business judgment deem to be CAM Expenses payable by Tenant and collectible by Landlord as suchappropriate.
Appears in 1 contract
Sources: Industrial Multi Tenant Lease (Ironclad Performance Wear Corp)
Common Areas. 5.1 Landlord hereby grants to Tenant for the common use of ------------ Tenant, its customers, employees, agents and it licenseesinvitees together with other tenants of the Building, concessionairestheir customers, employees employees, agents and customers invitees throughout the Lease Term, the right to use the common areas within the Building. The term "Common Area," as used herein, shall refer to all portions of ----------- the Building (except for the areas specifically leased to Tenants), including, but not limited to, all aisles, corridors, stairways, entrances, sidewalks, roofs, atriums, elevators, and all utility, mechanical, services, systems, fixtures and facilities used in common by the tenants of the Building and situated within or servicing the Building. The Common Areas shall be subject to the exclusive control and management of Landlord and Landlord shall have the nonright to establish reasonable rules and regulations with respect to the Common Areas, to modify, change and rescind the same, from time to time, provided such rules and regulations shall not be established or enforced in a manner that unreasonably diminishes Tenant's rights to the Common Area or materially adversely affects Tenant's access to the Premises or to the parking facilities, and to enforce-exclusive the same under the terms of this Lease, and Tenant covenants and agrees to abide by and conform with, and Tenant shall use reasonable efforts to cause its employees, agents, tenants, sublessees, assignees, representatives, guests, licensees and invitees to abide by and conform with, such rules and regulations subject to Section 17.14. Landlord shall have the right to use the Common Areas as constituted from time for charitable or commercial events at reasonable times without obligation or compensation to time, Tenant provided such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall uses do not materially interfere with the rights of other persons Tenant's access to or use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or its quiet enjoyment thereof. Landlord shall not alter the Shopping Center, (2) reduce Common Area in such a manner as to materially interfere with the conduct of Tenant's business on the Premises or impede Tenant's access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space without Tenant's consent which Tenant may withhold in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensessole discretion.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 (a) Landlord hereby grants to Tenant, for the benefit of Tenant and it licenseesits employees, concessionairessuppliers, employees shippers, customers and customers shall have invitees, during the term of this Lease, the non-exclusive right to use use, in common with others entitled to such use, the Common Areas as constituted they exist from time to time, such subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any rules and regulations or restrictions governing the use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled the Project. Under no circumstances shall the right herein granted to use the Common Area be deemed to include the right to store any property, temporarily or permanently, in the Common Area or to construct or install any improvements in the Common Area. Any such storage shall be permitted only by the prior written consent of Landlord or Landlord's designated agent, subject which consent may be revoked at any time. In the event that any unauthorized storage shall occur, the Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be immediately payable by Tenant to Landlord upon demand by Landlord.
(b) Landlord or such other person(s) as Landlord may appoint, shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations with respect thereto. Tenant agrees to abide by and conform to all such rules and regulations, as Landlord may from time well as any private conditions, covenants, and restrictions of public record now or hereafter affecting the Premises and any amendment thereof, and to time prescribecause its employees, provided that suppliers, shippers, customers and invitees to abide and conform. Landlord shall provide not be responsible to Tenant for the non-compliance with at least sixty (60) days prior written notice of any such rule said rules and regulations by other tenants or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions authorized users of the Project. Any failure by Tenant or its agents, employees or representatives to observe and comply with the rules and regulations established by Landlord with respect to the Common Areas. Upon reasonable written request Areas shall be a default by Landlord, Tenant shall have thirty hereunder.
(30c) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its Landlord's sole discretion discretion, from time to time: (i) charge Tenant ten Dollars ($10.00) per day per car parked to make changes to the Common Areas, including, without limitation, changes in any Common Areas other than those designatedthe location, and/or size, shape and number of driveways entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas and walkways; (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without to close temporarily any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time maintenance purposes, so long as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or reasonable access to the Common Areas or Premises remains available; (iii) to any sewers, utility facilities or distribution lines located within designate other land outside the boundaries of the Project to be a part of the Common Areas, ; (iiiiv) preventing the public from obtaining prescriptive rights in or to add additional buildings and improvements to the Common Areas, (iv) security reasons, or ; (v) doing to use the Common Areas while engaged in making additional improvements, repairs or alterations to the Project, or any portion thereof; (vi) to close, at reasonable times, all or any portion of the parking areas for any reasonable purpose, including without limitation, the prevention of a dedication thereof, or the accrual of the rights of any person or public therein; and, (vii) to do and performing perform such other acts (whether similar or dissimilar to the foregoing) and make such other changes in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Project as Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In additionmay, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination exercise of the term of this leasesound business judgment, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed deem to be CAM Expenses payable by Tenant and collectible by Landlord as suchappropriate.
Appears in 1 contract
Common Areas. 5.1 Tenant(a) Subject to the provisions of Sections 6.8 and 6.9, and it licensees, concessionaires, employees and customers Lessee shall have the non-exclusive nonexclusive, shared right to the reasonable use the of all Common Areas as constituted from time to timedescribed on Exhibit 2.1(a) attached for the purposes intended, such which use to shall be in common compliance with Landlord, other Tenants of Shopping Center all Applicable Laws and other Tenants of Shopping Center Other Requirements and other persons entitled to use the Common Area, shall be subject to such reasonable rules the terms of this Land Lease and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulationthe Rules and Regulations. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant Lessee shall not interfere with the rights of any or all of Lessor, Lessor’s Agents, other persons lessees or licensees, or any other person entitled to use the Common Areas, including any excessive use thereof by Lessee or Lessee’s Agents.
(b) Lessor shall at all times have exclusive control of the Common Areas. Landlord may temporarily Lessor shall have the right, exercisable in its sole and absolute discretion and without the same constituting an actual or constructive eviction and without entitling Lessee to any abatement of Rent or other right or remedy, so long as none of the following prevents or unreasonably restricts Lessee from operating the Lessee Business on the Leased Premises, to: (i) close any part of the Common Areas to whatever extent required in the opinion of Lessor to prevent a dedication thereof or the accrual of any prescriptive rights therein or to permit the holding of events or permit the temporary use thereof for charitable or commercial purposes; (ii) temporarily close the Common Areas to perform repairs or maintenance or for any other reason deemed sufficient by Lessor; (iii) change the shape, size, location and extent or hours of operation of the Common Areas; (iv) eliminate from or add to the Property any land or improvement; (v) make changes to the Common Areas (except for the location of Access Roads which is governed by Section 6.9), including, without limitation, changes in the location of Site Amenities, entrances, passageways, doors and doorways, elevators, stairs, restrooms, exits, parking facilities spaces, parking areas, sidewalks or other portions the direction of the flow of traffic and the site of the Common Areas; (vi) remove unauthorized persons from the Common Areas, the Leased Premises and the Property; and/or (vii) change the name or address of the Property. Lessee shall keep the Common Areas clear of all obstructions, debris or rubbish created or permitted by Lessee. If, in the reasonable opinion of Lessor, unauthorized persons are using any of the Common Areas for by reason of the presence of Lessee at the Property, Lessee, upon demand of Lessor, shall restrain such minimal periods of time as may be reasonably necessary for (i) temporary unauthorized use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to by appropriate proceedings. In exercising any sewers, utility facilities or distribution lines located within such rights regarding the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or Lessor shall make a reasonable effort to minimize any disruption to the Common AreasLessee Business.
(c) The easements, licenses and rights of use granted to Lessee pursuant to Sections 6.7, 6.8, 6.9 and this Section 6.10 and otherwise pursuant to this Land Lease (ivcollectively, “Licenses”) security reasons, shall expire and completely and automatically terminate (without any further action or (vinstrument) doing and performing such other acts (whether similar upon the expiration or dissimilar to sooner termination of the foregoing) in, to and with respect to, the Common Areas as in the Term. In Lessee’s use of good business judgment the Landlord Licenses, Lessee shall reasonably determine cooperate with Lessor to be appropriate for the Shopping Centercreate as little interference as practicable with Lessor’s operations on, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenantand Lessor’s use and its invitees which facilities enjoyment of, the Property. Lessee shall not cause or permit any damage or injury to occur to the portion of the Property that is subject to the Licenses, or any part thereof or person or property located thereon. Lessee shall be solely responsible for any damage caused by Lessee (ior any officer, director or employee, agent, licensee or invitee thereof) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance any of the Common Areas (“CAM Expenses”)and, including without limiting upon Lessor’s request, shall promptly repair any such damage or promptly pay the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result cost of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid repair to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) daysLessor, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenseselected by Lessor.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (Arconic Inc.)
Common Areas. 5.1 TenantDuring the Term of this Lease, and it licensees, concessionaires, employees and customers Tenant shall have be entitled to the non-exclusive right to use the Common Areas as constituted from time to timeuse, such use to be free of charge, but in common with Landlordothers, other Tenants of Shopping Center the driveways, footways, and other Tenants of Shopping Center and other persons entitled to parking areas presently existing, provided that such use the Common Area, shall be subject to such reasonable rules and regulations as Landlord may from time to time prescribe, ; and provided further that Landlord shall provide Tenant with at least sixty (60) days prior written notice all times have full and exclusive control, management and direction of any such rule or regulationsaid driveways, footways, and parking areas. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall further have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in police them; to restrict parking by Tenants, their officers, agents and employees; to close temporarily all or any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part portion of the parking areas or facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary required for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or proper maintenance and/or repair; to the Common Areas or discourage non-customer parking; and to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing do and performing perform such other acts (whether similar or dissimilar in and to the foregoing) insuch areas as, to and with respect to, the Common Areas as in the use of good its business judgment judgment, the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not advisable in order to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas improve or make any changes, repairs, temporary closings or modifications to more convenient the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission use thereof by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Centertheir officers, or other third parties agents, employees and roof repair or replacement as set forth in Section 8.1 belowcustomers. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be responsible for taking all reasonable measures to ensure that percentage of CAM Expenses which its customers, guests and other invitees comply with the Gross Leased Area of the Premises bears rules and regulations applicable to the Gross Leased Area of common areas and refrain from loitering in, or damaging the Shopping Centercommon areas. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, may from time to time to inspect Landlord’s books change the location, layout and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days arrangement of the result of the audit. Any discrepancy shall be promptly corrected parking areas, driveways and footways and reduce them by a payment erecting thereon buildings or other structures or improvements of any shortfall kind including, but not limited to, extensions to Landlord by the Center and modifications to the Building; provided that the convenience of parking facilities available to Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding substantially prejudiced thereby; and conclusive on Tenantprovided further that there shall at all times be provided such parking facilities as meet local governmental requirements. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord provide reasonable illumination for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord aforesaid driveways, footways and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇parking areas, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant will keep them in reasonable repair and collectible by Landlord as suchreasonably free of litter and snow.
Appears in 1 contract
Sources: Lease Agreement (Telvent Git S A)
Common Areas. 5.1 TenantIn addition to the Premises, and it licensees, concessionaires, employees and customers Tenant shall have the non-exclusive right use of those certain common areas to be designated by Landlord from time to time on the Property; such areas shall include, but not be limited to, parking areas, access roads and facilities, interior corridors, sidewalks, driveways and landscaped and open areas (collectively, “Common Areas”). The use of the Common Areas as constituted from time to timeshall be for the non exclusive use of Tenant and Tenant’s employees, such use to be agents, suppliers, customers and patrons, in common with Landlord, Landlord and all other Tenants tenants of Shopping Center the Property and other Tenants of Shopping Center and all such other persons entitled to whom Landlord has previously granted, or may hereinafter grant, rights of usage; provided that such nonexclusive use the Common Area, shall be expressly subject to such reasonable rules and regulations as which may be adopted by Landlord may from time to time. Tenant shall not be entitled to use the common areas for storage of goods, vehicles, refuse or any other items. Landlord reserves the right to alter, modify, enlarge, diminish, reduce or eliminate the Common Areas from time to time prescribein its sole discretion; provided, provided that Landlord shall provide Tenant however, it does not unreasonably and materially interfere with at least sixty (60) days prior written notice of any such rule Tenant’s access or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires use and employees be parked in specific portions occupancy of the Common AreasPremises. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right to modify common areas, and if necessary, parts of the Premises, in its sole discretion order to (i) charge Tenant ten Dollars ($10.00) per day per car parked in implement new, necessary security measures and Landlord shall endeavor to minimize any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at adverse affect on Tenant’s expense without any liability whatsoever to Landlorduse of the Premises. If Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods storage of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings any items, Tenant shall pay all fines imposed upon either Landlord or Tenant by any fire, building or other improvements within the Shopping Center or contiguous propertyregulatory body, (ii) repairs or alterations in or and Tenant shall pay all costs incurred by Landlord to clear and clean the Common Areas or to any sewersand dispose of such items, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect including but not limited to, the Common Areas as in the use a disposal fee of good business judgment the Landlord shall reasonably determine to be appropriate twenty-five dollars ($25.00) for the Shopping Centereach pallet or other container and fifty dollars ($50.00) for each drum, provided however, that Landlord shall use reasonable efforts not to unduly interfere together with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areasadditional costs for testing and special disposal, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesrequired.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (Elio Motors, Inc.)
Common Areas. 5.1 TenantLandlord and Tenant acknowledge that as the Premises constitutes all (or substantially all) of the Building, there are no “common areas” in the Building to which third parties have general rights of access or use; provided, however, given Landlord’s ownership of the Building, Project and it licenseesongoing obligations and rights set forth in this Lease, concessionairesLandlord may nevertheless reasonably designate certain areas within the Building and Project as “Common Areas,” including certain areas designated for the exclusive use of Landlord, employees or to be shared by Landlord and customers Tenant and, where applicable, third party owners and tenants of properties adjacent to the Project; provided further, however, in no event shall any portion of the Building be deemed Common Area for purposes of such third parties. Subject to the Rules and Regulations, Tenant shall have the non-exclusive right to use in common with Landlord and other reasonably designated parties, such Common Areas. The manner in which the Common Areas are maintained and operated shall be at the reasonable discretion of Landlord and the use thereof shall be subject to such reasonable and non-discriminatory rules, regulations and restrictions as constituted Landlord may make from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide such rules, regulations and restrictions do not unreasonably interfere with the rights granted to Tenant with at least sixty (60) days prior written notice of any such rule or regulationunder this Lease and the permitted use granted under Section 5.1, below. Landlord may require that automobiles owned by Tenantreserves the right to close temporarily, its licenseesmake alterations or additions to, concessionaires or change the location of elements of the Project and employees be parked in specific portions of the Common Areas; provided that no such changes shall be permitted which materially reduce Tenant’s rights or access hereunder. Upon reasonable written request by LandlordExcept when and where Tena▇▇’▇ ▇ight of access is specifically excluded in this Lease, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or Premises, the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safetyBuilding, and the Project parking facility twenty-four (iii24) except in the case of an emergencyhours per day, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); seven (7) Landlord’s general overhead expenses above days per week during the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement “Lease Term,” as set forth that term is defined in Section 8.1 2.1, below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Office Lease (Dexcom Inc)
Common Areas. 5.1 Landlord hereby grants to Tenant, for the benefit of Tenant and it licenseesits employees, concessionairessuppliers, employees shippers, customers and customers shall have invitees, during the term of this Lease, the non-exclusive right to use use, in common with others entitled to such use, the Common Areas as constituted they exist from time to time, subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Building or the Complex and subject to the requirements and limitations on the use of parking areas. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas. Any such use storage shall be permitted only by the prior written consent of Landlord or Landlord’s designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord. During the Lease Term, Tenant may use, in common with Landlord’s employees, other Tenants of Shopping Center contractors, agents, invitees, and other Tenants tenants, those portions of Shopping Center the Building that are designated by Landlord from time to time as be available for common use (the “Common Facilities”). The Common Facilities include certain conference and other persons entitled training rooms designated by Landlord from time to time. Notwithstanding the foregoing, Tenant’s use of any Common Facilities shall be subject to such rules regarding scheduling and priority as may be promulgated by Landlord from time to time. Tenant shall cause its employees, invitees, guests and contractors to use the Common AreaFacilities (i) in a clean, subject safe and sanitary manner, (ii) in such a way as to minimize interference with any other party’s use of any Common Facilities or its occupancy in the Building, and (iii) comply with such reasonable rules and regulations as now or hereafter in existence or established by Landlord may from form time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires for the common and employees be parked in specific portions shared use of the Common AreasFacilities. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list The cost of the license numbers of all automobiles operated Common Facilities shall be included in Operating Expenses except for expenses directly incurred by Tenant in connection with its use, which shall be paid by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have reserves the right in its sole and absolute discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designatedclose, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use reduce or expand the Common Areas. Landlord may temporarily close Facilities at any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensestime.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 TenantFrom and after the Commencement Date (as defined below), Lessor grants to Lessee, for the benefit of Lessee and it licenseesits employees, concessionairessuppliers, employees shippers, contractors, customers and customers shall have invitees, during the term of this Lease, the non-exclusive right to use use, in common with others entitled to such use, the Common Areas (as constituted defined below) as they exist from time to time, such subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Project. The term “Common Areas” is defined as all areas and facilities outside the Premises and within the exterior boundary line of Lot 1 and interior utility raceways and installations within the Premises that are provided and designated by the Lessor from time to be in common with Landlordtime for the general non-exclusive use of Lessor, other Tenants of Shopping Center Lessee and other Tenants tenants of Shopping Center the Project and other persons entitled their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas. Under no circumstances shall the right herein granted to use the Common AreaAreas be deemed to include the right to store any property, subject to such reasonable rules and regulations as Landlord may from time to time prescribetemporarily or permanently, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable Any such storage shall be permitted only by the prior written request by Landlordconsent of Lessor or Lessor’s designated agent, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as which consent may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to revoked at any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlordtime. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above that any unauthorized storage shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee occur then Lessor shall have the right, during business hours without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Lessee, which cost shall be immediately payable upon reasonable prior noticedemand by Lessor. Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time time, to inspect Landlord’s books establish, modify, amend and records relating to CAM Expensesenforce reasonable rules and regulations (“Rules and Regulations”) for the management, and/or to have such books safety, care, and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days cleanliness of the result grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or tenants of the auditBuilding and the Project and their invitees. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after Attached hereto as Exhibit C are the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord Rules and Regulations in effect as of the overpaid amount within thirty (30) daysdate of this Lease. Lessee agrees to abide by and conform to the Rules and Regulations and to cause its employees, as may be applicablesuppliers, shippers, customers, contractors and invitees to so abide and conform. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations Lessor shall not be binding and conclusive on Tenant. In the event Landlord shall fail responsible to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord Lessee for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.non-compliance with
Appears in 1 contract
Sources: Lease (Zulily, Inc.)
Common Areas. 5.1 Tenant(a) All areas, space, equipment and it licenseesservices provided by Lessor, concessionairesif any, employees for the common use and customers shall have benefit of Lessor and the non-exclusive right to use the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions occupants of the Common Areas. Upon reasonable written request by LandlordBuilding, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenanttheir respective employees, its licenseesagents, concessionaires customers and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”)invites, including without limiting the generality of the foregoing, costs incurred exterior Building surfaces, support and all structural elements, roof, parking areas, driveways, passages, loading docks, sidewalks, ramps, open and enclosed courts and halls, landscaped areas, signs (except for lightingLessee's sign, paintingif any, cleaning, central trash disposal (if Landlord elects to provideas described in Paragraph 37 herein below), traffic controlexterior stairways, policingretaining walls, securityrest-rooms not located within the leased premises of any tenant and other areas and improvements provided by Lessor for the common use of Lessor and tenants shall be deemed "Common Area", landscaping and repairing shall be subject to the exclusive control and management of Lessor. Lessor shall have the right to police the Common Areas; to change the area level, location and arrangement of parking areas, and other facilities; to reasonably restrict parking by Lessee; to close all or any portions of said Common Areas or facilities to such extent as may be legally sufficient to prevent a dedication thereof or the accrual of any right to any person or the public therein; and to temporarily close all or any portion of the parking areas or facilities to discourage non-customer parking. Lessor shall also have the right to make changes, additions, deletions, alterations and improvements in and to the Common Areas, hazard or any portion thereof, and public liability insurance there shall be no reduction in the rent or other sums due under this Lease as a result of any of the same except any decrease or change in parking spaces requires Lessee's written consent. Lessor shall operate and property damage insurancemaintain the Common Areas in such manner as Lessor in its discretion shall determine, and Lessor shall have full right and authority to employ and discharge all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together personnel with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything respect to the contrary contained in this lease, additional rent shall not include operation and maintenance of the following: (1) capital expenditures required by Landlord’s failure Common Areas. Lessee agrees to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office all rules and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense regulations which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, may from time to time be promulgated by Lessor with respect to inspect Landlord’s books the operation and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days use of the result Common Area services being furnished the Building unless due to the negligence of Lessor, provided no such failure or interruption shall entitle Lessee to terminate this Lease or entitle Lessee to any right of setoff against the audit. Any discrepancy shall be promptly corrected by a payment of rent or any shortfall to Landlord by Tenant within thirty other sums due from Lessee under this Lease.
(30b) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations Lessor shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant liable for any CAM Expenses pursuant damage of any nature whatsoever to, or any theft of, automobiles or other vehicles or the contents thereof, while in or about the parking areas located within the Common Areas or the property, unless caused by negligence of Lessor.
(c) Notwithstanding anything herein to this article within one (1) yearthe contrary, Lessor shall not be obligated to provide any type of security in or about the Premises, the Common Areas, the Building or the Property for Lessee, its customers, guests, contractors, concessionaires, agents, lessees or invitees, or guarantee the safety or security of Lessee, its customers, guests, contractors, concessionaires, agents, lessees or invitees. If Lessor is made a party to any litigation commenced as a result of Lessor's alleged failure to provide security personnel for Lessee, its customers, guests, contractors, concessionaires, agents, lessees or invitees, then Landlord Lessee shall be deemed to have waived its right to collect such CAM Expenses. In additionprotect, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord defend and hold Lessor harmless and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇pay all costs, expenses and such costs or expenses attorney's fees incurred or payments which are made paid by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as suchLessor in connection with such litigation, including all appeals therefrom.
Appears in 1 contract
Sources: Lease Agreement (Divine Skin Inc.)
Common Areas. 5.1 TenantTenant and its employees, customers and it licensees, concessionaires, employees and customers invitees shall have the non-exclusive reasonable nonexclusive right to use, in common with Landlord and the other tenants and occupants of the Building and their respective employees, customers and invitees and all others to whom Landlord has or may hereafter grant rights to use the same, the public portion of the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribeexist. Landlord shall have the right to temporarily close any or all portions of the Common Areas to such extent as may, in Landlord's opinion, be necessary to prevent a dedication thereof or the accrual of any rights to any person or the public therein provided that Landlord shall use reasonable efforts to minimize interference with Tenant's use of the Common Areas and shall provide Tenant with access to the Premises at least sixty (60) days prior written notice of any such rule or regulationall times. Landlord may require that automobiles owned by Tenantshall at all times have full control, its licensees, concessionaires management and employees be parked in specific portions direction of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with cause or allow any storage of materials or equipment outside of the rights Premises on any of other persons to use the Common Areas. Landlord may temporarily close reserves the right at any part time and from time to time to reduce, increase, enclose or otherwise change the size, number, location, layout and nature of the parking facilities or other Common Areas, to construct additional buildings and stories, to create additional rentable areas through use and/or enclosure of Common Areas, to close portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area maintenance, repair or replacement, to place signs in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or and on the Building to any sewers, utility facilities or distribution lines located within change the Common Areas, (iii) preventing name of the public from obtaining prescriptive rights in or Building and to change the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in nature of the use of good business judgment any portion of the Landlord shall reasonably determine to be appropriate for the Shopping CenterBuilding provided, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord any such action shall not be permitted to take any action with respect to the Common Areas and/or parking areas materially and adversely affect Tenant's rights hereunder or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede Tenant's access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises parking available to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7on a temporary basis) Landlord’s general overhead expenses above or the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct conduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent Tenant's business in the purchase of any goods, utilities or services in connection ordinary course consistent with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments ('s current operations in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM ExpensesBuilding.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 (a) The Demised Premises are demised together with the right for the Tenant, its agents, servants, employees, invitees, licensees and all persons having business with it licenseesor claiming under it, concessionairesand all persons employed in or having business with the Demised Premises, employees and customers shall have in connection with their business in the non-exclusive right to use the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and their respective agents, servants, employees, customers, invitees and licensees, the common areas of the Shopping Center (hereinafter called the "Common Areas") consisting of: (a) the parking areas, roadways, driveways, the entrances on foot, and landscaped areas and malls; and (b) all other Tenants of areas and facilities now or hereafter at the Shopping Center and other persons entitled to use the Common Areaintended for common use.
(b) Except as provided in Section 4.3, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned unless required by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this leaselaw, Landlord shall not be permitted to take make or impose on Tenant or any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility other occupants of the Demised Premises, or on any agents, servants, employees, customers, invitees or licensees of Tenant or such other occupants, or on any persons doing business with the Demised Premises or the Shopping Center, (2) reduce any fee or impede access charge for the use of the Common Areas or of any additions to the Premises or Common Areas.
(c) Landlord covenants and agrees that throughout the term hereof at its expense, subject to Section 4.3:
(i) it will keep and maintain in good and usable order and condition, and make all necessary repairs and replacements to the Common Areas and any additions thereto, including, without limitation, the paving of the parking areas (including striping), roadways, walks, and driveways in the Shopping Center, or (3) reduce landscaping and the proximity lighting and drainage systems of the Premises to Shopping Center;
(ii) it will keep all of the Common Areas properly drained and reasonably free of snow, ice, refuse and obstructions;
(iii) it will keep the parking areas or areas, roadways, walks and driveways within the impact Shopping Center lighted during the convenience regular business hours of the parking facilities to Shopping Center and all the hours when the Demised Premises or block Tenants drive through facility. The parking ratio shall be open for business, and for a reasonable time thereafter; and
(iv) it will provide adequate security guards and services for the Shopping Center at as determined to be necessary in Landlord's reasonable judgment.
SECTION 4.2 The layout of, and striping and lighting in, the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot portion of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be area designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent a "No Change Area" shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any lawbe chanted without Tenant's consent, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expensesunreasonably withheld. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises "No Change Area" shall be determined based on by creating imaginary lines brought forward from the “side walls of the Demised Premises and extended directly in front of the Demised Premises a distance of one hundred (100) feet. It is understood and agreed that Landlord may change the number, dimensions and locations of the walks, buildings, parking areas and other facilities as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit deem proper or eliminate or add to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesbuildings.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Assignment, Assumption, Consent to Assignment and Amendment of Lease (Clearview Cinema Group Inc)
Common Areas. 5.1 Tenant“Common Areas” shall mean the driveways, parking areas, walkways, sidewalk areas, landscaping, service areas, the areas on individual floors in the Building devoted to corridors, fire vestibules, elevators, lobbies, electric and it licenseestelephone closets, concessionairesrestrooms, employees loading dock and customers other similar facilities for the benefit of tenants and invitees and shall also mean those areas of the Building devoted to mechanical and service rooms servicing the Building. Landlord shall have the non-exclusive right to use the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribeto designate, relocate and limit the use of particular areas or portions of the Common Areas provided that Landlord shall not materially adversely affect visibility of the exterior sign on the Building identifying Tenant, access to or availability of parking for the Premises, or otherwise materially and adversely interferes with Tenant’s business operations in the Premises. Provided Landlord uses reasonable efforts (which shall not include any obligation to employ labor at overtime rates) to minimize disruption of Tenant’s business during the making of any such changes or alterations, Landlord shall not be subject to any liability nor shall Tenant be entitled to any compensation or abatement of rent arising out of the making of such changes or alterations. Landlord shall also have the right to limit or control access to the Building by third parties other than Tenant, its employees, customers and patrons. Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires electric and employees be parked in specific portions of telephone closets within the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Premises for Tenant’s expense without any liability whatsoever to Landlordexclusive use. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect enter such electric and telephone closets unless accompanied by Tenant’s representative. Tenant shall, subject to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility approval of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are approval shall not limited to repairsbe unreasonably withheld, maintenance, casualty, condemnation, conditioned or displacement or dislocation caused by future constructiondelayed), Landlord shall immediately provide substitute parking facilities for Tenant’s use have the right to an easement on and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in under the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance portion of the Common Areas (“CAM Expenses”)shown on Exhibit H for the installation, including without limiting the generality repair, maintenance, use and replacement of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything a fiber optics telecommunications cable to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excludedPremises. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by charge Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas any fees for such year, such statement installation in excess of any fees that may be charged to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesinstallation.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (Wilshire Financial Services Group Inc)
Common Areas. 5.1 TenantIn addition to the Premises, and it licensees, concessionaires, employees and customers Tenant shall have the non-exclusive right use of those certain common areas to be designated by the Landlord from time to time on the Property; such areas shall include, but not be limited to, parking areas, access roads and facilities, interior corridors, sidewalks, driveways and landscaped and open areas (collectively, the “Common Areas”). The use of the Common Areas as constituted from time to timeshall be for the nonexclusive use of Tenant and Tenant’s employees, such use to be agents, suppliers, customers and patrons, in common with Landlord, Landlord and all other Tenants tenants of Shopping Center the Property and other Tenants of Shopping Center and all such other persons entitled to whom Landlord has previously granted, or may hereinafter grant, rights of usage; provided that such nonexclusive use the Common Area, shall be expressly subject to such reasonable rules and regulations as which may be adopted by the Landlord may from time to time. Tenant shall not be entitled to use the Common Areas for storage of goods, vehicles, refuse or any other items. Landlord reserves the right to alter, modify, enlarge, diminish, reduce or eliminate the Common Areas from time to time prescribein its sole discretion; provided, provided that Landlord shall provide Tenant however, it does not unreasonably and materially interfere with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires ’s use and employees be parked in specific portions occupancy of the Common AreasPremises. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right to modify Common Areas, and if necessary, parts of the Premises, in its sole discretion order to (i) charge Tenant ten Dollars ($10.00) per day per car parked in implement new, necessary security measures and Landlord shall endeavor to minimize any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at adverse effect on Tenant’s expense without any liability whatsoever to Landlorduse of the Premises. If Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods storage of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings any items, Tenant shall pay all fines imposed upon either Landlord or Tenant by any fire, building or other improvements within the Shopping Center or contiguous propertyregulatory body, (ii) repairs or alterations in or and Tenant shall pay all costs incurred by Landlord to clear and clean the Common Areas or to any sewersand dispose of such items, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect including but not limited to, the Common Areas as in the use a disposal fee of good business judgment the Landlord shall reasonably determine to be appropriate twenty-five dollars ($25.00) for the Shopping Centereach pallet or other container and fifty dollars ($50.00) for each drum, provided however, that Landlord shall use reasonable efforts not to unduly interfere together with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areasadditional costs for testing and special disposal, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesrequired.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (UWM Holdings Corp)
Common Areas. 5.1 (a) All common areas and other common facilities made available from time to time by Landlord in or about the Property (collectively, “Common Areas”) shall be subject to the exclusive control and management of Landlord. Common Areas shall include all areas, space, facilities, equipment, signs, and special services from time to time made available for the common and joint use and benefit of Landlord, Tenant, and it licenseesother tenants and occupants of the Property, concessionairessuch as sidewalks, employees parking areas, access roads, driveways, landscaped areas, truck service ways, loading docks that are not exclusive to one tenant or group of tenants, and customers utility facilities. Exhibit “A-1” sets forth the layout of the Common Areas, buildings, and improvements of the Property (collectively the “Property Improvements”), but this diagram shall not be deemed to be a warranty on the part of Landlord that the Property Improvements will be constructed or maintained in accordance with this layout. Landlord shall have the right to expand the Property Improvements to adjoining or nearby property and to add to, remove, relocate, replace, and/or otherwise change the Common Areas or any other Property Improvements as currently existing or as may be later constructed and to make all such other changes to the size, location, and arrangement of the Common Areas or any other Property Improvements as Landlord deems advisable.
(b) Tenant shall have a non-exclusive right license to use the Common Areas (as constituted from they exist now or at any time to time, such use to be during the Term may exist) in common with Landlord, other Tenants of Shopping Center Landlord and other Tenants of Shopping Center tenants, occupants, and other persons entitled parties that Landlord allows to use the Property, provided that such use by Tenant shall be for access and parking only. Landlord agrees to operate and maintain the Common AreaAreas in a manner consistent with good commercial real estate practice. Landlord will have the right to (i) establish, subject to such modify, and enforce reasonable rules and regulations as Landlord may from time with respect to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires the Property and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or ; (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without close all or any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions portion of the Common Areas to prevent the acquisition of public rights therein, for construction, or for other purposes; and (iii) perform or permit such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area other acts in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or and to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as that Landlord in the use exercise of good business judgment the Landlord shall reasonably determine deems to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s businessadvisable. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation A copy of Landlord’s original investment in Shopping Centercurrent Rules and Regulations are attached hereto as Exhibit “B” and made a part hereof.
(c) Tenant acknowledges that it shall have no right of access to Columbus International Airport by virtue of this Lease. Notwithstanding anything Any such access may only be pursuant to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result terms of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail separate agreement between Tenant and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM ExpensesColumbus International Airport Authority.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (DSW Inc.)
Common Areas. 5.1 Tenant(a) Subject to subparagraph (b) below and the remaining provisions of this Lease, and it licensees, concessionaires, employees and customers Tenant shall have the non-exclusive right right, in common with others, to the use of such entrances, lobbies, fire vestibules, restrooms (excluding restrooms on any full floors leased by a tenant), mechanical areas, ground floor corridors, elevators and elevator foyers, electrical and janitorial closets, telephone and equipment rooms, loading and unloading areas, the Property’s plaza areas, if any, ramps, drives, stairs, and similar access ways and service ways and other common areas and facilities in and adjacent to the Building and the Property as are designated from time to time by Landlord for the general nonexclusive use of Landlord, Tenant and the other tenants of the Property and their respective employees, agents, representatives, licensees and invitees (“Common Areas”). The use of such Common Areas shall be subject to the rules and regulations contained herein and the provisions of any covenants, conditions and restrictions affecting the Building or the Property. Tenant shall keep all of the Common Areas free and clear of any obstructions created or permitted by Tenant or resulting from Tenant’s operations, and shall use the Common Areas as constituted only for normal activities, parking and ingress and egress by Tenant and its employees, agents, representatives, licensees and invitees to and from the Premises, the Building or the Property. If, in the reasonable opinion of Landlord, unauthorized persons are using the Common Areas by reason of the presence of Tenant in the Premises, Tenant, upon demand of Landlord, shall correct such situation by appropriate action or proceedings against all such unauthorized persons. Nothing herein shall affect the rights of Landlord at any time to timeremove any such unauthorized persons from said areas or to prevent the use of any of said areas by unauthorized persons. Landlord reserves the right to make such changes, such use alterations, additions, deletions, improvements, repairs or replacements in or to be in common with Landlordthe Building, other Tenants of Shopping Center the Property (including the Premises), the Centre and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations Areas as Landlord may from time reasonably deem necessary or desirable, including, without limitation, constructing new buildings and making changes in the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading areas, landscaped areas and walkways; provided, that such acts do not unreasonably interfere with Tenant’s use or occupancy of the Premises or access thereto. Notwithstanding any provision of this Lease to time prescribethe contrary, provided that Landlord the Common Areas shall provide not in any event be deemed to be a portion of or included within the Premises leased to Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees the Premises shall not be parked in specific portions deemed to be a portion of the Common Areas. Upon reasonable written request This Lease is granted subject to the terms hereof, the rights and interests of third parties under 40 TEXAS WITH BASE YEAR existing liens, ground leases, easements and encumbrances affecting such property, all zoning regulations, rules, ordinances, building restrictions and other laws and regulations now in effect or hereafter adopted by any governmental authority having jurisdiction over the Property or any part thereof.
(b) Notwithstanding any provision of this Lease to the contrary, Landlord specifically reserves the right to redefine the terms “Centre” and “Property” for purposes of allocating and calculating Operating Expenses so as to include or exclude areas as Landlord shall from time to time determine or specify (and any such determination or specification shall be without prejudice to Landlord, Tenant shall have thirty (30) days ’s right to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employeesrevise thereafter such determination or specification). If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common AreasIn addition, Landlord shall have the right in its sole discretion to contract or otherwise arrange for amenities, services or utilities (ithe cost of which is included within Operating Expenses) charge Tenant ten Dollars to be on a common or shared basis to both the Property ($10.00i.e., the area with respect to which Operating Expenses are determined) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or and other portions of the Common Areas for Centre, so long as the basis on which the cost of such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings amenities, services or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or utilities is allocated to the Common Areas Property is determined on an arms-length basis or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such some other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall basis reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission determined by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which case where the definition of the Property or the Centre is specified to revised for purposes of the allocation or determination of Operating Expenses, Tenant’s Proportionate Share shall be included in CAM Expenses and is also specified to be excluded from CAM Expenses within appropriately revised. The Rentable Area of the above list, the exclusions listed above shall prevail Property and the expenses shall be deemed excludedCentre is subject to adjustment by Landlord from time to time, but only as a result of any additions or deletions to any of the buildings in the Centre, provided, however, in no event will Tenant’s Proportionate Share increase during the initial Term. Landlord shall not recover more than 100% have the sole right to determine which portions of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or Centre and other regulations that were not required when the building was built areas, if any, shall be considered CAM Expenses. The share to be paid served by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Centercommon management, operation, maintenance and repair. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the rightexclusive rights to the airspace above and around, during business hours and upon reasonable prior noticethe subsurface below, from time to time to inspect Landlord’s books the Premises and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days other portions of the result of Building and the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM ExpensesCentre.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Office Lease (Markit Ltd.)
Common Areas. 5.1 Tenant(a) During the Term, and it licenseesuntil the occurrence of the Multi‑Tenant Occupancy Date, concessionaires, employees and customers Tenant shall have the non-exclusive use and possession of all Common Areas (subject to all applicable provisions of this Master Lease, Legal Requirements and Encumbrances) and shall be solely responsible therefor, including all maintenance and repairs relating thereto, and shall pay all CAM Expenses and all Property Document CAM Expenses, and the maintenance and repair obligations pursuant to Section 10.1.
(i) From and after the Multi‑Tenant Occupancy Date, Landlord shall operate and maintain (or cause to be operated and maintained) the Common Areas located wholly within the Property in such a manner as Landlord, in its reasonable discretion, shall determine as being compliant with the Legal Requirements and Encumbrances, but subject to the terms and conditions of this Master Lease relating to any conditions, rights or restrictions of Landlord’s and Landlord’s Related Users in the Common Areas located wholly within the Property, further subject to Tenant’s obligations in Section 10.1(c). Tenant shall have a nonexclusive right and license to use the Common Areas as constituted in common with Landlord, and their respective Related Users (including all of the same Persons with respect to the Recapture Space and Additional Recapture Space), for the sole purposes of access, ingress, egress, loading and unloading, and parking, subject to the provisions of this Master Lease, all Encumbrances, and all applicable Legal Requirements and Insurance Requirements. Tenant’s use of the Common Areas shall be subject to all rules and regulations set forth in the applicable Encumbrances (including, without limitation, any rights of any parties (including Landlord) to reconfigure or alter such Common Areas, at any time and from time to time), and the reasonable, nondiscriminatory rules and regulations promulgated by Landlord in its discretion from time to time, such use to be including the designation of specific areas within Landlord’s premises or in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that proximity thereto in which automobiles owned by Tenant, its licensees, concessionaires and employees ’s Related Users shall be parked and to accommodate the reasonable requests and requirements of Landlord and Landlord’s Related Users, provided, that the same shall not increase Tenant’s obligations or decrease Tenant’s rights or remedies under this Master Lease, in specific portions any material respect. Furthermore, Tenant covenants not to do or permit to be done any act in, on or about the Common Areas or the Demised Premises which would interfere with the use or enjoyment of the premises demised under the Leases or any Recapture Space (or any adjacent shopping center, shopping mall or third‑party owner’s property, as the case may be), or the Common Areas. Upon reasonable written request Areas by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list its other tenants, authorized users and assigns, or the other owners, tenants, or occupants of any adjacent shopping center, shopping mall, as the case may be, or the respective agents, employees, customers, licensees and invitees of any of the license numbers foregoing parties.
(ii) Subject to the provisions of all automobiles operated by any applicable Encumbrances, Legal Requirements and Insurance Requirements and the terms and conditions set forth in this Section 10.2(a)(ii), subsequent to the Multi‑Tenant Occupancy Date with respect to a Demised Premises, Tenant, its licensees, concessionaires Landlord and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord Landlord’s Related Users shall have the right in its sole discretion to (iA) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other utilize portions of the Common Areas for outdoor events, activities, shows, displays, temporary special promotional events, including sales from temporary facilities, and including carnivals, automobile and boat shows and sales, sales of rugs, cars, spas, plants and antiques, tent sales, and National Safety Weekend events and other charity events (including charity walks); or (B) to utilize the lighting standards and other areas in the parking lot for advertising purposes ((A) and (B) collectively, the “Promotional Rights”), subject to Landlord’s reasonable rules and regulations applicable to all tenants of the Property with respect to the manner of the exercise of such minimal periods Promotional Rights; provided, that (x) Tenant’s Promotional Rights shall include, and Tenant shall exercise Promotional Rights in a manner described in Section 10.2(a)(ii)(A) that is consistent with, the historical practices of time as Tenant at that Store or that may be reasonably necessary for conducted on a regional basis with respect to an affected Store (i) temporary use as a work area including, without limitation, outdoor garden and/or patio shops), and such other uses in connection with the construction natural evolution of buildings or other improvements within Tenant’s generally permitted use of the Shopping Center or contiguous property, Demised Premises (ii) repairs or alterations in or subject to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing Landlord’s reasonable approval of such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future constructionuses), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iiiy) except Tenant shall not exercise any Promotional Rights in a manner (as opposed to the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance nature of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects use) that would reasonably be expected to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for have a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with material adverse impact on Landlord or any general partnerthird party tenant to whom Landlord has leased or licensed all or any portion of the Property other than the Demised Premises (“Third Party Tenant”). Landlord shall have the right to grant Promotional Rights to any Third Party Tenant, officerprovided, director or shareholder of that, no such Promotional Rights shall be exercisable in a manner that would reasonably be expected to have a material adverse impact on Tenant, Landlord or any of the foregoingother Third Party Tenant. Tenant, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, Landlord and legal third‑party Tenants shall work cooperatively and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to coordinate the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% exercise of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared Promotional Rights in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesforegoing provisions.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 Tenant7.01 Subject to the provisions of Section 5.03, Landlord will enforce the Reciprocal Construction Operation and it licenseesEasement Agreement, concessionairesbetween Ground Lessor and the Township of Weehawken.
7.02 Tenant and its subtenants and their respective officers, employees employees, agents, customers and customers invitees, shall have the non-exclusive right, in common with Landlord and all others to whom such right may have been or may hereafter be granted, but subject to the Rules and Regulations, if any, to use the Common Areas as constituted common areas. Landlord reserves the right, at any time and from time to time, to close temporarily all or any portions of the common areas of the Lincoln Harbor Project (provided that such use closure does not unreasonably interfere with Tenant's business at the Demised Premises, except in cases of emergency) when in Landlord's reasonable judgment any such closing is necessary or to be (a) permit Hart▇ ▇▇ its successors or assigns or designees to make repairs or changes or to effect construction within the Lincoln Harbor project; (b) prevent the acquisition of public rights in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other such areas; or (c) to protect or preserve natural persons entitled to use the Common Area, subject to such reasonable rules and regulations as or property. Landlord may from time do such other acts in and to time prescribethe 14 18 common areas of the Lincoln Harbor Project as in its reasonable judgment may be desirable to improve or maintain same, provided provided, however that Landlord shall provide Tenant with at least sixty (60) days prior written notice not change the standard of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions maintenance of the Common Areascommon areas of the Lincoln Harbor Project without Tenant's approval, which approval shall not be unreasonably withheld or delayed. Upon reasonable written request In all such events, Landlord's Work shall be commenced and prosecuted diligently and with as little interference as possible with Tenant's use of the Demised Premises.
7.03 Tenant agrees that it, any subtenant or licensee and their respective officers, employees, contractors and agents will park their automobiles and other vehicles only where and as permitted by Landlord. Tenant will, if and when so requested by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of with the license numbers of all automobiles operated by any vehicles of Tenant, its licenseesany subtenant or licensee and their respective officers, concessionaires employees and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlordagents. Tenant shall not interfere be furnished with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate 1 unreserved parking space for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change every 690 square feet of Floor Space in the sizeBuilding, locationof which spaces, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than 's request, five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and reserved for exclusive executive parking. Tenant shall have access to all such spaces twenty-four (24) hours a day, throughout the Term. Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, maintain or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed cause to be CAM Expenses payable by Tenant and collectible by Landlord as suchmaintained all such parking in a manner reasonably satisfactory to Tenant.
Appears in 1 contract
Common Areas. 5.1 TenantLandlord hereby grants to Tenant a non-exclusive license to use (i) the parking areas provided by Landlord in the Shopping Center for the accommodation and parking of vehicles of Tenant and its officers, agents and it licensees, concessionaires, employees and customers shall have while such customers are shopping in the Premises or in any other portion of the Shopping Center, (ii) the public conveniences of the Shopping Center, including any connecting passageways and lobbies used in conjunction with hotels and/or office buildings, and (iii) all other areas in the Shopping Center, including the so-called "mall", to be used in common by tenants of the Shopping Center, such parking areas, public conveniences and other common areas being hereafter collectively referred to as "Common Areas". Notwithstanding any of the provisions herein contained, Landlord retains and reserves the non-exclusive right to the use the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list .
A. Exhibit A sets forth the general layout of the license numbers Shopping Center, but shall not be deemed to be a warranty, representation or agreement on the part of all automobiles operated by TenantLandlord that the Shopping Center will be or will continue to be exactly as indicated on said diagram, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have reserves the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in increase, eliminate, reduce or change the number, type, size, location, elevation, nature and use of any of the Common Areas other than those designatedor the buildings comprising the Shopping Center, and/or (ii) have make changes, additions, subtractions, alterations or improvements in or to such car(sCommon Areas, including, but not limited to, the construction of decked or subsurface parking, (iii) physically removed from withdraw portions of the Shopping Center at Tenant’s expense without any liability whatsoever from Common Area or add Common Area to Landlord. Tenant shall not interfere with the rights of Shopping Center, including non-contiguous parcels for parking and other persons to use related Shopping Center purposes and (iv) construct buildings, additional Department Stores, kiosks and other improvements in the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive Tenant shall have no rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas land or make improvements below floor slab level or above the interior surface of the ceiling of the Premises or air rights above the Premises.
B. Landlord shall not, pursuant to Subsection 4.1 A, create any changespermanent, repairssubstantial, temporary closings or modifications adverse interference with access to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or from the Shopping Center, (2) reduce or impede access to covered mall upon which the Premises or the Shopping Center, or (3) reduce the proximity front of the Premises to abuts. However, this provision shall not preclude Landlord from installing carts or erecting kiosks or similar improvements anywhere in the parking areas covered mall, so long as any kiosks or the impact the convenience similar improvements which are located in front of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space are approximately centered in the Shopping Centermall. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except 's sole remedy in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation event of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s 's failure to comply with any lawthis Subsection 4.1 B shall be to terminate this Lease. In the event Tenant, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid Landlord's failure to any personso comply, firm or corporation related shall exercise its right to or otherwise affiliated with Landlord or any general partnerterminate this Lease, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shallpay, within ninety (90) days after following the commencement of each Lease Yeardate Tenant vacates and surrenders the Premises, notify Tenant in writing the then unamortized cost of the monthly charges due from permanent leasehold improvements (excluding, inter alia, trade fixtures and equipment, furnishings, decorations, inventory and other items of personal property) initially made by Tenant based upon pursuant to Article 2 of this Lease, assuming a useful life equal to the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement length of the expenses relating to the Common Areas for such yearoriginal Term of this Lease and amortization on a straight line basis. Tenant shall, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made not later than sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination Commencement Date, deliver an affidavit of the term an officer of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.a certifi-
Appears in 1 contract
Common Areas. 5.1 (a) As used in this Lease, the term "Common Areas" shall mean those ------------ portions of, and facilities within, the Shopping Center which are intended for the common non-exclusive use of the occupants, their customers, agents and employees including, without limitation, parking areas, driveways, malls, walkways, loading zones and landscaping. Prior to the Commencement Date, Landlord shall construct the Common Areas of the Shopping Center substantially as shown on Exhibit A attached hereto, subject to such modifications as are --------- desired by Landlord, provided that Tenant's prior written approval thereof is obtained, which approval shall not be unreasonably withheld, conditioned or delayed.
(b) Tenant, and it licensees, concessionairesas well as its agents, employees and customers (collectively, "Customers"), shall have the non-exclusive right to and are granted complete, nonexclusive --------- and undisturbed access to, and use of all Common Areas. Tenant's use of the Common Areas as constituted from time to time, such use to shall be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable reasonable, non-discriminatory rules and regulations as may be promulgated and thereafter amended and supplemented by Landlord from time to time as Landlord deems necessary or advisable for proper and efficient use, operation and maintenance of the Common Areas, provided that all such rules and regulations shall be subject to the prior written approval of Tenant, which approval shall not be unreasonably withheld, conditioned or delayed and in no event shall such rules and regulations increase the monetary obligations owing from Tenant to Landlord under this Lease. Except as may be required by Law, in no event shall there ever be a charge for use of the parking facilities within the Center. If any such charge is required by applicable Law, Landlord shall establish systems of validation to enable Tenant to provide parking without charge for its customers using such parking facilities for a reasonable period not less than three (3) hours. Landlord may from time to time prescribeestablish, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord as a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or rules subject to the Common Areas Tenant's approval as set forth in the initial sentence of this Section, such employee parking systems (which shall be free of any charge to Tenant or to any sewersits employees, utility facilities or distribution lines located within the Common Areasunless such a charge is required by applicable Law, (iiiin which event such charge shall be borne by Landlord) preventing the public from obtaining prescriptive rights in or as are not unreasonably burdensome to the Common Areasoperation of Tenant's business, (iv) and provide sufficient means of transportation and security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, for access to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s businesssuch employee parking. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without Without limiting the generality of the foregoing, costs incurred for lightingTenant shall use commercially reasonable efforts to cause its employees to park within the employee parking areas designated by Landlord to the north, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping northeast and repairing west of the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Premises but not within the portion of the Shopping Center which is not separately metered both (x) south of the Premises and (y) east of main drive aisle into the Shopping Center from Foothill Boulevard (between Pad building "A" and "C" as shown on Exhibit A). Landlord shall use reasonable ---------- efforts to Tenants (single or multiple) thereof together with an allowance prevent use of 10% of CAM Expenses, the Common Areas by other than taxes Shopping Center occupants and insurancetheir Customers. Landlord shall cause the Common Areas to be maintained and operated in a first-class, professional manner and condition as is customary and appropriate for Landlord’s direct overhead but excluding depreciation the operation of Landlord’s original investment first-class retail centers comparable to the Shopping Center in the vicinity of the Shopping Center. Notwithstanding anything So long as access, parking and other essential services are reasonably available so as to avoid any adverse affect upon the contrary contained in this leaseoperation of Tenant's business from the Premises, additional rent shall not include the following: Landlord may at any time (1i) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or close any of the foregoingCommon Areas to make repairs or changes or to such extent as may, in Landlord's reasonable opinion, be necessary to prevent dedication thereof or the accrual of rights to any person or to the extent public therein, (ii) close temporarily any or all of the Common Areas to discourage non-customer parking, and (iii) perform such other acts in and to the Common Areas as, in Landlord's good business judgment, are advisable to improve the use thereof by occupants and tenants, their employees and invitees, so long as the same exceeds arm’s length competitive prices paid is effected in Clearwater, Florida for similar services or goods; (5) costs incurred a manner to remove any hazardous materials or other toxic material or substances from either minimize interference with the operation of business of the occupants of the Shopping Center; Center including, without limitation, Tenant. Landlord shall maintain the Common Areas well lighted during Tenant's normal business hours and until 11:00 P.M. every day.
(6c) costs relating Subject to maintaining Landlord’s existencethe provisions of this Section 9(c), either as a corporation, partnership, trust Landlord may from ------------ time to time add land to or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting eliminate land from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair eliminate or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discountsadd any improvements, trade discounts or quantity discounts received by Landlord change or Landlord’s managing agent consent to a change in the purchase shape, size, location, number, height or extent of the improvements to any goods, utilities or services in connection with the prudent operation portion of the Shopping Center. In the calculation of any CAM Expenses hereunder; provided, it is understood however, that no expense Tenant's prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed, shall be charged more than once. Landlord shall required for any such change which would have an adverse affect upon Tenant's use its best efforts in good faith to effect an equitable proration or occupancy of bills for services rendered or operation from the Premises, parking areas serving the Premises, or pedestrian or vehicular access to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In Premises from the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excludedCommon Areas and/or public rights-of-way adjacent thereto. Landlord shall not recover more than 100% change the dimensions or location of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease (Sport Chalet Inc)
Common Areas. 5.1 Tenant, and it licensees, concessionaires, employees and customers SECURITY/PARKING. The common areas of the Building shall have the non-exclusive right to use the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules Landlord's sole management and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulationcontrol. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without Without limiting the generality of the foregoingimmediately preceding sentence, costs incurred Landlord reserves the exclusive right as it deems necessary or desirable to install, construct, remove, maintain and operate lighting systems, facilities, improvements, equipment and signs on, in or to all parts of the common areas; change the number, size, height, layout, or locations of walks, driveways and truckways or parking areas now or later forming a part of the Land or Building; make alterations or additions to the Building or common area; close temporarily all or any portion of the common areas to make repairs, changes or to avoid public dedication: grant easements to which the Land will be subject, replat, subdivide, or make other changes to the Land; place, relocate and operate utility lines at the Land and Building; and use or permit the use of all or any portion of the roofs of the Building. Landlord has no duty or obligation to provide any security services in, on or around the Premises, Land or Building, and Tenant recognizes that security services, if any, provided by Landlord will be for lighting, painting, cleaning, central trash disposal (if the sole benefit of Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation protection of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease's property and under no circumstances shall Landlord be responsible for, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply and Tenant waives any rights with any lawrespect to, statute, regulation, Landlord providing security or other governmental protection for Tenant or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any personTenant's Agents or property in, firm on or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for about the Premises, Land or Building. Landlord shall, within ninety (90) days after During the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) daysTerm, as may be applicableextended, and provided that an Event of Default has not occurred and is not then continuing, Tenant shall be entitled to eight (8) underground reserved parking spaces at the Building. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant maintain a 4.0/1,000 square foot ratio for any CAM Expenses pursuant to this article within one (1) year, then outdoor surface parking spaces at the Building and the Land; provided that Landlord shall be deemed to have waived its reserves the right to collect such CAM Expenses. In addition, relocate parking areas and driveways and to build additional improvements in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination common areas of the term of this lease, then Landlord Building and the Land; provided that the parking areas shall be deemed remain in reasonably close proximity to have waived its right to collect such CAM Expensesthe Building.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Office Lease (Eloyalty Corp)
Common Areas. 5.1 Tenant, its employees and invitees may, except as ------------ otherwise specifically provided in this Lease, use the common areas of the Building as such common areas may be designated from time to time by Landlord (the "Common Areas"), in common with other persons for ingress and egress and open-space purposes and for other purposes specifically designated by Landlord during the term of this Lease, which use shall be subject to the restrictions set forth in this Lease (including, without limitation, the Rules and Regulations) and any further reasonable restrictions promulgated by Landlord from time to time. Landlord shall at all times have the right and privilege of determining the nature and extent of the Common Areas and of making such changes therein and thereto from time to time which, in its reasonable opinion, are deemed to be desirable and for the best interests of all persons using the Common Areas and of Landlord, including, without limitation, the withdrawal of any portion thereof and the relocation of driveways, entrances, exits, corridors, automobile parking spaces (if any), the direction and flow of traffic, installation of prohibited areas, landscaped areas, and all other facilities thereof. Nothing contained herein shall be deemed to create any liability upon Landlord for any injury to or death of persons or for damage to or destruction of property, including, without limitation, for any damage to motor vehicles of Tenant, its customers or employees, or for loss of property from within such motor vehicles, unless caused by the negligence of Landlord, its agents, contractors, servants or employees. Landlord shall at all times during the term of this Lease have the sole and exclusive control of the Common Areas and may at any time and from time to time during the term hereof exclude and restrain any person from use or occupancy thereof excepting, however, bona fide invitees of Tenant and other tenants of Landlord who make use of said Common Areas in accordance with the Rules and Regulations pertaining thereto. The rights of Tenant hereunder in and to the Common Areas shall at all times be subject to the rights of Landlord and other tenants of Landlord who use the same in common with Tenant, and it licensees, concessionaires, employees and customers shall have be the non-exclusive right duty of Tenant to use keep all the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants of Shopping Center free and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice clear of any such rule obstructions created or regulation. Landlord may require that automobiles owned permitted by Tenant or resulting from Tenant's operation, its licensees, concessionaires and employees be parked in specific portions to permit the use of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas only for such minimal periods ingress and egress by the invitees of time as may be reasonably necessary for (i) temporary use as a work area Tenant to and from the Building. If, in connection with the construction opinion of buildings or other improvements within the Shopping Center or contiguous propertyLandlord, (ii) repairs or alterations in or to unauthorized persons are using the Common Areas by reason of the presence of Tenant in the Leased Premises, Tenant, upon demand of Landlord, shall correct such situation by appropriate action or proceedings against all such unauthorized persons. Nothing herein shall affect the right of Landlord at any time to remove any such unauthorized persons from said areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in prevent the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced said areas by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesunauthorized persons.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease (Genesys Telecommunications Laboratories Inc)
Common Areas. 5.1 Tenant4.1 Landlord may, and it licensees, concessionaires, employees and customers shall have the non-exclusive right to use the Common Areas as constituted from time to time, make available, within the boundaries of the building project, such use to be in common with Landlordparking facilities, other Tenants of Shopping Center driveways, entrances and exits thereto, landscape and planted areas, and other Tenants of Shopping Center improvements and other persons entitled to use the Common Areafacilities, subject to such reasonable rules and regulations whether similar or dissimilar, as Landlord may shall at any time and from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty deem appropriate (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked all the foregoing being collectively referred to in specific portions of the this Lease as "Common Areas"). Upon reasonable written request by LandlordTenant and its officers, Tenant employees, agents, customers and invitees shall have thirty (30) days a nonexclusive right, in common with Landlord and all others to furnish to whom Landlord a complete list of the license numbers of all automobiles operated by Tenanthas granted or may hereafter grant rights, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the The Common Areas for such minimal periods of time as may shall at all times be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or subject to the Common Areas or exclusive control and management of Landlord, and Landlord shall have the right from time to any sewerstime to establish, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or modify and enforce reasonable rules and regulations with respect to the Common Areas, and Tenant agrees, after notice thereof, to abide by such rules and regulations and to cause its officers, employees, agents, customers and invitees to conform thereto.
4.2 With respect to the parking of vehicles at the building project:
(ivi) security reasonsThroughout the term of the Lease, so long as Tenant is not in default of any of the terms of this Lease, Landlord shall make available to Tenant unreserved parking space at no charge for thirty-five (35) cars, which shall be located in the parking lots surrounding the Building. If Tenant or its invitees use more than the specified number of spaces set forth above, then after five (5) days notice from Landlord, Tenant shall, at the option of Landlord, either (i) pay Landlord $40 per month for each additional space used for each month during which such excess use takes place (so long as such use is for more than half a month), or (vii) doing cease and performing desist immediately from using said additional spaces. If Landlord selects the first of such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this leaseoptions, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of revoke such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based choice on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days notice.
(ii) Tenant, its personnel and visitors shall not at any time park any large trucks or delivery vehicles, other than loading or unloading, in any of the result parking areas.
(iii) All use of the audit. Any discrepancy shall be promptly corrected parking spaces and any other parking areas by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations its personnel and visitors will be at their own risk, and Landlord shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant liable for any CAM Expenses pursuant injury to this article within one person or property, or for loss or damage to any vehicle or its contents, resulting from theft, collision, vandalism or any other cause whatsoever, other than gross negligence or intentional tort on the part of Landlord.
(1iv) year, then Landlord There shall be deemed no overnight parking, and Tenant shall cause its personnel and visitors to have waived remove their vehicles from the parking area at the end of the working day. If any vehicles owned by Tenant or by its right to collect such CAM Expenses. In addition, personnel or visitors remains in the event that parking area overnight and the same interferes with the cleaning or maintenance of said area, any costs or liabilities incurred by Landlord shall fail in removing said vehicle to invoice Tenant for effectuate cleaning or maintenance, or any CAM Expenses pursuant damages resulting to this article within six (6) months following the expiration said vehicle or termination to Landlord's equipment or equipment owned by others, by reason of the term presence of this lease, then Landlord or removal of said vehicle during such cleaning or maintenance to the extent said damages are not covered by insurance shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed paid on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable demand by Tenant within thirty (30) days of receipt of to Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as suchadditional rent under this Lease.
Appears in 1 contract
Common Areas. 5.1 TenantAll private sidewalks, lighting facilities, hallways, stairways, lobbies, elevators, restrooms and it licenseesother areas and improvements provided by Landlord for the general use in common of lessees and their customers in the Building (all herein collectively called the “Common Areas”) shall at all times be subject to the exclusive control and management of Landlord; provided, concessionaireshowever, employees that Landlord’s exclusive control and management of the Common Areas shall not be deemed an undertaking by Landlord to ensure or be a guaranty of the safety of Tenant or any of its agents, employees, contractors, customers or invitees, or the property of any such parties. Tenant shall have the non-exclusive right to use the Common Areas as constituted from time to timeAreas, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use lessees in the Common AreaBuilding, subject to the Rules and Regulations (as hereinafter defined). If the size or configuration of the Common Areas is diminished or altered, Landlord shall not be liable to Tenant on account thereof nor shall Tenant be entitled to any compensation or reduction or abatement of the Rent, and any such reasonable rules diminution or alteration shall not be considered a constructive or actual eviction. Tenant also agrees that Landlord shall have the right to do and regulations perform such acts in and to the Common Areas as Landlord may Landlord, in the exercise of its good faith business judgment, shall determine from time to time prescribe, provided that to be advisable. Landlord shall use commercially reasonable efforts to ensure that Landlord’s control of and acts within the Common Areas do not materially hinder access to, nor materially diminish Tenant’s quiet enjoyment or use of, the Premises. To the extent permitted by law, Tenant may use the Building’s fire stairs connecting the floors of the Premises as convenience stairs for inter-floor access within the Premises. To the extent permitted by law and provided Landlord’s keycards continue to provide access, Tenant with may install an internal key card system as part of this right at least sixty (60) days prior written notice of any such rule or regulationTenant’s expense. Landlord may require that automobiles owned any system so installed by Tenant be compliant, compatible, and installed in a coordinated manner with Landlord’s fire and security systems, including giving the main Building system the ability to lock or unlock the doors in the event of an emergency or test. Tenant, its licensees, concessionaires and employees be parked in specific portions ’s indemnity obligations under Section 18(a) of the Common AreasLease are hereby expanded to include accidents or occurrences in or about the stairwell, in addition to in or about the Premises. Upon reasonable written request by At Landlord’s request, Tenant shall have thirty (30) days be required to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at remove Tenant’s expense without card key access system and restore any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation damage caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based thereby upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or earlier termination of the term of this lease, then Landlord shall Lease. Any alterations that Tenant desires to perform in the Building’s stairwells must be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall compliant with code and may only be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of made with Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as suchprior written consent.
Appears in 1 contract
Sources: Office Building Lease (GrubHub Inc.)
Common Areas. 5.1 The term "Common Areas" is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Building Complex and interior utility raceways within the Premises that are provided and designated by the Landlord from time to time for the general non-exclusive use of Landlord, Tenant and other tenants of the Building Complex and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, utility rooms, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas. Landlord hereby grants to Tenant, for the benefit of Tenant and it licenseesits employees, concessionairessuppliers, employees shippers, contractors, customers and customers shall have invitees, during the Term of this Lease the non-exclusive right to use use, in common with others entitled to such use, the Common Areas as constituted they exist from time to time, such subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any rules and regulations or restrictions governing the use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled the Building Complex. Under no circumstances shall the right therein granted to use the Common AreaAreas be deemed to include the right to store any property, subject temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Landlord or Landlord's designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord. Landlord or such other person(s) as Landlord may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulationrespect thereto. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right right, in its Landlord's sole discretion discretion, from time to time: (i) charge Tenant ten Dollars ($10.00) per day per car parked to make changes to the Common Areas, including, without limitation, changes in any Common Areas other than those designatedthe location, and/or size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways; (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without to close temporarily any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time maintenance purposes so long as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or reasonable access to the Common Areas or Premises remains available; (iii) to any sewers, utility facilities or distribution lines located within designate other land outside the boundaries of the Building Complex to be a part of the Common Areas, ; (iiiiv) preventing the public from obtaining prescriptive rights in or to add additional building and improvements to the Common Areas, (iv) security reasons, or ; (v) doing to use the Common Areas while engaged in making additional improvements, repairs or alterations to the Building Complex, or any portion thereof; and performing (vi) to do and perform such other acts (whether similar or dissimilar to the foregoing) and make such other changes in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by and Building Complex as Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In additionmay, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination exercise of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed sound business judgment deem to be CAM Expenses payable by Tenant and collectible by Landlord as suchappropriate.
Appears in 1 contract
Common Areas. 5.1 Tenant(a) The Landlord agrees to maintain parking areas, sidewalks, roadways, exits and it licensees, concessionaires, employees and customers entrances of the shopping center. The Tenant shall have the non-exclusive right right, as an appurtenance to the Premises, to use the Common Areas parking areas, roadways, sidewalks, entrances and exits and other common facilities within the shopping center in common with others entitled to the use thereof, in accordance with and subject to the provisions of this lease and such reasonable regulations with respect to the use thereof as constituted the Landlord shall from time to timetime establish. The Landlord may make from time to time reasonable changes in any of the common facilities in the shopping center, such use to be which in common with the sole judgment of the Landlord, will not detract from the usefulness or attractiveness of such common facilities, except Landlord will not construct any new buildings in the area designated the "No Build Area" on Exhibit "A". The Tenant agrees not to cause or permit any obstruction or other Tenants interference with any roadway, sidewalk, or other common facility appurtenant to the Premises. No trucks or other delivery vehicles shall park or be permitted to park in the parking areas within the shopping center, and all loading or unloading of Shopping Center merchandise, supplies, fixtures, equipment and furniture shall be done at and through the proper service entrance or entrances in the rear or the side of the Premises.
(b) The Landlord agrees during the term hereof to operate, manage and maintain all such parking areas, roads, and other Tenants common facilities within the Shopping Center, exclusive of Shopping Center the parking areas and landscaping in the Premises, if any, and to maintain the landscaping, drainage and lighting facilities therefor, all in such manner and at such cost as the Landlord in its sole judgment may determine, it being understood and agreed that the Landlord shall not be liable for any inconvenience or interruption of business or other persons entitled to use consequence resulting from the Common Areamaking of repairs, subject replacements, improvements, alterations or additions or by doing of any other work with respect to such common facilities, where such delay or failure is attributable to strikes or other labor conditions, inability to obtain labor or materials or services, or to any other cause beyond the Landlord's reasonable rules and regulations control.
(c) The Tenant agrees to require its employees to park their cars only in such areas as the Landlord may from time to time prescribedesignate as employees' parking areas.
(d) Common area shall mean all service areas, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the sizeaccessways, locationsidewalks, orientation or visibility of the Premises or the Shopping Centercommon area lighting systems, (2) reduce or impede access to the Premises or the Shopping Centerlandscape areas, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facilitycommon area utility systems, directional and pylon signs and like items. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this leaseTenant, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, agrees to pay to Landlord, without offset or deduction, in equal monthly installments on the first day of each and every calendar month during the primary term hereof and any extension periods, (pro-rata for that portion of the calendar month in which the term hereof shall commence, if such portion is shorter than a full month) as herein provided, its share of expense commercially reasonable the cost to Landlord of keeping and necessarily maintaining the parking areas and other common facilities, the annual amount equal to Tenant's pro-rata share as defined hereinafter of all costs and expenses of every kind and nature as may be paid, incurred or amortized by Landlord in operating, managing, equipping, lighting, repairing, replacing and maintaining the common areas including but not limited to, parking areas, common facilities and related services, properly identification and traffic signs, and in policing the Shopping Center and affording protection thereof against fire (if and to the extent that such policing and/or fire protection is provided) as determined in accordance with generally accepted accounting principles and allocated to any particular fiscal year on the accrual method of accounting. Such costs and expenses shall include, but shall not be limited to: maintaining, cleaning, snow plowing, sanding, salting, and lighting the parking area and other common areas; costs and expenses of planting, replanting and replacing flowers and landscaping; water and sewerage charges; premiums for liability, property damage, fire and workmen's compensation insurance including an allocation by Landlord's insurance advisor for claims paid or to be paid by Landlord under Landlord's retention (beneath Landlord's insurance deductible); wages, unemployment taxes; social security taxes; personal property taxes; fee for required licenses and permits; supplies, operation of loud speakers and any other equipment used in the operation operation, repair and maintenance of the Common Areas common areas, common facilities and related services; and administrative costs equal to fifteen percent (“CAM Expenses”), including without limiting the generality 15%) of the foregoingtotal costs paid or incurred by Landlord under this Paragraph, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding there shall be excluded depreciation of Landlord’s the original investment in Shopping Centercosts of constructing, erecting and installing the common areas, common facilities and related services. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasiTenant's pro-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any rata share of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement referred to herein shall be that same percentage as set forth hereinbefore relating to Tenant's share of Real Estate Taxes. During the first lease year, the Tenant shall pay Landlord the annual sum of $36,480.00, payable monthly in Section 8.1 below. CAM Expenses shall be reduced by all cash discountsadvance, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent together with the payments of rent due hereunder, in the purchase sum of any goods, utilities or services in connection with the prudent operation of the Shopping Center$3,040.00 per month. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined These amounts are based on the “as built” site plan approved by Premises consisting of 32,000 square feet and shall be proportionately reduced if the appropriate governmental authorityPremises are reduced in size. Upon such approval If Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days determine that any sums are owed it after the commencement end of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar 's fiscal year, Landlord will shall furnish to Tenant a detailed statement in reasonable detail of the actual common area costs and expenses relating to the Common Areas for paid or incurred by Landlord during such year, such statement to be period prepared in accordance with generally accepted accounting practices principles by Landlord, and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) thereupon there shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both adjustment between Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that such pro-rata share shall be greater or less than the amount paid by Tenant as the case may require to the end that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following receive the expiration or termination entire amount of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated 's pro-rata share of such service costs and expenses. At the end of each fiscal year during the term hereof, Landlord may adjust Tenant's monthly common area maintenance payment so that the amount shall equal one-twelfth of Tenant's annual pro-rata share as reasonably determined by Landlord and set forth in Landlord's most recent statement. Such statement shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by conclusive between the parties. Landlord for water or sewer service used on reserves the Premises shall be deemed right to be CAM Expenses payable by Tenant and collectible by Landlord as suchchange its fiscal year.
Appears in 1 contract
Common Areas. 5.1 TenantIn connection with its lease of the Premises, and it licensees, concessionaires, employees and customers Tenant shall have the non-exclusive right right, together with other tenants and occupants and invitees, to use of the portions of the Land that are for the non-exclusive use of the tenants, occupants and invitees of the Building, including but not limited to elevators, stairwells, common hallways, lobbies, sidewalks, driveways, and parking lots (collectively the “Common Areas Areas”) for reasonable ingress to and egress from the Premises or the normal use thereof, subject to the other provisions of this Lease including, without limitation, the Rules and Regulations attached as constituted Exhibit C, as the same may be revised from time to time. The Common Areas are not for the use of the general public and Landlord shall in all cases retain the right to control and prevent access thereto by all persons whose presence, such use in the judgment of Landlord shall be prejudicial to the safety, character, reputation and interests of the Building and Land and the tenants. In addition, Landlord reserves the right to restrict anyone, including Tenant, its employees, agents and invitees from and Tenant, its employees, agents and invitees are hereby restricted from certain areas of the Building designated by Landlord (including but not limited to the roof, mechanical, electrical, and utility rooms and risers) even though the same may be in common with Landlord, other Tenants used by Landlord for the benefit of Shopping Center and other Tenants the tenants of Shopping Center and other persons entitled the Building. Landlord reserves the right to use any portion of the Common Area, subject to such reasonable rules and regulations as Landlord may Areas from time to time prescribeand/or to deny access to the same temporarily in order to repair, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any maintain or restore such rule facilities or regulation. Landlord may require that automobiles owned by Tenantto construct improvements under, its licenseesover, concessionaires along, across and employees be parked in specific portions of upon the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days same and to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated relocate such Common Areas, for the benefit of the Building, the Land, and other tenants, so long as reasonable access to the Premises and reasonable alternative parking is provided. Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in at any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from time without the Shopping Center at Tenant’s expense same constituting an actual or constructive eviction and without incurring any liability whatsoever to Landlord. Tenant shall not interfere with therefor, to change the rights arrangement and/or locations of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areasincluding entrances, (iv) security reasonsdriveways, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede so long as reasonable access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the and reasonable alternative parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein is provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (Spacedev, Inc.)
Common Areas. 5.1 TenantLandlord hereby grants to Tenant a non-exclusive license to use (i) the parking areas provided by Landlord in the Shopping Center for the accommodation and parking of vehicles of Tenant and its officers, agents and it licensees, concessionaires, employees and customers shall have while such customers are shopping in the Premises or in any other portion of the Shopping Center, (ii) the public conveniences of the Shopping Center, including any connecting passageways and lobbies used in conjunction with hotels and/or office buildings, and (iii) all other areas in the Shopping Center, including the so-called "mall", to be used in common by tenants of the Shopping Center, such parking areas, public conveniences and other common areas being hereafter collectively referred to as "Common Areas". Notwithstanding any of the provisions herein contained, Landlord retains and reserves the non-exclusive right to the use of the Common Areas.
A. Exhibit A sets forth the general layout of the Shopping Center, but shall not be deemed to be a warranty, representation or agreement on the part of Landlord that the Shopping Center will be or will continue to be exactly as indicated on said diagram, and Landlord reserves the right to (i) increase, eliminate, reduce or change the number, type, size, location, elevation, nature and use of any of the Common Areas or the buildings comprising the Shopping Center, (ii) make changes, additions, subtractions, alterations or improvements in or to such Common Areas, including, but not limited to, the construction of decked or subsurface parking, (iii) withdraw portions of the Shopping Center from Common Area or add Common Area to the Shopping Center, including non-contiguous parcels for parking and other related Shopping Center purposes and (iv) construct buildings, additional Department Stores, kiosks and other improvements in the Common Areas. Tenant shall have no rights with respect to the land or improvements below floor slab level or above the interior surface of the ceiling of the Premises or air rights above the Premises.
B. Landlord shall not, pursuant to Subsection 4.1 A, create any permanent, substantial, adverse interference with access to or visibility of the Premises from the covered mall upon which the front of the Premises abuts. However, this provision shall not preclude Landlord from installing carts or erecting kiosks or similar improvements anywhere in the covered mall, so long as constituted any kiosks or similar improvements which are located in front of the Premises are approximately centered in the mall. Tenant's sole remedy in the event of Landlord's failure to comply with this Subsection 4.1 B shall be to terminate this Lease. In the event Tenant, as the result of Landlord's failure to so comply, shall exercise its right to terminate this Lease, Landlord shall pay, within ninety (90) days following the date Tenant vacates and surrenders the Premises, the then unamortized cost of the permanent leasehold improvements (excluding, inter alia, trade fixtures and equipment, furnishings, decorations, inventory and other items of personal property) initially made by Tenant pursuant to Article 2 of this Lease, assuming a useful life equal to the length of the original Term of this Lease and amortization on a straight line basis. Tenant shall, not later than sixty (60) days follow-
4-1 ing the Commencement Date, deliver an affidavit of an officer of Tenant and a certificate of Tenant's architect accompanied by such bills, contracts, receipts, invoices, cancelled checks and the like as Landlord may reasonably require, specifying the cost of the Tenant's leasehold improvements, which amount shall, unless disputed by Landlord, thereupon be the basis for the amount to be paid by Landlord pursuant to this Subsection. Failure to timely deliver such affidavit, certificate and supporting data shall constitute a waiver of Tenant's right to such payment.
C. Tenant, its officers, agents and employees shall park their vehicles only in areas from time to timetime designated by Landlord as the area for such parking, provided that such use to areas shall be located in common with or not more than one-half (1/2) mile from the perimeter boundary of the Shopping Center. Tenant shall, within ten (10) days following written notice from Landlord, furnish Landlord, or its authorized agent, the state automobile license numbers assigned to its automobiles and the automobiles of all its employees employed in the Premises. Tenant shall not at any time park any trucks or any delivery vehicles in the parking area. Landlord shall have the right, after service of two (2) or more notices to Tenant regarding improper parking, to levy an assessment payable by Tenant in a sum not to exceed $10.00 per day for each and every car belonging to Tenant, its agents, servants, contractors, licensees or employees which shall thereafter park in an area other Tenants of Shopping Center than that designated by Landlord as a parking area for such vehicles. Such assessment shall be payable by Tenant on the next due date for Fixed Rent and other Tenants of Shopping Center and other persons entitled to use the shall be considered Additional Rent.
D. Common Area, Areas shall be subject to such reasonable rules and regulations regulations, including the right to impose parking charges or fees and to allocate parking areas on a uniform or non-discriminatory basis and to prohibit the use of the Shopping Center by such Persons as Landlord determines, as the same may be amended or modified, as Landlord may, from time to time prescribetime, adopt as provided that in this Lease.
E. Landlord shall provide Tenant with at least sixty (60) days prior written notice of reserves the right to close, if necessary, all or any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions portion of the Common Areas. Upon Areas for the minimum length of time as may, in the reasonable written request by opinion of Landlord's counsel, Tenant shall have thirty (30) days be legally sufficient to furnish to Landlord prevent a complete list dedication thereof or the accrual of the license numbers right of the public therein, to close temporarily, if necessary, all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close or any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or areas to the Common Areas or discourage non-customer parking and to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing do and performing perform such other acts (whether similar or dissimilar in and to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of will improve the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesthereof.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 Landlord hereby grants to Tenant, for the benefit of Tenant and it licenseesits employees, concessionairessuppliers, employees shippers, customers and customers shall have invitees, during the term of this Lease, the non-exclusive right to use use, in common with others entitled to such use, the Common Areas as constituted they exist from time to time, such subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any rules and regulations or restrictions governing the use to be in common with Landlordof the Project. Except as otherwise provided herein, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled under no circumstances shall the right herein granted to use the Common Area be deemed to include the right to store any property, temporarily or permanently, in the Common Area or to construct or install any improvements in the Common Area. Any such storage shall be permitted only by the prior written consent of Landlord or Landlord's designated agent, subject which consent may be revoked at any time. In the event that any unauthorized storage shall occur, the Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be immediately payable by Tenant to Landlord upon demand by Landlord. Landlord or such other person(s) as Landlord may appoint, shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations with respect thereto. Tenant agrees to abide by and conform to all such rules and regulations, as Landlord may from time well as any private conditions, covenants, and restrictions of public record now or hereafter affecting the Premises and any amendment thereof, and to time prescribecause its employees, provided that suppliers, shippers, customers and invitees to abide and conform. Landlord shall provide not be responsible to Tenant for the non-compliance with at least sixty (60) days prior written notice of any such rule said rules and regulations by other tenants or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions authorized users of the Project. Any failure by Tenant or its agents, employees or representatives to observe and comply with the rules and regulations established by Landlord with respect to the Common AreasAreas shall be a default by Tenant hereunder. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its Landlord's sole discretion discretion, from time to time: (i) charge Tenant ten Dollars ($10.00) per day per car parked to make changes to the Common Areas, including, without limitation, changes in any Common Areas other than those designatedthe location, and/or size, shape and number of driveways entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas and walkways; (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without to close temporarily any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time maintenance purposes, so long as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or reasonable access to the Common Areas or Premises remains available; (iii) to any sewers, utility facilities or distribution lines located within designate other land outside the boundaries of the Project to be a part of the Common Areas, ; (iiiiv) preventing the public from obtaining prescriptive rights in or to add additional buildings and improvements to the Common Areas, (iv) security reasons, or ; (v) doing to use the Common Areas while engaged in making additional improvements, repairs or alterations to the Project, or any portion thereof; (vi) to close, at reasonable times, all or any portion of the parking areas for any reasonable purpose, including without limitation, the prevention of a dedication thereof, or the accrual of the rights of any person or public therein; and, (vii) to do and performing perform such other acts (whether similar or dissimilar to the foregoing) and make such other changes in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make and the Project as Landlord may, in the exercise of sound business judgment, deem to be appropriate. Notwithstanding the foregoing, Landlord shall not be entitled to take any changes, repairs, temporary closings or modifications action pursuant to the Common Areas and/or parking areasthis Paragraph, if the same such action will (1) cause a change in the size, location, orientation or visibility materially interfere with Tenant's use and enjoyment of the Premises or pursuant hereto. Building means the Shopping Center, (2) reduce or impede access to building in which the Premises or the Shopping Centerare located, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay identified as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇ ▇▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by Sunnyvale, California. The total Rentable Area of the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as suchBuilding is 105,285 square feet.
Appears in 1 contract
Sources: Lease (Intuitive Surgical Inc)
Common Areas. 5.1 TenantAs used in this Lease, the term "common areas" shall mean (i) the following areas within the regional development: the parking areas and facilities, roadways, pedestrian sidewalks, truckways, loading docks, delivery areas, landscaped areas, the enclosed mall, elevators and escalators and stairs and ramps not contained in the lease areas, public bathrooms and comfort stations, pedestrian plazas, pedestrian passage areas, driveways, public transportation loading and unloading facilities, service and fire exit corridors, retention ponds ( if applicable) and other areas, amenities, facilities and improvements which may be provided by Landlord, (ii) those areas within the regional development and areas adjacent to the regional development which from time to time may be provided by the owners of such areas for the convenience and use of Landlord, the tenant of the Shopping Center, the owners and occupants of Major Tenant premises, and it licensees, their respective concessionaires, employees agents, employees, customers, invitees and customers shall have the non-exclusive right all other licensees and others entitled to use thereof, and (iii) any other facilities or areas, whether within or outside the Common Areas regional development, as constituted may be designated by Landlord from time to time, such . This use to be and occupancy by the Tenant of the lease premises shall include the use of the common areas in common with Landlord, other Tenants of Shopping Center the Landlord and other Tenants of Shopping Center with all others for whose convenience and other persons entitled to use the Common Areacommon areas have been or may hereafter be provided by Landlord or by the owners of common areas not within the Shopping Center, subject subject, however, to such reasonable rules and regulations for the use thereof as Landlord may prescribed from time to time prescribeby the Landlord, provided that Landlord including Landlord's right to impose parking charges whether by meter or otherwise. In no event, however, shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licenseesagents or employees, concessionaires use the common areas for the display or sale of merchandise. Tenant and its employees be parked shall park their cars only in specific portions of areas specifically designate d from time to time by Landlord for that purpose. Landlord will designate and area for Tenant's employees' parking and Tenant covenants that it will enforce the Common Areasparking by its employees in such designated area. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the Automobile license numbers of employees' cars shall be furnished to Landlord upon Landlord's request. Tenant authorized Landlord to attach violation stickers or notices to and to tow away from the regional development all automobiles operated by such cars of Tenant's employees as are improperly parking and agrees to reimburse Landlord for the cost thereof, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in pay the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten sum of Fifty Dollars ($10.0050.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have for each such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areascar improperly parked. Landlord may at any time close temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work common area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) to make repairs or alterations changes, to prevent the acquisition of public rights in such area or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing discourage non-customer parking; and performing may do such other acts (whether similar or dissimilar in and to the foregoing) in, to and with respect to, the Common Areas common areas as in its judgment may be desirable to improve the convenience thereof. All common areas and facilities, other than the leased premises, which Tenant may be permitted to use of good business judgment the Landlord shall reasonably determine and occupy pursuant to this Lease are to be appropriate for used and occupied under a revocable license, and if the Shopping Center, provided however, that Landlord shall use reasonable efforts not amount of such areas be diminished pursuant to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this leaseLease, Landlord shall not be permitted subject to take any action with respect liability nor shall Tenant be entitle to the Common Areas and/or parking areas any compensation or make any changes, repairs, temporary closings diminution or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility abatement of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent nor shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result diminution of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall areas be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental constructive or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesactual eviction.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (Cinema Ride Inc)
Common Areas. 5.1 Tenant, (a) The use and it licensees, concessionaires, employees and customers occupation by Tenant of the Premises shall have the non-exclusive include a right to the use the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants others entitled thereto of Shopping Center the common areas and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations facilities as Landlord may be designated from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, subject, however, to the terms and conditions of this Lease. All common areas and facilities not within the Premises, which Tenant shall have thirty (30) days may be permitted to furnish use and occupy pursuant to Landlord this paragraph, are to be used and occupied under a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employeesrevocable license. If Tenantthe measure of such areas is diminished by Landlord, its licenseesLandlord shall not be subject to any liability nor shall Tenant be entitled to any compensation or diminution or abatement of rent, concessionaires nor shall such diminution of such areas be deemed constructive or actual eviction.
(b) Landlord shall at all times during the term of this Lease have the following rights with respect to the common area and employees fail to park their cars in the designated Common Areas, other facilities:
(1) Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books alter and records relating to CAM Expenses, and/or to have such books modify the common areas and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent other facilities as it deems desirable in its sole discretion;
(5%2) in Landlord may discontinue the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days existence of the result common area subject to the requirements of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the laws and ordinances applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three thereto;
(3) years after it is rendered, Landlord may uniformly promulgate and enforce such statement shall become binding rules and conclusive on both regulations relating to the use of the common areas and other facilities as Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenantdeems necessary or desirable. In the event Landlord shall fail exercise the foregoing rights in such a manner as to invoice Tenant for any CAM Expenses pursuant minimize the interference with Tenant's beneficial enjoyment of the premises.
(c) Notwithstanding anything to this article within one (1) yearthe contrary, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of during the term of this leaseLease, then Landlord shall be deemed at all times operate and maintain the restrooms adjacent to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges(as depicted in the attached Exhibit B) and Tenant shall have continuous right of access and use of such restrooms. Landlord represents, the ▇▇▇▇ rendered warrants and covenants that such restrooms, including any improvements made by Landlord for the above Landlord, shall be based upon Tenant’s prorated share of in compliance with all laws and regulations, and built in a good and workmanlike manner with good materials, and the equipment and Landlord services serving such service as reasonably determined by Landlord and restrooms shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as suchin good working order.
Appears in 1 contract
Sources: Lease Agreement (Cellular Technical Services Co Inc)
Common Areas. 5.1 Landlord hereby grants to Tenant, during the Term of this Lease, the nonexclusive right to use, in common with all others so entitled, the Common Areas of the Shopping Center. As used herein, the term “Common Areas” shall mean and it licenseesinclude all areas, concessionairesfacilities and improvements provided from time to time for the general, employees and customers shall have the common or joint use on a non-exclusive right to basis by Landlord and the tenants of the Shopping Center, including, without limitation, all parking spaces and areas, pedestrian sidewalks, driveways, curbing, retaining walls, truckways, access roads, ramps, loading docks, delivery areas, storm and sanitary sewer systems, signs, music program service, if any, landscaped and vacant areas and lighting facilities, including all utilities serving the same, whether located within or outside of the Shopping Center property, except as may be otherwise designated by Landlord for the exclusive use the of any tenant. The Common Areas as constituted from time to time, such use to shall be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to the exclusive control and management of Landlord and to such reasonable rules and regulations as Landlord may from time to time, adopt. Tenant shall refrain from doing any act which interferes with Landlord’s exclusive control and management of the Common Area or with the use of Common Area by others. Landlord hereby reserves the right at any time prescribeor from time to time to: (a) change the areas, locations and arrangement of parking areas and other Common Areas; (b) enter into, modify and terminate easements and other agreements pertaining to the maintenance and use of the parking areas and other Common Areas; (c) close any or all portions of the Common Areas to such extent and from such time as may, in the sole discretion of Landlord’s counsel, be legally necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein; (d) close temporarily, if necessary, any part of the Common Areas in order to discourage non-customer parking; (e) make changes, additions, deletions, alterations or improvements in and to such Common Areas, provided that Landlord there shall provide be no unreasonable obstruction of Tenant’s right of ingress to or egress from the Demised Premises; and (f) adopt reasonable rules and regulations by which Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions shall abide relating to the use of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary Nothing contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible a warranty, representation or agreement by Landlord that the Shopping Center will be, or will continue to be as suchindicated on Exhibit A without change. Landlord may demolish buildings and improvements, build additional buildings, add additional floors, change the layout and otherwise change or reduce the Shopping Center buildings, the parking areas or Common Areas at any time, as Landlord deems necessary or desirable.
Appears in 1 contract
Sources: Shopping Center Lease Agreement
Common Areas. 5.1 Tenant7.01. Tenant and its subtenants and concessionaires, and it licenseestheir respective officers, concessionairesemployees, employees agents, customers and customers invitees, shall have the non-exclusive right right, in common with Landlord and all others to whom Landlord (or other owner of the Lincoln Harbor Project) has granted or may hereafter grant such right, but subject to the Rules and Regulations, to use the Common Areas as constituted common areas of the Lincoln Harbor Project. Landlord reserves the right, at any time and from time to time, to close temporarily all or any portions of such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, areas (provided that Landlord shall provide Tenant such closure does not unreasonably interfere with Tenant's business at least sixty (60the Demised Premises, except in cases of emergency) days prior written notice of when in Landlord's reasonable judgment any such rule closing is necessary or regulationto (a) make repairs or changes or to effect construction within the Lincoln Harbor Project; (b) prevent the acquisition of public rights in such areas; or (c) protect or preserve natural persons or property. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have also reserves the right in its sole discretion to grant easements for public utilities (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designatedincluding, and/or (ii) have such car(s) physically removed from without limitation, easements affecting the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area Land, in connection with the construction development of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing Lincoln Harbor Project. Landlord may do such other acts (whether similar or dissimilar in and to the foregoing) in, to and with respect to, the Common Areas such common areas as in the use of good business its reasonable judgment the Landlord shall reasonably determine may be desirable to be appropriate for the Shopping Centerimprove or maintain same, provided howeverprovided, however that Landlord shall use reasonable efforts not to unduly interfere with or disrupt change the standard of maintenance of such common areas without Tenant’s business. Notwithstanding anything to the contrary contained in this lease's approval, Landlord which approval shall not be permitted to take any action unreasonably withheld or delayed. In all such events, such work shall be commenced and prosecuted diligently and with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility as little interference as possible with Tenant's use of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facilityDemised Premises.
7.02. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rentthat it, as herein providedany subtenant or licensee and their respective officers, its share of expense commercially reasonable employees; contractors and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees agents will park their automobiles and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based vehicles only upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM ExpensesLand.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 10.1. Landlord hereby grants to Tenant, its employees, invitees and it licenseespermitted sublessees and assigns, concessionairesduring the Term, employees and customers shall have the non-exclusive nonexclusive right to use use, in common with all others so entitled, the Common Areas as constituted from time for pedestrian and vehicular traffic. The Common Areas shall be subject to time, such use to be in common with Landlord, other Tenants the exclusive control and management of Shopping Center Landlord and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may may, from time to time, adopt and Landlord reserves the right to change the areas, locations and arrangement of parking areas and other Common Areas; to enter into, modify and terminate easements and other agreements pertaining to the maintenance and use of the parking areas and other Common Areas; to close any or all portions of the Common Areas to such extent and for such time as may, in the sole discretion of Landlord's counsel, be legally necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein; to close temporarily, if necessary, any part of the Common Areas in order to discourage noncustomer parking; and to make changes, additions, deletions, alterations or improvements in and to such Common Areas, including methods of ingress to and egress from such Common Areas, provided that there shall be no material obstruction of Tenant's right of ingress to or egress from the Premises, nor shall there be any change in the location of the primary entrances to the Building, or in the configuration of the interior Common Areas providing access and ingress and egress to and from the Premises, or in the configuration of the parking areas set aside for Tenant's use as provided in Section 10.3. Landlord shall enforce any rules and regulations adopted in a nondiscriminatory manner.
10.2. Subject to the express provisions and limitations of this Lease, Landlord shall operate, maintain and repair all Common Areas and all major Building components, including structural, mechanical, electrical and heating, ventilating and air conditioning systems, in a manner consistent with the standards of operation, maintenance and repair employed by Tenant during its occupancy under that certain lease agreement captioned "Lease" between Landlord and Tenant, dated June 1, 1995, as amended
10.3. Tenant shall cause it and its employees to park only in the areas of the parking lot as provided and designated from time to time prescribeby Landlord for employee parking. Tenant shall have the exclusive right to use those spaces in the southeast parking lot numbered 1, 2, 3, 4, 5, 8, 9, 23, 24, 25, 26, 27, 28, 29, 40, 41, 42 and 43 and the handicapped space marked "Stone" (provided that Landlord shall provide Tenant with at least sixty it is used only by a disabled employee) on Exhibit "B-3" for parking of its vehicles and those of its employees. Within ten (6010) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written after a request by Landlord, Tenant shall have thirty (30) days to furnish deliver to Landlord a complete list of Tenant's and its employees' automobiles, which such list shall set forth the description of and the license numbers assigned to such automobiles and their state of all automobiles operated by Tenantissue. Thereafter, its licenseesTenant shall promptly advise Landlord of any changes, concessionaires and employeesadditions or deletions in such list. If Tenantany automobile appearing on said list is parked in any area of the Landlord's Parcel other than the area designated by Landlord at any time after Landlord has given notice to Tenant that the same automobile has previously been parked in violation of this provision, its licensees, concessionaires and employees fail then Tenant shall pay to park their cars in Landlord the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten sum of Ten Dollars ($10.0010) per day per car for each such automobile for each day (or part thereof) it is parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlordviolation of this provision. Tenant shall not interfere with the rights pay such sum to Landlord within ten (10) days after receipt of other persons to use the Common Areasnotice from Landlord. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar In addition to the foregoing) in, Tenant hereby authorizes Landlord in such event to attach violation stickers or notices to any of Tenant's automobiles, or automobiles belonging to Tenant's employees parked in violation of the foregoing covenant and with respect to, to remove from the Common Areas Landlord's Parcel at Tenant's cost and expense any such automobiles that are parked in parking spaces designated by Landlord as in "Visitor" spaces or for the exclusive use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility other tenants of the Premises or the Shopping CenterBuilding. Tenant hereby waives and releases Landlord and hereby indemnifies and holds Landlord harmless from all claims, (2) reduce or impede access to the Premises or the Shopping Centerliabilities, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesarise therefrom.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 TenantSo long as Tenant is leasing all of the space in the Building, and it licensees, concessionaires, employees and customers Tenant shall have the non-exclusive right to use the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Areaentire Premises, subject to such reasonable rules the provisions of this Lease and regulations as subject to the rights of access of Landlord may from time to time prescribeunder this Lease. If, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlordhowever, Tenant shall have thirty (30) days to furnish to Landlord a complete list exercises any of the license numbers of all automobiles operated by Tenantits “give back rights” under this Lease, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, then Landlord shall have the right to reasonably designate “Common Areas”, which shall mean all areas, space, facilities, equipment and signs made available by Landlord in its sole discretion the Building or on the Property for the common and joint use and benefit of Tenant and other tenants and permittees of Landlord, and their respective employees, agents, subtenants, concessionaires, licensees, customers, and other invitees, and may include the sidewalks, parking areas, driveways, yard area, landscaped areas, lobbies, restrooms, stairs, ramps, elevators, exits and/or service corridors, to (i) charge Tenant ten Dollars ($10.00) per day per car parked in the extent not contained within any area exclusively appropriated for the use of any occupant. If Common Areas other than those designatedare designated by Landlord, and/or (ii) have such car(s) physically removed from then Landlord also reserves the Shopping Center at Tenant’s expense without any liability whatsoever right to Landlord. Tenant shall not interfere with the rights of other persons impose reasonable rules and regulations relating to use of the Common Areas. Landlord may temporarily close any part ; to construct, maintain and operate lighting and other facilities, equipment and signs on all of the parking facilities Common Areas; and to close temporarily all or other portions any portion of the Common Areas for such minimal periods the purpose of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) making repairs or alterations in or to the changes thereto. If Common Areas are designated by Landlord, Tenant is hereby given a license (in common with all others to whom Landlord has or may hereafter grant rights) to any sewersuse, utility facilities or distribution lines located within during the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect toLease Term, the Common Areas as in they may now or at any time during the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping CenterLease Term exist; provided, provided however, that Landlord shall use reasonable efforts not to unduly interfere with if the size, location or disrupt Tenant’s business. Notwithstanding anything to arrangement of such Common Areas or the contrary contained in this leasetype of facilities at any time forming a part thereof are changed or diminished, Landlord shall not be permitted subject to take any action with respect liability therefor, nor shall Tenant be entitled to the Common Areas and/or parking areas any compensa-tion or make any changesdiminution or abatement of Rent therefor, repairs, temporary closings nor shall such change or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result diminution of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall areas be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental a constructive or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesactual eviction.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Office Lease (Express Scripts Inc)
Common Areas. 5.1 TenantThe “Common Areas” (as initially constructed or as the same may at any time thereafter be constituted by Landlord) shall mean all areas, space, facilities, equipment and signs made available by Landlord in the Building or on the Property for the common and joint use and benefit of Tenant and other tenants and permittees of Landlord, and it licenseestheir respective employees, agents, subtenants, concessionaires, employees licensees, customers, and customers shall have other invitees, and may include the non-exclusive right sidewalks, parking areas, driveways, yard area, landscaped areas, lobbies, restrooms, stairs, ramps, elevators, exits and/or service corridors, to the extent not contained within any area exclusively appropriated for the use of any occupant. Landlord hereby expressly reserves the Common Areas as constituted right, from time to time, such use to be in common with Landlord, other Tenants reasonably determine the nature and extent of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common AreaAreas, subject and to make such changes in the Common Areas and thereto from time to time, including the size and/or shape or both of the Common Areas and the location and relocation of entrances, exits, landscaped areas and all other facilities constituting Common Areas. In addition, Landlord also reserves the right to impose reasonable rules and regulations as Landlord may from time relating to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions use of the Common Areas. Upon reasonable written request by Landlord; to construct, Tenant shall have thirty (30) days to furnish to Landlord a complete list maintain and operate lighting and other facilities, equipment and signs on all of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may ; and to close temporarily close all or any part of the parking facilities or other portions portion of the Common Areas for such minimal periods the purpose of time making repairs or changes thereto. Tenant is hereby given a license (in common with all others to whom Landlord has or may hereafter grant rights) to use, during the Lease Term, as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect toextended, the Common Areas as in they may now or at any time during the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping CenterLease Term exist; provided, provided however, that Landlord shall use reasonable efforts not to unduly interfere with if the size, location or disrupt Tenant’s business. Notwithstanding anything to arrangement of such Common Areas or the contrary contained in this leasetype of facilities at any time forming a part of such Common Areas are changed or diminished, Landlord shall not be permitted subject to take any action with respect liability therefor, nor shall Tenant be entitled to any compensation or diminution or abatement of Rent therefor, and subject to the Common Areas and/or parking last sentence in this section, nor shall such change or diminution of such areas be deemed a constructive or make actual eviction. Notwithstanding the foregoing, at no time shall Landlord have any changes, repairs, temporary closings or modifications right to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2a.) reduce in number or impede access to relocate off the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience Property any of the parking facilities spaces allocable to the Premises or block Tenants drive through facility. The Tenant unless Landlord provides reasonable substitute parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease(i.e. comparable location, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the access and number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future constructionspaces), Landlord shall immediately provided, however, Section 9.E, rather than this paragraph, governs Landlord’s right to provide substitute parking facilities for on a temporary basis following a casualty event, and/or b.) disturb or modify or interrupt Tenant’s use right to use, maintain, and its invitees which facilities shall (i) cause no net reduction in operate Tenant’s parking space allocationback-up power generator or any antennas then installed by Tenant, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for however, the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (parties shall work together to minimize any impact on Tenant if Landlord elects it becomes necessary to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of affect such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred equipment in connection with negotiations construction or disputes with present maintenance work or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesemergency.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Full Service Lease Agreement (Time Warner Telecom Inc)
Common Areas. 5.1 TenantLandlord shall make available (or use commercially reasonable efforts to cause to be made available) throughout the Lease Term such “Common Areas” (including, but not limited to, parking areas, driveways, truck ways, service drives, service areas, delivery passages, truck-loading areas, access and it licenseesegress roads, concessionaireswalkways, employees footbridges, landscaped and customers shall have planted areas and public rest rooms) as may be shown on the Site Plan or which are otherwise available for the non-exclusive right use of the occupants of the Real Property. Landlord shall (or shall use commercially reasonable efforts to cause the same to be done) operate, manage, equip, light, repair, replace and maintain the Common Areas for their intended purposes in compliance with all laws. In no event shall use of the Common Areas be conditioned upon payment of parking charges. Tenant and its officers, employees, agents, customers and invitees shall have and Landlord hereby grants a non-exclusive easement (in common with subtenants, licensees, the other occupants of the Real Property and their employees, agents, customers and invitees) to use the Common Areas as constituted from time to timefor the intended purposes (e.g., such use to be in common with Landlordparking, other Tenants of Shopping Center access, ingress and other Tenants of Shopping Center and other persons entitled egress). Tenant shall also have the right to use the Common Area, subject to such reasonable rules Landlord’s trash receptacle inside Landlord’s Retail Facility and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by access to same during Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlordregular business hours. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous propertypay Landlord, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable auditreceiving written notice, or by a credit against the next payment(s) of rent hereunder or annually each year (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article commencing within one (1) yearyear after the Commencement Date), then Landlord shall be deemed $1200.00 representing reimbursement to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined reasonable costs and expenses incurred by Landlord during each year of the Lease Term in operating, repairing, maintaining and shall be payable by Tenant within thirty (30) days insuring the Common Areas of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as suchReal Property.
Appears in 1 contract
Common Areas. 5.1 Tenant, and it licensees, concessionairesits customers, employees and customers invitees shall have the non-exclusive right to use the Common Areas as constituted from time to timeand enjoy free of charge, such use to be in common with Landlord, other Tenants of Shopping Center tenants and other Tenants of Shopping Center their customers, employees and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect toinvitees, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if approaches, sidewalks, entrances, exits and roadways (hereinafter collectively called the same will (1“Common Areas”) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access which Landlord agrees to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio provide for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it It is expressly understood that no expense shall be charged more than once. Landlord shall the Common Areas are intended primarily for the use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% customers of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes stores in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord , and Tenant agree accordingly agrees that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord its employees will furnish to Tenant a detailed statement of the expenses relating to not use the Common Areas for the parking or storage of any automobile, truck or any other vehicle owned or used by any of its employees, except as may be approved in writing by Landlord. Tenant further agrees that Landlord reserves the right, in its sole discretion, to designate specific parking area(s) for the use by the employees and/or customers of Tenant and if so designated, Tenant shall instruct its employees and/or customers, as the case may be, to park in any such yeardesignated areas. In order to assist Landlord in the enforcement of the provisions of this paragraph, such Tenant agrees that within ten (10) days after being requested so to do, Tenant will furnish Landlord a written statement containing the license plate numbers of all employees, agents, and representatives employed by Tenant in or about the Demised Premises. Tenant shall not park, or permit to be prepared parked, any delivery vehicles in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (intended for the use by customers of the stores in the form of an additional payment or a refund Shopping Center, nor permit merchandise delivery from Landlord to Tenant) shall be made sixty (60) days after such Common Areas if delivery of such statementaccess and loading and unloading zones are provided by Landlord. Landlord agrees to retain covenants that, at all times during the books term hereof, it will maintain the Common Areas in a good condition of repair and records substantiating the CAM Expenses incurred adequately lighted and paved, and that, except as otherwise provided in each calendar year for a period of paragraph 33 below, there will be at least three (3) years from the minimum number of parking spaces sufficient to satisfy governmental requirements and in no event shall the number of parking spaces at the Shopping Center existing as of the date of this lease be reduced by more than twenty (20) spaces during the term or any extension thereof. Anything in this paragraph to the contrary notwithstanding, Landlord submits an annual statement to Tenant. Tenant or its designee shall have expressly reserves the right, during business hours and upon reasonable prior notice, from time to time time, (i) to inspect Landlord’s books construct other buildings and/or enlarge existing buildings on or over the Common Areas so long as the number of parking spaces is not reduced by more than twenty (20) spaces, and records relating to CAM Expenses(ii) increase, and/or to have reduce, modify or alter the dimensions and locations of roadways, parking lots, sidewalks and buildings provided such books and records audited at changes, additions or reductions do not unreasonably interfere with Tenant’s expense use of the Demised Premises or reduce the number of parking spaces at the Shopping Center by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent twenty (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.20)
Appears in 1 contract
Common Areas. 5.1 TenantA. Subject to the terms and conditions of the Lease and such rules and regulations as Lessor may from time to time impose in writing, Lessee and it licenseesLessee's employees, concessionairesagents, employees invites, customers and contractors shall, in common with Lessor and the occupants of the Center and their respective employees, agents, invites, customers shall and contractors and others entitled to the use thereof have the non-exclusive right to use the access roads and parking areas located on the Land (unless such parking areas are specifically designated by Lessor for use by a particular tenant) and those facilities provided and designated by Lessor for the general use and convenience of the tenants of the Center, which roads, areas and facilities as they may from time to time exist are referred to herein as "Common Areas". Lessor reserves the right from time to time to increase or decrease the number of roads, areas and facilities comprising the Common Areas and to make changes in the shape, size, location and extent thereof provided that such changes will not affect Lessee's use of the Leased Premises in a materially adverse manner.
▇. ▇▇▇▇▇▇ shall, throughout the term of this Lease, including any extensions and renewals thereof, operate, manage and maintain all Common Areas within the Center. The manner in which such areas shall be maintained and the amount and nature of the expenditures to be made for such maintenance shall be determined at the sole discretion of Lessor.
▇. ▇▇▇▇▇▇ shall have the right to close all or any portion of the Common Areas to the extent as constituted may be legally sufficient to prevent a dedication thereof or the accrual of rights of any person or the public therein, provided, however, that Lessor shall restrict the period of any such closing to the minimum time necessary under applicable law to prevent such dedication and accrual of rights.
D. Lessee shall not at any time park or permit the parking of Lessee's trucks or other vehicles, or the trucks or other vehicles of Lessee's suppliers or any others, adjacent to loading areas so as to interfere in any way with the use of such areas by other tenants, nor shall Lessee at any time permit the parking of Lessee's trucks, or the trucks of Lessee's suppliers, or others in any portion of the parking lot not designated by Lessor for such use by Lessee.
E. Lessee shall not at any time operate, nor shall it permit its employees, agents, invites, customers or contractors to operate any truck or other vehicle in such manner as to directly or indirectly damage any portion of the Center, including damage to the Center caused by excessive wear and tear of the improved portions of the Common Areas.
▇. ▇▇▇▇▇▇ reserves the right to promulgate such reasonable rules and regulations relating to the use of the Common Areas, and part or parts thereof, as Lessor may deem appropriate. The rules and regulations shall be binding upon Lessee seven (7) days after delivery of a copy thereof to Lessee, and Lessee agrees to abide by such rules and regulations and to cooperate in their observance. The rules and regulations may be amended by Lessor from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything without advance notice to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safetyLessee, and (iii) except in the case of an emergency, all amendments shall be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); effective seven (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees a copy thereof to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by TenantLessee. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations changes shall not be binding and conclusive have a material adverse effect on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenseslessee's operations.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 Tenant8.1. Subject to Landlord’s rights in this Section VIII during the Term, and it licensees, concessionaires, employees and customers Landlord shall have make available from time to time in the non-exclusive right to use the Shopping Center such Common Areas as constituted from time Landlord shall deem appropriate. “Common Areas” shall mean all areas and improvements now or hereafter existing, made available by Landlord for the common and joint use of Landlord, Tenant and other tenants and occupants of the Shopping Center, and their respective employees, agents, customers and invitees, which may include if provided, but shall not be limited to timedriveways, such use footways, parking areas, walkways and all other areas in the Shopping Center now or hereafter constructed to be used in common with Landlord, other Tenants by the tenants and/or customers of the Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Center. All Common Area, Areas shall at all times be subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that prescribe and Landlord shall provide Tenant with at least sixty (60) days prior written notice all times have full and exclusive control, management and direction of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the said Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord further shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant but shall not interfere with the rights of other persons be obligated) (a) to use police the Common Areas. Landlord may ; (b) to restrict parking by tenants, their officers, agents and employees; (c) to designate employee parking areas; (d) to establish and enforce parking charges, with appropriate provisions for free-parking ticket validation by tenants; (e) to close temporarily close all or any part of the parking facilities or other portions portion of the Common Areas or any parts thereof, including the parking areas or facilities for the purpose of maintenance, repairs, and/or construction; (f) to discourage non-customer parking; and (g) to do and perform such minimal periods other acts in and to such areas as Landlord, in the use of its business judgment, shall determine to be advisable. Landlord further shall have the right, without materially, adversely affecting access to or the use or accessibility of the Premises or without materially, adversely affecting the character of the Shopping Center as such exists on the Lease Commencement Date, in its sole discretion, at all times, and from time as may be reasonably necessary for to time throughout the Term, without incurring any liability to Tenant, including but not limited to loss of sales, and without it constituting an eviction to: (i) temporary use as a work area in connection with change the construction area, appearance, size, level, layout, location, and/or arrangement of buildings or other improvements within the Shopping Center or contiguous propertyany part thereof (including, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect towithout limitation, the Common Areas as and the entrances to and exits from the Common Areas); (ii) construct other buildings, structures or improvements in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change and elsewhere in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at (including, without limitation, construction of kiosks in the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space Common Areas), and make alterations and additions thereto, or rearrangements thereof, demolish parts thereof, build additional stories on any building in the Shopping Center. Notwithstanding anything Center (and for such purposes to the contrary contained construct and erect columns and support facilities in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future constructionbuilding), Landlord shall immediately provide substitute parking and construct additional buildings or facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice adjoining or proximate to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6iii) costs relating to maintaining Landlord’s existenceexpand, either as a corporationreduce, partnershipor alter the parking areas in any manner whatsoever including, trust without limitation, the construction of multiple-deck, elevated, or other entityunderground parking facilities; (iv) relocate or rearrange the various buildings, such as trustee’s fees, annual fees, partnership expensesparking areas, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants parts of the Shopping Center; (v) make changes and additions to the pipes, conduits, and ducts or other third parties structural and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent nonstructural installations in the purchase of any goods, utilities Premises where desirable to serve the Common Areas and other premises in the Shopping Center or services in connection with to facilitate the prudent operation expansion or alteration of the Shopping Center. In Center (including, without limitation, the calculation construction and erection of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered columns and support facilities); and (vi) add additional real property to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 The term "Common Areas" shall mean all areas within the Property which are available for the common use of tenants of the Property from time to time, as designated by Landlord, and which are not leased or held for the exclusive use of Tenant or other tenants including, but not limited to, loading areas, hallways, entrances, exits, corridors and two (2) passenger elevators. Landlord may, from time to time, change the size, location, nature and use of any of the Common Areas, and convert Common Areas into leasable area but shall use reasonable efforts not to materially and adversely alter access to the Premises, shall use reasonable efforts to minimize disruption of Tenant's business, and shall not reduce the parking ratio below that required by this Lease. Tenant acknowledges that such activities may result in an inconvenience or interruption to Tenant, and it licenseesbut that Tenant shall not be entitled to (a) any reduction in rent, concessionairesexcept in the event that there is an interruption in Tenant's ability to conduct business for in excess of a consecutive 24 hour period, employees and customers or (b) damages, notwithstanding any interference or interruption of Tenant's business upon the Premises or any inconvenience caused by construction work. Tenant shall have the non-exclusive right (in common with other tenants, their employees, agents and invitees, and all others to whom Landlord has granted or may grant such rights) to use the Common Areas as constituted for the intended purposes, subject to reasonable rules and regulations established by Landlord from time to time. Tenant shall abide by such rules and regulations, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to shall cause others who use the Common Area, subject Areas with Tenant's express or implied permission to such reasonable abide by Landlord's rules and regulations as Landlord may from time to time prescriberegulations, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of Landlord, other persons tenants or any other person entitled to use the Common Areas. Landlord will enforce the rules and regulations in a consistent, non-discriminatory fashion with all tenants, except where leases or circumstances require otherwise. At any time, Landlord may temporarily close any part of the parking facilities or other portions of Common Area to perform any acts in the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area Area as, in connection with Landlord's reasonable judgment, are desirable to improve the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in Property or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive protect Landlord's rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to Property. Landlord shall maintain the Common Areas and/or parking areasin good order, if the same will (1) cause a change in the sizecondition, locationreplacement and repair, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access subject to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facilityreasonable wear and tear. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 Landlord shall maintain parking spaces for each 1,000 rentable square foot of space Tenant's use from time to time, which spaces may be provided in common with other tenants and occupants in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, Building from time to time to inspect Landlord’s books and records relating to CAM Expenseson a first-come, and/or to have such books and records audited at first-serve basis. The number of Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses 's parking spaces shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed calculated on the basis of four (4.0) spaces per one thousand square feet of Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as suchrentable square footage.
Appears in 1 contract
Common Areas. 5.1 TenantSubject to the Building Rules and other provisions of this Lease, and it licensees, concessionaires, employees and customers the Tenant shall have the non-exclusive right to access to, use of, and enjoyment of the Common Areas as constituted twenty-four (24) hours a day, fifty-two (52) weeks a year for purposes consistent with their intended use. All of the Common Areas shall be subject to (i) the exclusive but reasonable control, management and regulation of the Landlord and (ii) the terms of this Lease. The Tenant shall not obstruct or damage the Common Areas. Subject to the terms of this Lease, the Landlord shall have the right, from time to time, such use to be in common with Landlordchange the location, other Tenants size, appearance or configuration of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribeAreas, provided that Landlord shall provide Tenant with at least sixty such changes do not materially or unreasonably (60a) days prior written notice limit the Tenant’s access to the Premises, (b) reduce or eliminate the Landlord’s provision of any such rule or regulation. Landlord may require that automobiles owned by amenities (e.g., the Fitness Center (subject to the provisions of Section 15.02), the Auditorium, etc.) and/or (c) materially and adversely affect (I) the Tenant’s Permitted Use and the benefit of the Premises and/or (II) access, its licenseesuse of, concessionaires and employees be parked in specific portions enjoyment of the Common Areas. Upon reasonable written request by Landlord, The Tenant shall have thirty (30) days make no changes or alterations to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from and the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with materially obstruct in any way the rights Landlord’s or any other person’s right of other persons to access, use or enjoyment of the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions All of the Common Areas for such minimal periods of time as which the Tenant may be reasonably necessary permitted to use hereunder shall be used and occupied under a non-exclusive right for (i) temporary access and use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to others. If the Common Areas are changed or to any sewers, utility facilities restricted by the Landlord as set forth hereinabove or distribution lines located within if the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in Tenant’s use thereof is affected by the use of good business judgment others as permitted hereinabove, the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted subject to take any action with respect personal liability for diminution of use, nor shall the Tenant be entitled to any compensation or diminution or abatement of Base Rent, nor shall such change, restriction or use by others be deemed a constructive or actual eviction of the Common Areas and/or parking areas or make any changesTenant, repairsexcepting changes that materially and adversely affect the Tenant’s Permitted Use, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility benefit of the Premises or the Shopping Center, (2) reduce or impede and its access rights to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord ATM or any general partnernight depository, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM ExpensesLease.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 TenantThe “Common Areas” consist of certain not leased areas and facilities outside the Premises and within the exterior boundary line of the Property and interior utility raceways and installations that are designated by Lessor to be for the general nonexclusive use of Lessor, Lessee, all other lessees of the Property, and it licenseeseach of their respective employees, concessionairessuppliers, employees shippers, customers, contractors, and customers shall invitees. The Common Areas include but are not limited to parking areas, certain loading and unloading areas, garbage and debris disposal areas, roadways, walkways, driveways, and landscaped areas. Lessee and Lessee’s employees, suppliers, shippers, contractors, customers, and invitees have the non-exclusive nonexclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or under the terms of the Rules and Regulations or restrictions governing the use of the Property. Under no circumstances does the right to use the Common Areas as constituted from time include the right to timestore any property, such use to be either temporarily or permanently, in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable Any such storage will be permitted only by the prior written request by Landlordconsent of Lessor, Tenant shall have thirty (30) days to furnish to Landlord a complete list which consent will be within the sole discretion of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires Lessor and employeesmay be revoked at any time. If Tenantany unauthorized storage occurs, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall Lessor will have the right absolute right, without notice and in its sole discretion addition to (i) the other rights and remedies that it may otherwise have at law or under this Lease, to remove the property to Lessee’s Premises or a storage area and to charge Tenant ten Dollars ($10.00) per day per car parked the cost to Lessee, which cost will be immediately payable upon demand by Lessor or dispose off at Lessors discretion. The removal will not be considered any form of bailment. Lessor is not liable for any damage that may occur during any removal, moving, handling, misplacing, stealing or storing of such property. After 30 days of storage, the property will be deemed abandoned and Lessor may dispose of it in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense manner without any liability whatsoever to Landlord. Tenant Lessee and Lessee shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate remain liable for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s storage fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Industrial Lease (Jetblack Corp)
Common Areas. 5.1 A. In addition to the Demised Premises, Landlord grants Tenant, and it licensees, concessionairesits agents, employees and customers shall have invitees, and in common with other tenants of the non-exclusive Industrial Park, their agents, employees and invitees, the right to use the parking areas and roadways in and at the Industrial Park throughout the term of this Lease. Tenant agrees that the Common Areas as constituted from time to time, such use to described in this provision shall be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules the exclusive control and regulations as management of Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to establish, modify and enforce reasonable rules and regulations with respect to such common areas, by which rules and regulations Tenant hereby agrees to abide, provided that said rules do not unreasonably interfere with Tenant's use of the Demised Premises.
B. Tenant's occupancy of the Demised Premises shall include the use of not more than thirty-six (i36) charge parking spaces adjacent to and near the Demised Premises. However, there shall be no overnight parking of any other vehicles without the Landlord's prior, written consent. Vehicles parked overnight without the Landlord's consent shall be towed and stored at the owner's expense.
C. Tenant ten Dollars ($10.00) per day per car parked in any shall use all Common Areas other than those designatedin a reasonable, and/or (ii) have such car(s) physically removed orderly and sanitary manner and shall use its best efforts to secure compliance under this provision from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlordits agents, employees and invitees. In addition, Tenant shall not interfere conduct itself and will cause its agents, employees and invitees to conduct themselves with full regard for the rights rights, convenience and welfare of all other persons tenants of the Industrial Park, their agents, employees and invitees
D. Landlord shall have the right to use the Common Areas. Landlord may temporarily close all or any part of the parking facilities or other portions of the Common Areas described herein for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area to prevent the dedication thereof or the accrual of any rights in connection with the construction of buildings any person or other improvements within the Shopping Center or contiguous propertyentity, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the clean and repair such Common Areas, (iii) preventing or to do anything else which in the public from obtaining prescriptive rights sole discretion of Landlord seems reasonable and necessary to further or protect the best interests of Landlord, Tenant, and all other persons or entities who are entitled to use such Common Areas.
E. Landlord may, in its sole discretion, make such changes, modifications or additions to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect toincluding without limitation, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the sizeas it deems reasonable and necessary, locationprovided that said changes, orientation modifications or visibility additions do not unreasonably interfere with Tenant's use of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Demised Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Common Areas. 5.1 30.1 Landlord hereby grants to Tenant, for the benefit of Tenant and it licenseesits employees, concessionairessuppliers, employees shippers, customers and customers shall have invitees, during the term of this Lease, the non-exclusive right to use use, in common with others entitled to such use, the Common Areas as constituted they exist from time to time, such subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any rules and regulations or restrictions governing the use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled the Project. Under no circumstances shall the right herein granted to use the Common Area be deemed to include the right to store any property, temporarily or permanently, in the Common Area or to construct or install any improvements in the Common Area. Any such storage shall be permitted only by the prior written consent of Landlord or Landlord’s designated agent, subject which consent may be revoked at any time. In the event that any unauthorized storage shall occur, the Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be payable by Tenant to Landlord within 30 days after demand by Landlord.
30.2 Landlord or such other person(s) as Landlord may appoint, shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations with respect thereto. Tenant agrees to abide by and conform to all such rules and regulations, as Landlord may from time well as any private conditions, covenants, and restrictions of public record now or hereafter affecting the Premises and any amendment thereof, and to time prescribecause its employees, suppliers, shippers, customers and invitees to abide and conform, provided that such rules and restrictions shall not increase Tenant’s costs or materially impair Tenant’s rights or materially increase Tenant’s obligations under this Lease. Landlord shall provide not be responsible to Tenant for the non-compliance with at least sixty (60) days prior written notice of any such rule said rules and regulations by other tenants or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions authorized users of the Common AreasProject. Upon reasonable written request Any failure by LandlordTenant or its agents, Tenant shall have thirty (30) days employees or representatives to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires observe and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere comply with the rights of other persons to use the Common Areas. rules and regulations established by Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or respect to the Common Areas, (iv) security reasons, which failure continues or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission persists after written notice by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any personfailures, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid default by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenseshereunder.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (Calix Networks Inc)
Common Areas. 5.1 Tenant, Use of common areas (“Common Areas”) (defined as the grounds and it licensees, concessionaires, employees areas of the Building not including the Apartment) shall be governed by these RULES AND REGULATIONS and customers shall have any Policies posted on the non-exclusive right to use Building or in the Common Areas as constituted from time to time, such use to and shall be in common with Landlord, other Tenants used at the risk of Shopping Center Lessee and other Tenants of Shopping Center Lessee’s family and other persons entitled to use guests. No guest shall be permitted within the Common Area, subject Areas unless Lessee is also present. Lessee hereby agrees to such reasonable rules indemnify Lessor and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty holds Lessor harmless against all claims (60including attorney’s fees) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned for personal injury sustained by Tenant, its licensees, concessionaires Lessee and employees be parked Lessee’s family and/or guests in specific portions their use and enjoyment of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord Glass containers pose a complete list serious risk of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires injury and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars are prohibited anywhere in the designated common areas. In order to use Common Areas, Landlord Lessee agrees that:
a). Lessee shall not permit any guests to use Common Areas without Lessee present;
b). Lessee shall use Common Areas in a prudent manner, consistent with the customary use of the Common Areas;
c). Lessee shall not use Common Areas in a manner which is offensive or dangerous to Lessee or any users of Common Areas; d). Lessee will follow policies as established by Lessor in connection with the operation of Common Areas;
e). Lessor shall have the right in its sole discretion to discontinue providing any or all recreational Common Areas at any time and for any reason; f). Lessor may not provide attendants or supervision of any kind for Common Areas;
g). Lessor has made no representation (i) charge Tenant ten Dollars ($10.00) per day per car parked that Lessor’s representatives have any expertise in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights operation of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to that the Common Areas are fit for any particular purpose or (iii) as to any sewers, utility facilities or distribution lines located within the physical condition and operation of Common Areas; and
h). USE OF COMMON AREAS BY LESSEE SHALL BE WHOLLY AT LESSEE’S OWN RISK.
i.) Garbage and other rubbish shall not be placed in the common areas. Lessee may be invoiced $15.00 per trash bag left in the building’s common areas. In connection with Lessee’s use of Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall Lessee is responsible for:
(i) cause no net reduction in Tenantpayment for damages or costs to Lessor from any claim based upon the acts of Lessee or OCCUPANT or Lessee’s parking space allocation, guests (which are prohibited from using Common Areas); and
(ii) be similarly convenient in terms the legal costs of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance defending Lessor if any claim is made against Lessor because of the Common Areas acts of Lessee or Lessee’s guests (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the which are prohibited from using Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center). Notwithstanding anything to Lessor has the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in choose the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesattorney who will represent Lessor.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Apartment Lease
Common Areas. 5.1 The term "Common Areas" is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Project that are provided and designated by Landlord from time to time for the general non-exclusive use of Landlord, Tenant and of other occupants of the Project an their respective employees, suppliers, shippers, customers and invitees, which may include, without limitation, parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas. Landlord hereby grants to Tenant, for the benefit of Tenant and it licenseesits employees, concessionairessuppliers, employees shippers, customers and customers shall have invitees, during the term of this Lease, the non-exclusive right to use use, in common with others entitled to such use, the Common Areas as constituted they exist from time to time, such subject to any rights, powers and privileges reserved by Landlord under the terms of this Lease or under the terms of any rules or regulations or restrictions governing the use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled the Project. Under no circumstances shall the right herein granted to use the Common AreaAreas be deemed to include, subject the right to store any property, temporarily or permanently, in the Common Areas. In the event that any such storage shall occur, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost thereof to Tenant, which cost shall be immediately payable as additional rent upon demand by Landlord. Landlord or such other person(s) as Landlord may appoint, shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations as with respect to the Common Areas. Tenant agrees to abide by and conform to all such rules and regulations, and to cause its employees, suppliers, shippers, customers and invitees to so abide and conform. Landlord may shall not be responsible to Tenant for the non-compliance with such rules or regulations by other tenants and users of the Project. Landlord shall have the right, in its sole and absolute discretion, from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60a) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of to make changes to the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenantincluding, its licenseeswithout limitation, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars changes in the designated Common Areaslocation, Landlord shall have size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas and walkways, so long as reasonable access to the right in its sole discretion Premises remains available; (b) to (i) charge Tenant ten Dollars ($10.00) per day per car parked in close temporarily any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in maintenance and/or repair purposes or to prevent the acquisition of rights in the Common Areas by other persons or entities, so long as reasonable access to any sewers, utility facilities or distribution lines located within the Premises remains available; (c) to designate other land outside the boundaries of the Project to be a part of the Common Areas, ; (iiid) preventing the public from obtaining prescriptive rights in or to add additional buildings and improvements to the Common Areas; (e) to use the Common Areas while engaged in making additional improvements, (iv) security reasonsrepairs or alterations to the Project, or any portion thereof; and (vf) doing to do and performing perform such other acts (whether similar or dissimilar to the foregoing) and make such other changes in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Project as Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In additionmay, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination exercise of the term of this leasecommercially reasonable business judgment, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed deem to be CAM Expenses payable by Tenant and collectible by Landlord as suchappropriate.
Appears in 1 contract
Common Areas. 5.1 TenantLessee, and it licenseesits employees, concessionairesagents, employees contractors, business invitees, customers and customers other invitees, shall have have, as appurtenant to the Premises, the non-exclusive right to use the Common Areas as constituted from time to time, such use to be in common with Landlordother tenants and their employees, other Tenants of Shopping Center agents, contractors, business invitees, customers and other Tenants of Shopping Center and other persons entitled invitees to use the Common Areaparking areas, roadways, and all other common areas shown on Exhibit A, but such rights shall always be subject to such (a) reasonable rules and regulations as Landlord may from time to time prescribe, established by Lessor by suitable notice; provided that Landlord shall provide Tenant with at least sixty such rules and regulations are uniformly applicable to all other tenants and are enforced in a non-discriminatory manner, and (60b) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion of Lessor to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have designate and change from time to time areas and facilities so to be used; provided that such car(s) physically removed changes shall not adversely affect access to or egress from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect toPremises, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) its signs or reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for in the Shopping Center to be reduced below applicable local code requirements common areas. Excepted and excluded from the Premises are all perimeter walls (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future constructionexcept the inner surfaces thereof), Landlord shall immediately provide substitute parking facilities for Tenant’s use the roof or ceiling thereof (except the inner surface thereof) and its invitees which facilities shall the floor (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”inner surface thereof), including without limiting but the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping store front and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single any exits or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures openings required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by applicable law solely as a certified public accountant designated by Tenant. Any audit that discloses a discrepancy result of more than five percent (5%) Lessee's specific use of the Premises as provided in the annual CAM Expenses Lease Data Exhibit are not excluded from the Premises and are a part thereof for all purposes. Lessee agrees that Lessor shall be at Landlord’s expense and Landlord shall reimburse Tenant for have the right to place in the building of which the Premises are a part (but in such cost (including reasonable attorneys’ fees) within thirty (30) days manner so as to reduce to a minimum interference with Lessee's use of the result Premises) utility lines, pipes and the like, to serve the Premises or premises other than the Premises, and to replace and maintain and repair such utility lines, pipes, and the like, in, over and upon such building. Lessor reserves the right to use the roof and exterior walls of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall Premises to Landlord by Tenant within thirty (30) days after construct above or adjacent to the applicable auditPremises; provided that such construction does not materially adversely affect access to or egress from the Premises, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord visibility of the overpaid amount within thirty (30) days, as may be applicablePremises or its signs or reduce the number of parking spaces in the common areas. In Lessee shall install and maintain proper access panels in any special ceiling installed by Lessee in the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, Premises to provide access to any such statement facilities above the ceiling. Lessee shall become binding and conclusive on both Landlord and Tenanthave no right to use the roof for any purpose, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenantthe placement of signs. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination The respective responsibilities of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesparties for repairs are set forth in Article 7 hereof.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease (Iparty Corp)
Common Areas. 5.1 (i) Landlord covenants that the Common Areas shall be available without further charge to Tenant for the nonexclusive use (as defined in Section 6(b)(iv) of Tenant during the full Term of this Lease or any extension of the Term, provided that the condemnation or other taking by any public authority, or sale in lieu of condemnation, of any of the Common Areas shall not constitute a violation of this covenant. Landlord shall also provide up to ten (10) parking spaces in a number and location reasonably adjacent to the Building as reasonably designated by Landlord which shall be signed as reserved exclusively for Tenant's visitors to the Premises. Landlord specifically reserves the right to change the location, size, configuration, design, layout, and any other aspects of the parking provided such changes do not reduce the number of spaces below the minimum number of parking spaces provided in the definition of "Common Area" nor materially impair Tenant's ability to use the Premises as set forth in Section 10. Landlord may temporarily close off or restrict access to parking from time to time as necessary to enable construction, environmental remediation, alteration, or improvements, without incurring any liability to Tenant and without any abatement of Rent under this Lease provided any such temporary access restriction shall be so accomplished as to minimize inconvenience to Tenant and the least possible interference with ▇▇▇▇▇▇'s truck access to the Premises. ▇▇▇▇▇▇'s continued right to use the parking spaces is conditioned on Tenant's abiding by all rules and regulations prescribed from time to time for the orderly operation and use of the Project parking. Tenant shall use all reasonable efforts to ensure that Tenant's employees and visitors also comply with such rules and regulations. This Lease shall be subordinate to those items listed as Exceptions 1 through 12 of that Title Policy for the Real Property dated as of April 29, 1997 and any subsequently executed AREA.
(ii) Landlord shall keep or cause to be kept all Common Areas in a neat, clean, orderly and well maintained condition, properly lighted and landscaped, and shall promptly repair any damage to their facilities, but all expenses in connection with the Common Areas ("Common Area Expenses ") shall be charged in the manner set forth in Section 6(b)(iii). Common Area Expenses shall include but shall not be limited to all sums expended by Landlord in connection with the Common Areas for all general maintenance and repairs, resurfacing, painting, restriping, cleaning, sweeping, and janitorial services; refuse removal; competitively priced management fees, which shall not exceed five percent (5%) of the Common Area Expenses; planting and landscaping; lighting and other utilities; directional signs and other markers and bumpers; personnel to implement these services and to police the Common Areas; required fees or charges levied pursuant to any governmental requirements; public liability and property damage insurance on the Common Areas, which shall be carried and maintained by Landlord with limits as reasonably determined by Landlord; and, where charged to Landlord, all expenses in Sections 5, 7, and 8, provided that no expense excluded from Tenant's reimbursement obligations under Section 5(a) or any other provision of this Lease shall be included and provided further that no expense paid by Landlord shall be double counted for Tenant reimbursement purposes, and Real Property Taxes shall be determined and paid as provided in Section 5. Landlord shall exercise reasonable diligence to obtain reasonable prices for all sums expended by Landlord for Common Area Expenses.
(iii) In December of each calendar year, or as soon as reasonably possible thereafter, Landlord shall send Tenant an itemized statement, setting forth in reasonable detail Landlord's reasonable estimate of Tenant's Common Area Expenses for the following calendar year on a monthly or quarterly basis, at Landlord's option and ▇▇▇▇▇▇ agrees to pay Landlord ▇▇▇▇▇▇'s Common Area Expenses then due within fifteen (15) days after receipt of the statement and to make monthly or quarterly payments of ▇▇▇▇▇▇'s share of Common Area Expenses thereafter. Any Common Area Expenses for the year in which this Lease commences or ends shall be apportioned and adjusted based upon the number of months or portions of months in which Tenant occupies the Premises, commencing one hundred twenty (120) days following the Early Entry Date, provided that ▇▇▇▇▇▇'s work on the Tenant Improvements has not been interrupted or delayed by Landlord Delays or any days that ▇▇▇▇▇▇'s work on Tenant's Improvements is voluntarily interrupted by Landlord pursuant to Section 2(e)(i) (and in any case no later than the Rent Commencement Date) and, provided ▇▇▇▇▇▇ is not in default hereunder, expiring when Tenant vacates the Premises (and otherwise upon expiration of the Term), disregarding any changes in such charges attributable to a period before or after the Lease Term. If the amount of monthly or quarterly payments for Common Area Expenses received by Landlord from Tenant are more or less than the actual Common Area Expenses due for any Calendar Year, an itemized statement of which shall be delivered to Tenant by Landlord within one hundred twenty (120) days following the end of each Calendar Year, or a soon as reasonably possible thereafter, an appropriate adjustment will be made by Landlord and Tenant and any balance due paid or refunded within thirty (30) days after such reconciliation. All charges in Section 6 for Common Area Expenses may be superseded and governed by any AREA adopted for the Real Property and Adjacent Real Property.
(iv) For the use and benefit of Tenant, and it Tenant's agents, employees, customers, licensees, concessionaires, employees and customers subtenants shall have the non-exclusive nonexclusive right in common with Landlord's representatives, agents employees, customers and contractors performing Landlord's obligations under this Lease, and other present and future owners and tenants of the Real Property (and, to the extent set forth in any AREA recorded for the Adjacent Real Property), and their agents, employees, customers, licensees, and subtenants, to use the Common Areas as constituted during the entire Term of this Lease, or any extension of the Term, for ingress and egress, roadway, sidewalk, and automobile parking, provided that Tenant and Tenant's employees shall park their automobiles in those areas reasonably designated by Landlord from time to timetime (in consultation with Tenant) for Tenant parking. To the extent practicable and within Landlord's reasonable control, such and except as may be set forth above or in any AREA, Tenant shall at all times have 24-hour vehicular access to the Premises including, without limitation, truck access.
(v) Tenant, in the use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common AreaAreas, subject agrees to such comply with the reasonable rules and regulations as Landlord may adopt from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires for the orderly and employees be parked in specific portions proper operation of the Common Areas. Upon reasonable written request by Landlord, Tenant which rules and regulations shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires not be inconsistent with this Lease and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights ▇▇▇▇▇▇'s right of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing vehicular and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede truck access to the Premises or the Shopping Center, or Tenant's other rights under this Lease.
(3vi) reduce the proximity of the Premises Unless Landlord elects to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay trash collection as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance a part of the Common Areas (“CAM Expenses”)Area maintenance, including without limiting Tenant shall at Tenant's expense arrange for the generality collection of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing in the Common AreasAreas located on the Real Property, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% charge Tenant for any costs of trash removal on the CAM Expenses actually incurred Real Property and Adjacent Real Property.
(vii) Landlord grants Tenant a non-exclusive access Ad for ingress and egress over the Roadway Easement for the Term of this Lease, as it may be extended, or until such time as an AREA is executed for the Real Property and Adjacent Real Property granting Tenant similar access over the Roadway Easement. For purposes of this Lease, and until superseded by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when an AREA, the building was built Roadway Easement shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area part of the Premises bears Common Area under this Lease, provided, however that Landlord may include no more than fifty-one and four tenths percent (51.4%) of the common area expenses (as defined in 6(b)(ii)), of such Roadway Easement in Common Area Expenses and no more fifty-one and four tenths percent (51.4%) of Real Property Taxes (as defined in 5(a)) of such Roadway Easement in Real Property Taxes. Upon completion of improvements to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shallAdjacent Real Property, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇▇▇'s contribution to Common Area Expenses and Real Property Taxes for the Roadway Easement shall be equitably reduced, and such costs eliminated or expenses incurred or payments which are made reciprocated by the Landlord for water or sewer service used on occupants of the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as suchAdjacent Real Property.
Appears in 1 contract
Common Areas. 5.1 TenantAll areas of the Property designated by Landlord from time to time for the common use of all tenants and occupants of the Property, including but not limited to parking areas, sidewalks, landscaping, curbs, loading areas, private streets and alleys on the Property, lighting facilities, and it licenseesother exterior areas and improvements provided by Landlord for the common use of all tenants and occupants of the Building (the “Common Areas”) shall be subject to Landlord’s sole management and control and shall be operated and maintained in such manner as Landlord, concessionairesin its reasonable discretion, employees shall determine. Landlord reserves the right to change from time to time the dimensions and customers location of the Common Areas as well as the location, dimensions, identity and type of any building other than the Building and to construct additional buildings or additional stories on existing buildings other than the Building or other improvements in and to the Property, and to eliminate buildings other than the Building, provided that Landlord shall not (i) materially interfere with access to the Building and the Leased Premises; (ii) significantly impair Tenant’s views to the open space surrounding the Building; (iii) adversely affect parking rights under the Lease; (iv) eliminate Common Areas needed by Tenant for the use and enjoyment of the Leased Premises; or (v) alter the character of the Building as a first class building. Tenant shall have the non-exclusive nonexclusive right and license to use the Common Areas as constituted from time to time, as well as the Common Areas as defined in the Declaration, such use to be in common with Landlord, other Tenants tenants and occupants of Shopping Center and other Tenants of Shopping Center the Property and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as permitted by Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Notwithstanding anything herein to the contrary, Landlord may temporarily close any part hereby agrees that the costs of the parking facilities or other portions of maintaining the Common Areas for such minimal periods shall be reasonable and commensurate with those of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of other buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expensesarea.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease Agreement (Pharmaceutical Product Development Inc)
Common Areas. 5.1 TenantLandlord shall make available (or use commercially reasonable efforts to cause to be made available) throughout the Lease Term such "Common Areas" (including, but not limited to, parking areas, driveways, truck ways, service drives, service areas, delivery passages, truck-loading areas, access and it licenseesegress roads, concessionaireswalkways, employees footbridges, landscaped and customers shall have planted areas and public rest rooms) as may be shown on the Site Plan or which are otherwise available for the non-exclusive right use of the occupants of the Real Property. Landlord shall (or shall use commercially reasonable efforts to cause the same to be done) operate, manage, equip, light, repair, replace and maintain the Common Areas for their intended purposes in compliance with all laws. In no event shall use of the Common Areas be conditioned upon payment of parking charges. Tenant and its officers, employees, agents, customers and invitees shall have and Landlord hereby grants a non-exclusive easement (in common with subtenants, licensees, the other occupants of the Real Property and their employees, agents, customers and invitees) to use the Common Areas as constituted from time to timefor the intended purposes (e.g., such use to be in common with Landlordparking, other Tenants of Shopping Center access, ingress and other Tenants of Shopping Center and other persons entitled egress). Tenant shall also have the right to use the Common Area, subject to such reasonable rules Landlord's trash receptacle inside Landlord's Retail Facility and regulations as Landlord may from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by access to same during Landlord, Tenant shall have thirty (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord's regular business hours. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous propertypay Landlord, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable auditreceiving written notice, or by a credit against the next payment(s) of rent hereunder or annually each year (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article commencing within one (1) yearyear after the Commencement Date), then Landlord shall be deemed $1200.00 representing reimbursement to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined reasonable costs and expenses incurred by Landlord during each year of the Lease Term in operating, repairing, maintaining and shall be payable by Tenant within thirty (30) days insuring the Common Areas of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as suchReal Property.
Appears in 1 contract
Common Areas. 5.1 Tenant, and it licensees, concessionaires, employees and customers References herein to “common areas” shall have mean all areas of the non-Project not leased to tenants for their exclusive right to use the Common Areas as constituted from time to time, such use to be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable rules and regulations as use. Landlord may shall make available from time to time prescribe, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific public portions of the common areas as Landlord deems appropriate. As part of Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty Expenses (30) days to furnish to Landlord a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common AreasSection 5.1), Landlord shall have is responsible for operating and maintaining the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. common areas and Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or to the Common Areas or to any sewers, utility facilities or distribution lines located within the Common Areas, (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas, (iv) security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s business. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation nature and use of any common areas, provided that such changes do not materially and unreasonably interfere with Tenant’s access to or visibility use of the Premises or Premises. Without limiting the Shopping Centerforegoing, (2) reduce or impede Landlord may erect scaffolding, barriers, and other structures in the common areas where required, in Landlord’s sole discretion, in connection with work to be performed at the Project, provided that the access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s and use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without limiting the generality of the foregoing, costs incurred for lighting, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping and repairing the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Shopping Center which is not separately metered to Tenants (single or multiple) thereof together with an allowance of 10% of CAM Expenses, other than taxes and insurance, for Landlord’s direct overhead but excluding depreciation of Landlord’s original investment in Shopping Center. Notwithstanding anything to the contrary contained in this lease, additional rent shall not include the following: (1) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or any of the foregoing, to the extent the same exceeds arm’s length competitive prices paid in Clearwater, Florida for similar services or goods; (5) costs incurred to remove any hazardous materials or other toxic material or substances from either the Shopping Center; (6) costs relating to maintaining Landlord’s existence, either as a corporation, partnership, trust or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord or Landlord’s managing agent in the purchase of any goods, utilities or services in connection with the prudent operation of the Shopping Center. In the calculation of any CAM Expenses hereunder, it is understood that no expense shall be charged more than once. Landlord shall use its best efforts in good faith to effect an equitable proration of bills for services rendered to the Shopping Center and to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excluded. Landlord shall not recover more than 100% of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall not be determined based on unreasonably blocked or unreasonably interfered with given the “as built” site plan approved by nature of the appropriate governmental authority. Upon such approval work and Landlord shall submit use commercially reasonable efforts to Tenant a copy of minimize the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include impacts on Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books access and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenantuse. Tenant or its designee shall have has the right, during business hours and upon reasonable prior notice, nonexclusive right to use those common areas which from time to time are designated for such use by Landlord, subject to inspect Landlord’s books the terms of this Lease. Tenant shall not store anything outside the Premises. Subject to any specific access provisions elsewhere in this Lease, Tenant shall not permit any employee, contractor or guest onto the roof of the Building or into any other non-public areas of the Project, except the Premises. Tenant acknowledges that the State of Washington Department of Transportation and/or the City of Seattle have commenced demolition and records relating replacement of, and related work pertaining to, the Alaskan Way Viaduct (“Viaduct Work”), and that such Viaduct Work may cause temporary changes in, or disruption to, access to CAM Expenses, the Project and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenantsurrounding areas. Any audit Tenant agrees that discloses a discrepancy none of more than five percent (5%) in the annual CAM Expenses Viaduct Work shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM Expenses.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt breach of Landlord’s ▇▇▇▇obligations, and such costs covenants or expenses incurred warranties under this Lease, at law or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as suchin equity.
Appears in 1 contract
Sources: Office Lease (Bsquare Corp /Wa)
Common Areas. 5.1 (a) As used in this Lease, the term "Common Areas" shall mean those ------------ portions of, and facilities within, the Shopping Center which are intended for the common non-exclusive use of the occupants, their customers, agents and employees including, without limitation, parking areas, driveways, malls, walkways, loading zones and landscaping. Prior to the Commencement Date, Landlord shall construct the Common Areas of the Shopping Center substantially as shown on Exhibit A attached hereto, subject to such modifications as are --------- desired by Landlord, provided that Tenant's prior written approval thereof is obtained, which approval shall not be unreasonably withheld, conditioned or delayed.
(b) Tenant, and it licensees, concessionairesas well as its agents, employees and customers (collectively, "Customers"), shall have the non-exclusive right to and are granted complete, nonexclusive ---------- and undisturbed access to, and use of all Common Areas. Tenant's use of the Common Areas as constituted from time to time, such use to shall be in common with Landlord, other Tenants of Shopping Center and other Tenants of Shopping Center and other persons entitled to use the Common Area, subject to such reasonable reasonable, non-discriminatory rules and regulations as may be promulgated and thereafter amended and supplemented by Landlord from time to time as Landlord deems necessary or advisable for proper and efficient use, operation and maintenance of the Common Areas, provided that all such rules and regulations shall be subject to the prior written approval of Tenant, which approval shall not be unreasonably withheld, conditioned or delayed and in no event shall such rules and regulations increase the monetary obligations owing from Tenant to Landlord under this Lease. Except as may be required by Law, in no event shall there ever be a charge for use of the parking facilities within the Center. If any such charge is required by applicable Law, Landlord shall establish systems of validation to enable Tenant to provide parking without charge for its customers using such parking facilities for a reasonable period not less than three (3) hours. Landlord may from time to time prescribeestablish, provided that Landlord shall provide Tenant with at least sixty (60) days prior written notice of any such rule or regulation. Landlord may require that automobiles owned by Tenant, its licensees, concessionaires and employees be parked in specific portions of the Common Areas. Upon reasonable written request by Landlord, Tenant shall have thirty (30) days to furnish to Landlord as a complete list of the license numbers of all automobiles operated by Tenant, its licensees, concessionaires and employees. If Tenant, its licensees, concessionaires and employees fail to park their cars in the designated Common Areas, Landlord shall have the right in its sole discretion to (i) charge Tenant ten Dollars ($10.00) per day per car parked in any Common Areas other than those designated, and/or (ii) have such car(s) physically removed from the Shopping Center at Tenant’s expense without any liability whatsoever to Landlord. Tenant shall not interfere with the rights of other persons to use the Common Areas. Landlord may temporarily close any part of the parking facilities or other portions of the Common Areas for such minimal periods of time as may be reasonably necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property, (ii) repairs or alterations in or rules subject to the Common Areas Tenant's approval as set forth in the initial sentence of this Section, such employee parking systems (which shall be free of any charge to Tenant or to any sewersits employees, utility facilities or distribution lines located within the Common Areasunless such a charge is required by applicable Law, (iiiin which event such charge shall be borne by Landlord) preventing the public from obtaining prescriptive rights in or as are not unreasonably burdensome to the Common Areasoperation of Tenant's business, (iv) and provide sufficient means of transportation and security reasons, or (v) doing and performing such other acts (whether similar or dissimilar to the foregoing) in, for access to and with respect to, the Common Areas as in the use of good business judgment the Landlord shall reasonably determine to be appropriate for the Shopping Center, provided however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant’s businesssuch employee parking. Notwithstanding anything to the contrary contained in this lease, Landlord shall not be permitted to take any action with respect to the Common Areas and/or parking areas or make any changes, repairs, temporary closings or modifications to the Common Areas and/or parking areas, if the same will (1) cause a change in the size, location, orientation or visibility of the Premises or the Shopping Center, (2) reduce or impede access to the Premises or the Shopping Center, or (3) reduce the proximity of the Premises to the parking areas or the impact the convenience of the parking facilities to the Premises or block Tenants drive through facility. The parking ratio for the Shopping Center at the Rental Commencement Date will be 5.41 parking spaces for each 1,000 rentable square foot of space in the Shopping Center. Notwithstanding anything to the contrary contained in this lease, if any event or action or omission by Landlord renders the parking facilities for the Shopping Center for whatever reason inaccessible, unusable, unsafe, or which causes the number of parking spaces for the Shopping Center to be reduced below applicable local code requirements (which reasons may include but are not limited to repairs, maintenance, casualty, condemnation, or displacement or dislocation caused by future construction), Landlord shall immediately provide substitute parking facilities for Tenant’s use and its invitees which facilities shall (i) cause no net reduction in Tenant’s parking space allocation, (ii) be similarly convenient in terms of location, quality and safety, and (iii) except in the case of an emergency, be designated by prior written notice to Tenant. Please initial: Landlord: Tenant:
5.2 Tenant agrees to pay as additional rent, as herein provided, its share of expense commercially reasonable and necessarily incurred by Landlord for the operation and maintenance of the Common Areas (“CAM Expenses”), including without Without limiting the generality of the foregoing, costs incurred for lightingTenant shall use commercially reasonable efforts to cause its employees to park within the employee parking areas designated by Landlord to the north, painting, cleaning, central trash disposal (if Landlord elects to provide), traffic control, policing, security, landscaping northeast and repairing west of the Common Areas, hazard and public liability insurance and property damage insurance, all water consumed in Premises but not within the portion of the Shopping Center which is not separately metered both (x) south of the Premises and (y) east of main drive aisle into the Shopping Center from Foothill Boulevard (between Pad building "A" and "C" as shown on Exhibit A). Landlord shall use reasonable --------- efforts to Tenants (single or multiple) thereof together with an allowance prevent use of 10% of CAM Expenses, the Common Areas by other than taxes Shopping Center occupants and insurancetheir Customers. Landlord shall cause the Common Areas to be maintained and operated in a first-class, professional manner and condition as is customary and appropriate for Landlord’s direct overhead but excluding depreciation the operation of Landlord’s original investment first-class retail centers comparable to the Shopping Center in the vicinity of the Shopping Center. Notwithstanding anything So long as access, parking and other essential services are reasonably available so as to avoid any adverse affect upon the contrary contained in this leaseoperation of Tenant's business from the Premises, additional rent shall not include the following: Landlord may at any time (1i) capital expenditures required by Landlord’s failure to comply with any law, statute, regulation, or other governmental or quasi-governmental requirement; (2) costs incurred for capital improvements to reduce CAM Expenses above the amount actually saved as the result of such capital improvements; (3) rent for a management office and rent and expenses for a marketing office; (4) any amounts paid to any person, firm or corporation related to or otherwise affiliated with Landlord or any general partner, officer, director or shareholder of Landlord or close any of the foregoingCommon Areas to make repairs or changes or to such extent as may, in Landlord's reasonable opinion, be necessary to prevent dedication thereof or the accrual of rights to any person or to the extent public therein, (ii) close temporarily any or all of the Common Areas to discourage non-customer parking, and (iii) perform such other acts in and to the Common Areas as, in Landlord's good business judgment, are advisable to improve the use thereof by occupants and tenants, their employees and invitees, so long as the same exceeds arm’s length competitive prices paid is effected in Clearwater, Florida for similar services or goods; (5) costs incurred a manner to remove any hazardous materials or other toxic material or substances from either minimize interference with the operation of business of the occupants of the Shopping Center; Center including, without limitation, Tenant. Landlord shall maintain the Common Areas well lighted during Tenant's normal business hours and until 11:00 P.M. every day (6and until midnight during the month of December).
(c) costs relating Subject to maintaining Landlord’s existencethe provisions of this Section 9(c), either as a corporation, partnership, trust Landlord may from ------------ time to time add land to or other entity, such as trustee’s fees, annual fees, partnership expenses, and legal and accounting fees (other than with respect to Shopping Center operations); (7) Landlord’s general overhead expenses above the ten percent (10%) cap described above; (8) costs and expenses resulting eliminate land from the negligence or willful misconduct of Landlord or its employees, contractors or agents; and (9) attorney’s fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants, other occupants of the Shopping Center, or other third parties and roof repair eliminate or replacement as set forth in Section 8.1 below. CAM Expenses shall be reduced by all cash discountsadd any improvements, trade discounts or quantity discounts received by Landlord change or Landlord’s managing agent consent to a change in the purchase shape, size, location, number, height or extent of the improvements to any goods, utilities or services in connection with the prudent operation portion of the Shopping Center. In the calculation of any CAM Expenses hereunder; provided, it is understood however, that no expense Tenant's prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed, shall be charged more than once. Landlord shall required for any such change which would have an adverse affect upon Tenant's use its best efforts in good faith to effect an equitable proration or occupancy of bills for services rendered or operation from the Premises, parking areas serving the Premises, the visibility of the Premises and/or Tenant's exterior signage from the Common Areas exterior to the Shopping Center and Premises and/or public rights-of-way adjacent thereto, or pedestrian or vehicular access to any other property owned by Landlord or an affiliate of Landlord. In the event there exists a conflict as to an expense which is specified to be included in CAM Expenses and is also specified to be excluded Premises from CAM Expenses within the above list, the exclusions listed above shall prevail and the expenses shall be deemed excludedCommon Areas and/or public rights-of-way adjacent thereto. Landlord shall not recover more than 100% change the dimensions or location of the CAM Expenses actually incurred by Landlord. Capital expenditures required due to changes in applicable governmental or other regulations that were not required when the building was built shall be considered CAM Expenses. The share to be paid by Tenant shall be that percentage of CAM Expenses which the Gross Leased Area of the Premises bears to the Gross Leased Area of the Shopping Center. Landlord and Tenant agree that the Gross Leased Area of the Premises shall be determined based on the “as built” site plan approved by the appropriate governmental authority. Upon such approval Landlord shall submit to Tenant a copy of the approved site plan along with a calculation of the Gross Leased Area for the Premises. Landlord shall, In no event shall any kiosks be located within ninety (90) days after the commencement of each Lease Year, notify Tenant in writing of the monthly charges due from Tenant based upon the Landlord’s good faith estimate of annual CAM Expenses. Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting practices and to include Tenant’s proportionate share of the expenses relating to the Common Areas computed as herein provided. Any necessary adjustments (in the form of an additional payment or a refund from Landlord to Tenant) shall be made sixty (60) days after delivery of such statement. Landlord agrees to retain the books and records substantiating the CAM Expenses incurred in each calendar year for a period of at least three (3) years from the date Landlord submits an annual statement to Tenant. Tenant or its designee shall have the right, during business hours and upon reasonable prior notice, from time to time to inspect Landlord’s books and records relating to CAM Expenses, and/or to have such books and records audited at Tenant’s expense by a certified public accountant designated by Tenant. Any audit that discloses a discrepancy of more than five percent (5%) in the annual CAM Expenses shall be at Landlord’s expense and Landlord shall reimburse Tenant for such cost (including reasonable attorneys’ fees) within thirty (30) days of the result of the audit. Any discrepancy shall be promptly corrected by a payment of any shortfall to Landlord by Tenant within thirty (30) days after the applicable audit, or by a credit against the next payment(s) of rent hereunder or (at Tenant’s election) a refund from Landlord of the overpaid amount within thirty (30) days, as may be applicable. In the event Tenant does not contest a statement of CAM Expenses within three (3) years after it is rendered, such statement shall become binding and conclusive on both Landlord and Tenant, except that any such statement which may contain material misrepresentations shall not be binding and conclusive on Tenant. In the event Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within one (1) year, then Landlord shall be deemed to have waived its right to collect such CAM Expenses. In addition, in the event that Landlord shall fail to invoice Tenant for any CAM Expenses pursuant to this article within six (6) months following the expiration or termination of the term of this lease, then Landlord shall be deemed to have waived its right to collect such CAM ExpensesAreas.
5.3 In the event Tenant is not billed directly by the appropriate authority for water consumed on the Premises and/or for sewer rents or charges, the ▇▇▇▇ rendered by Landlord for the above shall be based upon Tenant’s prorated share of such service as reasonably determined by Landlord and shall be payable by Tenant within thirty (30) days of receipt of Landlord’s ▇▇▇▇, and such costs or expenses incurred or payments which are made by the Landlord for water or sewer service used on the Premises shall be deemed to be CAM Expenses payable by Tenant and collectible by Landlord as such.
Appears in 1 contract
Sources: Lease (Sport Chalet Inc)