AND LANDLORD AND TENANT SHALL SUBMIT SUCH DISPUTE
TO ARBITRATION BY SUCH CERTIFIED PUBLIC ACCOUNTANT.
THE CERTIFIED PUBLIC
ACCOUNTANT SELECTED AS ARBITRATOR SHALL BE A REPUTABLE, DISINTERESTED PARTY
HAVING AT LEAST TEN (10) YEARS OF EXPERIENCE IN AUDITING OPERATING EXPENSES FOR
MULTI-TENANT OFFICE PROJECTS.
IN THE
12
EVENT LANDLORD AND TENANT FAIL TO AGREE UPON THE SELECTION OF SUCH ARBITRATOR
WITHIN FIFTEEN (15) DAYS AFTER THE EXPIRATION OF SUCH NINETY (90) DAY PERIOD,
EITHER LANDLORD OR TENANT, UPON NOTICE TO THE OTHER, MAY REQUEST THE APPOINTMENT
OF THE AFORESAID INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT BY APPLICATION TO THE
LOCAL OFFICE OF THE AMERICAN ARBITRATION ASSOCIATION.
THE ARBITRATION SHALL BE
CONDUCTED, TO THE EXTENT CONSISTENT WITH THIS SUBSECTION, IN ACCORDANCE WITH THE
THEN PREVAILING COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION (OR ANY
SUCCESSOR ORGANIZATION).
THE ARBITRATOR SHALL RENDER HIS OR HER DECISION IN
WRITING, AND SUCH DECISION SHALL BE FINAL, CONCLUSIVE AND BINDING ON THE
PARTIES, AND COUNTERPART COPIES THEREOF SHALL BE DELIVERED TO EACH OF THE
PARTIES.
IT IS UNDERSTOOD AND AGREED THAT IN RENDERING SUCH DECISION, THE
ARBITRATOR SHALL NOT ADD TO, SUBTRACT FROM OR OTHERWISE MODIFY THE PROVISIONS OF
THIS LEASE.
JUDGMENT MAY BE HAD ON THE DECISION OF THE ARBITRATOR SO RENDERED
IN ANY COURT OF COMPETENT JURISDICTION.
THE PARTIES SHALL EQUALLY SHARE SUCH
COSTS.
THE PROVISIONS OF THIS SUBSECTION SHALL SURVIVE THE EXPIRATION OR
TERMINATION OF THIS LEASE.
(IX)
OPERATING EXPENSE CAP.
NOTWITHSTANDING ANY
PROVISION OF THIS LEASE TO THE CONTRARY, LANDLORD AGREES THAT COMMENCING JANUARY
1, 2005, THE AMOUNT OF TENANT'S PRORATA SHARE CALCULATED TO BE DUE UNDER SECTION
2(D) HEREUNDER ATTRIBUTABLE TO "CONTROLLABLE OPERATING EXPENSES" (AS HEREINAFTER
DEFINED) SHALL NOT EXCEED ONE HUNDRED FOUR PERCENT (104%) OF THE AMOUNT OF
CONTROLLABLE OPERATING EXPENSES PROPERLY CHARGEABLE TO TENANT UNDER THIS LEASE
FOR THE IMMEDIATELY PRIOR CALENDAR YEAR, SUBJECT TO ADJUSTMENT AS PROVIDED
BELOW.
FOR PURPOSES OF THIS SECTION 2(D)(IX), THE TERM "PROPERLY CHARGEABLE"
SHALL MEAN THE AMOUNT OF CONTROLLABLE OPERATING EXPENSES FOR THE PRIOR CALENDAR
YEAR WHICH ARE CHARGED TO TENANT IN ACCORDANCE WITH THE TERMS OF THIS SECTION
2(D) FOR THE PRIOR CALENDAR YEAR, AS LIMITED BY THE APPLICATION IN SUCH PRIOR
CALENDAR YEAR OF THE CAP PROVIDED IN THIS SECTION 2(D)(IX). FOR PURPOSES OF THIS
LEASE, "CONTROLLABLE OPERATING EXPENSES" SHALL MEAN ALL OPERATING EXPENSES OF
ANY KIND OR NATURE OTHER THAN AD VALOREM PROPERTY TAXES AND OTHER TAXES AND
EXPENSES PURSUANT TO SECTION 2(D)(II)(J) ABOVE, INSURANCE PREMIUMS, UNEXPECTED
NON-ROUTINE REPAIR COSTS, PERMITTED CAPITAL IMPROVEMENT COSTS, CHARGES AND
EXPENSES FOR PUBLIC UTILITIES AND WASTE DISPOSAL CHARGES CHARGED BY THIRD
PARTIES NOT AFFILIATED WITH LANDLORD.
(X)
ADJUSTMENT OF JANITORIAL SERVICE.
TENANT
SHALL HAVE THE RIGHT, UPON GIVING TO LANDLORD SUFFICIENT PRIOR NOTICE AS WILL
ENABLE LANDLORD TO AMEND ITS SERVICE CONTRACT WITH ITS JANITORIAL SERVICE (BUT
IN NO EVENT LESS THAN FORTY-FIVE (45) DAYS' NOTICE), TO CAUSE LANDLORD TO REDUCE
THE FREQUENCY OR LEVEL OF JANITORIAL SERVICE TO THE PREMISES, PROVIDED THAT SUCH
REDUCED SERVICE CONTINUES TO PROVIDE COMMERCIALLY REASONABLE CLEANLINESS AND
SANITATION TO