Common use of Tenant’s Share of Operating Costs and Taxes Clause in Contracts

Tenant’s Share of Operating Costs and Taxes. (a) Commencing on the Rent Commencement Date, Tenant shall pay to Landlord the Tenant’s Share of Operating Costs, as hereinafter defined, plus sales tax. The amount of Operating Costs payable to Landlord may be reasonably estimated by Landlord for such period as Landlord determines from time to time (not to exceed twelve (12) months), and Tenant agrees to pay to Landlord the amounts so estimated in equal installments, in advance, on the first day of each month during such period. Notwithstanding the foregoing, when bills for all or any portion of Operating Costs so estimated are actually received by Landlord, Landlord may xxxx Tenant for Tenant’s Share thereof, less any amount previously paid by Tenant to Landlord on account of such item(s) by way of estimated Operating Costs payments. (b) Within one hundred eighty (180) days after the end of the period for which estimated payments have been made, Landlord shall submit to Tenant a reasonably detailed statement from Landlord setting forth the actual amounts payable by Tenant based on actual costs. If the amount Tenant has paid based on estimates is less than the amount due based on actual costs, Tenant shall pay such deficiency within ten (10) business days after submission of such statement. If the amount paid by Tenant is greater than the amount actually due, the excess may be retained by Landlord to be credited and applied by Landlord to the next due installments of Tenant’s Share of Operating Costs, or as to the final Lease Year, provided Tenant is not in default, Landlord will refund such excess to Tenant. Tenant’s Share of actual Operating Costs for the final estimate period of the Term of this Lease shall be due and payable even though it may not be finally calculated until after the expiration of the Term. (c) For purposes of this Lease, Tenant’s Share shall be calculated as set forth in Exhibit “D” attached hereto. (d) The term “Operating Costs” shall mean any amounts paid or payable whether by Landlord or by others on behalf of Landlord, arising out of Landlord’s maintenance and repair of the Garage and the common areas of the Project and the Real Property Taxes allocated to the Leased Premises, including, without limitation, (i) the cost of insurance which Landlord is obligated or permitted to obtain under this Lease and any deductible amount applicable to any claim made by Landlord under such insurance; (ii) the cost of security, janitorial, landscaping, garbage removal, and trash removal services; (iii) the cost of fuel, water, electricity, telephone, sewer, sprinkler and any other utilities used in the maintenance, operation, or administration of the Leased Premises and common areas; and (iv) a reasonable management fee. The pass-through of Real Property Taxes may be charged as a separate pass-through item from the other Operating Costs, which Real Property Taxes shall otherwise be billed to Tenant in the same manner as the pass-through of Operating Costs as provided herein. If Tenant or an affiliate causes the Leased Premises to be centrally assessed for tax purposes by the State of Florida in connection with Tenant’s or its affiliate’s railroad operations, causing Landlord’s tax xxxx for Real Property Taxes to exclude the Leased Premises, then there shall be no pass-through of Real Property Taxes to Tenant under this Lease, and Tenant shall pay Real Property Taxes in accordance with such central assessment.

Tenant’s Share of Operating Costs and Taxes. A. For each Operating Year, Tenant shall pay to Landlord, in the manner provided herein, Tenant's share of Operating Costs and Taxes ("Tenant's Share of Operating Costs and Taxes"), which shall be equal to the sum of (i) the product obtained by multiplying Tenant's Operating Costs Share times the amount, if any, by which Operating Costs for such Operating Year exceed the Base Operating Costs, and (ii) the product obtained by multiplying Tenant's Tax Share times the amount, if any, by which Taxes for such Operating Year exceed the Base Taxes; provided, however, that for the Operating Years during which the Term begins and ends, Tenant's Share of Operating Costs and Taxes shall be prorated based upon the actual number of days Tenant occupied, or could have occupied, the Leased Premises during each such Operating Year. B. Tenant's Share of Operating Costs and Taxes shall be paid, in advance, without notice, demand, abatement (except as otherwise specifically provided in this Lease), deduction or set-off, on the first day of each calendar month during the Term, said monthly amounts to be determined on the basis of estimates prepared by Landlord on an annual basis and delivered to Tenant prior to the commencement of each Operating Year. If, however, Landlord fails to furnish any such estimate prior to the commencement of an Operating Year, then (a) Commencing until the first day of the month following the month in which such estimate is furnished to Tenant, Tenant shall pay to Landlord on the Rent Commencement Datefirst day of each month an amount equal to the monthly sum payable by Tenant to Landlord under this Section 6.03 in respect of the last month of the preceding Operating Year; (b) promptly after such estimate is furnished to Tenant, Landlord shall give notice to Tenant whether the installments of Tenant's Share of Operating Costs and Taxes paid by Tenant for the current Operating Year have resulted in a deficiency or overpayment compared to payments which would have been paid under such estimate, and Tenant, within ten (10) days after receipt of such estimate, shall pay any deficiency to Landlord and any overpayment shall, at Tenant's option, be credited against future payments required by Tenant under such estimate or refunded to Tenant promptly; and (c) on the first day of the month following the month in which such estimate is furnished to Tenant and monthly thereafter throughout the remainder of the Operating Year, Tenant shall pay to Landlord the Tenant’s Share of Operating Costs, as hereinafter defined, plus sales taxmonthly payment shown on such estimate. The amount of Operating Costs payable to Landlord may be reasonably estimated by Landlord for such period as Landlord determines at any time or from time to time (not furnish to exceed twelve (12) months), and Tenant agrees to pay to Landlord the amounts so estimated in equal installments, in advance, on the first day a revised estimate of each month during such period. Notwithstanding the foregoing, when bills for all or any portion Tenant's Share of Operating Costs so estimated are actually received by Landlordand Taxes for such Operating Year, Landlord and in such case, Tenant's monthly payments shall be adjusted and paid or credited, as the case may xxxx Tenant for Tenant’s Share thereof, less any amount previously paid by Tenant to Landlord on account be substantially in the same manner as provided in the preceding sentence. After the expiration of such item(s) by way of estimated each Operating Costs payments. (b) Within one hundred eighty (180) days after the end of the period for which estimated payments have been madeYear, Landlord shall submit to Tenant a reasonably detailed statement from showing the determination of Tenant's Share of Operating Costs and Taxes (the "Operating Costs Statement"). If such statement shows that the total of Tenant's monthly payments pursuant to this Section 6.03 exceed Tenant's Share of Operating Costs and Taxes, then Landlord setting will refund such overpayment with the notice; provided, however, that no such refund shall be made while Tenant remains in default of any non-monetary provision of this Lease (beyond any applicable notice and cure period expressly set forth herein) or is in default of any monetary provision of this Lease. If such Operating Costs Statement shows that Tenant's Share of Operating Costs and Taxes exceeded the actual amounts payable aggregate of Tenant's monthly payments pursuant to this Section 6.03 for the applicable Operating Year, then Tenant shall, within thirty (30) days after receiving the statement, pay such deficiency to Landlord. Each Operating Costs Statement provided by Landlord shall be conclusive and binding upon Tenant unless within one hundred twenty (120) days after receipt thereof, Tenant notifies Landlord that it disputes the correctness thereof. If Tenant believes that any Operating Costs Statement includes charges that are not permitted pursuant to this Section 6.03 or contains an error in calculation or otherwise, then Tenant shall be entitled to the following audit right. Such audit right shall be exercisable by Tenant based on actual costsproviding Landlord, within one hundred twenty (120) days of receipt of such Operating Costs Statement, notice of such objection, notice of its exercise of such audit right. If within sixty (60) days after Landlord's receipt of Tenant's written notice and statement, Landlord and Tenant are unable to resolve Tenant's objections, then not later than fifteen (15) days after the amount expiration of such sixty (60)-day period Tenant has paid based on estimates is shall notify Landlord that it wishes to employ an independent certified public accounting firm reasonably acceptable to Landlord to inspect and audit Landlord's books and records relating to the Operating Costs Statement. If Tenant elects to employ such accountant as set forth above, then Tenant shall deliver to Landlord a confidentiality and nondisclosure agreement satisfactory to Landlord executed by such accountant, and provide Landlord not less than thirty (30) days notice of the amount due based date on actual costswhich the accountant desires to examine Landlord's books and records during regular business hours; provided, however, that such date shall be between thirty (30) and ninety (90) days after Tenant delivers to Landlord such notice (but in no event between January 1 and April 1 of any year). The firm or person engaged by Tenant to conduct such audit cannot be compensated on a "contingency" or "success fee" basis. Such audit shall be limited to a determination of whether Landlord calculated the Operating Costs Statement in accordance with the terms and conditions of this Lease. All costs and expenses of any such audit shall be paid by Tenant. Any audit performed pursuant to the terms of this section shall be conducted only by an independent certified public accounting firm reasonably acceptable to Landlord. Notwithstanding anything contained herein to the contrary, Tenant shall pay be entitled to exercise its right to audit pursuant to this Section 6.03 only in strict accordance with the foregoing procedures and each such deficiency audit shall relate only to the most recent calendar year covered by the audited Operating Costs Statement and the Base Year (provided that such audit of the Base Year is conducted only once and is conducted within ten three (103) business days after submission years of the end of such statementBase Year). If on account of any errors in the Operating Costs Statement under audit, Tenant is entitled to a refund or credit of the amount paid by Tenant is greater than the amount actually due, the excess may be retained by Landlord to be credited and applied by Landlord to the next due installments of for Tenant’s 's Share of Operating CostsCosts and Taxes for the Operating Year under audit because such Expense Statement overstated the amounts to which Landlord was entitled hereunder, or as to the final Lease Year, provided Tenant is not in default, then Landlord will shall refund such excess amount to Tenant. Tenant’s Share of actual Tenant promptly after becoming aware thereof, and if such Operating Costs for Statement overstated the final estimate period amounts to which Landlord was entitled hereunder by more than four percent (4%) of the Term of this Lease shall be due and payable even though it may not be finally calculated until after the expiration of the Term. (c) For purposes of this Lease, Tenant’s Share shall be calculated as set forth in Exhibit “D” attached hereto. (d) The term “Operating Costs” shall mean any amounts paid or payable whether by Landlord or by others on behalf of Landlord, arising out of Landlord’s maintenance and repair of the Garage and the common areas of the Project and the Real Property Taxes allocated to the Leased Premises, including, without limitation, (i) the cost of insurance which Landlord is obligated or permitted to obtain under this Lease and any deductible amount applicable to any claim made by Landlord under such insurance; (ii) the cost of security, janitorial, landscaping, garbage removal, and trash removal services; (iii) the cost of fuel, water, electricity, telephone, sewer, sprinkler and any other utilities used in the maintenance, operation, or administration of the Leased Premises and common areas; and (iv) a reasonable management fee. The pass-through of Real Property Taxes may be charged as a separate pass-through item from the other Operating Costs, which Real Property Taxes shall otherwise be billed to Tenant in the same manner as the pass-through of Operating Costs as provided herein. If and Taxes for the applicable Operating Year, then Landlord shall also promptly reimburse Tenant or an affiliate causes for the Leased Premises to be centrally assessed for tax purposes by the State of Florida reasonable costs and expenses incurred in any audit conducted in connection with Tenant’s or its affiliate’s railroad operationssuch Operating Costs Statement, causing Landlord’s tax xxxx but in no event more than Six Thousand Dollars ($6,000.00) for Real Property Taxes to exclude the Leased Premises, then there shall be no pass-through of Real Property Taxes to Tenant under this Lease, and Tenant shall pay Real Property Taxes in accordance with such central assessmentaudit.

Tenant’s Share of Operating Costs and Taxes. A. For the Operating Year commencing January 1, 2008 and each Operating Year thereafter, Tenant shall pay to Landlord, in the manner provided herein, Tenant’s share of increases in Operating Costs and Taxes (“Tenant’s Share of Operating Costs and Taxes”), which shall be equal to the sum of (i) the product obtained by multiplying Tenant’s Operating Costs Share times the amount, if any, by which Operating Costs for such Operating Year exceed the Base Operating Costs, and (ii) the product obtained by multiplying Tenant’s Tax Share times the amount, if any, by which Taxes for such Operating Year exceed the Base Taxes; provided, however, that for the Operating Years during which the Term begins and ends, Tenant’s Share of Operating Costs and Taxes shall be prorated based upon the actual number of days Tenant occupied, or could have occupied, the Leased Premises during each such Operating Year. If for any Operating Year after the Base Year the management fee percentage (i.e., the percentage applied to Landlord’s gross receipts for purposes of calculating the management fee) used for determining the management fee for such Operating Year is greater than the management fee percentage used in the Base Year, then for purposes of determining Tenant’s Share of Operating Costs and Taxes for such Operating Year, the management fee for the Base Year shall be recalculated based upon the management fee percentage used in such Operating Year. In addition if for any Operating Year after the Base Year the management fee percentage used for determining the management fee for such Operating Year is less than the management fee percentage used in any prior Operating Year or the Base Year, then for purposes of determining Tenant’s Share of Operating Costs and Taxes for such Operating Year, the management fee for the Base Year shall be recalculated based upon the management fee percentage used in such Operating Year, it being understood that for purposes of determining Tenant’s Share of Operating Costs and Taxes for any Operating Year, the management fee for the Base Year shall be calculated based upon the management fee percentage used in such Operating Year. Tenant’s Share of Operating Costs and Taxes shall be abated for the period from January 1, 2008 until March 31, 2008. B. Tenant’s Share of Operating Costs and Taxes shall be paid, in advance, without notice, demand, abatement (except as otherwise specifically provided in this Lease), deduction or set-off, on the first day of each calendar month during the Term, said monthly amounts to be determined on the basis of estimates prepared by Landlord on an annual basis and delivered to Tenant prior to the commencement of each Operating Year. If, however, Landlord fails to furnish any such estimate prior to the commencement of an Operating Year, then (a) Commencing until the first day of the month following the month in which such estimate is furnished to Tenant, Tenant shall pay to Landlord on the Rent Commencement Datefirst day of each month an amount equal to the monthly sum payable by Tenant to Landlord under this Section 6.03 in respect of the last month of the preceding Operating Year; (b) promptly after such estimate is furnished to Tenant, Landlord shall give notice to Tenant whether the installments of Tenant’s Share of Operating Costs and Taxes paid by Tenant for the current Operating Year have resulted in a deficiency or overpayment compared to payments which would have been paid under such estimate, and Tenant, within thirty (30) days after receipt of such estimate, shall pay any deficiency to Landlord and any overpayment shall, at Tenant’s option, be credited against future payments required by Tenant under such estimate or refunded to Tenant promptly; and (c) on the first day of the month following the month in which such estimate is furnished to Tenant and monthly thereafter throughout the remainder of the Operating Year, Tenant shall pay to Landlord the monthly payment shown on such estimate. Landlord may at any time or from time to time furnish to Tenant a revised estimate of Tenant’s Share of Operating CostsCosts and Taxes for such Operating Year, and in such case, Tenant’s monthly payments shall be adjusted and paid or credited, as hereinafter defined, plus sales tax. The amount of Operating Costs payable to Landlord the case may be reasonably estimated by Landlord for such period substantially in the same manner as Landlord determines from time to time (not to exceed twelve (12) months), and Tenant agrees to pay to Landlord provided in the amounts so estimated in equal installments, in advance, on preceding sentence. After the first day expiration of each month during such period. Notwithstanding the foregoing, when bills for all or any portion of Operating Costs so estimated are actually received by Landlord, Landlord may xxxx Tenant for Tenant’s Share thereof, less any amount previously paid by Tenant to Landlord on account of such item(s) by way of estimated Operating Costs payments. (b) Within one hundred eighty (180) days after the end of the period for which estimated payments have been madeYear, Landlord shall submit to Tenant a reasonably detailed statement from Landlord setting forth showing the actual amounts payable by Tenant based on actual costs. If the amount Tenant has paid based on estimates is less than the amount due based on actual costs, Tenant shall pay such deficiency within ten (10) business days after submission of such statement. If the amount paid by Tenant is greater than the amount actually due, the excess may be retained by Landlord to be credited and applied by Landlord to the next due installments determination of Tenant’s Share of Operating CostsCosts and Taxes (the “Operating Costs Statement”). If such statement shows that the total of Tenant’s monthly payments pursuant to this Section 6.03 exceed Tenant’s Share of Operating Costs and Taxes, or as to the final Lease Year, provided Tenant is not in default, then Landlord will refund such excess to Tenantoverpayment with the notice; provided, however, that no such refund shall be made while Tenant remains in default of any non-monetary provision of this Lease (beyond any applicable notice and cure period expressly set forth herein) or is in default of any monetary provision of this Lease. If such Operating Costs Statement shows that Tenant’s Share of actual Operating Costs and Taxes exceeded the aggregate of Tenant’s monthly payments pursuant to this Section 6.03 for the final estimate period of applicable Operating Year, then Tenant shall, within thirty (30) days after receiving the Term of this Lease statement, pay such deficiency to Landlord. Each Operating Costs Statement provided by Landlord shall be due conclusive and payable even though binding upon Tenant unless within one hundred twenty (120) days after receipt thereof, Tenant notifies Landlord that it may disputes the correctness thereof. If Tenant believes that any Operating Costs Statement includes charges that are not permitted pursuant to this Section 6.03 or contains an error in calculation or otherwise, then Tenant shall be finally calculated until entitled to the following audit right. Such audit right shall be exercisable by Tenant providing Landlord, within one hundred twenty (120) days of receipt of such Operating Costs Statement, notice of such objection, notice of its exercise of such audit right. If within sixty (60) days after Landlord’s receipt of Tenant’s written notice and statement, Landlord and Tenant are unable to resolve Tenant’s objections, then not later than fifteen (15) days after the expiration of such sixty (60)-day period Tenant shall notify Landlord that it wishes to employ an independent certified public accounting firm reasonably acceptable to Landlord to inspect and audit Landlord’s books and records relating to the Term. Operating Costs Statement. If Tenant elects to employ such accountant as set forth above, then Tenant shall deliver to Landlord a confidentiality and nondisclosure agreement satisfactory to Landlord executed by such accountant, and provide Landlord not less than thirty (c30) For purposes days notice of the date on which the accountant desires to examine Landlord’s books and records during regular business hours; provided, however, that such date shall be between thirty (30) and ninety (90) days after Tenant delivers to Landlord such notice (but in no event between January 1 and April 1 of any year (“Blackout Dates”); provided that if all or a part of such 60 day period (i.e., the period between 30 and 90 days after Tenant delivers to Landlord such notice) falls between the Blackout Dates of any year, then starting on April 2 of such year and continuing for such number of the 60 days falling between such Blackout Dates, Tenant shall be entitled to conduct such examination of Landlord’s books and records in accordance with the terms hereof. The firm or person engaged by Tenant to conduct such audit cannot be compensated on a “contingency” or “success fee” basis. Such audit shall be limited to a determination of whether Landlord calculated the Operating Costs Statement in accordance with the terms and conditions of this Lease. All costs and expenses of any such audit shall be paid by Tenant. Any audit performed pursuant to the terms of this section shall be conducted only by an independent certified public accounting firm reasonably acceptable to Landlord. Notwithstanding anything contained herein to the contrary, Tenant shall be entitled to exercise its right to audit pursuant to this Section 6.03 only in strict accordance with the foregoing procedures and each such audit shall relate only to the most recent calendar year covered by the audited Operating Costs Statement and the Base Year (provided that such audit of the Base Year is conducted only once and is conducted within three (3) years of the end of such Base Year). If on account of any errors in the Operating Costs Statement under audit, Tenant is entitled to a refund or credit of the amount paid by Tenant for Tenant’s Share shall be calculated as set forth in Exhibit “D” attached hereto. (d) The term “Operating Costs” shall mean any amounts paid or payable whether by Landlord or by others on behalf of Landlord, arising out of Landlord’s maintenance and repair of the Garage and the common areas of the Project and the Real Property Taxes allocated to the Leased Premises, including, without limitation, (i) the cost of insurance which Landlord is obligated or permitted to obtain under this Lease and any deductible amount applicable to any claim made by Landlord under such insurance; (ii) the cost of security, janitorial, landscaping, garbage removal, and trash removal services; (iii) the cost of fuel, water, electricity, telephone, sewer, sprinkler and any other utilities used in the maintenance, operation, or administration of the Leased Premises and common areas; and (iv) a reasonable management fee. The pass-through of Real Property Taxes may be charged as a separate pass-through item from the other Operating Costs, which Real Property Taxes shall otherwise be billed to Tenant in the same manner as the pass-through of Operating Costs as provided herein. If and Taxes for the Operating Year under audit because such Expense Statement overstated the amounts to which Landlord was entitled hereunder, then Landlord shall refund such amount to Tenant or an affiliate causes promptly after becoming aware thereof, and if such Operating Costs Statement overstated the Leased Premises amounts to be centrally assessed which Landlord was entitled hereunder by more than four percent (4%) of the amount of Operating Costs and Taxes for tax purposes by the State of Florida applicable Operating Year, then Landlord shall also promptly reimburse Tenant for the reasonable costs and expenses incurred in any audit conducted in connection with Tenant’s or its affiliate’s railroad operationssuch Operating Costs Statement, causing Landlord’s tax xxxx but in no event more than Ten Thousand Dollars ($10,000.00) (“Audit Fee Cap”) for Real Property Taxes to exclude the Leased Premisessuch audit, then there which Audit Fee Cap shall be no pass-through increased on the first day of Real Property Taxes to Tenant under this Lease, and Tenant shall pay Real Property Taxes each Operating Year by 3% of the Audit Fee Cap in accordance with such central assessmenteffect for the prior Operating Year.

Tenant’s Share of Operating Costs and Taxes. (a) Commencing on the Rent Commencement Date, Tenant shall pay to Landlord the Tenant’s Share of Operating Costs, as hereinafter defined, plus sales tax. The amount of Operating Costs payable to Landlord may be reasonably estimated by Landlord for such period as Landlord determines from time to time (not to exceed twelve (12) months), and Tenant agrees to pay to Landlord the amounts so estimated in equal installments, in advance, on the first day of each month during such period. Notwithstanding the foregoing, when bills for all or any portion of Operating Costs so estimated are actually received by Landlord, Landlord may xxxx bxxx Tenant for Tenant’s Share thereof, less any amount previously paid by Tenant to Landlord on account of such item(s) by way of estimated Operating Costs payments. (b) Within one hundred eighty (180) days after the end of the period for which estimated payments have been made, Landlord shall submit to Tenant a reasonably detailed statement from Landlord setting forth the actual amounts payable by Tenant based on actual costs. If the amount Tenant has paid based on estimates is less than the amount due based on actual costs, Tenant shall pay such deficiency within ten (10) business days after submission of such statement. If the amount paid by Tenant is greater than the amount actually due, the excess may be retained by Landlord to be credited and applied by Landlord to the next due installments of Tenant’s Share of Operating Costs, or as to the final Lease Year, provided Tenant is not in default, Landlord will refund such excess to Tenant. Tenant’s Share of actual Operating Costs for the final estimate period of the Term of this Lease shall be due and payable even though it may not be finally calculated until after the expiration of the Term. (c) For purposes of this Lease, Tenant’s Share shall be calculated as set forth in Exhibit “DC” attached hereto. (d) The term “Operating Costs” shall mean any amounts paid or payable whether by Landlord or by others on behalf of Landlord, arising out of Landlord’s maintenance and repair of the Garage and the common areas of the Project and the Real Property Taxes allocated to the Leased Premises, including, without limitation, (i) the cost of insurance which Landlord is obligated or permitted to obtain under this Lease and any deductible amount applicable to any claim made by Landlord under such insurance; (ii) the cost of security, janitorial, landscaping, garbage removal, and trash removal services; (iii) the cost of fuel, water, electricity, telephone, sewer, sprinkler and any other utilities used in the maintenance, operation, or administration of the Leased Premises and common areas; (iv) assessments and expenses charged to Landlord under the DCRE; and (ivv) a reasonable management feefee paid to Landlord or an affiliate or the Garage operator and an allocation of payroll costs. The pass-through of Real Property Taxes may be charged as a separate pass-through item from the other Operating Costs, which Real Property Taxes shall otherwise be billed to Tenant in the same manner as the pass-through of Operating Costs as provided herein. If Tenant or an affiliate causes the Leased Premises to be centrally assessed for tax purposes by the State of Florida in connection with Tenant’s or its affiliate’s railroad operations, causing Landlord’s tax xxxx bxxx for Real Property Taxes to exclude the Leased Premises, then there shall be no pass-through of Real Property Taxes to Tenant under this Lease, and Tenant shall pay Real Property Taxes in accordance with such central assessment. Notwithstanding, the Landlord may charge Tenant an allocation related to the Shared Facilities under the DCRE.