Operating Cost Escalation. With respect to the First Fiscal Year for Tenant's Paying Operating Cost Escalation, or fraction thereof, and any Fiscal Year (as such term shall refer to the successive twelve (12) month periods commencing on January 1st and ending on December 31st included within the Term) or fraction thereafter, Tenant shall pay to Landlord, as additional rent, Operating Cost Escalation (as defined below), if any, on or before the thirtieth (30th) day following receipt by Tenant of Landlord's Statement (as defined below) As soon as practicable after the end of each Fiscal Year ending during the Term and after Lease termination, Landlord shall render a statement ("Landlord's Statement") in reasonable detail and according to usual accounting. practices certified by Landlord and showing for the preceding Fiscal Year or fraction thereof, as the case may be, "Landlord's Operating Costs", and specifying Tenant's "Pro Rata Share" (which such term shall refer to the fraction, the numerator of which is the Rentable Floor Area of Tenant's Space, and the denominator of which is the Total Rentable Floor Area of the Building) for such Fiscal Year, EXCLUDING the interest and amortization on mortgages for the Building and Lot or leasehold interests therein and the cost of special services rendered to tenants (including Tenant) for which a special charge is made, depreciation of buildings and other improvements, improvements, repairs or alterations to spaces leased to other tenants, costs of any items to the extent Landlord receives reimbursement from insurance proceeds or from a third party, and expenses for capital items other than those permitted for purposes of reducing Landlord's Operating Costs pursuant to the following paragraph, BUT INCLUDING, without limitation real estate taxes on the Building and Lot, installments and interest on assessments for public betterments or public improvements, expenses of any proceedings for abatement of taxes and assessments with respect to any Fiscal Year or fraction of a Fiscal Year, provided, however, that any tax refunds shall be applied to reduce Landlord's Operating Costs, premiums for insurance, compensation and all fringe benefits, workmen's compensation, insurance premiums and payroll taxes paid by Landlord to, for or with respect to all persons engaged in the operating, maintaining, or cleaning of the Building and Lot, steam, water, sewer, electric, gas, telephone, and other utility charges not billed directly to tenants by Landlord or the utility, but not including the cost to Landlord of electricity furnished for lighting, electrical facilities, equipment, machinery, fixtures and appliances used by Tenant in Tenant's Space (other than Building heating, ventilating and air conditioning equipment) as set forth in Paragraph VII of Exhibit "D", costs of building and cleaning supplies and equipment (including rental), cost of maintenance, cleaning and repairs, cost of snow plowing or removal, or both, and care of landscaping, payments to independent contractors under service contracts for cleaning, operating, managing (not to exceed five percent (5%) of collected gross rents of the Building), maintaining and repairing the Building and Lot (which payments may be to affiliates of Landlord provided the same are at reasonable rates consistent with the type of occupancy and the services rendered), the cost of providing amenities to the Building, and all other reasonable and necessary expenses paid in connection with the operation, cleaning, maintenance, and repair of the Building and Lot, or either, and properly chargeable against income, it being agreed that if Landlord installs a new or replacement capital item for the purpose of reducing Landlord's Operating Costs, the annual costs thereof as reasonably amortized by Landlord over the useful life of the item so installed in accordance with generally accepted accounting principles, with legal interests on the unamortized amount, shall be included in Landlord's Operating Costs. In case of services which are not rendered to all areas on a comparable basis or in case service consumption vanes among tenants in the Building, the proportion allocable to the Premises shall be the same proportion which the Rentable Floor Area of Tenant's Space bears to the total rentable floor area to which such service is so rendered, or to which such disproportionate service or use is rendered (such latter area to be determined in the same manner as the Total Rentable Floor Area of the Building). Notwithstanding anything contained herein to the contrary, Tenant is not obligated to pay its Pro Rata Share of Landlord's Operating Costs which is included in Fixed Rent at such amount equal to the actual Landlord's Operating Costs for CY 2003 (approximately $7.25 per RSF, but shall only be obligated to pay the increase above such amount (i.e Operating Cost Escalation) as herein provided.
Appears in 2 contracts
Samples: Lease Agreement (Irobot Corp), Lease Agreement (Irobot Corp)
Operating Cost Escalation. With respect to the First Fiscal Year for Tenant's Paying Operating Cost Escalation, or fraction thereof, and any Fiscal Year (as such term shall refer to the successive twelve (12) month periods commencing on January 1st and ending on December 31st included within or fraction thereafter during the Term) or fraction thereafter, Tenant shall pay to Landlord, as additional rent, Operating Cost Escalation (as defined below), if any, on or before the thirtieth (30th) day following receipt by Tenant of Landlord's Statement (as defined below) ). As soon as practicable after the end of each Fiscal Year ending during the Term and after Lease termination, Landlord shall render a statement ("Landlord's Statement") in reasonable detail and according to usual accounting. practices generally accepted accounting principles, consistently applied, certified by Landlord Landlord, and showing for the preceding Fiscal Year or fraction thereof, as the case may be, "Landlord's Operating Costs", and specifying Tenant's "Pro Rata Share," (which such term shall refer to the fraction, the numerator of which is the Rentable Floor Area of Tenant's Space, and the denominator of which is the Total Rentable Floor Area of the Building) for such Fiscal Year, EXCLUDING the interest and amortization on mortgages for the Building and Lot or leasehold interests therein and the cost of special services rendered to tenants (including Tenant) for which a special charge is made, depreciation of buildings and other improvements, improvements, repairs or alterations to spaces leased to other tenants, costs of any items to the extent Landlord receives reimbursement from insurance proceeds or from a third party, and expenses for capital items other than those permitted for purposes of reducing Landlord's Operating Costs pursuant to the following paragraph, BUT INCLUDING, without limitation limitation: real estate taxes on the Building Building, the Lot and Lot, the Common Areas of the Park (including without limitation the sewer treatment plant servicing the Park); installments and interest on assessments for public betterments or public improvements, ; expenses of any proceedings for abatement of taxes and assessments with respect to any Fiscal Year or fraction of a Fiscal Year, provided, however, that any tax refunds shall be applied to reduce Landlord's Operating Costs, ; premiums for insurance, insurance required to be maintained by Landlord pursuant to this Lease; compensation and all fringe benefits, workmen's compensation, insurance premiums and payroll taxes paid by Landlord to, for or with respect to all persons engaged in the operating, maintaining, or cleaning of the Building and Lot, ; steam, water, sewer, electric, gas, telephone, and other utility charges not billed directly to tenants by Landlord or the utility, but not including the cost to Landlord of electricity furnished for lighting, electrical facilities, equipment, machinery, fixtures and appliances used by Tenant in Tenant's Space (other than Building heating, ventilating and air conditioning equipment) as set forth in Paragraph VII of Exhibit "D", ; costs of building and cleaning supplies and equipment (including rental), ; cost of maintenance, cleaning and repairs, ; cost of snow plowing or removal, or both, and care of landscaping, ; payments to independent contractors under service contracts for cleaning, operating, managing (not to exceed five percent (5%) of collected gross rents of the Building)managing, maintaining and repairing the Building and Lot (which payments may be to affiliates of Landlord provided the same are at reasonable rates consistent with similar contracts with unaffiliated third parties); the type Building's pro rata share (as hereinafter defined) of occupancy and the services rendered), the cost of providing amenities to operating, maintaining and repairing the BuildingCommon Areas of the Park (such as, but not limited to, snow plowing, sanding, landscaping, common area and street lighting, security, management and sewer treatment plant maintenance); and all other reasonable and necessary expenses paid in connection with the operation, cleaning, maintenance, and repair of the Building and Lot, or either, and properly chargeable against income, it being agreed that if Landlord installs a new or replacement capital item for the purpose of reducing Landlord's Operating Costs, the annual costs thereof as reasonably amortized by Landlord over the useful life in years of the capital item so installed in accordance with generally accepted accounting principlesprinciples ("GAAP"), with legal interests on the unamortized amount, shall be included in Landlord's Operating Costs. In case of services which are not rendered to all areas on a comparable basis or in case service consumption vanes among tenants in the Building, the proportion allocable to the Premises shall be the same proportion which the Rentable Floor Area of Tenant's Space bears to the total rentable floor area to which such service is so rendered, or to which such disproportionate service or use is rendered (such latter area to be determined in the same manner as the Total Rentable Floor Area of the Building). Notwithstanding anything contained herein to the contrary, Tenant is not obligated to pay its Pro Rata Share of Landlord's Operating Costs which is included in Fixed Rent at such amount equal to the actual Landlord's Operating Costs for CY 2003 (approximately $7.25 per RSF, but shall only be obligated to pay the increase above such amount (i.e Operating Cost Escalation) as herein provided.consistently
Appears in 2 contracts
Samples: Lease Agreement (Unisphere Solutions Inc), Lease Agreement (Unisphere Networks Inc)
Operating Cost Escalation. With respect to the First Fiscal Year for Tenant's Paying Operating Cost Escalation, or fraction thereof, and any Fiscal Year (as such term shall refer to the successive twelve (12) month periods commencing on January 1st and ending on December 31st included within the Term) or fraction thereafter, Tenant shall pay to Landlord, as additional rent, Operating Cost Escalation (as defined below), if any, on or before the thirtieth (30th) day following receipt by Tenant of Landlord's Statement (as defined below) ). As soon as practicable after the end of each Fiscal Year ending during the Term and after Lease termination, and in either case, no later than 180 days thereafter, Landlord shall render a statement ("Landlord's Statement") in reasonable detail and according to usual accounting. accounting practices certified by Landlord and showing for the preceding Fiscal Year or fraction thereof, as the case may be, "Landlord's Operating Costs". Upon request, Landlord will provide access to Tenant, at reasonable times, to Landlord's books and records relating to the preparation of Landlord's statement, and specifying Tenant's "Pro Rata Share" (which Tenant may inspect and copy such term shall refer records as are necessary to verify the fraction, the numerator of which is the Rentable Floor Area of Tenant's Space, and the denominator of which is the Total Rentable Floor Area accuracy of the Building) for Landlord's annual statement. In the event of a dispute, Tenant shall have the right to conduct or have conducted an audit according to generally accepted accounting principles consistently applied, with which Landlord shall cooperate in good faith. In the event of an error of five percent or more, Landlord shall bear all costs of such Fiscal Yearinspection and audit. For the purpose of this Paragraph 4.2, EXCLUDING Landlord's Operating Costs shall exclude the interest and amortization on mortgages for the Building and Lot or leasehold interests therein and the cost For this purpose of special services rendered to tenants (including Tenant) for which a special charge is madethis Paragraph 4.2, depreciation of buildings and other improvements, improvements, repairs or alterations to spaces leased to other tenants, costs of any items to the extent Landlord receives reimbursement from insurance proceeds or from a third party, and expenses for capital items other than those permitted for purposes of reducing Landlord's Operating Costs pursuant to the following paragraph, BUT INCLUDINGshall include, without limitation limitation: real estate taxes on the Building and Lot, ; installments and interest on assessments for public betterments or public improvementsimprovements (other than those if any, relating to a traffic signal and related accessory improvements and turnaround on Route 9 adjacent to the Lot); expenses of any proceedings for abatement of taxes and assessments with respect to any Fiscal Year or fraction If the management fee is reduced by reason of a Fiscal Year, provided, however, that any tax refunds shall be applied to reduce Landlordtenant's Operating Costs, premiums for insurance, compensation and all fringe benefits, workmen's compensation, insurance premiums and payroll taxes paid by Landlord to, for or with respect to all persons engaged default in the operatingpayment of fixed or additional rent, maintaining, or cleaning Landlord shall reduce the Annual Estimated Operating Costs by the amount of such reduction in the Building and Lot, steam, water, sewer, electric, gas, telephone, and other utility charges not billed directly to tenants by Landlord or the utility, but not including the cost to Landlord of electricity furnished for lighting, electrical facilities, equipment, machinery, fixtures and appliances used by Tenant in Tenant's Space (other than Building heating, ventilating and air conditioning equipment) as set forth in Paragraph VII of Exhibit "D", costs of building and cleaning supplies and equipment (including rental), cost of maintenance, cleaning and repairs, cost of snow plowing or removal, or both, and care of landscaping, payments to independent contractors under service contracts for cleaning, operating, managing (not to exceed five percent (5%) of collected gross rents of the Building), maintaining and repairing the Building and Lot (which payments may be to affiliates of Landlord provided the same are at reasonable rates consistent with the type of occupancy and the services rendered), the cost of providing amenities to the Building, and all other reasonable and necessary expenses paid in connection with the operation, cleaning, maintenance, and repair of the Building and Lot, or either, and properly chargeable against income, it being agreed that if Landlord installs a new or replacement capital item for the purpose of reducing Landlord's Operating Costs, the annual costs thereof as reasonably amortized by Landlord over the useful life of the item so installed in accordance with generally accepted accounting principles, with legal interests on the unamortized amount, shall be included in Landlord's Operating Costsmanagement fee. In case of services which are not rendered to all areas on a comparable basis or in case service consumption vanes among tenants in the Buildingbasis, the proportion allocable to the Premises shall be the same proportion which the Rentable Floor Area of Tenant's Space bears to the total rentable floor area to which such service is so rendered, or to which such disproportionate service or use is rendered (such latter area to be determined in the same manner as the Total Rentable Floor Area of the Building). Notwithstanding anything contained herein to the contrary, Tenant is not obligated to pay its Pro Rata Share of Landlord's Operating Costs which is included in Fixed Rent at such amount equal to the actual Landlord's Operating Costs for CY 2003 (approximately $7.25 per RSF, but shall only be obligated to pay the increase above such amount (i.e Operating Cost Escalation) as herein provided.
Appears in 2 contracts
Samples: Lease Agreement (Aspect Medical Systems Inc), Lease Agreement (Aspect Medical Systems Inc)
Operating Cost Escalation. With respect to the First Fiscal Year for Tenant's ’s Paying Operating Cost Escalation, or fraction thereof, and any Fiscal Year (as such term shall refer to the successive twelve (12) month periods commencing on January 1st and ending on December 31st included within the Term) or fraction thereafter, Tenant shall pay to Landlord, as additional rent, Tenant’s share of the Operating Cost Escalation (as defined below), if any, on or before the thirtieth (30th) day following receipt by Tenant of Landlord's ’s Statement (as defined below). Within ninety (90) As soon as practicable days after the end of each Fiscal Year ending during the Term and after Lease termination, Landlord shall render a statement ("“Landlord's ’s Statement"”) in reasonable detail and according to usual accounting. accounting practices certified by Landlord and showing for the preceding Fiscal Year or fraction thereof, as the case may be, "Landlord's ’s Operating Costs"Costs (as defined herein). Landlord Operating Costs shall mean the commercially reasonable costs incurred by Landlord in operating, cleaning, maintaining, managing, and specifying Tenant's "Pro Rata Share" (which such term shall refer to repairing the fraction, the numerator of which is the Rentable Floor Area of Tenant's Space, Building and the denominator of which is the Total Rentable Floor Area of the Building) for such Fiscal YearLot, EXCLUDING the principal, interest and amortization on mortgages for the Building Building, and Lot or leasehold interests therein therein, depreciation; improvements made to the Building, the Lot or the Park that do not lower operating costs; and the cost of special services rendered to tenants (including Tenant) for which a special charge is made, depreciation of buildings and other improvements, improvements, repairs or alterations to spaces leased to other tenants, costs of any items to the extent Landlord receives reimbursement from insurance proceeds or from a third party, and expenses for capital items other than those permitted for purposes of reducing Landlord's Operating Costs pursuant to the following paragraph, ; BUT INCLUDING, without limitation limitation: real estate taxes on the Building and Lot, ; installments and interest on assessments for public betterments or public improvementsimprovements but only to the extent of the installment required to be paid in such Fiscal Year, Landlord hereby agreeing to pay such amounts over the longest period available under applicable law, reasonable expenses of any proceedings for abatement of taxes and assessments with respect to any Fiscal Year or fraction of a Fiscal Year, provided, however, that any tax refunds shall be applied to reduce Landlord's Operating Costs, ; reasonable premiums for insurance, ; reasonable compensation and all reasonable fringe benefitsbenefits for full- time employees at the Building, workmen's ’s compensation, insurance premiums and payroll taxes paid by Landlord to, /for or with respect to all persons engaged in the operating, maintaining, managing or cleaning of the Building and Lot, steam, water, sewer, electric, gas, telephonetelephone and the electricity to operate the base building heating, ventilating, air conditioning systems, elevators and parking lot lighting, and other utility charges not billed directly to tenants by Landlord or the utility, but not including utility companies (the cost to Landlord of for the electricity furnished consumed by the tenant for interior lighting, electrical facilitiesplugs, equipment, machinery, fixtures and appliances used by Tenant in Tenant's Space (other than Building heating, ventilating and supplemental air conditioning equipment) and fixtures in shall be billed monthly to Tenant by Landlord as set forth in Paragraph VII IX of Exhibit "“D", ”); measurable and market costs of building and cleaning supplies and equipment (including rental), ; reasonable cost of maintenance, cleaning and repairs, including without limitation the services provided in Exhibit “D” hereof; cost of snow plowing or removal, or both, and care of landscaping, ; payments to independent contractors under service contracts for cleaning, operating, managing (not to exceed five percent (5%) of collected gross rents of the Building)managing, maintaining and repairing the Building and Lot (which payments may be to affiliates of Landlord provided the same are at reasonable rates consistent with the type of occupancy and the services rendered), the cost of providing amenities to ; the Building’s pro rata share (i.e. approximately 39.45% as hereinafter provided) of the Park-related costs (as defined below, including, but not limited to, snow plowing, sanding, sand removal, lot sweeping, landscaping, and common area and street lighting); and all other reasonable and necessary expenses paid in connection with the operation, cleaning, maintenance, management, and repair of the Building (including the cafeteria and fitness center located therein) and Lot, or either, and properly chargeable against income, it being agreed that if . If Landlord (i) installs a new or replacement capital item for the purpose purposes of (i) reducing Landlord's ’s Operating Costs, or (ii) is required to perform capital repairs or replacements or to install capital items in order to comply with changes in applicable law from and after the annual Commencement Date, the costs thereof as reasonably amortized by Landlord over the their useful life of the item so installed in accordance with generally accepted accounting principles, with legal interests interest (not to exceed the then “Prime Rate” published in the Wall Street Journal plus two percent (2%) per annum) on the unamortized amount, shall be included in “Landlord's ’s Operating Costs”, but with respect to subsection (i) in no event may the amount included herein with respect to a Fiscal Year exceed the reasonably projected annual reduction in Operating Costs. In such event, Tenant shall pay Tenant’s share of such amortization payment for each month after such improvement is completed until the first to occur of the expiration of the Term or the end of the term over which such costs are required to be amortized. Landlord agrees that all of such services to be included in Landlord’s Operating Costs shall be obtained by Landlord at commercially reasonable, competitive market rates consistent with the operation and management of comparable Class A office buildings in the suburban Boston area. Notwithstanding the foregoing, in no event shall “controllable operating expenses” included within Landlord’s Operating Costs increase by more than five percent (5%) per Lease Year, on a cumulative basis. For purposes hereof, the term “controllable operating expenses” shall mean those Operating Costs within Landlord’s control, exercising prudent business practices, but shall exclude the following: (i) insurance premiums; (ii) costs incurred because of changes in applicable laws, rules, regulations, ordinances, requirements, and codes (“Applicable Laws”) after the Commencement Date; (iii) wages and benefits mandated by Applicable Laws or by union contracts; (iv) snow-plowing and expenses incurred as a result of acts of God; (v) the cost of utilities and real estate taxes; and (vi) pest control. Notwithstanding anything to the contrary contained herein, in no event shall Landlord’s Operating Costs include (nor shall Tenant have any obligation to pay any Operating Cost Escalation on account of) the following:
(a) Costs, expenses and fees relating to solicitation of, advertising for and entering into leases and other occupancy arrangements for space in the Park, including but not limited to legal fees, space planners’ fees, real estate brokers’ leasing commissions and advertising and marketing expenses.
(b) Costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Park (or any part thereof), costs of any disputes between Landlord and its employees, disputes of Landlord with building management, or outside fees paid in connection with disputes with other tenants, invitees or adjacent property owners.
(c) Costs of correcting defects in the Building or the Building equipment or replacing defective equipment solely to the extent such costs relate to items covered by warranties of manufacturers, suppliers or contractors or are otherwise borne by parties other than Landlord and for which Landlord receives reimbursement,
(d) Costs of installations paid by or constructed for specific tenants or other occupants.
(e) Interest, points, other finance charges and principal payments on mortgages, and other costs of indebtedness, if any.
(f) All amounts which are specifically charged to or otherwise paid by any other tenant or other occupant of the Building or the Park, or for items or services which Landlord provides selectively to one or more tenants (other than Tenant) without reimbursement.
(g) Any bad debt loss, rent loss or reserves for bad debts or rent loss or other future expenses.
(h) The salary and indirect compensation (including, without limitation, all fringe benefits, workmen’s compensation, insurance premiums and payroll taxes) of any employee above the trade of property manager, and the wages and indirect compensation of any employee to the extent such employee devotes his or her time to property other than the Building.
(i) Amounts, if any, paid as ground rental by Landlord.
(j) Expenses related to third-party landlord-tenant disputes.
(k) Any cost of any service or items sold or provided to tenants of the Building or Park or other occupants for such service or has been or is entitled to be reimbursed by insurance or otherwise compensated by parties (e.g. easement holders) other than tenants of the Building and for which Landlord receives reimbursement.
(l) The costs of repair, replacement, or restoration work occasioned by any casualty or condemnation above the deductible amount on the insurance policy.
(m) Any depreciation allowance or expense, expense reserve and other non-cash items.
(n) Interest or penalties due to the late payment of taxes, utility bills or other such costs, unless caused by Tenant, in which event Tenant shall be responsible for same.
(o) Any amount payable by Landlord by way of indemnity or for damages or which constitute a fine or penalty, including interest or penalties for late payment, unless caused by Tenant, in which event Tenant shall be responsible for same.
(p) Costs incurred to maintain the structural integrity of the Building, except if caused by the Tenant as set forth in Section 5.1.3 hereof.
(q) Costs incurred in connection with the making of repairs or replacements which are the obligation of another tenant or occupant of the Building;
(r) Federal and state income taxes, excess profits taxes, franchise taxes, gift taxes, capital stock tax, inheritance and succession taxes, profit, use, occupancy, gross receipts, rental, capital gains, capital stocks income and transfer taxes imposed upon Landlord or the Park, estate taxes and any other taxes to the extent applicable to Landlord’s general or net income;
(s) costs of any utility or other service used or consumed in the premises leased or leasable to any tenant or occupant, if Tenant’s use or consumption of such utility or other services is separately metered or sub-metered at the Premises;
(t) costs of any additions to or expansions of the Park or the Building;
(u) expenditures for capital improvements or replacement except as expressly permitted above;
(v) special assessments levied against the Park for any public improvements required to be undertaken by a governmental authority which would normally have been constructed by Landlord as part of the initial construction of the Park;
(w) the cost to make improvements, alterations and additions to the Building or the Lot which are required in order to render the same in compliance with laws, rules, orders regulations and/or directives existing as of the date of this Lease;
(x) the cost of environmental monitoring, compliance, testing and remediation performed in, on, about and around the Building or the Lot to the extent that such costs are caused by the negligent actions of Landlord or its employees or contractors;
(y) any costs or expense related to vacant space;
(z) amounts paid to subsidiaries or affiliates of Landlord for services rendered to the Property to the extent such amounts exceed the competitive costs for delivery of such services were they not provided by such related parties;
(aa) management fees in excess of five percent (5%) of gross rents;
(bb) any cost arising from Landlord’s charitable or political contributions; and
(cc) any other expenses which, in accordance with generally accepted accounting principles, consistently applied, would not customarily be treated as Operating Costs by lessors of comparable buildings. In the event that the average occupancy rate for the Building is less than ninety-five (95%) percent for any Fiscal Year (including Fiscal Year 2011), then for purposes of calculating Operating Costs, the Operating Costs for such Fiscal Year shall be increased by the additional costs and expenses that Landlord reasonably and in good faith estimates would have been incurred if the average occupancy rate had been ninety-five (95%) percent for such Fiscal Year. It is not the intent of this provision to permit Landlord to charge Tenant for any Operating Costs attributable to unoccupied space, or to seek reimbursement from Tenant for costs Landlord never incurred. Rather, the intent of this provision is to allow Landlord to recover only those increases in Operating Costs properly attributable to occupied space in the Building and this provision is designed to calculate the actual cost of providing a variable operating expense service to the portions of the Building receiving such service. This “gross-up” treatment shall be applied only with respect to Operating Costs which vary based on level of occupancy. In case of services which are not rendered to all areas of the Building on a comparable basis or in case service consumption vanes among tenants in the Buildingbasis, the proportion allocable to the Premises shall be the same proportion which the Rentable Floor Area of Tenant's ’s Space bears to the total rentable floor area to which such service is so rendered, or to which such disproportionate service or use is rendered (such latter area to be determined in the same manner as the Total Rentable Floor Area of the Building), or shall be re-allocated by Landlord on a reasonable basis taking into consideration such factors as usage of a particular tenant in the Park and/or such other pertinent factors as reasonably determined by Landlord. Notwithstanding anything contained herein Tenant shall be responsible to pay its share of the Operating Cost Escalation based upon the proportion that the Rentable Floor Area of Tenant’s Space bears to the contraryTotal Rentable Floor Area of the Building (i.e. 26.85%), but any elements of Operating Costs which relate to elements of the Park other than the Building and the Lot (“Park-related costs”), shall be allocated by Landlord in a commercially reasonable manner based upon the following: upon the ratio of the square footage of the Premises to the aggregate square footage of all completed buildings in the Park (e.g. 460,588 RSF), as such buildings are completed from time to time (i.e. the Building’s current share of Park-related costs is approximately 39.45%). In no event shall Park-related costs include costs which do not relate to a service or amenity which has a benefit to the Building or which relate exclusively to another Building or Lot in the Park. As of this date, the Park consists of approximately 460,588 RSF, specifically consisting of the following: One Wall Street: 192,000 RSF Two and Ten Wall Street (Retail): 34,908 RSF Twenty Wall Street: 52,000 RSF Five Wall Street: 181,680 RSF Total: 460,588 RSF “Operating Cost Escalation” shall be equal to the difference for each Fiscal Year, if any, between:
(a) the product of Landlord’s Operating Costs per rentable square foot as indicated in Landlord’s Statement times the Rentable Floor Area of Tenant’s Space; and
(b) the product of the Base Operating Costs per rentable square foot times the Rentable Floor Area of Tenant’s Space. If, with respect to any Fiscal Year or fraction thereof during the Term, Tenant is obligated to pay Operating Cost Escalation, then Tenant shall pay, as additional rent, on the first day of each month of each ensuing Fiscal Year thereafter, until Landlord’s Statement for an ensuing Fiscal Year reflects that Tenant is not obligated to pay its Pro Rata Share of Landlord's Operating Costs which is included in Fixed Rent at such amount equal to the actual Landlord's Operating Costs for CY 2003 (approximately $7.25 per RSF, but shall only be obligated to pay the increase above such amount (i.e Operating Cost Escalation) as herein provided, “Estimated Monthly Escalation Payments” equal to 1/12th of the annualized Operating Cost Escalation for the immediately preceding Fiscal Year. Estimated Monthly Escalation Payments for each ensuing Fiscal Year shall be made retroactively from the first day of such Fiscal Year and on account of the payment to be made pursuant to the first sentence of this Section 4.2 for such Fiscal Year, with an appropriate additional payment or refund to be made at the time such payment is due for the previous year.
Appears in 1 contract
Samples: Sublease Agreement (Demandware Inc)
Operating Cost Escalation. With respect to the First Fiscal Year for Tenant's ’s Paying Operating Cost Escalation, or fraction thereof, and any Fiscal Year (as such term shall refer to the successive twelve (12) month periods commencing on January 1st and ending on December 31st included within the Term) or fraction thereafter, Tenant shall pay to Landlord, as additional rent, Tenant’s share of the Operating Cost Escalation (as defined below), if any, on or before before, the thirtieth (30th) day following receipt by Tenant of Landlord's ’s Statement (as defined below) ). As soon as practicable after the end of each Fiscal Year ending during the Term and after Lease termination, Landlord shall render a statement ("“Landlord's ’s Statement"”) in reasonable detail and according to usual accounting. accounting practices certified by Landlord and showing for the preceding Fiscal Year or fraction thereof, as the case may be, "Landlord's ’s Operating Costs", and specifying Tenant's "Pro Rata Share" (which such term shall refer to the fraction, the numerator of which is the Rentable Floor Area of Tenant's Space, and the denominator of which is the Total Rentable Floor Area of the Building) for such Fiscal Year, EXCLUDING the principal, interest and amortization on mortgages for the Building Building, and Lot or leasehold interests therein therein, depreciation, improvements made to the Building, the Lot or the Park that do not lower operating costs, and the cost of special services rendered to tenants (including Tenant) for which a special charge is made, depreciation of buildings and other improvements, improvements, repairs or alterations to spaces leased to other tenants, costs of any items to the extent Landlord receives reimbursement from insurance proceeds or from a third party, and expenses for capital items other than those permitted for purposes of reducing Landlord's Operating Costs pursuant to the following paragraph, BUT INCLUDING, without limitation limitation: real estate taxes on the Building and Lot, ; installments and reasonable interest on assessments for public betterments or public improvements, ; expenses of any proceedings for abatement of taxes and assessments with respect to any Fiscal Year or fraction of a Fiscal Year, provided, however, that any tax refunds shall be applied to reduce Landlord's Operating Costs, ; reasonable premiums for insurance, ; reasonable compensation and all fringe benefitsbenefits for fully time employees at the Building, workmen's ’s compensation, insurance premiums and payroll taxes paid by Landlord to, for or with respect to all persons engaged in the operating, maintaining, or cleaning of the Building and Lot, steam, ; water, sewer, electric, gas, telephonetelephone and the electricity to operate the base building heating, ventilating, air conditioning systems, elevators and parking lot lighting, and other utility charges not billed directly to tenants by Landlord or the utility, but not including utility companies (the cost to Landlord of for the electricity furnished consumed by the tenant for interior lighting, electrical facilitiesplugs, equipment, machinery, fixtures and appliances used by Tenant in Tenant's Space (other than Building heating, ventilating and supplemental air conditioning equipment) and fixtures in shall be billed monthly to Tenant by Landlord as set forth in Paragraph VII IX of Exhibit "“D", ”); measurable and market costs of building and cleaning supplies and equipment (including rental), ; reasonable cost of maintenance, cleaning and repairs, including without limitation the services provided in Exhibit “D” hereof; cost of snow plowing or removal, or both, and care of landscaping, ; payments to independent contractors under service contracts for cleaning, operating, managing (not to exceed five percent (5%) of collected gross rents of the Building)managing, maintaining and repairing the Building and Lot (which payments may be to affiliates of Landlord provided the same are at reasonable rates consistent with the type of occupancy and the services rendered), ; the Building’s pro rata share (i.e. approximately 39.45% as hereinafter provided) of the cost of providing amenities to operating, maintaining and repairing the Buildingcommon areas and facilities within the Park (such as, but not limited to, snow plowing, sanding, sand removal, lot sweeping, landscaping, common area and street lighting, and management); and all other reasonable and necessary expenses paid in connection with the operation, cleaning, maintenance, and repair of the Building and Lot, or either, and properly chargeable against income, it being agreed that if . If Landlord (i) installs a new or replacement capital item for the purpose purposes of (i) reducing Landlord's ’s Operating Costs, or (ii) is required to perform capital repairs or replacements or to install capital items in order to comply with changes in applicable law from and after the annual Commencement Date, or (iii) or is required pursuant to Section 5.1.3 to perform capital repairs or replacements which are chargeable to Tenant to the extent provided by the provisions of this Section, the costs thereof as reasonably amortized by Landlord over the their useful life of the item so installed in accordance with generally accepted accounting principles, with legal interests interest (not to exceed the then “Prime Rate” published in the Wall Street Journal plus two percent (2%) per annum) (“Agreed Interest Rate”) on the unamortized amount, shall be included in “Landlord's ’s Operating Costs”. In such event, Tenant shall pay Tenant’s share of such amortization payment for each month after such improvement is completed until the first to occur of the expiration of the Term or the end of the term over which such costs are required to be amortized. Landlord agrees that all of such services to be included in Landlord’s Operating Costs shall be obtained by Landlord at commercially reasonable, competitive market rates consistent with the operation and management of comparable Class A office buildings in the suburban Boston area. Notwithstanding anything to the contrary contained herein, in no event shall Landlord’s Operating Costs include (nor shall Tenant have any obligation to pay any Operating Cost Escalation on account of) the following:
(a) Costs, expenses and fees relating to solicitation of, advertising for and entering into leases and other occupancy arrangements for space in the Park, including but not limited to legal fees, space planners’ fees, real estate brokers’ leasing commissions and advertising and marketing expenses.
(b) Costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Park (or any part thereof), costs of any disputes between Landlord and its employees, disputes of Landlord with building management, or outside fees paid in connection with disputes with other tenants, invitees or adjacent property owners.
(c) Costs of correcting defects in the Building or the Building equipment or replacing defective equipment solely to the extent such costs relate to items covered by warranties of manufacturers, suppliers or contractors or are otherwise borne by parties other than Landlord and for which Landlord receives reimbursement.
(d) Costs of installations paid by or constructed for specific tenants or other occupants.
(e) Interest, points, other finance charges and principal payments on mortgages, and other costs of indebtedness, if any.
(f) All amounts which are specifically charged to or otherwise paid by any other tenant or other occupant of the Building or the Park, or for items or services which Landlord provides selectively to one or more tenants (other than Tenant) without reimbursement.
(g) Any bad debt loss, rent loss or reserves for bad debts or rent loss.
(h) The salary and indirect compensation (including, without limitation, all fringe benefits, workmen’s compensation, insurance premiums and payroll taxes) of any employee above the trade of property manager, and the wages and indirect compensation of any employee to the extent such employee devotes his or her time to property other than the Building.
(i) Amounts, if any, paid as ground rental by Landlord.
(j) Expenses related to third-party landlord-tenant disputes.
(k) Any cost of any service or items sold or provided to tenants of the Building or Park or other occupants for such service or has been or is entitled to be reimbursed by insurance or otherwise compensated by parties (e.g. easement holders) other than tenants of the Building and for which Landlord receives reimbursement.
(l) The costs of repair, replacement, or restoration work occasioned by any casualty or condemnation above the deductible amount on the insurance policy.
(m) Any depreciation allowance or expense, expense reserve and other non-cash items.
(n) The costs of repairs, alterations and general maintenance necessitated by the negligence or willful misconduct of Landlord or its agents, employees, or contractors or repairs, alterations, and general maintenance necessitated by the negligence or willful misconduct of any other tenant (including Tenant) or occupant of the Building or any of their respective agents, employees, contractors, invitees, or licensees.
(o) Interest or penalties due to the late payment of taxes, utility bills or other such costs, unless caused by Tenant, in which event Tenant shall be responsible for same.
(p) Any amount payable by Landlord by way of indemnity or for damages or which constitute a fine or penalty, including interest or penalties for late payment, unless caused by Tenant, in which event Tenant shall be responsible for same.
(q) Any other cost or expense which, under generally accepted accounting principles, consistently applied, would not be a normal maintenance or operating expense of the Building, including bad debt expenses and charitable contributions and donations.
(r) Costs incurred to maintain the structural integrity of the Building, except in the event caused by the Tenant as set forth in Section 5.1.3 hereof. In case of services which are not rendered to all areas of the Building on a comparable basis or in case service consumption vanes among tenants in the Buildingbasis, the proportion allocable to the Premises shall be the same proportion which the Rentable Floor Area of Tenant's ’s Space bears to the total rentable floor area to which such service is so rendered, or to which such disproportionate service or use is rendered (such latter area to be determined in the same manner as the Total Rentable Floor Area of the Building), or shall be re-allocated by Landlord on a reasonable basis taking into consideration such factors as usage of a particular tenant in the Park and/or such other pertinent factors as reasonably determined by Landlord. Notwithstanding anything contained herein to the contrary, Tenant is not obligated shall be responsible to pay its Pro Rata Share share of Landlord's Operating Costs which is included in Fixed Rent at such amount equal to the actual Landlord's ’s Operating Costs for CY 2003 the Building based upon the proportion that the Rentable Floor Area of Tenant’s Space bears to the Total Rentable Floor Area of the Building (i.e. 41.55%). Tenant shall also be responsible to pay its pro rata share of Park-related costs, which shall be allocated by Landlord in a commercially reasonable mariner based upon the following: upon the ratio of the square footage of the Premises to the aggregate square footage of all completed buildings in the Park (e.g. 460,588 RSF), as such buildings are completed from time to time (i.e. the Building’s current share of Park-related costs is approximately $7.25 per 39.45%). As of this date, the Park consists of approximately 460,588 RSF, but shall only be obligated to pay specifically consisting of the increase above such amount following: One Wall Street: 192,000 RSF Two and Ten Wall Street (i.e Operating Cost Escalation) as herein provided.Retail): 34,908 RSF Twenty Wall Street: 52,000 RSF Five Wall Street: 181,680 RSF Total: 460,588 RSF
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Samples: Sublease (Demandware Inc)
Operating Cost Escalation. With respect to the First Fiscal Year for Tenant's ’s Paying Operating Cost Escalation or Real Estate Tax Escalation, or fraction thereof, and any Fiscal Year (as such term shall refer to the successive twelve (12) month periods commencing on January 1st and ending on December 31st included within or fraction thereafter during the Term) or fraction thereafter, Tenant shall pay to Landlord, as additional rent, Operating Cost Escalation (as defined below), if any, on or before the thirtieth (30th) day following receipt by Tenant of Landlord's ’s Statement (as defined below) ). As soon as practicable after the end of each Fiscal Year ending during the Term and after Lease termination, Landlord shall render a statement ("“Landlord's ’s Statement"”) in reasonable detail and according to usual accounting. practices Generally Accepted Accounting Principles (“GAAP”), consistently applied, certified by Landlord Landlord, and showing for the preceding Fiscal Year or fraction thereof, as the case may be, "“Landlord's ’s Operating Costs", and specifying Tenant's "Pro Rata Share" (which such term shall refer to the fraction, the numerator of which is the Rentable Floor Area of Tenant's Space, and the denominator of which is the Total Rentable Floor Area of the Building) for such Fiscal Year, ,” EXCLUDING the interest and amortization on mortgages for the Building and Lot or leasehold interests therein and the cost of special services rendered to tenants (including Tenant) for which a special charge is made, depreciation of buildings and other improvements, improvements, repairs or alterations to spaces leased to other tenants, costs of any items to the extent Landlord receives reimbursement from insurance proceeds or from a third party, and expenses for capital items other than those permitted for purposes of reducing Landlord's Operating Costs pursuant to the following paragraphversus tenants in general, BUT INCLUDING, without limitation limitation: real estate taxes on the Building Building, the Lot and Lotthe Common Areas of the Park, installments and interest on assessments for public betterments or public improvements, expenses of any proceedings for abatement of taxes and assessments with respect to any Fiscal Year or fraction of a Fiscal Year, provided, however, that any tax refunds shall be applied to reduce Landlord's Operating Costs, ; premiums for insurance, insurance required to be maintained by Landlord pursuant to this Lease; compensation and all fringe benefits, workmen's ’s compensation, insurance premiums and payroll taxes paid by Landlord to, for or with respect to all persons engaged in the operating, maintaining, or cleaning of the Building and Lot, steam, ; water, sewer, electric, gas, telephonetelephone and the electricity to operate the base building heating, ventilating, air conditioning systems, elevators and parking lot lighting, and other utility charges not billed directly to tenants by Landlord or the utility, but not including utility companies (the cost to Landlord of for the electricity furnished consumed by the tenant for interior lighting, electrical facilitiesplugs, equipment, machinery, fixtures and appliances used by Tenant in Tenant's Space (other than Building heating, ventilating and supplemental air conditioning equipment) and fixtures shall be billed monthly to Tenant by Landlord as set forth in Paragraph VII IX of Exhibit "D", ); costs of building and cleaning supplies and equipment (including rental), ; cost of maintenance, cleaning and repairs, ; cost of snow plowing or removal, or both, and care of landscaping, ; payments to independent contractors under service contracts for cleaning, operating, managing (not to exceed five percent (5%) of collected gross rents of the Building)managing, maintaining and repairing the Building and Lot (which payments may be to affiliates of Landlord provided the same are at reasonable rates consistent with similar contracts with unaffiliated third parties); the type Building’s pro rata share of occupancy and the services rendered), the cost of providing amenities to operating, managing, maintaining and repairing the BuildingCommon Areas of the Park (such as, but not limited to, snow plowing, sanding, sand removal, lot sweeping, landscaping, common area and street lighting, and management); and all other reasonable and necessary expenses paid in connection with the operation, cleaning, maintenance, management and repair of the Building and Lot, or either, and properly chargeable against income, it being agreed that if Landlord installs a new or replacement capital item for the purpose of reducing Landlord's ’s Operating CostsCosts (including without limitation the replacement of an unrepairable items) or as required by governmental regulation or laws, the annual costs thereof as reasonably amortized by Landlord over the useful life in years of the capital item so installed in accordance with generally accepted accounting principlesGAAP, consistently applied, with legal interests interest (not to exceed the Prime Rate published in the Wall Street Journal plus two percent (2%) on the unamortized amountamounts, shall be included in Landlord's ’s Operating Costs. Landlord agrees that all of such services to be included in Landlord’s Operating Costs shall be obtained by Landlord at commercially reasonable, competitive market rates consistent with the operation and management of comparable “Class A” office buildings in the suburban Boston area. Notwithstanding anything to the contrary contained herein, in no event shall Landlord’s Operating Costs include (nor shall Tenant have any obligation to pay any Operating Cost Escalation on account of) the following:
(a) Costs, expenses and fees relating to solicitation of, advertising and promotion for and entering into leases and other occupancy arrangements for space in the Park, including but not limited to legal fees, space planners’ fees, real estate brokers’ leasing commissions and advertising expenses, entertaining expenses, dining expenses, any costs relating to tenant or vendor relation programs, including flowers, gifts, luncheons, parties and other social events, but excluding any life safety information programs.
(b) Costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Park (or any part thereof), costs of any disputes between Landlord and its employees, disputes of Landlord with building management, or outside fees paid in connection with disputes with other tenants or adjacent property owners.
(c) Costs of correcting defects in the Building or the Building equipment or replacing defective equipment solely to the extent such costs relate to items covered by warranties of manufacturers, suppliers or contractors or are otherwise borne by parties other than Landlord and for which Landlord receives reimbursement after having used good faith and diligent efforts to collect.
(d) Costs of installations paid by or constructed for specific tenants or other occupants.
(e) Interest, points, other finance charges and principal payments on mortgages, and other costs of indebtedness, if any.
(f) All amounts which are specifically charged to or otherwise paid by any other tenant or other occupant of the Building or the Park, or for items, benefits or services which Landlord provides selectively to one or more tenants (other than Tenant) without reimbursement.
(g) Any bad debt loss, rent loss or reserves for bad debts or rent loss, or any reserves of any kind.
(h) Amounts, if any, paid as ground rental by Landlord,
(i) Expenses related to third-party landlord-tenant disputes.
(j) All costs of a capital nature, except as those relating to reducing Landlord’s Operating Costs as aforesaid and capital expenditures required by government regulation or laws, enacted after the Term Commencement Date , the amount of such costs relating to any such legal requirement(s) to be amortized on a straight-line basis, with interest at the aforesaid rate (i.e. Prime Rate plus two percent per annum), over the asset’s useful life in accordance with GAAP.
(k) All repairs or replacements resulting from a breach of Landlord’s Work Guaranty (as defined in Section 3.7 hereof).
(l) 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 Building occupants, or for which Tenant is charged directly but which are provided to other Building occupants without direct charge.
(m) Expenses associated with the provision of HVAC services to other Building occupants during non Business Hours as set forth in Exhibit D. In case of services which are not rendered to all areas of the Building on a comparable basis or in case service consumption vanes among tenants in the Buildingbasis, the proportion allocable to the Premises shall be the same proportion which the Rentable Floor Area of Tenant's ’s Space bears to the total rentable floor area to which such service is so rendered, or to which such disproportionate service or use is rendered (such latter area to be determined in the same manner as the Total Rentable Floor Area of the Building), or shall be reallocated by Landlord on a reasonable basis taking into consideration such factors as usage of a particular tenant in the Park and/or such other pertinent factors as reasonably determined by Landlord. Notwithstanding anything contained herein Landlord covenants to enforce the contrary, preceding provision on all tenants in the Park. Tenant is not obligated shall be responsible to pay its Pro Rata Share share of Landlord's ’s Operating Costs which is included in Fixed Rent at such amount equal of the Operating Cost Escalation for the Building based upon the proportion that the Rentable Floor Area of Tenant’s Space (based on Phases leased) bears to the actual Landlord's Operating Costs for CY 2003 (approximately $7.25 per RSF, but Total Rentable Floor Area of the Building. Tenant shall only also be obligated responsible to pay its pro rata share of Park-related costs, which shall be allocated by Landlord in a commercially reasonable manner based upon the increase above following: upon the ratio of the rentable square footage of the Premises (based on Phases leased) to the aggregate square footage of all completed buildings in the Park (currently 250,428 rentable square feet), as such amount buildings are completed from time to time, and provided that evidence of completion (i.e Operating Cost Escalationi.e. a temporary certificate of occupancy for at least a phase) as herein providedis provided to Tenant, upon Tenant’s request.
Appears in 1 contract
