Common use of Maintenance, Repair and Replacement Clause in Contracts

Maintenance, Repair and Replacement. (a) Tenant, at its own expense, will maintain, repair and replace, or cause to be maintained, repaired and replaced, all aspects of the Premises, including, without limitation, structural elements, roof and roof membrane, footings, foundations, walls (interior and exterior), parking areas, landscaping, and all building systems (including, without limitation, mechanical, electrical, plumbing, sewer, life-safety and heating, ventilating and air conditioning (“HVAC”) systems) in good condition and repair and appearance consistent with comparable office/warehouse buildings and shall promptly make, or cause to be made, all repairs and replacements of every kind and nature, whether foreseen or unforeseen, which may be required to be made upon or in connection with any of the Premises in order to keep and maintain the Premises in good repair and appearance and in compliance with Legal Requirements, and Tenant hereby expressly waives the right to make repairs at the expense of Landlord, which right may otherwise be provided for in any law now or hereafter in effect. Tenant shall, in all events, make all repairs for which it is responsible hereunder promptly, and all repairs shall be in a good, proper and workmanlike manner. Landlord shall not be required to make or pay for any repair or to maintain any of the Premises in any way. (b) Tenant shall enforce all builders' and manufacturers' warranties issued for the benefit of the Premises to the extent that the same have been, or are, issued for the benefit of Tenant or for the benefit of Landlord and Landlord hereby grants Tenant a license to enforce such warranties on Landlord's behalf. Landlord agrees to promptly cooperate with Tenant, at Tenant's expense, to the extent necessary or desirable to enforce the provisions of all warranties. (c) Tenant shall complete the replacement of the roof of the Premises to Landlord’s satisfaction no later than October 31, 2018, subject to Unavoidable Delays. To secure Tenant’s obligation to replace the roof and complete certain other repairs specified in the Repair Escrow Agreement (defined below), on or prior to the Commencement Date, Tenant shall deliver the amount of One Million Seven Hundred Thirty-Five Dollars and 00/100 Dollars ($1,735,000.00) into escrow (the “Roof Escrow”), which Roof Escrow shall be deposited with the Title Company, as escrow agent (“Escrow Agent”), pursuant to a separate escrow agreement by and among Tenant, Landlord, and Escrow Agent in the form attached hereto as Exhibit D (the “Repair Escrow Agreement”). (d) All work, including the work performed pursuant to the Repair Escrow Agreement, performed by or on behalf of Tenant shall comply with the provisions of Section 2.03(a) herein. (e) Tenant shall hire, in its own name, and shall pay for a qualified service contractor to periodically inspect, adjust, clean and repair the HVAC, including changing filters, on at least a quarterly basis. Tenant shall promptly, within five (5) Business Days after receipt of a written request from Landlord, furnish a copy of each HVAC inspection and service report to Landlord during the Term of the Lease to the extent such HVAC inspection and service report has not been previously provided to Landlord. (f) Notwithstanding any of the foregoing, after an uncured Event of Default under Section 2.01(a) or (e), Landlord may elect, in its sole discretion and by delivery of written notice to Tenant, to perform on behalf of Tenant, all or some portion of the repairs, maintenance, restoration and replacement in and to the Premises required to be performed by Tenant under this Lease (any such repairs, maintenance, restoration and/or replacement activities that Landlord elects to perform on behalf of Tenant are herein collectively referred to as “General Maintenance Services”). Tenant shall pay to Landlord as Additional Rent within ten (10) days of Landlord’s written invoice and backup documentation therefor, the reasonable, documented costs of all General Maintenance Services. Unless and until Landlord affirmatively elects to provide General Maintenance Services, nothing contained herein shall be construed to obligate Landlord to perform any General Maintenance Services or, except as otherwise expressly provided herein, to repair, maintain, restore or replace any portion of the Premises. Landlord may from time to time, in its sole discretion, (x) reduce or expand the scope of the General Maintenance Services that Landlord has elected to provide or (y) revoke its election to provide any or all of the General Maintenance Services, in either event, upon delivery of not less than thirty (30) days’ prior written notice (or immediately if an emergency) to Tenant. Section 2.02

Maintenance, Repair and Replacement. Until Final Acceptance of the Improvements by a Certificate of Completion reviewed and approved by the Public Works Director as set forth in Section 10 of this Agreement, Developer agrees that (a) Tenantthe Maintenance Guarantee shall not be released; and (b) the Developer shall bear all risks and liability related to any loss, at its own expense, will maintain, repair and replacedamage, or cause claims due to be maintained, repaired and replaced, all aspects defects or failures of any of the Premises, including, without limitation, structural elements, roof Improvements; and roof membrane, footings, foundations, walls (interior c) the Developer shall perform all maintenance and exterior), parking areas, landscaping, and all building systems (including, without limitation, mechanical, electrical, plumbing, sewer, life-safety and heating, ventilating and air conditioning (“HVAC”) systems) in good condition and repair and appearance consistent with comparable office/warehouse buildings and shall promptly make, or cause to be made, make all repairs and replacements of every kind and natureall defects or failure of Improvements at Developer’s expense which, whether foreseen in the reasonable opinion of the Public Works Director, may be necessary. If, within thirty (30) days after the Developer’s receipt of written notice from a City Official requesting such reasonably required maintenance, repairs, and/or replacements of the Improvements, the Developer shall not have undertaken with due diligence to make same, the City, after providing written notice to Developer, may make such maintenance, repairs, and/or replacements at the Developer’s expense. The City shall be entitled to draw upon the Maintenance Guarantee, either before undertaking to make such repairs or unforeseenat any time thereafter, or the City may charge the Developer for the costs thereof if such charges are not paid by the Maintenance Guarantee. In case of emergency (an “emergency” being a circumstance presenting an imminent threat of harm to persons or property upon the Property, which harm would be exacerbated by providing written notice to Developer as otherwise required herein), such written notice shall be waived and the City may be required to be made upon or in connection with any of the Premises in order to keep and maintain the Premises in good repair and appearance and in compliance with Legal Requirementsproceed as it reasonably deems necessary, and Tenant hereby expressly waives the right to make repairs at the expense of Landlord, which right may otherwise be provided for in any law now the Developer or hereafter in effect. Tenant shall, in all events, make all repairs for which it is responsible hereunder promptly, and all repairs shall be in a good, proper and workmanlike manner. Landlord shall not be required to make or pay for any repair or to maintain any the issuers of the Premises in Maintenance Guarantee. In the event Developer elects to subject any way. subsequent Phase of development to this Agreement pursuant to Exhibit “F” (b) Tenant shall enforce all builders' and manufacturers' warranties issued for the benefit of the Premises to the extent that the same have beenPhasing Plan), or are, issued for the benefit of Tenant or for the benefit of Landlord and Landlord hereby grants Tenant a license to enforce such warranties on Landlord's behalf. Landlord agrees to promptly cooperate with Tenant, at Tenant's expense, to the extent necessary or desirable to enforce the provisions of all warranties. (c) Tenant this Section 9 shall complete the replacement of the roof of the Premises apply to Landlord’s satisfaction no later than October 31, 2018, subject to Unavoidable Delays. To secure Tenant’s obligation to replace the roof and complete certain other repairs specified in the Repair Escrow Agreement (defined below), on such Phase or prior to the Commencement Date, Tenant shall deliver the amount of One Million Seven Hundred Thirty-Five Dollars and 00/100 Dollars ($1,735,000.00) into escrow (the “Roof Escrow”), which Roof Escrow shall be deposited with the Title Company, as escrow agent (“Escrow Agent”), pursuant to a separate escrow agreement by and among Tenant, Landlord, and Escrow Agent in the form attached hereto as Exhibit D (the “Repair Escrow Agreement”). (d) All work, including the work performed pursuant to the Repair Escrow Agreement, performed by or on behalf of Tenant shall comply with the provisions of Section 2.03(a) herein. (e) Tenant shall hire, in its own name, and shall pay for a qualified service contractor to periodically inspect, adjust, clean and repair the HVAC, including changing filters, on at least a quarterly basis. Tenant shall promptly, within five (5) Business Days after receipt of a written request from Landlord, furnish a copy of each HVAC inspection and service report to Landlord during the Term of the Lease to the extent such HVAC inspection and service report has not been previously provided to Landlord. (f) Notwithstanding any of the foregoing, after an uncured Event of Default under Section 2.01(a) or (e), Landlord may elect, in its sole discretion and by delivery of written notice to Tenant, to perform on behalf of Tenant, all or some portion of the repairs, maintenance, restoration and replacement in and to the Premises required to be performed by Tenant under this Lease (any such repairs, maintenance, restoration and/or replacement activities that Landlord elects to perform on behalf of Tenant are herein collectively referred to as “General Maintenance Services”). Tenant shall pay to Landlord as Additional Rent within ten (10) days of Landlord’s written invoice and backup documentation therefor, the reasonable, documented costs of all General Maintenance Services. Unless and until Landlord affirmatively elects to provide General Maintenance Services, nothing contained herein shall be construed to obligate Landlord to perform any General Maintenance Services or, except as otherwise expressly provided herein, to repair, maintain, restore or replace any portion of the Premises. Landlord may from time to time, in its sole discretion, (x) reduce or expand the scope of the General Maintenance Services that Landlord has elected to provide or (y) revoke its election to provide any or all of the General Maintenance Services, in either event, upon delivery of not less than thirty (30) days’ prior written notice (or immediately if an emergency) to Tenant. Section 2.02Phases.

Maintenance, Repair and Replacement. (a) Excluding damage by casualty or condemnation, which are governed elsewhere in this Lease, Tenant, at its own sole cost and expense, will maintainshall maintain and repair in their current condition, repair reasonable wear and replacetear excepted, or cause to be maintainedthe Premises (including the roof, repaired foundation, exterior walls and replacedother structural elements) and equipment and systems within the Premises (including generators, lighting, electrical, plumbing, hydraulics, mechanical, heating, ventilating and air conditioning), all aspects of the Premises, including, without limitation, structural elements, roof and roof membrane, footings, foundations, walls (interior and exterior)driveways, parking areas, landscaping, and all building systems (includingother improvements located on the Premises, without limitation, mechanical, electrical, plumbing, sewer, life-safety and heating, ventilating and air conditioning (“HVAC”) systems) in good condition which maintenance and repair and appearance consistent with comparable office/warehouse buildings and shall promptly make, or cause to be made, all repairs and replacements of every kind and nature, whether foreseen or unforeseen, which may be required to be made upon or in connection with any of the Premises in order to keep and maintain the Premises in good repair and appearance and in compliance with Legal Requirements, and Tenant hereby expressly waives the right to make repairs at the expense of Landlord, which right may otherwise be provided for in any law now or hereafter in effect. Tenant shall, in all events, make all repairs for which it is responsible hereunder promptly, and all repairs shall be in a goodTenant’s reasonable discretion, proper and workmanlike mannermay include replacement of such equipment, systems, or structural elements of the Property if replacement is required in Tenant’s reasonable discretion. During the Term of this Lease, Landlord shall have no obligations with respect to the maintenance or repair (including replacement) of the Premises, all of such obligations being assumed by Tenant, except as otherwise expressly provided herein. Landlord shall not be may make any repairs to the Premises upon thirty (30) days advance written notice to Tenant (or such shorter period of time if Landlord reasonably determines the failure to immediately repair will result in material long-term damage to the Premises (or any part thereof), or would cause injury or harm to human health, in Landlord’s reasonable judgment), so long as Landlord uses commercially reasonable efforts to minimize interference with Tenant’s business operations in exercising its rights hereunder. In the event that Landlord is required to make or pay for any repair or repairs to maintain any of the Premises in any way. (b) Tenant shall enforce all builders' and manufacturers' warranties issued for the benefit of the Premises to the extent that the same have been, correct a condition or are, issued for the benefit state of Tenant or for the benefit of Landlord and Landlord hereby grants Tenant a license to enforce such warranties on Landlord's behalf. Landlord agrees to promptly cooperate with Tenant, at Tenant's expense, to the extent necessary or desirable to enforce the provisions of all warranties. (c) Tenant shall complete the replacement of the roof of the Premises to Landlord’s satisfaction no later than October 31, 2018, subject to Unavoidable Delays. To secure Tenant’s obligation to replace the roof and complete certain other repairs specified facts which if not corrected would result in the Repair Escrow Agreement (defined below), on or prior to the Commencement Date, Tenant shall deliver the amount of One Million Seven Hundred Thirty-Five Dollars and 00/100 Dollars ($1,735,000.00) into escrow (the “Roof Escrow”), which Roof Escrow shall be deposited with the Title Company, as escrow agent (“Escrow Agent”), pursuant to a separate escrow agreement by and among Tenant, Landlord, and Escrow Agent in the form attached hereto as Exhibit D (the “Repair Escrow Agreement”). (d) All work, including the work performed pursuant to the Repair Escrow Agreement, performed by or on behalf of Tenant shall comply with the provisions of Section 2.03(a) herein. (e) Tenant shall hire, in its own name, and shall pay for a qualified service contractor to periodically inspect, adjust, clean and repair the HVAC, including changing filters, on at least a quarterly basis. Tenant shall promptly, within five (5) Business Days after receipt of a written request from Landlord, furnish a copy of each HVAC inspection and service report to Landlord during the Term of the Lease to the extent such HVAC inspection and service report has not been previously provided to Landlord. (f) Notwithstanding any of the foregoing, after an uncured Event of Default under Section 2.01(a) or (e), Landlord may elect, in its sole discretion and by delivery of written notice to Tenant, to perform on behalf of Tenant, all or some portion of the repairs, maintenance, restoration and replacement in and long- term material damage to the Premises required (or any material part thereof), or would cause injury or harm to be performed by human health, in Landlord’s reasonable judgment and Tenant under this Lease (any fails to commence and diligently pursue such repairs, maintenance, restoration and/or replacement activities that Landlord elects to perform on behalf of Tenant are herein collectively referred to as “General Maintenance Services”). Tenant shall pay to Landlord as Additional Rent repair within ten (10) days of receipt of notice thereof (or with respect to an emergency condition, within five (5) days of receipt of notice thereof), Tenant shall reimburse Landlord for all of Landlord’s written out-of-pocket costs in making such repair within ten (10) days following Landlord’s invoice therefor. Landlord shall indemnify and backup documentation thereforhold harmless Tenant for any actual, out-of-pocket costs, expenses or losses which Tenant incurs due to Landlord’s, its agents or contractors’ negligence or willful misconduct in connection with any repairs done by Landlord or on behalf of Landlord at the reasonablePremises. Notwithstanding anything to the contrary, documented costs at the expiration or earlier termination of all General Maintenance Servicesthis Lease, Tenant shall surrender the Premises to Landlord in the then-existing condition of the Premises. Unless Tenant and until Landlord affirmatively elects to provide General Maintenance Services, nothing contained herein shall be construed to obligate Landlord to perform any General Maintenance Services or, except as otherwise expressly provided herein, to repair, maintain, restore or replace any portion schedule a walk-through inspection of the Premises at least thirty (30) days in advance of the expiration date of the Premises. Landlord may from shall have the right to identify which furniture and any other tangible personal property on the Premises that Landlord requires Tenant to remove at the time Tenant vacates the Premises (provided, that, Landlord agrees that Tenant shall in no event be obligated to timeremove, nor incur any costs or expenses related to removal or disposal of, any shelving, sorting and/or conveyer system(s) located at or in its sole discretion, (x) reduce or expand the scope any of the General Maintenance Services Properties, either prior to or after expiration of the Term, and Landlord shall be entitled to any salvage value attributable to such shelving, sorting and/or conveyer system(s)). In the event that Tenant fails to remove such identified property by the expiration or termination of this Lease, then such property shall be considered abandoned and, at Landlord’s election, be deemed the property of Landlord (except for any tangible personal property utilized by Tenant pursuant to easements, leases, or licenses, provided that if such property is not removed by the expiration of the Lease Term, Landlord shall have the right to remove the same at Tenant’s reasonable expense), and Landlord shall have the option to remove and dispose of the same, and Tenant shall pay the reasonable, out-of-pocket costs of such removal to Landlord upon demand. Tenant shall execute an “as is” Xxxx of Sale conveying Tenant’s interest in property that Landlord has elected to provide or (y) revoke its election to provide any or all assume at the expiration of the General Maintenance ServicesTerm, in either event, upon delivery of not less than thirty (30) days’ prior written notice (or immediately if an emergency) and any other reasonable documentation necessary to Tenant. Section 2.02transfer ownership thereof.

Maintenance, Repair and Replacement. (a) Excluding damage by casualty or condemnation, which are governed elsewhere in this Lease, Tenant, at its own sole cost and expense, will maintainshall maintain and repair in their current condition, repair reasonable wear and replacetear excepted, or cause to be maintainedthe Premises (including the roof, repaired foundation, exterior walls and replacedother structural elements) and equipment and systems within the Premises (including generators, lighting, electrical, plumbing, hydraulics, mechanical, heating, ventilating and air conditioning), all aspects of the Premises, including, without limitation, structural elements, roof and roof membrane, footings, foundations, walls (interior and exterior)driveways, parking areas, landscaping, and all building systems (includingother improvements located on the Premises, without limitation, mechanical, electrical, plumbing, sewer, life-safety and heating, ventilating and air conditioning (“HVAC”) systems) in good condition which maintenance and repair and appearance consistent with comparable office/warehouse buildings and shall promptly make, or cause to be made, all repairs and replacements of every kind and nature, whether foreseen or unforeseen, which may be required to be made upon or in connection with any of the Premises in order to keep and maintain the Premises in good repair and appearance and in compliance with Legal Requirements, and Tenant hereby expressly waives the right to make repairs at the expense of Landlord, which right may otherwise be provided for in any law now or hereafter in effect. Tenant shall, in all events, make all repairs for which it is responsible hereunder promptly, and all repairs shall be in a goodTenant’s reasonable discretion, proper and workmanlike mannermay include replacement of such equipment, systems, or structural elements of the Property if replacement is required in Tenant’s reasonable discretion. During the Term of this Lease, Landlord shall have no obligations with respect to the maintenance or repair (including replacement) of the Premises, all of such obligations being assumed by Tenant, except as otherwise expressly provided herein. Landlord shall not be may make any repairs to the Premises upon thirty (30) days advance written notice to Tenant (or such shorter period of time if Landlord reasonably determines the failure to immediately repair will result in material long-term damage to the Premises (or any part thereof), or would cause injury or harm to human health, in Landlord’s reasonable judgment), so long as Landlord uses commercially reasonable efforts to minimize interference with Tenant’s business operations in exercising its rights hereunder. In the event that Landlord is required to make or pay for any repair or repairs to maintain any of the Premises in any way. (b) Tenant shall enforce all builders' and manufacturers' warranties issued for the benefit of the Premises to the extent that the same have been, correct a condition or are, issued for the benefit state of Tenant or for the benefit of Landlord and Landlord hereby grants Tenant a license to enforce such warranties on Landlord's behalf. Landlord agrees to promptly cooperate with Tenant, at Tenant's expense, to the extent necessary or desirable to enforce the provisions of all warranties. (c) Tenant shall complete the replacement of the roof of the Premises to Landlord’s satisfaction no later than October 31, 2018, subject to Unavoidable Delays. To secure Tenant’s obligation to replace the roof and complete certain other repairs specified facts which if not corrected would result in the Repair Escrow Agreement (defined below), on or prior to the Commencement Date, Tenant shall deliver the amount of One Million Seven Hundred Thirtylong-Five Dollars and 00/100 Dollars ($1,735,000.00) into escrow (the “Roof Escrow”), which Roof Escrow shall be deposited with the Title Company, as escrow agent (“Escrow Agent”), pursuant to a separate escrow agreement by and among Tenant, Landlord, and Escrow Agent in the form attached hereto as Exhibit D (the “Repair Escrow Agreement”). (d) All work, including the work performed pursuant to the Repair Escrow Agreement, performed by or on behalf of Tenant shall comply with the provisions of Section 2.03(a) herein. (e) Tenant shall hire, in its own name, and shall pay for a qualified service contractor to periodically inspect, adjust, clean and repair the HVAC, including changing filters, on at least a quarterly basis. Tenant shall promptly, within five (5) Business Days after receipt of a written request from Landlord, furnish a copy of each HVAC inspection and service report to Landlord during the Term of the Lease to the extent such HVAC inspection and service report has not been previously provided to Landlord. (f) Notwithstanding any of the foregoing, after an uncured Event of Default under Section 2.01(a) or (e), Landlord may elect, in its sole discretion and by delivery of written notice to Tenant, to perform on behalf of Tenant, all or some portion of the repairs, maintenance, restoration and replacement in and term material damage to the Premises required (or any material part thereof), or would cause injury or harm to be performed by human health, in Landlord’s reasonable judgment and Tenant under this Lease (any fails to commence and diligently pursue such repairs, maintenance, restoration and/or replacement activities that Landlord elects to perform on behalf of Tenant are herein collectively referred to as “General Maintenance Services”). Tenant shall pay to Landlord as Additional Rent repair within ten (10) days of receipt of notice thereof (or with respect to an emergency condition, within five (5) days of receipt of notice thereof), Tenant shall reimburse Landlord for all of Landlord’s written out-of-pocket costs in making such repair within ten (10) days following Landlord’s invoice therefor. Landlord shall indemnify and backup documentation thereforhold harmless Tenant for any actual, out-of-pocket costs, expenses or losses which Tenant incurs due to Landlord’s, its agents or contractors’ negligence or willful misconduct in connection with any repairs done by Landlord or on behalf of Landlord at the reasonablePremises. Notwithstanding anything to the contrary, documented costs at the expiration or earlier termination of all General Maintenance Servicesthis Lease, Tenant shall surrender the Premises to Landlord in the then-existing condition of the Premises. Unless Tenant and until Landlord affirmatively elects to provide General Maintenance Services, nothing contained herein shall be construed to obligate Landlord to perform any General Maintenance Services or, except as otherwise expressly provided herein, to repair, maintain, restore or replace any portion schedule a walk-through inspection of the Premises at least thirty (30) days in advance of the expiration date of the Premises. Landlord may from shall have the right to identify which furniture and any other tangible personal property on the Premises that Landlord requires Tenant to remove at the time Tenant vacates the Premises (provided, that, Landlord agrees that Tenant shall in no event be obligated to timeremove, nor incur any costs or expenses related to removal or disposal of, any shelving, sorting and/or conveyer system(s) located at or in its sole discretion, (x) reduce or expand the scope any of the General Maintenance Services Properties, either prior to or after expiration of the Term, and Landlord shall be entitled to any salvage value attributable to such shelving, sorting and/or conveyer system(s)). In the event that Tenant fails to remove such identified property by the expiration or termination of this Lease, then such property shall be considered abandoned and, at Landlord’s election, be deemed the property of Landlord (except for any tangible personal property utilized by Tenant pursuant to easements, leases, or licenses, provided that if such property is not removed by the expiration of the Lease Term, Landlord shall have the right to remove the same at Tenant’s reasonable expense), and Landlord shall have the option to remove and dispose of the same, and Tenant shall pay the reasonable, out-of-pocket costs of such removal to Landlord upon demand. Tenant shall execute an “as is” Xxxx of Sale conveying Tenant’s interest in property that Landlord has elected to provide or (y) revoke its election to provide any or all assume at the expiration of the General Maintenance ServicesTerm, in either event, upon delivery of not less than thirty (30) days’ prior written notice (or immediately if an emergency) and any other reasonable documentation necessary to Tenant. Section 2.02transfer ownership thereof.