Here is a list of Common Area Expenses that a Tenant would want to exclude from expenses charged by the Landlord in a Shopping Center Lease.
(i) costs, including permit, license, and inspection fees, incurred in renovating or otherwise improving or decorating, painting, or redecorating a vacant space or space for other tenants or occupants of the Shopping Center;
(ii) costs of a capital nature, including, but not limited to, capital improvements, capital repairs, capital equipment, and capital tools (as determined in accordance with generally accepted accounting principles);
(iii) costs incurred in connection with services or other benefits of a type that are not available to Tenant but which are provided to other tenants or occupants of the Shopping Center;
(iv) amounts paid to subsidiaries or affiliates of Landlord except to the extent that the cost of the subject services, supplies, or materials do not exceed the cost that would have been provided by unaffiliated parties on a competitive basis;
(v) interest on debt or amortization payments on any mortgages or other debt for borrowed money;
(vi) any costs incurred as a result of the failure of the Shopping Center to comply with applicable laws, including (without limitation) amounts incurred to comply with or related to violations of the ADA;
(vii) costs incurred to comply with or related to violations of Environmental Laws , including (without limitation) response costs and costs incurred to test, investigate, survey, clean up, contain, abate, remove, or otherwise remediate hazardous waste and substances or asbestos-containing materials from the Shopping Center or the Premises unless the waste and substances or asbestos-containing materials were brought to the Shopping Center or the Premises by Tenant;
(viii) costs of HVAC maintenance contracts for the Premises or the Shopping Center;
(ix) costs for original construction or replacement of original construction or the cost and depreciation of capital items;
(x) advertising, promotional, merchant’s association or any other marketing costs, expenses, charges or fees;
(xi) repairs or other work (including rebuilding) occasioned by fire, windstorm, or other casualty or condemnation;
(xii) costs incurred to re-surface any parking area;
(xiii) leasing commissions and other expenses of procuring tenants including lease concessions and lease take-over obligations;
(xiv) interest and penalties for late payment of taxes;
(xv) rent payable under any lease to which this Lease is subject;
(xvi) any amounts incurred in enforcing leases against tenants, including legal fees;
(xvii) expenses resulting from any violation by Landlord of the terms of any lease of space in the Shopping Center or of any ground or underlying lease or mortgage to which this Lease is subordinate;
(xviii) expenses for vacant or vacated space, including utility, security, and renovating costs of this space;
(xix) expenses for which Landlord is or will be reimbursed by another source (excluding amounts paid by tenants in the Shopping Center as prorated charges), including (without limitation) amounts reimbursed pursuant to a warranty or insurance;
(xx) structural repairs and replacements;
(xxi) any financing costs, including interest or principal payments and other charges and fees related to financing;
(xxii) contributions for political or charitable or other special interest purposes, including (without limitation) lobbying;
(xxiii) costs to correct original latent defects in the design, construction or equipment of the Shopping Center;
(xxiv) the costs of initial stock of tools and equipment for the operation, maintenance or repair of the Shopping Center; or
(xxv) any amounts related directly or indirectly to salaries, overhead or administrative charges, management fees, or office expenses that are (a) in excess of ten percent (10%) of other Common Area Expenses (excluding any taxes and insurance costs), (b) duplicative of any other charges, or (c) not incurred for actual services provided to the Shopping Center.
