Alterations Mechanics Liens. A. Following the completion of Tenant’s Work pursuant to the terms and conditions of the Workletter attached hereto as Exhibit B, Tenant agrees not to make or suffer to be made any alteration, addition or improvement to or of the Premises (hereinafter referred to as “Alterations”), or any part thereof, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed; provided, however, Tenant will have the right to perform Cosmetic Alterations which cost less than $50,000.00 after prior written notice to Landlord but without the necessity of obtaining Landlord’s consent and no construction management fee (described in Paragraph 7.D below) will apply to such Cosmetic Alterations. Alterations are “Cosmetic Alterations” only if they do not involve or impact any Building HVAC, mechanical, electrical and or plumbing systems or components thereof, are not structural in nature, cannot be seen from the outside of the Premises, and upon Landlord’s written request, will be removed by Tenant, with the restoration of any damage resulting from the installation or removal thereof in accordance with Article 17 below, at the end of the Term. At Tenant’s request at the time the Cosmetic Alteration is made, Landlord shall inform Tenant as to whether it will require the removal of any particular Cosmetic Alteration. By way of example and without limitation, it shall be reasonable for Landlord to withhold its consent to Alterations which might materially adversely affect the structural portions of the Building or the life-safety, electrical, plumbing, heating, ventilation, air-conditioning, fire-protection, telecommunications or other building systems (collectively, the “Building Systems”). In addition, as a condition of its consent to Alterations hereunder, Landlord may impose any reasonable requirements that Landlord considers desirable, including a requirement that Tenant provide Landlord with reasonable financial assurance that the cost of the Alterations will be paid when due. Landlord acknowledges that Tenant may as part of Tenant’s Work pursuant to the Work Letter or as a subsequent Alteration elect to install solar panels (and associated infrastructure such as cabling and conduit) on the Building rooftop, and agrees that Landlord’s consent to such installation will not be unreasonably withheld, conditioned or delayed; provided that all such work shall be accomplished so as to not adversely impact any roof warranty and Tenant shall be responsible for all damage to the roof and other parts of the Building, and all other adverse consequences Landlord may suffer associated with the installation, use, maintenance and removal of such equipment. Landlord agrees to respond to any request by Tenant for approval of Alterations which approval is required hereunder within ten (10) business days after delivery of Tenant’s written request; Landlord’s response shall be in writing and, if Landlord withholds its consent, Landlord shall specify in reasonable detail in Landlord’s notice of disapproval, the basis for such disapproval, and the changes which would be required in order to obtain Landlord’s approval. If Landlord fails to notify Tenant of Landlord’s approval or disapproval of any such Plans within such ten (10) Business Day period, Tenant shall have the right to provide Landlord with a second written request for approval (a “Second Request”) that specifically identifies the applicable Plans and contains the following statement in bold and capital letters: “THIS IS A SECOND REQUEST FOR APPROVAL OF PLANS PURSUANT TO THE PROVISIONS OF PARAGRAPH 7(A) OF THE LEASE. IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED THE WORK DESCRIBED HEREIN.” If Landlord fails to respond to such Second Request within five (5) Business Days after receipt by Landlord, the work in question shall be deemed approved by Landlord. If Landlord timely delivers to Tenant notice of Landlord’s disapproval of any plans, Tenant may revise Tenant’s plans to incorporate the changes suggested by Landlord in Landlord’s notice of disapproval, and resubmit such plans to Landlord; in such event, the scope of Landlord’s review of such plans shall be limited to Tenant’s correction of the items in which Landlord had previously objected in writing. Landlord’s review and approval (or deemed approval) of such revised plans shall be governed by the provisions set forth above in this Paragraph 7(A), provided that the time period for Landlord’s review will be five (5) business days. The procedure set out above for approval of Tenant’s plans will also apply to any change, addition or amendment to Tenant’s plans. Alterations made by Tenant, including without limitation any partitions (movable or otherwise) or floor coverings, shall become a part of the Building and belong to Landlord; provided, however, that equipment, trade fixtures and movable furniture shall remain the property of Tenant. If Landlord consents to the making of any Alterations, the same shall be designed and constructed or installed by Tenant at Tenant’s expense (including expenses incurred in complying with applicable laws). All Alterations shall be performed only by contractors or mechanics approved by Landlord, which approval shall not be unreasonably withheld; provided that Tenant will not be required to retain union-affiliated contractors for the performance of such work. All Alterations shall be made in accordance with complete and detailed architectural, mechanical and engineering plans and specifications approved in writing by Landlord and shall be designed and diligently constructed in a good and workmanlike manner and in compliance with all applicable laws. The design and construction of any Alterations shall be performed in accordance with Landlord’s applicable rules, regulations and requirements. Tenant shall cause any Alterations to be made in such a manner and at such times so that any such work shall not disrupt or interfere with the use or occupancy of other tenants or occupants of adjacent buildings. Under no circumstances shall Landlord be liable to Tenant for any damage, loss, cost or expense incurred by Tenant on account of Tenant’s plans and specifications, Tenant’s contractors or subcontractors, design of any work, construction of any work, or delay in completion of any work. B. Subsequent to obtaining Landlord’s consent and prior to commencement of the Alterations, Tenant shall deliver to Landlord (i) any building or other permit required by applicable laws in connection with the Alterations; and (ii) a copy of the executed construction contract(s). In addition, Tenant shall require its general contractor and all subcontractors to carry and maintain the following insurance at no expense to Landlord, and Tenant shall furnish Landlord with satisfactory evidence thereof prior to the commencement of construction: (A) Commercial General Liability Insurance with limits of not less than $3,000,000 combined single limit for bodily injury and property damage, including personal injury and death, and Contractor’s Protective Liability, and Products and Completed Operations Coverage in an amount not less than $500,000 per incident, $1,000,000 in the aggregate; (B) Comprehensive automobile liability insurance with a policy limit of not less than $1,000,000 each accident for bodily injury and property damage, providing coverage at least as broad as the Insurance Services Office (ISO) Business Auto Coverage form covering Automobile Liability, code 1 “any auto”, and insuring against all loss in connection with the ownership, maintenance and operation of automotive equipment that is owned, hired or non-owned; (C) Worker’s Compensation with statutory limits and Employer’s Liability Insurance with limits of not less than $100,000 per accident, $500,000 aggregate disease coverage and $100,000 disease coverage per employee; and (D) “Builder’s All Risk” insurance in an amount reasonably approved by Landlord covering the Alterations, including such extended coverage endorsements as may be reasonably required by Landlord, it being understood and agreed that the Alterations shall be insured by Tenant pursuant to the terms of this Lease immediately upon completion thereof. All such insurance policies (except Workers’ Compensation insurance) shall be endorsed to add Landlord, the holder of any mortgage covering the Building and Landlord’s designated agents as additional insureds with respect to liability arising out of work performed by or for Tenant’s general contractor, to specify that such insurance is primary and that any insurance or self-insurance maintained by Landlord shall not contribute with it, and to provide that the insurer will endeavor to provide Landlord with at least thirty (30) days prior written notice of any cancellation of a policy (ten (10) business days in the case of non-payment); however, Landlord acknowledges that the majority of American insurers currently are unwilling to provide notice to third parties (such as Landlord) of policy cancellation and agrees that if Tenant’s insurer is similarly unwilling to provide such notice to Landlord, then Tenant’s obligation pursuant to the provisions of this sentence shall be to promptly provide Landlord notice of Tenant’s receipt of any notice of cancellation from Tenant’s insurer. Landlord may inspect the original policies of such insurance coverage or require complete certified copies at any time. Tenant’s general contractor shall furnish Landlord the same evidence of insurance for its subcontractors as required of Tenant’s general contractor. C. Landlord shall have the right (but not an obligation) to inspect the construction work during the progress thereof, and to require corrections of faulty construction or any material deviation from the plans for such Alterations as approved by Landlord; provided, however, that no such inspection shall be deemed to create any liability on the part of Landlord, or constitute a representation by Landlord or any person hired to perform such inspection that the work so inspected conforms with such plans or complies with any applicable laws, and no such inspection shall give rise to a waiver of, or estoppel with respect to, Landlord’s continuing right at any time or from time to time to require the correction of any faulty work or any material deviation from such plans. Promptly following completion of any Alterations, Tenant shall (i) furnish to Landlord “as-built” plans therefore, (ii) cause a timely notice of completion to be recorded in the Office of the Recorder of the County in which the Building is located in accordance with Civil Code Section 3093 or any successor statute, and (iii) deliver to Landlord evidence of full payment and unconditional final waivers of all liens for labor, services, or materials. All trash or surplus materials which may accumulate in connection with Tenant’s construction activities shall be removed by Tenant at its own expense from the Premises and the Building. The parties expressly acknowledge that Tenant may construct a modular clean room within the Premises and that Tenant may, at Tenant’s option, remove such clean room at the expiration or sooner termination of this Lease. D Tenant shall pay to Landlord a fee in the amount of six percent (6%) of the hard cost of the Alterations for its review of plans and oversight (but not management) of the progress of the work (not to exceed, however, $25,000.00 per project) and shall reimburse Landlord for all reasonable out of pocket charges in excess of one percent (1%) of the hard cost of the Alterations incurred by Landlord; including but not limited to costs incurred for peer review and for oversight by Landlord’s architect and consultants.
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Alterations Mechanics Liens. A. Following the completion of Tenant’s Work pursuant 11.01 Alterations may not be made to the terms and conditions of the Workletter attached hereto as Exhibit B, Tenant agrees not to make or suffer to be made any alteration, addition or improvement to or of the Leased Premises (hereinafter referred to as “Alterations”), or any part thereof, without the prior written consent of Landlord and any alterations of the Leased Premises excepting movable furniture, equipment and trade fixtures shall, at Landlord's option, become part of the realty and belong to Landlord. This provision also applies to all draperies, special wall coverings or floor coverings as well as additional electrical fixtures or circuits.
11.02 Should Tenant desire to alter the Leased Premises and Landlord approves and consents in writing to such alterations, at Landlord's option, Tenant shall permit Landlord to make said alterations and amortize the total cost of same as additional rental for the balance of the Lease term or any extension thereof if applicable and mutually agreeable. Should Landlord elect to not provide said alterations, Tenant shall only contract for the alterations with a contractor approved by Landlord and all said alterations shall be subject to Landlord's approval and written consent relative to design, location, materials and workmanship.
11.03 Notwithstanding anything in paragraph 11.02 above, Tenant may, upon written consent of Landlord, install trade fixtures (except trade fixtures or other trade equipment which consent would effectively convert service area as shown in Exhibit "A" attached hereto to additional office area), machinery or other trade equipment in conformance with the ordinances of the applicable city and county, and the same may be removed upon the termination of this Lease provided Tenant shall not be unreasonably withheld or delayed; providedin default under any of the terms and conditions of this Lease, however, Tenant will have and the right to perform Cosmetic Alterations which cost less than $50,000.00 after prior written notice to Landlord but without the necessity of obtaining Landlord’s consent and no construction management fee (described in Paragraph 7.D below) will apply to such Cosmetic Alterations. Alterations are “Cosmetic Alterations” only if they do not involve or impact any Building HVAC, mechanical, electrical and or plumbing systems or components thereof, Leased Premises are not structural damaged by such removal. Tenant shall return the Leased Premises on the termination of this Lease in naturethe same condition as when rented to Tenant, cannot be seen from reasonable wear and tear excepted. Tenant shall keep the outside of the Leased Premises, the Building, and upon Landlord’s written requestproperty in which the Leased Premises are situated free from any liens arising out of any work performed for, will be removed materials furnished to, or obligations incurred by Tenant. All such work, with provided for above, shall be done at such times and in such manner as Landlord may from time to time designate. All fixtures, improvements, alterations and additions which may be made or installed by either Landlord or Tenant in or about the restoration Leased Premises which are in any manner attached to the floors, walls or ceilings, except trade fixtures, shall belong to and be the property of any damage resulting from Landlord and shall remain on the installation or removal thereof in accordance with Article 17 below, Leased Premises during the term of this Lease and at the end of expiration or termination hereof, except for such property, if any which the Term. At Tenant’s request at the time the Cosmetic Alteration is made, Landlord shall inform Tenant as to whether it will require the removal of any particular Cosmetic Alteration. By way of example and without limitation, it shall be reasonable for Landlord to withhold its consent to Alterations which might materially adversely affect the structural portions of the Building or the life-safety, electrical, plumbing, heating, ventilation, air-conditioning, fire-protection, telecommunications or other building systems (collectively, the “Building Systems”). In addition, as a condition of its consent to Alterations hereunder, Landlord may impose any reasonable requirements that Landlord considers desirable, including a requirement designate in writing that Tenant provide Landlord with reasonable financial assurance that the cost of the Alterations will be paid when dueeither shall or may remove. Landlord acknowledges that Tenant may as part of Tenant’s Work pursuant agrees to the Work Letter or as a subsequent Alteration elect to install solar panels (and associated infrastructure such as cabling and conduit) on the Building rooftop, and agrees that Landlord’s consent to such installation will not be unreasonably withheld, conditioned or delayed; provided that all such work shall be accomplished so as to not adversely impact any roof warranty and Tenant shall be responsible for repair all damage to the roof and other parts of the Building, and all other adverse consequences Landlord may suffer associated with the installation, use, maintenance and Leased Premises caused by any such removal (including removal of such equipment. Landlord agrees trade fixtures) and to respond restore the Leased Premises to any request by Tenant for approval of Alterations which approval is required hereunder within ten (10) business days after delivery of Tenant’s written request; Landlord’s response shall be in writing and, if Landlord withholds its consent, Landlord shall specify in reasonable detail in Landlord’s notice of disapproval, the basis for such disapproval, and the changes which would be required in order to obtain Landlord’s approval. If Landlord fails to notify Tenant of Landlord’s approval or disapproval of any such Plans within such ten (10) Business Day period, Tenant shall have the right to provide Landlord with a second written request for approval (a “Second Request”) that specifically identifies the applicable Plans and contains the following statement in bold and capital letters: “THIS IS A SECOND REQUEST FOR APPROVAL OF PLANS PURSUANT TO THE PROVISIONS OF PARAGRAPH 7(A) OF THE LEASE. IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED THE WORK DESCRIBED HEREIN.” If Landlord fails to respond to such Second Request within five (5) Business Days after receipt by Landlord, the work in question shall be deemed approved by Landlord. If Landlord timely delivers to Tenant notice of Landlord’s disapproval of any plans, Tenant may revise Tenant’s plans to incorporate the changes suggested by Landlord in Landlord’s notice of disapproval, and resubmit such plans to Landlord; in such event, the scope of Landlord’s review of such plans shall be limited to Tenant’s correction of the items condition in which Landlord had previously objected in writing. Landlord’s review and approval (or deemed approval) of such revised plans shall be governed by the provisions set forth above in this Paragraph 7(A), provided that the time period for Landlord’s review will be five (5) business days. The procedure set out above for approval of Tenant’s plans will also apply to any change, addition or amendment to Tenant’s plans. Alterations made by Tenant, including without limitation any partitions (movable or otherwise) or floor coverings, shall become a part of the Building and belong to Landlord; provided, however, that equipment, trade fixtures and movable furniture shall remain the property of Tenant. If Landlord consents to the making of any Alterations, the same shall be designed and constructed or installed by Tenant at Tenant’s expense (including expenses incurred in complying with applicable laws). All Alterations shall be performed only by contractors or mechanics approved by Landlord, which approval shall not be unreasonably withheld; provided that Tenant will not be required to retain union-affiliated contractors for the performance of such work. All Alterations shall be made in accordance with complete and detailed architectural, mechanical and engineering plans and specifications approved in writing by Landlord and shall be designed and diligently constructed in a good and workmanlike manner and in compliance with all applicable laws. The design and construction of any Alterations shall be performed in accordance with Landlord’s applicable rules, regulations and requirements. Tenant shall cause any Alterations to be made in such a manner and at such times so that any such work shall not disrupt or interfere with the use or occupancy of other tenants or occupants of adjacent buildings. Under no circumstances shall Landlord be liable to Tenant for any damage, loss, cost or expense incurred by Tenant on account of Tenant’s plans and specifications, Tenant’s contractors or subcontractors, design of any work, construction of any work, or delay in completion of any work.
B. Subsequent to obtaining Landlord’s consent and prior to commencement of the Alterations, Tenant shall deliver to Landlord (i) any building or other permit required by applicable laws in connection with the Alterations; and (ii) a copy of the executed construction contract(s). In addition, Tenant shall require its general contractor and all subcontractors to carry and maintain the following insurance at no expense to Landlord, and Tenant shall furnish Landlord with satisfactory evidence thereof they were prior to the commencement removal of construction: (A) Commercial General Liability Insurance with limits of not less than $3,000,000 combined single limit for bodily injury and said articles. Any such property damage, including personal injury and death, and Contractor’s Protective Liability, and Products and Completed Operations Coverage in an amount not less than $500,000 per incident, $1,000,000 in the aggregate; (B) Comprehensive automobile liability insurance with a policy limit of not less than $1,000,000 each accident for bodily injury and property damage, providing coverage at least as broad as the Insurance Services Office (ISO) Business Auto Coverage form covering Automobile Liability, code 1 “any auto”, and insuring against all loss in connection with the ownership, maintenance and operation of automotive equipment that is owned, hired or non-owned; (C) Worker’s Compensation with statutory limits and Employer’s Liability Insurance with limits of not less than $100,000 per accident, $500,000 aggregate disease coverage and $100,000 disease coverage per employee; and (D) “Builder’s All Risk” insurance in an amount reasonably approved so designated by Landlord covering the Alterationsto be removed, including such extended coverage endorsements as may be reasonably required by Landlord, it being understood and agreed that the Alterations which shall be insured by Tenant pursuant to left in or upon the terms of this Lease immediately upon completion thereof. All such insurance policies (except Workers’ Compensation insurance) shall be endorsed to add LandlordLeased Premises, the holder of any mortgage covering the Building and Landlord’s designated agents as additional insureds with respect to liability arising out of work performed by or for Tenant’s general contractor, to specify that such insurance is primary and that any insurance or self-insurance maintained by Landlord shall not contribute with it, and to provide that the insurer will endeavor to provide Landlord with at least thirty (30) days prior written notice of any cancellation of a policy (ten (10) business days in the case of non-payment); however, Landlord acknowledges that the majority of American insurers currently are unwilling to provide notice to third parties (such as Landlord) of policy cancellation and agrees that if Tenant’s insurer is similarly unwilling to provide such notice to Landlord, then Tenant’s obligation pursuant to the provisions of this sentence shall be to promptly provide Landlord notice of Tenant’s receipt of any notice of cancellation from Tenant’s insurer. Landlord may inspect the original policies of such insurance coverage or require complete certified copies at any time. Tenant’s general contractor shall furnish Landlord the same evidence of insurance for its subcontractors as required of Tenant’s general contractor.
C. Landlord shall have the right (but not an obligation) to inspect the construction work during the progress thereof, and to require corrections of faulty construction or any material deviation from the plans for such Alterations as approved by Landlord; provided, however, that no such inspection shall be deemed to create any liability on the part have been abandoned by tenant and may be retained or disposed of Landlord, or constitute a representation by Landlord or any person hired to perform such inspection that the work so inspected conforms with such plans or complies with any applicable laws, and no such inspection shall give rise to a waiver of, or estoppel with respect to, Landlord’s continuing right at any time or from time to time to require the correction of any faulty work or any material deviation from such plans. Promptly following completion of any Alterations, Tenant shall (i) furnish to Landlord “as-built” plans therefore, (ii) cause a timely notice of completion to be recorded in the Office of the Recorder of the County in which the Building is located in accordance with Civil Code Section 3093 or any successor statute, and (iii) deliver to Landlord evidence of full payment and unconditional final waivers of all liens for labor, services, or materials. All trash or surplus materials which may accumulate in connection with Tenant’s construction activities shall be removed by Tenant at its own expense from the Premises and the Building. The parties expressly acknowledge that Tenant may construct a modular clean room within the Premises and that Tenant may, at Tenant’s option's expense, remove such clean room at the expiration or sooner termination of this Lease. D Tenant as Landlord shall pay to Landlord a fee in the amount of six percent (6%) of the hard cost of the Alterations for its review of plans and oversight (but not management) of the progress of the work (not to exceed, however, $25,000.00 per project) and shall reimburse Landlord for all reasonable out of pocket charges in excess of one percent (1%) of the hard cost of the Alterations incurred by Landlord; including but not limited to costs incurred for peer review and for oversight by Landlord’s architect and consultantsdesire.
Appears in 1 contract
Alterations Mechanics Liens. A. Following the completion of Tenant’s Work pursuant to the terms and conditions of the Workletter attached hereto as Exhibit B, (a) Tenant agrees shall not make or permit anyone to make any alterations, improvements, installations or suffer modifications in or to be made any alteration, addition or improvement to or part of the Premises without first obtaining Landlord's prior written consent (hereinafter referred which consent may be withheld in Landlord's sole and absolute subjective discretion). Landlord's consent to non-structural alterations not visible from the exterior of the Premises shall not be unreasonably withheld. When granting its consent, Landlord may impose any conditions it reasonably deems appropriate, including, without limitation, the approval of plans and specifications, approval of the contractor or other persons who will perform the work, and the obtaining of specified insurance. If Landlord shall consent to any alterations or changes in or to the Premises, Tenant shall have all such work performed at Tenant's sole expense and shall comply with the requirements to be established by the Landlord. Any additions, improvements, alterations and installations made by Tenant (excepting only office furniture and business equipment) shall become and remain a part of the Building and be and remain Landlord's property at the Lease Expiration Date; provided, however, that Landlord may require Tenant to remove such additions, improvements, alterations or installation and to restore the Premises to their original condition at Tenant's sole cost and expense and if Tenant fails to restore the Premises as “Alterations”)required, or Landlord may do so at Tenant's expense. If any part thereof, alteration is made without the prior written consent of Landlord, which Landlord may correct or remove the same, and Tenant shall be liable for any and all expenses incurred by Landlord in the performance of this work.
(b) Any alterations shall be conducted on behalf of Tenant and not on behalf of Landlord and Tenant shall be deemed to be the "owner" and not the "agent" of Landlord. If Landlord shall give its written consent to Tenant's making any alterations, such written consent shall not be unreasonably withheld deemed to be an agreement or delayed; providedconsent by Landlord to subject Landlord's interest in the Premises or the Property to any mechanic's liens which may be filed in respect of any alterations made by or on behalf of Tenant. If any mechanic's or other lien or any notice of intention to file a lien is filed against the Property, however, Tenant will have the right to perform Cosmetic Alterations which cost less than $50,000.00 after prior written notice to Landlord but without the necessity of obtaining Landlord’s consent and no construction management fee (described in Paragraph 7.D below) will apply to such Cosmetic Alterations. Alterations are “Cosmetic Alterations” only if they do not involve or impact any Building HVAC, mechanical, electrical and or plumbing systems or components part thereof, are not structural in nature, cannot be seen from the outside of or the Premises, and upon Landlord’s written requestfor any work, will be removed by Tenantlabor, with the restoration of any damage resulting from the installation services or removal thereof in accordance with Article 17 below, at the end of the Term. At Tenant’s request at the time the Cosmetic Alteration is made, Landlord shall inform Tenant as materials claimed to whether it will require the removal of any particular Cosmetic Alteration. By way of example and without limitation, it shall be reasonable have been performed or furnished for Landlord to withhold its consent to Alterations which might materially adversely affect the structural portions of the Building or the life-safety, electrical, plumbing, heating, ventilation, air-conditioning, fire-protection, telecommunications or other building systems (collectively, the “Building Systems”). In addition, as a condition of its consent to Alterations hereunder, Landlord may impose any reasonable requirements that Landlord considers desirable, including a requirement that Tenant provide Landlord with reasonable financial assurance that the cost of the Alterations will be paid when due. Landlord acknowledges that Tenant may as part on behalf of Tenant’s Work pursuant to the Work Letter or as a subsequent Alteration elect to install solar panels (and associated infrastructure such as cabling and conduit) on the Building rooftop, and agrees that Landlord’s consent to such installation will not be unreasonably withheld, conditioned or delayed; provided that all such work shall be accomplished so as to not adversely impact any roof warranty and Tenant shall be responsible for all damage to the roof and other parts of the Building, and all other adverse consequences Landlord may suffer associated with the installation, use, maintenance and removal of such equipment. Landlord agrees to respond to any request by Tenant for approval of Alterations which approval is required hereunder within ten (10) business days after delivery of Tenant’s written request; Landlord’s response shall be in writing and, if Landlord withholds its consent, Landlord shall specify in reasonable detail in Landlord’s notice of disapproval, the basis for such disapproval, and the changes which would be required in order to obtain Landlord’s approval. If Landlord fails to notify Tenant of Landlord’s approval or disapproval of any such Plans within such ten (10) Business Day period, Tenant shall have initiate appropriate legal proceedings or otherwise cause the right same to provide Landlord with be canceled and discharged of record by payment, bond or order of a second written request for approval (a “Second Request”) that specifically identifies the applicable Plans and contains the following statement in bold and capital letters: “THIS IS A SECOND REQUEST FOR APPROVAL OF PLANS PURSUANT TO THE PROVISIONS OF PARAGRAPH 7(A) OF THE LEASE. IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED THE WORK DESCRIBED HEREIN.” If Landlord fails to respond to such Second Request court of competent jurisdiction within five (5) Business Days business days after receipt by Landlord, the work in question shall be deemed approved by Landlordfiling thereof. If Landlord timely delivers to Tenant notice of Landlord’s disapproval of any plans, Tenant may revise Tenant’s plans to incorporate the changes suggested by Landlord in Landlord’s notice of disapproval, and resubmit such plans to Landlord; in such event, the scope of Landlord’s review of such plans shall be limited to Tenant’s correction of the items in which Landlord had previously objected in writing. Landlord’s review and approval (or deemed approval) of such revised plans shall be governed by the provisions set forth above in this Paragraph 7(A), provided that the time period for Landlord’s review will be five (5) business days. The procedure set out above for approval of Tenant’s plans will also apply to any change, addition or amendment to Tenant’s plans. Alterations made by Tenant, including without limitation any partitions (movable or otherwise) or floor coverings, shall become a part of the Building and belong to Landlord; provided, however, that equipment, trade fixtures and movable furniture shall remain the property of Tenant. If Landlord consents to the making of any Alterations, the same shall be designed and constructed or installed by Tenant at Tenant’s expense (including expenses incurred in complying with applicable laws). All Alterations shall be performed only by contractors or mechanics approved by Landlord, which approval shall not be unreasonably withheld; provided that Tenant will not be required to retain union-affiliated contractors for the performance of such work. All Alterations shall be made in accordance with complete and detailed architectural, mechanical and engineering plans and specifications approved in writing by Landlord and shall be designed and diligently constructed in a good and workmanlike manner and in compliance with all applicable laws. The design and construction of any Alterations shall be performed in accordance with Landlord’s applicable rules, regulations and requirements. Tenant shall cause any Alterations fail to be made in such a manner and at such times so that discharge any such work shall not disrupt or interfere with the use or occupancy of other tenants or occupants of adjacent buildings. Under no circumstances shall Landlord be liable to Tenant for any damage, loss, cost or expense incurred by Tenant on account of Tenant’s plans and specifications, Tenant’s contractors or subcontractors, design of any work, construction of any work, or delay in completion of any work.
B. Subsequent to obtaining Landlord’s consent and prior to commencement of the Alterations, Tenant shall deliver to Landlord (i) any building or other permit required by applicable laws in connection with the Alterations; and (ii) a copy of the executed construction contract(s). In addition, Tenant shall require its general contractor and all subcontractors to carry and maintain the following insurance at no expense to Landlord, and Tenant shall furnish Landlord with satisfactory evidence thereof prior to the commencement of construction: (A) Commercial General Liability Insurance with limits of not less than $3,000,000 combined single limit for bodily injury and property damage, including personal injury and death, and Contractor’s Protective Liability, and Products and Completed Operations Coverage in an amount not less than $500,000 per incident, $1,000,000 in the aggregate; (B) Comprehensive automobile liability insurance with a policy limit of not less than $1,000,000 each accident for bodily injury and property damage, providing coverage at least as broad as the Insurance Services Office (ISO) Business Auto Coverage form covering Automobile Liability, code 1 “any auto”, and insuring against all loss in connection with the ownership, maintenance and operation of automotive equipment that is owned, hired or non-owned; (C) Worker’s Compensation with statutory limits and Employer’s Liability Insurance with limits of not less than $100,000 per accident, $500,000 aggregate disease coverage and $100,000 disease coverage per employee; and (D) “Builder’s All Risk” insurance in an amount reasonably approved by Landlord covering the Alterations, including such extended coverage endorsements as may be reasonably required by Landlord, it being understood and agreed that the Alterations shall be insured by Tenant pursuant to the terms of this Lease immediately upon completion thereof. All such insurance policies (except Workers’ Compensation insurance) shall be endorsed to add Landlord, the holder of any mortgage covering the Building and Landlord’s designated agents as additional insureds with respect to liability arising out of work performed by or for Tenant’s general contractor, to specify that such insurance is primary and that any insurance or self-insurance maintained by Landlord shall not contribute with it, and to provide that the insurer will endeavor to provide Landlord with at least thirty (30) days prior written notice of any cancellation of a policy (ten (10) business days in the case of non-payment); howeverlien, Landlord acknowledges that may, at its option discharge the majority of American insurers currently are unwilling to provide notice to third parties (such as Landlord) of policy cancellation and agrees that if Tenant’s insurer is similarly unwilling to provide such notice to Landlordsame, then Tenant’s obligation pursuant to without inquiring into the provisions of this sentence shall be to promptly provide Landlord notice of Tenant’s receipt of any notice of cancellation from Tenant’s insurer. Landlord may inspect the original policies of such insurance coverage or require complete certified copies at any time. Tenant’s general contractor shall furnish Landlord the same evidence of insurance for its subcontractors as required of Tenant’s general contractor.
C. Landlord shall have the right (but not an obligation) to inspect the construction work during the progress validity thereof, and to require corrections of faulty construction or any material deviation from treat the plans for such Alterations cost thereof as approved by Additional Rent payable upon Landlord; provided, however, that no such inspection shall be deemed to create any liability on the part of Landlord, or constitute a representation by Landlord or any person hired to perform such inspection that the work so inspected conforms with such plans or complies with any applicable laws, and no such inspection shall give rise to a waiver of, or estoppel with respect to, Landlord’s continuing right at any time or from time to time to require the correction of any faulty work or any material deviation from such plans. Promptly following completion of any Alterations, Tenant shall (i) furnish to Landlord “as-built” plans therefore, (ii) cause a timely notice of completion to be recorded in the Office of the Recorder of the County in which the Building is located in accordance with Civil Code Section 3093 or any successor statute, and (iii) deliver to Landlord evidence of full payment and unconditional final waivers of all liens for labor, services, or materials. All trash or surplus materials which may accumulate in connection with Tenant’s construction activities shall be removed by Tenant at its own expense from the Premises and the Building. The parties expressly acknowledge that Tenant may construct a modular clean room within the Premises and that Tenant may, at Tenant’s option, remove such clean room at the expiration or sooner termination of this Lease. D Tenant shall pay to Landlord a fee in the amount of six percent (6%) of the hard cost of the Alterations for its review of plans and oversight (but not management) of the progress of the work (not to exceed, however, $25,000.00 per project) and shall reimburse Landlord for all reasonable out of pocket charges in excess of one percent (1%) of the hard cost of the Alterations incurred by Landlord; including but not limited to costs incurred for peer review and for oversight by Landlord’s architect and consultants's demand therefor.
Appears in 1 contract
Samples: Lease Agreement (Creditrust Corp)
Alterations Mechanics Liens. A. Following the completion of Tenant’s Work pursuant to the terms and conditions of the Workletter attached hereto as Exhibit B, Tenant agrees not to make or suffer to be made any alteration, addition or improvement to or of the Premises (hereinafter referred to as “Alterations”), or any part thereof, without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed; provided, however, Tenant will have the right to perform Cosmetic Alterations which cost less than $50,000.00 per project after prior written notice to Landlord but without the necessity of obtaining Landlord’s consent and no construction management fee (described in Paragraph 7.D below) will apply to such Cosmetic Alterations. Alterations are “Cosmetic Alterations” only if they do not involve or impact any Building HVAC, mechanical, electrical and or plumbing systems or components thereof, are not structural in nature, cannot be seen from the outside of the Premises, and upon Landlord’s written request, will be removed by Tenant, with the restoration of any damage resulting from the installation or removal thereof in accordance with Article 17 below, at the end of the Term. At Tenant’s request at the time the Cosmetic Alteration is made, Landlord shall inform Tenant as to whether it will require the removal of any particular Cosmetic Alteration. By way of example and without limitation, it shall be reasonable for Landlord to withhold its consent to Alterations which might materially adversely affect the structural portions of the Building or the life-safety, electrical, plumbing, heating, ventilation, air-conditioning, fire-protection, telecommunications or other building systems (collectively, the “Building Systems”)) or the exterior of the Building. In addition, as a condition of its consent to Alterations hereunder, Landlord may impose any reasonable requirements that Landlord considers desirable, including a requirement that Tenant provide Landlord with reasonable financial assurance that the cost of the Alterations will be paid when due, and if the Alterations is anticipated to cost in excess of $250,000 a surety bond, a letter of credit, or other financial assurance reasonably acceptable to Landlord that the cost of the Alterations will be paid when due. Landlord acknowledges that Tenant may as part of Tenant’s Work pursuant to the Work Letter or as a subsequent Alteration elect to install solar panels (and associated infrastructure such as cabling and conduit) on the Building rooftop, and agrees that Landlord’s consent to such installation will not be unreasonably withheld, conditioned or delayed; provided that all such work shall be accomplished so as to not adversely impact any roof warranty and Tenant shall be responsible for all damage to the roof and other parts of the Building, and all other adverse consequences Landlord may suffer associated with the installation, use, maintenance and removal of such equipment. Landlord agrees to respond to any request by Tenant for approval of Alterations which approval is required hereunder within ten (10) business days after delivery of Tenant’s written request; Landlord’s response shall be in writing and, if Landlord withholds its consent, Landlord shall specify in reasonable detail in Landlord’s notice of disapproval, the basis for such disapproval, and the changes which would be required in order to obtain Landlord’s approval. If Landlord fails to notify Tenant of Landlord’s approval or disapproval of any such Plans within such ten (10) Business Day period, Tenant shall have the right to provide Landlord with a second written request for approval (a “Second Request”) that specifically identifies the applicable Plans and contains the following statement in bold and capital letters: “THIS IS A SECOND REQUEST FOR APPROVAL OF PLANS PURSUANT TO THE PROVISIONS OF PARAGRAPH 7(A) OF THE LEASE. IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED THE WORK DESCRIBED HEREIN.” If Landlord fails to respond to such Second Request within five (5) Business Days after receipt by Landlord, the work in question shall be deemed approved by Landlord. If Landlord timely delivers to Tenant notice of Landlord’s disapproval of any plans, Tenant may revise Tenant’s plans to incorporate the changes suggested by Landlord in Landlord’s notice of disapproval, and resubmit such plans to Landlord; in such event, the scope of Landlord’s review of such plans shall be limited to Tenant’s correction of the items in which Landlord had previously objected in writing. Landlord’s review and approval (or deemed approval) of such revised plans shall be governed by the provisions set forth above in this Paragraph 7(A), provided that the time period for Landlord’s review will be five (5) business days. The procedure set out above for approval of Tenant’s plans will also apply to any change, addition or amendment to Tenant’s plans. Alterations made by Tenant, including without limitation any partitions (movable or otherwise) or floor coverings, shall become a part of the Building and belong to Landlord; provided, however, that equipment, trade fixtures and movable furniture shall remain the property of Tenant. If Landlord consents to the making of any Alterations, the same shall be designed and constructed or installed by Tenant at Tenant’s expense (including expenses incurred in complying with applicable laws). All Alterations shall be performed only by contractors or mechanics approved by Landlord, which approval shall not be unreasonably withheld; provided that Tenant will not be required to retain union-affiliated contractors for the performance of such work. All Alterations shall be made in accordance with complete and detailed architectural, mechanical and engineering plans and specifications approved in writing by Landlord and shall be designed and diligently constructed in a good and workmanlike manner and in compliance with all applicable laws. The design and construction of any Alterations shall be performed in accordance with Landlord’s applicable rules, regulations and requirements. Tenant shall cause any Alterations to be made in such a manner and at such times so that any such work shall not disrupt or interfere with the use or occupancy of other tenants or occupants of adjacent buildings. Under no circumstances shall Landlord be liable to Tenant for any damage, loss, cost or expense incurred by Tenant on account of Tenant’s plans and specifications, Tenant’s contractors or subcontractors, design of any work, construction of any work, or delay in completion of any work.
B. Subsequent to obtaining Landlord’s consent and prior to commencement of the Alterations, Tenant shall deliver to Landlord (i) any building or other permit required by applicable laws in connection with the Alterations; and (ii) a copy of the executed construction contract(s). In addition, Tenant shall require its general contractor and all subcontractors to carry and maintain the following insurance at no expense to Landlord, and Tenant shall furnish Landlord with satisfactory evidence thereof prior to the commencement of construction: (A) Commercial General Liability Insurance with limits of not less than $3,000,000 combined single limit for bodily injury and property damage, including personal injury and death, and Contractor’s Protective Liability, and Products and Completed Operations Coverage in an amount not less than $500,000 per incident, $1,000,000 in the aggregate; (B) Comprehensive automobile liability insurance with a policy limit of not less than $1,000,000 each accident for bodily injury and property damage, providing coverage at least as broad as the Insurance Services Office (ISO) Business Auto Coverage form covering Automobile Liability, code 1 “any auto”, and insuring against all loss in connection with the ownership, maintenance and operation of automotive equipment that is owned, hired or non-owned; (C) Worker’s Compensation with statutory limits and Employer’s Liability Insurance with limits of not less than $100,000 per accident, $500,000 aggregate disease coverage and $100,000 disease coverage per employee; and (D) “Builder’s All Risk” insurance in an amount reasonably approved by Landlord covering the Alterations, including such extended coverage endorsements as may be reasonably required by Landlord, it being understood and agreed that the Alterations shall be insured by Tenant pursuant to the terms of this Lease immediately upon completion thereof. All such insurance policies (except Workers’ Compensation insurance) shall be endorsed to add Landlord, the holder of any mortgage covering the Building and Landlord’s designated agents as additional insureds with respect to liability arising out of work performed by or for Tenant’s general contractor, to specify that such insurance is primary and that any insurance or self-insurance maintained by Landlord shall not contribute with it, and to provide that the insurer will endeavor to provide Landlord with at least thirty (30) days prior written notice of any cancellation of a policy (ten (10) business days in the case of non-payment); however, Landlord acknowledges that the majority of American insurers currently are unwilling to provide notice to third parties (such as Landlord) of policy cancellation and agrees that if Tenant’s insurer is similarly unwilling to provide such notice to Landlord, then Tenant’s obligation pursuant to the provisions of this sentence shall be to promptly provide Landlord notice of Tenant’s receipt of any notice of cancellation from Tenant’s insurer. Landlord may inspect the original policies of such insurance coverage or require complete certified copies at any time. Tenant’s general contractor shall furnish Landlord the same evidence of insurance for its subcontractors as required of Tenant’s general contractor.
C. Landlord shall have the right (but not an obligation) to inspect the construction work during the progress thereof, and to require corrections of faulty construction or any material deviation from the plans for such Alterations as approved by Landlord; provided, however, that no such inspection shall be deemed to create any liability on the part of Landlord, or constitute a representation by Landlord or any person hired to perform such inspection that the work so inspected conforms with such plans or complies with any applicable laws, and no such inspection shall give rise to a waiver of, or estoppel with respect to, Landlord’s continuing right at any time or from time to time to require the correction of any faulty work or any material deviation from such plans. Promptly following completion of any Alterations, Tenant shall (i) furnish to Landlord “as-built” plans therefore, (ii) cause a timely notice of completion to be recorded in the Office of the Recorder of the County in which the Building is located in accordance with Civil Code Section 3093 or any successor statute, and (iii) deliver to Landlord evidence of full payment and unconditional final waivers of all liens for labor, services, or materials. All trash or surplus materials which may accumulate in connection with Tenant’s construction activities shall be removed by Tenant at its own expense from the Premises and the Building. The parties expressly acknowledge that Tenant may construct a modular clean room within the Premises and that Tenant may, at Tenant’s option, remove such clean room at the expiration or sooner termination of this Lease. D Tenant shall pay to Landlord a fee in the amount of six percent (6%) of the hard cost of the Alterations for its review of plans and oversight (but not management) of the progress of the work (not to exceed, however, $25,000.00 per project) and shall reimburse Landlord for all reasonable out of pocket charges in excess of one percent (1%) of the hard cost of the Alterations incurred by Landlord; including but not limited to costs incurred for peer review and for oversight by Landlord’s architect and consultants.
Appears in 1 contract
Samples: Lease (Colonnade Acquisition Corp.)
Alterations Mechanics Liens. A. Following the completion of Tenant’s Work pursuant to the terms and conditions of the Workletter attached hereto as Exhibit B, 4824-0900-0329v5/27933-0139
a. Tenant agrees shall not to make or suffer to be made any alterationalterations, addition additions or improvement improvements to or of the Premises or any part thereof, including but not limited to painting, redecorating, remodeling or the attachment of any fixtures or equipment (hereinafter all of such activities being referred to herein as “Alterations”), or any part thereof, without the obtaining Landlord’s prior written consent of Landlordconsent, which consent shall not be unreasonably withheld or delayed; provided, however, Tenant will have the right to perform Cosmetic Alterations which cost less than $50,000.00 after prior written notice to Landlord but without the necessity of obtaining Landlord’s consent and no construction management fee (described in Paragraph 7.D below) will apply to such Cosmetic Alterations. Alterations are “Cosmetic Alterations” only if they do not involve or impact any Building HVAC, mechanical, electrical and or plumbing systems or components thereof, are not structural in nature, cannot be seen from the outside of the Premises, and upon Landlord’s written request, will be removed by Tenant, with the restoration of any damage resulting from the installation or removal thereof in accordance with Article 17 below, at the end of the Term. At Tenant’s request at the time the Cosmetic Alteration is made, Landlord shall inform Tenant as to whether it will require the removal of any particular Cosmetic Alteration. By way of example and without limitation, it shall be reasonable for Landlord to withhold its consent to Alterations which might materially adversely affect the structural portions of the Building or the life-safety, electrical, plumbing, heating, ventilation, air-conditioning, fire-protection, telecommunications or other building systems (collectively, the “Building Systems”). In addition, as a condition of its consent to Alterations hereunder, Landlord may impose any reasonable requirements that Landlord considers desirable, including a requirement that Tenant provide Landlord with reasonable financial assurance that the cost of the Alterations will be paid when due. Landlord acknowledges that Tenant may as part of Tenant’s Work pursuant to the Work Letter or as a subsequent Alteration elect to install solar panels (and associated infrastructure such as cabling and conduit) on the Building rooftop, and agrees that Landlord’s consent to such installation will not be unreasonably withheld, conditioned or delayed; provided that all such work shall be accomplished so , except as to not adversely impact set forth herein. Notwithstanding the foregoing, if any roof warranty and Tenant shall be responsible for all damage proposed Alterations involve modifications to the roof structural, mechanical, electrical, plumbing, fire/life safety or heating, ventilating and other parts air conditioning systems of the Building, then Landlord’s consent may be withheld in Landlord’s sole and absolute discretion. Landlord’s consent shall be contingent upon Tenant providing Landlord the following items or information, all of which shall be subject to Landlord’s approval: (a) the name of Tenant’s proposed contractor(s), (b) evidence of insurance from Tenant’s contractor(s) as set forth in this Article, (c) detailed plans and specifications for the proposed Alterations, and (d) valid building or other adverse consequences permits or licenses, as required by the appropriate governing authority. Landlord may suffer associated further condition its consent by requiring Tenant to (x) give Landlord satisfactory proof of Tenant’s financial ability to complete and fully pay for such Alterations, (y) deposit with Landlord the installationestimated sum required to complete such Alterations, useand/or (z) provide to Landlord, maintenance at Tenant’s sole expense, a payment and removal performance bond in form acceptable to Landlord and in a principal amount of not less than one hundred fifty percent (150%) of the estimated cost of such equipmentAlterations (or such other form of security acceptable to Landlord in its sole discretion) to insure Landlord against any liability for Liens (as hereinafter defined) and to ensure completion of all work associated therewith. Landlord’s consent or disapproval shall be given within fifteen (15) days following Tenant’s written request, with any disapproval specifying the reasons therefor, and any failure of Landlord agrees to respond to any request by Tenant for approval of Alterations which approval is required hereunder within ten (10) business days after delivery of Tenant’s written request; Landlord’s response shall be in writing and, if Landlord withholds its consent, Landlord shall specify in reasonable detail in Landlord’s notice of disapproval, the basis for such disapproval, and the changes which would be required in order to obtain Landlord’s approval. If Landlord fails to notify Tenant of Landlord’s approval or disapproval of any such Plans within such ten fifteen (1015) Business Day period, Tenant shall have the right to provide Landlord with a second written request for approval (a “Second Request”) that specifically identifies the applicable Plans and contains the following statement in bold and capital letters: “THIS IS A SECOND REQUEST FOR APPROVAL OF PLANS PURSUANT TO THE PROVISIONS OF PARAGRAPH 7(A) OF THE LEASE. IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED THE WORK DESCRIBED HEREIN.” If Landlord fails to respond to such Second Request within five (5) Business Days after receipt by Landlord, the work in question day period shall be deemed approved by Landlord. If Landlord timely delivers to Tenant notice of Landlord’s disapproval of any plans, Tenant may revise Tenant’s plans to incorporate the changes suggested by Landlord in Landlord’s notice of disapproval, and resubmit such plans to Landlord; in such event, the scope of Landlord’s review of such plans shall be limited to Tenant’s correction of the items in which Landlord had previously objected in writing. Landlord’s review and approval (or deemed approval) of such revised plans shall be governed by the provisions set forth above in this Paragraph 7(A), provided that the time period for Landlord’s review will be five (5) business days. The procedure set out above for approval of Tenant’s plans will also apply to any change, addition or amendment to Tenant’s plans. Alterations made by Tenant, including without limitation any partitions (movable or otherwise) or floor coverings, shall become a part of the Building and belong to Landlord; provided, however, that equipment, trade fixtures and movable furniture shall remain the property of Tenant. If Landlord consents to the making of any Alterations, the same shall be designed and constructed or installed by Tenant at Tenant’s expense (including expenses incurred in complying with applicable laws). All Alterations shall be performed only by contractors or mechanics approved by Landlord, which approval shall not be unreasonably withheld; provided that Tenant will not be required to retain union-affiliated contractors for the performance of such workproposed Alteration. All Alterations shall be made in accordance compliance with complete applicable municipal, county, state and detailed architecturalfederal laws, mechanical codes and engineering plans regulations, including without limitation the Americans With Disabilities Act of 1990 and specifications approved its related rules and regulations (“ADA”).
b. Notwithstanding any other provision hereof, Alterations shall not include Tenant’s personal property, and Tenant may install trade fixtures, equipment and machinery in writing by Landlord and shall be designed and diligently constructed in a good and workmanlike manner and in compliance conformance with all applicable ordinances and laws, and they may be removed upon expiration of the Lease Term or earlier termination of this Lease, provided the Premises are not damaged by their removal and the Premises is promptly returned to its original condition by Tenant at Tenant’s expense. Any private telephone systems and/or other related telecommunications equipment and lines must be installed within the Premises, and upon expiration of the Lease Term or earlier termination of this Lease, Landlord may, at its sole option, require Tenant to remove such equipment and lines at Tenant’s expense. The design and construction terms of this Section shall survive the expiration of the Lease Term or earlier termination of this Lease.
c. Tenant shall not permit any Alterations shall mechanic’s, materialmen’s or other liens (each, a “Lien”) to be performed in accordance with Landlordfiled against the Building, the Premises or Tenant’s applicable rulesleasehold interest therein. Tenant, regulations and requirements. Tenant at its sole expense, shall cause any Alterations such Lien to be made in released or shall obtain a surety bond to discharge any such a manner and at such times so Lien pursuant to Arizona Revised Statutes §33-1004 (or any successor statute(s)) within ten (10) days after receipt of notice that any such work shall not disrupt Lien is filed. If Tenant fails to cause any such Lien to be so released or interfere with the use or occupancy of other tenants or occupants of adjacent buildings. Under no circumstances shall Landlord be liable to Tenant for any damage, loss, cost or expense incurred by Tenant on account of Tenant’s plans and specifications, Tenant’s contractors or subcontractors, design of any work, construction of any work, or delay in completion of any work.
B. Subsequent to obtaining Landlord’s consent and prior to commencement of the Alterations, Tenant shall deliver to Landlord (i) any building or other permit required by applicable laws in connection with the Alterations; and (ii) a copy of the executed construction contract(s). In addition, Tenant shall require its general contractor and all subcontractors to carry and maintain the following insurance at no expense to Landlord, and Tenant shall furnish Landlord with satisfactory evidence thereof prior to the commencement of construction: (A) Commercial General Liability Insurance with limits of not less than $3,000,000 combined single limit for bodily injury and property damage, including personal injury and death, and Contractor’s Protective Liability, and Products and Completed Operations Coverage in an amount not less than $500,000 per incident, $1,000,000 in the aggregate; (B) Comprehensive automobile liability insurance with a policy limit of not less than $1,000,000 each accident for bodily injury and property damage, providing coverage at least as broad as the Insurance Services Office (ISO) Business Auto Coverage form covering Automobile Liability, code 1 “any auto”, and insuring against all loss in connection with the ownership, maintenance and operation of automotive equipment that is owned, hired or non-owned; (C) Worker’s Compensation with statutory limits and Employer’s Liability Insurance with limits of not less than $100,000 per accident, $500,000 aggregate disease coverage and $100,000 disease coverage per employee; and (D) “Builder’s All Risk” insurance in an amount reasonably approved by Landlord covering the Alterations, including such extended coverage endorsements as may be reasonably required by Landlord, it being understood and agreed that the Alterations shall be insured by Tenant pursuant to the terms of this Lease immediately upon completion thereof. All such insurance policies (except Workers’ Compensation insurance) shall be endorsed to add Landlord, the holder of any mortgage covering the Building and Landlord’s designated agents as additional insureds with respect to liability arising out of work performed by or for Tenant’s general contractor, to specify that such insurance is primary and that any insurance or self-insurance maintained by Landlord shall not contribute with it, and to provide that the insurer will endeavor to provide Landlord with at least bonded within thirty (30) days prior written notice of any cancellation of a policy (ten (10) business days in the case of non-payment); however, Landlord acknowledges that the majority of American insurers currently are unwilling to provide notice to third parties (such as Landlord) of policy cancellation and agrees that if Tenant’s insurer is similarly unwilling to provide such notice to Landlord, then Tenant’s obligation pursuant to the provisions of this sentence shall be to promptly provide Landlord notice of after Tenant’s receipt of notice thereof, Landlord, without waiving its rights and remedies based on such failure, may cause such Lien to be released by any notice means Landlord reasonably deems proper, including payment in satisfaction of cancellation from any claim giving rise to such Lien. Tenant shall pay to Landlord as Additional Rent, within thirty (30) days after Tenant’s insurer. receipt of an invoice from Landlord, any sum paid by Landlord may inspect to remove any such Lien, together with interest at the original policies Default Rate from the date of such insurance coverage payment by Landlord until paid by Tenant. Tenant shall have the right to contest any such Lien in good faith provided that Tenant provides reasonable security in connection therewith. Notice is hereby given that neither Landlord nor Mortgagee (nor their respective interests in the Premises or require complete certified copies at any time. Tenant’s general contractor the Building) shall be liable or responsible to persons who furnish Landlord materials or labor for or in connection with the same evidence of insurance for its subcontractors as required Premises or the Building on behalf of Tenant’s general contractor.
C. , and Landlord shall have the right (but not an obligation) at all reasonable times to inspect the construction work during the progress thereof, and to require corrections of faulty construction or any material deviation from the plans for such Alterations as approved by Landlord; provided, however, that no such inspection shall be deemed to create any liability post on the part Premises or the Building and record any notices of Landlord, or constitute a representation by Landlord or any person hired to perform such inspection that the work so inspected conforms with such plans or complies with any applicable laws, and no such inspection shall give rise to a waiver of, or estoppel with respect to, Landlord’s continuing right at any time or from time to time to require the correction of any faulty work or any material deviation non-responsibility which it deems necessary for protection from such plansLiens. Promptly following completion The terms of any Alterations, Tenant this Section shall (i) furnish to Landlord “as-built” plans therefore, (ii) cause a timely notice of completion to be recorded in the Office survive expiration of the Recorder of the County in which the Building is located in accordance with Civil Code Section 3093 Lease Term or any successor statute, and (iii) deliver to Landlord evidence of full payment and unconditional final waivers of all liens for labor, services, or materials. All trash or surplus materials which may accumulate in connection with Tenant’s construction activities shall be removed by Tenant at its own expense from the Premises and the Building. The parties expressly acknowledge that Tenant may construct a modular clean room within the Premises and that Tenant may, at Tenant’s option, remove such clean room at the expiration or sooner earlier termination of this Lease. D Tenant shall pay to Landlord a fee in the amount of six percent (6%) of the hard cost of the Alterations for its review of plans and oversight (but not management) of the progress of the work (not to exceed, however, $25,000.00 per project) and shall reimburse Landlord for all reasonable out of pocket charges in excess of one percent (1%) of the hard cost of the Alterations incurred by Landlord; including but not limited to costs incurred for peer review and for oversight by Landlord’s architect and consultants.4824-0900-0329v5/27933-0139
Appears in 1 contract
Samples: Office Lease Agreement (JOINT Corp)
Alterations Mechanics Liens. A. Following the completion of Tenant’s Work pursuant to the terms and conditions of the Workletter attached hereto as Exhibit B, (a) Tenant agrees shall not to make or suffer allow to be made any alterationalterations, addition additions or improvement improvements to or of the Premises (hereinafter referred to as “Alterations”), or any part thereof, thereof without first obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld, except that Landlord's consent may be granted or withheld by Landlord in its sole, absolute and arbitrary discretion as to alterations, additions, or delayed; provided, however, Tenant will have improvements which affect the right to perform Cosmetic Alterations which cost less than $50,000.00 after prior written notice to Landlord but without structural components or integrity of the necessity of obtaining Landlord’s consent and no construction management fee (described in Paragraph 7.D below) will apply to such Cosmetic Alterations. Alterations Premises or are “Cosmetic Alterations” only if they do not involve or impact any Building HVAC, mechanical, electrical and or plumbing systems or components thereof, are not structural in nature, cannot be seen from visible on the outside exterior of the Premises. Any alterations, additions or improvements to said Premises, except movable furniture and upon Landlord’s written request, will be removed by Tenant, with the restoration of any damage resulting from the installation or removal thereof in accordance with Article 17 below, at the end of the Term. At Tenant’s request at the time the Cosmetic Alteration is made, Landlord shall inform Tenant as to whether it will require the removal of any particular Cosmetic Alteration. By way of example and without limitation, it shall be reasonable for Landlord to withhold its consent to Alterations which might materially adversely affect the structural portions of the Building or the life-safety, electrical, plumbing, heating, ventilation, air-conditioning, fire-protection, telecommunications or other building systems (collectively, the “Building Systems”). In addition, as a condition of its consent to Alterations hereunder, Landlord may impose any reasonable requirements that Landlord considers desirable, including a requirement that Tenant provide Landlord with reasonable financial assurance that the cost of the Alterations will be paid when due. Landlord acknowledges that Tenant may as part of Tenant’s Work pursuant to the Work Letter or as a subsequent Alteration elect to install solar panels (and associated infrastructure such as cabling and conduit) on the Building rooftop, and agrees that Landlord’s consent to such installation will not be unreasonably withheld, conditioned or delayed; provided that all such work shall be accomplished so as to not adversely impact any roof warranty and Tenant shall be responsible for all damage to the roof and other parts of the Building, and all other adverse consequences Landlord may suffer associated with the installation, use, maintenance and removal of such equipment. Landlord agrees to respond to any request by Tenant for approval of Alterations which approval is required hereunder within ten (10) business days after delivery of Tenant’s written request; Landlord’s response shall be in writing and, if Landlord withholds its consent, Landlord shall specify in reasonable detail in Landlord’s notice of disapproval, the basis for such disapproval, and the changes which would be required in order to obtain Landlord’s approval. If Landlord fails to notify Tenant of Landlord’s approval or disapproval of any such Plans within such ten (10) Business Day period, Tenant shall have the right to provide Landlord with a second written request for approval (a “Second Request”) that specifically identifies the applicable Plans and contains the following statement in bold and capital letters: “THIS IS A SECOND REQUEST FOR APPROVAL OF PLANS PURSUANT TO THE PROVISIONS OF PARAGRAPH 7(A) OF THE LEASE. IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED THE WORK DESCRIBED HEREIN.” If Landlord fails to respond to such Second Request within five (5) Business Days after receipt by Landlord, the work in question shall be deemed approved by Landlord. If Landlord timely delivers to Tenant notice of Landlord’s disapproval of any plans, Tenant may revise Tenant’s plans to incorporate the changes suggested by Landlord in Landlord’s notice of disapproval, and resubmit such plans to Landlord; in such event, the scope of Landlord’s review of such plans shall be limited to Tenant’s correction of the items in which Landlord had previously objected in writing. Landlord’s review and approval (or deemed approval) of such revised plans shall be governed by the provisions set forth above in this Paragraph 7(A), provided that the time period for Landlord’s review will be five (5) business days. The procedure set out above for approval of Tenant’s plans will also apply to any change, addition or amendment to Tenant’s plans. Alterations made by Tenant, including without limitation any partitions (movable or otherwise) or floor coveringstrade fixtures, shall at once become a part of the Building realty and belong to Landlordthe Landlord and shall be surrendered to the Landlord with the Premises; provided, however, that equipmentTenant shall, trade fixtures at Tenant's own cost and movable furniture expense, remove any such alterations, additions or improvements made by Tenant upon the expiration or sooner termination of the Term if requested to do so by Landlord and, at such time, repair any damage to the Premises caused by such removal. Together with its request for consent for any additions, alterations or improvements, Tenant shall remain submit to Landlord plans for the property proposed work prepared and sealed by an architect or engineer licensed by the State of TenantFlorida. If No work shall commence until Landlord has approved the plans for the work, and there shall be no variation from the plans once approved by Landlord. Tenant shall reimburse Landlord for all reasonable costs incurred by Landlord in connection with the review and approval of the plans for such work. Landlord agrees to act with reasonable promptness with respect to such plans. In the event Landlord consents to the making of any Alterationsalterations, additions or improvements to the Premises by Tenant, the same shall be designed and constructed or installed made by Tenant at Tenant’s expense (including expenses incurred in complying with applicable laws)'s own cost and expense. Landlord shall have the right to require that any such work be fully bonded. All Alterations such alterations, additions and improvements shall be performed only by contractors or mechanics approved by Landlord, which approval shall not be unreasonably withheld; provided that Tenant will not be required to retain union-affiliated contractors for the performance of such work. All Alterations shall be made in accordance with complete and detailed architectural, mechanical and engineering plans and specifications approved in writing by Landlord and shall be designed and diligently constructed in a good and workmanlike manner and in compliance with all applicable laws. The design and construction of any Alterations shall be performed manner, in accordance with Landlord’s applicable rules, regulations and requirements. Tenant shall cause any Alterations to be made in such a manner and at such times so that any such work shall not disrupt or interfere with the use or occupancy of other tenants or occupants of adjacent buildings. Under no circumstances shall Landlord be liable to Tenant for any damage, loss, cost or expense incurred by Tenant on account of Tenant’s approved plans and specifications, Tenant’s contractors or subcontractors, design of any work, a construction of any work, or delay in completion of any workschedule approved by Landlord.
B. Subsequent (b) Prior to obtaining Landlord’s consent and prior commencing any work pursuant to commencement the provisions of the Alterationsforegoing paragraph, Tenant shall deliver furnish to Landlord Landlord:
(i) any building Copies of all governmental permits and authorizations which may be required in connection with such work;
(ii) A certificate evidencing that Tenant (or other permit required by applicable laws Tenant's contractors) has (have) procured workmen's compensation insurance covering all persons employed in connection with the Alterations; and work who might assert claims for death or bodily injury against Landlord or Tenant;
(iiiii) a copy of the executed construction contract(s). In addition, Tenant shall require its general contractor and all subcontractors to carry and maintain the following insurance at no expense to Landlord, and Tenant shall furnish Landlord with satisfactory evidence thereof prior to the commencement of construction: (A) Commercial General Liability Insurance with limits of not less than $3,000,000 combined single limit for bodily Such additional personal injury and property damage, including personal injury damage insurance (over and death, and Contractor’s Protective Liability, and Products and Completed Operations Coverage in an amount not less than $500,000 per incident, $1,000,000 in the aggregate; (B) Comprehensive automobile liability above insurance with a policy limit of not less than $1,000,000 each accident for bodily injury and property damage, providing coverage at least as broad as the Insurance Services Office (ISO) Business Auto Coverage form covering Automobile Liability, code 1 “any auto”, and insuring against all loss in connection with the ownership, maintenance and operation of automotive equipment that is owned, hired or non-owned; (C) Worker’s Compensation with statutory limits and Employer’s Liability Insurance with limits of not less than $100,000 per accident, $500,000 aggregate disease coverage and $100,000 disease coverage per employee; and (D) “Builder’s All Risk” insurance in an amount reasonably approved by Landlord covering the Alterations, including such extended coverage endorsements as may required to be reasonably required by Landlord, it being understood and agreed that the Alterations shall be insured carried by Tenant pursuant to the terms of this Lease immediately upon completion thereof. All such insurance policies (except Workers’ Compensation insurance) shall be endorsed to add Landlord, the holder of any mortgage covering the Building and Landlord’s designated agents as additional insureds with respect to liability arising out of work performed by or for Tenant’s general contractor, to specify that such insurance is primary and that any insurance or self-insurance maintained by Landlord shall not contribute with it, and to provide that the insurer will endeavor to provide Landlord with at least thirty (30) days prior written notice of any cancellation of a policy (ten (10) business days in the case of non-payment); however, Landlord acknowledges that the majority of American insurers currently are unwilling to provide notice to third parties (such as Landlord) of policy cancellation and agrees that if Tenant’s insurer is similarly unwilling to provide such notice to Landlord, then Tenant’s obligation pursuant to the provisions of this sentence shall be to promptly provide Landlord notice of Tenant’s receipt of any notice of cancellation from Tenant’s insurer. Paragraph 12 hereof) as Landlord may inspect reasonably require because of the original policies nature of such insurance coverage or require complete certified copies at any time. the work to be done by Tenant’s general contractor shall furnish Landlord the same evidence of insurance for its subcontractors as required of Tenant’s general contractor.
C. Landlord shall have the right (but not an obligationc) to inspect the construction work during the progress thereof, and to require corrections of faulty construction or any material deviation from the plans for such Alterations as approved by Landlord; provided, however, that no such inspection shall be deemed to create any liability on the part of Landlord, or constitute a representation by Landlord or any person hired to perform such inspection that the work so inspected conforms with such plans or complies with any applicable laws, and no such inspection shall give rise to a waiver of, or estoppel with respect to, Landlord’s continuing right at any time or from time to time to require the correction of any faulty work or any material deviation from such plans. Promptly following completion of any Alterations, Tenant shall (i) furnish to Landlord “as-built” plans therefore, (ii) cause a timely notice keep the Premises and all parts thereof at all times free of completion to be recorded in the Office of the Recorder of the County in which the Building is located in accordance with Civil Code Section 3093 or mechanic's liens and any successor statute, and (iii) deliver to Landlord evidence of full payment and unconditional final waivers of all liens other lien for labor, services, supplies, equipment or materialsmaterial purchased or procured, directly or indirectly, by or for Tenant. All trash Tenant further agrees that Tenant will promptly pay and satisfy all liens of contractors, subcontractors, mechanics, laborers, materialmen, and other items of like character, and will indemnify Landlord against all expenses, costs and charges, including bond premiums, for release of liens and attorneys fees and costs reasonably incurred in and about the defense of any suit in discharging the Premises, from any liens, judgments, or surplus materials which may accumulate in connection with encumbrances caused or suffered by Tenant’s construction activities . In the event any such lien shall be removed by made or filed, Tenant at its own expense from shall bond against or discharge the same within ten (10) days after the same has been made or filed. It is understood and agreed between the parties hereto that the expenses, costs and charges above referred to shall be considered as Additional Rent, and in the event of non-payment, Landlord shall have all of the rights and remedies as herein provided for the non-payment of Base Rent. The Tenant herein shall not have any authority to create any liens for labor or material on the Landlord's interest in the Premises and all persons contracting with the Building. The parties expressly acknowledge Tenant for the construction or removal of any facilities or other improvements on or about the Premises, and all materialmen, contractors, mechanics, and laborers are hereby charged with notice that they must look only to the Tenant may construct a modular clean room within and to the Tenant's interests in the Premises and that Tenant to secure the payment of any bill xxx work done or material furnished at the request or instruction of Tenant. Landlord may, at Tenant’s Landlord's option, remove record a notice of this provision in the public records of the county in which the Premises are located and Tenant agrees to execute such clean room notice at the expiration or sooner termination request of this Lease. D Tenant shall pay to Landlord a fee in the amount of six percent (6%) of the hard cost of the Alterations for its review of plans and oversight (but not management) of the progress of the work (not to exceed, however, $25,000.00 per project) and shall reimburse Landlord for all reasonable out of pocket charges in excess of one percent (1%) of the hard cost of the Alterations incurred by Landlord; including but not limited to costs incurred for peer review and for oversight by Landlord’s architect and consultants.
Appears in 1 contract
Samples: Lease Agreement (TNR Technical Inc)
Alterations Mechanics Liens. A. Following the completion of Tenant’s Work pursuant to the terms and conditions of the Workletter attached hereto as Exhibit B, Tenant agrees shall not to make or suffer permit any repairs, improvements, installations or alterations whatsoever to be made any alteration, addition or improvement to or of the Premises (hereinafter referred to as “Alterations”), or any part thereof, without the prior written consent of Landlord. Any addition to or alteration of the Premises (except furniture and trade fixtures) shall become at once a part of the realty and belong to Landlord. As a condition of such consent, which consent shall Landlord may require Tenant to provide such documents and other evidence as Landlord may, in his sole discretion, deem appropriate, including, but not be unreasonably withheld limited to:
(a) proposed plans and specifications for any such repairs, improvements, installations or delayed; providedalterations, however, Tenant and (b) all documents necessary to show permits have been obtained and that the proposed work will have not in any way affect the right to perform Cosmetic Alterations which cost less than $50,000.00 after prior written notice to Landlord but without the necessity of obtaining Landlord’s consent and no construction management fee (described in Paragraph 7.D below) will apply to such Cosmetic Alterations. Alterations are “Cosmetic Alterations” only if they do not involve or impact any Building HVAC, mechanical, electrical and or plumbing systems or components thereof, are not structural in nature, cannot be seen from the outside integrity of the Premises. Tenant shall supply to Landlord as-built drawings of all such work within thirty (30) days after completion of such work. Tenant will post notices of Landlord's non-responsibility for material supplied, labor performed, and upon Landlord’s written requestany injuries or accidents at all entrances to the Premises prior to the commencement of the said work. Not later than the last day of the Term, will be removed by Tenant, at its expense, shall remove all of Tenant's personal property which has not become the property of Landlord and Tenants' furniture and trade fixtures, repair all injury done by or in connection with the restoration of any damage resulting from the installation or removal thereof of same, and surrender the Premises in accordance with Article 17 below, as good condition as they were at the end beginning of the Term, reasonable wear and tear excepted. At Tenant’s request at Tenant shall keep the time the Cosmetic Alteration is made, Landlord shall inform Tenant as to whether it will require the removal Premises and therein free and clear from any liens arising out of any particular Cosmetic Alterationwork performed, material furnished or obligations incurred by Tenant; and failure to do so shall constitute a default by Tenant. By way Tenant, within thirty (30) days after notice from Landlord, shall discharge any construction lien for materials or labor claimed to have been furnished to the Premises on Tenant's behalf. Landlord, at its sole option, may require Tenant to post a bond to guarantee payment of example and without limitation, it shall obligations of Tenant which could be reasonable for Landlord to withhold its consent to Alterations which might materially adversely affect secured with liens recordable against the structural portions of the Building or the life-safety, electrical, plumbing, heating, ventilation, air-conditioning, fire-protection, telecommunications or other building systems (collectively, the “Building Systems”)Premises. In additionthe event Tenant fails to so discharge such liens, as a condition of its consent to Alterations hereunder, Landlord may impose any reasonable requirements that Landlord considers desirable, including a requirement that Tenant provide Landlord with reasonable financial assurance that the cost of the Alterations will be paid when due. Landlord acknowledges that Tenant may as part of Tenant’s Work pursuant to the Work Letter or as a subsequent Alteration elect to install solar panels (and associated infrastructure such as cabling and conduit) on the Building rooftop, and agrees that Landlord’s consent to such installation will not be unreasonably withheld, conditioned or delayed; provided that all such work shall be accomplished so as to not adversely impact any roof warranty and Tenant shall be responsible for all damage to the roof and other parts in default of the Building, and all other adverse consequences this Lease whereupon Landlord may suffer associated with the installation, use, maintenance and removal of such equipment. Landlord agrees to respond to any request by Tenant for approval of Alterations which approval is required hereunder within ten (10) business days after delivery of Tenant’s written request; Landlord’s response shall be in writing and, if Landlord withholds its consent, Landlord shall specify in reasonable detail in Landlord’s notice of disapproval, the basis for such disapproval, and the changes which would be required in order to obtain Landlord’s approval. If Landlord fails to notify Tenant of Landlord’s approval or disapproval of any such Plans within such ten (10) Business Day period, Tenant shall have the right to provide Landlord with a second written request for approval (a “Second Request”) that specifically identifies the applicable Plans and contains the following statement in bold and capital letters: “THIS IS A SECOND REQUEST FOR APPROVAL OF PLANS PURSUANT TO THE PROVISIONS OF PARAGRAPH 7(A) OF THE LEASE. IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICEtake any action necessary to satisfy, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED THE WORK DESCRIBED HEREIN.” If Landlord fails to respond to compromise or bond any such Second Request within five (5) Business Days after receipt by Landlordliens, the work in question shall be deemed approved by Landlord. If Landlord timely delivers to Tenant notice of Landlord’s disapproval of any plans, Tenant may revise Tenant’s plans to incorporate the changes suggested by Landlord in Landlord’s notice of disapproval, and resubmit such plans to Landlord; in such event, the scope of Landlord’s review of such plans shall be limited to Tenant’s correction of the items in which Landlord had previously objected in writing. Landlord’s review and approval (or deemed approval) of such revised plans shall be governed by the provisions set forth above in this Paragraph 7(A), provided that the time period for Landlord’s review will be five (5) business days. The procedure set out above for approval of Tenant’s plans will also apply to any change, addition or amendment to Tenant’s plans. Alterations made by Tenant, including without limitation any partitions (movable or otherwise) or floor coverings, shall become a part of the Building and belong to Landlord; provided, however, that equipment, trade fixtures and movable furniture shall remain the property of Tenant. If Landlord consents to the making of any Alterations, the same shall be designed and constructed or installed by Tenant at Tenant’s expense (including expenses incurred in complying with applicable laws). All Alterations shall be performed only by contractors or mechanics approved by Landlord, which approval shall not be unreasonably withheld; provided that Tenant will not be required to retain union-affiliated contractors for the performance of such work. All Alterations shall be made in accordance with complete and detailed architectural, mechanical and engineering plans and specifications approved in writing by Landlord and shall be designed and diligently constructed in a good and workmanlike manner and in compliance with all applicable laws. The design and construction of any Alterations shall be performed in accordance with Landlord’s applicable rules, regulations and requirements. whereupon Tenant shall cause any Alterations to be made in such a manner and at such times so that any such work shall not disrupt or interfere with the use or occupancy of other tenants or occupants of adjacent buildings. Under no circumstances shall Landlord be liable to Tenant Landlord, on demand, for any damage, loss, cost or expense all costs and expenses incurred by Tenant on account of Tenant’s plans and specifications, Tenant’s contractors Landlord to obtain a discharge or subcontractors, design of any work, construction of any work, or delay in completion of any work.
B. Subsequent to obtaining Landlord’s consent and prior to commencement of the Alterations, Tenant shall deliver to Landlord (i) any building or other permit required by applicable laws in connection with the Alterations; and (ii) a copy of the executed construction contract(s). In addition, Tenant shall require its general contractor and all subcontractors to carry and maintain the following insurance at no expense to Landlord, and Tenant shall furnish Landlord with satisfactory evidence thereof prior to the commencement of construction: (A) Commercial General Liability Insurance with limits of not less than $3,000,000 combined single limit for bodily injury and property damage, including personal injury and death, and Contractor’s Protective Liability, and Products and Completed Operations Coverage in an amount not less than $500,000 per incident, $1,000,000 in the aggregate; (B) Comprehensive automobile liability insurance with a policy limit of not less than $1,000,000 each accident for bodily injury and property damage, providing coverage at least as broad as the Insurance Services Office (ISO) Business Auto Coverage form covering Automobile Liability, code 1 “any auto”, and insuring against all loss in connection with the ownership, maintenance and operation of automotive equipment that is owned, hired or non-owned; (C) Worker’s Compensation with statutory limits and Employer’s Liability Insurance with limits of not less than $100,000 per accident, $500,000 aggregate disease coverage and $100,000 disease coverage per employee; and (D) “Builder’s All Risk” insurance in an amount reasonably approved by Landlord covering the Alterations, including such extended coverage endorsements as may be reasonably required by Landlord, it being understood and agreed that the Alterations shall be insured by Tenant pursuant to the terms of this Lease immediately upon completion thereof. All such insurance policies (except Workers’ Compensation insurance) shall be endorsed to add Landlord, the holder of any mortgage covering the Building and Landlord’s designated agents as additional insureds with respect to liability arising out of work performed by or for Tenant’s general contractor, to specify that such insurance is primary and that any insurance or self-insurance maintained by Landlord shall not contribute with it, and to provide that the insurer will endeavor to provide Landlord with at least thirty (30) days prior written notice of any cancellation of a policy (ten (10) business days in the case of non-payment); however, Landlord acknowledges that the majority of American insurers currently are unwilling to provide notice to third parties (such as Landlord) of policy cancellation and agrees that if Tenant’s insurer is similarly unwilling to provide such notice to Landlord, then Tenant’s obligation pursuant to the provisions of this sentence shall be to promptly provide Landlord notice of Tenant’s receipt of any notice of cancellation from Tenant’s insurer. Landlord may inspect the original policies bond of such insurance coverage or require complete certified copies at any time. Tenant’s general contractor shall furnish Landlord the same evidence of insurance for its subcontractors as required of Tenant’s general contractorlien.
C. Landlord shall have the right (but not an obligation) to inspect the construction work during the progress thereof, and to require corrections of faulty construction or any material deviation from the plans for such Alterations as approved by Landlord; provided, however, that no such inspection shall be deemed to create any liability on the part of Landlord, or constitute a representation by Landlord or any person hired to perform such inspection that the work so inspected conforms with such plans or complies with any applicable laws, and no such inspection shall give rise to a waiver of, or estoppel with respect to, Landlord’s continuing right at any time or from time to time to require the correction of any faulty work or any material deviation from such plans. Promptly following completion of any Alterations, Tenant shall (i) furnish to Landlord “as-built” plans therefore, (ii) cause a timely notice of completion to be recorded in the Office of the Recorder of the County in which the Building is located in accordance with Civil Code Section 3093 or any successor statute, and (iii) deliver to Landlord evidence of full payment and unconditional final waivers of all liens for labor, services, or materials. All trash or surplus materials which may accumulate in connection with Tenant’s construction activities shall be removed by Tenant at its own expense from the Premises and the Building. The parties expressly acknowledge that Tenant may construct a modular clean room within the Premises and that Tenant may, at Tenant’s option, remove such clean room at the expiration or sooner termination of this Lease. D Tenant shall pay to Landlord a fee in the amount of six percent (6%) of the hard cost of the Alterations for its review of plans and oversight (but not management) of the progress of the work (not to exceed, however, $25,000.00 per project) and shall reimburse Landlord for all reasonable out of pocket charges in excess of one percent (1%) of the hard cost of the Alterations incurred by Landlord; including but not limited to costs incurred for peer review and for oversight by Landlord’s architect and consultants.
Appears in 1 contract
Samples: Lease Agreement (Nuco2 Inc /Fl)
Alterations Mechanics Liens. A. Following the completion of Tenant’s Work pursuant to the terms and conditions of the Workletter attached hereto as Exhibit B, 13.1 Tenant agrees shall not to make or suffer to be made any alterationalterations, addition additions or improvement improvements to or of the Premises or any part thereof, including but not limited to painting, redecorating, remodeling or the attachment of any fixtures or equipment (hereinafter all of such activities being referred to herein as “Alterations”), or any part thereof, without the obtaining Landlord’s prior written consent of Landlordconsent, which consent shall not be unreasonably withheld or delayed; provided, however, Tenant will have the right to perform Cosmetic Alterations which cost less than $50,000.00 after prior written notice to Landlord but without the necessity of obtaining Landlord’s consent and no construction management fee (described in Paragraph 7.D below) will apply to such Cosmetic Alterations. Alterations are “Cosmetic Alterations” only if they do not involve or impact any Building HVAC, mechanical, electrical and or plumbing systems or components thereof, are not structural in nature, cannot be seen from the outside of the Premises, and upon Landlord’s written request, will be removed by Tenant, with the restoration of any damage resulting from the installation or removal thereof in accordance with Article 17 below, at the end of the Term. At Tenant’s request at the time the Cosmetic Alteration is made, Landlord shall inform Tenant as to whether it will require the removal of any particular Cosmetic Alteration. By way of example and without limitation, it shall be reasonable for Landlord to withhold its consent to Alterations which might materially adversely affect the structural portions of the Building or the life-safety, electrical, plumbing, heating, ventilation, air-conditioning, fire-protection, telecommunications or other building systems (collectively, the “Building Systems”). In addition, as a condition of its consent to Alterations hereunder, Landlord may impose any reasonable requirements that Landlord considers desirable, including a requirement that Tenant provide Landlord with reasonable financial assurance that the cost of the Alterations will be paid when due. Landlord acknowledges that Tenant may as part of Tenant’s Work pursuant to the Work Letter or as a subsequent Alteration elect to install solar panels (and associated infrastructure such as cabling and conduit) on the Building rooftop, and agrees that Landlord’s consent to such installation will not be unreasonably withheld, conditioned or delayed; provided that all such work , except as set forth herein. Notwithstanding the foregoing, if any proposed Alterations involve modifications to the structural, mechanical, electrical, plumbing, fire/life safety or heating, ventilating and air conditioning systems of the Building (each, a “Structural Alteration”), then Landlord’s consent may be withheld in Landlord’s sole and absolute discretion. Landlord’s consent shall be accomplished so as to not adversely impact any roof warranty and contingent upon Tenant providing Landlord the following items or information, all of which shall be responsible subject to Landlord’s approval: (a) the name of Tenant’s proposed contractor(s), (b) evidence of insurance from Tenant’s contractor(s) as set forth in this Article, (c) detailed plans and specifications for all damage the proposed Alterations (if applicable, as determined by Landlord), and (d) valid building or other permits or licenses, as required by the appropriate governing authority. Landlord may further condition its consent by requiring Tenant to (x) give Landlord satisfactory proof of Tenant’s financial ability to complete and fully pay for such Alterations, (y) deposit with Landlord the roof estimated sum required to complete such Alterations, and/or (z) provide to Landlord, at Tenant’s sole expense, a payment and other parts performance bond in form acceptable to Landlord and in a principal amount of not less than one hundred fifty percent (150%) of the Buildingestimated cost of such Alterations (or such other form of security acceptable to Landlord in its sole discretion) to insure Landlord against any liability for Liens (as defined below) and to ensure completion of all work associated therewith. Landlord’s consent or disapproval shall be given within fifteen (15) days following Tenant’s written request, with any disapproval specifying the reasons therefor, and all other adverse consequences any failure of Landlord may suffer associated with the installation, use, maintenance and removal of such equipment. Landlord agrees to respond to any request within such fifteen (15) day period shall be deemed Landlord’s disapproval of the proposed Alteration. All Alterations shall be made in compliance with applicable municipal, county, state and federal laws, codes and regulations, including without limitation the Americans With Disabilities Act of 1990 and its related rules and regulations (“ADA”). Notwithstanding the foregoing, Tenant may make interior cosmetic Alterations within the Premises, that are not Structural Alterations, without Landlord’s prior written consent, provided all such Alterations do not exceed $25,000.00 in the aggregate during any twelve (12) month period within the Lease Term (the “Minor Alterations”). Tenant shall still be obligated to comply with items (a), (b) and (d) above prior to commencing any Minor Alteration. Notwithstanding anything to the contrary, Landlord may not charge any construction management fee for Minor Alterations, and Landlord’s construction management fee for Structural Alterations shall not exceed 3% of the total cost of such Structural Alterations.
13.2 Notwithstanding any other provision hereof, Alterations shall not include Tenant’s personal property, and Tenant may, with written consent of Landlord, install trade fixtures, equipment and machinery in conformance with all applicable ordinances and laws, and they may be removed upon expiration of the Lease Term or earlier termination of this Lease, provided the Premises are not damaged by their removal and the Premises is promptly returned to its original condition by Tenant for approval at Tenant’s expense. Any private telephone systems and/or other related telecommunications equipment and lines must be installed within the Premises, and upon expiration of Alterations which approval is required hereunder the Lease Term or earlier termination of this Lease Landlord may, at its sole option, require Tenant to remove such equipment and lines at Tenant’s expense and restore the Premises to its condition existing upon the Commencement Date, reasonable wear and tear excepted. The terms of this Section shall survive the expiration of the Lease Term or earlier termination of this Lease.
13.3 Tenant shall not permit any mechanic’s, materialmen’s or other liens (each, a “Lien”) to be filed against the Project, the Premises or Tenant’s leasehold interest therein. Tenant, at its sole expense, shall cause any such Lien to be released or shall obtain a surety bond to discharge any such Lien pursuant to Arizona Revised Statutes §33-1004 (or any successor statute(s)) within ten (10) business 30 days after delivery receipt of notice that any such Lien is filed. If Tenant fails to cause any such Lien to be so released or bonded within thirty (30) days after Tenant’s written request; receipt of notice thereof, Landlord’s response shall , without waiving its rights and remedies based on such failure, may cause such Lien to be released by any means Landlord reasonably deems proper, including payment in writing and, if Landlord withholds its consent, Landlord shall specify in reasonable detail in Landlord’s notice of disapproval, the basis for such disapproval, and the changes which would be required in order to obtain Landlord’s approval. If Landlord fails to notify Tenant of Landlord’s approval or disapproval satisfaction of any claim giving rise to such Plans Lien. Tenant shall pay to Landlord as Additional Rent, within thirty (30) days after Tenant’s receipt of an invoice from Landlord, any sum paid by Landlord to remove any such ten (10) Business Day periodLien, together with interest at the Default Rate from the date of such payment by Landlord until paid by Tenant. Tenant shall have the right to provide contest any such Lien in good faith provided that Tenant provides reasonable security in connection therewith. Notice is hereby given that neither Landlord nor Mortgagee (nor their respective interests in the Premises or the Project) shall be liable or responsible to persons who furnish materials or labor for or in connection with a second written request the Premises or the Project on behalf of Tenant, and Landlord shall have the right at all reasonable times to post on the Premises or the Project and record any notices of non-responsibility which it deems necessary for approval (a “Second Request”) that specifically identifies protection from such Liens. The terms of this Section shall survive expiration of the applicable Plans Lease Term or earlier termination of this Lease.
13.4 Tenant hereby agrees to indemnify and contains the following statement in bold hold Landlord harmless from and capital letters: “THIS IS A SECOND REQUEST FOR APPROVAL OF PLANS PURSUANT TO THE PROVISIONS OF PARAGRAPH 7(A) OF THE LEASE. IF LANDLORD FAILS TO RESPOND WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE, THEN LANDLORD SHALL BE DEEMED TO HAVE APPROVED THE WORK DESCRIBED HEREIN.” If Landlord fails to respond to such Second Request within five (5) Business Days after receipt against any Liabilities incurred by Landlord, the work in question shall be deemed approved by Landlord. If Landlord timely delivers Project, or the Premises arising, whether directly or indirectly, from Tenant or Tenant Parties making or removing any Alterations to Tenant notice of Landlord’s disapproval of any plans, Tenant may revise Tenant’s plans to incorporate the changes suggested by Landlord in Landlord’s notice of disapproval, and resubmit such plans to Landlord; in such event, the scope of Landlord’s review of such plans shall be limited to Tenant’s correction of the items in which Landlord had previously objected in writing. Landlord’s review and approval (or deemed approval) of such revised plans shall be governed by the provisions set forth above in this Paragraph 7(A), provided that the time period for Landlord’s review will be five (5) business days. The procedure set out above for approval of Tenant’s plans will also apply to any change, addition or amendment to Tenant’s plans. Alterations made by TenantPremises, including without limitation any partitions (movable or otherwise) or floor coverings, Liens arising therefrom. Any Alterations made by Tenant shall become a part of the Building Premises and belong to shall, without payment of compensation, become the property of Landlord; provided, however, that equipment, trade fixtures Landlord may disclaim such ownership and movable furniture shall remain require Tenant to remove some or all of the property of TenantAlterations provided Landlord has made such removal a condition at the time Landlord provided its consent thereto. If Landlord consents to requires the making of any Alterations, the same shall be designed and constructed or installed by Tenant at Tenant’s expense (including expenses incurred in complying with applicable laws). All Alterations shall be performed only by contractors or mechanics approved by Landlord, which approval shall not be unreasonably withheld; provided that Tenant will not be required to retain union-affiliated contractors for the performance of such work. All Alterations shall be made in accordance with complete and detailed architectural, mechanical and engineering plans and specifications approved in writing by Landlord and shall be designed and diligently constructed in a good and workmanlike manner and in compliance with all applicable laws. The design and construction of any Alterations shall be performed in accordance with Landlord’s applicable rules, regulations and requirements. Tenant shall cause any Alterations to be made in such a manner and at such times so that any such work shall not disrupt or interfere with the use or occupancy of other tenants or occupants of adjacent buildings. Under no circumstances shall Landlord be liable to Tenant for any damage, loss, cost or expense incurred by Tenant on account of Tenant’s plans and specifications, Tenant’s contractors or subcontractors, design of any work, construction of any work, or delay in completion of any work.
B. Subsequent to obtaining Landlord’s consent and prior to commencement of the Alterations, Tenant shall deliver to Landlord (i) any building or other permit required by applicable laws in connection with the Alterations; and (ii) a copy of the executed construction contract(s). In addition, Tenant shall require its general contractor and all subcontractors to carry and maintain the following insurance at no expense to Landlord, and Tenant shall furnish Landlord with satisfactory evidence thereof prior to the commencement of construction: (A) Commercial General Liability Insurance with limits of not less than $3,000,000 combined single limit for bodily injury and property damage, including personal injury and death, and Contractor’s Protective Liability, and Products and Completed Operations Coverage in an amount not less than $500,000 per incident, $1,000,000 in the aggregate; (B) Comprehensive automobile liability insurance with a policy limit of not less than $1,000,000 each accident for bodily injury and property damage, providing coverage at least as broad as the Insurance Services Office (ISO) Business Auto Coverage form covering Automobile Liability, code 1 “any auto”, and insuring against all loss in connection with the ownership, maintenance and operation of automotive equipment that is owned, hired or non-owned; (C) Worker’s Compensation with statutory limits and Employer’s Liability Insurance with limits of not less than $100,000 per accident, $500,000 aggregate disease coverage and $100,000 disease coverage per employee; and (D) “Builder’s All Risk” insurance in an amount reasonably approved by Landlord covering the Alterations, including such extended coverage endorsements as may be reasonably required by Landlord, it being understood and agreed that the Alterations shall be insured by Tenant pursuant to the terms of this Lease immediately upon completion thereof. All such insurance policies (except Workers’ Compensation insurance) shall be endorsed to add Landlord, the holder of any mortgage covering the Building and Landlord’s designated agents as additional insureds with respect to liability arising out of work performed by or for Tenant’s general contractor, to specify that such insurance is primary and that any insurance or self-insurance maintained by Landlord shall not contribute with it, and to provide that the insurer will endeavor to provide Landlord with at least thirty (30) days prior written notice of any cancellation of a policy (ten (10) business days in the case of non-payment); however, Landlord acknowledges that the majority of American insurers currently are unwilling to provide notice to third parties (such as Landlord) of policy cancellation and agrees that if Tenant’s insurer is similarly unwilling to provide such notice to Landlord, then Tenant’s obligation pursuant to the provisions of this sentence shall be to promptly provide Landlord notice of Tenant’s receipt of any notice of cancellation from Tenant’s insurer. Landlord may inspect the original policies of such insurance coverage or require complete certified copies at any time. Tenant’s general contractor shall furnish Landlord the same evidence of insurance for its subcontractors as required of Tenant’s general contractor.
C. Landlord shall have the right (but not an obligation) to inspect the construction work during the progress thereof, and to require corrections of faulty construction or any material deviation from the plans for such Alterations as approved by Landlord; provided, however, that no such inspection shall be deemed to create any liability on the part of Landlord, or constitute a representation by Landlord or any person hired to perform such inspection that the work so inspected conforms with such plans or complies with any applicable laws, and no such inspection shall give rise to a waiver of, or estoppel with respect to, Landlord’s continuing right at any time or from time to time to require the correction of any faulty work or any material deviation from such plans. Promptly following completion removal of any Alterations, Tenant shall (i) furnish to Landlord “as-built” plans thereforeshall, (ii) cause a timely notice of completion to be recorded in the Office of the Recorder of the County in which the Building is located in accordance with Civil Code Section 3093 or any successor statute, and (iii) deliver to Landlord evidence of full payment and unconditional final waivers of all liens for labor, services, or materials. All trash or surplus materials which may accumulate in connection with Tenant’s construction activities shall be removed by Tenant at its own expense from the Premises and the Building. The parties expressly acknowledge that Tenant may construct a modular clean room within the Premises and that Tenant maysole cost, at Tenant’s option, promptly remove such clean room at the expiration of the Lease Term or sooner earlier termination of this Lease, repair any damage to the Premises caused thereby, and return the Premises or the applicable portion thereof to its condition existing upon the Commencement Date, reasonable wear and tear excepted. D Tenant The terms of this Section shall pay survive expiration of the Lease Term or earlier termination of this Lease.
13.5 Provided that reasonable access to the Premises and Tenant’s parking spaces remain available, Landlord a fee shall have the right, from time to time and in its sole discretion, to: (a) make changes to the Project, including, without limitation, changes in the amount location, size, shape and number of six percent driveways, entrances, parking spaces, parking areas, ingress, egress, direction of driveways, entrances, corridors, parking areas and walkways; (6%b) close temporarily any portion of the hard cost Project for maintenance, replacement or repairs; (c) construct or permit construction of improvements in or about the Project, whether for existing or new tenants or otherwise; and (d) do and perform any other acts or make any other changes in, to, or with respect to, the Project as Landlord may, in the exercise of sound business judgment, deem to be appropriate. Notwithstanding anything to the contrary in this Lease, Tenant understands this right of Landlord and hereby (x) agrees that such construction will not be deemed to constitute a breach of this Lease by Landlord, and (y) waives any claim that it might have arising from such construction. The terms of the Alterations for its review of plans and oversight (but not management) previous sentence shall survive the expiration of the progress Lease Term or earlier termination of the work (not to exceed, however, $25,000.00 per project) and shall reimburse Landlord for all reasonable out of pocket charges in excess of one percent (1%) of the hard cost of the Alterations incurred by Landlord; including but not limited to costs incurred for peer review and for oversight by Landlord’s architect and consultantsthis Lease.
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