Common use of MAINTENANCE OF DEVELOPMENT Clause in Contracts

MAINTENANCE OF DEVELOPMENT. Except for Landlord's responsibilities and obligations set forth in Section 1 5.1 hereof, during the term hereof, Tenant agrees, at no cost or expense to Landlord to police and maintain the Development in good operating condition, order and repair at all times, and to make all replacements and repairs to the Development as and when necessary, including, but without limitation, repairing and replacing any surface paving whenever necessary, repairing replacing and maintaining landscaping in the Development keeping the same properly drained and reasonably free of snow, ice, water and rubbish and in a neat clean orderly and sanitary condition, providing security as necessary to protect the property and persons of those properly using the Development, maintaining suitable and adequate lighting in exterior portions of the Development (and keeping same lighted during, and for at least one- half hour after, Tenant's business hours), maintaining such directional signs, markers and painted lines as may from time to time be necessary or proper for the control of parking and traffic in the Development, maintaining adequate access ways connecting all parking areas with the public streets abutting the Development, and satisfying the repair maintenance, and replacement obligations of Landlord on the Development that are set forth in the Permitted Exceptions. Notwithstanding the foregoing, in the event of a Recapture, as defined below, from and after the effective date of such event, Landlord shall be responsible for maintaining the Common Areas, roof and exterior portions of the Building, pursuant to this Section 8.1, and Tenant shall be responsible to pay Landlord its pro rata share of all costs and expenses incurred by Landlord in connection therewith, including without limitation a management fee equal to ten percent (10%) multiplied by said costs and expenses (excluding taxes). Tenant's pro rata share shall be determined by dividing the leaseable Floor Area of the Premises after Recapture, by the leaseable Floor Area of the Development. Landlord may estimate (which estimate may be revised from time to time. upon thirty (30) days written notice to Tenant, but not more than one time per calendar year in addition to a revision following Landlord initial annual estimate) the annual cost of maintenance pursuant to Section 8.1 and Tenant shall pay to Landlord monthly on or before the first day of each month, with and as part of the minimum monthly rent, its pro rata share of such annual cost divided by 12. Each Lease Year Landlord will endeavor within 90 days of the end of such Lease Year to provide Tenant with a statement of the cost of maintenance of the development pursuant to this Section 8.1 with backup materials reasonably requested by Tenant. Within 30 days of receipt of such annual statement and reasonable backup materials, Tenant will pay to Landlord or Landlord will reimburse to Tenant, as appropriate, any overage or underage versus the estimated payments made by Landlord. If Tenant shall dispute the amount of an annual statement of maintenance costs submitted by Landlord or the proposed estimated increase or decrease on the basis of which Tenant's rent is to be adjusted as provided in subparagraph above; Tenant shall give Landlord written notice of such dispute within (i) three (3) years after Landlord delivers such annual statement, or (ii) ninety (90) days after Landlord advises Tenant of such proposed increase or decrease. If Tenant does not give Landlord such notice within such time, Tenant shall have waived its right to dispute the amounts so determined. If Tenant timely objects, Tenant or its authorized representatives or accountants shall have the right to inspect or audit Landlords books and records concerning maintenance costs for the purpose of verifying the accuracy of the statement complained of or the reasonableness of the estimated increase or decrease. If Tenant determines that an error has been made, Landlord and Tenant shall endeavor to agree upon the matter, failing which the parties shall submit such matter to an independent certified public accountant selected by Landlord and reasonably acceptable to Tenant for a determination which shall be final conclusive and binding upon Landlord and Tenant. All costs incurred by Tenant in obtaining its own representatives or accountants shall be paid for by Tenant unless Tenant's inspection or audit disclose an error, acknowledged by Landlord (or found to have occurred in by the independent certified public accountant described above) of more than three percent (3%) in the computation of the total amount of operating expenses as set forth in the statement submitted by Landlord which is challenged, in which event Landlord shall pay the reasonable costs incurred by Tenant in obtaining such inspection or audit. Notwithstanding the dependency of any dispute over any particular statement, Tenant shall continue to pay Landlord the amount of the adjusted monthly installments of rent detem1ined by Landlord until the adjustment has been determined to be incorrect as aforesaid. If it shall be determined that any portion of the operating expenses were not properly chargeable to Tenant, then Landlord shall promptly credit or refund the appropriate sum to Tenant.