Definition of Operating Expenses. As used in this Lease, the term "Operating Expenses" shall consist of all reasonable and customary costs and expenses of operation, maintenance and repair of the Building and Building Common Areas as determined by standard accounting practices and calculated assuming the Building is at least ninety-five percent (95%) occupied. Operating Expenses include the following costs by way of illustration but not limitation: (a) any and all assessments imposed with respect to the Building, Common Areas, and/or Site pursuant to any covenants, conditions and restrictions affecting the Site, Common Areas or Building; (b) costs, levies or assessments resulting from statutes or regulations promulgated by any government authority in connection with the use or occupancy of the Site, Building or the Premises or the parking facilities serving the Site, Building or the Premises; (c) waste disposal and janitorial services; (d) security; (e) costs incurred in the management of the Site, Building and Common Areas, including, without limitation: (1) supplies, (2) wages, salaries, benefits, pension payments, fringe benefits, uniforms and dry-cleaning thereof (and payroll taxes, insurance and similar governmental charges related thereto) of employees at or below the level of Building manager used in the operation and maintenance of the Site, Building and Common Areas, (3) the rental of personal property used by Landlord's personnel in the maintenance, repair and operation of the Project, (4) management office expenses including rent and operating costs, (5) accounting fees, legal fees and real estate consultant's fees, and (6) a management/administrative fee covering Operating Expenses, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs, not to exceed three percent (3%) of the annual gross receipts of the Building; (f) supplies, materials, equipment and tools; (g) repair and maintenance of the elevators and the structural portions of the Building, including the plumbing, heating, ventilating, air-conditioning and electrical systems installed or furnished by Landlord; (h) maintenance, costs and upkeep of all parking and Common Areas net of any revenues received from special event parking, if any; (i) amortization on a straight-line basis over the useful life together with interest at the Interest Rate (as defined in Section 1.14 of the Summary of this Lease) on the unamortized balance of all costs of a capital nature (including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools): (1) which actually produce a reduction in operating charges or energy consumption but only to the extent of such reduction; or (2) required after the date of this Lease under any governmental law or regulation that was not applicable to the Building at the time it was originally constructed; (j) costs and expenses of gardening and landscaping; (k) maintenance of signs (other than signs of tenants of the Site); (l) personal property taxes levied on or attributable to personal property used in connection with the Building, the Common Areas and/or the Site; and (m) costs and expenses of repairs, resurfacing, repairing, maintenance, painting, lighting, cleaning, refuse removal, security and similar items, including appropriate reserves. For purposes of determining Landlord's Contribution to Operating Expenses, Operating Expenses shall not include one-time special assessments, charges, costs or fees or extraordinary charges or costs incurred in the Base Year only, including those attributable to boycotts, embargoes, strikes or other shortages of services or supplies or amortized costs relating to capital improvements which would not be included in Operating Expenses after the Base Year. Operating Expenses shall not include Real Property Taxes and Assessments, Insurance Costs or Utilities Costs which shall be separately accounted for.
Appears in 1 contract
Samples: Office Lease (Willdan Group, Inc.)
Definition of Operating Expenses. As used in this Lease, the term "“Operating Expenses" ” shall consist of all reasonable and customary costs and expenses of operation, maintenance maintenance, repair and repair replacement of the Building Project (including the Building, the Site and Building the Common Areas Areas) as determined by standard accounting practices and calculated assuming the Building Project is at least ninety-five percent (95%) occupied, together with the Building’s Share of all costs and expenses for the operation, maintenance, repair and replacement of the Project and the Project Common Areas as determined by Landlord utilizing standard accounting practices and calculated assuming the Project is ninety-five percent (95%) occupied. The term “Building’s Share” shall mean a fraction, the numerator of which is the rentable square footage of the Building and the denominator of which is the rentable square footage of the Project. Operating Expenses include the following costs by way of illustration but not limitation:
: (a) Real Property Taxes and Assessments (as defined in Section 4.5 below) and any taxes or assessments imposed in lieu thereof; (b) any and all assessments imposed with respect to the Building, Common Areas, and/or Site pursuant to any covenants, conditions and restrictions affecting the Site, Common Areas or Building;
; (bc) to the extent not charged to and paid by Tenant pursuant to Section 16.2 below, water and sewer charges and the costs of electricity, heating, ventilating, air conditioning and other utilities; (d) to the extent not charged to and paid by Tenant pursuant to Section 16.2 below, utilities surcharges and any other costs, levies or assessments resulting from statutes or regulations promulgated by any government authority in connection with the use or occupancy of the Site, Building or the Premises or the parking facilities serving the Site, Building or the Premises;
; (ce) costs of insurance obtained by Landlord pursuant to Section 21 of this Lease; (f) waste disposal and janitorial services;
; (dg) security;
security (eif any); (h) costs incurred in the management of the Site, Building and Common Areas, including, without limitation: (1) supplies, (2) wages, salaries, benefits, pension payments, fringe benefits, uniforms and dry-cleaning thereof (and payroll taxes, unemployment taxes, employer’s Social Security taxes, together with any other taxes levied on wages, salaries, compensation and benefits, insurance and similar governmental charges related thereto) of employees at or below the level of Building manager used in the operation and maintenance of the Site, Building and Common Areas, (3) the rental of personal property used by Landlord's ’s personnel in the maintenance, repair and operation of the Project, (4) management office expenses including rent and operating costs, (5) accounting fees, legal fees and real estate consultant's ’s fees, and (6) a management/administrative fee covering Operating Expensessubstantially consistent with that charged by landlords of Comparable Buildings, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs, but in any event not to exceed three four percent (34%) of the annual gross receipts revenues of the Building;
; (fi) supplies, materials, equipment and tools;
; (gj) repair and maintenance of the elevators and the structural portions of the Building, including the plumbing, heating, ventilating, air-conditioning conditioning, electrical and electrical other utility systems installed or furnished by Landlord;
; (hk) maintenance, costs and upkeep of all parking and Common Areas net of any revenues received from special event parking, if any;
Areas; (il) amortization on a straight-line basis over the useful life (as reasonably determined by Landlord), together with interest at the Interest Rate (as defined in Section 1.14 of the Summary of this Lease) on the unamortized balance of all costs of a capital nature (including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools): (1) which actually intended to produce a reduction in operating charges or energy consumption but only to or effect other economies in the extent operation or maintenance of such reductionthe Project; or (2) required after the date of this Lease under any governmental law or regulation that was not applicable in effect as of the Commencement Date; or (3) for repair or replacement of any equipment or improvements needed to operate and/or maintain the Building, the Common Areas and/or the Site at the same quality levels as prior to the Building at the time it was originally constructed;
repair or replacement; (jm) costs and expenses of gardening and landscaping;
; (kn) maintenance of signs signs; (other than signs of tenants of the Site);
(lo) personal property taxes levied on or attributable to personal property used in connection with the Building, the Common Areas and/or the Site; and
and (mp) costs and expenses of repairs, resurfacing, repairing, maintenance, painting, lighting, cleaning, refuse removal, security lighting and similar items, including appropriate reserves. If Landlord is not furnishing any particular work or service (the cost of which, if performed by Landlord, would be included in Operating Expenses) to a tenant who has undertaken to perform such work or service in lieu of the performance thereof by Landlord, Operating Expenses shall be deemed to be increased by an amount equal to the additional Operating Expenses which would reasonably have been incurred during such period by Landlord if it had at its own expense furnished such work or service to such tenant. For purposes of determining Landlord's ’s Contribution to Operating Expenses, Operating Expenses shall not include (i) one-time special assessments, charges, costs or fees or extraordinary charges or costs incurred in the Base Year only, including those attributable (ii) market-wide labor-rate increases due to extraordinary circumstances including, but not limited to, boycotts and strikes (except to the extent such extraordinary circumstances continue beyond the Base Year), (iii) utility rate increases due to extraordinary circumstances including, but not limited to, conservation surcharges, boycotts, embargoes, strikes embargoes or other shortages (except to the extent such extraordinary circumstances continue beyond the Base Year). In no event shall structural repairs or structural replacements to the Building (including without limitation the structural walls, foundations, concrete sub flooring, structural elements of services or supplies or amortized costs relating to capital improvements which would not the roof and underground utilities) be included in Operating Expenses. Landlord shall have the right, from time to time, to equitably allocate some or all of the Operating Expenses between the Building and/or among different tenants of the Project and/or different buildings of the Project as and when such different buildings are constructed and added to (and/or excluded from) the Project or otherwise (the “Cost Pools”). Such Cost Pools may include, without limitation, the office space tenants and industrial space tenants of the Project or of a building or buildings in the Project. Such Cost Pools may also include an allocation of certain Operating Expenses within or under covenants, conditions and restrictions affecting the Project, in addition, Landlord shall have the right from time to time, in its reasonable discretion, to include or exclude existing or future buildings in the Project for purposes of determining Operating Expenses and/or the provision of various services and amenities thereto, including allocation of Operating Expenses in any such Cost Pools. Landlord hereby agrees that the cost of any new type or increased amount of insurance coverage (including, but not limited to, earthquake insurance) (or increased limits of insurance or decrease in the amount of deductibles) which is obtained or effected by Landlord during any calendar year after the Base Year (but is not obtained or effected during the Base Year) shall be added to the Operating Expenses for the Base Year (but at the rate which would have been in effect during the Base Year or the rate in effect during such subsequent calendar year, whichever is lower) prior to the calculation of Tenant’s Share of Operating Expenses for each such calendar year in which such change in insurance is initially obtained or effected. In the event that any of Landlord’s insurance premiums applicable to the Project shall decrease in any calendar year subsequent to the Base Year (including, without limitation, as a result of any decrease in the amount or type of coverage or increase in deductibles), Operating Expenses attributable to the Base Year, shall, commencing the year of such decrease, but only as long as and to the extent such decrease remains in effect, thereafter be reduced by the amount of such decrease in the insurance premiums. Landlord further agrees that any costs incurred in any calendar year after the Base Year because of any added new type of discretionary services which were readily available during the Base Year, and customarily provided by landlords of Comparable Buildings during the Base Year (but not by Landlord), and not included in the Base Year shall be added to and included in the Base Year for purposes of determining the Operating Expenses payable for such calendar year in which such added new type of discretionary services are so provided, as if such services were provided in the Base Year (but at the rate for such services which would have been in effect during the Base Year, or the rate in effect during such subsequent calendar year, whichever is lower). Notwithstanding anything to the contrary in this Lease, Operating Expenses shall not include Real Property Taxes and Assessments, Insurance Costs or Utilities Costs which shall be separately accounted for.the following:
Appears in 1 contract
Definition of Operating Expenses. As used in this Lease, the term "“Operating Expenses" ” shall consist of all reasonable and customary costs and expenses of operation, maintenance and repair of the Building and Building Common Areas as determined by standard generally accepted accounting practices principles (“GAAP”) consistently applied and calculated and, for all expenses which are variable upon the percentage of occupancy in the Building, assuming the Building is at least ninety-five percent (95%) occupied, together with the Building Percentage of all variable costs and expenses of operation and maintenance of the Property Common Areas and the Site as determined by GAAP consistently applied and calculated and, for all expenses which are variable upon the percentage of occupancy in the Building, assuming the Property is at least ninety-five percent (95%) occupied. Operating Expenses include the following costs by way of illustration but not limitation:
: (ai) any and all assessments imposed with respect to the Building, Common Areas, and/or Site (excluding any charges or assessments chargeable to other tenants in the Building) pursuant to any covenants, conditions and restrictions affecting the Site, Common Areas or Building;
Property; (bii) costs, levies or assessments resulting from statutes or regulations promulgated by any government authority in connection with the use or occupancy of the Site, Building or the Premises or the parking facilities serving the Site, Building or the Premises;
; (ciii) waste disposal and janitorial services;
; (div) security;
; (ev) costs incurred in the management of the Site, Building and Common Areas, including, without limitation: (1) supplies, materials, equipment and tools, (2) wages, salaries, benefits, pension payments, fringe benefits, uniforms and dry-cleaning thereof (and payroll taxes, insurance and similar governmental charges related thereto) of employees at or below the level of Building manager used in the operation and maintenance of the Site, Building and Common Areas, Areas (to the level of property and/or regional operations manager and for employees directly associated with the operation of the Building) (3) the rental of personal property used by Landlord's ’s personnel in the maintenance, repair and operation of the ProjectProperty, (4) management office expenses including rent and operating costscosts (prorated to include only the building employees to the level of property and/or regional operations manager and for employees directly associated with the operation of the Building), (5) accounting fees, legal fees and real estate consultant's legal fees, and (6) a reasonable and customary management/administrative fee covering Operating Expenses, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs, as stated by BOMA not to exceed three percent (3%) of the annual gross receipts of the Building;
rental for Property; (f) supplies, materials, equipment and tools;
(gvi) repair and maintenance of the elevators elevators, if any, and the structural portions of the Building, including the plumbing, heating, ventilating, air-conditioning and electrical systems installed or furnished by Landlord;
; (hvii) maintenance, costs and upkeep of all parking and Common Areas net of any revenues received from special event parking, if any;
Areas; (iix) amortization on a straight-line basis over the useful life together with interest at the Interest Rate (as defined in Section 1.14 of the Summary of this Lease) on the unamortized balance of all costs of a capital nature (including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools): ) provided that the amortized amount of any Cost Savings Improvements or Required Capital Improvements (as hereinafter defined) in any year may be as much as but will not exceed the reduction in Operating Expenses as a result thereof: (1) which actually produce designed primarily to a reduction in reduce operating charges or energy consumption but only to the extent of such reduction(“Cost Savings Improvements”); or (2) required after the date of this Lease under any governmental law or regulation Law that was not applicable to the Building at the time it was originally constructed;
constructed (j“Required Capital Improvements”); (x) costs and expenses of gardening and landscaping;
; (kxi) maintenance of signs (other than signs of tenants of the Site);
; (lxii) personal property taxes levied on or attributable to personal property owned by Landlord used in connection with the Building, the Common Areas and/or the Site; and
and (mxiii) costs and expenses of repairs, resurfacing, repairing, maintenance, painting, lighting, cleaning, refuse removal, security and similar items, including appropriate reserves. For purposes of determining Landlord's Contribution to Operating Expenses, Operating Expenses shall not include one-time special assessments, charges, costs or fees or extraordinary charges or costs incurred in the Base Year only, including those attributable to boycotts, embargoes, strikes or other shortages of services or supplies or amortized costs relating to capital improvements which would not be included in Operating Expenses after the Base Year. Operating Expenses shall not include Real Property Taxes and AssessmentsTaxes, Insurance Costs or Utilities Costs which shall be separately accounted forfor under the terms of this Lease.
Appears in 1 contract
Definition of Operating Expenses. As used in this Lease, the term "“Operating Expenses" ” shall consist of all reasonable and customary costs and expenses of operation, maintenance maintenance, repair and repair replacement of the Building Project (including the Building, the Site and Building the Common Areas Areas) as determined by standard accounting practices and calculated assuming the Building Project is at least ninety-five percent (95%) occupied, together with the Building’s Share of all costs and expenses for the operation, maintenance, repair and replacement of the Project and the Project Common Areas as determined by Landlord utilizing standard accounting practices and calculated assuming the Project is ninety-five percent (95%) occupied. The term “Building’s Share” shall mean a fraction, the numerator of which is the rentable square footage of the Building and the denominator of which is the rentable square footage of the Project. Operating Expenses include the following costs by way of illustration but not limitation:
: (a) Real Property Taxes and Assessments (as defined in Section 4.5 below) and any taxes or assessments imposed in lieu thereof; (b) any and all assessments imposed with respect to the Building, Common Areas, and/or Site pursuant to any covenants, conditions and restrictions affecting the Site, Common Areas or Building;
; (bc) to the extent not charged to and paid by Tenant pursuant to Section 16.2 below, water and sewer charges and the costs of electricity, heating, ventilating, air conditioning and other utilities; (d) to the extent not charged to and paid by Tenant pursuant to Section 16.2 below, utilities surcharges and any other costs, levies or assessments resulting from statutes or regulations promulgated by any government authority in connection with the use or occupancy of the Site, Building or the Premises or the parking facilities serving the Site, Building or the Premises;
; (ce) costs of insurance obtained by Landlord pursuant to Section 21 of this Lease; (f) waste disposal and janitorial services;
; (dg) security;
security (eif any); (h) costs incurred in the management of the Site, Building and Common Areas, including, without limitation: (1) supplies, (2) wages, salaries, benefits, pension payments, fringe benefits, uniforms and dry-cleaning thereof (and payroll taxes, unemployment taxes, employer’s Social Security taxes, together with any other taxes levied on wages, salaries, compensation and benefits, insurance and similar governmental charges related thereto) of employees at or below the level of Building manager used in the operation and maintenance of the Site, Building and Common Areas, (3) the rental of personal property to the extent used by Landlord's ’s personnel in the maintenance, repair and operation of the Project, (4) management office expenses including rent and operating costs, (5) accounting fees, legal fees and real estate consultant's ’s fees, and (6) a management/administrative fee covering Operating Expensessubstantially consistent with such fees being charged for comparable projects in the Sorrento Mesa area of San Diego County, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs, but not to exceed three four percent (34%) of the annual gross receipts revenues of the Building;
Project and which percentage rate shall not increase for years subsequent to the Base Year over the percentage rate charged in the Base Year; (fi) supplies, materials, equipment and tools;
; (gj) repair and maintenance of the elevators and the structural portions of the BuildingBuilding (provided that with respect to structural repairs only, including the cost of any such structural repairs is otherwise permissible pursuant to clause (l) below), and repair and maintenance of the plumbing, heating, ventilating, air-conditioning conditioning, electrical and electrical other utility systems installed or furnished by Landlord;
; (hk) maintenance, costs and upkeep of all parking and Common Areas net of any revenues received from special event parking, if any;
Areas; (il) amortization on a straight-line basis over the useful life (as reasonably determined by Landlord), together with interest at the Interest Rate (as defined in Section 1.14 of the Summary of this Lease) on the unamortized balance of all costs of a capital nature (including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools): (1) which actually intended to produce a reduction in operating charges or energy consumption but only to or effect other economies in the extent operation or maintenance of such reductionthe Project; or (2) required after the date of this Lease under any governmental law or regulation that was not applicable regulation; or (3) for repair or replacement of any equipment or improvements needed to operate and/or maintain the Building, the Common Areas and/or the Site at the same quality levels as prior to the Building at the time it was originally constructed;
repair or replacement; (jm) costs and expenses of gardening and landscaping;
; (kn) maintenance of signs (signs, other than signs of tenants of the Site);
Landlord’s identification signage; (lo) personal property taxes levied on or attributable to personal property to the extent used in connection with the Building, the Common Areas and/or the Site; and
and (mp) costs and expenses of repairs, resurfacing, repairing, maintenance, painting, lighting, cleaning, refuse removal, security lighting and similar itemsitems to the extent reasonably required by normal wear and tear. Notwithstanding the foregoing, the term “Operating Expenses” shall not include the following: (i) costs (including permit, license and inspection fees) incurred for tenant improvements for other tenants within the Building; (ii) legal and auditing fees (other than those fees reasonably incurred in connection with the maintenance and operation of all or any portion of the Building), leasing commissions, advertising expenses and similar costs incurred in connection with the leasing of the Building; (iii) depreciation, amortization and interest payments, (except as otherwise provided in this Lease and except on materials, tools, supplies and vendor-type equipment purchased by Landlord to enable Landlord to supply services Landlord might otherwise contract for with a third party where such depreciation, amortization and interest payments would otherwise have been included in the charge for such third party’s services, all as determined in accordance with standard real estate accounting practices, consistently applied, and when depreciation or amortization is permitted or required, the item shall be amortized over its reasonably anticipated useful life); (iv) any items for which Landlord is actually reimbursed by insurance or by direct reimbursement by any other tenant of the Building; (v) costs of repairs or other work necessitated by fire, windstorm or other casualty (excluding any deductibles) and/or costs of repair or other work necessitated by the exercise of the right of eminent domain to the extent Landlord is reimbursed by insurance proceeds or a condemnation award, as applicable, and the same is actually received by Landlord for such purposes; (vi) other than any interest charges for capital improvements, any interest payments on any financing for the Building and interest and penalties incurred as a result of Landlord’s late payment of any invoice; (vii) any costs expressly excluded from Operating Expenses elsewhere in this Lease; (viii) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Building to the extent the same exceeds the costs of such by unaffiliated third parties on a competitive basis; (ix) any payment under a ground lease or master lease; (x) costs of a capital nature (including structural additions), except as otherwise set forth above in clause (l) and elsewhere in this Lease; (xi) attorneys’ fees and other costs and expenses incurred in connection with disputes with present or prospective tenants or other occupants of the Building; (xii) costs arising from Landlord’s charitable or political contributions: (xiii) costs associated with the operation of the business of the partnership or entity which constitutes Landlord as the same are distinguished from the costs of operation of the Building; (xiv) costs for the acquisition of sculpture, paintings or other objects of art (except for maintenance costs with respect thereto); (xv) costs of correcting latent defects in the original construction of the Building; (xvi) costs, including appropriate reservespenalties, fees and legal expenses, incurred due to a violation by Landlord of applicable laws in effect as of the date hereof, that would not have been incurred but for any such violation by Landlord; (xvii) any bad debt loss, rent loss, or reserves for bad debts or rent loss; (xviii) the wages and benefits of any employee who does not devote substantially all of his or her employed time to the Building unless such wages and benefits are prorated to reflect time spent on operating and managing the Building; (xix) any compensation paid to clerks, attendants or other persons in commercial concessions operated by the Landlord other than concierge services; (xx) electric power costs for which any tenant directly contracts with the local public service company; (xxi) tax penalties incurred as a result of the Landlord’s negligence, inability or unwillingness to make payments when due and (xxii) costs of structural repairs necessitated by fire, windstorm or other casualty (excluding deductibles) that would be covered by a special form all-risk policy or earthquake policy. If Landlord is not furnishing any particular work or service (the cost of which, if performed by Landlord, would be included in Operating Expenses) to a tenant who has undertaken to perform such work or service in lieu of the performance thereof by Landlord, Operating Expenses shall be deemed to be increased by an amount equal to the additional Operating Expenses which would reasonably have been incurred during such period by Landlord if it had at its own expense furnished such work or service to such tenant. For purposes of determining Landlord's ’s Contribution to Operating Expenses, Operating Expenses shall not include (i) one-time special assessments, charges, costs or fees or extraordinary charges or costs incurred in the Base Year only, including those attributable (ii) market-wide labor-rate increases due to extraordinary circumstances including, but not limited to, boycotts and strikes which are limited to the Base Year only, and (iii) utility rate increases due to extraordinary circumstances including, but not limited to, conservation surcharges, boycotts, embargoes, strikes embargoes or other shortages and which occur in the Base Year only; provided, however, that if market increases excluded from the Base Year occur in any subsequent year of services or supplies or amortized the Lease Term, the Base Year Operating Expenses shall be increased to include such previously excluded amounts. In no event shall costs relating to capital improvements which would not be for any item of utilities included in Operating Expenses for any year subsequent to the Base Year be less than the amount included in Operating Expenses for the Base Year for such utility item. Landlord hereby agrees that the cost of earthquake insurance, if obtained or effected by Landlord during any calendar year after the Base Year (but is not obtained or effected during the Base Year. ) shall be added to the Operating Expenses for the Base Year (but at the rate which would have been in effect during the Base Year or the rate in effect during such subsequent calendar year, whichever is lower) prior to the calculation of Tenant’s Percentage of Operating Expenses for each such calendar year in which such change in insurance is obtained or effected. Landlord further agrees that any costs incurred in any calendar year after the Base Year because of any added new type of discretionary services which were readily available during the Base Year and customarily provided by landlords of comparable buildings in the Sorrento Mesa area of San Diego County during the Base Year (but not by Landlord) and not included in the Base Year, shall be added to and included in the Base Year for purposes of determining the Excess Expenses payable for such calendar year in which such added new type of discretionary services are so provided, as if such services were provided in the Base Year (but at the rate for such services which would have been in effect during the Base Year or the rate in effect during such subsequent calendar year, whichever is lower); provided, however, the foregoing provision shall not include Real Property Taxes and Assessmentsapply to the costs of (i) any capital additions, Insurance Costs capital alterations, capital repairs or Utilities Costs capital improvements which shall be separately accounted forgoverned by the provisions of Section 4.4(l) above, or (ii) security and/or parking control services required to operate the Project as a first-class office building project. Landlord shall have the right, from time to time, to equitably allocate some or all of the Operating Expenses between the Building and/or among different tenants of the Project and/or different buildings of the Project as and when such different buildings are constructed and added to (and/or excluded from) the Project or otherwise (the “Cost Pools”). Such Cost Pools may include, without limitation, the office space tenants and industrial space tenants of the Project or of a building or buildings in the Project. Such Cost Pools may also include an allocation of certain Operating Expenses within or under covenants, conditions and restrictions affecting the Project. In addition, Landlord shall have the right from time to time, in its reasonable discretion, to include or exclude existing or future buildings in the Project for purposes of determining Operating Expenses and/or the provision of various services and amenities thereto, including allocation of Operating Expenses in any such Cost Pools.
Appears in 1 contract
Samples: Office Lease (Axesstel Inc)
Definition of Operating Expenses. As used in this Lease, the term "“Operating Expenses" ” shall consist of all reasonable and customary costs and expenses of operation, maintenance maintenance, repair and repair replacement of the Building Project (including the Building, the Site and Building the Common Areas Areas) as determined by standard accounting practices and calculated assuming the Building Project is at least ninety-five percent (95%) occupied, together with the Building’s Share of all costs and expenses for the operation, maintenance, repair and replacement of the Project and the Project Common Areas as determined by Landlord utilizing standard accounting practices and calculated assuming the Project is ninety-five percent (95%) occupied. The term “Building’s Share” shall mean a fraction, the numerator of which is the rentable square footage of the Building and the denominator of which is the rentable square footage of the Project. Operating Expenses include the following costs by way of illustration but not limitation:
: (a) Real Property Taxes and Assessments (as defined in Section 4.5 below) and any taxes or assessments imposed in lieu thereof; (b) any and all assessments imposed with respect to the Building, Common Areas, and/or Site pursuant to any covenants, conditions and restrictions affecting the Site, Common Areas or Building;
; (bc) to the extent not charged to and paid by Tenant pursuant to Section 16.2 below, water and sewer charges and the costs of electricity, heating, ventilating, air conditioning and other utilities; (d) to the extent not charged to and paid by Tenant pursuant to Section 16.2 below, utilities surcharges and any other costs, levies or assessments resulting from statutes or regulations promulgated by any government authority in connection with the use or occupancy of the Site, Building or the Premises or the parking facilities serving the Site, Building or the Premises;
; (ce) costs of insurance obtained by Landlord pursuant to Section 21 of this Lease; (f) waste disposal and janitorial services;
; (dg) security;
security (eif any); (h) costs incurred in the management of the Site, Building and Common Areas, including, without limitation: (1) supplies, (2) wages, salaries, benefits, pension payments, fringe benefits, uniforms and dry-cleaning thereof (and payroll taxes, unemployment taxes, employer’s Social Security taxes, together with any other taxes levied on wages, salaries, compensation and benefits, insurance and similar governmental charges related thereto) of employees at or below the level of Building manager used in the operation and maintenance of the Site, Building and Common Areas, (3) the rental of personal property used by Landlord's ’s personnel in the maintenance, repair and operation of the Project, (4) management office expenses including rent and operating costs, (5) accounting fees, legal fees and real estate consultant's ’s fees, and (6) a management/administrative fee covering Operating Expensessubstantially consistent with that charged by landlords of Comparable Buildings, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs, but in any event not to exceed three four percent (34%) of the annual gross receipts revenues of the Building;
; (fi) supplies, materials, equipment and tools;
; (gj) repair and maintenance of the elevators and the structural portions of the Building, including the plumbing, heating, ventilating, air-conditioning conditioning, electrical and electrical other utility systems installed or furnished by Landlord;
; (hk) maintenance, costs and upkeep of all parking and Common Areas net of any revenues received from special event parking, if any;
Areas; (iI) amortization on a straight-line basis over the useful life (as reasonably determined by Landlord), together with interest at the Interest Rate (as defined in Section 1.14 of the Summary of this Lease) on the unamortized balance of all costs of a capital nature (including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools): (1) which actually intended to produce a reduction in operating charges or energy consumption but only to or effect other economies in the extent operation or maintenance of such reductionthe Project; or (2) required after the date of this Lease under any governmental law or regulation that was not applicable in effect as of the Commencement Date; or (3) for repair or replacement of any equipment or improvements needed to operate and/or maintain the Building, the Common Areas and/or the Site at the same quality levels as prior to the Building at the time it was originally constructed;
repair or replacement; (jm) costs and expenses of gardening and landscaping;
; (kn) maintenance of signs signs; (other than signs of tenants of the Site);
(lo) personal property taxes levied on or attributable to personal property used in connection with the Building, the Common Areas and/or the Site; and
and (mp) costs and expenses of repairs, resurfacing, repairing, maintenance, painting, lighting, cleaning, refuse removal, security lighting and similar items, including appropriate reserves. If Landlord is not furnishing any particular work or service (the cost of which, if performed by Landlord, would be included in Operating Expenses) to a tenant who has undertaken to perform such work or service in lieu of the performance thereof by Landlord, Operating Expenses shall be deemed to be increased by an amount equal to the additional Operating Expenses which would reasonably have been incurred during such period by Landlord if it had at its own expense furnished such work or service to such tenant. For purposes of determining Landlord's ’s Contribution to Operating Expenses, Operating Expenses shall not include (i) one-time special assessments, charges, costs or fees or extraordinary charges or costs incurred in the Base Year only, including those attributable (ii) market-wide labor-rate increases due to extraordinary circumstances including, but not limited to, boycotts and strikes (except to the extent such extraordinary circumstances continue beyond the Base Year), (iii) utility rate increases due to extraordinary circumstances including, but not limited to, conservation surcharges, boycotts, embargoes, strikes embargoes or other shortages (except to the extent such extraordinary circumstances continue beyond the Base Year). In no event shall structural repairs or structural replacements to the Building (including without limitation the structural walls, foundations, concrete sub flooring, structural elements of services or supplies or amortized costs relating to capital improvements which would not the roof and underground utilities) be included in Operating Expenses. Landlord shall have the right, from time to time, to equitably allocate some or all of the Operating Expenses between the Building and/or among different tenants of the Project and/or different buildings of the Project as and when such different buildings are constructed and added to (and/or excluded from) the Project or otherwise (the “Cost Pools”). Such Cost Pools may include, without limitation, the office space tenants and industrial space tenants of the Project or of a building or buildings in the Project. Such Cost Pools may also include an allocation of certain Operating Expenses within or under covenants, conditions and restrictions affecting the Project. In addition, Landlord shall have the right from time to time, in its reasonable discretion, to include or exclude existing or future buildings in the Project for purposes of determining Operating Expenses and/or the provision of various services and amenities thereto, including allocation of Operating Expenses in any such Cost Pools. Landlord hereby agrees that the cost of any new type or increased amount of insurance coverage (including, but not limited to, earthquake insurance) (or increased limits of insurance or decrease in the amount of deductibles) which is obtained or effected by Landlord during any calendar year after the Base Year (but is not obtained or effected during the Base Year) shall be added to the Operating Expenses for the Base Year (but at the rate which would have been in effect during the Base Year or the rate in effect during such subsequent calendar year, whichever is lower) prior to the calculation of Tenant’s Share of Operating Expenses for each such calendar year in which such change in insurance is initially obtained or effected. In the event that any of Landlord’s insurance premiums applicable to the Project shall decrease in any calendar year subsequent to the Base Year (including, without limitation, as a result of any decrease in the amount or type of coverage or increase in deductibles), Operating Expenses attributable to the Base Year, shall, commencing the year of such decrease, but only as long as and to the extent such decrease remains in effect, thereafter be reduced by the amount of such decrease in the insurance premiums. Landlord further agrees that any costs incurred in any calendar year after the Base Year because of any added new type of discretionary services which were readily available during the Base Year, and customarily provided by landlords of Comparable Buildings during the Base Year (but not by Landlord), and not included in the Base Year shall be added to and included in the Base Year for purposes of determining the Operating Expenses payable for such calendar year in which such added new type of discretionary services are so provided, as if such services were provided in the Base Year (but at the rate for such services which would have been in effect during the Base Year, or the rate in effect during such subsequent calendar year, whichever is lower). Notwithstanding anything to the contrary in this Lease, Operating Expenses shall not include Real Property Taxes and Assessments, Insurance Costs or Utilities Costs which shall be separately accounted for.the following:
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Definition of Operating Expenses. As used in this Lease, the term (a) "Building Operating Expenses" shall consist include all expenses and costs of every kind and nature which Landlord shall pay or become obligated to pay because of or in connection with the ownership and operation of the Building, including, without limitation: (i) all Impositions as set forth in Article 6; (ii) premiums for insurance maintained by Landlord pursuant to Article 5; (iii) wages, salaries and related expenses and benefits of all reasonable on-site employees, if any, and customary costs and expenses of off-site employees, if any, engaged in operation, maintenance and repair security of the Building; (iv) all supplies, materials, tool and equipment rental used in operation of the Building; (v) all maintenance and repair, waste disposal, janitorial, security and service costs incurred in connection with the Building; (vi) a property management fee equal to 3% of the Base Rent (the "Management Fee"); (vii) legal and accounting expenses, including the cost of audits by certified public accountants; (viii) repairs, replacements and general maintenance of the Building (excluding those paid for by proceeds of insurance or other parties and alterations attributable solely to tenants of the Project Building Common Areas as determined other than Tenant); (ix) all interior and exterior maintenance, repair and replacement costs, including, without limitation, service areas, elevators, mechanical rooms, plumbing, heating, ventilating and air conditioning ("HVAC") equipment and non-structural roof (all to the extent related to the interior or exterior of the Building); (x) all other reasonable operating, management and other expenses incurred by standard accounting practices Landlord in connection with operation of the Building; and calculated assuming (xi) all charges for water and sewer services not separately metered by Tenant and used or consumed in the Building is at least ninety-five percent Building; (95%) occupied. Operating Expenses include the following costs by way of illustration but not limitation:
(axii) any and all assessments imposed with respect to the Building, Common Areas, and/or Site pursuant to any covenants, conditions and restrictions affecting the Site, Common Areas or Building;
(b) other costs, levies or assessments resulting from statutes or regulations promulgated by any government governmental authority in connection with the use or occupancy of the Site, Building or the Premises or the parking facilities serving the Site, Building Project or the Premises;
; (c) waste disposal and janitorial services;
(d) security;
(e) costs incurred in the management of the Site, Building and Common Areas, including, without limitation: (1) supplies, (2) wages, salaries, benefits, pension payments, fringe benefits, uniforms and dry-cleaning thereof (and payroll taxes, insurance and similar governmental charges related thereto) of employees at or below the level of Building manager used in the operation and maintenance of the Site, Building and Common Areas, (3) the rental of personal property used by Landlord's personnel in the maintenance, repair and operation of the Project, (4) management office expenses including rent and operating costs, (5) accounting fees, legal fees and real estate consultant's fees, and (6) a management/administrative fee covering Operating Expenses, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs, not to exceed three percent (3%) of the annual gross receipts of the Building;
(f) supplies, materials, equipment and tools;
(g) repair and maintenance of the elevators and the structural portions of the Building, including the plumbing, heating, ventilating, air-conditioning and electrical systems installed or furnished by Landlord;
(h) maintenance, costs and upkeep of all parking and Common Areas net of any revenues received from special event parking, if any;
(i) amortization on a straight-line basis over the useful life together with interest at the Interest Rate (as defined in Section 1.14 of the Summary of this Lease) on the unamortized balance of all costs of a capital nature (including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools): (1) which actually produce a reduction in operating charges or energy consumption but only to the extent of such reduction; or (2) required after the date of this Lease under any governmental law or regulation that was not applicable to the Building at the time it was originally constructed;
(j) costs and expenses of gardening and landscaping;
(k) maintenance of signs (other than signs of tenants of the Site);
(lxiii) personal property taxes levied on or attributable to personal property used in connection with the Project; (xiv) freight charges and transportation services attributable to the operation and/or management of the Project; and (xv) reasonable accounting, audit, verification and other reasonable consulting fees. Building Operating Expenses do not include electricity and gas, if any, delivered to the Building, the Common Areas and/or the Site; and
(m) as well as Tenant's Premises, which costs and expenses of repairs, resurfacing, repairing, maintenance, painting, lighting, cleaning, refuse removal, security and similar items, including appropriate reserves. For purposes of determining Landlordare Tenant's Contribution to Operating Expenses, Operating Expenses shall not include one-time special assessments, charges, costs proportionate or fees or extraordinary charges or costs incurred sole responsibility as further defined in the Base Year only, including those attributable to boycotts, embargoes, strikes or other shortages of services or supplies or amortized costs relating to capital improvements which would not be included in Operating Expenses after the Base Year. Operating Expenses shall not include Real Property Taxes and Assessments, Insurance Costs or Utilities Costs which shall be separately accounted forSection 6.
Appears in 1 contract
Samples: Office Lease (Jni Corp)
Definition of Operating Expenses. As used in this Lease, the term "“Operating Expenses" ” shall consist of all reasonable and customary costs and expenses of operation, maintenance and repair of the Building and Building Common Areas as determined by standard accounting practices and calculated assuming the Building is at least ninety-five percent (95%) occupied, together with the Building Percentage of all costs and expenses of operation and maintenance of the Property Common Areas and the Site as determined by standard accounting practices and calculated assuming the Property is at least ninety-five percent (95%) occupied. Operating Expenses include the following costs by way of illustration but not limitation:
: (ai) any and all assessments imposed with respect to the Building, Common Areas, and/or Site pursuant to any covenants, conditions and restrictions affecting the Site, Common Areas or Building;
Property; (bii) costs, levies or assessments resulting from statutes or regulations promulgated by any government authority in connection with the use or occupancy of the Site, Building or the Premises or the parking facilities serving the Site, Building or the Premises;
; (ciii) waste disposal and janitorial services;
; (div) security;
; (ev) costs incurred in the management of the Site, Building and Common Areas, including, without limitation: (1) supplies, materials, equipment and tools, (2) wages, salaries, benefits, pension payments, fringe benefits, uniforms and dry-cleaning thereof (and payroll taxes, insurance and similar governmental charges related thereto) of employees at or below the level of Building manager used in the operation and maintenance of the Site, Building and Common Areas, (3) the rental of personal property used by Landlord's ’s personnel in the maintenance, repair and operation of the ProjectProperty, (4) management office expenses including rent and operating costs, (5) accounting fees, legal fees and real estate consultant's ’s fees, and (6) a management/administrative fee covering Operating Expenses, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs, not to exceed three four percent (34%) of the annual gross receipts revenues of the Building;
; (f) supplies, materials, equipment and tools;
(gvi) repair and maintenance of the elevators elevators, if any, and the structural portions of the Building, including the plumbing, heating, ventilating, air-conditioning and electrical systems installed or furnished by Landlord;
; (hvii) maintenance, costs and upkeep of all parking and Common Areas net of any revenues received from special event parking, if any;
Areas; (iix) amortization on a straight-line basis over the useful life together with interest at the Interest Rate (as defined in Section 1.14 1.13 of the Summary of this LeaseLease Summary) on the unamortized balance of all costs of a capital nature (including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools): (1) which actually reasonably intended to produce a cost savings to Tenant by causing a reduction in operating charges or energy consumption but only to the extent of such reductionconsumption; or (2) required after the date of this Lease under any governmental law or regulation Law that was not applicable to the Building at the time it was originally constructed;
; or (j3) for repair or replacement of any equipment or improvements needed to operate and/or maintain the Building, the Common Areas and/or the Site at the same quality levels as prior to the repair or replacement; (x) costs and expenses of gardening and landscaping;
; (kxi) maintenance of signs (other than signs of tenants of the Site);
; (lxii) personal property taxes levied on or attributable to personal property used in connection with the Building, the Common Areas and/or the Site; and
and (mxiii) costs and expenses of repairs, resurfacing, repairing, maintenance, painting, lighting, cleaning, refuse removal, security and similar items, including appropriate reservesand commercially reasonable reserves comparable to reserves established by similarly situated landlords of similarly situated premises. For purposes of determining Landlord's Contribution to the Operating ExpensesExpenses for the Base Year, Operating Expenses shall not include one-time special assessments, charges, costs or fees or extraordinary charges or costs incurred in the Base Year only, including those attributable to boycotts, embargoes, strikes or other shortages of services or supplies or amortized costs relating to capital improvements which would not be included in Operating Expenses after the Base Yearimprovements. Operating Expenses shall not include Real Property Taxes and AssessmentsTaxes, Insurance Costs or Utilities Costs which shall be separately accounted forfor under the terms of this Lease.
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Definition of Operating Expenses. As used in this Lease, the term "“Operating Expenses" ” shall consist of all reasonable and customary costs and expenses of operation, maintenance maintenance, repair and repair replacement of the Building Project (including the Building), the Site and Building the Common Areas as determined by Landlord utilizing standard accounting practices and calculated assuming the Building Project is at least ninety-five percent (95%) occupied. Operating Expenses include the following costs by way of illustration but not limitation:
: (a) Real Property Taxes and Assessments (as defined in Section 4.5 below) and any taxes or assessments imposed in lieu thereof; (b) any and all assessments imposed with respect to the Building, Common Areas, and/or Site Project pursuant to any covenants, conditions and restrictions affecting the SiteProject; (c) water and sewer charges and the costs of electricity, Common Areas or Building;
heating, ventilating, air conditioning and other utilities; (bd) utilities surcharges and any other costs, levies or assessments resulting from statutes or regulations promulgated by any government authority in connection with the use or occupancy of the SiteProject including, Building or the Premises or but not limited to, the parking facilities serving the Site, Building or the Premises;
Project; (ce) costs of insurance obtained by Landlord pursuant to Section 21 of this Lease; (f) waste disposal and janitorial services;
; (dg) security;
; (eh) costs incurred in the management of the Site, Building and Common AreasProject, including, without limitation: (1) supplies, (2) wages, salaries, benefits, pension payments, fringe benefits, uniforms and dry-cleaning thereof (and payroll taxes, insurance and similar governmental charges related thereto) of employees at or below the level of Building manager used in the operation and maintenance of the Site, Building and Common AreasProject, (3) the rental of personal property used by Landlord's personnel in the maintenance, repair and operation of the Project, (4) management office expenses including rent and operating costs, (5) accounting fees, legal fees and real estate consultant's ’s fees, and (6) a management/administrative fee covering Operating Expenses, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs, not to exceed three five percent (35%) of the annual gross receipts revenues of the Building;
Project; (fi) supplies, materials, equipment and tools;
; (gj) repair and maintenance of the elevators and the structural portions of the BuildingProject, including the plumbing, heating, ventilating, air-conditioning conditioning, electrical and electrical other utility systems installed or furnished by Landlord;
; (hk) maintenance, costs and upkeep of all parking and Common Areas net of any revenues received from special event parking, if any;
Areas; (il) amortization on a straight-line basis over (as determined by Landlord) the lesser of (x) the “Payback Period” (as defined below) or (y) the useful life (as reasonably determined by Landlord), together with interest at the Interest Rate (as defined in Section 1.14 of the Summary of this Lease) on the unamortized balance of all costs of a classified as capital nature or major repairs and maintenance (as determined by Landlord) (including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools): (1) which actually intended to produce a reduction in operating charges or energy consumption but only to or effect other economies in the extent operation or maintenance of such reductionthe Project; or (2) required after the date of this Lease under any governmental law or regulation that was not applicable regulation; (3) for repair or replacement of any equipment or improvements needed to operate and/or maintain the Project at the same quality levels as prior to the Building at repair or replacement, including, but not limited to, items which are rented (rather than purchased) in the time it was originally constructed;
ordinary course of business; or (j4) which are reasonably determined by Landlord to be in the best interests of the Project; (m) costs and expenses of gardening and landscaping;
; (kn) maintenance of signs signs; (other than signs of tenants of the Site);
(lo) personal property taxes levied on or attributable to personal property used in connection with the Building, the Common Areas and/or the SiteProject; and
and (mp) costs and expenses of repairs, resurfacing, repairing, maintenance, painting, lighting, cleaning, refuse removal, security and similar items, including appropriate reserves. For purposes of determining Landlord's ’s Contribution to Operating Expenses, Operating Expenses shall not include (i) one-time special assessments, charges, costs or fees or extraordinary charges or costs incurred in the Base Year only, including those attributable (ii) market-wide labor-rate increases due to extraordinary circumstances including, but not limited to, boycotts and strikes, (iii) utility rate increases due to extraordinary circumstances including, but not limited to, conservation surcharges, boycotts, embargoes, strikes embargoes or other shortages shortages, and (iv) amortization of services or supplies or any capital items including, but not limited to, capital improvements, capital repairs and capital replacements (including such amortized costs relating to capital improvements which would not be included where the actual improvement, repair or replacement was made in Operating Expenses after the Base Year. Operating Expenses shall not include Real Property Taxes and Assessments, Insurance Costs or Utilities Costs which shall be separately accounted for.prior
Appears in 1 contract
Samples: Office Lease (Hi/Fn Inc)
Definition of Operating Expenses. As used in this Lease, the term "“Operating Expenses" Expenses “ shall consist of all reasonable and customary costs and expenses of operation, maintenance maintenance, repair and repair replacement of the Building Project and Building the Common Areas as determined by Landlord utilizing standard accounting practices and calculated assuming the Building Project is at least ninety-five percent (95%) % occupied. Operating Expenses shall include the following costs by way of illustration but not limitation:
: (a) Real Property Taxes and Assessments (as defined in Section 4.5) and any taxes or assessments imposed in lieu thereof; (b) any and all assessments imposed with respect to the BuildingProject, Common Areas, and/or Site pursuant to any covenants, conditions and restrictions affecting the Site, Common Areas or Building;
Project; (bc) except to the extent paid by Tenant as part of Electricity Utility Charges (as defined in Section 16.2), water and sewer charges and the costs of electricity, heating, ventilating, air conditioning and other utilities; (d) except to the extent paid by Tenant as part of Electricity Utility Charges, utilities surcharges and any other costs, levies or assessments resulting from statutes or regulations promulgated by any government authority in connection with the use or occupancy of the Site, Building Project, the Premises, or the Premises or Parking Facilities; (e) costs of insurance obtained by Landlord pursuant to Section 21 of this Lease; (f) except to the parking facilities serving the Siteextent paid by Tenant as part of Electricity Utility Charges, Building or the Premises;
(c) waste disposal and janitorial services;
; (dg) security;
; (eh) costs incurred in the management of the Site, Building Project and Common Areas, including, without limitation: (1) supplies, (2) wages, salaries, benefits, pension payments, fringe benefits, uniforms and dry-cleaning thereof (and payroll taxes, insurance and similar governmental charges related thereto) of employees at or below the level of Building manager used in the operation and maintenance of the Site, Building Project and Common Areas, (3) the rental of personal property used by Landlord's ’s personnel in the maintenance, repair and operation of the Project, (4) management office expenses including rent and operating costs, (5) accounting fees, legal fees and real estate consultant's ’s fees, and (6) a management/administrative fee covering Operating Expenses, Real Property Taxes and Assessments, Insurance Costs and Utilities Costs, not to exceed three five percent (35%) of the annual gross receipts revenues of the Building;
Project; (fi) supplies, materials, equipment and tools;
; (gj) repair repair, replacement and maintenance of the elevators and the structural portions of the BuildingProject, including the plumbing, heating, ventilating, air-conditioning conditioning, electrical and electrical other utility systems installed or furnished by Landlord;
; (hk) maintenance, costs and upkeep of all parking and Common Areas net of any revenues received from special event parking, if any;
Areas; (il) amortization on a straight-line basis over the useful life (as determined in accordance with generally accepted accounting principles in effect from time to time in the United States), together with interest at the Interest Rate (as defined in Section 1.14 of the Summary of this Lease) on the unamortized balance of all costs of a capital nature (including, without limitation, capital improvements, capital replacements, capital repairs, capital equipment and capital tools): (1) which actually intended to produce a reduction in operating charges or energy consumption but only to or effect other economies in the extent operation or maintenance of such reductionthe Project; or (2) required after the date of this Lease under any governmental law or regulation that was not applicable regulation; (3) for repair or replacement of any equipment or improvements needed to operate and/or maintain the Project, the Common Areas and/or the Site at the same quality levels as prior to the Building at repair or replacement; or (4) which are reasonably determined by Landlord to be in the time it was originally constructed;
best interests of the Project; (jm) costs and expenses of gardening and landscaping;
; (kn) maintenance of signs (other than signs of other tenants of the SiteProject);
; (lo) personal property taxes levied on or attributable to personal property used in connection with the BuildingProject, the Common Areas and/or the Site; and
and (mp) costs and expenses of repairs, resurfacing, repairing, maintenance, painting, lighting, cleaning, refuse removal, security and similar items, including appropriate reserves. For purposes of determining Landlord's ’s Contribution to Operating Expenses, Operating Expenses shall not include (i) one-time special assessments, charges, costs or fees or extraordinary charges or costs incurred in the Base Year only, including those attributable (ii) market-wide labor-rate increases due to extraordinary circumstances including, but not limited to, boycotts and strikes, (iii) utility rate increases due to extraordinary circumstances including, but not limited to, conservation surcharges, boycotts, embargoes, strikes embargoes or other shortages shortages, and (iv) amortization of services or supplies or any capital items including, but not limited to, capital improvements, capital repairs and capital replacements (including such amortized costs relating to capital improvements which would not be where the actual improvement, repair or replacement was made in prior years). In no event shall costs for any item of utilities included in Operating Expenses after for any year subsequent to the Base Year be less than the amount included in Operating Expenses for the Base Year for such utility item. In addition, if in any calendar year subsequent to the Base Year, the amount of Operating Expenses decreases due to a reduction in the cost of providing utilities, security and/or other services to the Project for any reason, including without limitation, because of deregulation of the utility industry and/or reduction in rates achieved in contracts with utilities and/or service providers, then for purposes of the calendar year in which such decrease in Operating Expenses occurred and all subsequent calendar years, the Operating Expenses for the Base Year shall be decreased by an amount equal to such decrease. Notwithstanding anything in the definition of Operating Expenses set forth above, Operating Expenses shall not include Real Property Taxes the following:
(a) costs incurred in correcting construction defects in the original construction of the Project;
(b) the following costs incurred with respect to the tenant leases at the Project: (i) the legal expenses and Assessmentsbrokerage fees incurred in connection with negotiating and documenting such leases, Insurance Costs (ii) the cost with respect to tenant improvements to the premises demised by such leases, (iii) free rent and tenant allowance concessions provided by Landlord to tenants under such leases, and (iv) the expenses of advertising the Project to prospective tenants;
(c) costs for which the Landlord is reimbursed, or Utilities Costs would have been reimbursed, if Landlord had carried the insurance Landlord is required to carry pursuant to this Lease;
(d) any bad debt loss, rent loss, or reserves for bad debts or rent loss or any reserves of any kind (but Operating Expenses may include reasonable reserves imposed upon the Project as part of the assessments under any covenants, conditions and restrictions recorded against the Project and other real property, not owned by Landlord or an affiliate of Landlord, in addition to the Project);
(e) the wages and benefits of any employee who does not devote substantially all of his or her employed time to the Project unless such wages and benefits are prorated to reflect time spent on operating and managing the Project vis-à-vis time spent on matters unrelated to operating and managing the Project; provided, that in no event shall Operating Expenses for purposes of this Lease include wages and/or benefits attributable to personnel above the level of Project general manager unless those personnel are acting in the capacity of their respective positions and the amount of salary being charged to the Project is comparable to Comparable Buildings in the area;
(f) amount paid by Landlord as ground rental for the Project;
(g) costs of capital improvements (including rentals which would constitute a capital improvement if purchased), alterations and repairs except as set forth above in this Section 4.4;
(h) any amount paid by Landlord or to the parent organization or a subsidiary or affiliate of the Landlord for supplies and/or services in the Project to the extent the same exceeds the costs of such supplies and/or services rendered by qualified, first-class unaffiliated third parties on a competitive basis;
(i) the cost of all items and services for which Tenant or any other tenant in the Project is obligated to reimburse Landlord such cost, or the cost of such items and services for which Landlord provides selectively to one or more tenants (other than Tenant) without reimbursement;
(j) costs, other than those incurred in ordinary maintenance and repair, for sculpture, paintings or other objects of art not constituting fixtures;
(k) costs incurred to comply with applicable laws with respect to Hazardous Materials (as such term is defined in Section 6.4) in, on or under the Project and/or the Building to the extent such Hazardous Materials are: (1) in existence as of the Commencement Date and in violation of any applicable Environmental Law (as defined in Section 6.4) in effect as of the Commencement Date, and were of such a nature that a federal, state or municipal governmental or quasi-governmental authority, if it had then had knowledge of the presence of such Hazardous Materials, in the state and under the conditions that the same existed in the Building or on the Project, would have then required removal, remediation or other action with respect to such Hazardous Materials; or (2) introduced onto the Project and/or the Building after the Commencement Date by Landlord or other tenants of the Project in violation of applicable laws in effect at the date of introduction, and were of such a nature that a federal, state or municipal governmental or quasi-governmental authority, if it had then had knowledge of the presence of such Hazardous Materials, in the state and under the conditions that the same existed in the Building or on the Project, would have then required removal, remediation or other action with respect to such Hazardous Materials;
(l) cost incurred to correct violations of Title III of the Americans with Disabilities Act of 1990 existing as of the Commencement Date, which violations were of such a nature that a federal, state or municipal governmental or quasi-governmental authority, if it had then had knowledge of the existence of such violations would have then required the correction of such violations; and
(m) costs arising from Landlord’s charitable or political contributions. Landlord shall be separately accounted forhave the right, from time to time, to equitably allocate some or all of the Operating Expenses between the Building and/or among different tenants of the Project and/or different buildings of the Project as and when such different buildings are constructed and added to (and/or excluded from) the Project or otherwise (the “Cost Pools”). Such Cost Pools may include, without limitation, the office space tenants and industrial space tenants of the Project or of a building or buildings in the Project. Such Cost Pools may also include an allocation of certain Operating Expenses within or under covenants, conditions and restrictions affecting the Project. In addition, Landlord shall have the right from time to time, in its reasonable discretion, to include or exclude existing or future buildings in the Project for purposes of determining Operating Expenses and/or the provision of various services and amenities thereto, including allocation of Operating Expenses in any such Cost Pools.
Appears in 1 contract
