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security on days that MCA is not using FGA. MCA agreed to pay
the Museum $15,000 a year to help defray the Museum's expenses
incurred in arranging for these services. Respondent argues that
the maintenance of FGA was a service rendered for the benefit of
the lessee.
We cannot agree with respondent's contention that the
maintenance services went beyond what a landlord would normally
furnish in a lease for occupancy. In fulfilling this obligation,
the Museum simply contracted with a landscaping company to main-
tain the grounds surrounding the amphitheater. Further, the
evidence indicates that, after MCA took possession of the struc-
ture in 1988, the Museum did not provide, nor contract with a
third party to provide, security services for FGA. Maintaining
the grounds surrounding a building is a service customarily
rendered by lessors and is not an impermissible service for
purposes of the regulation.
Finally, respondent argues that the "best efforts" clause in
the Second Lease is an impermissible service for the benefit of
the lessee. The clause states that the Museum will use its "best
efforts" to assist MCA in obtaining any permits or licenses, such
as those necessary for the sale of beer, wine, and spirits at
FGA. Upon the advice of Baer Marks & Upham, a clause was added
to the Second Lease which specified that the Museum was required
to lend only such assistance as is usually and customarily
rendered by landlords to tenants. No evidence was adduced at
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