OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment. (a) From and after August 1, 2014, Tenant shall pay as additional rent Tenant’s Proportionate Share of the amount, if any, by which Operating Charges for each calendar year falling entirely or partly within the Lease Term exceed the Operating Charges Base Amount. Tenant’s Proportionate Share with respect to Operating Charges set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.14, and the denominator of which is the number of square feet of Total Area in the Building as set forth in Section 1.3 herein. (b) If the average occupancy rate for the Building during any calendar year (including the Operating Charges Base Year) is less than ninety-five percent (95%), or if any tenant is separately paying for (or does not require) electricity, janitorial or other utilities or services furnished to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior years, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for such utilities or services furnished to such premises. (c) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed the Operating Charges Base Amount, subject to Section 5.2(d) below. No later than July 1, 2014, and thereafter annually at the beginning of each calendar year, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.4). Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement for Operating Charges. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent within thirty (30) days of delivery of such Reconciliation Statement. (d) Notwithstanding anything to the contrary contained in the Lease, for purposes of calculating Tenant’s Proportionate Share of Operating Charges, the amount of the Controllable Operating Charges (as defined below) shall not be increased by more than five percent (5%) per year on a cumulative basis, determined in the manner provided below. Accordingly, for 2014 and each subsequent calendar year of the Term, the amount of the Controllable Operating Charges used for purposes of such calculation shall not be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal to the number of calendar years from 2013 to the year for which Controllable Operating Charges are being determined. For example, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and incurred by Landlord for the Building and the Land.
Appears in 2 contracts
Samples: Office Lease Agreement, Office Lease Agreement (Guidance Software, Inc.)
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From and after August 1, 2014the Lease Commencement Date, Tenant shall pay as additional rent Tenant’s Proportionate Share of the amount, if any, amount by which Operating Charges for each calendar year falling entirely or partly within the Lease Term exceed the Operating Charges Base AmountAmount (i.e. the Operating Charges incurred during the Base Year of 2007). Tenant’s Proportionate Share with respect to Operating Charges set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.141.20, and the denominator of which is the number of square feet of Total Area in the Building as set forth in Section 1.3 hereinBuilding.
(b) If the average occupancy rate for the Building during any calendar year (including the Operating Charges Base YearYear of 2007) is less than ninety-ninety five percent (95%), or if any tenant is separately paying for (or does not require) electricity, janitorial or other utilities or services furnished to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior yearsLandlord, which would have been incurred during such year if such average occupancy rate had been ninety-ninety five percent (95%) and if Landlord paid for such utilities or services furnished to such premises. Landlord shall gross up Operating Charges pursuant to this Subsection 5.2(b) only in accordance with sound accounting principles, consistently applied.
(c) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed the Operating Charges Base Amount, subject to Section 5.2(d) Amount (defined below). No later than July 1, 2014, and thereafter annually at At the beginning of each calendar yearyear after the Lease Commencement Date, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-twelfth (( 1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.4). Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement for Operating Charges. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent.
(a) From and after the Lease Commencement Date, Tenant shall pay as additional rent Tenant’s Proportionate Share of the amount by which Real Estate Taxes exceed the Real Estate Taxes Base Amount (defined below). Tenant’s Proportionate Share with respect to Real Estate Taxes set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.20, and the denominator of which is the number of square feet of Total Area in the Building. Tenant shall not initiate or participate in any contest of Real Estate Taxes without Landlord’s prior written consent.
(b) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Real Estate Taxes that are expected to be incurred during each calendar year would exceed the Real Estate Taxes Base Amount. At the beginning of each calendar year after the Lease Commencement Date, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such amount and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-twelfth ( 1/12) of such share (estimated on an annual basis without proration pursuant to Section 5.4). Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a Reconciliation Statement for Real Estate Taxes showing (1) Tenant’s Proportionate Share of the amount by which Real Estate Taxes incurred during the preceding calendar year exceeded the Real Estate Taxes Base Amount, and (2) the aggregate amount of Tenant’s estimated payments made during such year. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term hereof has expired or will expire before such credit can be fully applied, of if Tenant is not otherwise liable for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days of delivery days. If such statement indicates that Tenant’s actual liability exceeds the aggregate amount of such Reconciliation Statementestimated payments, then Tenant shall pay the amount of such excess as additional rent.
(d) Notwithstanding anything 5.4 If the Lease Term commences or expires on a day other than the first day or the last day of a calendar year, respectively, then Tenant’s liabilities pursuant to this Article for such calendar year shall be apportioned by multiplying the contrary contained in the Lease, for purposes respective amount of calculating Tenant’s Proportionate Share of Operating Chargesthereof for the full calendar year by a fraction, the amount numerator of the Controllable Operating Charges (as defined below) shall not be increased by more than five percent (5%) per year on a cumulative basis, determined in the manner provided below. Accordingly, for 2014 and each subsequent calendar year of the Term, the amount of the Controllable Operating Charges used for purposes of such calculation shall not be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal to which is the number of days during such calendar years from 2013 to year falling within the year for which Controllable Operating Charges are being determined. For exampleLease Term, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and incurred by Landlord for the Building and the Landdenominator of which is three hundred sixty-five (365).
Appears in 2 contracts
Samples: Office Lease Agreement (Wells Real Estate Fund Xi L P), Office Lease Agreement (Wells Real Estate Fund Xi L P)
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From and after August 1the day following the expiration of the Operating Charges Base Year, 2014subject to Section 5.4 below, Tenant shall pay as additional rent Tenant’s Proportionate Share of the amount, if any, amount by which Operating Charges for each calendar year falling entirely or partly within the Lease Term exceed a base amount (the “Operating Charges Base Amount”) equal to the Operating Charges incurred during the Operating Charges Base AmountYear; provided, however, that for purposes of determining Tenant’s Proportionate Share of increases in Operating Charges, increases in Operating Charges in the aggregate shall not include increases in utility costs and insurance costs, and (x) Tenant shall pay its Proportionate Share of the amount by which utility costs for each calendar year falling entirely or partly within the Lease Term exceed the utility costs incurred during the Operating Charges Base Year, and (y) Tenant shall pay its Proportionate Share of the amount by which insurance costs for each calendar year falling entirely or partly within the Lease Term exceed the insurance costs incurred during the Operating Charges Base Year. Tenant’s Proportionate Share with respect to Operating Charges set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.14the definition of the term “Premises” in Article I, and the denominator of which is the number of square feet of Total Area Area. In the event that after the Operating Charges Base Year, Landlord introduces a new service or amenity that is not customarily offered by landlords of comparable-class office buildings in the Building as set forth Market Area (or that is customarily offered by landlords of comparable-class office buildings in Section 1.3 hereinthe Market Area during the Operating Charges Base Year, but is not offered by Landlord during the Operating Charges Base Year) and that results in an Operating Charge that was not included in the Operating Charges Base Amount, then such Operating Charge shall be added to the Operating Charges Base Amount, such that Tenant shall only be obligated to pay for Tenant’s Proportionate Share of increases over such new Operating Charge.
(b) If the average occupancy rate for the Building during any calendar year during the Lease Term (including the Operating Charges Base Year) is less than ninety-five percent (95%), or if any tenant is separately paying for (or does not require) electricity, janitorial or other utilities or services furnished to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior yearsLandlord, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for such utilities or services furnished to such premises.
(c) Tenant shall make estimated monthly payments to Landlord on account of Tenant’s Proportionate Share of the amount by which (i) Operating Charges (excluding utilities and insurance) that are expected to be incurred during each calendar year (or portion thereof) would exceed the Operating Charges Base Amount, subject (ii) utility costs that are expected to Section 5.2(d) below. No later than July 1, 2014be incurred during each calendar year would exceed the utility costs incurred during the Operating Charges Base Year, and thereafter annually at (iii) insurance costs that are expected to be incurred during each calendar year would exceed the insurance costs incurred during the Operating Charges Base Year. At the beginning of each calendar yearyear after the Lease Commencement Date, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-one twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.4). If Landlord does not provide Tenant with an updated estimate in any calendar year during the Lease Term, Tenant shall continue to pay monthly installments based on the most recent estimate(s) until Landlord provides Tenant with the new estimate. Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement for Operating Charges. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent.
(a) From and after the day following the day following the expiration of the Real Estate Taxes Base Year, Tenant shall pay as additional rent Tenant’s Proportionate Share of the amount by which Real Estate Taxes for each calendar year falling entirely or partly within the Lease Term exceed a base amount (the “Real Estate Taxes Base Amount”) equal to the Real Estate Taxes incurred during the Real Estate Taxes Base Year. Tenant’s Proportionate Share with respect to Real Estate Taxes set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Article I above, and the denominator of which is the number of square feet of Total Area. Tenant shall not initiate or participate in any contest of Real Estate Taxes without Landlord’s prior written consent.
(b) Tenant shall make estimated monthly payments to Landlord on account of Tenant’s Proportionate Share of the amount by which Real Estate Taxes that are expected to be incurred during each calendar year would exceed the Real Estate Taxes Base Amount. At the beginning of each calendar year after the Lease Commencement Date, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one twelfth (1/12) of such share (estimated on an annual basis without proration pursuant to Section 5.4). If Landlord does not provide Tenant with an updated estimate in any calendar year during the Lease Term, Tenant shall continue to pay monthly installments based on the most recent estimate(s) until Landlord provides Tenant with the new estimate. Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a Reconciliation Statement for Real Estate Taxes. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term hereof has expired or will expire before such credit can be fully applied, of if Tenant is not otherwise liable for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days of delivery days. If such statement indicates that Tenant’s actual liability exceeds the aggregate amount of such Reconciliation Statement.
(d) Notwithstanding anything to the contrary contained in the Leaseestimated payments, for purposes of calculating Tenant’s Proportionate Share of Operating Charges, then Tenant shall pay the amount of the Controllable Operating Charges (such excess as defined below) shall not be increased by more than five percent (5%) per year additional rent.
5.4 If Tenant’s obligations under this Article I commence or expire on a cumulative basisday other than the first day or the last day of a calendar year, determined in the manner provided below. Accordinglyrespectively, then Tenant’s liabilities pursuant to this Article for 2014 and each subsequent such calendar year of shall be the amount that Tenant would have owed hereunder for the full calendar year had such calendar year fallen entirely within the Lease Term, the amount of the Controllable Operating Charges used for purposes of such calculation shall not be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number fraction, the numerator of factors of 1.05 equal to which is the number of days during such calendar years from 2013 to year falling within the year for which Controllable Operating Charges are being determined. For exampleLease Term, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and incurred by Landlord for the Building and the Landdenominator of which is three hundred sixty five (365).
Appears in 2 contracts
Samples: Office Lease Agreement (IMARA Inc.), Office Lease Agreement (IMARA Inc.)
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From and after August 1, 2014, Tenant shall pay as additional rent Tenant’s Proportionate Share proportionate share of the amount, if any, amount by which Operating Charges for (defined in Section 5.1(b)) during each calendar year falling entirely or partly within the Lease Term exceed a base amount (the “Operating Charges Base Amount”) equal to the Operating Charges incurred during the Base Year. For purposes of this Section, Tenant’s Proportionate Share with respect to Operating Charges set forth in Article I has been calculated to proportionate share shall be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in of the Premises as set forth in Section 1.14Premises, and the denominator of which is the number rentable area of square feet of Total Area in the Building as set forth in Section 1.3 hereinBuilding.
(b) Operating Charges mean the following expenses incurred by Landlord in the ownership and operation of the Building and the land upon which the Building is located (the “Land”): (1) water, sewer and other utility charges and electricity charges; (2) insurance premiums; (3) management fees; (4) costs of service and maintenance contracts; (5) maintenance, repair and replacement expenses; (6) amortization (on a straight-line basis over the useful life (not to exceed ten years), with interest at two percentage points over the prime rate specified in Section 19.6 at the time the expenditure was made) of capital expenditures made by Landlord to (A) reduce operating expenses if Landlord reasonably estimates that the annual reduction in operating expenses shall exceed such amortization, or (B) comply with laws or insurance requirements enacted or imposed after the date hereof; (7) charges for janitorial services; (8) reasonable reserves for replacements, repairs and contingencies; and (9) any other expense incurred by Landlord in owning, maintaining, repairing or operating the Building and the Land. Operating Charges do not include: principal or interest payments on any mortgage, deed of trust or ground lease; leasing commissions; depreciation of the Building except as specified above; and the costs of special services or utilities separately charged to particular tenants of the Building.
(c) If the average occupancy rate for the Building during any calendar year (including the Operating Charges Base Year) is less than ninety-five percent (95%), or if any tenant is paying separately paying for (electricity or does not require) electricity, janitorial or other utilities or services furnished to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) shall be deemed to include all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior yearsLandlord, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for such utilities or electricity and janitorial services furnished to such premises. For example, if the janitorial charges for a year were one dollar ($1.00) per square foot of occupied rentable area, then it would be reasonable for Landlord to estimate that if the Building had been ninety-five percent (95%) occupied during such year, then janitorial charges for such year would have been $96,760.35.
(cd) Tenant shall make estimated monthly payments to At the beginning of calendar year 2010 and each calendar year thereafter, Landlord on account of may submit a statement indicating the amount by which Operating Charges that are expected Landlord reasonably expects to be incurred during each calendar such year (or portion thereof) would exceed the Operating Charges Base Amount, subject to Section 5.2(d) below. No later than July 1, 2014, and thereafter annually at the beginning of each calendar year, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess Amount and Tenant’s Proportionate Share thereofproportionate share of such excess. Tenant shall pay to Landlord on the first day of each month following after receipt of such statement, until Tenant’s receipt of the a succeeding annual statement, an amount equal to one-twelfth (1/12) of each such share. Landlord reserves the right to submit a revised statement if Landlord expects such share (estimated on an annual basis without proration pursuant to Section 5.4)differ from the prior estimation. Not more than twice during any calendar If a statement is submitted after the beginning of a year, Landlord may revise Landlord’s estimate then the first payment thereafter shall be adjusted to account for any underpayment or overpayment based on the prior statement and adjust Tenant’s monthly subsequent payments to reflect Landlord’s revised estimate. Within shall be based on the latest statement.
(e) Commencing with calendar year 2010, within approximately one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement statement indicating (1) Tenant’s proportionate share of the amount by which Operating Charges incurred during such year exceeded the Operating Charges Base Amount, and (2) the sum of Tenant’s estimated payments for Operating Chargessuch year. If such Reconciliation Statement statement indicates that the aggregate amount of such estimated payments sum exceeds Tenant’s actual liabilityobligation, then Landlord Tenant shall credit deduct the net overpayment toward Tenant’s from its next installment(spayment(s) of rent due under pursuant to this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) daysArticle. If such Reconciliation Statement statement indicates that Tenant’s actual liability obligation exceeds the aggregate amount of such estimated paymentssum, then Tenant shall pay the amount excess. If Tenant does not notify Landlord in writing of any objection to such excess as additional rent statement within thirty (30) days after receipt, then Tenant shall be deemed to have waived such objection.
(f) If the Lease Term expires on a day other than December 31, then Tenant’s liability pursuant to this Section shall be proportionately reduced based on the number of delivery days in the Lease Term falling within such year.
(a) Tenant shall pay Tenant’s proportionate share of the amount by which Real Estate Taxes (defined in Section 5.2 (b)) during each calendar year falling entirely or partly within the Lease Term exceed a base amount (the “Real Estate Taxes Base Amount”) equal to the Real Estate Taxes incurred during the Base Year. For purposes of this Section, Tenant’s proportionate share shall be that percentage which is equal to a fraction, the numerator of which is the rentable area of the Premises, and the denominator of which is the rentable area of the Building.
(b) Real Estate Taxes mean (1) real estate taxes (including special assessments) imposed upon Landlord or assessed against the Building or the Land, (2) future taxes or charges imposed upon Landlord or assessed against the Building or the Land which are in the nature of or in substitution for real estate taxes, including any tax levied on or measured by rents payable, and (3) expenses incurred in reviewing or seeking a reduction of real estate taxes. Real Estate Taxes shall be deemed to include any taxes abated due to Landlord’s substantial renovation, rehabilitation or replacement of the Building.
(c) At the beginning of calendar year 2010 and each calendar year thereafter, Landlord may submit a statement indicating the amount by which Real Estate Taxes that Landlord reasonably expects to be incurred during such year exceed the Real Estate Taxes Base Amount and Tenant’s proportionate share of such Reconciliation Statementexcess. Tenant shall pay to Landlord on the first day of each month after receipt of such statement, until Tenant’s receipt of a succeeding statement, an amount equal to one-twelfth (1/12) of such share. Landlord reserves the right to submit a revised statement if Landlord expects such share to differ from the prior estimation. If a statement is submitted after the beginning of a year, then the first payment thereafter shall be adjusted to account for any underpayment or overpayment based on the prior statement and subsequent payments shall be based on the latest statement.
(d) Notwithstanding anything to Commencing with calendar year 2010, within approximately one hundred twenty (120) days after the contrary contained in the Leaseend of each calendar year, for purposes of calculating Landlord shall submit a statement indicating (1) Tenant’s Proportionate Share proportionate share of Operating Charges, the amount by which Real Estate Taxes incurred during such year exceeded the Real Estate Taxes Base Amount, and (2) the sum of Tenant’s estimated payments for such year. If such statement indicates that such sum exceeds Tenant’s actual obligation, then Tenant shall deduct the Controllable Operating Charges overpayment from its next payment(s) pursuant to this Article. If such statement indicates that Tenant’s actual obligation exceeds such sum, then Tenant shall pay the excess. If Tenant does not notify Landlord in writing of any objection to such statement within thirty (as defined below30) days after receipt, then Tenant shall not be increased by more than five percent deemed to have waived such objection.
(5%e) per year If the Lease Term expires on a cumulative basisday other than December 31, determined in the manner provided below. Accordingly, for 2014 and each subsequent calendar year of the Term, the amount of the Controllable Operating Charges used for purposes of such calculation then Tenant’s liability pursuant to this Section shall not be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal to proportionately reduced based on the number of calendar years from 2013 to days in the year for which Controllable Operating Charges are being determined. For example, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and incurred by Landlord for the Building and the LandLease Term falling within such year.
Appears in 1 contract
Samples: Lease (Telvent Git S A)
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From Commencing on January 1st following the Base Year and after August 1, 2014thereafter for the remainder of the Term, Tenant shall pay to Landlord, as additional rent Additional Rent, Tenant’s Proportionate Share of the amount, if any, amount by which Operating Charges for each calendar year following the Base Year exceed the Base Year Operating Charges (hereinafter referred to as the “Operating Charges Escalation”) falling entirely or partly within the Lease Term exceed Term. “Operating Charges” shall mean the Operating Charges Base Amount. Tenant’s Proportionate Share sum of (x) all costs and expenses of any kind or nature whatsoever incurred in connection with respect the management, operation, maintenance, repair, replacement and cleaning of the Building, the Land and the Building Common Areas; and (y) a pro rata share of all costs and expenses of any kind or nature whatsoever incurred in connection with the management, operation, repair, replacement and cleaning of the Complex Common Areas (which pro rata share shall be determined by multiplying the amount of such costs and expenses applicable to Operating Charges set forth in Article I has been calculated to be that percentage which is equal to the Complex Common Areas by a fraction, the numerator of which is the number rentable square footage of square feet of rentable area in the Premises as set forth in Section 1.14Building, and the denominator of which is the number total rentable square footage of square feet of Total Area all buildings in the Building as set forth in Section 1.3 herein.
(b) If the average occupancy rate for the Building during any calendar year (Complex [including the Building] which benefit from such costs and expenses). Operating Charges Base Yearshall include, but not be limited to, the following: (i) is less than ninety-five percent (95%), or if any tenant is separately paying for (or does not require) electricity, janitorial or premiums and other utilities or services furnished to its premises, then Landlord shall include in Operating Charges charges for such year (including the Operating Charges Base Year) all additional expenses, insurance as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior years, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for such utilities is required or services furnished permitted to such premises.
(c) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed the Operating Charges Base Amount, subject to Section 5.2(d) below. No later than July 1, 2014, and thereafter annually at the beginning of each calendar year, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-twelfth (1/12) of each such share (estimated on an annual basis without proration carry pursuant to Section 5.4). Not more than twice during 13.4 below or by any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within one hundred twenty (120) days after the end of each calendar yearMortgagee, or as soon thereafter Landlord (or the operator of the Complex Common Areas, as is feasibleapplicable) may otherwise elect to carry in its sole discretion; (ii) wages and salaries of all employees engaged in the provision of the services described above, Landlord shall submit including wages and other compensation, social security, unemployment taxes, workers’ compensation insurance, disability benefits, pensions, uniforms and expenses pursuant to Tenant a written Reconciliation Statement for Operating Charges. If such Reconciliation Statement indicates that the aggregate amount any collective bargaining agreements; (iii) costs of such estimated payments exceeds Tenant’s actual liabilityservice and maintenance contracts, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Leaseincluding, orwithout limitation, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant contracts for the amount provision of such overpayment within thirty window cleaning and other janitorial services, elevator maintenance, landscaping, snow plowing, any security services elected by Landlord (30or the operator of the Complex, as applicable), and extermination; (iv) days. If such Reconciliation Statement indicates that Tenant’s actual liability exceeds the aggregate amount depreciation of such estimated payments, then Tenant shall pay the amount of such excess as additional rent within thirty (30) days of delivery of such Reconciliation Statement.
(d) Notwithstanding anything capital expenditures made in order to the contrary contained in the Lease, for purposes of calculating Tenant’s Proportionate Share of reduce Operating Charges, or to comply with Legal Requirements or Insurance Requirements first applicable after the amount date hereof, such capital costs and expenses to be amortized over such reasonable period as Landlord shall determine, together with interest at the rate that would be paid by Landlord if it borrowed funds for such expenditures (whether or not Landlord, in fact, borrows funds therefor); (v) removal of trash, debris, snow and ice; (vi) repairs to the Building Structure and Systems; (vii) reasonable amounts paid to a managing agent, if any, whether or not such managing agent is related to Landlord, provided that such management fees shall not exceed three percent (3%) of the Controllable Operating Charges gross rents from the Building; (as defined belowviii) shall not be increased by more than five percent amounts charged for services, materials, and supplies furnished; (5%ix) per year on a cumulative basisthe cost of licenses, determined in permits and similar governmental charges relating to the manner provided below. Accordinglyoperation, for 2014 repair and each subsequent calendar year maintenance of the TermBuilding or the Complex in general. Notwithstanding the foregoing, the amount of the Controllable Operating Charges used for purposes of such calculation shall not be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal to the number of calendar years from 2013 to the year for which Controllable Operating Charges are being determined. For example, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not include: (1) principal or interest or other payments on any Mortgages or ground leases; (2) leasing commissions or legal fees with respect to the negotiation of leases; (3) capital improvements or replacements (or the depreciation thereof), except as permitted hereinabove; (4) the costs of special services and utilities separately paid by particular tenants of the Building or the Complex (other than as part of an operating expense-type charge similar to the charges imposed by this Section 5. 1(a)); (5) costs which are actually reimbursed by insurers or by governmental authorities in eminent domain proceedings to Landlord (net of all collection expenses incurred); (6) expenses of advertising for vacant space in the Building or the Complex; (7) the cost of improvements to individual tenants’ premises (so-called “tenant improvements”); (8) executives’ salaries above the grade of building manager; (9) amounts that Landlord has the right to be greater than the following amounts: in 2014, the Initial Amount times 1.05reimbursed from tenants or other third parties; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and (10) costs of repairs or replacements incurred by reason of fire or other casualty or condemnation; (11) costs incurred in performing work or furnishing services for any tenant (including Tenant), whether at such tenant’s or Landlord’s expense, to the extent that such work or service is materially in excess of any work or service that Landlord is obligated to furnish to Tenant at Landlord’s expense; (12) Real Estate Taxes; (13) the cost of electricity (for other than air conditioning) furnished to the Premises or any other space leased to tenants as reasonably estimated by Landlord; (14) refinancing costs; (15) marketing costs, and other expenses incurred in connection with negotiations or disputes with tenants, other occupants, prospective tenants or other occupants, or the sale or refinancing of the Building, or legal fees incurred in connection with this lease; (16) expenses in connection with non-Building standard services or benefits of a type which are not provided to Tenant but which are provided to other tenants or occupants of the Complex, or for which Tenant is charged directly but which are provided to another tenant or occupant of the Building without direct charge; (17) costs incurred due to violation by Landlord or any tenant or other occupant of the terms and conditions of any lease or other rental agreement covering space in the Land.Complex; (18) amounts paid to subsidiaries or other affiliates of Landlord (i.e., persons or companies controlled by, under common control with, or which control, Landlord) for services on or to the Complex (or any portion thereof), to the extent only that the costs of such services exceed competitive costs of such services were they not so rendered by a subsidiary or other affiliate of Landlord; (19) bad debt expenses, payments of principal, interest, late fees, prepayment fees or other charges on any debt, rental concessions or negative cash flow guaranties, or rental payments under any ground or underlying lease or leases; (20) Landlord’s general administrative overhead expenses to the extent related to the operation of the Landlord entity as opposed to the operation of the Complex; (21) any compensation paid to clerks, attendants, or other persons in
Appears in 1 contract
Samples: Lease Agreement (Amarin Corp Plc\uk)
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From and after August 1the day following the last day of the Operating Charges Base Year, 2014subject to Section 5.4 below, Tenant shall pay as additional rent Tenant’s Proportionate Share of the amount, if any, amount by which Operating Charges for each calendar year falling entirely or partly within the Lease Term exceed exceeds a base amount (the “Operating Charges Base Amount”) equal to the Operating Charges incurred during the Operating Charges Base AmountYear. Tenant’s Proportionate Share with respect to Operating Charges set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.14the definition of the term “Premises” in Article I, and the denominator of which is the number of square feet of Total Area in the Building as set forth in Section 1.3 hereinArea.
(b) If the average occupancy rate for the Building during any calendar year during the Lease Term (including the Operating Charges Base Year) is less than ninety-five percent (95%), or if any tenant is separately paying for (or does not require) electricity), janitorial or other utilities or services furnished to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior yearsLandlord, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for such utilities or services furnished to such premises.
(c) Tenant shall make estimated monthly payments to Landlord on account of Xxxxxx’s Proportionate Share of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed the Operating Charges Base Amount, subject to Section 5.2(d) below. No later than July 1, 2014, and thereafter annually at At the beginning of each calendar yearyear after the Operating Charges Base Year, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess and TenantXxxxxx’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until TenantXxxxxx’s receipt of the succeeding annual statement, an amount equal to one-one twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.4). If Landlord does not provide Tenant with an updated estimate in any calendar year during the Lease Term, Tenant shall continue to pay monthly installments based on the most recent estimate(s) until Landlord provides Tenant with the new estimate. Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect LandlordXxxxxxxx’s revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement for Operating Charges. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent.
(a) From and after the day following the last day of the Real Estate Taxes Base Year, subject to Section 5.4, Tenant shall pay as additional rent Tenant’s Proportionate Share of the amount by which Real Estate Taxes for each calendar year falling entirely or partly within the Lease Term exceeds a base amount (the “Real Estate Taxes Base Amount”) equal to the Real Estate Taxes incurred during the Real Estate Taxes Base Year. Tenant’s Proportionate Share with respect to Real Estate Taxes set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Article I above, and the denominator of which is the number of square feet of Total Area. Tenant shall not initiate or participate in any contest of Real Estate Taxes without Landlord’s prior written consent.
(b) Tenant shall make estimated monthly payments to Landlord on account of Xxxxxx’s Proportionate Share of the amount by which Real Estate Taxes that are expected to be incurred during each calendar year would exceed the Real Estate Taxes Base Amount. At the beginning of each calendar year after the Real Estate Taxes Base Year, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of Xxxxxx’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Xxxxxx’s receipt of the succeeding annual statement, an amount equal to one twelfth (1/12) of such share (estimated on an annual basis without proration pursuant to Section 5.4). If Landlord does not provide Tenant with an updated estimate in any calendar year during the Lease Term, Tenant shall continue to pay monthly installments based on the most recent estimate(s) until Landlord provides Tenant with the new estimate. Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Xxxxxxxx’s revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a Reconciliation Statement for Real Estate Taxes. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Xxxxxx’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term hereof has expired or will expire before such credit can be fully applied, of if Tenant is not otherwise liable for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days of delivery days. If such statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent.
5.4 If Tenant’s obligations under this Article I commence or expire on a day other than the first day or the last day of a calendar year, respectively, then Tenant’s liabilities pursuant to this Article for such calendar year shall be the amount that Tenant would have owed hereunder for the full calendar year had such calendar year fallen entirely within the Lease Term, multiplied by a fraction, the numerator of which is the number of days during such calendar year falling within the Lease Term, and the denominator of which is three hundred sixty five (365).
5.5 Provided that no Event of Default exists and Tenant has timely paid the amount set forth in the applicable Reconciliation Statement.
, Tenant, through an independent, nationally recognized certified public accountant on behalf of Tenant who is hired by Xxxxxx on a non-contingent fee basis, offers a full range of accounting services and is otherwise approved by Landlord, shall have the right, during regular business hours, at the management office for the Building, and after giving at least thirty (d30) Notwithstanding anything days’ advance written notice to Landlord, to commence to have Xxxxxxxx’s books and records related to Operating Charges for the contrary contained immediately preceding calendar year reviewed (and if so commenced, to expeditiously and diligently pursue such review to completion), provided that such review shall be concluded by not later than sixty (60) days following the date Tenant has commenced such review (but in no event later than ninety (90) days following the Lease, for purposes date of calculating Tenant’s Proportionate Share receipt of the applicable Reconciliation Statement for the year to which such review and that substantially all of the communications with Landlord (and Xxxxxxxx’s representatives) in connection with the review shall be conducted by an employee of Tenant; or, at Landlord’s sole discretion and in lieu of such review, Landlord shall provide Tenant with an audited statement, the expense of which shall be included within the definition of Operating Charges. If Landlord disagrees with the results of Xxxxxx’s review, then Landlord and Xxxxxx’s auditor shall together select a neutral auditor of similar qualifications to conduct a review of such books and records (the amount fees of such neutral auditor to be shared equally by Landlord and Tenant), and the Controllable determination of Operating Charges reached by such neutral auditor shall be final and conclusive. If the amounts paid by Tenant to Landlord on account of Operating Charges (a) exceed the amounts to which Xxxxxxxx is entitled hereunder then Landlord shall, upon its final determination, promptly reimburse such overpayment Tenant, or (b) are less than the amounts to which Xxxxxxxx is entitled hereunder, then Tenant shall pay such deficiency as defined below) additional rent. All costs and expenses of any such review or audited statement shall not be increased paid by Xxxxxx; provided, however, that if the aggregate amount of Operating Charges set forth in such statement was overstated by Landlord by more than five percent (5%) per year on a cumulative basis for the period audited, Landlord shall reimburse Tenant for the commercially reasonable, out of pocket hourly or flat fee costs and expenses paid by Tenant in connection with Xxxxxx’s review (up to a maximum amount of $5,000). Any and all information obtained through any review (including, without limitation, any matters pertaining to Landlord, its managing agent or the Building), and any compromise, settlement or adjustment that may be proposed or reached between Landlord and Tenant, shall be held in strict confidence, and neither Tenant nor any of Tenant’s Agents shall disclose any such information to any person or entity other than a Permitted Recipient on a need to know basis. Tenant shall cause any of Tenant’s Agents (including its auditor and any of its brokers) to be similarly bound by this subsection. A “Permitted Recipient” shall be the officers, determined partners and senior level employees of Tenant who are involved in lease administration, Tenant’s certified public accountants who have responsibilities related to Operating Charges, any employees of Tenant’s auditor involved with the manner provided belowreview, or any person or entity to whom disclosure is required by applicable judicial or governmental authority. AccordinglyPrior to disclosing any such information to any Permitted Recipient (including its auditor), for 2014 Tenant shall instruct such Permitted Recipient to abide by this confidentiality provision, and, at Landlord’s sole option, as a condition precedent to Tenant’s right to review Operating Charges as set forth herein, Tenant shall deliver to Landlord a signed covenant from the auditor and each subsequent calendar year any other Permitted Recipient on Landlord’s standard form acknowledging all of the Termconditions of this Section. Notwithstanding anything herein to the contrary, the amount if Tenant does not notify Landlord in writing of the Controllable any objection to an annual Operating Charges used for purposes of statement within thirty (30) days after receipt thereof, then Tenant shall be deemed to have waived any such calculation objection and shall have no right to review pursuant to this subsection. The rights created in this Section 5.5 are personal to Tenant and may not be greater exercised more than the Controllable Operating Charges for the 2013 once in any calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal to the number of calendar years from 2013 to the year for which Controllable Operating Charges are being determined. For example, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and incurred by Landlord for the Building and the Landyear.
Appears in 1 contract
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From Commencing on the first anniversary of the Rent Commencement Date and after August 1, 2014thereafter for the remainder of the Term, Tenant shall pay to Landlord, as additional rent Tenant’s Proportionate Share Additional Rent, the amount of the amount, if any, by which increase in Operating Charges for each calendar year falling entirely or partly within the applicable Lease Term exceed Year determined in accordance with Section 1.29 over the Operating Charges Base Amount. Tenant’s Proportionate Share with respect to for the first Lease Year (“Operating Charges set forth in Article I has been calculated Escalation”), which first Lease Year Operating Charges are deemed to be that percentage which is equal to a fraction, the numerator of which is the number of $6.00 per rentable square feet of rentable area in the Premises as set forth in Section 1.14, and the denominator of which is the number of square feet of Total Area in the Building as set forth in Section 1.3 hereinfoot.
(b) If the average occupancy rate for the Building during any calendar year (including the Operating Charges Base Year) is less than ninety-five percent (95%), or if any tenant is separately paying for (or does not require) electricity, janitorial or other utilities or services furnished to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior years, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for such utilities or services furnished to such premises.
(c) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed Escalation, commencing on the Operating Charges Base Amount, subject to Section 5.2(d) below. No later than July 1, 2014, First Anniversary of the Rent Commencement Date and thereafter annually at the beginning of each calendar year, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statementthereafter, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.4)which amounts shall constitute Additional Rent hereunder. Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within one hundred twenty (120) days after On or before the end of each calendar yearLease Year, or as soon thereafter as is feasible, Landlord shall submit a statement (“Annual Operating Charges Statement”) to Tenant a written Reconciliation Statement Tenant, showing the Operating Charges Escalation for Operating Chargessuch Lease Year. If such Reconciliation Landlord fails to provide the Operating Charges Statement indicates that by the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further paymentapplicable date provided herein, Landlord shall reimburse Tenant for the amount of not be deemed to have waived its right to thereafter provide such overpayment within thirty (30) days. If such Reconciliation Statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent within thirty (30) days of delivery of such Reconciliation Statementstatement.
(da) Notwithstanding anything to Commencing on July 1, 2006 and thereafter for the contrary contained in remainder of the LeaseTerm, for purposes of calculating Tenant shall pay, as Additional Rent, Tenant’s Proportionate Share of Operating Charges, the amount by which Real Estate Taxes for each twelve month period falling entirely or partially within the Term following the Tax Base Year exceeds the Base Year Real Estate Taxes (hereinafter referred to as the “Real Estate Taxes Escalation”). “Real Estate Taxes” shall mean (1) all real estate taxes, vault and/or public space rentals, business district or arena taxes, special user fees, rates, and assessments (including general and special assessments, if any), ordinary and extraordinary, foreseen and unforeseen, or any payments in lieu of or in substitution for such taxes, which are imposed upon Landlord or assessed against the Property or any portion(s) thereof or Landlord’s personal property used in connection therewith, (2) any other present or future taxes or governmental charges that are imposed upon Landlord or assessed against the Property or any portion(s) thereof which are in the nature of or in substitution for or in addition to real estate taxes, including any tax levied on or measured by the rents payable by tenants of the Controllable Operating Charges Building, and (as defined below3) reasonable out-of-pocket expenses (including, without limitation, reasonable attorneys’ and consultants’ fees and court costs) incurred by or on behalf of Landlord in reviewing, protesting or seeking a refund or reduction of Real Estate Taxes, whether or not such protest is ultimately successful, or such refund or reduction is ultimately granted (Tenant hereby acknowledging and agreeing that Tenant shall not under any circumstances be increased by more than five percent (5%) per year on a cumulative basisentitled to appeal or otherwise contest Real Estate Taxes, determined such rights of appeal and contest being wholly reserved to Landlord in its sole and absolute discretion). Real Estate Taxes shall not include any inheritance, estate, gift, franchise, corporation, income or net profits tax assessed against Landlord from the manner provided below. Accordingly, for 2014 and each subsequent calendar year operation of the TermProperty, the amount of the Controllable Operating Charges used unless same is imposed in substitution for purposes of such calculation shall not be greater than the Controllable Operating Charges for the 2013 calendar year (the any real estate taxes which constitute “Initial AmountReal Estate Taxes”) multiplied by a number of factors of 1.05 equal to the number of calendar years from 2013 to the year for which Controllable Operating Charges are being determined. For example, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating ChargesBase Year Real Estate Taxes” shall mean all Operating Charges except for utilities and insurance paid and those Real Estate Taxes incurred by Landlord for the Building and Property (or deemed to have been incurred pursuant to the Landimmediately preceding sentence) during the Tax Base Year.
Appears in 1 contract
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From and after August 1, 2014the first (1st) anniversary of the Lease Commencement Date, Tenant shall pay as additional rent Tenant’s Proportionate Share of the amount, if any, amount by which Operating Charges for each calendar year falling entirely or partly within the Lease Term exceed the Operating Charges Base Amount. Tenant’s Proportionate Share with respect to Operating Charges set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.14, and the denominator of which is the number of square feet of Total Area in the Building as set forth in Section 1.3 herein.
(b) If Notwithstanding any other provision herein to the average occupancy rate for the Building during any calendar year (including the Operating Charges Base Year) is contrary, if less than ninety-five percent (95%)) of the Building is occupied during the Operating Charges Base Year or any Lease Year after the Operating Charges Base Year, or then Operating Charges shall be computed for both the Operating Charges Base Year and any such Lease Year as though the Building had been ninety-five (95%) occupied during the Operating Charges Base Year and any such Lease Year; including, if any tenant is separately paying for (or does not require) electricity, janitorial or other utilities or services furnished to its premises, then Landlord shall include such amounts in its calculation of Operating Charges for such year (including Lease Year and/or the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior years, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for such utilities or services furnished to such premisesapplicable.
(c) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed the Operating Charges Base Amount, subject . On or prior to Section 5.2(d) below. No later than July 1, 2014, and thereafter annually at the beginning March 31st of each calendar yearyear after the Lease Commencement Date, or as soon thereafter as is practicable, but in no event later than May 31st, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.45.3). Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments On or prior to reflect Landlord’s revised estimate. Within one hundred twenty (120) days after the end March 31st of each calendar yearyear after the Lease Commencement Date, or as soon thereafter as is feasiblepracticable, but in no event later than May 31st, Landlord shall submit to Tenant a written Reconciliation Statement for Operating Charges. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent.
(a) From and after the first (1st) anniversary of the Lease Commencement Date, Tenant shall pay as additional rent Tenant’s Proportionate Share of the amount by which Real Estate Taxes exceed the Real Estate Taxes Base Amount. Tenant shall not initiate or participate in any contest of Real Estate Taxes with the governmental entity assessing such tax without Landlord’s prior written consent. The Landlord hereby represents and warrants that, as of the date of this Lease, the Land and the Building are separately and independently assessed for Real Estate Tax purposes. Table of Contents
(b) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Real Estate Taxes that are expected to be incurred during each calendar year would exceed the Real Estate Taxes Base Amount. On or prior to March 31st of each calendar year after the Lease Commencement Date, or as soon thereafter as is practicable, but in no event later than May 31st, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such amount and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-twelfth (1/12) of such share (estimated on an annual basis without proration pursuant to Section 5.3). On or prior to March 31st of each calendar year after the Lease Commencement Date, or as soon thereafter as is practicable, but in no event later than May 31st, Landlord shall submit a Reconciliation Statement for Real Estate Taxes showing (1) Tenant’s Proportionate Share of the amount by which Real Estate Taxes incurred during the preceding calendar year exceeded the Real Estate Taxes Base Amount, and (2) the aggregate amount of Tenant’s estimated payments made during such year. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term hereof has expired or will expire before such credit can be fully applied, of if Tenant is not otherwise liable for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days of delivery days. If such statement indicates that Tenant’s actual liability exceeds the aggregate amount of such Reconciliation Statementestimated payments, then Tenant shall pay the amount of such excess as additional rent.
(d) Notwithstanding anything 5.3 If the Lease Term commences or expires on a day other than the first day or the last day of a calendar year, respectively, then Tenant’s liabilities pursuant to this Article V for such calendar year shall be apportioned by multiplying the contrary contained in the Lease, for purposes respective amount of calculating Tenant’s Proportionate Share of Operating Chargesthereof for the full calendar year by a fraction, the amount numerator of which is the Controllable number of days during such calendar year falling within the Lease Term, and the denominator of which is three hundred sixty-five (365).
5.4 For the protection of Tenant, Landlord shall maintain books of account which shall be open to Tenant and its representatives at all reasonable times so that Tenant can determine that such Operating Charges and Real Estate Taxes have, in fact, been paid or incurred. Tenant’s representatives shall mean only (as defined belowa) Tenant’s employees or (b) a Certified Public Accounting firm, and neither Tenant’s employees nor any Certified Public Accounting firm shall be permitted to (1) perform such inspection and/or audit on a contingency basis, or (2) perform such an inspection and/or audit for any other tenant in the Building. At Landlord’s request, Tenant shall execute a confidentiality agreement reasonably acceptable to Landlord prior to any examination of Landlord’s books and records. In the event Tenant disputes any one or more of said charges, Tenant shall attempt to resolve such dispute with Landlord, provided that if such dispute shall not be increased satisfactorily settled between Landlord and Tenant, the dispute shall be referred by either party to an independent Certified Public Accountant to be mutually agreed upon, and if such an accountant cannot be agreed upon, The American Arbitration Association may be asked by either party to select an arbitrator, whose decision on the dispute will be final and binding upon both parties, who shall jointly share any cost of such arbitration. Pending resolution of said dispute the Tenant shall pay to Landlord the sum so billed by Landlord subject to its ultimate resolution as aforesaid. The cost of any such review of Landlord’s books of account shall be borne solely by the Tenant; provided however, if it is determined that the Landlord has overstated such Operating Charges and/or Real Estate Taxes by more than five percent (5%) per year on a cumulative basis, determined in the manner provided below. Accordingly, for 2014 and each subsequent calendar year of the Term), the amount Landlord shall pay the reasonable out-of-pocket cost of the Controllable such audit or review within thirty (30) days of Tenant’s request, which costs shall not exceed $2,000.00.
5.5 Once Landlord shall have finally determined said Operating Charges used for purposes and Real Estate Taxes at the expiration of such calculation shall not be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal Lease Year, then as to the number item so established, Tenant shall only be entitled to dispute said charge as finally established for a period of calendar years from 2013 six (6) months after such charge is finally established, and Lessee specifically waives any right to dispute any such charge at the year for which Controllable Operating Charges are being determined. For example, the amount expiration of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and incurred by Landlord for the Building and the Landsaid six (6) month period.
Appears in 1 contract
Samples: Office Lease Agreement
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From Commencing on first day of the month following the Base Year and after August 1thereafter for the remainder of the Term, 2014but in no event sooner than the first anniversary of the Commencement Date, (the "Op Ex Rent CD") Tenant shall pay to Landlord, as additional rent Additional Rent, Tenant’s 's Proportionate Share of the amount, if any, amount by which Operating Charges for each calendar year following the Base Year exceed the Base Year Operating Charges (hereinafter referred to as the "Operating Charges Escalation") falling entirely or partly within the Lease Term exceed Term. "Operating Charges" shall mean all costs and expenses of any kind or nature whatsoever incurred in connection with the Operating Charges Base Amount. Tenant’s Proportionate Share with respect to Operating Charges set forth in Article I has been calculated to be that percentage which is equal to a fractionownership, management, operation, maintenance, repair, replacement and cleaning of the Building, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.14Land, and the denominator Common Areas, but subject to the exclusions hereinafter set forth. Operating Charges shall include, but not be limited to, the following: (i) premiums and other charges for such insurance as Landlord is required or permitted to carry pursuant to Section 13.3 below or is required to be carried by any Mortgagee; (ii) wages and salaries of which is all employees at or below the number level of square feet of Total Area Building manager engaged in the Building as set forth in Section 1.3 herein.
provision of the services described above, including wages and other compensation, social security, unemployment taxes, workers' compensation insurance, disability benefits, pensions, uniforms and expenses pursuant to any collective bargaining agreements; (biii) If the average occupancy rate intentionally omitted; (iv) intentionally omitted; (v) costs of service and maintenance contracts, including, without limitation, contracts for the Building during provision of window cleaning and other janitorial services, elevator maintenance, landscaping, snow plowing, any calendar year security services elected by Landlord; and extermination; (including vi) depreciation of capital expenditures made in order to reduce Operating Charges, or to comply with Legal Requirements enacted after the Operating Charges Base Year) is less than ninety-five percent Commencement Date (95%but expressly subject to the exclusions below), such capital costs and expenses to be amortized on a straight line basis over the useful life thereof as specified by Internal Revenue Service Code regulations and in accordance with Generally Accepted Accounting Principles consistently applied ("GAAP"), together with interest at the rate that would be paid by Landlord if it borrowed funds for such expenditures (whether or if any tenant is separately paying for (or does not require) electricityLandlord, janitorial or other utilities or services furnished to its premisesin fact, then Landlord shall include borrows funds therefor), provided, however, that the amount so included in Operating Charges relating to cost saving capital expenditures for such year (including the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior years, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for such utilities or services furnished to such premises.
(c) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would shall not exceed the Operating Charges Base Amountamount by which such component expense was reduced in such calendar year (or portion thereof) as a result of such expense (which actual savings shall be as determined by a reputable, subject licensed engineer); (vii) removal of trash, debris, snow and ice; (viii) repairs to Section 5.2(dor replacements of the Building Structure and Systems; (ix) below. No later than July 1reasonable amounts paid to a managing agent, 2014if any, whether or not such managing agent is related to Landlord; (x) amounts charged for services, materials, and thereafter annually at supplies furnished; (xi) the beginning cost of each calendar yearlicenses, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess permits and Tenant’s Proportionate Share thereof. Tenant shall pay similar governmental charges relating to Landlord on the first day of each month following receipt of such statementoperation, until Tenant’s receipt repair and maintenance of the succeeding annual statement, an amount equal Building in general; (xii) intentionally omitted; (xiii) sales taxes required to one-twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.4). Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement be paid for Operating Charges; and (xiv) other costs and expenses that are customarily incurred by owners of first-class office buildings in the Geographic Area. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent within thirty (30) days of delivery of such Reconciliation Statement.
(d) Notwithstanding anything to the contrary contained in the Leaseherein, for purposes of calculating Tenant’s Proportionate Share of Operating Charges, the amount of the Controllable Operating Charges (as defined below) shall not be increased by more than five percent (5%) per year on a cumulative basis, determined in the manner provided below. Accordingly, for 2014 and each subsequent calendar year of the Term, the amount of the Controllable Operating Charges used for purposes of such calculation shall not be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal to the number of calendar years from 2013 to the year for which Controllable Operating Charges are being determined. For example, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not include: (1) principal or interest payments on any Mortgages; (2) leasing commissions or legal fees with respect to the negotiation of leases; (3) capital improvements (or the depreciation thereof), except as permitted hereinabove; (4) the costs of services and utilities separately payable by particular tenants of the Building (other than as part of an operating expense-type charge similar to the charges imposed by this Section 5.1(a)); (5) costs which are actually reimbursed by insurers or by governmental authorities in eminent domain proceedings to Landlord (net of all collection expenses incurred); (6) expenses of advertising for vacant space in the Building; (7) the cost of improvements to individual tenants' premises (so-called "tenant improvements"); (8) salaries, wages, fees or other benefits or compensation for employees above the grade of Building manager or for officers, directors, partners or other principals of Landlord or Landlord's affiliates; (9) costs, expenses, and expenditures for those improvements that are required under GAAP to be greater capitalized (but the foregoing shall not be deemed to limit Tenant's obligations for payments of capital improvements on an amortized basis as expressly set forth above); (10) advertising, marketing, and promotional expenditures; (11) legal fees and expenses for lease negotiations and disputes with tenants, lenders, or other third parties (other than as a result of a default by Landlord or its agents, employees or contractors); (12) legal and auditing fees and expenses, other than legal and auditing fees reasonably incurred in connection with (x) the following amounts: in 2014maintenance and operation of the Building or (y) the preparation of statements required pursuant to additional rent or lease escalation provisions; (13) as a deduction, amounts received by Landlord through proceeds of insurance to the Initial Amount times 1.05; in 2015, extent the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all proceeds are compensation for expenses that were previously included as Operating Charges except hereunder; (14) any bad debt loss, rent loss, or reserves for bad debts or rent loss; (15) the cost of repairs, replacements or other work occasioned by fire, windstorm, other casualty or acts of terrorism; (16) the cost of repairs, replacements or other work occasioned by the exercise of eminent domain; (17) any costs in connection with services, utilities and insurance paid and incurred (including electricity), items or other benefits (y) of a type, quality or quantity which are not available to Tenant without specific charge therefor, but which are provided to another tenant or occupant of the Building, whether or not such other tenant or occupant is specifically charged therefor by Landlord for or (z) which are provided to another tenant or occupant of the Building and to Tenant without specific charge therefor but where the Land.type, quality or quantity of the same as provided to such other tenant or occupant is in excess (by more than a de minimis amount) of that provided to Tenant; (18) all items, utilities and services for which, and to the extent, Tenant specifically reimburses or any other tenant or occupant of the Building is required to specifically reimburse Landlord or for which, and to the extent, Tenant pays or any other tenant or occupant of the Building is required to pay third parties; (19) any sum incurred, paid, or payable to any affiliate of Landlord for services rendered or materials or goods furnished to the extent that the costs of such services exceed (by more than a de minimis extent) competitive costs for comparable services rendered by persons or entities of similar skill, competence and experience, other than an affiliate of Landlord, or the cost of such materials or goods exceeds (by more than a de minimis extent) the costs of the same materials or other goods furnished by any person or entity other than an affiliate of Landlord; (20) all expenses resulting from (I) the failure of Landlord's Parties to secure all necessary permits and approvals in the operation of the Property and/or the performance of any work by Landlord's Parties at the Property (including, but not limited to, the Premises) and/or the failure to comply otherwise with Legal Requirements and Insurance Requirements with respect to the satisfaction of Landlord's obligations at the Property, (II) the negligence or willful misconduct of the Landlord, its employees, agents, contractors, subcontractors, and/or (III) the breach by Landlord or of Landlord's Parties of Landlord's obligations under agreements pertaining to the Property; (21) costs and expenses to the extent they are reimbursed to Landlord by any third party, including without limitation by means of warranty or guarantee; (22) contributions to operating expense or other reserves; (23) costs incurred to put the Property (including the Premises) in compliance with any Legal Requirements and/or Insurance Requirements in effect prior to the Commencement Date; (24) the costs of any electrical surveys conducted at the Property; (25) Real Estate Taxes; and (26)
Appears in 1 contract
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From and after August 1, 2014, Tenant shall pay as additional rent Tenant’s Proportionate Share proportionate share of the amount, if any, amount by which Operating Charges for (defined in Section 5.l(b)) during each calendar year falling entirely or partly within the Lease Term exceed a base amount (the “Operating Charges Base Amount”) equal to the Operating Charges incurred during the Base Year. For purposes of this Section, Tenant’s Proportionate Share with respect to Operating Charges set forth in Article I has been calculated to proportionate share shall be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in of the Premises as set forth in Section 1.14Premises, and the denominator of which is the number rentable area of square feet of Total Area in the Building as set forth in Section 1.3 hereinBuilding.
(b) If the average occupancy rate for the Building during any calendar year (including the Operating Charges Base Year) is less than ninety-five percent (95%), or if any tenant is separately paying for (or does not require) electricity, janitorial or other utilities or services furnished to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior years, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for such utilities or services furnished to such premises.
(c) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed the Operating Charges Base Amount, subject to Section 5.2(d) below. No later than July 1, 2014, and thereafter annually at the beginning of each calendar year, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.4). Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement for Operating Charges. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent within thirty (30) days of delivery of such Reconciliation Statement.
(d) Notwithstanding anything to the contrary contained in the Lease, for purposes of calculating Tenant’s Proportionate Share of Operating Charges, the amount of the Controllable Operating Charges (as defined below) shall not be increased by more than five percent (5%) per year on a cumulative basis, determined in the manner provided below. Accordingly, for 2014 and each subsequent calendar year of the Term, the amount of the Controllable Operating Charges used for purposes of such calculation shall not be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal to the number of calendar years from 2013 to the year for which Controllable Operating Charges are being determined. For example, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than mean the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and expenses incurred by Landlord for in the ownership and operation of the Building and the land upon which the Building is located (the “Land.”) to the extent such expenses do not relate solely to space leased by, property of, or the use and occupancy by another tenant of a portion of the Building: (1) water, sewer and other utility charges and electricity charges to the extent such are not billed separately and directly to other Tenants by the applicable utility; (2) insurance premiums; (3) reasonable and customary management fees; (4) costs of service and maintenance contracts; (5) maintenance, repair and replacement expenses (to the extent not previously reserved as provided in subsection (b)(8); (6) amortization (on a straight-line basis over the useful life (not to exceed ten years), with interest at two percentage points over the Wall Street Journal prime rate specified in the Money Rates Section of the Wall Street Journal at the time the expenditure was made) of capital expenditures made by Landlord to (A) reduce operating expenses if Landlord reasonably estimates that the annual reduction in operating expenses shall exceed such amortization, or (B) comply with laws or insurance requirements enacted or imposed after the date hereof; (7) charges for janitorial services; (8) reasonable reserves for replacements, repairs and contingencies; and (9) any other expense incurred by Landlord in owning, maintaining, repairing or operating the Building and
Appears in 1 contract
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “"Building” " shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From and after August 1, 2014the Lease Commencement Date, Tenant shall pay as additional rent Tenant’s 's Proportionate Share of the amount, if any, amount by which Operating Charges for each calendar year falling entirely or partly within the Lease Term exceed the Operating Charges Base Amount. Tenant’s 's Proportionate Share with respect to Operating Charges set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.141.18, and the denominator of which is the number of square feet of Total Area in the Building as set forth in Section 1.3 hereinBuilding.
(b) a. If the average occupancy rate for the Building during any calendar year (including the Operating Charges Base Year) is less than ninety-ninety five percent (95%), or if any tenant is separately paying for (or does not require) electricity, janitorial or other utilities or services furnished to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior yearsLandlord, which would have been incurred during such year if such average occupancy rate had been ninety-ninety five percent (95%) and if Landlord paid for such utilities or services furnished to such premises.
(c) b. Tenant shall make estimated monthly payments to Landlord on account of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed the Operating Charges Base Amount, subject to Section 5.2(d) below. No later than July 1, 2014, and thereafter annually at At the beginning of each calendar yearyear after the Lease Commencement Date, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s 's reasonable estimate of such excess and Tenant’s 's Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s 's receipt of the succeeding annual statement, an amount equal to one-twelfth one‑twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.4). Not more than twice during any calendar year, Landlord may revise Landlord’s 's estimate and adjust Tenant’s 's monthly payments to reflect Landlord’s 's revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement for Operating Charges. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s 's actual liability, then Landlord shall credit the net overpayment toward Tenant’s 's next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement statement indicates that Tenant’s 's actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent.
(a) From and after the Lease Commencement Date, Tenant shall pay as additional rent Tenant's Proportionate Share of the amount by which Real Estate Taxes exceed the Real Estate Taxes Base Amount. Tenant's Proportionate Share with respect to Real Estate Taxes set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.18, and the denominator of which is the number of square feet of Total Area in the Building. Tenant shall not initiate or participate in any contest of Real Estate Taxes without Landlord's prior written consent.
a. Tenant shall make estimated monthly payments to Landlord on account of the amount by which Real Estate Taxes that are expected to be incurred during each calendar year would exceed the Real Estate Taxes Base Amount. At the beginning of each calendar year after the Lease Commencement Date, Landlord shall submit a reasonably detailed written statement setting forth Landlord's reasonable estimate of such amount and Tenant's Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant's receipt of the succeeding annual statement, an amount equal to one‑twelfth (1/12) of such share (estimated on an annual basis without proration pursuant to Section 5.4). Not more than twice during any calendar year, Landlord may revise Landlord's estimate and adjust Tenant's monthly payments to reflect Landlord's revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a Reconciliation Statement for Real Estate Taxes showing (1) Tenant's Proportionate Share of the amount by which Real Estate Taxes incurred during the preceding calendar year exceeded the Real Estate Taxes Base Amount, and (2) the aggregate amount of Tenant's estimated payments made during such year. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant's actual liability, then Landlord shall credit the net overpayment toward Tenant's next installment(s) of rent due under this Lease, or, if the Lease Term hereof has expired or will expire before such credit can be fully applied, of if Tenant is not otherwise liable for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such statement indicates that Tenant's actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent.
5.4 If the Lease Term commences or expires on a day other than the first day or the last day of a calendar year, respectively, then Tenant's liabilities pursuant to this Article for such calendar year shall be apportioned by multiplying the respective amount of Tenant's Proportionate Share thereof for the full calendar year by a fraction, the numerator of which is the number of days during such calendar year falling within the Lease Term, and the denominator of which is three hundred sixty‑five (365).
5.5 Provided no Event of Default then exists, after receiving an annual Reconciliation Statement and giving Landlord thirty (30) days prior written notice thereof, Tenant may inspect or audit Landlord's records relating to Operating Charges for the period of time covered by such Reconciliation Statement in accordance with the following provisions. If Tenant fails to object to the calculation of Operating Charges on an annual Reconciliation Statement within sixty (60) days after the statement has been delivered to Tenant or if Tenant fails to conclude its audit or inspection within ninety (90) days after the statement has been delivered to Tenant, then Tenant shall have waived its right to object to the calculation of Operating Charges for the year in question and the calculation of Operating Charges set forth on such Reconciliation Statement shall be final. Tenant's audit or inspection shall be conducted at the management office where Landlord maintains its books and records, shall not unreasonably interfere with the conduct of Landlord's business, and shall be conducted only during business hours reasonably designated by Landlord. Tenant shall pay the cost of such audit or inspection unless the total Operating Charges for the period in question is determined to be in error by more than 5% in the aggregate, in which case Landlord shall pay the audit cost. Tenant may not conduct an inspection or have an audit performed more than once during any calendar year. If such inspection or audit reveals that an error was made in the Operating Charges previously charged to Tenant, then Landlord shall refund to Tenant any overpayment of such costs, or Tenant shall pay to Landlord any underpayment of such costs, as the case may be, within thirty (30) days after notification thereof. Tenant shall maintain the results of delivery of each such Reconciliation Statement.
(d) Notwithstanding anything to the contrary contained in the Lease, for purposes of calculating Tenant’s Proportionate Share of Operating Charges, the amount of the Controllable Operating Charges (as defined below) audit or inspection confidential and shall not be increased by more permitted to use any third party to perform such audit or inspection other than five percent an independent firm of certified public accountants with at least ten (5%10) per year years of experience reviewing office building expense reconciliations: (1) which is not compensated on a cumulative basis, determined contingency fee basis or in any other manner which is dependent upon the manner provided below. Accordingly, for 2014 and each subsequent calendar year of the Term, the amount of the Controllable Operating Charges used for purposes results of such calculation audit or inspection (and Tenant shall not deliver the fee agreement or other similar evidence of such fee agreement to Landlord upon request), and (2) which agrees with Landlord in writing to maintain the results of such audit or inspection confidential. Nothing in this section shall be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal construed to the number of calendar years from 2013 limit, suspend, or xxxxx Tenant's obligation to the year for which Controllable Operating Charges are being determined. For examplepay Rent when due, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and incurred by Landlord for the Building and the Landincluding Additional Rent.
Appears in 1 contract
Samples: Office Lease Agreement (Wells Real Estate Fund Xi L P)
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “"Building” " shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall equitably prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgmentjudgment and consistent with past practices. Landlord shall prorate Operating Charges, Real Estate Taxes, Electrical Costs and other Project costs upon an annual and consistent basis throughout the Term.
(a) From and after August January 1, 20142016, Tenant shall pay as additional rent Tenant’s 's Proportionate Share of the amount, if any, amount by which Operating Charges for each calendar year falling entirely or partly within the Lease Term exceed the Operating Charges Base Amount. Tenant’s Proportionate Share with respect to Operating Charges set forth shall be calculated in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.14, and the denominator of which is the number of square feet of Total Area in the Building as set forth in Section 1.3 hereinaccordance with Generally Accepted Accounting Principles (GAAP).
(b) If the average occupancy rate for the Building during any calendar year (including the Operating Charges Base Year) is less than ninety-five one hundred percent (95100%), or if any tenant is separately paying for (or does not require) electricity, janitorial or other utilities or services furnished to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior yearsLandlord, which would have been incurred during such year if such average occupancy rate had been ninety-five one hundred percent (95100%) and if Landlord paid for such utilities or services furnished to such premises.
(c) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed the Operating Charges Base Amount, subject to Section 5.2(d) below. No later than July 1, 2014, and thereafter annually at At the beginning of each calendar yearyear after the Lease Commencement Date, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s 's reasonable estimate of such excess and Tenant’s 's Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s 's receipt of the succeeding annual statement, an amount equal to one-twelfth one‑twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.45.5). Not more than twice once during any calendar year, Landlord may revise Landlord’s 's estimate and adjust Tenant’s 's monthly payments to reflect Landlord’s 's revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement for Operating Charges. Such Reconciliation Statement shall be in reasonable, line-item detail, consistently applied throughout the Term. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s 's actual liability, then Landlord shall credit the net overpayment toward Tenant’s 's next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement statement indicates that Tenant’s 's actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent within thirty (30) days of delivery of being presented with a written invoice thereof. If Landlord fails to invoice Tenant for any Operating Charge for thirty-six (36) full months after the date such Reconciliation StatementOperating Charge was incurred, Landlord shall waive its right to collect such particular Operating Charge from Tenant.
(d) Notwithstanding anything contained in this Article V to the contrary contained in the Leasecontrary, for purposes of calculating Tenant’s Proportionate Share of Operating ChargesAdditional Rent under Section 5.2(c), the maximum increase in the amount of the Controllable Operating Charges (as defined below) that may be included in calculating such Additional Rent for each calendar year after 2015 shall not be increased by more than five percent (5%) limited to per calendar year on a cumulative basis, determined in the manner provided below. Accordingly, for 2014 and each subsequent calendar year of the Term, the amount of the Controllable Operating Charges used for purposes of such calculation shall not be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal to the number of calendar years from 2013 to the year for which Controllable Operating Charges are being determined. For example, if Controllable Operating Charges in year 1 are $100,000, the cap on Controllable Operating Expenses for year 2 will be . If Controllable Operating Expenses in year 2 are less than $105,000 (i.e. $104,000), the cap on expenses for year 3 will be (i.e. $104,000 x ). However, any increases in Operating Charges not recovered by Landlord due to the foregoing limitation shall be carried forward into succeeding calendar years during the Term (subject to the foregoing limitation) to the extent necessary until fully recouped by Landlord, provided that in any given year, Tenant's Controllable Operating Charges shall be limited to in excess of the prior year's Controllable Operating Charges. For example, if Controllable Operating Charges increase by in year two, and in year three, Tenant would receive a Controllable Operating Charge increase in year two of and, pursuant to Landlord's right to carry forward Operating Charges not recovered during year two, in year three. "Controllable Operating Charges" means all Operating Charges excluding, Real Estate Taxes, insurance premiums; utilities; weather related expenses; increased labor costs due to the requirement for use of labor subject to collective bargaining; and costs of compliance with governmental requirements.
5.3 Tenant shall also pay to Landlord as Additional Rent Tenant's Proportionate Share of the actual, out-of-pocket costs incurred by Landlord (without markup) in connection with all electricity used by the Building ("Electrical Costs"). Such amount shall be payable in monthly installments on the Lease Commencement Date and on the first day of each calendar month thereafter. Each installment shall be based on Landlord's good-faith, reasonable estimate of the amount due for each month. No more than once during any calendar year, Landlord may estimate or re-estimate the Electrical Costs to be due by Tenant for that calendar year and deliver a copy of the estimate or re-estimate to Tenant. Thereafter, the monthly installments of Electrical Costs payable by Tenant shall be appropriately adjusted in accordance with the estimations. The Electricity Costs for calendar year 2013 at the 6031 Building are estimated at per rentable square foot. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a Reconciliation Statement for Electrical Costs. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant's actual liability, then Landlord shall credit the net overpayment toward Tenant's next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such statement indicates that Tenant's actual liability exceeds the Controllable aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent. Landlord shall competitively bid the contract for the provision of electricity to the Premises at least once every thirty-six (36) months during the Lease Term; unless Landlord and Tenant agree that Landlord may enter into a contract with a term longer than thirty-six (36) months.
(a) From and after January 1, 2016, Tenant shall pay as additional rent Tenant's Proportionate Share of the amount by which Real Estate Taxes exceed the Real Estate Taxes Base Amount. Tenant shall not initiate or participate in any contest of Real Estate Taxes without Landlord's prior written consent. Landlord shall allocate Real Estate Taxes among all buildings in the Project on a rentable square foot basis.
(b) Tenant shall make estimated monthly payments to Landlord on account of the amount by which Real Estate Taxes that are expected to be incurred during each calendar year would exceed the Real Estate Taxes Base Amount. At the beginning of each calendar year after the Lease Commencement Date, Landlord shall submit a reasonably detailed written statement setting forth Landlord's reasonable estimate of such amount and Tenant's Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant's receipt of the succeeding annual statement, an amount equal to one‑twelfth (1/12) of such share (estimated on an annual basis without proration pursuant to Section 5.5). Not more than once during any calendar year, Landlord may revise Landlord's estimate and adjust Tenant's monthly payments to reflect Landlord's revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a Reconciliation Statement for Real Estate Taxes showing (1) Tenant's Proportionate Share of the amount by which Real Estate Taxes incurred during the preceding calendar year exceeded the Real Estate Taxes Base Amount, and (2) the aggregate amount of Tenant's estimated payments made during such year. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant's actual liability, then Landlord shall credit the net overpayment toward Tenant's next installment(s) of rent due under this Lease, or, if the Lease Term hereof has expired or will expire before such credit can be fully applied, of if Tenant is not otherwise liable for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such statement indicates that Tenant's actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent. Landlord agrees to retain reasonably qualified experts to challenge any tax assessment of the Building which Landlord reasonably deems to be so excessive as to justify the fees for such experts.
5.5 If the Lease Term commences or expires on a day other than the first day or the last day of a calendar year, respectively, then Tenant's liabilities pursuant to this Article for such calendar year shall be apportioned by multiplying the respective amount of Tenant's Proportionate Share thereof for the full calendar year by a fraction, the numerator of which is the number of days during such calendar year falling within the Lease Term, and the denominator of which is three hundred sixty‑five (365).
5.6 Within ninety (90) days after the receipt or refusal by Tenant of such Reconciliation Statement, Tenant shall have the right to deliver written notice ("Audit Notice") to Landlord that it desires to audit such Reconciliation Statements (e.g., Reconciliation Statements for Operating Charges used Charges, Electrical Costs and Real Estate Taxes); provided, however, that Tenant's failure to deliver such notice shall preclude Tenant from performing any audit pursuant to the provisions of this Section relating to such Reconciliation Statement. Provided Tenant has timely delivered an Audit Notice, an independent, certified public accountant or qualified real estate professional with at least four (4) years of experience in calculating the field (Landlord hereby acknowledges that Cxxxxxx Xxxxxx or its successor is so qualified), who is hired by Tenant on a non-contingent fee basis, shall have the right, during regular business hours to inspect and complete an audit of Landlord's books and records relating to Operating Charges, Electrical Costs and Real Estate Taxes for the immediately preceding calendar year and the Base Year (provided, that Tenant shall only be entitled to object to Base Year charges under this Section 5.6 in connection with the Reconciliation Statement delivered to Tenant for the first comparison year). Tenant must complete its audit and deliver to Landlord written notice of its results within ninety (90) days after delivery of its Audit Notice, or within ninety (90) days after Landlord has made available to Tenant the requested documentation, whichever is later. Tenant shall (and shall cause its employees, agents and consultants to) keep the results of any such audit strictly confidential; provided, however, Tenant may disclose such results to its employees and advisors on a "need to know" basis and further provided that such individuals agree to keep the results confidential. If such audit shows that the amounts paid by Tenant to Landlord on account of Operating Charges, Electrical Costs and Real Estate Taxes exceed the amounts to which Landlord is entitled hereunder, Landlord shall credit the amount of such excess toward the next monthly payments of Tenant’s 's Proportionate Share of Operating Charges Expenses, Electrical Costs and/or Real Estate Taxes due hereunder. If the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall not reimburse Tenant for the amount of such overpayment within thirty (30) days after the date it delivers the audit results to Landlord. All costs and expenses of any such audit shall be greater than paid by Tenant, unless Landlord's bxxxxxxx exceeded by the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable actual Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and incurred by , Electrical Costs and/or Real Estate Taxes attributable to Tenant, in which event Landlord will pay Tenant for the Building actual, reasonable expense incurred for an independent third-party in performing such audit. Pending the completion of any audit of Landlord's records pursuant to this Section 5.6 (and as an additional condition for Tenant to be permitted to conduct such audit), Tenant shall be required to timely pay any amount due as set forth in the Landdisputed Reconciliation Statement in accordance with the provisions of Sections 5.2 and 5.4.
Appears in 1 contract
Samples: Office Lease Agreement (Alliance Data Systems Corp)
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 Section 5.1. For purposes of this Article V, the term “Building” shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, landscaping and alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
Section 5.2. (a) From and after August Commencing on the later of the Rent Commencement Date or January 1, 20142017, Tenant shall pay as additional rent Tenant’s Proportionate Share of the amount, if any, by which Operating Charges for each calendar year falling entirely or partly within the Lease Term exceed which are in excess of the amount of Operating Charges Base Amount. Tenant’s Proportionate Share with respect applicable to Operating Charges set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.14, and the denominator of which is the number of square feet of Total Area in the Building as set forth in Section 1.3 herein.
(b) If the average occupancy rate for the Building during any calendar year (including the Operating Charges Base Year) is less than ninety-five percent (95%). Such additional rent, or if together with any tenant is separately paying for (or does not require) electricity, janitorial or and all other utilities or services furnished amounts payable by Tenant to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) all additional expensesLandlord, as commercially reasonably estimated by Landlord additional rent or otherwise, pursuant to the terms of this Lease, shall be hereinafter collectively referred to as the “Additional Rent”. The Base Rent and Additional Rent are herein collectively referred to from time to time as the “Rent.”
Section 5.3. (a) Commencing on a basis consistent with any such estimates included for prior yearsthe later of the Rent Commencement Date or January 1, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for such utilities or services furnished to such premises.
(c) 2017, Tenant shall make estimated monthly payments to Landlord on account of the amount by which Tenant’s Proportionate Share of Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed in excess of the Operating Charges for the Base Amount, subject to Section 5.2(d) belowYear. No later than July 1, 2014, and thereafter annually at At the beginning of each calendar yearyear following the Base Year, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of such excess and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-one twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.45.5). Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate, and any such revision shall set forth on a reasonably specific basis any particular expense increase. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement for Operating Charges. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of rent Base Rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent Additional Rent within thirty (30) days of delivery Tenant’s receipt of such Reconciliation Statement.
Section 5.4. (a) Commencing on the later of the Rent Commencement Date or January 1, 2017, Tenant shall pay as Additional Rent Tenant’s Proportionate Share of Real Estate Taxes which are in excess of the amount of Real Estate Taxes applicable to the Base Year. Tenant shall not initiate or participate in any contest of Real Estate Taxes without Landlord’s prior written consent.
(a) Commencing on the later of the Rent Commencement Date or January 1, 2017, Tenant shall make estimated monthly payments to Landlord on account of Tenant’s Proportionate Share of Real Estate Taxes in excess of the Real Estate Taxes for the Base Year, which Base Year shall include the assessed value of the hard costs of the portion of the Tenant Improvements that have been funded with the Improvements Allowance (the “Included TI Costs”). Until the Real Estate Taxes with respect to the Base Year have been reassessed to include the Included TI Costs, Tenant’s Proportionate Share of Real Estate Taxes after the Base Year shall be calculated using the amount of Real Estate Taxes actually paid by Landlord during calendar year 2016 and the parties shall true-up such payments upon issuance of the Real Estate Taxes for the Base Year that includes the Included TI Costs. At the beginning of each calendar year following the Base Year, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one twelfth (1/12) of such share (estimated on an annual basis without proration pursuant to Section 5.5). Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate, and any such revision shall set forth on a reasonably specific basis any particular expense increase. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a Reconciliation Statement for Real Estate Taxes showing (1) Tenant’s Proportionate Share of the Real Estate Taxes incurred during the preceding calendar year, and (2) the aggregate amount of Tenant’s estimated payments made during such year. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of Base Rent due under this Lease, or, if the Lease Term hereof has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as Additional Rent within thirty (30) days of Tenant’s receipt of such Reconciliation Statement.
(db) Notwithstanding anything to Upon good faith request by Tenant, Landlord shall contest Real Estate Taxes, provided that Tenant shall reimburse Landlord for actual out-of-pocket costs paid or incurred by Landlord in connection with any such contest following the contrary contained completion of any such contest.
Section 5.5. (a) Commencing on the Delivery Date, Tenant shall pay all expenses, charges and fees incurred by or on behalf of Landlord or Tenant in connection with all electricity, gas, water, HVAC (including chilled condenser water), sewer and other utility and service costs, charges and fees (including any tap fees and connection and switching fees except for connection fees for the existing water and sewer connection and connection fees for the existing 1600 amp service from PG&E, which will be paid by Landlord if required) of every type and nature serving the Premises or the Building Structure and Systems (the “Utilities Services”) and (b) commencing on a date determined by Tenant, but not later than the Rent Commencement Date, janitorial and cleaning services and supplies (the “Janitorial Services”), which Utilities Services and Janitorial Services shall be contracted by Tenant in Tenant’s own name and not in the Leasename of the Landlord; provided, however, in the event that any third party is providing the Janitorial Services contemplated hereunder, Tenant shall not engage such third party without Landlord’s prior written consent, not to be unreasonably withheld, conditioned or delayed. Whether provided by Tenant’s employees or any third parties, Tenant shall ensure that the Premises and the Common Areas are cleaned with a frequency, and in a manner, and subject to standards of, comparable buildings and in accordance with the Rules and Regulations. Tenant shall, in conjunction with the Janitorial Services, implement the LEED Green Cleaning Policy attached hereto as Exhibit 5.5-1 and the Solid Waste Management Policy attached hereto as Exhibit 5.5-2. To the extent that the Janitorial Services being provided by or through Tenant do not comply with the provisions of this Section 5.5, at Landlord’s election, the Janitorial Services shall be provided by contractors engaged by Landlord and Tenant shall be responsible for purposes the actual cost thereof. Prior to commencement of calculating the Janitorial Services, Tenant shall require Tenant’s Agents to remove trash from the Premises on a regular basis.
(a) If Landlord is providing the Janitorial Services, Tenant shall make estimated monthly payments to Landlord on account of Tenant’s Proportionate Share of the expenses, fees and charges of the Janitorial Services (the “Janitorial Expenses”). At the beginning of each calendar year (and at Landlord’s election, following the Delivery Date with respect to periods prior to the Rent Commencement Date), Landlord shall submit a reasonably detailed written statement setting forth Landlord’s reasonable estimate of Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.5). Not more than twice during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate, and any such revision shall set forth on a reasonably specific basis any particular expense increase. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a Reconciliation Statement for Janitorial Expenses. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next installment(s) of Base Rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as Additional Rent within thirty (30) days of Tenant’s receipt of such Reconciliation Statement.
Section 5.6. If Tenant’s obligations to pay Additional Rent under this Article commence or expire on a day other than the first day or the last day of a calendar year, respectively, then Tenant’s liabilities pursuant to this Article for such calendar year shall be apportioned by multiplying the respective amount of Tenant’s Proportionate Share thereof for the full calendar year by a fraction, the numerator of which is the number of days during such calendar year when such amounts are payable hereunder, and the denominator of which is three hundred sixty five (365). If the Base Year Operating Charges or Real Estate Taxes are not based on a fully occupied Building for the entire Base Year, then such amounts shall be increased to reflect a fully occupied Building for the entire Base Year. If the Landlord does not carry earthquake or terrorism insurance during the Base Year and Landlord later elects to carry earthquake or terrorism insurance, the increase in Operating Charges for such new insurance coverages shall be included only to the extent of the increase in cost over the projected costs that would have been included in Operating Charges for the Base Year if the earthquake or terrorism insurance, as applicable, had been in effect during the entire Base Year.
Section 5.7. Throughout the Lease Term, Landlord shall maintain books and records with respect to Operating Charges, Real Estate Taxes, and Janitorial Expenses in accordance with the income tax, accrual basis of accounting, consistently applied. Within one hundred (100) days after receipt of a Reconciliation Statement by Tenant, if Tenant disputes the amount of Additional Rent set forth in the Controllable Operating Charges Reconciliation Statement, Tenant or its authorized representative, which shall be an employee of Tenant or otherwise an accountant not being compensated on a contingency basis, at Tenant’s cost, may, after reasonable notice to Landlord and at reasonable times, inspect Landlord’s records at Landlord’s offices in San Francisco, provided that there is no Event of Default under this Lease. In connection with such inspection, Tenant and Tenant’s agents must agree in advance to abide by Landlord’s reasonable rules and procedures regarding inspections of Landlord’s records, and shall execute a commercially reasonable confidentiality agreement regarding such inspection. Tenant’s failure to dispute the amount of Additional Rent set forth in any Reconciliation Statement within one hundred (100) days of Tenant’s receipt of such Reconciliation Statement shall be deemed to be Tenant’s approval of such Reconciliation Statement and Tenant thereafter waives the right or ability to dispute the amounts set forth in such Reconciliation Statement. If after such inspection, Tenant still disputes such Additional Rent, a certification as defined belowto the proper amount shall be made, at Tenant’s expense, by an independent certified public accountant (the “Accountant”) shall not be increased selected by Landlord and subject to Tenant’s reasonable approval; provided that if such certification by the Accountant determines that the Additional Rent in question was overstated by more than five percent (5%) per year on a cumulative basis), determined in then the manner provided below. Accordinglycost of the Accountant and the cost of such certification shall be paid for by Landlord and Landlord shall credit against the Base Rent next due from Tenant the amount of the overpayment made by Tenant or, for 2014 and each subsequent calendar year if such determination is made after the end of the Term, such overpayment shall be paid to Tenant within thirty (30) days of the parties’ receipt of such certification. In no event shall this Section 5.6 be deemed to allow any review of any Landlord’s records by any subtenant of Tenant. Tenant agrees that this Section 5.6 shall be the sole method to be used by Tenant to dispute the amount of the Controllable Operating Charges used for purposes of such calculation shall any Additional Rent payable or not be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied payable by a number of factors of 1.05 equal Tenant pursuant to the number terms of calendar years from 2013 to the year for which Controllable Operating Charges are being determined. For examplethis Lease, the amount of the Controllable Operating Charges used and Tenant hereby waives any other rights at law or in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and incurred by Landlord for the Building and the Landequity relating thereto.
Appears in 1 contract
Samples: Lease Agreement (Invitae Corp)
OPERATING CHARGES AND REAL ESTATE TAXES. 5.1 For purposes of this Article V, the term “"Building” " shall be deemed to include the Land, the roof of the Building and any physical extensions therefrom, any driveways, sidewalks, landscaping, alleys and parking facilities in the Building or on the Land, and all other areas, facilities, improvements and appurtenances relating to any of the foregoing. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, Landlord shall prorate the common expenses and costs with respect to each such building or parcel of land in its sole but reasonable judgment.
(a) From and after August 1, 2014the Lease Commencement Date, Tenant shall pay as additional rent Tenant’s 's Proportionate Share of the amount, if any, amount by which Operating Charges for each calendar year falling entirely or partly within the Lease Term exceed the Operating Charges Base Amount. Tenant’s 's Proportionate Share with respect to Operating Charges set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.141.18, and the denominator of which is the number of square feet of Total Area in the Building as set forth in Section 1.3 hereinBuilding.
(b) a. If the average occupancy rate for the Building during any calendar year (including the Operating Charges Base Year) is less than ninety-ninety five percent (95%), or if any tenant is separately paying for (or does not require) electricity, janitorial or other utilities or services furnished to its premises, then Landlord shall include in Operating Charges for such year (including the Operating Charges Base Year) all additional expenses, as commercially reasonably estimated by Landlord on a basis consistent with any such estimates included for prior yearsLandlord, which would have been incurred during such year if such average occupancy rate had been ninety-ninety five percent (95%) and if Landlord paid for such utilities or services furnished to such premises.
(c) b. Tenant shall make estimated monthly payments to Landlord on account of the amount by which Operating Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed the Operating Charges Base Amount, subject to Section 5.2(d) below. No later than July 1, 2014, and thereafter annually at At the beginning of each calendar yearyear after the Lease Commencement Date, Landlord shall submit a reasonably detailed written statement setting forth Landlord’s 's reasonable estimate of such excess and Tenant’s 's Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s 's receipt of the succeeding annual statement, an amount equal to one-twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.4). Not more than twice during any calendar year, Landlord may revise Landlord’s 's estimate and adjust Tenant’s 's monthly payments to reflect Landlord’s 's revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit to Tenant a written Reconciliation Statement for Operating Charges. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s 's actual liability, then Landlord shall credit the net overpayment toward Tenant’s 's next installment(s) of rent due under this Lease, or, if the Lease Term has expired or will expire before such credit can be fully applied, or if Tenant is not otherwise liable to Landlord for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such Reconciliation Statement statement indicates that Tenant’s 's actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent.
(a) From and after the Lease Commencement Date, Tenant shall pay as additional rent Tenant's Proportionate Share of the amount by which Real Estate Taxes exceed the Real Estate Taxes Base Amount. Tenant's Proportionate Share with respect to Real Estate Taxes set forth in Article I has been calculated to be that percentage which is equal to a fraction, the numerator of which is the number of square feet of rentable area in the Premises as set forth in Section 1.18, and the denominator of which is the number of square feet of Total Area in the Building. Tenant shall not initiate or participate in any contest of Real Estate Taxes without Landlord's prior written consent.
a. Tenant shall make estimated monthly payments to Landlord on account of the amount by which Real Estate Taxes that are expected to be incurred during each calendar year would exceed the Real Estate Taxes Base Amount. At the beginning of each calendar year after the Lease Commencement Date, Landlord shall submit a reasonably detailed written statement setting forth Landlord's reasonable estimate of such amount and Tenant's Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant's receipt of the succeeding annual statement, an amount equal to one-twelfth (1/12) of such share (estimated on an annual basis without proration pursuant to Section 5.4). Not more than twice during any calendar year, Landlord may revise Landlord's estimate and adjust Tenant's monthly payments to reflect Landlord's revised estimate. Within one hundred twenty (120) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a Reconciliation Statement for Real Estate Taxes showing (1) Tenant's Proportionate Share of the amount by which Real Estate Taxes incurred during the preceding calendar year exceeded the Real Estate Taxes Base Amount, and (2) the aggregate amount of Tenant's estimated payments made during such year. If such Reconciliation Statement indicates that the aggregate amount of such estimated payments exceeds Tenant's actual liability, then Landlord shall credit the net overpayment toward Tenant's next installment(s) of rent due under this Lease, or, if the Lease Term hereof has expired or will expire before such credit can be fully applied, of if Tenant is not otherwise liable for further payment, Landlord shall reimburse Tenant for the amount of such overpayment within thirty (30) days. If such statement indicates that Tenant's actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as additional rent.
5.4 If the Lease Term commences or expires on a day other than the first day or the last day of a calendar year, respectively, then Tenant's liabilities pursuant to this Article for such calendar year shall be apportioned by multiplying the respective amount of Tenant's Proportionate Share thereof for the full calendar year by a fraction, the numerator of which is the number of days during such calendar year falling within the Lease Term, and the denominator of which is three hundred sixty-five (365).
5.5 Provided no Event of Default then exists, after receiving an annual Reconciliation Statement and giving Landlord thirty (30) days prior written notice thereof, Tenant may inspect or audit Landlord's records relating to Operating Charges for the period of time covered by such Reconciliation Statement in accordance with the following provisions. If Tenant fails to object to the calculation of Operating Charges on an annual Reconciliation Statement within sixty (60) days after the statement has been delivered to Tenant or if Tenant fails to conclude its audit or inspection within ninety (90) days after the statement has been delivered to Tenant, then Tenant shall have waived its right to object to the calculation of Operating Charges for the year in question and the calculation of Operating Charges set forth on such Reconciliation Statement shall be final. Tenant's audit or inspection shall be conducted at the management office where Landlord maintains its books and records, shall not unreasonably interfere with the conduct of Landlord's business, and shall be conducted only during business hours reasonably designated by Landlord. Tenant shall pay the cost of such audit or inspection unless the total Operating Charges for the period in question is determined to be in error by more than 5% in the aggregate, in which case Landlord shall pay the audit cost. Tenant may not conduct an inspection or have an audit performed more than once during any calendar year. If such inspection or audit reveals that an error was made in the Operating Charges previously charged to Tenant, then Landlord shall refund to Tenant any overpayment of such costs, or Tenant shall pay to Landlord any underpayment of such costs, as the case may be, within thirty (30) days after notification thereof. Tenant shall maintain the results of delivery of each such Reconciliation Statement.
(d) Notwithstanding anything to the contrary contained in the Lease, for purposes of calculating Tenant’s Proportionate Share of Operating Charges, the amount of the Controllable Operating Charges (as defined below) audit or inspection confidential and shall not be increased by more permitted to use any third party to perform such audit or inspection other than five percent an independent firm of certified public accountants with at least ten (5%10) per year years of experience reviewing office building expense reconciliations: (1) which is not compensated on a cumulative basis, determined contingency fee basis or in any other manner which is dependent upon the manner provided below. Accordingly, for 2014 and each subsequent calendar year of the Term, the amount of the Controllable Operating Charges used for purposes results of such calculation audit or inspection (and Tenant shall not deliver the fee agreement or other similar evidence of such fee agreement to Landlord upon request), and (2) which agrees with Landlord in writing to maintain the results of such audit or inspection confidential. Nothing in this section shall be greater than the Controllable Operating Charges for the 2013 calendar year (the “Initial Amount”) multiplied by a number of factors of 1.05 equal construed to the number of calendar years from 2013 limit, suspend, or xxxxx Tenant's obligation to the year for which Controllable Operating Charges are being determined. For examplepay Rent when due, the amount of the Controllable Operating Charges used in calculating Tenant’s Proportionate Share of Operating Charges shall not be greater than the following amounts: in 2014, the Initial Amount times 1.05; in 2015, the Initial Amount times 1.05 times 1.05; in 2016, the Initial Amount times 1.05 times 1.05 times 1.05; etc. The term “Controllable Operating Charges” shall mean all Operating Charges except for utilities and insurance paid and incurred by Landlord for the Building and the Landincluding Additional Rent.
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Samples: Office Lease Agreement (Wells Real Estate Fund Xi L P)
