Common use of Landlord Services Clause in Contracts

Landlord Services. Except as otherwise provided in Sections 9 and 10 of this Lease and except with respect to Capital Repairs (as defined below), Tenant shall be responsible for maintenance and replacement of (i) the Building’s roof, foundation, structural members and operating systems (including without limitation, HVAC, fire protection and elevators), and (ii) the landscaping, parking structures, surface parking and other common areas of the Building. Notwithstanding the foregoing, in the event that any of the repair or replacement costs described in the preceding sentence are capital in nature as determined under generally accepted accounting principles consistently applied (“Capital Repairs”), then Landlord shall perform such Capital Repairs pursuant to plans and specifications for such work to be approved in writing by Tenant, which approval shall not be unreasonably withheld or delayed. Tenant agrees to promptly notify Landlord in writing of the need for any Capital Repairs (a “Capital Repair Notice”) and Landlord agrees to commence such Capital Repairs as soon as reasonably practicable following receipt of such Capital Repair Notice (but in any event within thirty (30) days) and to diligently prosecute such repairs to completion. The failure of Landlord to object to any proposed Capital Repair in writing to Tenant within ten (10) days following receipt of the Capital Repair Notice shall be deemed Landlord’s acceptance and approval of the proposed Capital Repair. If any dispute arises between the parties under this Section 4.K.(3) or under Section 4.I. above (the “Dispute”), then the parties agree to submit the Dispute to binding arbitration in accordance with the applicable arbitration statute, the then existing rules of the American Arbitration Association and the provisions of this Section. Either party may initiate the arbitration procedure by delivering a written notice of demand for arbitration to the other party (an “Arbitration Notice”). Within ten (10) days after the receipt by the other party of the Arbitration Notice, the parties will attempt to agree upon a single arbitrator. If the parties are not able to agree upon a single arbitrator within such 10-day period, then within the immediately following ten (10) days, each of the parties shall provide written notice (the “Designation Notice”) to the other party as to the names and addresses of at least three (3) prospective arbitrators having at least ten (10) years experience in the management of Class A office buildings in Dallas County, Texas, and having never been employed by or in business with either Landlord or Tenant or their respective affiliated companies. Upon each party’s receipt of the list of prospective arbitrators from the other party, such receiving party shall select one of the three prospects to serve as an arbitrator. If one party timely delivers a Designation Notice and the other party does not timely deliver a Designation Notice, the party who provided the Designation Notice shall select from its list the single arbitrator who shall render the decision in the arbitration proceeding. If both parties timely deliver a Designation Notice, the two (2) arbitrators selected shall be instructed and obligated to jointly select a third (3rd) arbitrator prior to the expiration of forty-five (45) days after the Arbitration Notice. If the two (2) arbitrators selected are unable to timely agree upon a third arbitrator, then upon application of any party, a court of competent jurisdiction shall complete the appointment of the arbitration panel. The hearing and presentation of evidence in connection with the arbitration proceeding shall be conducted in Dallas County, Texas, not later than twenty (20) days after (i) designation of the single arbitrator in the event that only one (1) arbitrator is timely appointed, or (ii) designation of the third (3rd) arbitrator in the event each of the parties hereto timely deliver a Designation Notice to the other party. Neither party shall be entitled to defer or postpone the hearing without the written consent of the other party. The arbitrator(s) will be instructed to render a decision within fifteen (15) days after the date of the hearing. The decision of the arbitrator(s) shall be final and binding upon the parties hereto. This agreement to arbitrate Disputes shall be specifically enforceable under the prevailing arbitration law. The fees and expenses of the arbitrator(s) shall be paid in the manner allocated by the arbitrator(s). In addition, if the arbitrator(s) make a written determination that one of the parties was the prevailing party in the arbitration proceeding, such prevailing party shall be entitled to recover, in addition to all other remedies or damages, reasonable attorney’s fees incurred in connection with the arbitration proceedings (and, if applicable, court costs). Notwithstanding anything to the contrary set forth above, in the event of an emergency requiring Capital Repairs which would reasonably be expected to materially interfere with the use and occupancy of the Premises, and provided that Tenant uses commercially reasonable efforts to deliver oral or written notice thereof to Landlord as soon as practicable under the circumstances, Tenant shall have the right to make such Capital Repairs which cost less than $20,000.00 in the aggregate on a non-cumulative basis in any Lease Year, and Landlord, subject to its right to dispute such Capital Repairs set forth above, shall reimburse Tenant for the reasonable cost of such Capital Repairs within thirty (30) days following the delivery to Landlord of written invoices evidencing such costs. If Landlord fails to timely reimburse Tenant for any costs for which Landlord is responsible pursuant to the preceding sentence, then, in addition to any other remedies available at law or in equity, Tenant may exercise its offset rights under Section 22 below. Tenant agrees to promptly cooperate with Landlord in providing Landlord all information regarding the nature of any such Capital Repairs.