Tenant Verification. Landlord shall keep complete books and records in reasonable detail and copies of invoices regarding Operating Expenses for a period of two (2) years after the end of the year to which such books, records and invoices apply. In addition, Landlord shall furnish to Tenant tax bills evidencing payment and, on request, copies of applicable invoices. Tenant, its accountants or agents, shall have the right to inspect, at reasonable times and in a reasonable manner, such of Landlord’s books of account and records as pertain to and contain information concerning the Operating Expenses in order to verify the amounts thereof. If Tenant’s audit discloses an overpayment by Tenant of Operating Expenses, Landlord shall reimburse Tenant the amount of such overpayment within 30 days of such determination and if such overpayment is in excess of five percent (5%) of Operating Expenses for the year in question, then Landlord shall pay Tenant’s accounting fees reasonably incurred in auditing the Operating Expenses, even if Tenant’s auditor is paid on a contingency basis. If Tenant does not object to charges set forth in the Annual Rental Adjustment within one (1) year after receipt of the statement relating thereto, then Tenant shall be deemed to have approved all charges set forth therein and waived any rights to reimbursement relating thereto. In the event Landlord and Tenant cannot agree on the amount of an overpayment as set forth in the immediately preceding paragraph, either party may require that the dispute be resolved as follows in the event the amount in dispute is less than $15,000.00: Landlord and Tenant shall mutually select one (1) certified property manager certified by the Institute of Real Estate Management not related, employed, or otherwise engaged by either of the parties. If the parties are unable to agree on a certified property manager, the parties shall request the Presiding Judge of the Cuyahoga County Common Pleas to select the certified property manager. The certified property manager shall determine if there was an overpayment and the amount of such overpayment based on the facts presented by Landlord and Tenant. The cost of such arbitration shall be paid by the non-prevailing party. The Certified Property Manager’s decision shall be conclusive and binding on Landlord and Tenant.
Appears in 1 contract
Samples: Lease (Arhaus, Inc.)
Tenant Verification. Landlord shall keep complete books and records in reasonable detail and copies of invoices regarding Operating Expenses for a period of two (2) years after the end If Tenant does not agree with Landlord's determination of the year to which such booksOperating Expenses, records and invoices apply. In addition, Landlord shall furnish to then Tenant tax bills evidencing payment and, on request, copies of applicable invoices. Tenant, its accountants or agents, shall have the right to inspect, at reasonable times and in a reasonable manner, inspect such of Landlord’s 's books of account and records as pertain to and which contain information concerning the Operating Expenses in order to verify Expense information, if written notice of the amounts thereof. If Tenant’s audit discloses an overpayment by Tenant of Operating Expenses, Landlord shall reimburse Tenant the amount nature of such overpayment within 30 days of such determination and if such overpayment disagreement is in excess of five percent (5%) of Operating Expenses for the year in question, then given to Landlord shall pay Tenant’s accounting fees reasonably incurred in auditing the Operating Expenses, even if Tenant’s auditor is paid on a contingency basis. If Tenant does not object to charges set forth in the Annual Rental Adjustment within later than one (1) year after following receipt of the such statement relating theretoby Tenant. Upon receipt by Landlord of such notice from Tenant, then Tenant Landlord shall be deemed to have approved all charges set forth therein make such books and waived any rights to reimbursement relating thereto. In the event Landlord and Tenant cannot agree on the amount of an overpayment as set forth in the immediately preceding paragraph, either party may require that the dispute be resolved as follows in the event the amount in dispute is less than $15,000.00: Landlord and Tenant shall mutually select one (1) certified property manager certified by the Institute of Real Estate Management not related, employed, or otherwise engaged by either of the partiesrecords available for Tenant's inspection. If the parties are unable to agree resolve such disagreement by negotiation within thirty (30) days after Landlord makes such books and records available to Tenant, Tenant may, at Tenant's sole cost and expense, cause a qualified independent certified public accountant selected by Tenant from a Big Six accounting firm and reasonably acceptable to Landlord (to be paid on an hourly and not a certified property managercontingency fee basis) to audit Landlord's records with respect to the Operating Expenses. Such audit shall include but not be limited to costs and expenses relating to real estate taxes, insurance premiums and Building expenses. In the event the first audit within each five (5) year period of the Lease Term discloses (i) errors made during the prior calendar year which, when totaled, clearly indicate that the sum overcharged to and paid by Tenant, exceeds three percent (3%) of the Annual Rental Adjustment amount plus Landlord's Share of Operating Expenses (the "Total Fees"), the parties audit shall request be at the Presiding Judge expense of Landlord, not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or (ii) no errors or an error which equals or is less than three percent (3%) of the Cuyahoga County Common Pleas to select Total Fees, the certified property manager. The certified property manager audit shall determine if there was an overpayment and be at the amount expense of such overpayment based on the facts presented by Landlord and Tenant. The cost For each subsequent audit during each five (5) year period, where the audit discloses errors exceeding three percent (3%) of the Total Fees, Landlord shall pay for such arbitration audit and, if the audit discloses errors equal to or less than three percent (3%) of the Total Fees, Tenant shall be paid by pay the non-prevailing partycosts of the audit. The Certified Property Manager’s decision If Landlord spends more than twelve (12) hours to accommodate Tenant's right to audit hereunder, Tenant shall be conclusive and binding on also pay to Landlord and Tenant.as additional rent One
Appears in 1 contract
Samples: NHP Inc
Tenant Verification. Landlord shall keep complete books and records in reasonable detail and copies If Tenant does not agree with Landlord’s determination of invoices regarding Operating Expenses for a period of two (2) years after the end of the year to which such booksExpenses, records and invoices apply. In addition, Landlord shall furnish to Tenant tax bills evidencing payment and, on request, copies of applicable invoices. Tenant, its accountants or agents, shall have the right to inspect, at reasonable times and in a reasonable manner, inspect such of Landlord’s books of account and records as pertain to and contain information concerning the Operating Expenses in order Expenses. Such books and records shall be available to verify Tenant for inspection, upon prior reasonable written notice to Landlord, during the amounts thereofninety (90) day period following the delivery of Landlord’s statement to Tenant. Such inspection shall take place at Landlord’s office located at 0000 Xxxxx Xxxxxx, Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx. Such inspection of Landlord’s books and records shall be conducted only by Tenant or a qualified independent certified public accountant that is not being compensated for its services on a contingency fee basis. If as a result of any audit conducted by Tenant’s audit discloses an overpayment by Tenant of Operating Expenses, Landlord shall reimburse and Tenant mutually agree in writing (or Tenant obtains a final unappealable judgment of the amount effect) that any Landlord’s statement of such overpayment within 30 days of such determination and if such overpayment is in excess of actual Operating Expenses was five percent (5%) of or more higher than the actual Operating Expenses for the year in questionas determined by such audit, then Landlord shall pay agrees (in addition to refunding any overpayment by Tenant) to reimburse Tenant for the reasonable documented out-of-pocket costs paid by Tenant in connection with such audit. Tenant’s accounting fees reasonably incurred in auditing failure to exercise its rights hereunder within said ninety (90) day period shall be a waiver of its rights to inspect or contest the Operating Expensesmethod, even if Tenant’s auditor is paid on a contingency basis. If Tenant does not object to charges set forth in accuracy or amount of the Annual Rental Adjustment within one (1) year after receipt and such Annual Rental Adjustment shall be conclusively deemed to be approved and accepted by Tenant. Pending resolution of the statement relating theretoany dispute with respect to statements of Tenant’s Annual Rental Adjustment, then Tenant shall be deemed to have approved all charges set forth therein pay its Annual Rental Adjustment as shown on such statement, and waived any rights to reimbursement relating thereto. In the event Landlord and Tenant cannot agree on upon final determination of the amount of an Tenant’s Annual Rental Adjustment, Landlord shall promptly refund any overpayment as set forth in the immediately preceding paragraph, either party may require that the dispute be resolved as follows in the event the amount in dispute is less than $15,000.00: Landlord and to Tenant or Tenant shall mutually select one (1) certified property manager certified by the Institute of Real Estate Management not relatedpromptly pay any amount due to Landlord, employed, or otherwise engaged by either of the parties. If the parties are unable to agree on a certified property manager, the parties shall request the Presiding Judge of the Cuyahoga County Common Pleas to select the certified property manager. The certified property manager shall determine if there was an overpayment and the amount of such overpayment based on the facts presented by Landlord and Tenant. The cost of such arbitration shall be paid by the non-prevailing party. The Certified Property Manager’s decision shall be conclusive and binding on Landlord and Tenantas applicable.
Appears in 1 contract
Tenant Verification. Landlord shall keep complete books and records in reasonable detail and copies of invoices regarding Operating Expenses for a period of two (2) years after the end of the year to which such books, records and invoices apply. In addition, Landlord shall furnish to Tenant tax bills evidencing payment and, on request, copies of applicable invoices. Tenant, or its accountants or agents, designated certified public accountant shall have the right to inspect, at reasonable times and in a reasonable manner, during the one hundred eighty (180) day period following the delivery of Landlord's statement of the actual amount of the Annual Rental Adjustment, such of Landlord’s 's books of account and records as pertain to and contain information concerning the Operating Expenses such costs and expenses in order to verify the amounts thereof. If Tenant’s audit discloses an overpayment by Tenant 's failure to exercise its rights hereunder within said one hundred eighty (180) day period shall be deemed a waiver of Operating Expensesits right to inspect or contest the method, accuracy or amount of the Annual Rental Adjustment. In the event of any undisputed error, Landlord shall reimburse make a correcting payment in full to Tenant within thirty (30) days after the determination of the amount of such overpayment within 30 days error. In the event of such determination and if such overpayment is any errors on the part of Landlord which Landlord agrees were errors in excess of five percent (5%) of Operating Expenses Tenant's actual operating expense liability for the year in questionany calendar year, then Landlord shall pay Tenant’s accounting fees will also reimburse Tenant for all costs of an audit reasonably incurred in auditing by Tenant within the Operating Expenses, even if Tenant’s auditor is paid on a contingency basisabove thirty (30) day period. If within the period aforesaid, Tenant does not object to charges set forth in provides Landlord with its notice disputing the Annual Rental Adjustment within one (1) year after receipt correctness of the statement relating theretostatement, then and if such dispute shall have not been settled by agreement, Tenant shall be deemed to have approved all charges set forth therein and waived any rights to reimbursement relating thereto. In the event Landlord and Tenant cannot agree on the amount of an overpayment as set forth in the immediately preceding paragraph, either party may require that submit the dispute to a reputable firm of independent certified public accountants selected by Tenant and approved by Landlord, such approval shall not be resolved as follows in the event the amount in dispute is less than $15,000.00: Landlord and Tenant shall mutually select one (1) certified property manager certified by the Institute of Real Estate Management not relatedunreasonably withheld or delayed, employed, or otherwise engaged by either of the parties. If the parties are unable to agree on a certified property manager, the parties shall request the Presiding Judge of the Cuyahoga County Common Pleas to select the certified property manager. The certified property manager shall determine if there was an overpayment and the amount decision of such overpayment based on the facts presented by Landlord and Tenant. The cost of such arbitration shall be paid by the non-prevailing party. The Certified Property Manager’s decision accountants shall be conclusive and binding on upon the parties. If such accountant decides that there was an error, Landlord will make correcting payment. The fees and Tenantexpenses involved in such decision shall be borne by the unsuccessful party.
Appears in 1 contract
Tenant Verification. Landlord shall keep complete books and records in reasonable detail and copies of invoices regarding Operating Expenses for a period of two (2) years after the end of the year to which such books, records and invoices apply. In addition, Landlord shall furnish to Tenant tax bills evidencing payment and, on request, copies of applicable invoices. Tenant, its accountants or agents, shall have the right to inspect, at reasonable times and in a reasonable manner, such of Landlord’s books of account and records as pertain to and contain information concerning the Operating Expenses in order to verify the amounts thereof. If Tenant’s audit discloses an overpayment by Tenant of Operating Expenses, Landlord shall reimburse Tenant the amount of such overpayment within 30 days of such determination and if such overpayment is in excess of five percent (5%) of Operating Expenses for the year in question, then Landlord shall pay Tenant’s accounting fees reasonably incurred in auditing the Operating Expenses, even if Tenant’s auditor is paid on a contingency basis. If Tenant does not object to charges set forth in the Annual Rental Adjustment within one (1) year after receipt of the statement relating thereto, then Tenant shall be deemed to have approved all charges set forth therein and waived any rights to reimbursement relating thereto. In the event Landlord and Tenant cannot agree on the amount of an overpayment as set forth in the immediately preceding paragraph, either party may require that the dispute be resolved as follows in the event the amount in dispute is less than $15,000.00: Landlord and Tenant shall mutually select one (1) certified property manager certified by the Institute of Real Estate Management not related, employed, or otherwise engaged by either of the parties. If the parties are unable to agree on a certified property manager, the parties shall request the Presiding Judge of the Cuyahoga Catawba County Superior Court, North Carolina Common Pleas to select the certified property manager and if such judge is unwilling to do so, each party shall select a licensed North Carolina commercial real estate agent who shall together select a North Carolina certified commercial property manager. The certified property manager shall determine if there was an overpayment and the amount of such overpayment based on the facts presented by Landlord and Tenant. The cost of such arbitration shall be paid by the non-prevailing party. The Certified Property Managercertified property manager’s decision shall be conclusive and binding on Landlord and Tenant.
Appears in 1 contract
Samples: Lease (Arhaus, Inc.)
Tenant Verification. Landlord shall keep complete books and records in reasonable detail and copies of invoices regarding Operating Expenses for a period of two (2) years after the end of the year to which such books, records and invoices apply. In addition, Landlord shall furnish to Tenant tax bills evidencing payment and, on request, copies of applicable invoices. Tenant, or its accountants or agents, shall have the right to inspect, at reasonable times and in a reasonable manner, during the ninety (90) day period following the delivery of Landlord’s statement of the actual amount of the Annual Rental Adjustment, such of Landlord’s books of account and records as pertain to and contain information concerning the Operating Expenses such costs and expenses in order to verify the amounts thereof. If Tenant, provided that in no event shall Tenant be entitled to retain in connection with its inspection of Landlord’s audit discloses an overpayment by Tenant books of Operating Expenses, Landlord shall reimburse Tenant the amount account and records any person or firm reviewing such books of such overpayment within 30 days of such determination accounts and if such overpayment is in excess of five percent (5%) of Operating Expenses for the year in question, then Landlord shall pay Tenant’s accounting fees reasonably incurred in auditing the Operating Expenses, even if Tenant’s auditor is paid records on a contingency basis, and provided further that Landlord, at Landlord’s sole discretion, may provide an audit prepared by an independent certified public accountant reasonably acceptable to Tenant, in lieu of allowing Tenant to inspect Landlord’s books of account and records. Tenant agrees that any information obtained during its inspection of Landlord’s books of account and records and any audit of such records delivered by Landlord to Tenant shall be kept in strict confidence by Tenant and its agents and employees and shall not be disclosed to any other parties. Unless Tenant shall take written exception of any item and any such statement within such ninety (90) day period, such statement shall considered final and accepted by Tenant. If Tenant does not object takes written exception of any item within any statement within such ninety (90) day period, the parties shall endeavor to charges set forth in agree promptly and reasonably upon any appropriate adjustment to the Annual Rental Adjustment within one taking into account Tenant’s findings. If, as of sixty (160) year days after receipt of Tenant has submitted its findings to Landlord, the statement relating theretoparties have not agreed on the appropriate adjustment to the Annual Rental Adjustment, then Tenant the parties shall be deemed to have approved all charges set forth therein and waived any rights to reimbursement relating theretoengage a mutually agreeable independent third party accountant with at least ten (10) years’ experience in commercial real estate accounting in the Hampton, New Jersey area (the “Accountant”). In If the event Landlord and Tenant parties cannot agree on the amount Accountant, each shall within ten (10) days after such impasse appoint an Accountant and, within ten (10) days after the appointment of an overpayment as set forth in the immediately preceding paragraphboth such Accountants, those two Accountants shall select a third. If either party may require that fails to timely appoint an Accountant, then the dispute Accountant the other party appoints shall be resolved as follows in the event sole Accountant. Within ten (10) days after appointment of the amount in dispute is less than $15,000.00: Accountant(s), Landlord and Tenant shall mutually each simultaneously give the Accountants (with a copy to the other party) its determination of the applicable Annual Rental Adjustment, with such supporting data or information as each submitting party determines appropriate. Within ten (10) days after such submissions, the Accountants shall by majority vote select one either Landlord’s or Tenant’s determination of the Annual Rental Adjustment. The determination of the Accountant (1s) certified property manager certified by the Institute of Real Estate Management not related, employed, or otherwise engaged by either of shall bind the parties. If the parties are unable agree or the Accountant (s) determine that the Annual Rental Adjustment actually paid by Tenant for the calendar year in question exceeded Tenant’s obligations for such calendar year, then Landlord shall, at Tenant’s option, either (a) credit the excess to agree on a certified property managerthe next succeeding installments of estimated Additional Rent or (b) pay the excess to Tenant within thirty (30) days after delivery of such results provided that, if the Lease term has expired, Landlord shall pay the excess to Tenant within thirty (30) days. If the parties shall request agree or the Presiding Judge Accountant (s) determine that Tenant’s payments of the Cuyahoga County Common Pleas Annual Rental Adjustment for such calendar year were less than Tenant’s actual obligation for the calendar year, then Tenant shall pay the deficiency to select the certified property manager. The certified property manager shall determine if there was an overpayment and the amount Landlord within thirty (30) days after delivery of such overpayment based on results. Each party shall pay the facts presented by Landlord costs of its own hired Accountant and Tenant. The will split evenly the cost of the third Accountant, if applicable. Additionally, if the parties agree or the Accountant(s) determine that the Annual Rental Adjustment actually paid for the calendar year in question exceeded Tenant’s obligations for such arbitration calendar year by more than 5%, then Landlord shall be paid reimburse Tenant for the reasonable third party out-of- pocket expenses incurred by the non-prevailing party. The Certified Property Manager’s decision shall be conclusive and binding on Landlord and TenantTenant in connection with such audit.
Appears in 1 contract
Samples: Lease (Ikaria, Inc.)
Tenant Verification. Landlord shall keep complete books and records in reasonable detail and copies of invoices regarding Operating Expenses for a period of two (2) years after the end of the year to which such books, records and invoices apply. In addition, Landlord shall furnish to Tenant tax bills evidencing payment and, on request, copies of applicable invoices. Tenant, its accountants or agents, shall have the right to inspect, upon reasonable notice, at reasonable times and in a reasonable manner, during the ninety (90) day period following the delivery of Landlord's Year End Statement, such of Landlord’s 's books of account and records as pertain to and contain information concerning the Operating Expenses Common Area Charges for such year in order to verify the amounts thereofthereof (herein referred to as a "Tenant Audit"). The Tenant acknowledges and agrees that the calculation of the amounts due on the Year End Statement require a certain threshold level of financial competence and, consequently, if Tenant elects to engage a third party to conduct a Tenant Audit, that third party shall be an independent certified public accountant. If the Tenant Audit is conducted by such an independent certified public accountant, and the fee arrangement between Tenant and such independent certified public accountant is a contingency or similar fee arrangement pursuant to which the Tenant’s audit discloses an overpayment by Tenant 's independent certified public accountant is paid a fee as a percentage of Operating Expenses, Landlord shall reimburse Tenant the amount of such overpayment within 30 days any reduction that it obtains in the calculation of the amount due from Tenant on account of such determination Common Area Charges (herein a "Contingency Fee"), then the Tenant shall be obligated to pay a fee to the Landlord in an amount equivalent to the greater of either (i) the amount of all reasonable costs and expenses paid or incurred by Landlord in connection with any such Tenant Audit, including, without limitation, an amount calculated by Landlord to reimburse Landlord, on an hourly basis, for the costs associated with utilizing its own internal accountants and/or property management personnel to facilitate the completion of such a Tenant Audit (the "Landlord's Overhead Fee"), or (ii) the amount of the Contingency Fee, in either case, to reimburse Landlord for the time and expense associated with responding and furnishing information for such Tenant Audit. If such independent certified public accountant is not to be compensated by Tenant with a Contingency Fee, the Tenant shall, nonetheless, be obligated to pay to Landlord the Landlord's Overhead Fee in connection with any such Tenant Audit. The amounts due from Tenant to Landlord on account of the Landlord's Overhead Fee or on account of any such Contingency Fee shall not be due if the results of any such overpayment is Tenant Audit or any Final Determination, as specified below, result in excess of a credit due to the Tenant in an amount equal to five percent (5%) of Operating Expenses the aggregate amount of such Common Area Charges, or more, for the year in question. If Tenant or any such independent certified public accountant fails to specifically identify any errors or omissions in the Year End Statement within such ninety (90) day period, the amounts due to Landlord or to be credited to Tenant, as reflected on the Year End Statement, shall be conclusively due in the manner set forth in such Year End Statement. Upon completion of any such Tenant Audit, the Tenant shall furnish a complete copy thereof to Landlord. Upon receipt of any such Tenant Audit, if the Landlord agrees with the results of such Tenant Audit, the Landlord shall revise its Year End Statement accordingly. Alternatively, if the Landlord disagrees with the results of the Tenant Audit, the Landlord shall submit its Year End Statement and supporting information, together with a copy of the Tenant Audit to an independent certified public accountant (the "Accountant") to make a final and conclusive determination as to the actual amount due from Tenant on account of such Common Area Charges hereunder (herein a "Final Determination"). If and to the extent that the actual amount of Common Area Charges due from the Tenant, as determined by such Accountant, is five percent (5%) less then the amounts indicated to be due from Tenant on the Landlord's Year End Statement, the Landlord shall pay Tenant’s accounting fees reasonably incurred in auditing for the Operating Expensescosts and expenses associated with obtaining the Final Determination. In all other cases, even if Tenant’s auditor is paid on a contingency basis. If Tenant does not object to charges set forth in the Annual Rental Adjustment within one (1) year after receipt of the statement relating thereto, then Tenant shall be deemed to have approved all charges set forth therein and waived any rights to reimbursement relating thereto. In responsible for the event Landlord and Tenant cannot agree on the amount of an overpayment as set forth in the immediately preceding paragraph, either party may require that the dispute be resolved as follows in the event the amount in dispute is less than $15,000.00: Landlord and Tenant shall mutually select one (1) certified property manager certified by the Institute of Real Estate Management not related, employed, or otherwise engaged by either of the parties. If the parties are unable to agree on a certified property manager, the parties shall request the Presiding Judge of the Cuyahoga County Common Pleas to select the certified property manager. The certified property manager shall determine if there was an overpayment and the amount of such overpayment based on the facts presented by Landlord and Tenant. The cost of such arbitration obtaining the Final Determination, which amounts shall constitute Additional Rent hereunder and which amounts shall be paid by the non-prevailing party. The Certified Property Manager’s decision shall be conclusive immediately due and binding on Landlord and Tenantpayable.
Appears in 1 contract
Samples: Lease Agreement (Pets Com Inc)
