ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall pay up to the amount of the “Landlord’s Contribution” (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section 1.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change. Tenant shall approve or disapprove such change order in writing within 2 days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 2 contracts

Samples: Lease Agreement, Lease (Ruckus Wireless Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall pay up to the amount of the “Landlord’s Contribution” (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, ~~including~~ including, without limitation, additional costs resulting from ~~“Changes”~~ Changes (as hereinafter defined) requested by ~~Tenant~~Tenant that would cause the Tenant Improvement Work to exceed Landlord’s Contribution, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. ~~Unless otherwise specified in~~ To the ~~Plan or Cost Estimate~~extent applicable, ~~all materials, specifications and finishes utilized in constructing~~ the build-out of the Tenant Improvements shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Building Standard Improvements”), except for those additions or variations to Building Standard Improvements expressly approved by Landlord and noted on the Preliminary Plan (any such addition or variation from the Standard Improvements shall be referred to herein as a “Non-Standard improvement”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant ~~Improvement~~ improvement Work, Tenant shall respond in writing, as appropriate, within 5 business days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. ~~Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change.~~ Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 days following Tenant’s receipt of such change order. If Tenant approves any such change ~~order~~order and the cost of such change order causes the Tenant Improvement Work to exceed Landlord’s Contribution, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same. , provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises, If Tenant disapproves any such change order, Tenant July 29, 2013 1 shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if If Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or would cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 business days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without ~~limitation~~ [imitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section ~~Ill~~ III below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. All Standard Tenant Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval thereof, require Tenant either (i) to remove all or any of the “Alternates” in the Plan which are elected by Tenant, and all or any of the Tenant Improvements approved by way of a Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace any such Non-Standard Improvements with the applicable Building Standard Improvements, or (ii) to reimburse Landlord for the reasonable cost of such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant July 29, 2013 2 shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. Landlord confirms and agrees, however, that no such removal and/or replacement shall be required for any of the Tenant Improvements shown in the approved Plan. F. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ up to 10 days prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. G. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxxxxx Xxxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 2 contracts

Samples: Lease (Lombard Medical, Inc.), Lease (Lombard Medical, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall cause its contractor to construct the Tenant Improvements in compliance with all laws, permits and code requirements in effect as of the date of the Amendment, including without limitation the Americans with Disabilities Act and all such other similar applicable federal or state laws or regulations. In the event any portion of the 217 Technology Premises, including the Tenant Improvements but excluding any Tenant Alterations, during the Term of the Lease, is found to not be in compliance with any law, permit or code requirement in effect as of the date of this Amendment, including without limitation the Americans with Disabilities Act and all such other similar applicable federal or state laws or regulations, then Landlord shall promptly at its sole cost and expense, and not as a Project Cost, make any modification necessary to the 217 Technology Premises to cause the 217 Technology Premises to be in compliance. The Tenant Improvement Work shall be constructed at Landlord’s sole cost and expense, except that Tenant shall pay ~~up to~~ that portion of the cost of installing and/or constructing the “Tenant’s Alternates Work” (as hereinafter defined) in excess of the amount of Sixty-Five Thousand Dollars ($65,000.00) (the “Tenant’s Alternates Obligation”). Tenant shall pay seventy percent (70%) of the estimated amount of the Tenant’s Alternates Obligation shown in the Cost Estimate prior to Landlord’s ~~Contribution” (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost~~ commencement of the Tenant Improvement Work, ~~including~~ and shall pay the balance of the Tenant’s Alternates Obligation prior to the Commencement Date for the 217 Technology Premises. In addition, if the actual cost of the Tenant’s Alternate Work is more or less than the estimated cost thereof shown in the Cost Estimate, Tenant shall pay the corresponding amount of the Tenant’s Alternates Obligation prior to the Commencement Date for the 217 Technology Premises or shall be credited in the corresponding amount against Basic Rent next coming due under this Lease, as applicable. As used herein, “Tenant’s Alternates Work” shall mean cost of installing and/or constructing that portion of the Tenant Improvement Work described as Alternates “H,” “I,” “J” and “M” in the Cost Estimate. Further, any additional ~~costs~~ cost resulting from ~~“Changes”~~ Changes (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 five (5) days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section 1.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change. Tenant shall approve or disapprove such change order in writing within 2 days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (AutoTrader Group, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall approve within the time period set forth below, both (i) a detailed space plan for the Premises, prepared by Landlord's architect, which includes interior partitions, ceilings, interior finishes, interior doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by Landlord's contractor, of the cost for which Landlord will complete or cause to be completed the Tenant Improvements ("Preliminary Cost Estimate"). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within ten (10) days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall ~~pay up~~ attempt to modify the ~~amount~~ Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. Notwithstanding the foregoing, however, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than the date set forth in Item 15 of the “Basic Lease Provisions ("Plan Approval Date"), it being understood that Tenant's failure to do so shall constitute a "Tenant Delay" for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord~~’s Contribution”~~ 's architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the Premises (collectively, "Programming Information"). Tenant's failure to provide the Programming Information by the Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Except as otherwise specified by Tenant in the Preliminary Plan or authorized by Landlord’s , the Tenant Improvements shall incorporate Landlord's building standard ~~tenant improvements,~~ materials and specifications ("Standards"). No deviations from the Standards may be required by Tenant with respect to doors and frames, finish hardware, entry graphics, the ceiling system, light fixtures and switches, mechanical systems, life and safety systems, and/or window coverings; provided that Landlord may, in its sole discretion, authorize in writing one or more of such deviations, in which event Tenant shall be solely responsible for the ~~Project as set forth in Schedule I attached hereto~~ cost of replacing same with the applicable Standard item(s) upon the expiration or termination of this Lease. All other non-standard items (“"Non-Standard Improvements”)") shall be subject to the reasonable prior approval of Landlord. ~~Should~~ Landlord ~~submit~~ shall in no event be required to approve any ~~additional plans~~Non-Standard Improvement if Landlord determines that such improvement (i) is of a lesser quality than the corresponding Standard, ~~equipment specification sheets~~(ii) fails to conform to applicable governmental requirements, (iii) requires building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in writing as a Tenant Delay, or ~~other matters~~ (v) would have an adverse aesthetic impact from the exterior of the Premises. D. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications ("Working Drawings and Specifications"), and Landlord's contractor shall prepare a final construction cost estimate ("Final Cost Estimate") for ~~approval or completion~~ the Tenant Improvements in ~~connection~~ conformity with the ~~Tenant Improvement Work,~~ Working Drawings and Specifications. Tenant shall ~~respond in writing, as appropriate, within 5~~ have ten (10) days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within ten (10) days of receipt without further revision. Tenant's failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. Without limiting the rights of Landlord for Tenant Delays as set forth herein, in the ~~Plan~~ event Tenant has not approved both the Working Drawings and Specifications and the Final Cost Estimate within sixty (60) days following the date of this Lease, then Landlord may, at its option, elect to terminate this Lease by written notice to Tenant. In the event Landlord elects to effect such a termination, Tenant shall, within ten (10) days following demand by Landlord, pay to Landlord any costs incurred by Landlord in connection with the preparation or ~~otherwise~~review of plans, construction estimates, price quotations, drawings or specifications under this Work Letter and for all costs incurred in the preparation and execution of this Lease, including any leasing commissions. B. E. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“"Change”")~~, and Landlord so approves such Change as provided in Section 1.C below~~, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 ten (10) days following its receipt from Landlord. Landlord shall have the right to decline Tenant~~’s receipt of such change order. If Tenant approves~~ 's request for a Change for any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the ~~change order, or (ii) defer Tenant’s payment~~ reasons set forth in Article II.C above for Landlord's disapproval of ~~such increase until the date 10 days after delivery of invoices for same~~a Non-Standard Improvement. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s 's approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within ten (10) days, fails to approve in writing both the Preliminary Plan and Preliminary Cost Estimate for the Tenant Improvements by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications and the Final Cost Estimate within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “"Tenant Delay”"), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. In no event, however, shall such date be earlier than the Estimated Commencement Date set forth in the Basic Lease Provisions. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 ten (10) days thereafter, of Tenant’s 's election to contest same by arbitration ~~pursuant to~~ with the ~~provisions of Section Ill below~~Judicial Arbitration and Mediation Service in Orange County, California. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may ~~install fixtures~~perform any work to be performed by Tenant hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s 's prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not~~ Such entry by ~~way~~ Tenant shall not trigger the occurrence of ~~limitation,~~ the "Commencement Date" as provided in Section 3.1(a) of the Lease. Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s 's risk. In no event shall the failure of Tenant’s 's contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement work and tendered the Premises to Tenant. F. H. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxxx Xxxx, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Industrial Lease (Phoenix Technologies LTD)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. 2.1 Tenant and Landlord ~~shall pay up~~ agree to work in good faith with each other to approve working drawings and specifications for the ~~amount of~~ Tenant Improvements (the “Working Drawings and Specifications”) prepared by Gensler Inc. (“Landlord’s ~~Contribution” (as defined below~~Architect”) ~~towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work~~and Landlord’s engineers, including ~~additional costs resulting from~~ all specifications and programming information requested of Tenant by Landlord’s Architect, and a cost estimate based on the Working Drawings and Specifications prepared by the General Contractor (the “~~Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or~~ Cost Estimate”), ~~all materials~~which Cost Estimate will include a reasonably detailed description of rates and a proposed construction schedule, ~~specifications~~ not later than August 8, 2014 (the “Plan Approval Date”). To the extent applicable, the Working Drawings and ~~finishes utilized in constructing the Tenant Improvements~~ Specifications shall be include Landlord’s 's building standard tenant improvements, materials and specifications for the Project as set forth in the “Outline Specifications- Tenant Improvements” set forth in the attached Schedule ~~I attached hereto~~ 1 (“Building Standard Improvements”), except for changes and additions specifically requested by Tenant and reasonably approved by Landlord in writing (any such addition or variation from the Standard Improvements shall be referred to herein as a (“Non-Standard Improvement”). ~~Should~~ All Tenant requests for Non-Standard Improvements must be in writing and shall provide sufficient specifications and details for Landlord ~~submit any additional plans, equipment specification sheets, or other matters~~ to ~~Tenant for approval or completion in connection with~~ reasonably evaluate impacts upon the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications and Cost Estimate. Tenant shall ~~not unreasonably withhold its approval~~ approve or provide suggested revisions to the Working Drawings and Specifications and Cost Estimate by signing copies of each or specifying in reasonable detail any ~~matter,~~ suggested revisions thereto as hereinabove provided. Landlord shall in good faith modify Working Drawings and ~~any disapproval shall be limited~~ Specifications and Cost Estimate to ~~items not previously approved by Tenant~~ incorporate Tenant's suggested revisions in a mutually satisfactory manner prior to the Plan ~~or otherwise~~Approval Date. B. 2.2 In the event that Tenant subsequently requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications approved by the parties pursuant to Section 2.1 above (“Change”), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written ~~change~~ order (a “Change Order”) as soon as is practical of any net cost increase in the Completion Cost above the Final Cost Estimate (taking into account any cost savings attributable to ~~complete the Tenant Improvement Work that~~ such Change ~~would cause. Such cost of the~~ Order together with previous Change ~~shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~Orders). Tenant shall approve or disapprove such ~~change order~~ Change Order, if any, in writing within 2 3 business days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for sameChange Order. If Tenant disapproves any such ~~change order~~Change Order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such ~~change order~~Change Order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a ~~change order~~Change Order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. Except for revisions required by code or other applicable laws which do not materially and adversely affect Tenant’s permitted use of the 5451 Xxxxx Xxxxxxx Xxxmises or materially increase Tenant’s Contribution, in no event shall Landlord have the right to make any revisions to the Working Drawings and Specifications without Tenant’s prior written consent, which consent shall not be unreasonably withheld or delayed. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, 2.3 Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in any event if the requested ~~Change to the Non-Standard Improvements~~ Change: (i) is materially adversely affects the structure of ~~a lesser quality than~~ the ~~Non-Standard Improvements previously approved by Landlord~~5451 Xxxxx Xxxxxxx Xxxlding, (ii) ~~fails to conform to applicable governmental requirements~~materially adversely affects the electrical, mechanical, plumbing, life safety, sprinkler, HVAC or other systems of the 5451 Xxxxx Xxxxxxx Xxxxxxxx, (~~iii~~xxx) ~~would result in~~ xxxects the ~~Premises requiring building services beyond~~ exterior appearance of the ~~level normally provided to other tenants~~5451 Xxxxx Xxxxxxx Xxxlding or the exterior areas of the Project, (iv) ~~interferes~~ does not comply with all applicable laws, (v) adversely affects the configuration of tenant spaces or the core spaces throughout the 5451 Xxxxx Xxxxxxx Xxxlding in ~~any manner with~~ the ~~proper functioning of~~following respects: non-continuous ceiling grid, inconsistency of lighting fixtures, walls penetrating the ceiling grid, significantly non-rectangular or ~~Landlord’s access to, any mechanical, electrical, plumbing~~ odd-sized offices (provided that minor variations in shape or ~~HVAC systems, facilities or equipment in or serving the Building~~size shall not be considered a Design Problem), or (vvi) ~~would have an adverse aesthetic impact~~ results in inconsistency of the quality, materials or finishes within the 5451 Xxxxx Xxxxxxx Xxxlding as to equivalently improved portions of the ~~Premises or~~ 5451 Xxxxx Xxxxxxx Xxxmises (collectively, a “Design Problem”). 2.4 Landlord’s General Contractor shall construct the Tenant Improvements under contract to Landlord. Promptly following the approval of the Working Drawings and Specifications by the parties pursuant to Section 2.1 above, Landlord shall cause ~~additional expenses~~ its General Contractor to submit the major subtrade work (including, without limitation, mechanical, electrical and plumbing) to a competitive bidding process involving at least 3 licensed and reputable subcontractors; and Landlord ~~in reletting~~ shall provide copies of the ~~Premises. The cost~~ bid responses to ~~complete any Non-Standard Improvements shall be borne by~~ Tenant. Such subcontractors are subject to Tenant’s approval. 2.5 All ~~Standard Improvements and Non-Standard~~ of the Tenant Improvements shall become the property of Landlord and shall be surrendered with the ~~Premises~~ 5451 Xxxxx Xxxxxxx Xxxmises at the ~~end~~ expiration or sooner termination of this Lease. Notwithstanding the ~~Term; except that~~ foregoing, Landlord ~~may~~shall have the right, by notice to Tenant given at the time of Landlord’s 's approval of a the Working Drawings and Specifications and any Change, to require Tenant ~~either~~ to remove ~~all or any of the Non-Standard Improvements and~~ all or any of the Tenant Improvements approved in the Working Drawings and Specifications or by way of such ~~Change requested by Tenant~~Change, to repair any damage to the ~~Premises or the Common Area~~ 5451 Xxxxx Xxxxxxx Xxxmises arising from such removal, and to replace ~~such~~ any Non-Standard Improvements so approved with the applicable Building Standard Improvement, provided that such right may only be exercised by Landlord with respect to Tenant Improvements (i) that constitute a Design Problem, or ~~to reimburse Landlord~~ (ii) that constitute the substitution of Non-Standard Improvements for ~~the reasonable cost of any such removal, repair and replacement upon demand~~Building Standard Improvements. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration ~~Date,~~ Date or sooner termination of this Lease~~, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination~~. ~~D. Notwithstanding any provision in the Lease~~ 2.6 Subject to ~~the contrary,~~ coordination with Landlord and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s ~~determination shall be conclusive unless Tenant notifies Landlord in writing~~General Contractor, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the 5th Floor Premises ~~3 weeks~~ and the 4th Floor Premises at a time frame agreed to by the Landlord, the General Contractor, and the Tenant, which is expected by be within 40 days prior to the Commencement Date of for the ~~Lease~~ 5th Floor Premises in order that Tenant may install ~~fixtures, furniture~~ its cabling and ~~cabling~~ related communication equipment and other personal property through Tenant’s own ~~contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time~~contractors. Any such work shall be subject to Landlord’s 's prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the 5451 Great America Premises ~~prior to the Commencement Date~~ is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time Landlord determines that such entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 24-hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s 's risk~~. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease~~. F. 2.7 Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Dan Xxx Rossi (“Tenant’s Construction Representative”), Telephone No. (~~000~~408) 000-0000, as xxail: deirxxxx@xxxxxx.xxx, xx its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Any notices or submittals to, or requests of, Tenant related to this Work Letter and/or the Tenant Improvement Work may be sent to Tenant’s Construction Representative at the email address above provided. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord. 2.8 Notwithstanding anything to the contrary in the Lease or this Work Letter, Tenant’s acceptance of the 5th Floor Premises and the 4th Floor Premises shall not be deemed a waiver of Tenant’s right to require Landlord to cause its contractor to correct any defects in the Tenant Improvements identified by Tenant, in writing, within twelve (12) months after the Commencement Date for the 5th Floor Premises and within twelve (12) months following the Commencement Date for the 4th Floor Premises, respectively. Landlord shall promptly repair or cause the General Contractor to repair all such defects, at no cost to Tenant. 2.9 Notwithstanding anything to the contrary in the Lease or this Work Letter, it is understood and agreed that completion of the Tenant Improvement Work is not a condition of, nor shall extend or otherwise affect, the Commencement Date for the 5th Floor Premises or the Commencment Date for the 4th Floor Premises; provided, however, that the Commencement Date for the 5th Floor Premises shall be delayed, on a day-for-day basis, for each day of “Landlord Delay” (as hereinafter defined) in the “Substantial Completion” (as hereinafter defined) of the Tenant Improvement Work for the 5th Floor Premises. As used herein, “Landlord Delay” shall mean any delay in the substantial completion of construction of the Tenant Improvements beyond 14

Appears in 1 contract

Samples: Lease (Arista Networks, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant has approved, or shall approve within the time period set forth below, a detailed space plan for the Premises, prepared by the architect engaged by Landlord ~~shall pay up to~~ for the ~~amount of the~~ work described herein (“Landlord’s ~~Contribution”~~ Architect”), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (~~as defined below~~“Preliminary Plan”), and (ii) ~~towards~~ an estimate, prepared by the contractor engaged by Landlord for the work herein (“Landlord’s Contractor”), of the cost of for which Landlord will complete or cause to be completed the Tenant ~~Improvement Work~~Improvements (“Preliminary Cost Estimate”). ~~Any additional cost~~ Tenant shall approve or disapprove the Preliminary Plan by signing and delivering same to Landlord within 3 business days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan to incorporate Tenant’s suggested revisions in a mutually satisfactory manner. Notwithstanding the foregoing, however, Tenant ~~Improvement Work~~shall approve in all respects a Preliminary Plan not later than February 29, 2012 (“Plan Approval Date”), it being understood that Tenant’s failure to do so shall constitute a “Tenant Delay” for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord’s Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including ~~additional costs resulting from “Changes”~~ without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (~~as hereinafter defined~~including load and HVAC requirements) ~~requested by~~ of Tenant’s equipment, ~~shall~~ and details of all other non-building standard improvements to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the Premises (collectively, “Programming Information”). Tenant’s failure to provide the Programming Information by the Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ Approval Date shall constitute a Tenant Delay for purposes of this Lease . Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord’s ~~building standard tenant improvements, materials~~ Architect and engineers shall prepare and deliver to the parties working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the ~~Project as set forth~~ Tenant Improvements in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have 5 business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. Tenant shall also have the right to change the plans if it finds the costs do not meet the Landlord Contribution. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Landlord’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within 3 business days of receipt without further revision. Tenant’s failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. Without limiting the rights of Landlord for Tenant Delays as set forth herein, in the ~~Plan~~ event Tenant has not approved both the Working Drawings and Specifications and the Final Cost Estimate within 60 days following the date of this Lease, then Landlord may, at its option, elect to terminate this Lease by written notice to Tenant. In the event Landlord elects to effect such a termination, Tenant shall, within 10 days following demand by Landlord, pay to Landlord any costs incurred by Landlord in connection with the preparation or ~~otherwise~~review of plans, construction estimates, price quotations, drawings or specifications under this Work Letter and for all costs incurred in the preparation and execution of this Lease, including any leasing commissions. B. D. It is understood that the Preliminary Plan and the Working Drawings and Specifications, together with any Changes thereto, shall be subject to the prior approval of Landlord. Landlord shall identify any disapproved items within 3 business days (or 2 business days in the case of Changes) after receipt of the applicable document. Should Landlord approve work that would necessitate any ancillary Building modification or other expenditure by Landlord, then except to the extent of any remaining balance of the “Landlord Contribution” as described below, Tenant shall, in addition to its other obligations herein, fund the cost thereof to Landlord as follows: (i) 33% by June 1, 2012, (ii) 33% upon 50% of the completion of the Tenant Improvements and (iii) the remaining balance upon substantial completion of the Tenant Improvements. All payments shall be made to Landlord within 30 days upon receipt of invoices. E. Upon approval of the Working Drawings and Specifications, Landlord shall submit them to competitive bid as provided above. Each bidding contractor shall use the electrical, mechanical, plumbing and fire/life safety engineers and subcontractors designated by Landlord. All other subcontractors shall be subject to Landlord’s reasonable approval, and Landlord may require that one or more designated subtrades be union contractors. The lowest responsible bidder shall be selected as Landlord’s general contractor and the bid amount shall be deemed the “Final Cost Estimate” for purposes hereof. F. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. ~~If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order~~ It is understood that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. G. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within 3 business days, fails to approve in writing the Preliminary Plan by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, fails to make timely payment of any sum due hereunder, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date ~~of this Lease~~ shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s obligation to pay ~~rent~~Rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 business days thereafter, of Tenant’s election to contest same by binding arbitration ~~pursuant to~~ with the ~~provisions of Section Ill below~~American Arbitration Association under its Arbitration Rules for the Real Estate Industry, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. H. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks prior to the Commencement Date~~ upon execution of the Lease by both parties in order that Tenant may ~~install fixtures~~perform any work to be performed by Tenant hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party ~~contractors~~contractors and subcontractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay ~~rent~~Rent unless Tenant commences business activities within the Premises. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement ~~Date of this Lease~~Date. F. I. Tenant hereby designates Xxxxxx ~~Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxxxxx, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. ~~The foregoing authorization is intended~~ Landlord shall also provide copies of any notices to ~~provide assurance to Landlord that it may rely upon~~ Xxxx Xxxxxxxxx, CFO, at the ~~directives and decision making~~ address provided in Item 12 of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of TenantBasic Lease Provisions. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (SERVICE-NOW.COM)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall approve within the time period set forth below, both (i) a detailed space plan for the Premises, prepared by Landlord's architect, which includes interior partitions, ceilings, interior finishes, interior doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by Landlord's contractor, of the cost for which Landlord will complete or cause to be completed the Tenant Improvements ("Preliminary Cost Estimate"). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within five (5) days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall ~~pay up~~ attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. In no event, however, shall Tenant have the right to make additions to the Preliminary Plan as part of its approval thereof which would increase the improvements to be paid for by "Landlord's Contribution" (as hereinafter defined), it being understood and agreed that the Preliminary Plan submitted by Landlord's architect is intended to include all improvements desired by Tenant using Landlord's "Standards" (as hereinafter defined), whether or not the full amount of Landlord's Contribution would be required to complete construction of the “improvements as shown in the Preliminary Plan. In all events, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than the date set forth in Item 15 of the Basic Lease Provisions ("Plan Approval Date"), it being understood that Tenant's failure to do so shall constitute a "Tenant Delay" for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord~~’s Contribution”~~ 's architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) ~~towards~~ to be installed in the Premises (collectively, "Programming Information"). Tenant's failure to provide the Programming Information by the Plan Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Except as specified in the Preliminary Plan or otherwise authorized by Landlord, the Tenant Improvements shall incorporate Landlord's building standard materials and specifications ("Standards"). No deviations from the Standards shall be permitted, provided that Landlord may, in its sole and absolute discretion, authorize in writing one or more of such deviations if requested by Tenant, in which event any excess cost of ~~the Tenant Improvement Work. Any additional cost~~ such deviations shall be part of ~~the Tenant Improvement Work, including additional costs resulting from “Changes”~~ "Tenant's Contribution" (as hereinafter defined) ~~requested by Tenant,~~ and Tenant shall be ~~borne~~ solely ~~by Tenant and paid~~ responsible for the cost of replacing same with the applicable Standard item(s) upon the expiration or termination of this Lease. Landlord shall in no event be required to approve any deviations from the Standards ("Non-Standard Improvements") if Landlord ~~as hereinafter provided. Unless otherwise specified in~~ determines that such improvement (i) is of a lesser quality than the ~~Plan or Cost Estimate~~corresponding Standard, ~~all materials~~(ii) fails to conform to applicable governmental requirements, ~~specifications and finishes utilized in constructing~~ (iii) requires building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in writing as a Tenant Delay, or (v) would have an adverse aesthetic impact from the exterior of the Premises. D. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications ("Working Drawings and Specifications"), and Landlord's contractor shall prepare a final construction cost estimate ("Final Cost Estimate") for the Tenant Improvements in conformity with the Working Drawings and Specifications. The Final Cost Estimate shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters delivered to Tenant for its approval ~~or completion in connection with~~ only if such Estimate exceeds both the ~~Tenant Improvement Work,~~ approved Preliminary Cost Estimate and the amount of the Landlord's Contribution. Tenant shall ~~respond in writing, as appropriate, within 5~~ have five (5) days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and (if delivered to Tenant) the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be EXHIBIT X 1 40 limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within five (5) days of receipt without further revision. Tenant's failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. Without limiting the rights of Landlord for Tenant Delays as set forth herein, in the ~~Plan~~ event Tenant has not approved both the Working Drawings and Specifications and the Final Cost Estimate within sixty (60) days following the date of this Lease, then Landlord may, at its option, elect to terminate this Lease by written notice to Tenant. In the event Landlord elects to effect such a termination, Tenant shall, within ten (10) days following demand by Landlord, pay to Landlord any costs incurred by Landlord in connection with the preparation or ~~otherwise~~review of plans, construction estimates, price quotations, drawings or specifications under this Work Letter and for all costs incurred in the preparation and execution of this Lease, including any leasing commissions. B. E. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“"Change”")~~, and Landlord so approves such Change as provided in Section 1.C below~~, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 two (2) days following its receipt from Landlord. Tenant~~’s receipt~~ 's approval of such ~~change order. If Tenant approves~~ Change shall be accompanied by Tenant's payment of any such ~~change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the~~ increase in the ~~cost~~ Completion Cost. Landlord shall have the right to ~~complete attributable to such change order concurrently with delivery of~~ decline Tenant~~’s approval~~ 's request for a Change for any of the ~~change order, or (ii) defer Tenant’s payment~~ reasons set forth in Article II.C above for Landlord's disapproval of ~~such increase until the date 10 days after delivery of invoices for same~~a Non-Standard Improvement. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s 's approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within five (5) days, fails to approve in writing both the Preliminary Plan and Preliminary Cost Estimate for the Tenant Improvements by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications or the Final Cost Estimate within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “"Tenant Delay”"), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. In no event, however, shall such date be earlier than the Estimated Commencement Date set forth in the Basic Lease Provisions. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s 's election to contest same by arbitration ~~pursuant to the provisions of Section Ill below~~with JAMS Endispute in Orange County, California. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may ~~install fixtures~~perform any work to be performed by Tenant hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s 's prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s 's risk. In no event shall the failure of Tenant’s 's contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement work and tendered the Premises to Tenant. F. H. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~John Xxxxxx, ~~Telephone~~ Xxlephone No. (~~000~~949) 000-0000, as xx its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly EXHIBIT X 2 41 by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Industrial Lease (Viasource Communications Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall ~~pay up~~ cause its contractor to construct the Tenant Improvements in compliance with all laws, permits and code requirements in effect as of the date of the Amendment, including without limitation the Americans with Disabilities Act and all such other similar applicable federal or state laws or regulations. In the event any portion of the 217 Technology Expansion Space, including the Tenant Improvements but excluding any Tenant Alterations, during the Term of the Lease, is found to not be in compliance with any law, permit or code requirement in effect as of the date of this Amendment, including without limitation the Americans with Disabilities Act and all such other similar applicable federal or state laws or regulations, then Landlord shall promptly at its sole cost and expense, and not as a Project Cost, make any modification necessary to the ~~amount of~~ 217 Technology Expansion Space to cause the “217 Technology Expansion Space to be in compliance. The Tenant Improvement Work shall be constructed at Landlord’s ~~Contribution” (as defined below) towards the~~ sole cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and ~~paid to Landlord as hereinafter provided~~expense. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 five (5) days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section ~~1.C~~ I.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work and/or any Tenant Delay that such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order and Tenant Delay, if any, in writing within 2 five (5) days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that such cost must in any event be paid in full prior to the Commencement Date for the 217 Technology Expansion Space. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a ~~non-~~ non-standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the ~~Premises~~ 217 Technology Expansion Space requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements beyond fifteen (15) weeks from and after the date of this Amendment (the “Estimated Completion Date”) and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the ~~Building~~217 Technology Expansion Space, or (vvi) would have an adverse aesthetic impact to the ~~Premises~~ 217 Technology Expansion Space or cause additional expenses to Landlord in reletting the ~~Premises~~217 Technology Expansion Space. ~~The~~ Unless Landlord otherwise agrees in writing, in its sole and absolute discretion: (a) the cost to complete any Non-Standard Improvements shall be borne by Tenant~~. All~~ , and (b) all Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the ~~Premises~~ 217 Technology Expansion Space at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval ~~of a Change~~thereof, require Tenant either to remove all or any of the Non-Standard ~~Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant~~Improvements, to repair any damage to the ~~Premises~~ 217 Technology Expansion Space or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration ~~Date,~~ Date or sooner termination of ~~this~~ the Lease~~, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination~~. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date ~~of this Lease~~ for the 217 Technology Expansion Space shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the ~~Premises~~ 217 Technology Expansion Space to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date for the 217 Technology Expansion Space should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section ~~Ill below~~22.7 of the Lease. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date for the 217 Technology Expansion Space set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the ~~Premises 3 weeks~~ 217 Technology Expansion Space prior to the Commencement Date of for the ~~Lease~~ 217 Technology Expansion Space in order that Tenant may install fixtures, furniture and cabling ~~through Tenant’s own contractors prior to~~ before the Commencement ~~Date. In addition, Tenant may utilize~~ Date for the ~~loading dock and parking area during such time~~217 Technology Expansion Space. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times reasonably satisfactory to Landlord’s representative. The foregoing license to enter the ~~Premises~~ 217 Technology Expansion Space prior to the Commencement Date for the 217 Technology Expansion Space is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms reasonably satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the ~~Premises~~ 217 Technology Expansion Space extend the Commencement Date ~~of this Lease~~for the 217 Technology Expansion Space beyond the date that Landlord has completed its Tenant Improvement Work and tendered the 217 Technology Expansion Space to Tenant. F. Tenant hereby designates ~~Xxxxxx~~ Xxxx Xxxxxxxx (“Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (AutoTrader Group, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall ~~pay up~~ approve within the time period set forth below, both (i) a detailed space plan for the Premises, prepared by Landlord’s architect (to ~~the amount~~ be selected by Tenant from among LPA, Inc., Gensler, SAA, or X. Xxxxx Associates), which includes interior partitions, ceilings, interior finishes, interior doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements of Tenant (“Preliminary Plan”), and (ii) an estimate of the ~~“Landlord’s Contribution” (as defined below) towards the~~ cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to ~~Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ complete the Tenant Improvements in accordance with the Preliminary Plan (“Preliminary Cost Estimate”), which Preliminary Cost Estimate will be based upon estimated costs provided by Landlord’s contractor. To the extent applicable, the Preliminary Plan shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Building Standard Improvements”), except for changes and additions specifically requested by Tenant and approved by Landlord in writing (any such addition or variation from the Standard Improvements shall be referred to herein as a (“Non-Standard Improvement”). ~~Should~~ All Tenant requests for Non-Standard Improvements must be in writing and shall provide sufficient specifications and details for Landlord ~~submit~~ to reasonably evaluate impacts upon the Preliminary Plan and Preliminary Cost Estimate. Tenant shall approve or provide suggested revisions to the Preliminary Plan and the Preliminary Cost Estimate by signing copies of each or specifying in reasonable detail any ~~additional plans~~suggested revisions thereto as hereinabove provided, ~~equipment specification sheets~~and delivering each to Landlord within 5 business days of receipt thereof by Tenant. Landlord shall attempt in good faith to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant’s suggested revisions in a mutually satisfactory manner. In all events, Tenant shall approve in all respects a Preliminary Plan and a Preliminary Cost Estimate (as either may have been modified as herein provided to incorporate Tenant’s suggested revisions) for the 43 Discovery Premises not later than May 30, 2018 (“Plan Approval Date”), it being understood that Tenant’s failure to do so shall constitute a “Tenant Delay” (as defined below). B. On or ~~other matters~~ before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord’s architect all specifications and information requested by Landlord for the 43 Discovery Premises for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of paint and floor finishes, complete specifications and locations (including electrical, load and HVAC requirements) of Tenant’s equipment, and details of all Non-Standard Improvements (as defined above) which have been approved by Landlord as part of the Preliminary Plan (collectively, “Programming Information”). Tenant’s failure to provide the Programming Information for the 43 Discovery Premises by the Plan Approval Date shall constitute a Tenant Delay for purposes hereof. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord shall have no obligation or liability for such defects or problems arising from any incomplete or inaccurate Programming Information. Any delays in the completion of the Tenant Improvements due to incomplete or inaccurate Programming Information shall constitute a Tenant Delay. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord’s architect and engineers shall prepare and deliver to Tenant working drawings and specifications (“Working Drawings and Specifications”). Landlord shall submit the Working Drawings and Specifications for ~~approval or completion in connection with~~ the Tenant Improvement ~~Work~~Work to a competitive bidding process involving at least 3 licensed and reputable general contractors. If requested by Tenant, Landlord shall provide copies of the bid responses to Tenant. After adjustments for any inconsistent assumptions to reflect an “apples to apples” comparison, Landlord shall select the lowest qualified bidder for construction of the Tenant Improvements. In the event Landlord selects other than the lowest bidder, it shall do so based on commercially reasonable factors which it shall demonstrate to Tenant. Upon selection of the bidder, Landlord shall enter into a construction contract with the contractor so selected in the bid amount for construction of the Tenant Improvements (which bid amount shall serve as the “Final Cost Estimate”). Tenant shall ~~respond in writing, as appropriate, within~~ have 5 business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, shall be incorporated into a revised set of Working Drawings and Specifications and the Final Cost Estimate, and Tenant shall approve same in ~~the Plan or otherwise~~writing within 5 business days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“Change”), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 business days following Tenant’s receipt of such change order. If Tenant approves any such change order, and such change order causes Final Cost Estimate to exceed (or further exceed) the Landlord’s Maximum Contribution, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 business days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, E. Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level ~~normally provided~~ Landlord has agreed to ~~other tenants~~provide Tenant under the Lease, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or would cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 business days following Tenant’s receipt thereof), fails to approve in writing both the Preliminary Plan and Preliminary Cost Estimate for the Tenant Improvements for the 43 Discovery Premises by the Plan Approval Date, fails to provide all of the Programming Information for the 43 Discovery Premises requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications or the Final Cost Estimate within the time provided herein, fails to timely deliver the Tenant’s Contribution as required hereunder, requests any Changes, furnishes inaccurate or erroneous Programming Information, specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, ~~and~~ and, to the extent the delay relates to the Tenant Improvements for the 43 Discovery Premises, the Commencement Date ~~of this Lease~~ for the 43 Discovery Premises shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay ~~rent~~rent for the 43 Discovery Premises, as of the date Landlord reasonably determines that it would have been able to deliver the 43 Discovery Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date for the 43 Discovery Premises should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 business days ~~thereafter,~~ thereafter of Tenant’s election to contest same ~~by arbitration~~ pursuant to Section 14.7 of the ~~provisions of Section Ill below~~Lease. Pending the outcome of such ~~arbitration~~ proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date for the 43 Discovery Premises set forth in the aforesaid notice from Landlord. E. G. All of the Tenant Improvements shall become the property of Landlord and shall be surrendered with the Premises at the expiration or sooner termination of this Lease, except that Landlord shall ~~permit~~ have the right, by notice to Tenant given at the time of Landlord’s approval of the Preliminary Plan, the Working Drawings and ~~its agents~~ Specifications and any Change, to ~~enter~~ require Tenant either to remove all or any of the Tenant Improvements approved in the Preliminary Plan or in the Working Drawings and Specifications or by way of such Change, to repair any damage to the Premises ~~3 weeks prior~~ or the Common Areas arising from such removal, and to replace any Non-Standard Improvements so approved with the ~~Commencement Date~~ applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~the Lease in order that Tenant may install fixtures~~such removal, ~~furniture~~ repair and ~~cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time~~replacement upon demand. Any such ~~work~~ removals, repairs and replacements by Tenant shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter completed by the ~~Premises prior to the Commencement~~ Expiration Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all sooner termination of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Wm Technology, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord shall ~~pay up to~~ approve both (i) a detailed space plan for the ~~amount of~~ Premises, prepared by the architect engaged by Landlord for the work described herein (“Landlord’s ~~Contribution”~~ Architect”), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (“Preliminary Plan”), and (ii) an estimate, prepared by the contractor engaged by Landlord for the work herein (“Landlord’s Contractor”), of the cost for which Landlord will complete or cause to be completed the Tenant Improvements (“Preliminary Cost Estimate”). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within 5 business days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant’s suggested revisions in a mutually satisfactory manner; provided that in no event shall Tenant have the right to request changes or additions to the Preliminary Plan for the purpose of utilizing any unused portion of the Landlord Contribution (as defined below~~) towards the cost~~ ). B. On or before its approval of the Preliminary Plan, Tenant ~~Improvement Work. Any additional cost~~ shall provide in writing to Landlord or Landlord’s Architect all specifications and information reasonably requested by Landlord for the preparation of ~~the Tenant Improvement Work~~final construction documents and costing, including ~~additional costs resulting from “Changes”~~ without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (~~as hereinafter defined~~including load and HVAC requirements) ~~requested by~~ of Tenant’s equipment, ~~shall~~ and details of all other non-building standard improvements to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the ~~Plan or Cost Estimate~~Premises (collectively, ~~all materials, specifications and finishes utilized in constructing~~ “Programming Information”). Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord’s ~~building standard tenant improvements, materials~~ Architect and engineers shall prepare and deliver to the parties working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the ~~Project as set forth~~ Tenant Improvements in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have 5 business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate; provided that in no event shall Tenant have the right to request changes or additions to the Working Drawings and Specifications for the purpose of utilizing any unused portion of the Landlord Contribution. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Landlord’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in ~~the Plan or otherwise~~writing within 5 business days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of ~~the change order, or (ii) defer~~ a Change shall be accompanied by Tenant’s payment of ~~such~~ any resulting increase ~~until~~ in the ~~date 10 days after delivery~~ Completion Cost, regardless of ~~invoices for same~~any unutilized portion of the “Landlord Contribution” as defined below. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order. E. It is understood that the Preliminary Plan and the Working Drawings and Specifications, ~~but if Tenant fails~~ together with any Changes thereto, shall be subject to ~~timely approve a change order,~~ the prior approval of Landlord. Landlord ~~may~~ shall identify any disapproved items within 3 business days (~~but shall not be required to~~or 2 business days in the case of Changes) ~~suspend~~ after receipt of the applicable ~~Tenant Improvement Work. C.~~ document. Should Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if approve work requested in writing by the Tenant that would necessitate any ancillary Building modification or other expenditure by Landlord, then except to the extent of any remaining balance of the Landlord Contribution, Tenant shall, in addition to its other obligations herein, promptly fund the cost thereof approved by the Tenant to Landlord. F. It is understood that all of the Tenant Improvements shall be done during Tenant’s occupancy of the Premises. In ~~addition~~this regard, ~~Landlord~~ Tenant agrees to assume any risk of injury, loss or damage which may result. Tenant further agrees that it shall ~~not unreasonably withhold~~ be solely responsible for relocating its ~~consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole~~ office equipment and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result furniture in the Premises ~~requiring building services beyond the level normally provided to other tenants, (iv) interferes~~ in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to order for Landlord ~~in reletting the Premises. The cost~~ to complete ~~any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become~~ the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises ~~extend~~ and that no rental abatement shall result while the ~~Commencement Date of this Lease~~Tenant Improvements are completed in the Premises. F. G. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Dxxx Xxxxxxx, Telephone No. (~~000~~____) ~~000-0000~~__________, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Marathon Patent Group, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall ~~pay up~~ cause its contractor to ~~the amount of the “Landlord’s Contribution” (as defined below) towards the cost of~~ construct the Tenant ~~Improvement Work~~Improvements at Landlord's sole cost and expense. Any additional cost ~~of the Tenant Improvement Work, including additional costs~~ resulting from ~~“Changes”~~ Changes (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s 's building standard tenant improvements, materials and specifications for the Project ~~as set forth in Schedule I attached hereto~~ (“"Standard Improvements”"). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 five (5) days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“"Change”"), and Landlord so approves such Change as provided in Section ~~1.C~~ I.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such ChangeWork. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 two (2) business days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s 's approval of the change order, or (ii) defer Tenant’s 's payment of such increase until the date 10 ten (10) days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its ~~sole and absolute~~ reasonable discretion, to Tenant’s 's request for a Change, including any modification of a Standard Improvement in the Plan to a ~~non-~~ non-standard improvement (~~“Non~~"NON-~~Standard Improvement”~~STANDARD IMPROVEMENT"), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested Changes to previously approved Non-Standard Improvements. Notwithstanding the provisions of the foregoing two (2) sentences, ~~unless~~ Landlord ~~determines,~~ may withhold its consent to any Change to a Non-Standard Improvement in ~~its sole and absolute discretion,~~ the Plan if Landlord determines in good faith that such requested ~~Change to the~~ Non-Standard ~~Improvements~~ Improvement: (i) is of a lesser quality than the ~~Non-Standard Improvements~~ corresponding improvement previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s 's access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. ~~The~~ Unless Landlord otherwise agrees in writing, in its reasonable discretion, the cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s 's approval of ~~a Change~~the applicable Non-Standard Improvement, require Tenant either to remove all or any of ~~the~~ such Non-Standard ~~Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant~~Improvement, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard ~~Improvements~~ Improvement with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration ~~Date,~~ Date or sooner termination of this Lease~~, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination~~. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Bxx Xxxxxx ~~Xxxxxxxx~~ (~~Tenant’s Construction Representative”~~"TENANT'S CONSTRUCTION REPRESENTATIVE"), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s 's Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s 's right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s 's Construction Representative(s) at any time upon delivery of written notice to Landlord. E. It is understood that the foregoing Tenant Improvements shall be done during Tenant's occupancy of the Premises and, in this regard, Tenant agrees to assume any risk of injury, loss or damage which may result, except to the extent caused by the gross negligence or willful misconduct of Landlord, its authorized agents or contractors. Tenant further agrees that it shall be solely responsible for relocating its office equipment and furniture in the Premises in order for the foregoing Tenant Improvements to be completed in the Premises, and that no rental abatement shall result while the foregoing Tenant Improvements are completed in the Premises. It is further understood and agreed that the Tenant Improvements shall be scheduled and shall be substantially completed not later than December 31, 2005 to be eligible for funding by Landlord, and that Landlord shall not be obligated to fund any Tenant Improvements commenced after such date.

Appears in 1 contract

Samples: Lease (Lantronix Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall approve within the time period set forth below, both (i) a detailed space plan for the Premises, prepared by Landlord’s architect, which includes interior partitions, ceilings, interior finishes, interior doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (“Preliminary Plan”), and (ii) an estimate, prepared by Landlord’s contractor, of the cost for which Landlord will complete or cause to be completed the Tenant Improvements (“Preliminary Cost Estimate”). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within three (3) business days of its receipt by Tenant If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall ~~pay up~~ attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant’s suggested revisions in a mutually satisfactory manner. In no event, however, shall Tenant have the right to make additions to the ~~amount~~ Preliminary Plan as part of its approval thereof which would increase the improvements to be paid for by “Landlord’s Contribution” (as ~~defined below) towards~~ hereinafter defined), it being understood and agreed that the ~~cost of the~~ Preliminary Plan submitted by Landlord’s architect is intended to include all improvements desired by Tenant ~~Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from~~ using Landlord’s “~~Changes~~Standards” (as hereinafter defined) ), whether or not the full amount of Landlord’s Contribution would be required to complete construction of the improvements as shown in the Preliminary Plan. In all events, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than the date set forth in Item 15 of the Basic Lease Provisions (“Plan Approval Date”), it being understood that Tenant’s failure to do so shall constitute a “Tenant Delay” for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord’s architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of wail and floor finishes, ~~shall~~ complete specifications and locations (including load and HVAC requirements) of Tenant’s equipment, and details of all “Non-Standard Improvements” (as defined below) to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the Premises (collectively, “Programming Information”). Tenant’s failure to provide the Programming Information by the Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly agrees that such information provided to Landlord is accurate and complete. C. Except as specified in the Preliminary Plan, the Tenant Improvements shall incorporate Landlord’s building standard ~~tenant improvements,~~ materials and specifications ~~for~~ (”Standards”) described with particularity in the Section entitled “Tenant Improvements” of that certain Outline Specification and Project Description Midtech Buildings Irvine Spectrum 6 (the “Outline Specifications”). A copy of the Outline Specifications is attached as ~~set forth~~ Exhibit X-1 hereto. No deviations from the Standards shall be permitted, provided that Landlord may, in ~~Schedule I attached hereto~~ its reasonable discretion, authorize in writing one or more of such deviations if requested by Tenant Any excess cost of such deviations shall be part of “Tenant’s Contribution” (as hereinafter defined). Notwithstanding anything to the contrary contained in the foregoing, Landlord shall in no event be required to approve any deviations from the Standards (“Non-Standard Improvements”~~). Should~~ ) if Landlord ~~submit any additional plans~~determines that such improvement (i) is of a lesser quality than the corresponding Standard, ~~equipment specification sheets~~(ii) fails to conform to applicable governmental requirements, (iii) requires building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in writing as a Tenant Delay, or ~~other matters~~ (v) would have an adverse aesthetic impact from the exterior of the Premises. D. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord’s architect and engineers shall prepare and deliver to Tenant working drawings and specifications (“Working Drawings and Specifications”) for ~~approval or completion in connection with~~ the Tenant ~~Improvement Work,~~ Improvements based on the Preliminary Plan. Tenant shall ~~respond in writing, as appropriate, within 5~~ have three (3) business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and reasonably accepted by Landlord shall be incorporated into a revised set of Working Drawings and Specifications, and Tenant shall approve same in writing within three (3) business days of receipt without further revision (provided said revised set of Working Drawings and Specifications complies with the applicable revision requested by Tenant and reasonably accepted by Landlord). Tenant’s failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. Without limiting the rights of Landlord for Tenant Delays as set forth herein, in the event Tenant has not approved the Working Drawings and Specifications within sixty (60) days following the date of this Lease for any reason other than the failure by Landlord to abide by the terms and conditions of this Work Letter, then Landlord may, at its option, elect to terminate this Lease by written notice to Tenant In the event Landlord elects to effect such a termination, Tenant shall, within ten (10) days following demand by Landlord, pay to Landlord any costs incurred by Landlord in connection with the preparation or review of plans, construction estimates, price quotations, drawings or specifications under this Work Letter and for all costs incurred in the preparation and execution of this Lease, including any leasing commissions. E. Upon Tenant’s approval of the Working Drawings and Specifications, Landlord shall cause at least three (3) qualified general contractors to competitively bid the Tenant Improvements work. The lowest competitive bidder shall be awarded the contract for such Tenant Improvements work, except to the extent that Landlord shall demonstrate a commercially reasonable justification for choosing another bidder. Such contractor so awarded the contract for the Tenant Improvements work is herein referred to as the “Selected Contractor”. Promptly following the completion of such bidding process, Landlord shall notify Tenant of the Selected Contractor’s final bid amount for the Tenant Improvements work (the “Bid Amount”). lithe Bid Amount exceeds the Preliminary Cost Estimate, Landlord and Tenant shall cooperate in good faith, within three (3) business days thereafter, to “value engineer” the Tenant Improvements work to reduce the cost thereof. Upon completion of such process, Landlord shall execute a “fixed price” or “lump sum” construction contract with the Selected Contractor for the Bid Amount, as adjusted by any such “value engineering”. Landlord shall cause the Tenant Improvements to be constructed in a good and wor1cn, i’lilce manner and substantially in accordance with the approved Working Drawings and Specifications (as modified by Changes approved by ~~Tenant in~~ Landlord and Tenant). All materials and equipment furnished shall conform to such approved Working Drawings and Specifications and shall be of good quality. Landlord shall, promptly following notice from Tenant, rectify any noncompliance with the ~~Plan or otherwise~~foregoing obligations at its sole cost and expense. B. F. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”)~~, and Landlord so approves such Change as provided in Section 1.C below~~, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 three (3) business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. If ~~Tenant approves any~~ such ~~change order,~~ Change either involves a Non-Standard Improvement acceptable to Landlord, ~~at its election, may either (i) require as a condition to the effectiveness of~~ or if such ~~change order that Tenant pay the increase~~ Change would result in the ~~cost to complete attributable to such change order concurrently with delivery of~~ Completion Cost exceeding the Landlord’s Contribution, then Tenant’s approval of ~~the change order, or (ii) defer~~ such Change shall be accompanied by Tenant’s payment of any such increase ~~until~~ in the ~~date 10 days after delivery~~ Completion Cost Landlord shall have the right to decline Tenant’s request for a Change for any of ~~invoices~~ the reasons set forth in Article LC above for ~~same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ Landlord’s disapproval of a Non-Standard Improvement It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. G. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within three (3) business days, fails to approve in writing both the Preliminary Plan and Preliminary Cost Estimate for the Tenant Improvements by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve or disapprove in writing the Working Drawings and Specifications or the Final Cost Estimate within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, furnishes inaccurate or erroneous specifications or other information, or ~~otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying~~ specifies materials that are not readily ~~available~~available (provided that Tenant was made aware by Landlord of the delay associated, or anticipated to be associated, with such Change or specification at the time of Tenant’s request for such Change or materials) ~~or the issuance of an occupancy certificate~~ (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. In no event, however, shall such date be earlier than the Estimated Commencement Date set forth in the Basic Lease Provisions. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s election to contest same by arbitration with JAMS pursuant to Section 22.7 of the ~~provisions of Section Ill below~~Lease. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. H. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may ~~install fixtures, furniture and cabling~~ perform any work to be performed by Tenant hereunder through ~~Tenant’s~~ its own ~~contractors prior to the Commencement Date~~contractors,. ~~In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to ~~Tenant.~~ Tenant That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way~~ Except to the extent of ~~limitation~~the active negligence or willful misconduct of Landlord, or its authorized agents, contractors or employees, Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement work and tendered the Premises to Tenant. F. I. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxx Xxxxxxx, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Industrial Lease (Ithaka Acquisition Corp)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall ~~pay up to~~ approve within the ~~amount~~ time period set forth below, both (i) a detailed space plan for the 15326 Xxxxx Premises, prepared by Landlord's architect, which includes interior partitions, ceilings, interior finishes, interior doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements of Tenant ("Preliminary Plan"), and (ii) an estimate of the ~~“Landlord’s Contribution” (as defined below) towards the~~ cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to ~~Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ complete the Tenant Improvements ~~shall~~ in accordance with the Preliminary Plan ("Preliminary Cost Estimate"), which Preliminary Cost Estimate will be based upon estimated costs provided by Landlord’s contractor. To the extent applicable, the Preliminary Plan shall include Landlord's building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“"Building Standard Improvements”"), except for changes and additions specifically requested by Tenant and approved by Landlord in writing (any such addition or variation from the Standard Improvements shall be referred to herein as a ("Non-Standard Improvement"). ~~Should~~ All Tenant requests for Non-Standard Improvements must be in writing and shall provide sufficient specifications and details for Landlord ~~submit~~ to reasonably evaluate impacts upon the Preliminary Plan and Preliminary Cost Estimate. Tenant shall approve or provide suggested revisions to the Preliminary Plan and the Preliminary Cost Estimate by signing copies of each or specifying in reasonable detail any ~~additional plans~~suggested revisions thereto as hereinabove provided, ~~equipment specification sheets, or other matters~~ and delivering each to ~~Tenant for approval or completion~~ Landlord within 5 business days of receipt thereof by Tenant. Landlord shall attempt in ~~connection with~~ good faith to modify the ~~Tenant Improvement Work~~Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. In all events, Tenant shall ~~respond~~ approve in ~~writing~~all respects a Preliminary Plan and a Preliminary Cost Estimate (as either may have been modified as herein provided to incorporate Tenant’s suggested revisions) not later than June 30, 2019 ("Plan Approval Date"), it being understood that Tenant's failure to do so shall constitute a “Tenant Delay” (as ~~appropriate~~defined below). B. On or before the Plan Approval Date, ~~within~~ Tenant shall provide in writing to Landlord or Landlord's architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of paint and floor finishes, complete specifications and locations (including electrical, load and HVAC requirements) of Tenant's equipment, and details of all Non-Standard Improvements (as defined above) which have been approved by Landlord as part of the Preliminary Plan (collectively, "Programming Information"). Tenant's failure to provide the Programming Information by the Plan Approval Date shall constitute a Tenant Delay for purposes hereof. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord shall have no obligation or liability for such defects or problems arising from any incomplete or inaccurate Programming Information. Any delays in the completion of the Tenant Improvements due to incomplete or inaccurate Programming Information shall constitute a Tenant Delay. C. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications ("Working Drawings and Specifications"), and Landlord's contractor shall prepare a final construction cost estimate ("Final Cost Estimate") for the Tenant Improvements in conformity with the Working Drawings and Specifications. Tenant shall have 5 business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, shall be incorporated into a revised set of Working Drawings and Specifications and the Final Cost Estimate, and Tenant shall approve same in ~~the Plan or otherwise~~writing within 5 business days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“"Change”"), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 business days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 business days after delivery of invoices for same, provided however, that the Tenant’s Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the 15326 Xxxxx Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, E. Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the 15326 Xxxxx Premises requiring building services beyond the level ~~normally provided~~ Landlord has agreed to ~~other tenants~~provide Tenant under the Lease, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the 15326 Xxxxx Building, or (vvi) would have an adverse aesthetic impact to the 15326 Xxxxx Premises or would cause additional expenses to Landlord in reletting the 15326 Xxxxx Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Axonics Modulation Technologies, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant has approved, or shall approve within the time period set forth below, a detailed space plan for Suite 900, prepared by the architect engaged by Landlord for the work described herein ("Landlord's Architect"), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"). Tenant shall approve or disapprove the Preliminary Plan by signing and delivering same to Landlord within five (5) business days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall ~~pay up~~ attempt to modify the ~~amount~~ Preliminary Plan to incorporate Tenant's suggested revisions in a mutually satisfactory manner. Notwithstanding the foregoing, however, Tenant shall approve in all respects a Preliminary Plan not later than August 18, 2004 ("Plan Approval Date"). B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord's Architect all specifications and information requested by Landlord for the preparation of ~~the “Landlord’s Contribution”~~ final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) ~~towards the cost of the~~ to be installed in Suite 900 (collectively, "Programming Information"). Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Upon Tenant's approval of the Preliminary Plan and delivery of the complete Programming Information, Landlord~~’s building standard tenant improvements, materials~~ 's Architect and engineers shall prepare and deliver to the parties working drawings and specifications for the ~~Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to~~ Tenant ~~for approval or completion in connection~~ Improvements consistent with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Preliminary Plans ("Working Drawings and Specifications"). Tenant shall ~~not unreasonably withhold its approval of any matter,~~ have five (5) business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in or not consistent with the approved Preliminary Plan. Should Tenant disapprove the Working Drawings and Specifications, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Landlord's Architect into a revised set of Working Drawings and Specifications, and Tenant shall approve same in ~~the Plan or otherwise~~writing within five (5) business days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to in the ~~Plan~~ Working Drawings and Specifications following the date of approval of the Preliminary Plans (“"Change”"), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is reasonably acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any ~~increase~~ increase, if any, in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 three (3) business days following ~~Tenant’s~~ its receipt of ~~such change order~~the same from Landlord. ~~If Tenant approves~~ Tenant's approval of a Change shall be accompanied by Tenant's payment of any ~~such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the~~ resulting increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for sameCompletion Cost. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s 's approval of a change order, but ~~if Tenant fails~~ that Landlord shall use its reasonable efforts not to ~~timely approve~~ further complete work which would be materially altered by a ~~change order, Landlord may~~ Change for five (~~but shall not be required to~~5) ~~suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to~~ days following Tenant’s 's request for a Change. E. It is understood that the Preliminary Plan and the Working Drawings and Specifications, together with any Changes thereto, shall be subject to the prior approval of Landlord, which approval shall not be unreasonably withheld. Landlord shall identify any disapproved items within five (5) business days (or three (3) business days in the case of Changes) after receipt of the applicable document. In lieu of disapproving an item, Landlord may approve same on the condition that Tenant pay to Landlord, prior to the start of construction and in addition to all sums otherwise due hereunder, an amount equal to the cost, as reasonably estimated by Landlord, of removing and replacing the item upon the expiration or termination of the Lease. Should Landlord approve work that would necessitate any ancillary Building modification or other expenditure by Landlord, then except to the extent of any remaining balance of the "Landlord's Contribution" as described below, Tenant shall, in addition to its other obligations herein, promptly fund the cost thereof to Landlord. F. Upon approval of the Working Drawings and Specifications, Landlord shall submit them to competitive bid as provided above. Each bidding contractor shall use the electrical, mechanical, plumbing and fire/life safety engineers and subcontractors designated by Landlord. All other subcontractors shall be subject to Landlord's reasonable approval, and Landlord may require that one or more designated subtrades be union contractors. The lowest responsible bidder shall be selected as Landlord's general contractor and the bid amount shall be deemed the "Final Cost Estimate" for purposes hereof. G. Landlord shall permit Tenant and its agents to enter Suite 900 at least five (5) days prior to the Commencement Date for Suite 900 in order that Tenant may perform any work to be performed by Tenant hereunder through its own contractors, subject to Landlord's prior written approval, and in a manner and upon terms and conditions and at times satisfactory to Landlord's representative. The foregoing license to enter Suite 900 prior to the Commencement Date for Suite 900 is, however, conditioned upon Tenant's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord, this license may be withdrawn by Landlord upon twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant's contractors with all requirements imposed by Landlord on third party contractors and subcontractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any ~~modification~~ such entry. The entry shall be deemed to be under all of ~~a Standard Improvement~~ the provisions of the Lease except as to the covenants to pay rent with respect to Suite 900. Landlord shall not be liable in any way for any injury, loss or damage which may occur to any such work being performed by Tenant, the ~~Plan~~ same being solely at Tenant's risk. In no event shall the failure of Tenant's contractors to ~~a non- standard improvement~~ complete any work in Suite 900 extend the Commencement Date for Suite 900. H. Tenant hereby designates Xxxxx Xxxxx, Telephone No. (~~“Non~~000) 000-~~Standard Improvement”)~~0000, ~~if requested in writing~~ as its representative, agent and attorney-in-fact for the purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as it given directly by Tenant. ~~In addition, Landlord agrees that it shall not unreasonably withhold~~ Tenant may amend the designation of its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (iconstruction representative(s) is at any time upon delivery of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by written notice to ~~Tenant given at the time of~~ Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. I. Notwithstanding any provision in the ~~Lease to the contrary~~Amendment, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to approve the Preliminary Plan by the Plan Approval Date, fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s 's receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a ~~“Tenant Delay”~~"TENANT DELAY"), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date ~~of this Lease~~ for Suite 900 shall be deemed to have occurred for all purposes, including without limitation Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver ~~the Premises~~ Suite 900 to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Sm&A)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord shall ~~pay up to~~ approve both (i) a detailed space plan for the ~~amount of~~ Premises, prepared by the architect engaged by Tenant for the work described herein (“Tenant’s Architect”), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (“Preliminary Plan”), and (ii) an estimate, prepared by the contractor engaged by Landlord for the work herein (“Landlord’s ~~Contribution” (as defined below) towards~~ Contractor”), of the cost for which Landlord will complete or cause to be completed the Tenant Improvements (“Preliminary Cost Estimate”). Tenant shall approve or disapprove each of the ~~Tenant Improvement Work. Any additional cost~~ Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within five (5) business days of its receipt by Tenant. If Tenant ~~Improvement Work~~disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant’s suggested revisions in a mutually satisfactory manner. B. On or before its approval of the Plan, Tenant shall provide in writing to Landlord or Tenant’s Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including ~~additional costs resulting from “Changes”~~ without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (~~as hereinafter defined~~including load and HVAC requirements) ~~requested by~~ of Tenant’s equipment, ~~shall~~ and details of all other non-building standard improvements to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the ~~Plan or Cost Estimate~~Premises (collectively, ~~all materials, specifications and finishes utilized in constructing~~ “Programming Information”). Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Tenant’s Architect and engineers shall prepare and deliver to the parties working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s ~~building standard tenant improvements, materials and specifications~~ Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the ~~Project as set forth~~ Tenant Improvements in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection conformity with the ~~Tenant Improvement Work~~Working Drawings and Specifications. Notwithstanding the foregoing, ~~Tenant~~ Rick’s Electric shall ~~respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~prepare the electrical engineering documents and Plumb Engineering shall prepare the mechanical engineering documents. Tenant shall ~~not unreasonably withhold its approval~~ have five (5) business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate; provided that Tenant shall have the right to request changes or additions to the Working Drawings and Specifications for the purpose of utilizing any ~~matter~~unused portion of the Landlord Contribution. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, ~~and any~~ such disapproval shall be ~~limited to items not previously approved~~ accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Tenant’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in ~~the Plan or otherwise~~writing within five (5) business days of receipt. B. D. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 three (3) business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of ~~the change order, or (ii) defer~~ a Change shall be accompanied by Tenant’s payment of ~~such~~ any resulting increase ~~until~~ in the ~~date 10 days after delivery of invoices for same~~Completion Cost if the Tenant Improvement Allowance has been fully utilized. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order. E. It is understood that the Preliminary Plan and the Working Drawings and Specifications, ~~but if Tenant fails~~ together with any Changes thereto, shall be subject to ~~timely approve a change order~~the prior reasonable approval of Landlord. Landlord shall identify any disapproved items within three (3) business days (or two (2) business days in the case of Changes) after receipt of the applicable document. In lieu of disapproving an item, Landlord may ~~(but shall not be required to) suspend~~ approve same on the ~~applicable~~ condition that Tenant ~~Improvement Work~~pay to Landlord, prior to the start of construction and in addition to all sums otherwise due hereunder, an amount equal to the cost, as reasonably estimated by Landlord, of removing and replacing the item upon the expiration or termination of the Lease. Should Landlord approve work that would necessitate any ancillary Building modification or other expenditure by Landlord, then except to the extent of any remaining balance of the Landlord Contribution, Tenant shall, in addition to its other obligations herein, promptly fund the cost thereof to Landlord. ~~C. Landlord may consent in writing, in its sole and absolute discretion, to~~ F. It is understood that all or a portion of the Tenant Improvements shall be done during Tenant’s ~~request for a Change, including any modification~~ occupancy of ~~a Standard Improvement in~~ the ~~Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant~~Premises. In ~~addition~~this regard, Tenant agrees to assume any risk of injury, loss or damage which may result, except for any damage or injury which is caused by the negligence or willful misconduct of Landlord or its agents. Tenant further agrees that it shall ~~not unreasonably withhold~~ be solely responsible for relocating its ~~consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole~~ office equipment and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result furniture in the Premises ~~requiring building services beyond~~ in order to protect the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to same and allow for Landlord ~~in reletting the Premises. The cost~~ to complete ~~any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become~~ the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises ~~extend~~ and that no rental abatement shall result while the ~~Commencement Date of this Lease~~Tenant Improvements are completed in the Premises except as provided for the Temporary Premises. F. G. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Adriaan Van Zyl, Telephone No. (000) 000-~~0000,~~ 0000 (adriaan@bofifederalbank) as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Office Lease Agreement (BofI Holding, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. ~~Landlord shall pay up~~ Prior to the ~~amount~~ date of this Lease, Tenant and Landlord have approved both (i) a pricing plan dated 11/05/07 prepared by Gensler (“Preliminary Plan”), and (ii) a Preliminary Pricing #2 cost estimate dated 11/14/07 prepared by Gensler of the ~~“Landlord’s Contribution” (as defined below) towards the~~ cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to ~~Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ complete the Tenant Improvements ~~shall be~~ in accordance with the Preliminary Plan (“Preliminary Cost Estimate”). The Preliminary Plan includes Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Building Standard Improvements”), except for changes and additions to the Building Standards specifically noted in the Preliminary Plan or Cost Estimate (any such addition or variation from the Standard Improvements shall be referred to herein as a (“Non-Standard Improvement”). B. Within five (5) days following request by Landlord or its architect, Tenant shall provide in writing to Landlord or Landlord’s architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of paint and floor finishes, complete specifications and locations (including electrical, load and HVAC requirements) of Tenant’s equipment, and details of all Non-Standard Improvements (as defined above) which have been approved by Landlord as part of the Preliminary Plan (collectively, “Programming Information”). ~~Should~~ Tenant’s failure to timely provide the Programming Information shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord ~~submit~~ shall have no obligation or liability for such defects or problems arising from any ~~additional plans~~incomplete or inaccurate Programming Information. Any delays in the completion of the Tenant Improvements due to incomplete or inaccurate Programming Information shall constitute a Tenant Delay. C. Upon Tenant’s delivery of the complete Programming Information, ~~equipment specification sheets~~Landlord’s architect and engineers shall prepare and deliver to Tenant working drawings and specifications (“Working Drawings and Specifications”), ~~or other matters~~ and Landlord’s contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the Tenant Improvements in conformity with the Working Drawings and Specifications. A copy of the Final Cost Estimate shall be delivered to Tenant for its approval ~~or completion in connection with the~~ unless there are no Non-Standard Tenant ~~Improvement Work,~~ Improvements and Tenant is not responsible for any Tenant’s Contribution. Tenant shall ~~respond in writing, as appropriate, within 5~~ have five (5) days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and (if delivered to Tenant) the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, in its sole and absolute discretion, shall be incorporated into a revised set of Working Drawings and Specifications and the Final Cost Estimate, and Tenant shall approve same in writing within five (5) days of receipt without further revision. Except for “Changes” requested by Tenant and approved by Landlord as provided in Section I.E below and except for revisions required by code and/or by the City of Milpitas, Landlord shall make no material revision to the approved Working Drawings and Specifications without the prior approval of Tenant ~~in the Plan or otherwise~~(which approval shall not be unreasonably withheld). B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“Change”), and Landlord so approves such Change as provided in Section ~~1.C below~~I.E. herein, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 two (2) days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. E. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement ~~in the Plan~~ to a ~~non- standard improvement (“~~Non-Standard ~~Improvement”)~~Improvement in the Preliminary Plan or any other modification of the Working Drawings and Specifications, if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. ~~The cost to complete any Non-Standard Improvements shall be borne by Tenant.~~ All ~~Standard Improvements and Non-Standard~~ Tenant Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except ~~that~~ that: (A) the HVAC unit installed in the tele/data room and the miniblinds installed in the sidelights shall be removed and all damage to the Premises shall be repaired by the Expiration Date or sooner termination of the Lease, and (B) Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the ~~Non-Standard Improvements and all or any of the~~ Tenant Improvements approved by way of ~~such Change requested by Tenant~~a Change, to repair any damage to the Premises or the Common Area arising from such removal, and to replace ~~such~~ Non-Standard Improvements approved by way of a Change with the applicable ~~Standard Improvement~~Building Standard, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease~~, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination~~. D. F. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s receipt thereof), fails to provide all of the Programming Information requested by Landlord within the time provided herein, fails to approve in writing the Working Drawings and Specifications or the Final Cost Estimate within the time provided herein, fails to timely deliver the Tenant’s Contribution as required hereunder, requests any Changes, furnishes inaccurate or erroneous Programming Information, specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant ~~Delays~~Delays (but in no event sooner than January 1, 2008). Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s election to contest same by arbitration pursuant to ~~the provisions of Section Ill~~ Paragraph III below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises 3 at least two (2) weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay ~~rent~~Basic Rent and Operating Expenses. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement Work and tendered the Premises to Tenant. F. H. Tenant hereby designates ~~Xxxxxx~~ Mxxxxx Xxxxxxxx (“Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Sonics, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall ~~pay up to~~ approve within the ~~amount~~ time period set forth below, both (i) a detailed space plan for the 26 Technology Premises, prepared by Landlord's architect, which includes interior partitions, ceilings, interior finishes, interior doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements of Tenant ("Preliminary Plan"), and (ii) an estimate of the ~~“Landlord’s Contribution” (as defined below) towards the~~ cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to ~~Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ complete the Tenant Improvements ~~shall~~ in accordance with the Preliminary Plan ("Preliminary Cost Estimate"), which Preliminary Cost Estimate will be based upon estimated costs provided by Landlord’s contractor. To the extent applicable, the Preliminary Plan shall include Landlord's building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“"Building Standard Improvements”"), except for changes and additions specifically requested by Tenant and approved by Landlord in writing (any such addition or variation from the Standard Improvements shall be referred to herein as a ("Non-Standard Improvement"). ~~Should~~ All Tenant requests for Non-Standard Improvements must be in writing and shall provide sufficient specifications and details for Landlord ~~submit~~ to reasonably evaluate impacts upon the Preliminary Plan and Preliminary Cost Estimate. Tenant shall approve or provide suggested revisions to the Preliminary Plan and the Preliminary Cost Estimate by signing copies of each or specifying in reasonable detail any ~~additional plans~~suggested revisions thereto as hereinabove provided, ~~equipment specification sheets,~~ and delivering each to Landlord within 5 business days of receipt thereof by Tenant. Landlord shall attempt in good faith to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. B. Promptly following request by Landlord or ~~other matters to Tenant for approval or completion in connection with the Tenant Improvement Work~~Landlord’s architect, Tenant shall ~~respond~~ provide in ~~writing~~writing to Landlord or Landlord's architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of paint and floor finishes, complete specifications and locations (including electrical, load and HVAC requirements) of Tenant's equipment, and details of all Non-Standard Improvements (as ~~appropriate~~defined above) which have been approved by Landlord as part of the Preliminary Plan (collectively, ~~within~~ "Programming Information"). Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord shall have no obligation or liability for such defects or problems arising from any incomplete or inaccurate Programming Information. Any delays in the completion of the Tenant Improvements due to incomplete or inaccurate Programming Information shall constitute a Tenant Delay. C. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications ("Working Drawings and Specifications"), and Landlord's contractor shall prepare a final construction cost estimate ("Final Cost Estimate") for the Tenant Improvements in conformity with the Working Drawings and Specifications. Tenant shall have 5 business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, shall be incorporated into a revised set of Working Drawings and Specifications and the Final Cost Estimate, and Tenant shall approve same in ~~the Plan or otherwise~~writing within 5 business days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“"Change”"), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 business days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 business days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, E. Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the 26 Technology Premises requiring building services beyond the level ~~normally provided~~ Landlord has agreed to ~~other tenants~~provide Tenant under the Lease, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the 26 Technology Premises or would cause additional expenses to Landlord in reletting the 26 Technology Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 business days following Tenant’s 's receipt thereof), fails to approve in writing the Working Drawings and Specifications or the Final Cost Estimate within the time provided herein, fails to timely deliver the Tenant’s Contribution as required hereunder, requests any Changes, furnishes inaccurate or erroneous Programming Information, specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “"Tenant Delay”"), then Tenant shall bear any resulting additional construction cost or other expenses. G. All of the Tenant Improvements shall become the property of Landlord and shall be surrendered with the 26 Technology Premises at the expiration or sooner termination of this Lease, except that Landlord shall have the right, by notice to Tenant given at the time of Landlord's approval of the Preliminary Plan, the Working Drawings and Specifications and any Change, to require Tenant either to remove all or any of the Tenant Improvements approved in the Preliminary Plan or in the Working Drawings and Specifications or by way of such Change, to repair any damage to the 26 Technology Premises or the Common Areas arising from such removal, and to replace any Non-Standard Improvements so approved with the ~~Commencement Date of this Lease shall be deemed~~ applicable Standard Improvement, or to ~~have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date~~ reimburse Landlord ~~reasonably determines that it would have been able to deliver the Premises to Tenant but~~ for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome reasonable cost of such ~~arbitration proceedings~~removal, ~~Tenant shall make timely payment of all rent due under this Lease based~~ repair and replacement upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such timedemand. Any such ~~work~~ removals, repairs and replacements by Tenant shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter completed by the ~~Premises prior to the Commencement~~ Expiration Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date sooner termination of this Lease. F. H. It is understood that all or a portion of the Tenant Improvements may be done during Tenant’s occupancy of the 26 Technology Premises. In this regard, Tenant agrees to assume any risk of injury, loss or damage to Tenant to the extent not the result of Landlord’s negligence or willful misconduct. While Landlord agrees to employ construction practices reasonably intended to minimize disruptions to the operation of Tenant’s business in the 26 Technology Premises, Tenant acknowledges and agrees that some disruptions may occur during the course of construction of the Tenant Improvements, and in no event shall rent xxxxx as the result of the construction of the Tenant Improvements. Tenant shall pay for and cause Tenant’s furniture and other equipment to be moved as necessary (including disconnecting and reconnecting computers and telecommunications cabling equipment) so as to facilitate the Tenant Improvement Work. I. Tenant hereby designates Xxx Xxxxxx ~~Xxxxxxxx~~ (“Tenant’s Construction Representative”), Telephone No. (000) 000-0000, Email: xxxxxxx@xxxxxxxxxxxxxxxxx.xxx, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Any notices or submittals to, or requests of, Tenant related to this Work Letter and/or the Tenant Improvement Work may be sent to Tenant’s Construction Representative at the email address above provided. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Axonics Modulation Technologies, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall cause its contractor to construct the Tenant Improvements at Landlord's sole cost and expense, except that Tenant shall pay ~~up to~~ the amount of ~~the “Landlord’s Contribution”~~ Eleven Thousand Three Hundred Eighty Dollars (~~as defined below~~$11,380.00) towards the cost of the Tenant ~~Improvement Work. Any~~ Improvements prior to commencement of construction thereof; and provided further that: (i) any additional cost ~~of the Tenant Improvement Work, including additional costs~~ resulting from ~~“Changes”~~ any "Change" (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided, and (ii) should Tenant elect to change the ground floor lobby flooring with Landlord's building standard limestone, then Landlord shall bear not more than Five Thousand Dollars ($5,000.00) of the costs of such Change, and Tenant shall be responsible for the remainder of the cost of such Change as hereinafter provided. Unless otherwise specified in the ~~Plan or Cost Estimate~~Plan, all materials, specifications and finishes utilized in constructing the ~~Tenant~~ tenant Improvements shall be Landlord’s 's building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“"Standard Improvements”"). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 five (5) days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be b e limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“"Change”"), and Landlord so approves such Change as provided in Section ~~1.C~~ LC below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. ~~Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change.~~ Tenant shall approve or disapprove such change order in writing within 2 two (2) business days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s 's approval of the change order, or (ii) defer Tenant’s 's payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that such cost must in any event be paid in full prior to Tenant's commencing occupancy of Suite 150. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s 's request for a Change, including any modification of a Standard Improvement in the Plan to a ~~non-~~ non-standard improvement (“"Non-Standard Improvement”"), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in ~~the Premises~~ Suite 150 requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s 's access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to ~~the Premises~~ Suite 150 or cause additional expenses to Landlord in reletting Suite 150. Unless Landlord otherwise agrees in writing, in its sole and absolute discretion: (a) the ~~Premises. The~~ cost to complete any Non-Standard Improvements shall be borne by Tenant~~. All~~ , and (b) all Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with ~~the Premises~~ Suite 150 at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord~~’s approval of a Change~~'s consent thereto, require Tenant either to remove all or any of the ~~Non-Standard Improvements and all or any of the~~ Tenant Improvements ~~approved~~ added by way of ~~such Change requested by Tenant~~the Change, to repair any damage to ~~the Premises~~ Suite 150 or the Common Area arising from such removal, and to replace ~~such~~ any Non-Standard Improvements added by way of a Change with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration ~~Date,~~ Date or sooner termination of this Lease. Notwithstanding the foregoing, ~~or within 10 days following notice~~ Tenant shall have no obligation to ~~Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding~~ remove any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion portion of the Tenant Improvements ~~(including without limitation by specifying materials~~ that are ~~not readily available) or~~ shown on the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlordapproved Plan. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. D. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxx Xxxxx ("Tenant’s 's Construction Representative”"), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s 's Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s 's right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s 's Construction Representative(s) at any time upon delivery of written notice to Landlord. E. It is understood that the completion of the Tenant Improvement Work is not a condition to, nor shall extend, the Commencement Date for Suite 150, and that all or a portion of the Tenant Improvements may be constructed during Tenant's occupancy of Suite 150. In this regard, Tenant agrees to assume any risk of injury, loss or damage to Tenant to the extent not the result of Landlord's negligence or willful misconduct. While Landlord agrees to employ construction practices reasonably intended to minimize disruptions to the operation of Tenant's business in Suite 150, Tenant acknowledges and agrees that some disruptions may occur during the course of construction of the Tenant Improvements, and in no event shall rent xxxxx as the result of the construction of the Tenant Improvements.

Appears in 1 contract

Samples: Lease Agreement (Hireright Inc)

Appears in 1 contract

Samples: Lease Agreement (ServiceNow, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. X. Xxxxxx has approved, or shall approve within the time period set forth below, a detailed space plan for the Premises, prepared by the architect engaged by Landlord ~~shall pay up to~~ for the ~~amount of the~~ work described herein (“Landlord’s ~~Contribution”~~ Architect”), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (~~as defined below~~“Preliminary Plan”), and (ii) ~~towards~~ an estimate, prepared by the contractor engaged by Landlord for the work herein (“Landlord’s Contractor”), of the cost ~~of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall~~ for which Landlord will complete or cause to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ completed the Tenant Improvements (“Preliminary Cost Estimate”). To the extent applicable, the Preliminary Plan shall be include Landlord’s building standard tenant improvements, materials and specifications for the ~~Project~~ Project. Tenant shall approve or disapprove the Preliminary Plan by signing and delivering same to Landlord within 3 business days of its receipt by Xxxxxx. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan to incorporate Tenant’s suggested revisions in a mutually satisfactory manner; provided that in no event shall Tenant have the right to request changes or additions to the Preliminary Plan for the purpose of utilizing any unused portion of the Landlord Contribution (as ~~set forth~~ defined below). Notwithstanding the foregoing, however, Tenant shall approve in ~~Schedule I attached hereto~~ all respects a Preliminary Plan not later than March 21, 2022 (“~~Standard Improvements~~Plan Approval Date”), it being understood that Tenant’s failure to do so shall constitute a “Tenant Delay” for purposes of this Amendment. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord’s Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant’s equipment, and details of all other non-building standard improvements to be installed in the Premises (collectively, “Programming Information”). ~~Should Landlord submit any additional plans~~Tenant’s failure to provide the Programming Information by the Plan Approval Date shall constitute a Tenant Delay for purposes of this Amendment. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, ~~equipment specification sheets~~and accordingly that such information must be accurate and complete. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, ~~or other matters~~ Landlord’s Architect and engineers shall prepare and deliver to the parties working drawings and specifications (“Working Drawings and Specifications”), and Xxxxxxxx’s Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the Tenant ~~for approval or completion~~ Improvements in ~~connection~~ conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have 3 business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously approved by Tenant~~ contained in the approved Preliminary Plan or ~~otherwise~~Preliminary Cost Estimate; provided that in no event shall Tenant have the right to request changes or additions to the Working Drawings and Specifications for the purpose of utilizing any unused portion of the Landlord Contribution. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Xxxxxx and accepted by Landlord shall be incorporated by Landlord’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within 3 business days of receipt without further revision. Tenant’s failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. B. D. It is understood that the Preliminary Plan and the Working Drawings and Specifications, together with any Changes thereto, shall be subject to the prior approval of Landlord. Landlord shall identify any disapproved items within 3 business days (or 2 business days in the case of Changes) after receipt of the applicable document. Should Landlord approve work that would necessitate any ancillary Building modification or other expenditure by Landlord, then except to the extent of any remaining balance of the “Landlord Contribution” as described below, Tenant shall, in addition to its other obligations herein, promptly fund the cost thereof to Landlord. E. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any BioNano Genomics, Inc.-0000 Xxxxx Xxxxxx Xxxxx-XXX 0000-Amendment-5A3 1/11/2022-Opp-044372 increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of ~~the change order, or (ii) defer Tenant~~a Change shall be accompanied by Xxxxxx’s payment of ~~such~~ any resulting increase ~~until~~ in the ~~date 10 days after delivery~~ Completion Cost regardless of ~~invoices for same~~any unutilized portion of the Landlord Contribution. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within 3 business days, fails to approve in writing the Preliminary Plan by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, fails to make timely payment of any sum due hereunder, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this ~~Lease~~ Amendment as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the ~~Commencement~~ Suite 150 Expansion Effective Date ~~of the Lease~~ in order that Xxxxxx may perform any work to be performed by Tenant ~~may install fixtures~~hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the ~~Commencement~~ Suite 150 Expansion Effective Date is, however, conditioned upon ~~Tenant~~Xxxxxx’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in Landlord’s sole and absolute discretion~~Xxxxxxxx. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by ~~Tenant~~Xxxxxx’s contractors with all requirements imposed by Landlord on third party ~~contractors~~contractors and subcontractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay ~~rent~~Rent unless Tenant commences business activities within the Premises. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by ~~Tenant~~Xxxxxx, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the ~~Premises~~ Suite 150 Suite 150 Expansion Space extend the ~~Commencement Date of this Lease~~Suite 150 Expansion Effective Date. ~~F. Tenant~~ X. Xxxxxx hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxx Xxx, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of TenantXxxxxx. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Bionano Genomics, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall pay up to the amount of the “"Landlord’s 's Contribution” " towards the "Completion Cost" (as defined below) ~~towards the cost~~ of the Tenant ~~Improvement~~ Improvements Work. ~~Any additional cost of the Tenant Improvement Work, including additional~~ Additional costs resulting from ~~“Changes”~~ Changes (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s 's building standard tenant improvements, materials and specifications for the Project ~~as set forth in Schedule I attached hereto~~ (~~“Standard Improvements”~~"STANDARD IMPROVEMENTS"). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 five (5) days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (~~“Change”~~"CHANGE"), and Landlord so approves such Change as provided in Section ~~1.C~~ I.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. ~~Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change.~~ Tenant shall approve or disapprove such change order in writing within 2 two (2) days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s 's approval of the change order, or (ii) defer Tenant’s 's payment of such increase until the date 10 ten (10) days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s 's request for a Change, including any modification of a Standard Improvement in the Plan to a ~~non-~~ non-standard improvement (~~“Non~~"NON-~~Standard Improvement”~~STANDARD IMPROVEMENT"), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s 's access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. ~~The~~ Unless Landlord otherwise agrees in writing, in its sole and absolute discretion: (a) the cost to complete any Non-Standard Improvements shall be borne by Tenant~~. All~~ , and (b) all Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at either prior to or following the ~~time~~ expiration or termination of ~~Landlord’s approval of a Change~~the Lease, require Tenant either to remove all or any of the Non-Standard ~~Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant~~Improvements, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 ten (10) days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s 's receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a ~~“Tenant Delay”~~"TENANT DELAY"), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s 's election to contest same by arbitration pursuant to the provisions of Section ~~Ill~~ II below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s 's own contractors prior to the Commencement Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s 's prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s 's sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s 's sole and absolute discretion, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s 's risk. In no event shall the failure of Tenant’s 's contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement Work and tendered the Premises to Tenant. F. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Ralph Kravitz (~~Tenant’s Construction Representative”~~TENANT'S CONSTRUCTION REPRESENTATIVE"), Telephone No. (000) 000-~~0000~~0006, as its representative, agent and attorney-in-fact for ~~all matters related~~ xxx xxxxxxx xelated to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s 's Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s 's right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s 's Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Interchange Corp)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Except as otherwise provided in this Work Letter, Landlord shall ~~pay up~~ cause its contractor to construct the ~~amount of the “~~Tenant Improvements at Landlord’s ~~Contribution” (as defined below) towards the~~ sole cost ~~of the Tenant Improvement Work~~and expense. Any additional cost ~~of the Tenant Improvement Work, including additional costs~~ resulting from ~~“Changes”~~ Changes (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 five (5) business days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section ~~1.C~~ I.C below, Landlord shall advise Tenant by written change order ~~as soon as is practical~~ of any increase in the cost to complete the Tenant Improvement Work and/or any Tenant Delay that such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order and Tenant Delay, if any, in writing within 2 three (3) business days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that such cost must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a ~~non-~~ non-standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its ~~sole and absolute~~ reasonable discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. ~~The~~ Unless Landlord otherwise agrees in writing, in its sole and absolute discretion: (a) the cost to complete any Non-Standard Improvements shall be borne by Tenant~~. All~~ , and (b) all Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at either prior to or following the ~~time~~ expiration or termination of ~~Landlord’s approval of a Change~~the Lease, require Tenant either to remove all or any of the Non-Standard ~~Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant~~Improvements, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 ten (10) days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available, provided Landlord promptly advises Tenant that such materials are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 ten (10) days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section ~~Ill~~ II below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 not more than two (2) weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement Work and tendered the Premises to Tenant. F. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxx Xxxxxxxxxx (“Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Bakbone Software Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall ~~pay up to the amount of the “Landlord’s Contribution”~~ approve both (~~as defined below~~i) ~~towards the cost of the Tenant Improvement Work. Any additional cost of~~ a detailed space plan for the Tenant Improvement Work, ~~including additional costs resulting from~~ prepared by Landlord’s architect, which includes, if applicable, interior partitions, ceilings, interior finishes, interior doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements of Tenant (“~~Changes”~~ Preliminary Plan”), and (~~as hereinafter defined~~ii) ~~requested by Tenant, shall be borne solely by~~ an estimate of the cost to complete the Tenant ~~and paid to Landlord as hereinafter provided. Unless otherwise specified~~ Improvement Work in accordance with the Preliminary Plan or (“Preliminary Cost Estimate”), ~~all materials, specifications and finishes utilized in constructing the Tenant Improvements~~ which Preliminary Cost Estimate will be based upon estimated costs provided by Landlord’s contractor. The Preliminary Plan shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project ~~as set forth in Schedule I attached hereto~~ (“Building Standard Improvements”), except for changes and additions specifically requested by Tenant and approved by Landlord in its sole and absolute discretion in writing (any such addition or variation from the Standard Improvements shall be referred to herein as a (“Non-Standard Improvement”). ~~Should~~ All Tenant requests for Non-Standard Improvements must be in writing and shall provide sufficient specifications and details for Landlord ~~submit~~ to reasonably evaluate impacts upon the Preliminary Plan and Preliminary Cost Estimate. If Non-Standard Improvement(s) are approved by Landlord as herein provided, the Preliminary Plan, the Preliminary Cost Estimate shall include estimated costs for such Non-Standard Improvements for inclusion as part of Tenant’s Contribution. Tenant shall approve or provide suggested revisions to the Preliminary Plan and the Preliminary Cost Estimate by signing copies of each or specifying in reasonable detail any ~~additional plans~~suggested revisions thereto as hereinabove provided, ~~equipment specification sheets~~and delivering each to Landlord within five (5) days of receipt thereof by Tenant. Landlord shall attempt in good faith to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant’s suggested revisions in a mutually satisfactory manner, provided, however, in no event shall Tenant have the right to require any Non-Standard Improvements or ~~other matters~~ to make any changes or additions to the Preliminary Plan for the purpose of utilizing unused “Maximum Landlord Contribution” (as defined in Section II.B. below). B. Tenant shall provide in writing to Landlord or Landlord’s architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of paint and floor finishes, complete specifications and locations (including electrical, load and HVAC requirements) of Tenant’s equipment, and details of all Non-Standard Improvements (as defined above) which have been approved by Landlord as part of the Preliminary Plan (collectively, “Programming Information”). Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord shall have no obligation or liability for such defects or problems arising from any incomplete or inaccurate Programming Information. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord’s architect and engineers shall prepare and deliver to Tenant working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the Tenant Improvements in conformity with the Working Drawings and Specifications. A copy of the Final Cost Estimate shall be delivered to Tenant for its approval ~~or completion in connection with the~~ unless there are no Non-Standard Tenant ~~Improvement Work,~~ Improvements and Tenant is not responsible for any Tenant’s Contribution. Tenant shall ~~respond in writing, as appropriate, within 5~~ have five (5) days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and (if delivered to Tenant) the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, in its sole and absolute discretion, shall be incorporated into a revised set of Working Drawings and Specifications and the ~~Plan or otherwise~~Final Cost Estimate, and Tenant shall approve same in writing within five (5) days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“Change”), and Landlord so approves such Change as provided in Section ~~1.C below~~I.E. herein, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 two (2) days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. E. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement ~~in the Plan~~ to a ~~non- standard improvement (“~~Non-Standard ~~Improvement”)~~Improvement in the Preliminary Plan or any other modification of the Working Drawings and Specifications, if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost ~~to complete~~ of any Non-Standard Improvements shall be ~~borne by~~ part of Tenant’s Contribution (as hereinafter defined). All Standard Tenant Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at either prior to or following the ~~time~~ expiration or termination of ~~Landlord’s approval of a Change~~the Lease, require Tenant either to remove all or any of the Non-Standard ~~Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant~~Improvements, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable ~~Standard Improvement~~Building Standard, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 ten (10) days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. ~~D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights~~ F. It is understood that all or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion a portion of the Tenant Improvements ~~(including without limitation by specifying materials that are not readily available) or the issuance of an~~ may be done during Tenant’s occupancy ~~certificate (any~~ of the ~~foregoing being referred~~ Premises. In this regard, Tenant agrees to ~~in this Lease as a “Tenant Delay”)~~assume any risk of injury, ~~then Tenant shall bear any resulting additional construction cost~~ loss or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises damage to Tenant ~~but for~~ to the ~~collective Tenant Delays. Should Landlord determine that~~ extent not the ~~Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing.~~ result of Landlord’s ~~determination shall be conclusive unless Tenant notifies~~ negligence or willful misconduct. While Landlord ~~in writing, within 5 days thereafter,~~ agrees to employ construction practices reasonably intended to minimize disruptions to the operation of Tenant’s ~~election to contest same by arbitration pursuant to~~ business in the ~~provisions of Section Ill below. Pending the outcome of such arbitration proceedings~~Premises, Tenant ~~shall make timely payment~~ acknowledges and agrees that some disruptions may occur during the course of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date construction of the ~~Lease in order that~~ Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approvalImprovements, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall rent axxxx as the ~~failure~~ result of the construction of the Tenant Improvements. Tenant shall pay for and cause Tenant’s ~~contractors~~ furniture and other equipment (including computers) to ~~complete any work in~~ be moved as necessary so as to facilitate the ~~Premises extend the Commencement Date of this Lease~~Tenant Improvement Work. F. G. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Mxxx Xxxxxxxxx (“Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Endocare Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant has approved, or shall approve within the time period set forth below, a detailed space plan for the Premises, prepared by the architect engaged by Landlord ~~shall pay up to~~ for the ~~amount of the~~ work described herein (“Landlord’s ~~Contribution”~~ Architect”), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (~~as defined below~~“Preliminary Plan”), and (ii) ~~towards~~ an estimate, prepared by Landlord’s Contractor of the cost ~~of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall~~ for which Landlord will complete or cause to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ completed the Tenant Improvements (“Preliminary Cost Estimate”). To the extent applicable, the Preliminary Plan shall be include Landlord’s building standard tenant improvements, materials and specifications for the ~~Project as set forth~~ Project, a list of which shall be made available to Tenant. Tenant shall approve or disapprove the Preliminary Plan and Preliminary Cost Estimate by signing and delivering same to Landlord within 3 business days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in ~~Schedule I attached hereto~~ detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan and Preliminary Cost Estimate to incorporate Tenant’s suggested revisions in a mutually satisfactory manner. Notwithstanding the foregoing, however, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than October 31, 2018 (“~~Standard Improvements~~Plan Approval Date”), it being understood that Tenant’s failure to do so shall constitute a “Tenant Delay” for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord’s Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant’s equipment, and details of all other non-building standard improvements to be installed in the Premises (collectively, “Programming Information”). ~~Should Landlord submit any additional plans~~Tenant’s failure to provide the Programming Information by the Plan Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, ~~equipment specification sheets~~and accordingly that such information must be accurate and complete. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, ~~or other matters~~ Landlord’s Architect and engineers shall prepare and deliver to the parties working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the Tenant ~~for approval or completion~~ Improvements in ~~connection~~ conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have 3 business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously approved by Tenant~~ contained in the approved Preliminary Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section 1.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change. Tenant shall approve or disapprove such change order in writing within 2 days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s riskPreliminary Cost Estimate. In no event shall Tenant disapprove the ~~failure~~ Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of ~~Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F.~~ revisions. Any revision requested by Tenant ~~hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent~~ and ~~attorney-in-fact for all matters related to the Tenant Improvement Work, including but not~~ accepted by ~~way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and~~ Landlord shall be ~~entitled~~ incorporated by Landlord’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within 3 business days of receipt without further revision. Tenant’s failure to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making comply in a timely manner with any of the ~~Tenant’s Construction Representative~~ requirements of this paragraph shall constitute a Tenant Delay. D. It is understood that the Preliminary Plan and the Working Drawings and Specifications, together with ~~respect~~ any Changes thereto, shall be subject to the prior approval of Landlord (not to be unreasonably withheld). Landlord shall identify any disapproved items within 3 business days (or 2 business days in the case of Changes) after receipt of the applicable document. Should Landlord approve work pursuant to the foregoing that would necessitate any ancillary Building modification or other expenditure by Landlord, then except to the extent of any remaining balance of the “Landlord Contribution” as described below, Tenant ~~Improvement Work and is not intended~~ shall, in addition to ~~limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by~~ its other ~~officers or representatives of Tenant. Tenant may amend~~ obligations herein, promptly fund the ~~designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice~~ cost thereof to Landlord.

Appears in 1 contract

Samples: Lease Agreement (BioPharmX Corp)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. 2.1 Tenant and Landlord shall ~~pay up to~~ approve, within the ~~amount of~~ time period set forth below, working drawings and specifications (the “Working Drawings and Specifications”) for the construction of certain Tenant Improvements in the Premises (the “Tenant Improvements”), prepared by Landlord’s ~~Contribution” (as defined below) towards~~ architect and engineers. To the ~~cost of~~ extent applicable, the ~~Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant,~~ Working Drawing and Specification shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in the “Outline Specifications- Tenant Improvements” set forth in the attached Schedule ~~I attached hereto~~ 4 (“Building Standard Improvements”), except for changes and additions specifically requested by Tenant and reasonably approved by Landlord in writing (any such addition or variation from the Standard Improvements shall be referred to herein as a (“Non-Standard Improvement”). ~~Should~~ All Tenant requests for Non-Standard Improvements must be in writing and shall provide sufficient specifications and details for Landlord ~~submit~~ to reasonably evaluate impacts upon the Working Drawings and Specifications and Final Cost Estimate. Tenant shall approve or provide suggested revisions to the Working Drawings and Specifications by signing copies of each or specifying in reasonable detail any ~~additional plans~~suggested revisions thereto as hereinabove provided, ~~equipment specification sheets, or other matters~~ and delivering each to ~~Tenant for approval or completion~~ Landlord within 5 business days of receipt thereof by Tenant. Landlord shall in ~~connection with~~ good faith modify the ~~Tenant Improvement Work~~Working Drawings and Specifications to incorporate Tenant’s suggested revisions in a mutually satisfactory manner. Notwithstanding the foregoing, Tenant shall ~~respond~~ approve in ~~writing~~all respects, the Working Drawings and Specifications (as ~~appropriate~~same may have been modified as herein provided to incorporate Tenant’s suggested revisions) not later than March 1, ~~within 5 days unless a shorter period~~ 2013 (the “Plan Approval Date”), it being understood that Tenant’s failure to do so, except to the extent such failure is caused by Landlord’s failure to timely perform as provided ~~herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant~~ in the ~~Plan or otherwise~~foregoing and subject to the provisions of Section 2.5 below, shall constitute a “Tenant Delay” (as defined below). B. 2.2 In the event that Tenant subsequently requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications approved by the parties pursuant to Section 2.1 above (“Change”), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written ~~change~~ order (a “Change Order”) as soon as is practical of any net cost increase in the Completion Cost above the Final Cost Estimate (taking into account any cost savings attributable to ~~complete~~ such Change Order together with previous Change Orders) and the amount of any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such ~~change order~~ Change Order, if any, in writing within 2 business days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for sameChange Order. If Tenant disapproves any such ~~change order~~Change Order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such ~~change order~~Change Order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a ~~change order~~Change Order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event, subject to the provisions of Section 2.5 below, any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. Except for revisions required by code or other applicable laws which do not materially and adversely affect Tenant’s permitted use of the Premises or materially increase Tenant’s Contribution, in no event shall Landlord have the right to make any revisions to the Working Drawings and Specifications without Tenant’s prior written consent, which consent shall not be unreasonably withheld or delayed. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, 2.3 Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in any event if the requested ~~Change to the Non-Standard Improvements~~ Change: (i) is materially adversely affects the structure of ~~a lesser quality than~~ the ~~Non-Standard Improvements previously approved by Landlord~~Building, (ii) ~~fails to conform to applicable governmental requirements~~materially adversely affects the electrical, mechanical, plumbing, life safety, sprinkler, HVAC or other systems of the Building, (iii) ~~would result in~~ affects the ~~Premises requiring building services beyond~~ exterior appearance of the ~~level normally provided to other tenants~~Building or the exterior areas of the Project, (iv) ~~interferes~~ does not comply with all applicable laws, (v) adversely affects the configuration of tenant spaces or the core spaces throughout the Building in ~~any manner with~~ the ~~proper functioning of~~following respects: non-continuous ceiling grid, inconsistency of lighting fixtures, walls penetrating the ceiling grid, significantly non-rectangular or ~~Landlord’s access to, any mechanical, electrical, plumbing~~ odd-sized offices (provided that minor variations in shape or ~~HVAC systems, facilities or equipment in or serving the Building~~size shall not be considered a Design Problem), or (vvi) ~~would have an adverse aesthetic impact~~ results in inconsistency of the quality, materials or finishes within the Building as to equivalently improved portions of the Premises (collectively, a “Design Problem”). 2.4 XxXxxxxx Construction, or another general contractor selected by Landlord, shall construct the Tenant Improvements under contract to Landlord. Promptly following the approval of the Working Drawings and Specifications by the parties pursuant to Section 2.1 above, Landlord shall cause ~~additional expenses~~ its general contractor to submit the major subtrade work, including the HVAC, electrical and plumbing subtrade work (the “MEP Work”), to a competitive bidding process involving at least 3 licensed and reputable subcontractors. Not later than March 7, 2013, Landlord ~~in reletting~~ shall submit the ~~Premises. The cost to complete any Non-Standard Improvements shall be borne~~ final pricing for the MEP Work (including copies of the applicable competitive bid responses, if requested by Tenant) to Tenant for its reasonable approval. ~~All Standard Improvements and Non-Standard Improvements~~ Landlord shall ~~become~~ in good faith modify the ~~property~~ MEP Work to incorporate Tenant’s suggested revisions in a mutually satisfactory manner, but Tenant shall finally approve in all respects the final pricing for the MEP Work not later than the later to occur of ~~Landlord and shall be surrendered with~~ (i) March 12, 2013, or (ii) 5 business days from the ~~Premises at the end~~ receipt of the ~~Term; except that~~ final pricing for the MEP Work from Landlord ~~may~~(the “MEP Approval Date”) . Not later than March 21, ~~by notice to Tenant given at~~ 2013, Landlord shall submit the ~~time of Landlord’s approval of a Change, require Tenant either to remove all or any of~~ final pricing for the ~~Non-Standard Improvements and all or any~~ remainder of the Tenant ~~Improvements approved by way~~ Improvement Work (the “Remainder Work”) (including copies of ~~such Change~~ the applicable competitive bid responses, if requested by Tenant) to Tenant for its reasonable approval. Landlord shall in good faith modify the Remainder Work to incorporate Tenant’s suggested revisions in a mutually satisfactory manner, but Tenant’s shall finally approved in all respects the final pricing for the Remainder Work not later than the later to ~~repair any damage to the Premises or the Common Area arising from such removal~~occur (a) March 26, ~~and to replace such Non-Standard Improvements with the applicable Standard Improvement~~2013, or ~~to reimburse Landlord~~ (b) 5 business days of receipt of the final pricing for the ~~reasonable cost~~ Remainder Work from Landlord (the “Remainder Work Approval Date”). The pricing of ~~any such removal, repair~~ the MEP Work and ~~replacement upon demand. Any such removals, repairs and replacements~~ the Remainder Work so approved by Tenant ~~shall be completed by~~ is herein collectively referred to as the ~~Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination~~“Final Cost Estimate”. D. 2.5 Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 business days following Tenant’s receipt thereof), fails to approve in writing the Working Drawings and Specifications by the Plan Approval Date, fails to timely deliver payment of any net increased costs specified in a Change Order in accordance with Section 2.2 above, requests any ~~Changes~~Changes and thereafter accepts a Change Order containing Landlord’s good faith estimate of resulting Tenant Delay, ~~furnishes inaccurate or erroneous specifications or other information~~fails to approve the final pricing of the MEP Work by the MEP Work Approval Date, fails to approve the final pricing of the Remainder Work by the Remainder Work Approval Date, or otherwise actually delays in any manner for more than one (1) business day following written or oral notification thereof the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate beyond the Estimated Commencement Date, and such delay would not have occurred but for Tenant’s actions or failure to act (any of the foregoing being referred to in this Lease as a “Tenant Delay”), ~~then~~ then, subject to and as provided in Section 3.2 of the Lease, the date Tenant ~~shall bear any resulting additional construction cost or other expenses, and~~ otherwise would commence the ~~Commencement Date~~ payment of ~~this~~ rent under the Lease shall be ~~deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as~~ advanced by the number of ~~the date~~ days that Landlord reasonably determines that it ~~would have been able to deliver~~ was actually delayed in delivering the Premises to Tenant ~~but for~~ following the ~~collective~~ Estimated Commencement Date due to such Tenant ~~Delays~~Delay. Any Change Order delivered by Landlord shall include a good faith estimate of the amount of any Tenant Delay and a binding estimate of the net cost increase above the Final Cost Estimate (taking into account any cost savings attributable to such Change Order together with previous Change Orders). Promptly upon Landlord’s realization that the actual amount of Tenant Delay due to Change Order will exceed the amount of delay in Landlord’s good faith estimate, landlord shall advise Tenant orally or in writing of the additional amount of delay Landlord estimates in its good faith will result therefrom. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) business days thereafter, of Tenant’s election to contest same by arbitration pursuant to Section 4 below. 2.6 All of the ~~provisions~~ Tenant Improvements shall become the property of ~~Section Ill below~~Landlord and shall be surrendered with the Premises at the expiration or sooner termination of this Lease. ~~Pending~~ Notwithstanding the ~~outcome~~ foregoing, Landlord shall have the right, by notice to Tenant given prior to Tenant’s approval of the Working Drawings and Specifications and at the time of Landlord’s approval of any Change, to require Tenant to remove all or any of the Tenant Improvements approved in the Working Drawings and Specifications or by way of such ~~arbitration proceedings~~Change, to repair any damage to the Premises arising from such removal, and to replace any Non-Standard Improvements so approved with the applicable Building Standard Improvement, provided that such right may only be exercised by Landlord with respect to Tenant Improvements (i) that constitute a Design Problem, or (ii) that constitute the substitution of Non-Standard Improvements for Building Standard Improvements. Any such removals, repairs and replacements by Tenant shall ~~make timely payment~~ be completed by the Expiration Date or sooner termination of ~~all rent due under~~ this ~~Lease based upon~~ Lease. Notwithstanding the ~~Commencement Date set forth~~ foregoing: (A) a reasonably customary cafeteria area shall not be subject to removal as provided in the ~~aforesaid notice from~~ foregoing, provided that the location and size of such cafeteria are approved by Landlord as part of the Working Drawings and Specifications, and (B) Tenant’s obligations with respect to the restoration of its data center shall be limited to removing its equipment, including the APC Infrastructure in-row cooling and in-row power distribution units (which equipment and units shall be Tenant’s property) such that the data center will be returned in vacant condition. Landlord expressly agrees that Tenant shall not be required to remove or restore the tile flooring in the data room, the chilled water coolers on the roof installed to serve the data center and associated piping required to serve the data center or the main power feed to the data center, all of which shall be the property of Landlord. E. 2.7 Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ 30 days prior to the Commencement Date of the Lease in order that Tenant may install ~~fixtures, furniture~~ its cabling and ~~cabling~~ related communication equipment and other personal property through Tenant’s own contractors prior to the Commencement Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time Landlord determines that such entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 24-hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. 2.8 Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Andreas Bechtolsheim (“Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord. 2.9 Notwithstanding anything to the contrary in the Lease or this Work Letter, Tenant’s acceptance of the Premises shall not be deemed a waiver of Tenant’s right to require Landlord to cause its contractor to correct any defects in the Base Building or the Tenant Improvements identified by Tenant, in writing, within twelve (12) months after the Commencement Date. Landlord shall promptly repair or cause contractor to repair all such defects, at no cost to Tenant.

Appears in 1 contract

Samples: Lease (Arista Networks, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall ~~pay up to~~ engage X. Xxxxx & Associates for the ~~amount~~ preparation of a detailed space plan for the Premises which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (“Preliminary Plan”). Not later than March 18, 2013 (“Plan Approval Date”), Tenant shall approve the Preliminary Plan by signing copies of the “appropriate instrument and delivering same to Landlord for Landlord’s ~~Contribution”~~ review and approval. B. On or prior to April 8, 2013, Tenant shall (~~as defined below~~i) ~~towards~~ cause architect. Hendy & Associates to prepare final construction drawings (including engineering drawings) and specifications for the ~~cost~~ Tenant Improvements (“Working Drawings and Specifications”) and (ii) approve in writing the Working Drawings and Specifications and deliver same to Landlord for review and approval. It is understood that Tenant’s architect shall utilize Landlord’s mechanical, electrical, plumbing, fire/life safety and fire sprinkler engineers for the Building. Tenant shall cause Landlord to be provided with CAD files of the final as-built construction drawings that are compatible with Landlord’s CAD standards, which standards shall be provided to Tenant or its architect upon request; should Tenant fail to deliver same by the substantial completion of the Tenant Improvement ~~Work. Any additional~~ work, then Landlord may cause such CAD files to be prepared by its architect, the cost of ~~the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant,~~ which shall be ~~borne solely~~ funded by Tenant ~~and paid~~ to Landlord ~~as hereinafter provided~~within 10 days after invoice therefor. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved The cost incurred by Tenant in preparing the Preliminary Plan ~~or otherwise. B. In~~ and the ~~event that Tenant requests in writing a revision~~ Working Drawings and Specifications (but only to the ~~Plan (“Change”~~extent the amount thereof is furnished to Landlord prior to the receipt of the contractors’ bids as described below), and Landlord so approves such Change as provided in Section 1.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change. Tenant shall approve or disapprove such change order in writing within 2 days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently together with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~any such removal~~Landlord’s architect to review same and the accompanying CAD files, ~~repair and replacement upon demand. Any such removals, repairs and replacements by Tenant~~ shall be ~~completed~~ funded by Landlord from the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any “Landlord Contribution” set forth below. Upon approval of the ~~time periods specified in this Work Letter~~Working Drawings and Specifications, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall ~~permit Tenant~~ cause same to be bid as aforesaid. Each bidding contractor shall use the electrical, mechanical, plumbing and ~~its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture~~ fire/life safety engineers and ~~cabling through Tenant’s own contractors prior to the Commencement Date~~subcontractors designated by Landlord. ~~In addition, Tenant may utilize the loading dock and parking area during such time. Any such work~~ All other subcontractors shall be subject to Landlord’s ~~prior written~~ reasonable approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall require that the drywall subtrade be ~~entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant~~union contractors. The ~~foregoing authorization is intended to provide assurance to~~ lowest responsible bidder shall be selected by Landlord ~~that it may rely upon~~ as the ~~directives~~ general contractor, and ~~decision making of~~ the ~~Tenant’s Construction Representative with respect to~~ bid amount shall be deemed the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord“Final Cost Estimate” for purposes hereof.

Appears in 1 contract

Samples: Lease (Clean Energy Fuels Corp.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall ~~pay up to~~ approve within the ~~amount~~ time period set forth below, both (i) a detailed space plan for the Premises, prepared by Landlord's architect, which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by Landlord's contractor, of the ~~“Landlord’s Contribution” (as defined below) towards the~~ cost ~~of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall~~ for which Landlord will complete or cause to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ completed the Tenant Improvements ~~shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto~~ (~~“Standard Improvements”~~"Preliminary Cost Estimate"). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section 1.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change. Tenant shall approve or disapprove such change order in writing within 2 days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval each of the ~~change order, or~~ Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within five (ii5) ~~defer~~ working days of its receipt by Tenant~~’s payment of such increase until the date 10 days after delivery of invoices for same~~. If Tenant disapproves any ~~such change order~~matter, Tenant shall ~~nonetheless~~ specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. In no event, however, shall Tenant have the right to make additions to the Preliminary Plan as part of its approval thereof which would increase the improvements to be ~~responsible~~ paid for by "Landlord's Contribution" (as hereinafter defined), it being understood and agreed that the Preliminary Plan submitted by Landlord's architect is intended to include all improvements desired by Tenant using Landlord's "Standards" (as hereinafter defined), whether or not the full amount of Landlord's Contribution would be required to complete construction of the improvements as shown in the Preliminary Plan. In all events, however, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than the date set forth in Item 15 of the Basic Lease Provisions ("Plan Approval Date"), it being understood that Tenant's failure to do so shall constitute a "Tenant Delay" for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord's architect all specifications and information requested by Landlord for the ~~reasonable architectural and/or planning fees incurred~~ preparation of final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) to be installed in ~~preparing such change order~~the Premises (collectively, "Programming Information"). ~~Landlord~~ Tenant's failure to provide the Programming Information by the Plan Approval Date shall ~~have no obligation to interrupt or modify~~ constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant ~~Improvement Work pending Tenant’s approval of a change order~~Improvements shall be predicated on the Programming Information, ~~but if Tenant fails to timely approve a change order, Landlord may (but shall not~~ and accordingly that such information must be ~~required to) suspend the applicable Tenant Improvement Work~~accurate and complete. C. The Tenant Improvements shall incorporate Landlord's building standard materials and specifications ("Standards"). No deviations from the Standards may be required by Tenant with respect to doors and frames, finish hardware, entry graphics, the ceiling system, light fixtures and switches, mechanical systems, life and safety systems, and/or window coverings; provided that Landlord ~~may consent in writing~~may, in its sole ~~and absolute~~ discretion, ~~to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested~~ authorize in writing one or more of such deviations, in which event Tenant shall pay to Landlord, prior to the commencement of construction and in addition to sums otherwise due hereunder from Tenant, an amount equal to the cost, as reasonably estimated by ~~Tenant~~Landlord, of replacing the deviating item(s) with the applicable Standard item(s) upon the expiration or termination of this Lease. ~~In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved~~ All other non-standard items ("Non-Standard Improvements~~, unless Landlord determines, in its sole and absolute discretion, that such requested Change~~ ") shall be subject to the reasonable prior approval of Landlord. Landlord shall in no event be required to approve any Non-Standard ~~Improvements~~ Improvement if Landlord determines that such improvement (i) is of a lesser quality than the ~~Non-Standard Improvements previously approved by Landlord~~corresponding Standard, (ii) fails to conform to applicable governmental requirements, (iii) ~~would result in the Premises requiring~~ requires building services beyond the level normally provided to other tenants, (iv) ~~interferes~~ would delay construction of the Tenant Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in ~~any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building~~writing as a Tenant Delay, or (v) would have an adverse aesthetic impact to from the ~~Premises or cause additional expenses to Landlord in reletting~~ exterior of the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Industrial Lease (Ambassadors International Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall pay up to the full amount ~~of the “Landlord’s Contribution” (as defined below)~~ towards the cost of the Tenant ~~Improvement Work~~Requested Improvements as outlined in the Plan dated February 24, 2022. Any additional cost exceeding the total amount of the ~~Tenant Improvement Work~~Plan, including ~~additional~~ but not limited to, equipment and costs resulting from ~~“Changes”~~ Changes (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by ~~Tenant and paid to Landlord as hereinafter provided~~Tenant. Unless otherwise specified in the ~~Plan or Cost Estimate~~Plan, all materials, specifications and finishes utilized in constructing the Tenant Requested Improvements shall be Landlord’s 's building standard tenant ~~improvements,~~ improvement materials and specifications for the ~~Project~~ Plan as set forth in Schedule I attached ~~hereto (“Standard Improvements”)~~hereto. Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant ~~Improvement Work~~Requested Improvements, Tenant shall respond in writing, as appropriate, within 5 five (5) days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“"Change”"), and Landlord so approves such Change as provided in Section ~~1.C~~ I.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant ~~Improvement Work~~ Requested Improvements and/or any Tenant Delay that such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order and Tenant Delay, if any, in writing within 2 two (2) days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s 's approval of the change order, or (ii) ~~defer~~ increase Tenant~~’s payment of such increase until the date 10 days after delivery of invoices for same~~'s rent payment. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such ~~change order~~change. Landlord shall have no obligation to interrupt or modify the Tenant ~~Improvement Work~~ Requested Improvements pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant ~~Improvement Work~~Requested Improvements, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s 's request for a Change, including any modification of ~~a Standard Improvement in~~ the ~~Plan to a non- standard improvement (“Non-Standard Improvement”)~~Tenant Requested Improvements, if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested Changes to previously approved ~~Non-Standard~~ Tenant Requested Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard Improvements~~ Plan previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Requested Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s 's access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete ~~any Non-Standard~~ the Tenant Requested Improvements shall be borne by ~~Tenant~~Landlord, provided it is within the budget outlined in the Plan dated February 24, 2022. All ~~Standard Improvements and Non-Standard~~ Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at either prior to or following the ~~time~~ expiration or termination of ~~Landlord’s approval of a Change~~the Lease, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demandImprovements. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 ten (10) days following notice to Tenant if such notice is given following the Expiration Date or sooner termination.. ThermoGenesis Holdings Inc. Lease D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s 's receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Requested Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “"Tenant Delay”"), then Tenant shall bear any resulting additional construction cost or other ~~expenses~~expenses above the budget as in the Plan, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s 's election to contest same by arbitration pursuant to the provisions of Section ~~Ill~~ II below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s 's own ~~contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time~~contractors. Any such work shall be subject to Landlord’s 's prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. ~~Tenant~~ Landlord hereby designates ~~Xxxxxx Xxxxxxxx~~ Kxxxx Xxxxxxxxx (~~Tenant’s~~ "Tenant Requested Improvements Construction Representative”"), Telephone No. ~~(000)~~ 700-000-~~0000~~0000 Ext. 101, as its ~~representative, agent and attorney-in-fact~~ representative for all construction matters related to the Tenant ~~Improvement Work~~Requested Improvements, including but not by way of limitation, for purposes of ~~receiving notices~~applying permits, ~~approving submittals and issuing requests for Changes, and~~ developing construction plans. Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s~~ Tenant Requested Improvements Construction Representative(s) at any time upon delivery of written notice to ~~Landlord~~Tenant.

Appears in 1 contract

Samples: Lease Agreement (ThermoGenesis Holdings, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall approve within the time period set forth below, both (i) a detailed space plan for the Premises, prepared by Landlord's architect, which includes interior partitions, ceilings, interior finishes, interior doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by Landlord's contractor, of the cost for which Landlord will complete or cause to be completed the Tenant Improvements ("Preliminary Cost Estimate"). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within five (5) days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall ~~pay~~ attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. In no event, however, shall Tenant have the right to make additions to the Preliminary Plan as part of its approval thereof which would increase the improvements to be paid for by "Landlord's Contribution" (as hereinafter defined), it being understood and agreed that the Preliminary Plan submitted by Landlord's architect is intended to include all improvements desired by Tenant using Landlord's "Standards" (as hereinafter defined), whether or not the full amount of Landlord's Contribution would be required to complete construction of the improvements as shown in the Preliminary Plan. Notwithstanding the foregoing, Landlord agrees that Tenant shall have the right to make modifications, additions or Changes to an approved Preliminary Plan or Working Drawings and Specifications, to incorporate additional Standards, and to use up to Fifty Cents ($.50) per rentable square foot of Landlord's Contribution to pay the ~~amount~~ cost of any such modifications, additions or Changes. In all events, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than the date set forth in Item 15 of the “Basic Lease Provisions ("Plan Approval Date"), it being understood that Tenant's failure to do so shall constitute a "Tenant Delay" for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord~~’s Contribution”~~ 's architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non- Standard Improvements" (as defined below) ~~towards~~ to be installed in the Premises (collectively, "Programming Information"). Tenant's failure to provide the Programming Information by the Plan Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Except as specified in the Preliminary Plan or otherwise authorized by Landlord, the Tenant Improvements shall incorporate Landlord's building standard materials and specifications ("Standards"). No deviations from the Standards shall be permitted, provided that Landlord may, in its sole and absolute discretion, authorize in writing one or more of such deviations if requested by Tenant, in which event any excess cost of ~~the Tenant Improvement Work. Any additional cost~~ such deviations shall be part of ~~the Tenant Improvement Work, including additional costs resulting from “Changes”~~ "Tenant's Contribution" (as hereinafter defined) ~~requested by Tenant,~~ and Tenant shall be ~~borne~~ solely ~~by Tenant and paid~~ responsible for the cost of replacing same with the applicable Standard item(s) upon the expiration or termination of this Lease. Landlord shall in no event be required to approve any deviations from the Standards ("Non-Standard Improvements") if Landlord ~~as hereinafter provided. Unless otherwise specified in~~ determines that such improvement (i) is of a lesser quality than the ~~Plan or Cost Estimate~~corresponding Standard, ~~all materials~~(ii) fails to conform to applicable governmental requirements, ~~specifications and finishes utilized in constructing~~ (iii) requires building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in writing as a Tenant Delay, or (v) would have an adverse aesthetic impact from the exterior of the Premises. D. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications ("Working Drawings and Specifications"), and Landlord's contractor shall prepare a final construction cost estimate ("Final Cost Estimate") for the Tenant Improvements in conformity with the Working Drawings and Specifications. The Final Cost Estimate shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters delivered to Tenant for its approval ~~or completion in connection with~~ only if such Estimate exceeds both the ~~Tenant Improvement Work,~~ approved Preliminary Cost Estimate and the amount of the Landlord's --- Contribution. Tenant shall ~~respond in writing, as appropriate, within 5~~ have five (5) days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and (if delivered to Tenant) the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within five (5) days of receipt without further revision. Tenant's failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. Without limiting the rights of Landlord for Tenant Delays as set forth herein, in the ~~Plan~~ event Tenant has not approved both the Working Drawings and Specifications and the Final Cost Estimate within sixty (60) days following the date of this Lease, then Landlord may, at its option, elect to terminate this Lease by written notice to Tenant. In the event Landlord elects to effect such a termination, Tenant shall, within ten (10) days following demand by Landlord, pay to Landlord any costs incurred by Landlord in connection with the preparation or ~~otherwise~~review of plans, construction estimates, price quotations, drawings or specifications under this Work Letter and for all costs incurred in the preparation and execution of this Lease, including any leasing commissions. B. E. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“"Change”")~~, and Landlord so approves such Change as provided in Section 1.C below~~, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 two (2) days following its receipt from Landlord. Tenant~~’s receipt~~ 's approval of such ~~change order. If Tenant approves~~ Change shall be accompanied by Tenant's payment of any ~~such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the~~ increase in the ~~cost~~ Completion Cost in excess of Landlord's Contribution resulting from such Change. Landlord shall have the right to ~~complete attributable to such change order concurrently with delivery of~~ decline Tenant~~’s approval~~ 's request for a Change for any of the ~~change order, or (ii) defer Tenant’s payment~~ reasons set forth in Article II.C above for Landlord's disapproval of ~~such increase until the date 10 days after delivery of invoices for same~~a Non-Standard Improvement. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s 's approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within five (5) days, fails to approve in writing both the Preliminary Plan and Preliminary Cost Estimate for the Tenant Improvements by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications or the Final Cost Estimate within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “"Tenant Delay”"), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. In no event, however, shall such date be earlier than the Estimated Commencement Date set forth in the Basic Lease Provisions. Notwithstanding the foregoing, no Tenant Delay shall be deemed to have occurred unless and until Landlord has given Tenant written notice of the act or omission which constitutes the basis for such Tenant Delay and such act or omission is not cured within one (1) complete business day after Tenant's receipt of such notice. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 fifteen (15) days thereafter, of Tenant’s 's election to contest same by arbitration ~~pursuant to the provisions of Section Ill below~~with JAMS in Orange County, California. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may ~~install fixtures~~perform any work to be performed by Tenant hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s 's prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s 's risk. In no event shall the failure of Tenant’s 's contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement work and tendered the Premises to Tenant. F. H. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxxxxx Xxxxx, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Industrial Lease (New Century Financial Corp)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall ~~pay up~~ engage an architect to prepare a detailed space plan for the Premises which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (“Preliminary Plan”). Not later than thirty (30) days after the full execution and delivery of this Lease (“Plan Approval Date”), Tenant shall approve the Preliminary Plan by signing copies of the appropriate instrument and delivering same to Landlord for Landlord’s review and approval. Landlord shall provide an estimate, prepared by the contractor engaged by Landlord for the work herein pursuant to the ~~amount of the~~ competitive bidding process described above (“Landlord’s ~~Contribution” (as defined below) towards~~ Contractor”), of the cost of for which Landlord will complete or cause to be completed the Tenant ~~Improvement Work~~Improvements (“Preliminary Cost Estimate”). ~~Any additional cost~~ The parties acknowledge Preliminary Plan shall substantially conform to the “Test Fit” attached as Exhibit X-1. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord’s Architect all specifications and information requested by Landlord (provided that Landlord must request any specific information it desires at least three (3) business days prior to the Plan Approval Date) for the preparation of ~~the Tenant Improvement Work~~final construction documents and costing, including ~~additional costs resulting from “Changes”~~ without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (~~as hereinafter defined~~including load and HVAC requirements) ~~requested by~~ of Tenant’s equipment, ~~shall~~ and details of all other non-building standard improvements to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the Premises (collectively, “Programming Information”). Tenant’s failure to provide the Programming Information by the Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord’s ~~building standard tenant improvements, materials~~ Architect and engineers shall prepare and deliver to the parties working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the ~~Project as set forth~~ Tenant Improvements in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have 3 business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate and/or items that are inconsistent with the Preliminary Plan or Preliminary Cost Estimate; provided that in no event shall Tenant have the right to request changes or additions to the Working Drawings and Specifications for the purpose of utilizing any unused portion of the Landlord Contribution. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord (provided that any revision requested by Tenant that is consistent with the Preliminary Plan and Preliminary Cost Estimate shall be accepted by Landlord) shall be incorporated by Landlord’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within 3 business days of receipt without further revision. Tenant’s failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. D. It is understood that the Preliminary Plan and the Working Drawings and Specifications, together with any Changes thereto, shall be subject to the prior approval of Landlord. Landlord shall identify any disapproved items within 3 business days (or 2 business days in the ~~Plan~~ case of Changes) after receipt of the applicable document. In lieu of disapproving an item, Landlord may approve same on the condition that Tenant pay to Landlord, prior to the start of construction and in addition to all sums otherwise due hereunder, an amount equal to the cost, as reasonably estimated by Landlord, of removing and replacing the item upon the expiration or ~~otherwise~~termination of the Lease. Should Landlord approve work that would necessitate any ancillary Building modification or other expenditure by Landlord, then except to the extent of any remaining balance of the “Landlord Contribution” as described below, Tenant shall, in addition to its other obligations herein, promptly fund the cost thereof to Landlord. B. E. Landlord shall submit the Preliminary Plan to competitive bid as provided above. Each bidding contractor shall use the electrical, mechanical, plumbing and fire/life safety engineers and subcontractors designated by Landlord. All other subcontractors shall be subject to Landlord’s reasonable approval, and Landlord may require that one or more designated subtrades be union contractors. The lowest responsible bidder shall be selected as Landlord’s general contractor and the bid amount shall be deemed the “Final Cost Estimate” for purposes hereof. F. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is acceptable to Landlord, Landlord shall advise Tenant by written change order as soon ~~as is practical of~~ within three (3) business days thereafter any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of ~~the change order, or (ii) defer~~ a Change shall be accompanied by Tenant’s payment of ~~such~~ any resulting increase ~~until~~ in the ~~date 10 days after delivery~~ Completion Cost except to the extent of ~~invoices for same~~any unutilized portion of the Landlord Contribution. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. G. Notwithstanding any provision in the Lease to the contrary, ~~and not by way of limitation of any other rights or remedies of Landlord,~~ if Tenant (a) fails to comply with any of the time periods specified in this Work Letter, (b) fails otherwise to approve or reasonably disapprove any submittal within 3 business days, (c) fails to approve in writing the Preliminary Plan by the Plan Approval Date, (d) fails to provide all of the Programming Information timely requested by Landlord by the Plan Approval Date, (e) fails to approve or respond to, in writing the Working Drawings and Specifications within the time ~~period specified herein for such response~~ provided herein, (~~or if no time period is so specified, within 5 days following Tenant’s receipt thereof),~~ f) requests any Changes, (g) fails to make timely payment of any sum due hereunder, (h) furnishes inaccurate or erroneous specifications or other information, or (i) otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other ~~expenses~~expenses to the extent the same cause the Completion Cost to exceed the Landlord Contribution, and the Commencement Date ~~of this Lease~~ shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s obligation to pay ~~rent~~Rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant ~~Delays~~Delays (provided, however, that in no event shall the Commencement Date be deemed to have occurred prior to the Estimated Commencement Date). Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 business days thereafter, of Tenant’s election to contest same by binding arbitration ~~pursuant to~~ with the ~~provisions of Section Ill below~~American Arbitration Association under its Arbitration Rules for the Real Estate Industry, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. Notwithstanding anything to the contrary, no act, omission or circumstance under clause (d) above shall constitute a Tenant Delay unless and until Tenant fails to cure such act, omission or circumstance within one (1) business day from the date that Landlord notifies Tenant in writing that such act, omission, or circumstance is delaying Landlord’s construction of the Tenant Improvements and will constitute a Tenant Delay unless cured by Tenant within such one (1) business day time period. E. H. Landlord shall permit Tenant and its agents to enter the Premises 3 four (4) weeks prior to the Commencement Date of the Lease in order that Tenant may ~~install fixtures, furniture and cabling~~ perform any work to be performed by Tenant hereunder through ~~Tenant’s~~ its own contractors ~~prior to the Commencement Date. In addition~~(including without limitation installation of cabling and FF&E), ~~Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times reasonably satisfactory to Landlord’s representative; provided, however, that the period during which Tenant is permitted to enter the Premises pursuant to the terms of this Subsection H shall in no event be less than the four (4) week period preceding the Commencement Date. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party ~~contractors~~contractors and subcontractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay ~~rent~~Rent unless Tenant commences business activities within the Premises. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement ~~Date of this Lease~~Date. F. I. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxxx Xxxxxxxxxx, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (BioNano Genomics, Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. ~~Landlord shall pay up~~ Prior to the ~~amount~~ execution of this Lease, Tenant and Landlord have approved a detailed plan for the Tenant Improvements prepared by X. Xxxxx Associates, dated December 16, 2014 (“Preliminary Plan”), and (ii) an estimate prepared by Casco Contractors, dated January 5, 2014 of the ~~“Landlord’s Contribution” (as defined below) towards the~~ cost of to complete the Tenant ~~Improvement Work. Any additional cost of~~ Improvements in accordance with the ~~Tenant Improvement Work, including additional costs resulting from~~ Preliminary Plan (“~~Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or~~ Preliminary Cost Estimate”). To the extent applicable, ~~all materials, specifications and finishes utilized in constructing~~ the build-out of the Tenant Improvements shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project ~~as set forth in Schedule I attached hereto~~ (“Building Standard Improvements”)~~. Should~~ , except for those additions or variations to Building Standard Improvements expressly approved by Landlord ~~submit~~ and noted on the Preliminary Plan (any ~~additional plans, equipment specification sheets,~~ such addition or ~~other matters~~ variation from the Standard Improvements shall be referred to ~~Tenant for approval~~ herein as a “Non-Standard Improvement”) B. Within 5 business days following any request from Landlord or ~~completion in connection with the Tenant Improvement Work~~Landlord’s architect, Tenant shall ~~respond~~ provide in ~~writing~~writing to Landlord or Landlord's architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of paint and floor finishes, complete specifications and locations (including electrical, load and HVAC requirements) of Tenant's equipment, and details of all Non-Standard Improvements (as ~~appropriate~~defined above) which have been approved by Landlord as part of the Preliminary Plan (collectively, ~~within~~ "Programming Information"). Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord shall have no obligation or liability for such defects or problems arising from any incomplete or inaccurate Programming Information. C. Following receipt of the Programming Information, Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications for the Tenant Improvements based on the approved Preliminary Plan ("Working Drawings and Specifications"), and Landlord's contractor shall prepare a final construction cost estimate ("Final Cost Estimate") for the Tenant Improvements in conformity with the Working Drawings and Specifications. Tenant shall have 5 business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, shall be incorporated into a revised set of Working Drawings and Specifications and the Final Cost Estimate, and Tenant shall approve same in ~~the Plan or otherwise~~writing within 5 business days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“"Change”"), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 business days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 business days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, E. Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level ~~normally provided~~ Landlord has agreed to ~~other tenants~~provide Tenant under this Lease, (iv) would delay construction of the Tenant Improvements, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or would cause additional expenses to Landlord in reletting the Premises~~. The cost to complete any Non-Standard Improvements shall be borne by Tenant.~~ . F. All Standard Tenant Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the ~~Term;~~ expiration or sooner termination of this Lease, except that Landlord ~~may~~shall have the right, by notice to Tenant given at the time of Tenant’s election of any “Alternate” shown on the approved Preliminary Plan or at the time of Landlord’s approval of a any Change, to require Tenant ~~either~~ either: (i) to remove all or any of ~~the Non-Standard Improvements~~ such Alternate(s) which are elected by Tenant, and all or any of the Tenant Improvements approved by way of such ~~Change~~ Change(s) requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace ~~such~~ any Non-Standard Improvements approved by way of such Change with the applicable ~~Standard Improvement~~Building Standard, or (ii) to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration ~~Date,~~ Date or sooner termination of this Lease. It is understood and agreed, however, that Tenant shall not be required to remove or ~~within 10 days following notice to~~ replace any Tenant ~~if such notice is given following~~ Improvements shown in the ~~Expiration Date or sooner termination~~Preliminary Plan. ~~D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights~~ G. It is understood that all or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion a portion of the Tenant Improvements ~~(including without limitation by specifying materials that are not readily available) or the issuance of an~~ may be done during Tenant’s occupancy ~~certificate (any~~ of the ~~foregoing being referred~~ Premises. In this regard, Tenant agrees to ~~in this Lease as a “Tenant Delay”)~~assume any risk of injury, ~~then Tenant shall bear any resulting additional construction cost~~ loss or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises damage to Tenant ~~but for~~ to the ~~collective Tenant Delays. Should Landlord determine that~~ extent not the ~~Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing.~~ result of Landlord’s ~~determination shall be conclusive unless Tenant notifies~~ negligence or willful misconduct. While Landlord ~~in writing, within 5 days thereafter,~~ agrees to employ construction practices reasonably intended to minimize disruptions to the operation of Tenant’s ~~election to contest same by arbitration pursuant to~~ business in the ~~provisions of Section Ill below. Pending the outcome of such arbitration proceedings~~Premises, Tenant acknowledges and agrees that some disruptions may occur during the course of construction of the Tenant Improvements, and in no event shall ~~make timely payment~~ rent xxxxx as the result of ~~all rent due under this Lease based upon~~ the ~~Commencement Date set forth in~~ construction of the ~~aforesaid notice from Landlord~~Tenant Improvements. Tenant shall pay for and cause Tenant’s furniture and other equipment to be moved as necessary (including disconnecting and reconnecting computers and telecommunications cabling equipment) so as to facilitate the Tenant Improvements Work. ~~E. Landlord shall permit~~ H. It is further understood and agreed that the Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work Improvements shall be ~~subject~~ substantially completed not later than December 31, 2015 to be eligible for funding by Landlord~~’s prior written approval~~, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be ~~liable in~~ obligated to fund any ~~way for any personal injury, and/or loss or damage~~ portion of ~~property which may occur in connection with~~ the Landlord’s Contribution towards the Tenant Improvements commenced after such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Leasedate. F. I. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxxxxx X’Xxxxxxx (“Tenant’s Construction Representative”), Telephone No. (000) 000-0000, Email: xxxxxxxxx@xxxxxxx.xxx, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Any notices or submittals to, or requests of, Tenant related to this Work Letter and/or the Tenant Improvement Work may be sent to Tenant’s Construction Representative at the email address above provided. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Biolase, Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord shall ~~pay up to~~ approve both (i) a detailed space plan for the ~~amount of~~ Premises, prepared by the architect engaged by Landlord for the work described herein (“Landlord’s ~~Contribution”~~ Architect”), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (“Preliminary Plan”), and (ii) an estimate, prepared by the contractor engaged by Landlord for the work herein (“Landlord’s Contractor”), of the cost for which Landlord will complete or cause to be completed the Tenant Improvements (“Preliminary Cost Estimate”). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within 3 business days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant’s suggested revisions in a mutually satisfactory manner; provided that in no event shall Tenant have the right to request changes or additions to the Preliminary Plan for the purpose of utilizing any unused portion of the Landlord Contribution (as defined below~~) towards the cost~~ ). B. On or before its approval of the Preliminary Plan, Tenant ~~Improvement Work. Any additional cost~~ shall provide in writing to Landlord or Landlord’s Architect all specifications and information requested by Landlord for the preparation of ~~the Tenant Improvement Work~~final construction documents and costing, including ~~additional costs resulting from “Changes”~~ without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (~~as hereinafter defined~~including load and HVAC requirements) ~~requested by~~ of Tenant’s equipment, ~~shall~~ and details of all other non-building standard improvements to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the ~~Plan or Cost Estimate~~Premises (collectively, ~~all materials, specifications and finishes utilized in constructing~~ “Programming Information”). Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord’s ~~building standard tenant improvements, materials~~ Architect and engineers shall prepare and deliver to the parties working drawings and specifications ~~for the Project as set forth in Schedule I attached hereto~~ (“~~Standard Improvements~~Working Drawings and Specifications”). ~~Should~~ Upon approval of the Working Drawings and Specifications, Landlord shall submit ~~any additional plans, equipment specification sheets, or other matters~~ them to ~~Tenant for approval or completion~~ competitive bid as provided above. Each bidding contractor shall prepare bids in ~~connection~~ conformity with the Working Drawings and Specifications, and use the electrical, mechanical, plumbing and fire/life safety engineers and subcontractors designated by Landlord. All other subcontractors shall be subject to Landlord’s reasonable approval, and Landlord may require that one or more designated subtrades be union contractors. The lowest responsible bidder shall be selected as Landlord’s general contractor, and such bid amount shall be deemed the final construction cost estimate (“Final Cost Estimate”) for the Tenant ~~Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Improvements. Tenant shall ~~not unreasonably withhold its approval of any matter~~have 5 business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate; provided that in no event shall Tenant have the right to request changes or additions to the Working Drawings and Specifications for the purpose of utilizing any unused portion of the Landlord Contribution. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Landlord’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in ~~the Plan or otherwise~~writing within 3 business days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of ~~the change order, or (ii) defer~~ a Change shall be accompanied by Tenant’s payment of ~~such~~ any resulting increase ~~until~~ in the ~~date 10 days after delivery~~ Completion Cost, regardless of ~~invoices for same~~any unutilized portion of the “Landlord Contribution” as defined below. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order. E. It is understood that the Preliminary Plan and the Working Drawings and Specifications, ~~but if Tenant fails~~ together with any Changes thereto, shall be subject to ~~timely approve a change order~~the prior approval of Landlord, such approval not to be unreasonably withheld, conditioned or delayed. Landlord ~~may~~ shall identify any disapproved items within 3 business days (~~but shall not be required to~~or 2 business days in the case of Changes) ~~suspend~~ after receipt of the applicable document. Should Landlord approve work that would necessitate any ancillary Building modification or other expenditure by Landlord, then except to the extent of any remaining balance of the Landlord Contribution, Tenant ~~Improvement Work~~shall, in addition to its other obligations herein, promptly fund the cost thereof to Landlord. ~~C. Landlord may consent in writing, in its sole and absolute discretion, to~~ F. It is understood that all or a portion of the Tenant Improvements shall be done during Tenant’s ~~request for a Change, including any modification~~ occupancy of ~~a Standard Improvement in~~ the ~~Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant~~Premises. In ~~addition~~this regard, ~~Landlord~~ Tenant agrees to assume any risk of injury, loss or damage which may result. Tenant further agrees that it shall ~~not unreasonably withhold~~ be solely responsible for relocating its ~~consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole~~ office equipment and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result furniture in the Premises ~~requiring building services beyond the level normally provided to other tenants, (iv) interferes~~ in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to order for Landlord ~~in reletting the Premises. The cost~~ to complete ~~any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become~~ the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises ~~extend~~ and that no rental abatement shall result while the ~~Commencement Date of this Lease~~Tenant Improvements are completed in the Premises. F. G. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxx Xxxxx, Telephone No. (000) 000-0000, Email: xxxx.xxxxx@xxxxxx.xxx, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Evolus, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall ~~pay up~~ cause its contractor to construct the Tenant Improvements at Landlord’s sole cost and expense and in compliance with all laws, permits and code requirements in effect as of the date of the this Lease, including without limitation the Americans with Disabilities Act and all such other similar applicable federal or state laws or regulations. In the event any portion of the Premises, including the Tenant Improvements but excluding any Tenant Alterations, during the Term of the Lease, is found to not be in compliance with any law, permit and code requirement in effect as of the date of this Lease, including without limitation the Americans with Disabilities Act or any such other similar applicable federal or state law or regulation, then Landlord shall promptly at its sole cost and expense, and not as a Project Cost make any modification necessary to the ~~amount of~~ Premises to cause the ~~“Landlord’s Contribution” (as defined below) towards~~ Premises to be in compliance. Except for the ~~cost of the Tenant Improvement Work. Any~~ additional cost of a Change(s) not to exceed $15,000.00 in the ~~Tenant Improvement Work~~aggregate for mechanical room/server work, ~~including~~ any additional ~~costs~~ cost resulting from ~~“Changes”~~ Changes (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project ~~as set forth in Schedule I attached hereto~~ (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 five (5) days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section ~~1.C~~ I.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work and/or any Tenant Delay that such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order and Tenant Delay, if any, in writing within 2 five (5) days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that such cost must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a ~~non-~~ non-standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. ~~The~~ Unless Landlord otherwise agrees in writing, in its sole and absolute discretion: (a) the cost to complete any Non-Standard Improvements shall be borne by Tenant~~. All~~ , and (b) all Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at either prior to or following the ~~time~~ expiration or termination of ~~Landlord’s approval of a Change~~the Lease, require Tenant either to remove all or any of the Non-Standard ~~Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant~~Improvements, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 ten (10) days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section ~~Ill~~ II below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement Work and tendered the Premises to Tenant. F. Tenant hereby designates ~~Xxxxxx~~ Xxxx Xxxxxxxx (“Tenant’s Construction Representative”), . Telephone No. (000) 000-0000, . as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (AutoTrader Group, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall pay up to the amount of the “Landlord’s Maximum Contribution” (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 business days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section ~~1.C~~ I.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. ~~Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change.~~ Tenant shall approve or disapprove such change order in writing within 2 5 business days following Tenant’s receipt of such change order. If Tenant approves any such change order, ~~Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that~~ Tenant shall pay the cost of any attributable increase in the cost to complete ~~attributable to such change order concurrently with delivery of Tenant~~the Tenant Improvements over the Landlord’s ~~approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10~~ Maximum Contribution within 30 days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested ~~Changes~~ Changes, including without limitation, any modification of a Standard Improvement in the Plan to ~~previously approved~~ a non-standard improvement (“Non-Standard ~~Improvements~~Improvement”), unless Landlord determines, in its ~~sole and absolute~~ reasonable discretion, that such requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.by

Appears in 1 contract

Samples: Lease (Spectrum Pharmaceuticals Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord shall ~~pay up to~~ approve both (i) a detailed space plan for the ~~amount~~ Premises, prepared by the architect engaged by Landlord for the work described herein, Gensler ("Landlord's Architect"), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by the contractor engaged by Landlord for the work herein ("Landlord's Contractor"), of the “cost for which Landlord will complete or cause to be completed the Tenant Improvements ("Preliminary Cost Estimate"). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by written notice and delivering same to Landlord within ten (10) business days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. B. Before Landlord~~’s Contribution”~~ 's Architect commences any work on the Working Drawings and Specifications (as defined below), Tenant shall provide in writing to Landlord or Landlord's Architect all specifications and information reasonably requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the ~~Plan or Cost Estimate~~Premises (collectively, ~~all materials, specifications and finishes utilized in constructing~~ "Programming Information"). Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Within ten (10) business days following Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord~~’s building standard tenant improvements, materials~~ 's Architect and engineers shall prepare and deliver to the parties working drawings and specifications ("Working Drawings and Specifications"), and Landlord's Contractor shall prepare a final construction cost estimate ("Final Cost Estimate") for the ~~Project as set forth~~ Tenant Improvements in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have ten (10) business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, ~~and any~~ such disapproval shall be ~~limited to items not previously approved~~ accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Landlord's Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve or disapprove same in ~~the Plan or otherwise~~writing within five (5) business days of receipt. B. D. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“"Change”"), ~~and Landlord so approves~~ then provided such Change ~~as provided~~ is acceptable to Landlord in ~~Section 1.C below~~good faith, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 three (3) business days following its receipt from Landlord. Tenant’s 's approval of a Change shall be accompanied by Tenant's payment of any resulting increase in the Completion Cost provided that the "Landlord's Contribution" (as defined below) has been exceeded. E. It is understood that the Preliminary Plan and the Working Drawings and Specifications, together with any Changes thereto, shall be subject to the prior good faith approval of Landlord. Landlord shall identify any disapproved items within three (3) business days (or two (2) business days in the case of Changes) after receipt of ~~such change order~~the applicable document. ~~If Tenant approves any such change order~~In lieu of disapproving an item, ~~Landlord, at its election,~~ Landlord may ~~either (i) require as a~~ approve same on the condition ~~to the effectiveness of such change order~~ that Tenant pay ~~the increase in the cost~~ to ~~complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order~~Landlord, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change prior to the ~~Non-Standard Improvements (i) is~~ start of ~~a lesser quality than~~ construction and in addition to all sums otherwise due hereunder, an amount equal to the ~~Non-Standard Improvements previously approved~~ cost, as reasonably estimated by Landlord, ~~(ii) fails to conform to applicable governmental requirements, (iii) would result in~~ of removing and replacing the ~~Premises requiring building services beyond~~ item upon the ~~level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of,~~ expiration or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end termination of the ~~Term; except~~ Lease. Should Landlord approve work that would necessitate any ancillary Building modification or other expenditure by Landlord, then Landlord ~~may, by notice to~~ shall so notify Tenant ~~given~~ at the time of Landlord’s 's approval and except to the extent of ~~a Change, require Tenant either to remove all or~~ any remaining balance of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of "Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease 's Contribution" as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill described below~~. Pending the outcome of such arbitration proceedings~~, Tenant ~~shall make timely payment of all rent due under this Lease based upon~~ shall, in addition to its other obligations herein, promptly fund the ~~Commencement Date set forth in the aforesaid notice from~~ cost thereof to Landlord. E. F. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ up to ten (10) business days prior to the Commencement Date of the Lease in order that Tenant may ~~install fixtures~~perform any work to be performed by Tenant hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s 's prior written ~~approval~~approval (which shall not be unreasonably withheld), and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or unreasonably interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements reasonably imposed by Landlord on third party ~~contractors~~contractors and subcontractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms reasonably satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not~~ Except to the extent caused by ~~way~~ the negligence or willful misconduct of ~~limitation~~Landlord or Landlord's agents, Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s 's risk. In no event shall the failure of Tenant’s 's contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. G. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Cxxx Xxxxxx, Telephone No. (~~000~~626) ~~000~~396-~~0000~~8300, as its ~~representative,~~ representative and agent ~~and attorney-in-fact~~ for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord. Conversely, Landlord hereby designates Sxxxxxx Xxxxx of lnsignia/ESG, Telephone No. (949) 784-0844, as its construction representative, subject to modification by written notice to Tenant. H. It is understood that the Tenant Improvements shall be completed during Tenant's occupancy of the Premises. However, Landlord agrees that it shall use diligent efforts to recarpet and paint those areas of the Premises not affected by the demising walls by February 15, 2002 (which date is based on the assumption that Tenant shall execute and deliver this Lease to Landlord by January 22, 2002). In this regard, Tenant agrees to assume any risk of injury, loss or damage which may result, except for the gross negligence or willful misconduct of Landlord or its contractors or agents. Tenant further agrees that it shall be solely responsible for relocating its office equipment and furniture in the Premises in order for Landlord to complete the work in the Premises and that no rental abatement shall result while the Tenant Improvements are completed in the Premises. Landlord agrees that it shall use diligent efforts to complete the Tenant Improvements as expeditiously as is reasonably possible once such work has commenced and to minimize interference with Tenant's access to and use of the Premises; provided that overtime charges shall be included in the Completion Cost. Landlord further agrees that it shall cooperate in good faith with Tenant to provide notice to Tenant of the schedule of the various components of the work.

Appears in 1 contract

Samples: Office Space Lease (Acacia Research Corp)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord ~~shall pay up to~~ have approved (i) a detailed space plan for the ~~amount~~ Premises, prepared by Landlord’s architect, LPA, Inc., dated 8/25/05 (and revised on 8/30/05 and on 9/21/05) (“Preliminary Plan”), and (ii) an estimate of the “cost to complete the Tenant Improvements in accordance with the Preliminary Plan prepared by Landlord’s ~~Contribution~~contractor, Turelk, Inc., dated 9/22/05 (the “Preliminary Cost Estimate”). A copy of the Preliminary Cost Estimate is attached as Exhibit X-1 hereto. The Tenant Improvement Work shall consist of work itemized on the Preliminary Cost Estimate as the “Hard Cost Breakdown” and the “Soft Cost Breakdown” (~~as defined below~~both “Standard” and “Nonstandard” items) ~~towards~~ and the ~~cost~~ following “Alternates” on page 3 of 3 of the Preliminary Cost Estimate: “D,” “F,” “J” and “K.” B. Within five (5) days following any request therefor by Landlord, Tenant ~~Improvement Work. Any additional cost~~ shall provide in writing to Landlord or Landlord’s architect all specifications and information requested by Landlord for the preparation of ~~the Tenant Improvement Work~~final construction documents and costing, including ~~additional costs resulting from “Changes” (as hereinafter defined) requested by~~ without limitation Tenant’s final selection of paint and floor finishes, ~~shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials,~~ complete specifications and ~~finishes utilized in constructing~~ locations (including electrical, load and HVAC requirements) of Tenant’s equipment (collectively, “Programming Information”). Tenant’s failure timely to provide the Programming Information shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord shall have no obligation or liability for such defects or problems arising from any incomplete or inaccurate Programming Information. Any delays in the completion of the Tenant Improvements due to incomplete or inaccurate Programming Information shall constitute a Tenant Delay. C. Upon Tenant’s delivery of the complete Programming Information, Landlord’s ~~building standard tenant improvements, materials~~ architect and engineers shall prepare and deliver to Tenant working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the ~~Project as set forth~~ Tenant Improvements in ~~Schedule I attached hereto (“Standard Improvements”)~~conformity with the Working Drawings and Specifications. ~~Should Landlord submit any additional plans, equipment specification sheets, or other matters~~ A copy of the Final Cost Estimate shall be delivered to Tenant for its approval ~~or completion in connection with the~~ unless Tenant ~~Improvement Work,~~ is not responsible for any Tenant’s Contribution. Tenant shall ~~respond in writing, as appropriate, within 5~~ have five (5) days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and (if delivered to Tenant) the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, in its reasonable discretion, shall be incorporated into a revised set of Working Drawings and Specifications and the ~~Plan or otherwise~~Final Cost Estimate, and Tenant shall approve same in writing within five (5) days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“Change”), and Landlord so approves such Change as provided in Section ~~1.C below~~I.E. herein, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 two (2) days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, E. Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to ~~previously~~ the approved ~~Non-Standard Improvements~~Tenant Improvements Work, unless Landlord determines, in its sole and absolute discretion, that such requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard Improvements~~ improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. ~~The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements~~ Unless Landlord otherwise agrees in writing, in its sole and ~~Non-Standard~~ absolute discretion, all Tenant Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at either prior to or following the ~~time~~ expiration or termination of ~~Landlord’s approval of a Change~~the Lease, require Tenant either to remove all or any of the ~~Non-Standard Improvements and all or any of~~ Changes to the approved Tenant Improvements Work approved by way of ~~such Change requested by Tenant~~a Change, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such ~~Non-Standard Improvements~~ Changes with the ~~applicable Standard Improvement~~approved Tenant Improvements, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 ten (10) days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s receipt thereof), fails to timely provide all of the Programming Information requested by Landlord, fails to approve in writing the Working Drawings and Specifications or the Final Cost Estimate within the time provided herein, fails to timely deliver the Tenant’s Contribution as required hereunder, requests any Changes, furnishes inaccurate or erroneous Programming Information, specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s election to contest same by arbitration pursuant to ~~the provisions of Section Ill~~ Paragraph III below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. ~~In addition, Tenant may utilize the loading dock and parking area during such time.~~ Any such work shall be subject to Landlord’s prior written ~~approval~~approval (not to be unreasonably withheld, conditioned or delayed), and shall be performed in a manner and upon terms and conditions and at times reasonably satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s ~~sole and absolute~~ reasonable discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms reasonably satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement Work and tendered the Premises to Tenant. F. H. Tenant hereby designates Xxxx Xxxxxx ~~Xxxxxxxx~~ (“Tenant’s Construction Representative”), Telephone No. (000) 000-~~0000~~0000 Ext 208, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Micro Therapeutics Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. ~~Landlord shall pay up~~ Prior to the ~~amount~~ date of this Lease, Tenant and Landlord have approved both (i) a preliminary pricing plan issued for pricing on October 18, 2013 (the “Preliminary Plan”) prepared by H.Hendy& Associates (“Landlord’s ~~Contribution”~~ Architect”), and (~~as defined below~~ii) ~~towards~~ an estimate of the cost of to complete the Tenant ~~Improvement Work~~Improvements in accordance with the Preliminary Plan dated October 24, 2013(“Preliminary Cost Estimate”), which Preliminary Cost Estimate is based upon estimated costs provided by Landlord’s contractor. ~~Any additional cost of~~ To the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless extent applicable or not otherwise specified in the Preliminary Plan ~~or Cost Estimate~~to the contrary, ~~all materials, specifications and finishes utilized in constructing~~ the buildout of the Tenant Improvements shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Building Standard Improvements”), except for changes and additions specifically requested by Tenant and approved by Landlord in writing (any such addition or variation from the Standard Improvements shall be referred to herein as a (“Non-Standard Improvement”). ~~Should~~ Landlord ~~submit~~ acknowledges and agrees that the Preliminary Plan does not specify any ~~additional plans, equipment specification sheets,~~ Non-Standard Improvements. B. Within 5 business days following Landlord’s or ~~other matters to Tenant for approval or completion in connection with the Tenant Improvement Work~~Landlord’s Architect’s request, Tenant shall ~~respond~~ provide in ~~writing~~writing to Landlord or Landlord’s architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of paint and floor finishes, complete specifications and locations (including electrical, load and HVAC requirements) of Tenant’s equipment, and details of all Non-Standard Improvements (as ~~appropriate~~defined above) which have been approved by Landlord as part of the Preliminary Plan (collectively, ~~within 5~~ “Programming Information”). Tenant’s failure to timely provide the Programming Information shall constitute a Tenant Delay for purposes hereof. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord shall have no obligation or liability for such defects or problems arising from any incomplete or inaccurate Programming Information. Any delays in the completion of the Tenant Improvements due to incomplete or inaccurate Programming Information shall constitute a Tenant Delay. C. Promptly following delivery of the Programming Information, Landlord’s Architect and engineers shall prepare and deliver to Tenant working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the Tenant Improvements in conformity with the Working Drawings and Specifications. The Final Cost Estimate shall be based on competitive bids obtained from at least three (3) separate bids for each of the major trades. Tenant shall have five (5) business days ~~unless a shorter period is provided herein~~after the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, shall be incorporated into a revised set of Working Drawings and Specifications and the Final Cost Estimate, and Tenant shall approve same in ~~the Plan or otherwise~~writing within five (5) days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“Change”), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause. ~~Such cost~~ If the request for such Change occurs before construction of the Tenant Improvements commences, then Tenant shall approve or disapprove such change order, if any, in writing within four (4) business days following Tenant’s receipt of such change order. If the request for such Change ~~shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5%~~ occurs after construction of the ~~cost of such Change.~~ Tenant Improvements commences, then Tenant shall approve or disapprove such change order in writing within 2 three (3) business days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase ~~until the date~~ shall be paid within 10 days after delivery of invoices for same; provided, however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the 153 Technology Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) upon at least two (2) business days’ notice to Tenant, which notice shall be the same notice contemplated by Section I.F below, suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, E. Landlord agrees that it shall not unreasonably ~~withhold~~ withhold, condition or delay its consent to Tenant’s requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a substantially lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the 153 Technology Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to visible from the exterior of the 153 Technology Premises or would cause additional material expenses to Landlord in reletting the 153 Technology Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) business days following Tenant’s receipt thereof), fails to provide all of the Programming Information requested by Landlord, fails to approve in writing the Working Drawings and Specifications or the Final Cost Estimate within the time periods provided herein, fails to timely deliver the Tenant’s Contribution as required hereunder, requests any Changes, furnishes inaccurate or erroneous Programming Information, specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date ~~of this Lease~~ for the 153 Technology Premises shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the 153 Technology Premises to Tenant but for the collective Tenant Delays. Notwithstanding anything to the contrary in the foregoing, no Tenant Delay shall occur unless and until Landlord gives to Tenant written notice that a Tenant Delay will commence to accrue if Tenant fails to make a decision or take an action within two (2) business days thereafter, and Tenant fails to make the required decision or take the required action within said two (2) business days. Should Landlord determine that the Commencement Date for the 153 Technology Premises should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 fifteen (15) days thereafter, of Tenant’s election to contest same by arbitration pursuant to ~~the provisions of Section Ill~~ Paragraph III below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date for the 153 Technology Premises set forth in the aforesaid notice from ~~Landlord~~Landlord (other than any amount Tenant is contesting). E. G. All of the Tenant Improvements shall become the property of Landlord and shall be surrendered with the 153 Technology Premises at the expiration or sooner termination of this Lease, except that Landlord shall ~~permit~~ have the right, by notice to Tenant given at the time of Landlord’s approval of Working Drawings and ~~its agents~~ Specifications and any Change, to ~~enter~~ require Tenant either to remove all or any of the ~~Premises 3 weeks prior~~ Tenant Improvements approved in the Working Drawings and Specifications (except as to any Tenant Improvements shown on the approved Preliminary Plan) or by way of such Change, to repair any damage to the ~~Commencement Date~~ 153 Technology Premises or the Common Areas arising from such removal, and to replace any Non-Standard Improvements so approved with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~the Lease in order that Tenant may install fixtures~~such removal, ~~furniture~~ repair and ~~cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time~~replacement upon demand. Any such ~~work~~ removals, repairs and replacements by Tenant shall be ~~subject to Landlord’s prior written approval,~~ completed by the Expiration Date or sooner termination of this Lease. Landlord confirms and ~~shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is~~agrees, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that ~~entry shall cause disharmony~~ no such removal or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry replacement shall be ~~deemed to be under all~~ required for any of the ~~provisions of~~ Tenant Improvements shown on the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Leaseapproved Preliminary Plan. F. H. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxx Xxxxxxx (“Tenant’s Construction Representative”), Telephone No. (000) 000-0000, Email: xxxxxxx.xxxxxxx@xxxxxx.xxx, as its ~~representative,~~ representative and agent ~~and attorney-in-fact~~ for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. Any notices required to be delivered to Tenant by the terms of this Work Letter may be sent to Tenant’s Construction Representative at the email address herein provided. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord. I. Landlord hereby designates Xxxxxxx Xxxxxxxx (“Landlord’s Construction Representative”), Telephone No. (000) 000-0000, Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx, as its representative and agent for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Tenant shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Landlord. Any notices required to be delivered to Landlord by the terms of this Work Letter may be sent to Landlord’s Construction Representative at the email address herein provided. The foregoing authorization is intended to provide assurance to Tenant that it may rely upon the directives and decision making of the Landlord’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Tenant’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Landlord. Landlord may amend the designation of its Landlord’s Construction Representative(s) at any time upon delivery of written notice to Tenant.

Appears in 1 contract

Samples: Lease (Spectrum Pharmaceuticals Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall ~~pay up to~~ approve within the ~~amount~~ time period set forth below, both (i) a detailed space plan for the Premises prepared by CAS or another architect reasonably approved by Landlord (the “Architect”), which includes interior partitions, ceilings, interior finishes, interior doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements of Tenant ("Preliminary Plan"), and (ii) an estimate of the ~~“Landlord’s Contribution” (as defined below) towards the~~ cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to ~~Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ complete the Tenant Improvements ~~shall be~~ in accordance with the Preliminary Plan ("Preliminary Cost Estimate"), which Preliminary Cost Estimate is based upon estimated costs provided by Landlord’s contractor and design-build Mechanical and Electrical sub-contractors, who will be mutually selected from Landlord’s approved contractor list. The Preliminary Plan includes Landlord's building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached ~~hereto~~ hereto, except for those changes and/or additions to the Schedule 1 building standards which are expressly approved by Landlord for the Tenant Improvement Work and noted or shown on the approved Preliminary Plan (collectively, “Building Standard Improvements”). ~~Should Landlord submit any additional plans, equipment specification sheets,~~ Any addition to or ~~other matters to Tenant for approval or completion in connection with~~ variation from Building Standard Improvements incorporated into the Tenant ~~Improvement Work~~Improvements Work is herein referred to as a “Non-Standard Improvement”. B. Not later than 30 days following the full execution and delivery of this Lease, ~~Tenant~~ the Architect shall ~~respond in writing~~prepare and shall deliver to Landlord preliminary plan (“Preliminary Plan”), ~~as appropriate~~and not later than 30 days following the approved Preliminary Plan, ~~within 5~~ the Architect shall prepare and deliver to Landlord working drawings and specifications (“Working Drawings and Specifications”) based on the approved Preliminary Plan. Landlord shall have five (5) business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications. ~~Tenant~~ Landlord shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved ~~by Tenant in the~~ Preliminary Plan or ~~otherwise~~Preliminary Cost Estimate. Should Landlord disapprove the Working Drawings and Specifications, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision reasonably requested by Landlord shall be incorporated into a revised set of Working Drawings and Specifications within five (5) business days following receipt by the Architect. Tenant's or the Architect’s failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay as defined below. B. C. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“"Change”"), and Landlord so approves such Change as provided in Section ~~1.C below~~I.D. herein, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order and Tenant Delay, if any, in writing within 2 two (2) business days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, ~~Landlord, at its election, may either (i) require~~ as a condition to the effectiveness of such change order ~~that~~ Tenant shall pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order ~~concurrently with delivery of Tenant’s approval of the change order, or~~ not later than ten (ii10) ~~defer Tenant’s payment of such increase until the date 10~~ days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. D. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s 's request for a Change, including any modification of a Standard Improvement ~~in the Plan~~ to a ~~non- standard improvement (“~~Non-Standard ~~Improvement”)~~Improvement in the Preliminary Plan or any other modification of the Working Drawings and Specifications, if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. ~~The cost to complete any Non-~~Unless Landlord otherwise agrees in writing, in its sole and absolute discretion all Standard ~~Improvements shall be borne by Tenant. All Standard~~ Tenant Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of ~~Landlord’s approval of a Change~~approval, require Tenant either to remove all or any of the Non-Standard ~~Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant~~Improvements, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable ~~Standard Improvement~~Building Standard, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 ten (10) days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Cepheid)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall ~~pay up~~ approve within the time period set forth below, a detailed space plan for Suite 1000, prepared by Landlord's architect, which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"). Landlord agrees that the Preliminary Plan may include plans for a computer room, provided that such room shall be subject to ~~the amount~~ specifications approved by Landlord and provided further that Landlord may elect to require Tenant to return any such portion of the ~~“Landlord’s Contribution” (as defined below) towards~~ Premises to building standard condition at Tenant's sole expense upon the ~~cost~~ expiration or earlier termination of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section 1.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such ChangeLease. Tenant shall approve or disapprove such change order in writing within 2 days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the ~~effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval~~ Preliminary Plan by signing copies of the ~~change order, or~~ appropriate instrument and delivering same to Landlord within three (ii3) ~~defer~~ business days of its receipt by Tenant~~’s payment of such increase until the date 10 days after delivery of invoices for same~~. If Tenant disapproves any ~~such change order~~matter, Tenant shall ~~nonetheless be responsible~~ specify in detail the reasons for ~~the reasonable architectural and/or planning fees incurred in preparing such change order.~~ disapproval and Landlord shall ~~have no obligation~~ attempt to ~~interrupt or~~ modify the Preliminary Plan to incorporate Tenant's suggested revisions in a mutually satisfactory manner. Notwithstanding the foregoing, however, Tenant ~~Improvement Work pending Tenant’s approval of~~ shall approve in all respects a ~~change order~~Preliminary Plan not later than March 13, ~~but if Tenant fails to timely approve a change order, Landlord may~~ 2000 (~~but shall not be required to) suspend the applicable Tenant Improvement Work~~"Plan Approval Date"). ~~C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in~~ B. On or before the Plan ~~to a non- standard improvement (“Non-Standard Improvement”)~~Approval Date, ~~if requested~~ Tenant shall provide in writing ~~by Tenant. In addition,~~ to Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements 's Architect all specifications and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change information requested by ~~Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse~~ Landlord for the ~~reasonable cost~~ preparation of ~~any such removal, repair~~ final construction documents and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposescosting, including without limitation Tenant~~’s obligation to pay rent~~'s final selection of wall and floor finishes, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, complete specifications and locations (including load and HVAC requirements) of Tenant~~’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings~~'s equipment, ~~Tenant shall make timely payment~~ and details of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed improvements to be ~~under all of~~ installed in Suite 1000 (collectively, "Programming Information"). Tenant's failure to provide the ~~provisions of~~ Programming Information by the ~~Lease except as to the covenants to pay rent. Not by way of limitation, Landlord~~ Plan Approval Date shall ~~not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by~~ constitute a Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, Delay for purposes of ~~receiving notices, approving submittals and issuing requests~~ this First Amendment. Tenant understands that final construction documents for ~~Changes, and Landlord~~ the Tenant Improvements shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.predicated on the

Appears in 1 contract

Samples: Lease (Exult Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall approve within the time period set forth below, both (i) a detailed space plan for the Premises, prepared by the architect engaged by Landlord for the work described herein ("Landlord's Architect"), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by the contractor engaged by Landlord for the work herein ("Landlord's Contractor"), of the cost for which Landlord will complete or cause to be completed the Tenant Improvements ("Preliminary Cost Estimate"). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within three (3) business days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall ~~pay up~~ attempt to modify the ~~amount~~ Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. Notwithstanding the foregoing, however, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than the date set forth in item 11 of the “Basic Lease Provisions ("Plan Approval Date"), it being understood that Tenant's failure to do so shall constitute a "Tenant Delay" for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord~~’s Contribution”~~ 's Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the Premises (collectively, "Programming Information"). Tenant's failure to provide the Programming Information by the Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord~~’s building standard tenant improvements, materials~~ 's Architect and engineers shall prepare and deliver to the parties working drawings and specifications ("Working Drawings and Specifications"), and Landlord's Contractor shall prepare a final construction cost estimate ("Final Cost Estimate") for the ~~Project as set forth~~ Tenant Improvements in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have five (5) business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Landlord's Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within three (3) business days of receipt without further revision. Tenant's failure to comply in a timely manner with any of the ~~Plan or otherwise~~requirements of this paragraph shall constitute a Tenant Delay. B. D. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“"Change”"), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is reasonably acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 three (3) business days following its receipt from Landlord. Tenant~~’s receipt~~ 's approval of ~~such change order. If Tenant approves~~ a Change shall be accompanied by Tenant's payment of any ~~such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the~~ resulting increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for sameCompletion Cost. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant ~~Improvement Work~~ improvement work pending Tenant’s 's approval of a change order. E. It is understood that the Preliminary Plan and the Working Drawings and Specifications, ~~but if Tenant fails~~ together with any Changes thereto, shall be subject to ~~timely approve a change order~~the prior approval of Landlord. Landlord shall identify any disapproved items within three (3) business days (or two (2) business days in the case of Changes) after receipt of the applicable document. In lieu of disapproving an item, Landlord may ~~(but shall not be required to) suspend~~ approve same on the ~~applicable~~ condition that Tenant ~~Improvement Work. C. Landlord may consent in writing~~pay to Landlord, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change prior to the ~~Non-Standard Improvements (i) is~~ start of ~~a lesser quality than~~ construction and in addition to all sums otherwise due hereunder, an amount equal to the ~~Non-Standard Improvements previously approved~~ cost, as reasonably estimated by Landlord, of removing and replacing the item upon the expiration or termination of the Lease (~~ii) fails~~ provided that should Landlord impose such a condition, Tenant may promptly withdraw its request to ~~conform to applicable governmental requirements~~install the item). Should Landlord approve work that would necessitate any ancillary Building modification or other expenditure by Landlord, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact then except to the ~~Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete~~ extent of any ~~Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end~~ remaining balance of the ~~Term; except that Landlord may~~"Landlord's Contribution" as described below, ~~by notice~~ Tenant shall, in addition to ~~Tenant given at~~ its other obligations herein, promptly fund the ~~time of~~ cost thereof to Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within three (3) business days, fails to approve in writing both the Preliminary Plan and Preliminary Cost Estimate for the Tenant Improvements by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications and the Final Cost Estimate within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, fails to make timely payment of any sum due hereunder, furnishes inaccurate or erroneous specifications or other information, ; or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as ~~a “~~"Tenant Delay”"), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant In accordance with the requirements of Section 3.1 of the Lease but for the collective Tenant Delays. In no event, however, shall such date be earlier than the Estimated Commencement Date set forth in the Basic Lease Provisions. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) business days thereafter, of Tenant’s 's election to contest same by arbitration with JAMS/ENDISPUTE pursuant to Section 14.7(b) of the ~~provisions of Section Ill below~~Lease. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may ~~install fixtures~~perform any work to be performed by Tenant hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s 's prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party ~~contractors~~contractors and subcontractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s 's risk. In no event shall the failure of Tenant’s 's contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. H. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxxxxx Le, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if it given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord. WORK LETTER DOLLAR ALLOWANCE [SECOND GENERATION SPACE] The Tenant Improvement work (herein "Tenant Improvements") shall consist of any work required to complete the Premises pursuant to plans and specifications approved by both Landlord and Tenant. All of the Tenant Improvement work shall be performed by a contractor selected by Landlord and in accordance with the procedures and requirements set forth below.

Appears in 1 contract

Samples: Lease (Micrus Corp)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. ~~Landlord shall pay up~~ Prior to the ~~amount~~ execution of this Lease, Tenant and Landlord have approved a preliminary plan dated February 25, 2008 (the “~~Landlord’s Contribution” (as defined below~~Preliminary Plan”) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing for the Tenant Improvements prepared by Xxxxxx & Co. Architects (“Architect”). A copy of the Preliminary Plan is attached hereto as Exhibit X-1. The Tenant Improvements Work shall be include the work shown on the Preliminary Plan. Except as otherwise noted in the Preliminary Plan, the Tenant Improvements Work shall include Landlord’s building standard tenant improvements, materials and specifications for the ~~Project~~ Site as set forth in Schedule I 1 attached hereto (“Building Standard Improvements”). B. Within ten (10) days following any request from Landlord, Tenant shall provide in writing to Landlord or the Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of paint and floor finishes, complete specifications and locations (including electrical, load and HVAC requirements) of Tenant’s equipment (collectively, “Programming Information”). ~~Should~~ Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that Landlord ~~submit~~ shall have no obligation or liability for any ~~additional plans~~defects or problems arising from any incomplete or inaccurate Programming Information. C. Not later than three (3) weeks following the execution of this Lease, ~~equipment specification sheets~~Landlord shall cause the Architect and Landlord’s selected engineers to prepare and deliver to Tenant working drawings and specifications for the Tenant Improvements based on the approved Preliminary Plan (“Working Drawings and Specifications”). Upon approval of the Working Drawings and Specifications, ~~or other matters~~ Landlord shall prepare a final construction cost estimate (“Final Cost Estimate”) of the Completion Cost for the Tenant Improvements in conformity with the Working Drawings and Specifications. A copy of the Final Cost Estimate shall be delivered to Tenant for ~~approval or completion in connection with the Tenant Improvement Work,~~ its approval. Tenant shall ~~respond in writing, as appropriate, within 5~~ have five (5) business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and (if delivered to Tenant) the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan, subject to Tenant’s right to request a Change pursuant to Section 1.D below. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. The parties shall confer and negotiate in good faith to reach agreement on revisions to the Working Drawings and Specifications and the Final Cost estimate as a consequence of such revisions. Any revision so requested by Tenant and accepted by Landlord shall be incorporated into a revised set of Working Drawings and Specifications, and the Final Cost Estimate, and Tenant shall approve same in writing within five (5) business days of receipt without further revision. Landlord shall enter into a “lump /sum” or “fixed price” construction contract with the ~~Plan~~ Contractor for construction of the Tenant Improvements in accordance with the approved and final Working Drawings and Specifications (“TI Contract”). The Contractor is the contractor only of Landlord and Tenant shall have no liability to the Contractor or ~~otherwise~~under the TI Contract. B. D. In the event that Tenant subsequently requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications approved by the parties pursuant to Section I.C above (“Change”), and Landlord so approves such Change as provided in Section ~~1.C below~~I.E. herein, Landlord shall advise Tenant by written change order (“Change Order”) as soon as is practical of any net cost increase in the Completion Cost above the Final Cost Estimate (taking into account any cost savings attributable to ~~complete the Tenant Improvement Work that~~ such Change ~~would cause. Such cost of the~~ Order together with previous Change ~~shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~Orders). Tenant shall approve or disapprove such ~~change order~~ Change Order in writing within 2 two (2) business days following Tenant’s receipt of such ~~change order~~Change Order. If Tenant approves any such ~~change order~~Change Order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such ~~change order~~ Change Order that Tenant pay the cost increase in the ~~cost to complete attributable to~~ Completion Cost set forth in such ~~change order~~ Change Order in excess of Landlord’s Maximum Contribution concurrently with delivery of Tenant’s approval of the ~~change order~~Change Order, or (ii) defer Tenant’s payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that such payment must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such ~~change order~~Change Order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such ~~change order~~Change Order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a ~~change order~~Change Order, but if Tenant fails to timely approve a ~~change order~~Change Order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. In no event shall Landlord have the right to make any revisions to the Working Drawings and Specifications without Tenant’s prior written consent, which consent shall not be unreasonably withheld or delayed. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, E. Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested ~~Changes~~ Changes. Notwithstanding the foregoing, Landlord shall in no event be required to ~~previously approved~~ approve any Non-Standard ~~Improvements, unless~~ Improvement if Landlord ~~determines, in its sole and absolute discretion,~~ determines that such requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ corresponding Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises~~. The cost to complete any Non-Standard Improvements shall be borne by Tenant.~~ . F. All ~~Standard Improvements and Non-Standard~~ Tenant Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of any Non-Standard Improvements incorporated into the Tenant Improvements as a “Change, ,” require Tenant either to remove all or any of the Non-Standard ~~Improvements and all or any of the~~ Tenant Improvements approved by way of such ~~Change requested by Tenant~~Change, to repair any damage to the Premises or the Common ~~Area~~ Areas arising from such removal, and to replace ~~such~~ any Non-Standard Improvements approved by way of such Change with the applicable ~~Standard Improvement~~Building Standard, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration ~~Date,~~ Date or sooner termination of this Lease. In addition to the foregoing restoration obligation(s), ~~or within 10 days following notice~~ Tenant shall also be required to remove, repair and replace the premises as shown on Schedule 2 attached to this Work Letter, including without limitation, the restoration of all lighting, ceiling tiles, flooring and related electrical work to their condition prior to the date of this Lease (the “Restoration Requirement”). Such removal, repairs and replacements by Tenant ~~if such notice is given following~~ shall be completed by the Expiration Date or sooner ~~termination. D.~~ termination of this Lease. Notwithstanding ~~any provision~~ the foregoing, in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials event that ~~are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then~~ Tenant shall ~~bear any resulting additional construction cost or other expenses,~~ be contractually obligated to lease the Premises for at least one hundred twenty (120) months from and after the Commencement Date of this Lease (and this Lease shall not be terminated at any time during said 120 months due to Tenant’s default), then the Restoration Requirement shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced waived in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlordits entirety. E. G. [Intentionally Deleted] H. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ for at least fourteen (14) days prior to the ~~Commencement~~ Early Occupancy Date of the Lease in order that Tenant may install fixtures, ~~furniture~~ furniture, cabling, related telecommunication equipment, and ~~cabling~~ other personal property through Tenant’s own contractors prior to the ~~Commencement~~ Early Occupancy Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the ~~Commencement~~ Early Occupancy Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend either the Early Occupancy Date or the Commencement Date of this Lease. F. I. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxxx Xxxxxxx (“Tenant’s Construction Representative”), Telephone No. (000) 000-~~0000~~0000 Ext. 109, as its ~~representative,~~ agent ~~and attorney-in-fact~~ for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Senorx Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord and Tenant have approved the preliminary plan for the Technology Drive Premises prepared by LPA, Inc. dated February 11, 2005 (the “Preliminary Plan”), a copy of which approved Preliminary Plan is attached as EXHIBIT X-1 hereto. Not later than five (5) business days following delivery from Landlord, Tenant shall ~~pay up to the amount~~ approve, which approval shall not be unreasonably withheld, an estimate prepared by Landlord’s construction manager of the cost for which Landlord estimates that the Tenant Improvements will be completed in accordance with the approved Preliminary Plan (the “Preliminary Cost Estimate”). Tenant’s failure to approve the Preliminary Cost Estimate within the above referenced time period shall constitute a “Tenant Delay” (as defined below). B. Tenant acknowledges and agrees that the Preliminary Plan and Preliminary Cost Estimate are predicated upon certain specifications and information supplied or to be supplied by Tenant to Landlord or Landlord’s ~~Contribution~~architect, including without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant’s equipment and details of all “Non-Standard Improvements” (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the ~~Plan or Cost Estimate~~Technology Drive Premises (collectively, ~~all materials, specifications and finishes utilized in constructing~~ “Programming Information”). Tenant understands that final construction documents for the Tenant Improvements shall be ~~Landlord’s building standard tenant improvements~~predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. The Tenant Improvements shall incorporate materials and specifications ~~for~~ substantially similar to those materials and specifications currently built out in the ~~Project~~ Axxxx Parkway Premises (herein, the “Standards”). Except as ~~set forth~~ specifically approved in ~~Schedule I attached hereto~~ the Preliminary Plan and/or in the Preliminary Cost Estimate, no deviations from the Standards (herein, the “Non-Standard Improvements”) shall be permitted except as requested by Tenant and approved by Landlord (which approval shall not be unreasonably withheld)~~. Should~~ , provided that Landlord ~~submit~~ shall in no event be required to approve any ~~additional plans~~Non-Standard Improvement, ~~equipment specification sheets~~not approved in the Preliminary Plan and/or Preliminary Cost Estimate, if Landlord determines that such improvement (1) is of a lesser quality than the corresponding Standard, (2) fails to conform to applicable governmental requirements, (3) requires Building services beyond the level normally provided to other tenants, (4) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date for the Technology Drive Premises and Tenant declines to accept such delay in writing as a Tenant Delay, or ~~other matters to~~ (5) would have an adverse aesthetic impact from the exterior of the Technology Drive Premises. The Tenant ~~for approval~~ Improvements approved in the Preliminary Plan and/or in the Preliminary Cost Estimate, whether “Standard” or ~~completion in connection~~ “Non-Standard” Improvements, shall be surrendered with the Technology Drive Premises and shall become the property of the Landlord at the Expiration Date or earlier date of termination of this Lease. As of the Expiration Date or earlier termination of this Lease, Landlord shall have the right to require Tenant ~~Improvement Work~~to remove any “Non-Standard Improvements” approved by Landlord subsequent to the Preliminary Plan and/or Preliminary Cost Estimate. Notwithstanding the foregoing provisions of the preceding sentence, if at the time of requesting Landlord’s consent for any such subsequently-approved Non-Standard Improvements, Tenant shall ~~respond~~ request in ~~writing~~writing whether or not Landlord shall require such Non-Standard Improvements to be removed as of the Expiration Date or earlier termination of this Lease, ~~as appropriate~~then Landlord’s right to require Tenant to remove such Non-Standard Improvements shall be exercised, ~~within 5~~ if at all, at the time of Landlord’s approval thereof. D. Landlord’s architect and engineers shall prepare and deliver to Tenant working drawings and specifications (“Working Drawings and Specifications”) promptly following the execution of this Lease, and Landlord shall deliver the “Final Cost Estimate” to Tenant promptly following the completion of the competitive bid process described below. Tenant shall have five (5) business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall, to the extent the revision was accurately made, approve same in writing within five (5) business days of receipt without further revision. Tenant’s failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. Without limiting the rights of Landlord for Tenant Delays as set forth herein, in the ~~Plan~~ event Tenant has not approved both the Working Drawings and Specifications and the Final Cost Estimate within sixty (60) days following the date of this Amendment, then Landlord may, at its option, elect to terminate this Amendment by written notice to Tenant. In the event Landlord elects to effect such a termination, Tenant shall, within ten (10) days following demand by Landlord, pay to Landlord any costs incurred by Landlord in connection with the preparation or ~~otherwise~~review of plans, construction estimates, price quotations, drawings or specifications under this Work Letter and for all costs incurred in the preparation and execution of this Amendment. B. E. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”)~~, and Landlord so approves such Change as provided in Section 1.C below~~, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 two (2) business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of ~~the change order, or (ii) defer~~ a Change shall be accompanied by Tenant’s payment of ~~such~~ any resulting increase ~~until~~ in the ~~date 10 days after delivery~~ Completion Cost. Landlord shall have the right to decline Tenant’s request for a Change for any of ~~invoices~~ the reasons set forth in Article I.C above for ~~same~~Landlord’s disapproval of a Non-Standard Improvement. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within five (5) business days, fails to approve or reasonably disapprove in writing the Working Drawings and Specifications and the Final Cost Estimate within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date ~~of this Lease~~ for the Technology Drive Premises shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Technology Drive Premises to Tenant but for the collective Tenant Delays. In no event, however, shall such date be earlier than the Estimated Commencement Date for the Technology Drive Premises set forth in the Basic Lease Provisions. Should Landlord determine that the Commencement Date for the Technology Drive Premises should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) business days thereafter, of Tenant’s election to contest same by arbitration ~~pursuant to~~ with JAMS in accordance with the provisions of Section ~~Ill below~~22.7 of the Lease. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall submit the Working Drawings and Specifications to a competitive bidding process involving at least three (3) licensed general contractors. Each of said three general contractors shall solicit bids from at least three (3) subcontractors for each major subtrade, including each of the major “finish” subtrades (e.g., millwork, painting, carpeting, etc.). Such solicitation of bids for the subtrades shall include bids from those preferred “finish” subcontractors of Tenant approved by Landlord and listed on EXHIBIT X-1 attached hereto (the “Tenant’s Finish Subcontractors”), and from those preferred subcontractors of Tenant for certain of the “systems” work, approved by Landlord for bid purposes only and listed on EXHIBIT X-2 attached hereto (“Tenant’s Systems Subcontractors”). Landlord shall provide copies of the bid responses to Tenant. After adjustments for any inconsistent assumptions to reflect an “apples to apples” comparison, Landlord shall select the lowest qualified bidder and that bid so selected shall be referred to as the “Final Cost Estimate”. In the event Landlord selects other than the lowest bidder, it shall do so based on commercially reasonable factors reasonably acceptable to Tenant, provided that Landlord shall have the right to reject any of Tenant’s Systems Subcontractors from selection, even if said Subcontractor(s) are the lowest bidder, in Landlord’s sole and absolute discretion. Upon selection of the bidder, Landlord shall enter into a construction contract with the chosen contractor (the “TI Contractor”) for construction of the Tenant Improvements in accordance with the approved and final Working Drawings and Specifications (the “TI Contract”). Notwithstanding the foregoing, Tenant shall have the right to cause Landlord to require the TI Contractor to use a Tenant’s Finish Subcontractor for a particular finish subtrade, on the following terms and conditions: (i) Tenant shall notify Landlord of its election to so cause a particular Tenant’s Finish Subcontractor to be so used, if at all, within three (3) business days following notice from Landlord of the selection of the TI Contractor and submission of the bid responses to Tenant, and (ii) Tenant shall pay to Landlord, concurrently with the exercise of said election, the amount (if any) by which the bid of the Tenant’s Finish Subcontractor exceeds the Final Cost Estimate bid of the Subcontractor for the applicable “finish” subtrade. Tenant further agrees that any delay caused by such Tenant’s Finish Subcontractor (and/or caused by a Tenant’s Systems Subcontractor accepted by Landlord for the Tenant Improvement work) in the timely completion of the Tenant Improvement work shall be deemed to constitute a “Tenant Delay” for purposes of this Work Letter. H. Landlord shall permit Tenant and its agents to enter the Technology Drive Premises ~~3 weeks~~ prior to the Commencement Date for the Technology Drive Premises of the Lease in order that Tenant may ~~install fixtures~~perform the construction or installation of equipment, ~~furniture~~ furniture, fixtures or network and telecommunication cabling through ~~Tenant’s~~ its own ~~contractors~~ contractors, and within fourteen (14) days prior to the Commencement ~~Date. In addition~~Date for the Technology Drive Premises for move-in, ~~Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Technology Drive Premises prior to the Commencement Date for the Technology Drive Premises is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party ~~contractors~~contractors and subcontractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Technology Drive Premises extend the Commencement Date ~~of this Lease~~for the Technology Drive Premises beyond the date that Landlord has completed its Tenant Improvement work and tendered the Technology Drive Premises to Tenant. F. I. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Gxxx Xxxxxxx, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Standard Pacific Corp /De/)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord ~~shall pay up~~ have approved both (i) a detailed space plan for the Premises, prepared by Landlord's architect, a copy of which approved plan is attached as Schedule 1 to ~~the amount~~ this Work Letter ("PRELIMINARY PLAN"), and (ii) an estimate of the ~~“Landlord’s Contribution” (as defined below) towards the~~ cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to ~~Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ complete the Tenant Improvements ~~shall be~~ in accordance with the Preliminary Plan, prepared by Landlord’s 's construction representative, a copy of which estimate is attached as Schedule 2 to this Work Letter ("PRELIMINARY COST ESTIMATE"). The Preliminary Plan includes Landlord's building standard tenant improvements, materials and specifications for the Project ("BUILDING STANDARD IMPROVEMENTS"), except for any additions or variations to Building Standard Improvements noted on the Preliminary Plan (any such addition or variation from the Standard Improvements shall be referred to herein as ~~set forth~~ a ("NON-STANDARD IMPROVEMENT"). B. Within five (5) days following Landlord's request therefor, Tenant shall provide in ~~Schedule I attached hereto~~ writing to Landlord or Landlord's architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of paint and floor finishes, complete specifications and locations (“including electrical, load and HVAC requirements) of Tenant's equipment, and details of all Non-Standard ~~Improvements”~~Improvements (as defined above) which have been approved by Landlord as part of the Preliminary Plan (collectively, "PROGRAMMING INFORMATION"). ~~Should~~ Tenant's failure to so provide the Programming Information shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord ~~submit~~ shall have no obligation or liability for such defects or problems arising from any ~~additional plans~~incomplete or inaccurate Programming Information. Any delays in the completion of the Tenant Improvements due to incomplete or inaccurate Programming Information shall constitute a Tenant Delay. C. Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications ("WORKING DRAWINGS AND SPECIFICATIONS"), ~~equipment specification sheets, or other matters~~ and Landlord's contractor shall prepare a final construction cost estimate ("FINAL COST ESTIMATE") for the Tenant Improvements in conformity with the Working Drawings and Specifications. A copy of the Final Cost Estimate shall be delivered to Tenant for its approval ~~or completion in connection with the~~ unless there are no Non-Standard Tenant ~~Improvement Work,~~ Improvements and Tenant is not responsible for any Tenant's Contribution. Tenant shall ~~respond in writing, as appropriate, within 5~~ have five (5) days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and (if delivered to Tenant) the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, in its sole and absolute discretion, shall be incorporated into a revised set of Working Drawings and Specifications and the ~~Plan or otherwise~~Final Cost Estimate, and Tenant shall approve same in writing within five (5) days of receipt without further revision. Tenant's failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay as defined below. B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (~~“Change”~~"CHANGE"), and Landlord so approves such Change as provided in Section ~~1.C below~~I.E. herein, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order and Tenant Delay, if any, in writing within 2 two (2) days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s 's approval of the change order, or (ii) defer Tenant’s 's payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant's commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. E. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s 's request for a Change, including any modification of a Standard Improvement ~~in the Plan~~ to a ~~non- standard improvement (“~~Non-Standard ~~Improvement”)~~Improvement in the Preliminary Plan or any other modification of the Working Drawings and Specifications, if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and reasonable absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s 's access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. ~~The~~ Unless Landlord otherwise agrees in writing, in its sole and absolute discretion: (a) the cost ~~to complete~~ of any Non-Standard Improvements shall be ~~borne by~~ part of Tenant~~. All~~ 's Contribution (as hereinafter defined), and (b) all Standard Tenant Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given ~~at the time of~~ concurrently with Landlord’s 's approval of ~~a Change~~the applicable Non-Standard Improvements, require Tenant either to remove all or any of the Non-Standard ~~Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant~~Improvements, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable ~~Standard Improvement~~Building Standard, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease~~, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination~~. D. F. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s 's receipt thereof), fails to provide all of the Programming Information requested by Landlord within the time provided herein, fails to approve in writing the Working Drawings and Specifications or the Final Cost Estimate within the time provided herein, fails to timely deliver the Tenant's Contribution as required hereunder, requests any Changes, furnishes inaccurate or erroneous Programming Information, specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a ~~“Tenant Delay”~~"TENANT DELAY"), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s 's obligation to pay rent, as of the date that Landlord ~~reasonably determines that it~~ would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s 's election to contest same by arbitration pursuant to ~~the provisions of Section Ill~~ Paragraph III below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s 's own contractors prior to the Commencement Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s 's prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s 's sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s 's sole and absolute discretion, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s 's risk. In no event shall the failure of Tenant’s 's contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement Work and tendered the Premises to Tenant. F. H. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ _____________________ (~~Tenant’s Construction Representative”~~"TENANT'S CONSTRUCTION REPRESENTATIVE"), Telephone No. (~~000~~___) ~~000-0000~~__________, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s 's Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or --- reduce Landlord’s 's right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s 's Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Endwave Corp)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant has approved, or shall approve within the time period set forth below, a detailed space plan for the Premises, prepared by the architect engaged by Landlord ~~shall pay up to~~ for the ~~amount of the~~ work described herein (“Landlord’s ~~Contribution”~~ Architect”), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (~~as defined below~~“Preliminary Plan”), and (ii) ~~towards~~ an estimate, prepared by the contractor engaged by Landlord for the work herein (“Landlord’s Contractor”), of the cost ~~of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall~~ for which Landlord will complete or cause to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ completed the Tenant Improvements (“Preliminary Cost Estimate”). To the extent applicable, the Preliminary Plan shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project ~~as set forth~~ or materials and specifications consistent with the existing improvements in ~~Schedule I attached hereto~~ the Premises. Tenant shall approve or disapprove the Preliminary Plan by signing and delivering same to Landlord within 3 business days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan to incorporate Tenant’s suggested revisions in a mutually satisfactory manner. Notwithstanding the foregoing, however, Tenant shall approve in all respects a Preliminary Plan not later than January 31, 2015 (“~~Standard Improvements~~Plan Approval Date”), it being understood that Tenant’s failure to do so shall constitute a “Tenant Delay” for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord’s Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant’s equipment, and details of all other non-building standard improvements to be installed in the Premises (collectively, “Programming Information”). ~~Should Landlord submit any additional plans~~Tenant’s failure to provide the Programming Information by the Plan Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, ~~equipment specification sheets~~and accordingly that such information must be accurate and complete. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, ~~or other matters~~ Landlord’s Architect and engineers shall prepare and deliver to the parties working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the Tenant ~~for approval or completion~~ Improvements in ~~connection~~ conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have 3 business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Landlord’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within 3 business days of receipt without further revision. Tenant’s failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay D. It is understood that the Preliminary Plan and the Working Drawings and Specifications, together with any Changes thereto, shall be subject to the prior approval of Landlord. Landlord shall identify any disapproved items within 3 business days (or 2 business days in the ~~Plan~~ case of Changes) after receipt of the applicable document. Should Landlord approve work that would necessitate any ancillary Building modification or ~~otherwise~~other expenditure by Landlord, then except to the extent of any remaining balance of the “Landlord Contribution” as described below, Tenant shall, in addition to its other obligations herein, promptly fund the cost thereof to Landlord. B. E. Upon approval of the Working Drawings and Specifications, Landlord shall submit them to competitive bid as provided above. Each bidding contractor shall use the electrical, mechanical, plumbing and fire/life safety engineers and subcontractors designated by Landlord. All other subcontractors shall be subject to Landlord’s reasonable approval, and Landlord may require that one or more designated subtrades be union contractors. The lowest responsible bidder shall be selected as Landlord’s general contractor and the bid amount shall be deemed the “Final Cost Estimate” for purposes hereof. F. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of ~~the change order, or (ii) defer~~ a Change shall be accompanied by Tenant’s payment of ~~such~~ any resulting increase ~~until~~ in the ~~date 10 days after delivery~~ Completion Cost regardless of ~~invoices for same~~any unutilized portion of the Landlord Contribution. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. G. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within 5 business days, fails to approve in writing the Preliminary Plan by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, fails to make timely payment of any sum due hereunder, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (where the failure of any of the foregoing ~~being~~ continues for a period of one (1) business day after writtennotice from Landlord to Tenant, shall be referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s obligation to pay ~~rent~~Rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 business days thereafter, of Tenant’s election to contest same by binding arbitration ~~pursuant to~~ with the ~~provisions of Section Ill below~~American Arbitration Association under its Arbitration Rules for the Real Estate Industry, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under ~~this~~ [this] [the] Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. H. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may ~~install fixtures~~perform any work to be performed by Tenant hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party ~~contractors~~contractors and subcontractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay ~~rent~~Rent unless Tenant commences business activities within the Premises. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement ~~Date of this Lease~~Date. F. I. Tenant hereby designates Xxxxxx ~~Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxxxxxx, Telephone No. (~~000) 000~~000)-000-0000, Email: xxxxxx.xxxxxxxx@xxxxxxxxx.xxx, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Lantronix Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall ~~pay up~~ cause its contractor to construct the ~~amount of the “~~Tenant Improvements at Landlord’s ~~Contribution” (as defined below) towards the~~ sole cost and expense, including without limitation, all costs of preliminary space plans, architectural, electrical and mechanical working drawings including engineering, permits, plus contractor’s and construction management fees for the Tenant ~~Improvement Work. Any~~ Improvements, provided that any additional cost ~~of the Tenant Improvement Work, including additional costs~~ resulting from ~~“Changes”~~ Approved Change Orders (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I III attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 five (5) days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section ~~1.C~~ I.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work and/or any Tenant Delay that such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order and Tenant Delay, if any, in writing within 2 two (2) days following Tenant’s receipt of such change order. If Tenant approves any such change ~~order~~order (“Approved Change Order”), Landlord, at its election, may either (i) require as a condition to the effectiveness of such ~~change order~~ Approved Change Order that Tenant pay the increase in the cost to complete attributable to such ~~change order~~ Approved Change Order concurrently with delivery of Tenant’s approval of the ~~change order~~Approved Change Order, or (ii) defer Tenant’s payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that such cost must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a ~~non-~~ non-standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises~~. The cost to complete any Non-Standard Improvements shall be borne by Tenant~~. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a ~~Change~~Change requested by Tenant, require Tenant either to remove ~~all or any of the Non-Standard Improvements and~~ all or any of the Tenant Improvements approved by way of such ~~Change requested by Tenant~~Change, to repair any damage to the Premises or the Common Area arising from such removal, and to replace ~~such~~ any Non-Standard Improvements approved by way of such Change with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration ~~Date,~~ Date or sooner termination of this Lease~~, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination~~. D. ~~Notwithstanding any provision in the Lease to the contrary~~As used herein, ~~and not by way of limitation of any other rights or remedies of Landlord, if~~ “Tenant ~~fails~~ Delay” shall mean Tenant’s failure to comply with any of the time periods specified in this Work Letter, ~~fails~~ failure to otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s receipt thereof), ~~requests~~ Tenant’s request of any Changes, ~~furnishes~~ or the submission of inaccurate or erroneous specifications or other ~~information, or otherwise~~ information which delays in any manner the substantial completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlordcertificate. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (TigerLogic CORP)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. ~~Landlord shall pay up to~~ Tenant has approved the ~~amount of~~ space plan (“Preliminary Plan”) for the Premises prepared by HTK Studio (“Landlord’s ~~Contribution~~Architect”), dated November 10, 2021. “Landlord’s Contractor” ~~(as defined below) towards~~ shall be the ~~cost of~~ contractor selected by Landlord to complete the Tenant ~~Improvement Work. Any additional cost~~ Improvements. B. On or before the date that is five (5) business days of Landlord’s written request, Tenant shall provide in writing to Landlord or Landlord’s Architect all specifications and information requested by Landlord for the ~~Tenant Improvement Work~~preparation of final construction documents and costing, including ~~additional costs resulting from “Changes”~~ without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (~~as hereinafter defined~~including load and HVAC requirements) ~~requested by~~ of Tenant’s equipment, ~~shall~~ and details of all other non-building standard improvements to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the ~~Plan or Cost Estimate~~Premises (collectively, ~~all materials, specifications and finishes utilized in constructing~~ “Programming Information”). Tenant’s failure to provide the Programming Information the date specified above shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Promptly following receipt of Tenant’s Programming Information, Landlord’s ~~building standard tenant improvements, materials~~ Architect and engineers shall prepare and deliver to the parties working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the ~~Project as set forth~~ Tenant Improvements in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have 5 business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously approved by Tenant~~ contained in the approved Preliminary Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section 1.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change. Tenant shall approve or disapprove such change order in writing within 2 days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s riskPreliminary Cost Estimate. In no event shall Tenant disapprove the ~~failure~~ Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of ~~Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F.~~ revisions. Any revision requested by Tenant ~~hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent~~ and ~~attorney-in-fact for all matters related to the Tenant Improvement Work, including but not~~ accepted by ~~way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and~~ Landlord shall be ~~entitled~~ incorporated by Landlord’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within 3 business days of receipt without further revision. Tenant’s failure to ~~rely upon authorizations~~ comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. D. It is understood that the Working Drawings and ~~directives~~ Specifications, together with any Changes thereto, shall be subject to the prior approval of ~~such person(s~~Landlord. Landlord shall identify any disapproved items within 3 business days (or 2 business days in the case of Changes) after receipt of the applicable document. Should Landlord approve work that would necessitate any ancillary Building modification or other expenditure by Landlord, then except to the extent of any remaining balance of the “Landlord Contribution” or “Landlord’s Amortizing Contribution” (if applicable,) as ~~if given directly by Tenant~~such terms are described below, Tenant shall, in addition to its other obligations herein, promptly fund the cost thereof to Landlord. ~~The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making~~ Landlord’s approval of the ~~Tenant’s Construction Representative~~ Working Drawings and Specifications or any Changes thereto shall not be unreasonably withheld, conditioned or delayed, except if the same are incomplete in any material respect or a Design Problem exists (collectively, “Landlord's Consent Standard”). A “Design Problem” is defined as, and will be deemed to exist with respect to any improvements that may (i) affect the ~~Tenant Improvement Work~~ exterior appearance of the Building; (ii) affect the Building structure or adversely affect the Building systems; (iii) fail to comply with applicable laws and is applicable building codes (“Code”) or would cause any other portion of the Project to fail to comply with applicable laws or code, (iv) jeopardize the LEED certification for the Project, if any, (v) vitiate or otherwise negatively affect any warranty, guaranty, or insurance maintained by Landlord, (vi) materially increase Landlord's repair or maintenance obligations pursuant to this Lease, (vii) be unusually difficult or expensive to remove or not ~~intended~~ be readily usable for typical office use by a future tenant, (viii) interfere with any other tenant or occupant of the Project, (ix) affect the certificate of occupancy or its legal equivalent for the Building or any portion thereof, or (xi) fail to ~~limit~~ adhere to any of Landlord's mandatory Building standard requirements or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlordminimum quality standards.

Appears in 1 contract

Samples: Lease (BioCardia, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall pay up to the amount of the “Landlord’s Contribution” (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, ~~including~~ including, without limitation, additional costs resulting from ~~“Changes”~~ Changes (as hereinafter defined) requested by ~~Tenant~~Tenant that would cause the Tenant Improvement Work to exceed Landlord’s Contribution, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. ~~Unless otherwise specified in~~ To the ~~Plan or Cost Estimate~~extent applicable, ~~all materials, specifications and finishes utilized in constructing~~ the build-out of the Tenant Improvements shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Building Standard Improvements”), except for those additions or variations to Building Standard Improvements expressly approved by Landlord and noted on the Preliminary Plan (any such addition or variation from the Standard Improvements shall be referred to herein as a “Non-Standard Improvement”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 business days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. ~~Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change.~~ Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 business days following Tenant’s receipt of such change order. If Tenant approves any such change ~~order~~order and the cost of such change order causes the Tenant Improvement Work to exceed Landlord’s Contribution, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or would cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 business days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section ~~Ill~~ III below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Except as otherwise provided in the Lease, all Building Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval thereof, require Tenant either (i) to remove all or any of the “Alternates” in the Plan which are elected by Tenant, and all or any of the Tenant Improvements approved by way of a Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace any such Non-Standard Improvements with the applicable Building Standard Improvements, or (ii) to reimburse Landlord for the reasonable cost of such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. Landlord confirms and agrees, however, that no such removal and/or replacement shall be required for any of the Tenant Improvements shown in the approved Plan. F. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ no less than 15 days prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. ~~In addition, Tenant may utilize the loading dock and parking area during such time.~~ Any such work shall be subject to Landlord’s reasonable prior written approval, and shall be performed in a manner and upon terms and conditions and at times reasonably satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. G. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxxxxx Xxxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Lombard Medical, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall approve within the time period set forth below, both (i) a detailed space plan for the Premises, prepared by Landlord's architect, which includes interior partitions, ceilings, interior finishes, interior doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by Landlord's contractor, of the cost for which Landlord will complete or cause to be completed the Tenant Improvements ("Preliminary Cost Estimate"). Tenant shall approve or disapprove each of the Pre1frniniy Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within three (3) business days of its receipt by Tenant If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall ~~pay up~~ attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. In no event, however, shall Tenant have the right to make additions to the Preliminary Plan as part of its approval thereof which would increase the improvements to be paid for by "Landlord's Contribution" (as hereinafter defined), it being understood and agreed that the Preliminary Plan submitted by Landlord's architect is intended to include all improvements desired by Tenant using Landlord's "Standards" (as hereinafter defined), whether or not the full amount of Landlord's Contribution would be required to complete construction of the “improvements as shown in the Preliminary Plan. In all events, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than the date set forth in Item 15 of the Basic Lease Provisions ("Plan Approval Date"), it being understood that Tenant's failure to do so shall constitute a "Tenant Delay" for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord~~’s Contribution”~~ 's architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of wail and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the Premises (collectively, "Programming Information"). Tenant's failure to provide the Programming Information by the Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly agrees that such information provided to Landlord is accurate and complete. C. Except as specified in the Preliminary Plan, the Tenant Improvements shall incorporate Landlord’s 's building standard ~~tenant improvements,~~ materials and specifications ("Standards") described with particularity in the Section entitled "Tenant Improvements" of that certain Outline Specification and Project Description Midtech Buildings Irvine Spectrum 6 (the "Outline Specifications"). A copy of the Outline Specifications is attached as Exhibit X-1 hereto. No deviations from the Standards shall be permitted, provided that Landlord may, in its reasonable discretion, authorize in writing one or more of such deviations if requested by Tenant Any excess cost of such deviations shall be part of "Tenant's Contribution" (as hereinafter defined). Notwithstanding anything to the contrary contained in the foregoing, Landlord shall in no event be required to approve any deviations from the Standards ("Non-Standard Improvements") if Landlord determines that such improvement (i) is of a lesser quality than the corresponding Standard, (ii) fails to conform to applicable governmental requirements, (iii) requires building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date and Tenant declines to accept such delay in writing as a Tenant Delay, or (v) would have an adverse aesthetic impact from the exterior of the Premises. D. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications ("Working Drawings and Specifications") for the ~~Project as set forth in Schedule I attached hereto (“Standard Improvements”)~~Tenant Improvements based on the Preliminary Plan. ~~Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work,~~ Tenant shall ~~respond in writing, as appropriate, within 5~~ have three (3) business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and reasonably accepted by Landlord shall be incorporated into a revised set of Working Drawings and Specifications, and Tenant shall approve same in writing within three (3) business days of receipt without further revision (provided said revised set of Working Drawings and Specifications complies with the applicable revision requested by Tenant and reasonably accepted by Landlord). Tenant's failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. Without limiting the rights of Landlord for Tenant Delays as set forth herein, in the event Tenant has not approved the Working Drawings and Specifications within sixty (60) days following the date of this Lease for any reason other than the failure by Landlord to abide by the terms and conditions of this Work Letter, then Landlord may, at its option, elect to terminate this Lease by written notice to Tenant In the event Landlord elects to effect such a termination, Tenant shall, within ten (10) days following demand by Landlord, pay to Landlord any costs incurred by Landlord in connection with the preparation or review of plans, construction estimates, price quotations, drawings or specifications under this Work Letter and for all costs incurred in the preparation and execution of this Lease, including any leasing commissions. E. Upon Tenant's approval of the Working Drawings and Specifications, Landlord shall cause at least three (3) qualified general contractors to competitively bid the Tenant Improvements work. The lowest competitive bidder shall be awarded the contract for such Tenant Improvements work, except to the extent that Landlord shall demonstrate a commercially reasonable justification for choosing another bidder. Such contractor so awarded the contract for the Tenant Improvements work is herein referred to as the "Selected Contractor". Promptly following the completion of such bidding process, Landlord shall notify Tenant of the Selected Contractor's final bid amount for the Tenant Improvements work (the "Bid Amount"). lithe Bid Amount exceeds the Preliminary Cost Estimate, Landlord and Tenant shall cooperate in good faith, within three (3) business days thereafter, to "value engineer" the Tenant Improvements work to reduce the cost thereof. Upon completion of such process, Landlord shall execute a "fixed price" or "lump sum" construction contract with the Selected Contractor for the Bid Amount, as adjusted by any such "value engineering". Landlord shall cause the Tenant Improvements to be constructed in a good and wor1cn,i'lilce manner and substantially in accordance with the approved Working Drawings and Specifications (as modified by Changes approved by ~~Tenant in~~ Landlord and Tenant). All materials and equipment furnished shall conform to such approved Working Drawings and Specifications and shall be of good quality. Landlord shall, promptly following notice from Tenant, rectify any noncompliance with the ~~Plan or otherwise~~foregoing obligations at its sole cost and expense. B. F. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“"Change”")~~, and Landlord so approves such Change as provided in Section 1.C below~~, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 three (3) business days following its receipt from Landlord. If such Change either involves a Non-Standard Improvement acceptable to Landlord, or if such Change would result in the Completion Cost exceeding the Landlord's Contribution, then Tenant~~’s receipt~~ 's approval of such ~~change order. If Tenant approves~~ Change shall be accompanied by Tenant's payment of any such ~~change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the~~ increase in the ~~cost~~ Completion Cost Landlord shall have the right to ~~complete attributable to such change order concurrently with delivery of~~ decline Tenant~~’s approval~~ 's request for a Change for any of the ~~change order, or (ii) defer Tenant’s payment~~ reasons set forth in Article LC above for Landlord's disapproval of such increase until the date 10 days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. a Non-Standard Improvement It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s 's approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. G. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within three (3) business days, fails to approve in writing both the Preliminary Plan and Preliminaiy Cost Estimate for the Tenant Improvements by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve or disapprove in writing the Working Drawings and Specifications or the Final Cost Estimate within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, furnishes inaccurate or erroneous specifications or other information, or ~~otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying~~ specifies materials that are not readily ~~available~~available (provided that Tenant was made aware by Landlord of the delay associated, or anticipated to be associated, with such Change or specification at the time of Tenant's request for such Change or materials) ~~or the issuance of an occupancy certificate~~ (any of the foregoing being referred to in this Lease as a “"Tenant Delay”"), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. In no event, however, shall such date be earlier than the Estimated Commencement Date set forth in the Basic Lease Provisions. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s 's election to contest same by arbitration with JAMS pursuant to Section 22.7 of the ~~provisions of Section Ill below~~Lease. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. H. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may ~~install fixtures, furniture and cabling~~ perform any work to be performed by Tenant hereunder through ~~Tenant’s~~ its own ~~contractors prior to the Commencement Date~~contractors,. ~~In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s 's prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to ~~Tenant.~~ Tenant That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way~~ Except to the extent of ~~limitation~~the active negligence or willful misconduct of Landlord, or its authorized agents, contractors or employees, Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s 's risk. In no event shall the failure of Tenant’s 's contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement work and tendered the Premises to Tenant. F. I. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxx Xxxxxxx, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Industrial Lease (Alsius Corp)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. a. Tenant has approved, or shall approve within the time period set forth below, a detailed space plan for the Premises, prepared by the architect engaged by Landlord ~~shall pay up to~~ for the ~~amount of the~~ work described herein (“Landlord’s ~~Contribution”~~ Architect”), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements (~~as defined below~~“Preliminary Plan”), and (ii) ~~towards~~ an estimate, prepared by the contractor engaged by Landlord for the work herein (“Landlord’s Contractor”), of the cost ~~of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall~~ for which Landlord will complete or cause to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ completed the Tenant Improvements (“Preliminary Cost Estimate”). To the extent applicable, the Preliminary Plan shall be include Landlord’s building standard tenant improvements, materials and specifications for the ~~Project~~ Project. Tenant shall approve or disapprove the Preliminary Plan by signing and delivering same to Landlord within 5 business days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan to incorporate Tenant’s suggested revisions in a mutually satisfactory manner; provided that in no event shall Tenant have the right to request changes or additions to the Preliminary Plan for the purpose of utilizing any unused portion of the Landlord Contribution (as ~~set forth~~ defined below). Notwithstanding the foregoing, however, Tenant shall approve in ~~Schedule I attached hereto~~ all respects a Preliminary Plan not later than February 29, 2020 (“~~Standard Improvements~~Plan Approval Date”), it being understood that Tenant’s failure to do so shall constitute a “Tenant Delay” for purposes of this Amendment. b. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord’s Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant’s equipment, and details of all other non-building standard improvements to be installed in the Premises (collectively, “Programming Information”). ~~Should Landlord submit any additional plans~~Tenant’s failure to provide the Programming Information by the Plan Approval Date shall constitute a Tenant Delay for purposes of this Amendment. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, ~~equipment specification sheets~~and accordingly that such information must be accurate and complete. c. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, ~~or other matters~~ Landlord’s Architect and engineers shall prepare and deliver to the parties working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the Tenant ~~for approval or completion~~ Improvements in ~~connection~~ conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have 5 business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate; provided that in no event shall Tenant have the right to request changes or additions to the Working Drawings and Specifications for the purpose of utilizing any unused portion of the Landlord Contribution. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Landlord’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within 3 245068256 v1 business days of receipt without further revision. Tenant’s failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. d. It is understood that the Preliminary Plan and the Working Drawings and Specifications, together with any Changes thereto, shall be subject to the prior approval of Landlord. Landlord shall identify any disapproved items within 3 business days (or 2 business days in the ~~Plan~~ case of Changes) after receipt of the applicable document. Should Landlord approve work that would necessitate any ancillary Building modification or ~~otherwise~~other expenditure by Landlord, then except to the extent of any remaining balance of the “Landlord Contribution” as described below, Tenant shall, in addition to its other obligations herein, promptly fund the cost thereof to Landlord. B. e. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of ~~the change order, or (ii) defer~~ a Change shall be accompanied by Tenant’s payment of ~~such~~ any resulting increase ~~until~~ in the ~~date 10 days after delivery~~ Completion Cost regardless of ~~invoices for same~~any unutilized portion of the Landlord Contribution. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. f. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within 3 business days, fails to approve in writing the Preliminary Plan by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, fails to make timely payment of any sum due hereunder, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this ~~Lease~~ Amendment as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the ~~Commencement~~ Suite 155 Expansion Effective Date ~~of this Lease~~ shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s obligation to pay ~~rent~~Rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the ~~Commencement~~ Suite 155 Expansion Effective Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 business days thereafter, of Tenant’s election to contest same by binding arbitration ~~pursuant to~~ with the ~~provisions of Section Ill below~~American Arbitration Association under its Arbitration Rules for the Real Estate Industry, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under ~~this Lease~~ the Lease, as amended hereby, based upon the ~~Commencement~~ Suite 155 Expansion Effective Date set forth in the aforesaid notice from Landlord. E. g. Landlord shall permit Tenant and its agents to enter the ~~Premises 3 weeks~~ Suite 155 Expansion Space up to 14 days prior to the ~~Commencement~~ Suite 155 Expansion Effective Date ~~of the Lease~~ in order that Tenant may ~~install fixtures~~perform any work to be performed by Tenant hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the ~~Premises~~ Suite 155 Expansion Space prior to the ~~Commencement~~ Suite 155 Expansion Effective Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party ~~contractors~~contractors and subcontractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay ~~rent~~Rent with respect to the Suite 155 Expansion Space unless Tenant commences business activities within the Suite 155 Expansion Space. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the ~~Premises~~ Suite 155 Expansion Space extend the ~~Commencement Date~~ Suite 155 Expansion Effective Date. 245068256 v1 h. It is understood that some or all of the Tenant Improvements may be done during Tenant’s occupancy of the Premises. In this ~~Lease~~regard, Tenant agrees to assume any risk of injury, loss or damage which may result. Tenant further agrees that it shall be solely responsible for relocating its office equipment and furniture in the Premises in order for Landlord to complete the work in the Premises and that no rental abatement shall result while the Tenant Improvements are completed in the Premises. F. i. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxxx Xxxxxxx, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Bionano Genomics, Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall ~~pay up~~ cause its contractor to construct the ~~amount of the “~~Tenant Improvements in a good and workmanlike manner, in compliance with applicable laws and at Landlord’s ~~Contribution” (as defined below) towards the~~ sole cost ~~of the Tenant Improvement Work. Any~~ and expense, provided that any additional cost ~~of the Tenant Improvement Work, including additional costs~~ resulting from “Changes” (as hereinafter defined) requested by ~~Tenant,~~ Tenant and any “Alternates” shown in the Plan which are elected by Tenant (other than the Included Alternates) shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”), except for those additions or variations to Building Standard Improvements expressly approved by Landlord and noted on the Plan (any such addition or variation from the Standard Improvements shall be referred to herein as a “Non-Standard Improvement”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost ~~of the Change~~ shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 53% of the cost of such Change. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 business days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost ~~to complete~~ attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same, provided however, that the increase in cost must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or would cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests and approves any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section ~~Ill~~ III below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. All Standard Tenant Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant prior to the commencement of the Tenant Improvement Work, or with respect to work referenced in any Change, within five (5) days of receipt of such Change, require Tenant to remove all or any of the Non-Standard Improvements, and “Alternates” in the Plan which are elected by Tenant (other than the Included Alternates), and all or any of the Tenant Improvements approved by way of a Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace any such Non-Standard Improvements with the applicable Building Standard Improvements, or (ii) to reimburse Landlord for the reasonable cost of such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. Notwithstanding the foregoing, Tenant shall have no obligation to remove any of the Tenant Improvements that are currently described in the Plan or the Included Alternates. F. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. ~~In addition, Tenant may utilize the loading dock and parking area during such time.~~ Any such work shall be subject to Landlord’s prior written approval, which shall not be unreasonably withheld, and shall be performed in a manner and upon terms and conditions and at times reasonably satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. G. Tenant hereby designates Xxxxxx ~~Xxxxxxxx~~ X. Xxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (TigerLogic CORP)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall ~~pay up to~~ approve within the ~~amount~~ time period set forth below, both (i) a detailed space plan for the Premises, prepared by Landlord's architect, which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by Landlord's contractor, of the ~~“Landlord’s Contribution” (as defined below) towards the~~ cost ~~of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall~~ for which Landlord will complete or cause to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ completed the Tenant Improvements ~~shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto~~ (~~“Standard Improvements”~~"Preliminary Cost Estimate"). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section 1.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change. Tenant shall approve or disapprove ~~such change order in writing~~ each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within 2 five (5) working days ~~following~~ of its receipt by Tenant~~’s receipt of such change order~~. If Tenant ~~approves~~ disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. Subject to the express provisions of Article II.A below regarding the application of up to One Dollar ($1.00) per rentable square foot of the Landlord's Contribution towards the cost of "Non-Standard Improvements" (as hereinafter defined), it is understood and agreed that the Preliminary Plan submitted by Landlord's architect is intended to include all improvements desired by Tenant using Landlord's "Standards" (as hereinafter defined), whether or not the full amount of Landlord's Contribution would be required to complete construction of the improvements as shown in the Preliminary Plan. In all events, however, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than July 6, 2000 ("Plan Approval Date"). B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord's architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) to be installed in the Premises (collectively, "Programming Information"). Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. The Tenant Improvements shall incorporate Landlord's building standard materials and specifications ("Standards"). No deviations from the Standards may be required by Tenant with respect to doors and frames, finish hardware, entry graphics, the ceiling system, light fixtures and switches, mechanical systems, life and safety systems, and/or window coverings; provided that Landlord may, in its sole discretion, authorize in writing one or more of such deviations. In the event that Landlord shall so authorize any such ~~change order~~deviations from the Standards, ~~Landlord,~~ Landlord shall advise Tenant at ~~its election, may either~~ the time such deviation(s) are authorized whether: (i) ~~require as a condition to the effectiveness of~~ such ~~change order that Tenant pay the increase~~ deviation(s) shall remain in the ~~cost to complete attributable to such change order concurrently with delivery~~ Premises at the expiration or earlier termination of ~~Tenant’s approval of the change order~~this Lease, or (ii) ~~defer Tenant’s payment of~~ such ~~increase until~~ deviation(s) shall be replaced with the ~~date 10 days after delivery of invoices for same. If Tenant disapproves any such change order,~~ applicable Standard item(s) (in which event Tenant shall ~~nonetheless be responsible for~~ pay to Landlord, prior to the ~~reasonable architectural and/or planning fees incurred~~ commencement of construction and in ~~preparing such change order. Landlord shall have no obligation~~ addition to ~~interrupt or modify~~ sums otherwise due hereunder from Tenant, an amount equal to the ~~Tenant Improvement Work pending Tenant’s approval~~ cost, as reasonably estimated by Landlord, of ~~a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to~~replacing the deviating item(s) ~~suspend~~ with the applicable ~~Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification~~ Standard item(s) upon the expiration or termination of ~~a Standard Improvement in the Plan to a non-~~ this Lease). All other non-standard ~~improvement~~ items (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved "Non-Standard Improvements~~, unless Landlord determines, in its sole and absolute discretion, that such requested Change~~ ") shall be subject to the reasonable prior approval of Landlord. Landlord shall in no event be required to approve any Non-Standard ~~Improvements~~ Improvement if Landlord determines that such improvement (i) is of a lesser quality than the ~~Non-Standard Improvements previously approved by Landlord~~corresponding Standard, (ii) fails to conform to applicable governmental requirements, (iii) ~~would result in the Premises requiring~~ requires building services beyond the level normally provided to other tenants, or (iv~~) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v~~) would have an adverse aesthetic impact to from the ~~Premises or cause additional expenses to Landlord in reletting~~ exterior of the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Lantronix)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant has approved, or shall approve within the time period set forth below, a detailed space plan for Suite 800, prepared by the architect engaged by Landlord for the work described herein ("Landlord's Architect"), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"). Tenant shall approve or disapprove the Preliminary Plan by signing and delivering same to Landlord within five (5) business days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall ~~pay up~~ attempt to modify the ~~amount~~ Preliminary Plan to incorporate Tenant's suggested revisions in a mutually satisfactory manner. Notwithstanding the foregoing, however, Tenant shall approve in all respects a Preliminary Plan not later than March 1, 2005 ("Plan Approval Date"). B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord's Architect all specifications and information requested by Landlord for the preparation of ~~the “Landlord’s Contribution”~~ final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) ~~towards the cost of the~~ to be installed in Suite 800 (collectively, "Programming Information"). Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Upon Tenant's approval of the Preliminary Plan and delivery of the complete Programming Information, Landlord~~’s building standard tenant improvements, materials~~ 's Architect and engineers shall prepare and deliver to the parties working drawings and specifications for the ~~Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to~~ Tenant ~~for approval or completion in connection~~ Improvements consistent with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Preliminary Plans ("Working Drawings and Specifications"). Tenant shall ~~not unreasonably withhold its approval of any matter,~~ have five (5) business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in or not consistent with the approved Preliminary Plan. Should Tenant disapprove the Working Drawings and Specifications, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Landlord's Architect into a revised set of Working Drawings and Specifications, and Tenant shall approve same in ~~the Plan or otherwise~~writing within five (5) business days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications following the date of the Preliminary Plans (“"Change”"), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is reasonably acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any ~~increase~~ increase, if any, in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 three (3) business days following ~~Tenant’s~~ its receipt of ~~such change order~~the same from Landlord. ~~If Tenant approves~~ Tenant's approval of a Change shall be accompanied by Tenant's payment of any ~~such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the~~ resulting increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for sameCompletion Cost. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s 's approval of a change order, but ~~if Tenant fails~~ that Landlord shall use its reasonable efforts to ~~timely approve~~ not further complete work which would be materially altered by a ~~change order, Landlord may~~ Change for five (~~but shall not be required to~~5) ~~suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to~~ days following Tenant’s 's request for a Change. E. It is understood that the Preliminary Plan and the Working Drawings and Specifications, ~~including~~ together with any ~~modification~~ Changes thereto, shall be subject to the prior approval of ~~a Standard Improvement~~ Landlord which approval shall not be unreasonably withheld. Landlord shall identify any disapproved items within five (5) business days (or three (3) business days in the ~~Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant~~case of Changes) after receipt of the applicable document. In ~~addition~~lieu of disapproving an item, Landlord ~~agrees~~ may approve same on the condition that ~~it shall not unreasonably withhold its consent~~ Tenant pay to ~~Tenant’s requested Changes to previously approved Non-Standard Improvements~~Landlord, ~~unless Landlord determines, in its sole and absolute discretion, that such requested Change~~ prior to the ~~Non-Standard Improvements (i) is~~ start of ~~a lesser quality than~~ construction and in addition to all sums otherwise due hereunder, an amount equal to the ~~Non-Standard Improvements previously approved~~ cost, as reasonably estimated by Landlord, ~~(ii) fails to conform to applicable governmental requirements, (iii) would result in~~ of removing and replacing the ~~Premises requiring building services beyond~~ item upon the ~~level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of,~~ expiration or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end termination of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord ~~determine~~ approve work that ~~the Commencement Date should be advanced in accordance with the foregoing~~would necessitate any ancillary Building modification or other expenditure by Landlord, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant then except to the ~~provisions~~ extent of ~~Section Ill~~ any remaining balance of the "Landlord's Contribution" as described below~~. Pending the outcome of such arbitration proceedings~~, Tenant ~~shall make timely payment of all rent due under this Lease based upon~~ shall, in addition to its other obligations herein, promptly fund the ~~Commencement Date set forth in the aforesaid notice from~~ cost thereof to Landlord. E. F. Upon approval of the Working Drawings and Specifications, Landlord shall ~~permit Tenant~~ submit them to competitive bid as provided above. Each bidding contractor shall use the electrical, mechanical, plumbing and ~~its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture~~ fire/life safety engineers and ~~cabling through Tenant’s own contractors prior to the Commencement Date~~subcontractors designated by Landlord. ~~In addition, Tenant may utilize the loading dock and parking area during such time. Any such work~~ All other subcontractors shall be subject to Landlord~~’s prior written~~ 's reasonable approval, and Landlord may require that one or more designated subtrades be union contractors. The lowest responsible bidder shall be ~~performed in a manner~~ selected as Landlord's general contractor and ~~upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter~~ the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry bid amount shall be deemed ~~to be under all of~~ the ~~provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way~~ "Final Cost Estimate" for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Leasepurposes hereof. F. G. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxxx Xxxxx, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if it given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord. H. It is understood that all of the Tenant Improvements shall be done during Tenant's occupancy of Suite 800. In this regard, Tenant agrees to assume any risk of injury, loss or damage which may result. Tenant further agrees that no rental abatement for Suite 800 shall result while the Tenant Improvements are completed in Suite 800. Landlord shall use commercially reasonable efforts to minimize the disruption caused to Tenant's business operations within the Premises on account of the completion of the Tenant Improvements within Suite 800.

Appears in 1 contract

Samples: Lease (Sm&A)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall ~~pay up to~~ approve within the ~~amount of~~ time period set forth below, both (i) a detailed space plan for the Premises, prepared by the architect engaged by Landlord for the work described herein (“Landlord’s ~~Contribution~~Architect”), which includes interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements, including “clean” rooms (~~as defined below~~“Preliminary Plan”), and (ii) ~~towards~~ an estimate, prepared by the contractor engaged by Landlord for the work herein (“Landlord’s Contractor”), of the cost for which Landlord will complete or cause to be completed the Tenant Improvements (“Preliminary Cost Estimate”). Tenant shall approve or disapprove each of the ~~Tenant Improvement Work. Any additional cost~~ Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within three (3) business days of its receipt by Tenant. If Tenant ~~Improvement Work~~disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant’s suggested revisions in a mutually satisfactory manner. Notwithstanding the foregoing, however, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than the date set forth in Item 14 of the Basic Lease Provisions (“Plan Approval Date”), it being understood that Tenant’s failure to do so shall constitute a “Tenant Delay” for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord’s Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including ~~additional costs resulting from “Changes”~~ without limitation Tenant’s final selection of wall and floor finishes, complete specifications and locations (~~as hereinafter defined~~including load and HVAC requirements) ~~requested by~~ of Tenant’s equipment, ~~shall~~ to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the Premises (collectively, “Programming Information”). Tenant’s failure to provide the Programming Information by the Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Upon Tenant’s approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord’s ~~building standard tenant improvements, materials~~ Architect and engineers shall prepare and deliver to the parties working drawings and specifications (“Working Drawings and Specifications”), and Landlord’s Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the ~~Project as set forth~~ Tenant Improvements in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have five (5) business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord (which acceptance shall not be unreasonably withheld) shall be incorporated by Landlord’s Architect into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within three (3) business days of receipt without further revision. Tenant’s failure to comply in a timely manner with any of the ~~Plan or otherwise~~requirements of this paragraph shall constitute a Tenant Delay. B. D. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“Change”), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is reasonably acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 three (3) business days following ~~Tenant’s~~ its receipt ~~of such change order~~from Landlord. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of ~~the change order, or (ii) defer~~ a Change shall be accompanied by Tenant’s payment of ~~such~~ any resulting increase ~~until~~ in the ~~date 10 days after delivery of invoices for same~~Completion Cost. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s approval of a change order. E. It is understood that the Preliminary Plan and the Working Drawings and Specifications, ~~but if Tenant fails~~ together with any Changes thereto, shall be subject to ~~timely approve a change order~~the prior approval of Landlord. Landlord shall identify any disapproved items within three (3) business days (or two (2) business days in the case of Changes) after receipt of the applicable document. In lieu of disapproving an item, Landlord may ~~(but shall not be required to) suspend~~ approve same on the ~~applicable~~ condition that Tenant ~~Improvement Work. C. Landlord may consent in writing~~pay to Landlord, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change prior to the ~~Non-Standard Improvements (i) is~~ start of ~~a lesser quality than~~ construction and in addition to all sums otherwise due hereunder, an amount equal to the ~~Non-Standard Improvements previously approved~~ cost, as reasonably estimated by Landlord, of removing and replacing the item upon the expiration or termination of the Lease (~~ii) fails~~ provided that should Landlord impose such a condition, Tenant may promptly withdraw its request to ~~conform~~ install the item). Should Landlord approve work that would necessitate any ancillary Building modification or other expenditure by Landlord, then except to ~~applicable governmental requirements, (iii) would result in~~ the ~~Premises requiring building services beyond~~ extent of any remaining balance of the ~~level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or~~ “Landlord’s ~~access to~~Contribution” as described below, ~~any mechanical~~Tenant shall, ~~electrical~~in addition to its other obligations herein, ~~plumbing or HVAC systems, facilities or equipment in or serving~~ promptly fund the ~~Building, or (v) would have an adverse aesthetic impact~~ cost thereof to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within three (3) business days, fails to approve in writing both the Preliminary Plan and Preliminary Cost Estimate for the Tenant Improvements by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications and the Final Cost Estimate within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, fails to make timely payment of any sum due hereunder, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including ~~without limitation~~ Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant in accordance with the requirements of Section 3.1 of the Lease but for the collective Tenant Delays. In no event, however, shall such date be earlier than the Estimated Commencement Date set forth in the Basic Lease Provisions. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 fifteen (15) business days thereafter, of Tenant’s election to contest same by arbitration with JAMS/ENDISPUTE pursuant to ~~the provisions~~ Article III of ~~Section Ill below~~this Work Letter. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may ~~install fixtures~~perform any work to be performed by Tenant hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s prior written approval, and ~~shall be performed~~ in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party ~~contractors~~contractors and subcontractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. H. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~Txx Xxxxxxx, Telephone No. (000) 000-~~0000~~0000 Ext. 121, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if it given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Micrus Endovascular Corp)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. ~~Landlord shall pay up~~ Prior to the ~~amount~~ execution of this Lease, Tenant and Landlord have approved a plan for the Tenant Improvements prepared by X. Xxxxx Associates (“Landlord’s ~~Contribution”~~ Architect”), dated February 17, 2010 (~~as defined below) towards the cost of the Tenant Improvement Work~~“Preliminary Plan”). Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the The Preliminary Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be~~ includes Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I 1 attached hereto (“Building Standard Improvements”)~~. Should~~ , except for those additions or variations to Building Standard Improvements expressly approved by Landlord ~~submit~~ and noted on the Preliminary Plan (any ~~additional plans~~such addition or variation from the Standard Improvements shall be referred to herein as a “Non-Standard Improvement”). B. Within five (5) business days following any request therefor by Landlord, ~~equipment specification sheets~~Tenant shall provide, or ~~other matters~~ shall cause to be provided, in writing to Landlord and Landlord’s Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant’s final selection of paint and floor finishes, complete specifications and locations (including electrical, load and HVAC requirements) of Tenant’s equipment (collectively, “Programming Information”). Tenant’s failure timely to provide the Programming Information shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord shall have no obligation or liability for such defects or problems arising from any incomplete or inaccurate Programming Information. Any delays in the completion of the Tenant Improvements due to incomplete or inaccurate Programming Information shall constitute a Tenant Delay. C. Upon Tenant’s delivery of the complete Programming Information, Landlord’s Architect and Landlord’s engineers shall prepare and deliver to Tenant working drawings and specifications (“Working Drawings and Specifications”), and the General Contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the Tenant Improvements in conformity with the Working Drawings and Specifications. A copy of the Final Cost Estimate shall be delivered to Tenant for its approval ~~or completion in connection with the~~ unless Tenant ~~Improvement Work,~~ is not responsible for any Tenant’s Contribution. Tenant shall ~~respond in writing, as appropriate, within 5~~ have five (5) business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and (if delivered to Tenant) the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, in its reasonable discretion, shall be incorporated into a revised set of Working Drawings and Specifications and the ~~Plan or otherwise~~Final Cost Estimate, and Tenant shall approve same in writing within five (5) business days of receipt without further revision. B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“Tenant Change”), and Landlord so approves such Tenant Change as provided in Section ~~1.C below~~I.E. herein, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost such Tenant ~~Improvement Work that such~~ Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 two (2) business days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 ten (10) business days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change ~~order~~order associated with a Tenant Change, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change ~~order~~order associated with a Tenant Change, but if Tenant fails to timely approve a change ~~order~~order associated with a Tenant Change, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, E. Landlord agrees that it shall not unreasonably withhold its consent to ~~Tenant’s~~ a requested ~~Changes~~ Tenant Change to ~~previously~~ the approved ~~Non-Standard Improvements~~Tenant Improvements Work, unless Landlord determines, in its sole and absolute discretion, that such requested Tenant Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard Improvements~~ improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. ~~The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements~~ Unless Landlord otherwise agrees in writing, in its sole and ~~Non-Standard~~ absolute discretion, all Tenant Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except ~~that~~ that: (A) Tenant shall remove, at the end of the Term, those portions of the approved Tenant Improvement Work described on the “Restoration Plan” attached as Schedule 2 hereto; and (B) Landlord may, by notice to Tenant given at the time of Landlord’s approval of a any Tenant Change, require Tenant either to ~~remove~~ (y) remove, at the end of the Term, all or any of the ~~Non-Standard Improvements and all or any of the~~ specific Tenant Improvements Work approved by way of such ~~Change requested by Tenant~~Tenant Change, to repair any damage to the Premises or the Common Area arising from such removal, and to replace ~~such~~ any Non-Standard Improvements approved by way of such Tenant Change with the applicable Building Standard ~~Improvement~~Improvements, or (z) in the event Tenant fails to timely so remove, repair and replace as required, subsequent to such failure Landlord may demand that Tenant reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and ~~replacement upon demand~~replacement. Any such removals, repairs and replacements by Tenant to be performed by Tenant at the end of the Term shall be completed by the Expiration Date, or sooner termination of this Lease~~, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination~~. D. F. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) business days following Tenant’s receipt thereof), fails to timely provide all of the Programming Information requested by Landlord, fails to approve in writing the Working Drawings and Specifications or the Final Cost Estimate within the time provided herein, fails to timely deliver the Tenant’s Contribution as required hereunder, requests any Tenant Changes, furnishes inaccurate or erroneous Programming Information, specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) business days thereafter, of Tenant’s election to contest same by arbitration pursuant to ~~the provisions of Section Ill~~ Paragraph IV below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may ~~install~~ cause the installation of its fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. ~~In addition, Tenant may utilize the loading dock and parking area during such time.~~ Any such work shall be subject to Landlord’s prior written ~~approval~~approval (not to be unreasonably withheld, conditioned or delayed), and shall be performed in a manner and upon terms and conditions and at times reasonably satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord and its General Contractor as determined by Landlord in Landlord’s ~~sole and absolute~~ reasonable discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord and its General Contractor as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms reasonably satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease beyond the date that Landlord has completed its Tenant Improvement Work and tendered the Premises to Tenant in accordance with Section 3.1 of this Lease. F. H. Tenant hereby designates each of Xxxxxx ~~Xxxxxxxx (Tenant’s Construction Representative”)~~Xxxxx of Xxxxxx Xxxxx Project Management, ~~Telephone~~ LLC, 00000 Xxx Xxxxxx Xxxxxx, Suite 260, Irvine, CA 92612, telephone No. (000) 000-0000, email: xxxxxx.xxxxx0000@xxxxx.xxx (“Tenant’s Project Manager”) and Xxxxxxxx XxXxxxxx of ISTA Pharmaceuticals, telephone No. (000) 000-0000, email: xxxxxxxxx@xxxxxxxxxx.xxx (“Tenant’s Facilities Representation”), either of such parties acting alone, as its ~~representative,~~ representative and agent ~~and attorney-in-fact~~ for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Tenant Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of each of the Tenant’s ~~Construction~~ Project Manager and the Tenant’s Facilities Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of ~~its Tenant’s Construction Representative(s)~~ the foregoing individuals at any time upon delivery of written notice to Landlord. I. Tenant and Landlord hereby acknowledge and agree as follows in connection with the Tenant Improvement Work: (i) Landlord shall be responsible for all coordination between Landlord’s Architect and the General Contractor. (ii) From the date of execution of this Lease until final completion by Landlord of all punch list items identified by Tenant in accordance with Section 2.2 of this Lease, Landlord shall schedule and participate in weekly meetings regarding the status of the Tenant Improvements, including the status of field changes and Tenant Changes then at issue, and the status of “Landlord’s Work” (as defined in Section III below) with Tenant’s Project Manager. (iii) Notwithstanding the provisions herein regarding Tenant Changes, Landlord shall cause General Contractor to submit concurrently to Landlord and Tenant’s Project Manager all change requests (including requests for “field changes” as hereinafter defined), contingency re-allocations and requests for information for the Tenant Improvements, and final change orders for the Landlord’s Work. (iv) Landlord shall not be paid its 3% administration/supervision fee on any work constructed by Tenant in the Premises that is outside the scope of the “Tenant Improvement Work,” including without limitation, Tenant’s cabling, audio-visual and security installations.

Appears in 1 contract

Samples: Lease (Ista Pharmaceuticals Inc)

Appears in 1 contract

Samples: Industrial Lease (Omm Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. ~~Landlord shall pay up~~ Prior to the ~~amount~~ execution of this Lease, Tenant and Landlord have approved a preliminary plan for the Premises last revised March 26, 2007 (the “~~Landlord~~Preliminary Plan”), prepared by Xxxx Xxxxxx & Associates (“Tenant’s ~~Contribution” (as defined below) towards the cost of the Tenant Improvement Work~~Architect”). Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the The Preliminary Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be~~ includes Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Building Standard Improvements”), except for changes and additions specifically noted on the Preliminary Plan (any such addition or variation from the Standard Improvements shall be referred to herein as a (“Non-Standard Improvement”). B. Not later than three (3) weeks from and after the full execution and delivery of this Lease, Tenant’s Architect shall prepare and shall deliver to Landlord working drawings and specifications (“Working Drawings and Specifications”) based on the approved Preliminary Plan. ~~Should~~ Tenant’s Architect shall use TKSC for the mechanical and plumbing engineering and K1 for the electrical engineering for purposes of preparing the Working Drawings and Specifications. Landlord ~~submit any additional plans, equipment specification sheets,~~ shall have ten (10) business days from the receipt thereof to approve or ~~other matters to Tenant for approval or completion in connection with~~ disapprove the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. ~~Tenant~~ Landlord shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan. Should Landlord disapprove the Working Drawings and Specifications, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision reasonably requested by Landlord shall be incorporated into a revised set of Working Drawings and Specifications within ten (10) business days following receipt by Tenant’s Architect. Tenant’s or Tenant’s Architect’s failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay as defined below. C. Landlord shall submit the Work Drawings and Specifications to a competitive bidding process involving at least three (3) licensed and reputable general contractors; and Landlord shall request that KPRS Construction Services, Inc. be one of such bidders. If requested in writing by Tenant, Landlord shall provide copies of the bid responses to Tenant. After adjustments for any inconsistent assumptions to reflect an “apples to apples” comparison, Landlord shall select the lowest qualified bidder and that bid so selected shall be referred to as the “Bid Amount”. In the event Landlord selects other than the lowest bidder, it shall do so based on commercially reasonable factors which it shall demonstrate to Tenant. Upon selection of the bidder, Landlord shall prepare a final cost estimate for the Completion Cost of Tenant Improvement Work which shall include the Bid Amount (the “Final Cost Estimate”), and shall enter into a “lump sum” or “fixed price” construction contract in the ~~Plan or otherwise~~Bid Amount with the chosen contractor (the “TI Contractor”) for construction of the Tenant Improvements in accordance with the approved and final Working Drawings and Specifications for the Bid Amount (“TI Contract”). B. D. In the event that Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“Change”), and Landlord so approves such Change as provided in Section ~~1.C~~ I.E below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order and Tenant Delay, if any, in writing within 2 two (2) days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 ten (10) days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. E. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement ~~in the Plan~~ to a ~~non- standard improvement (“~~Non-Standard ~~Improvement”)~~Improvement in the Preliminary Plan or any other modification of the Working Drawings and Specifications, if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. ~~The~~ Unless Landlord otherwise agrees in writing, in its sole and absolute discretion: (a) the cost ~~to complete~~ of any Non-Standard Improvements shall be ~~borne by~~ part of Tenant~~. All~~ ’s Contribution (as hereinafter defined), and (b) all Standard Tenant Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s ~~approval of a~~ consent to any Change, require Tenant either to remove all or any of the Non-Standard Improvements ~~and all or any of the Tenant Improvements~~ approved by way of such ~~Change requested by Tenant~~Change, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable ~~Standard Improvement~~Building Standard, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease. Notwithstanding the foregoing, ~~or within 10 days~~ Tenant shall have no obligation to restore any portion of the Tenant Improvements which are described in the approved Preliminary Plan. Notwithstanding the foregoing, Landlord and Tenant agree that the following ~~notice to~~ components of the Tenant ~~if such notice is given following~~ Improvements shall in all events become the ~~Expiration Date or sooner termination~~property of Landlord and shall be surrendered with the Premises at the end of the Term: boardroom cabinets, ESD flooring, boardroom light cove, manufacturing fencing and the split-unit for the server room. D. F. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s receipt thereof), fails to cause the Tenant’s Architect to prepare and deliver the Working Drawings and Specifications within the time provided, fails to timely deliver the Tenant’s Contribution as required hereunder, requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) days thereafter, of Tenant’s election to contest same by arbitration pursuant to ~~the provisions of Section Ill~~ Paragraph IV below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this ~~Lease~~Lease beyond the date that Landlord has completed its Tenant Improvement Work and tendered the Premises to Tenant. F. H. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxxx Xxxxx (“Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Netlist Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord ~~shall pay up to~~ have approved a detailed space plan for the ~~amount~~ Premises, dated December 29, 2005 and prepared by Tenant’s architect, Gensler (“Architect”), (“Preliminary Plan”) a copy of which is attached hereto as Exhibit X-1, and (ii) an estimate of the ~~“Landlord’s Contribution” (as defined below) towards the~~ cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to ~~Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ complete the Tenant Improvements in accordance with the Preliminary Plan (“Preliminary Cost Estimate”) dated ________ and prepared by Turelk. The Preliminary Plan shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Building Standard Improvements”), except for changes and additions specifically requested by Tenant and approved by Landlord in its sole and absolute discretion in writing (any such addition or variation from the Standard Improvements shall be referred to herein as a (“Non-Standard Improvement”). ~~Should~~ Non-Standard Improvement(s) shown in the Preliminary Plan are hereby approved by Landlord ~~submit any additional plans, equipment specification sheets,~~ and are included in the Preliminary Cost Estimate and Landlord hereby agrees that such Non-Standard Improvements shown in the Preliminary Plan may be included within Landlord’s Maximum Contribution. B. On or ~~other matters to Tenant for approval or completion~~ before the date set forth in ~~connection with~~ Section 15 of the ~~Tenant Improvement Work~~Basic Lease Provisions (the “Plan Approval Date”), Tenant shall ~~respond~~ cause the Architect to prepare and deliver to Landlord and Tenant working drawings and specifications (“Working Drawings and Specifications”) in ~~writing, as appropriate, within 5 days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter~~form approved by Tenant, and ~~any disapproval~~ within five (5) business days following Landlord’s receipt of the Working Drawings and Specifications, Landlord’s contractor shall prepare a final construction cost estimate (“Final Cost Estimate”) for the Tenant Improvements in conformity with the Working Drawings and Specifications. Landlord shall have five (5) days from the receipt of the Working Drawings and Specifications to approve or disapprove the same. A copy of the Final Cost Estimate shall be ~~limited~~ delivered to ~~items not previously approved by~~ Tenant. Any delays in Tenant providing the Working Drawings and Specifications shall constitute a “Tenant Delay” (as defined in ~~the Plan or otherwise~~Section 1. E. below). B. C. In the event that Tenant ~~requests~~ submits in writing a any revision to the ~~Plan~~ Working Drawings and Specifications (“Change”), and Landlord so approves such Change as provided in Section ~~1.C below~~I.D. herein, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 two (2) business days following Tenant’s receipt of such change order. If Tenant approves any such change order, ~~Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that~~ Tenant shall pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order ~~concurrently with delivery of Tenant’s approval of the change order, or~~ within ten (ii10) ~~defer Tenant’s payment of such increase until the date 10~~ days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. D. Landlord ~~may~~ agrees it shall not unreasonably withhold its consent ~~in writing, in its sole and absolute discretion,~~ to Tenant’s request for a Change, including any modification of ~~a Standard Improvement in~~ the ~~Plan to a non- standard improvement (“Non-Standard Improvement”)~~Working Drawings and Specifications, ~~if requested in writing~~ submitted by Tenant~~. In addition~~, ~~Landlord agrees that it shall not unreasonably withhold its consent~~ or to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord ~~determines, in its sole and absolute discretion,~~ reasonably determines that such requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard Improvements~~ applicable Improvement previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or cause additional substantial expenses to Landlord in reletting the Premises. ~~The~~ Unless Landlord otherwise agrees in writing, in its sole and absolute discretion: (a) the cost ~~to complete~~ of any Non-Standard Improvements shall be ~~borne by~~ part of Tenant~~. All~~ ’s Contribution (as hereinafter defined), and (b) all Standard Tenant Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time ~~of Landlord’s approval of a Change~~the applicable Change is approved, require Tenant either to remove all or any of the ~~Non-Standard Improvements and all or any of the Tenant~~ Improvements approved by way of ~~such Change requested by Tenant~~the Change, to repair any damage to the Premises or the Common Area arising from such removal, and to replace ~~such~~ any Non-Standard Improvements approved by way of the Change with the applicable ~~Standard Improvement~~Building Standard, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration ~~Date,~~ Date or sooner termination of this Lease~~, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination~~. D. E. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 five (5) days following Tenant’s receipt thereof), fails to provide the Working Drawings and Specifications by the Plan Approval Date, fails to timely deliver the Tenant’s Contribution as required hereunder, requests any ~~Changes~~Changes which actually cause any critical path delays, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) business days thereafter, of Tenant’s election to contest same by arbitration pursuant to ~~the provisions of Section Ill~~ Paragraph III below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. F. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks prior to the Commencement Date of the Lease~~ not earlier than January 15, 2006 in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.’s

Appears in 1 contract

Samples: Lease (Biolase Technology Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall approve within the time period set forth below, both (i) a detailed space plan for the Premises, prepared by the architect engaged by Landlord for the work described herein ("Landlord's Architect"), which Includes interior partitions, ceilings, Interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by the contractor engaged by Landlord for the work herein ("Landlord's Contractor"), of the cost for which Landlord will complete or cause to be completed the Tenant Improvements ("Preliminary Cost Estimate"). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within three (3) business days of its receipt by Tenant, -- If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall ~~pay up~~ attempt to modify the ~~amount~~ Preliminary Plan and the Preliminary Cost Estimate to Incorporate Tenant's suggested revisions in a mutually satisfactory manner. Notwithstanding, the foregoing, however, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than the date set forth in item 11 of the “Basic Lease Provisions ("Plan Approval Date"), it being understood that Tenant's failure to do so shall constitute a "Tenant Delay" for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlord~~’s Contribution”~~ 's Architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the Premises (collectively, "Programming Information"). Tenant's failure to provide the Programming Information by the Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. C. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord~~’s building standard tenant improvements, materials~~ 's Architect and engineers shall prepare and deliver to the parties working drawings and specifications ("Working Drawings and Specifications"), and Landlord's Contractor shall prepare a final construction cost estimate ("Final Cost Estimate") for the ~~Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to~~ Tenant ~~for approval or completion in connection~~ Improvements In conformity with the ~~Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein~~Working Drawings and Specifications. Tenant shall ~~not unreasonably withhold its approval of any matter~~have five (5) business days from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated by Landlord's Architect into a revised set of Working Drawings, and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within three (3) business days of receipt without further revision. Tenants failure to comply in a timely manner with any of the ~~Plan or otherwise~~requirements of this paragraph shall constitute a Tenant Delay. B. D. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“"Change”"), ~~and Landlord so approves~~ then provided such Change ~~as provided in Section 1.C below~~is reasonably acceptable to Landlord, Landlord shall advise Tenant by written change order as soon as is practical of any increase in In the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 three (3) business days following its receipt from Landlord. Tenant~~’s receipt~~ 's approval of ~~such change order. If Tenant approves~~ a Change shall be accompanied by Tenant's payment of any ~~such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the~~ resulting increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for sameCompletion Cost. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.have

Appears in 1 contract

Samples: Lease (Micrus Corp)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall ~~pay up~~ cause its contractor to construct the ~~amount of the “~~Tenant Improvements at Landlord’s ~~Contribution”~~ sole cost and expense, provided that (~~as defined below~~i) ~~towards the cost of the Tenant Improvement Work. Any~~ any additional cost ~~of the Tenant Improvement Work, including additional costs~~ resulting from “Changes” (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided, and (ii) the Tenant Improvement Work shall not include the “Alternates,” if any, described in the Plan, unless Tenant shall timely elect same in which event any additional cost thereof shall be borne solely by Tenant and shall be paid to Landlord in the same manner as hereinafter provided for Changes. Unless otherwise specified in the ~~Plan or Cost Estimate~~Plan, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 five (5) days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in Section ~~1.C~~ I.C below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change. Tenant shall approve or disapprove such change order in writing within 2 days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost to complete attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a ~~non-~~ non standard improvement (“Non-~~Standard~~ standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at either prior to or following the ~~time~~ expiration or termination of ~~Landlord’s approval of a Change~~the Lease, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of ~~such~~ a Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace any such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of ~~any~~ such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 ten (10) days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any ~~Changes~~Changes or Alternates, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “‘‘Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section Ill below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall supply Tenant with periodic updates of the construction schedule for the Tenant Improvements, and shall give its good faith estimate at least 15 days prior to the date the Premises is scheduled to be “ready for occupancy”. F. Prior to the Commencement Date of the Lease, Landlord shall permit Tenant and its agents to enter (i) the Premises ~~3 weeks prior to the Commencement Date of the Lease~~ in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors within 30 days prior to the Commencement Date~~. In addition~~, ~~Tenant may utilize~~ (ii) the ~~loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval~~“warehouse” portion of the first floor of the Premises on or after September 1, 2010 for purposes of the stocking of non-inventory only, and ~~shall be performed in a manner and upon terms and conditions and at times satisfactory~~ (iii) the “warehouse” portion of the first floor of the Premises within 15 days prior to ~~Landlord~~the Commencement Date for purposes of the stocking of inventory only (collectively, Tenant’s ~~representative~~“Early Entry” rights herein). The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion, and shall be subject to Tenant’s obtaining any and all permits required by the City of Irvine for such Early Entry. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such ~~entry~~Early Entry. The ~~entry~~ Early Entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent~~. Not by way~~ ; provided, however, that to the extent Tenant commences its regular business operations in the “warehouse” portion of the Premises during its Early Entry, including without limitation, commencing its regular distribution of inventory from the Premises, then Tenant shall thereafter pay Basic Rent to Landlord for the “warehouse” portion in a monthly amount equal to $.56 multiplied by the rentable square footage of the “warehouse” portion of the Premises. Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by ~~Tenant~~Tenant during its Early Entry, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. G. Tenant hereby designates Xxxx Xxxxxx ~~Xxxxxxxx~~ (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Boot Barn Holdings, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. ~~Landlord shall pay up~~ Within ninety (90) days prior to the ~~amount~~ Commencement Date of this Lease, Tenant shall provide in writing to Landlord or Landlord's architect all specifications and information for Tenant's proposed Tenant Improvements work in the ~~“Landlord’s Contribution”~~ Premises, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall to be ~~borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified~~ installed in the ~~Plan or Cost Estimate~~Premises (collectively, ~~all materials, specifications and finishes utilized in constructing~~ "Programming Information"). Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, and accordingly that such information must be accurate and complete. B. Within thirty (30) days after receipt by Landlord of Tenant's Programming Information, Landlord shall provide both (i) a detailed space plan for the Premises, prepared by Landlord’s 's architect, for Tenant's proposed Tenant Improvement work based on the Programming Information submitted by Tenant, which shall include, to the extent applicable, interior partitions, ceilings, interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by Landlord's construction manager, of the cost for which Landlord will complete or cause to be completed the Tenant Improvements ("Preliminary Cost Estimate"). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate document and delivering same to Landlord within five (5) working days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shall attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenant's suggested revisions in a mutually satisfactory manner. C. The Tenant Improvements shall incorporate only Landlord's building standard ~~tenant improvements,~~ materials and specifications ("Standards"), whether or not the full amount of the Landlord's Contribution is used for the ~~Project~~ construction thereof. No deviations from the Standards may be required by Tenant with respect to doors and frames, finish hardware, entry graphics, the ceiling system, light fixtures and switches, mechanical systems, life and safety systems, and/or window coverings; provided that Landlord may, in its sole discretion, authorize in writing one or more of such deviations, in which event Tenant shall pay to Landlord, prior to the commencement of construction and in addition to sums otherwise due hereunder from Tenant, an amount equal to the cost, as ~~set forth in Schedule I attached hereto~~ reasonably estimated by Landlord, of replacing the deviating item(s) with the applicable Standard item(s) upon the expiration or termination of this Lease. All other non-standard items (“"Non-Standard Improvements”") shall be subject to the reasonable prior approval of Landlord. Landlord shall in no event be required to approve any Non-Standard Improvement if Landlord determines that such improvement (i) is of a lesser quality than the corresponding Standard, (ii) fails to conform to applicable governmental requirements, (iii) requires building services beyond the level normally provided to other tenants, or (iv) would have an adverse aesthetic impact from the exterior of the Premises. D. Within thirty (30) days after Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate, Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications ("Working Drawings and Specifications"). ~~Should Landlord submit any additional plans~~Within five (5) working days after the completion of the competitive bid process described below, ~~equipment specification sheets, or other matters to Tenant for approval or completion in connection~~ the "Bid Amount" (as defined below) together with Landlord's final cost estimate of the Completion Cost of the Tenant ~~Improvement Work,~~ Improvements work (the "Final Cost Estimate") shall be delivered to Tenant. Tenant shall ~~respond in writing, as appropriate, within 5~~ have five (5) working days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated within ten (10) business days of the receipt of Tenant's list of revisions into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in ~~the Plan or otherwise~~writing within five (5) business days of receipt without further revision. B. E. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“"Change”")~~, and Landlord so approves such Change as provided in Section 1.C below~~, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete~~ Completion Cost (as defined below) and/or any delay in the construction of the Tenant ~~Improvement Work~~ Improvements that such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 two (2) working days following its receipt from Landlord. Tenant~~’s receipt~~ 's approval of ~~such change order. If Tenant approves~~ a Change shall be accompanied by Tenant's payment of any ~~such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the~~ resulting increase in the ~~cost~~ Completion Cost. Landlord shall have the right to ~~complete attributable to such change order concurrently with delivery of~~ decline Tenant~~’s approval~~ 's request for a Change for any of the ~~change order, or (ii) defer Tenant’s payment~~ reasons set forth in Article I.C above for Landlord's disapproval of ~~such increase until the date 10 days after delivery of invoices for same~~a Non-Standard Improvement. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s 's approval of a change order~~, but if Tenant fails~~ . F. Landlord shall submit the Working Drawings and Specifications to ~~timely approve~~ a ~~change order~~competitive bidding process involving at least three (3) licensed and reputable general contractors. If requested by Tenant, Landlord ~~may (but~~ shall ~~not be required to) suspend~~ provide copies of the ~~applicable Tenant Improvement Work. C. Landlord may consent in writing, in its sole and absolute discretion,~~ bid responses to Tenant~~’s request~~ . After adjustments for ~~a Change~~any inconsistent assumptions to reflect an "apples to apples" comparison, ~~including any modification of a Standard Improvement in~~ Landlord shall select the ~~Plan~~ lowest qualified bidder and that bid so selected shall be referred to ~~a non- standard improvement (“Non-Standard Improvement”)~~as the "Bid Amount". In the event Landlord selects other than the lowest bidder, ~~if requested in writing by~~ it shall do so based on commercially reasonable factors which it shall demonstrate to Tenant. ~~In addition~~Upon selection of the bidder, Landlord ~~agrees that it~~ shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of enter into a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner "lump sum" or "fixed price" construction contract with the ~~proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving~~ chosen contractor (the ~~Building, or (v~~"TI Contractor") would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any for construction of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the ~~foregoing, it shall so notify~~ approved and final Working Drawings and Specifications for the Bid Amount (the "TI Contract"). G. It is understood that the Tenant ~~in writing. Landlord’s determination~~ Improvements shall be ~~conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter,~~ constructed during Tenant's occupancy of ~~Tenant’s election to contest same by arbitration pursuant to~~ the ~~provisions of Section Ill below~~Premises. ~~Pending the outcome of such arbitration proceedings~~In this regard, Tenant ~~shall make timely payment~~ agrees to assume any risk of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. Landlord shall permit Tenant and its agents to enter the Premises 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by Landlord as determined by Landlord in Landlord’s sole and absolute discretion. If at any time that entry shall cause disharmony or interfere with the work being performed by Landlord as defined by Landlord in Landlord’s sole and absolute discretion, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, ~~and/or~~ loss or damage ~~of property~~ which may ~~occur in connection with such entry by~~ result. Tenant ~~or in connection with such work being performed by Tenant,~~ further agrees that no rental abatement shall result while the ~~same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work~~ Tenant Improvements are completed in the ~~Premises extend the Commencement Date of this Lease~~Premises. F. H. Tenant hereby designates ~~Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”)~~its Director, Human Resources, Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for ~~all matters related to~~ the ~~Tenant Improvement Work, including but not by way of limitation, for purposes~~ purpose of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its ~~Tenant’s Construction Representative(s~~construction representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Industrial Lease (Rainbow Technologies Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. ~~Landlord shall pay up~~ Prior to the ~~amount~~ execution of ~~the “Landlord’s Contribution” (as defined below) towards the cost of~~ this Lease, Tenant and Landlord have approved a detailed plan for the Tenant ~~Improvement Work~~Improvements attached as Exhibit X-1 to this Work Letter (“Preliminary Plan”). ~~Any additional cost~~ To the extent applicable, the build-out of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested by Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Building Standard Improvements”), except for those additions or variations to Building Standard Improvements expressly approved by Landlord and noted on the Preliminary Plan (any such addition or variation from the Standard Improvements shall be referred to herein as a “Non-Standard Improvement”). ~~Should Landlord submit any additional plans, equipment specification sheets,~~ Tenant shall approve or ~~other matters~~ provide suggested revisions to ~~Tenant~~ the preliminary cost estimate for ~~approval or completion in connection with~~ the Tenant ~~Improvement Work~~Improvements (the “Preliminary Cost Estimate”) by signing copies of each or specifying in reasonable detail any suggested revisions thereto as hereinabove provided, and delivering each to Landlord within 5 business days of receipt thereof by Tenant. Landlord shall attempt in good faith to modify the Preliminary Cost Estimate to incorporate Tenant’s suggested revisions in a mutually satisfactory manner. In all events, Tenant shall ~~respond~~ approve in ~~writing~~all respects a Preliminary Cost Estimate (as may have been modified as herein provided to incorporate Tenant’s suggested revisions) not later than June 15, 2016. B. Within 5 business days following any request from Landlord or Landlord’s architect, Tenant shall provide in writing to Landlord or Landlord's architect all specifications and information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of paint and floor finishes, complete specifications and locations (including electrical, load and HVAC requirements) of Tenant's equipment, and details of all Non-Standard Improvements (as defined above) which have been approved by Landlord as part of the Preliminary Plan (collectively, "Programming Information"). Tenant's failure to provide the Programming Information shall constitute a “Tenant Delay”, as ~~appropriate~~defined below. Tenant understands that final construction documents for the Tenant Improvements shall be predicated on the Programming Information, ~~within~~ and accordingly that such information must be accurate and complete and that any defects or problems due to incomplete or inaccurate Programming Information shall be the responsibility of the Tenant and that the Landlord shall have no obligation or liability for such defects or problems arising from any incomplete or inaccurate Programming Information. Any delays in the completion of the Tenant Improvements due to incomplete or inaccurate Programming Information shall constitute a Tenant Delay. C. Following receipt of the Programming Information, Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications for the Tenant Improvemetns based on the approved Preliminary Plan ("Working Drawings and Specifications"), and Landlord's contractor shall prepare a final construction cost estimate ("Final Cost Estimate") for the Tenant Improvements in conformity with the Working Drawings and Specifications. Tenant shall have 5 business days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ consistent with the approved Preliminary Plan or Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications or the Final Cost Estimate, such disapproval shall be accompanied by specific reasons for disapproval and a detailed list of requested revisions. Any revision requested by Tenant and accepted by Landlord, shall be incorporated into a revised set of Working Drawings and Specifications and the Final Cost Estimate, and Tenant shall approve same in ~~the Plan or otherwise~~writing within 5 business days of receipt without further revision. B. D. In the event that after Tenant has approved the final Working Drawings and Specifications and the Final Cost Estimate, Tenant requests in writing a revision to the ~~Plan~~ Working Drawings and Specifications (“"Change”"), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is ~~practical~~ practical, but no later than 3 business days of any increase in the ~~cost to complete the Tenant Improvement Work that~~ Completion Cost such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 3 business days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 business days after delivery of invoices for same, provided however, that the Tenant’s Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, E. Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level ~~normally provided~~ Landlord has agreed to ~~other tenants~~provide Tenant under the Lease, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or would cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 business days following Tenant's receipt thereof), fails to approve the Preliminary Cost Estimate within 5 business days following Tenant’s receipt thereof), fails to provide all of the Programming Information requested within the time provided herein, fails to approve in writing the Working Drawings and Specifications or the Final Cost Estimate within the time provided herein, fails to timely deliver the Tenant’s Contribution as required hereunder, requests any Changes, furnishes inaccurate or erroneous Programming Information, specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “"Tenant Delay”"), then Tenant shall bear any resulting reasonable additional construction cost or other reasonable expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 business days ~~thereafter,~~ thereafter of Tenant’s 's election to contest same ~~by arbitration~~ pursuant to Section 14.7 of the ~~provisions of Section Ill below~~Lease. Pending the outcome of such ~~arbitration~~ proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. All of the Tenant Improvements shall become the property of Landlord and shall be surrendered with the Premises at the expiration or sooner termination of this Lease, except that Landlord shall have the right, by written notice to Tenant given at the time of Tenant’s election of any “Alternate” shown on the approved Preliminary Plan or at the time of Landlord’s approval of any Change, to require Tenant either to remove all or any of the Tenant Improvements approved by way of such Change, to repair any damage to the Premises or the Common Areas arising from such removal, and to replace any Non-Standard Improvements so approved with the applicable Standard Improvement, or if Tenant is unable or unwilling to perform any of the foregoing, to reimburse Landlord for the reasonable cost of such removal, repair and replacement upon receipt of invoice. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date or sooner termination of this Lease. H. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ prior to the Commencement Date of the Lease in order that Tenant may install its cubicles, power poles , demo-room fixtures, ~~furniture~~ cabling and ~~cabling~~ related communication equipment through Tenant’s own contractors prior to the Commencement Date. ~~In addition, Tenant may utilize the loading dock and parking area during such time.~~ Any such work shall be subject to Landlord’s 's prior written approval, and shall be performed in a manner and upon terms and conditions and at times reasonably satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time Landlord determines that such entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 36-hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any ~~personal~~ injury, ~~and/or~~ loss or damage ~~of property~~ which may occur ~~in connection with such entry by Tenant or in connection with~~ to any such work being performed by Tenant, the same being solely at Tenant’s 's risk. In no event shall the failure of Tenant’s 's contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. I. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxxx Xxxxxxx (“Tenant’s Construction Representative”), Telephone No. (000) 000-0000, Email: xxxxx.xxxxxxx@xxxxxxxxx.xxx, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Any notices or submittals to, or requests of, Tenant related to this Work Letter and/or the Tenant Improvement Work may be sent to Tenant’s Construction Representative at the email address above provided. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease Agreement (Aviat Networks, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall pay up to the amount of the “Landlord’s Contribution” (as defined below) towards the cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, ~~including~~ including, without limitation, additional costs resulting from ~~“Changes”~~ Changes (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided. ~~Unless otherwise specified in~~ To the ~~Plan or Cost Estimate~~extent applicable, ~~all materials, specifications and finishes utilized in constructing~~ the build-out of the Tenant Improvements shall be include Landlord’s building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Building Standard Improvements”), except for those additions or variations to Building Standard Improvements expressly approved by Landlord and noted on the Preliminary Plan (any such addition or variation from the Standard Improvements shall be referred to herein as a “Non-Standard Improvement”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that ~~such Change would cause. Such~~ causes the total cost of the ~~Change shall include an administrative/supervision fee~~ Tenant Improvement Work to ~~be paid to Landlord or to~~ exceed Landlord’s ~~management agent in the amount of 5% of the cost of such Change~~Contribution. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 business days following Tenant’s receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay ~~the~~ any such increase in the ~~cost to complete~~ Completion Cost attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same, provided however, that the Tenant Contribution must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change ~~order~~order that causes the total cost of the Tenant Improvement Work to exceed the Landlord’s Contribution. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, or (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to visible from the exterior of the Premises or would cause additional material expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 business days following Tenant’s receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “Tenant Delay”), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays, but not sooner than the Estimated Commencement Date. Should Landlord reasonably determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. ~~Landlord’s~~ Landlords determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s election to contest same by arbitration pursuant to the provisions of Section ~~Ill~~ III below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. All Tenant Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of any change requested by Tenant, require Tenant either (i) to remove all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace any Non-Standard Improvements so approved by way of such change with the applicable Building Standard Improvements, or (ii) to reimburse Landlord for the reasonable cost of such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease. Landlord confirms and agrees, however, that no such removal and/or replacement shall be required for any of the Tenant Improvements shown in the Plan, including any “Alternates” shown in the Plan and elected by Tenant. F. Landlord shall permit Tenant and its agents to enter the Premises ~~3 weeks~~ within 30 days prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date~~. In addition, Tenant may utilize the loading dock and parking area during such time~~. Any such work shall be subject to Landlord’s prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. G. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxx Xxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord. H. Landlord shall submit the construction drawings for the Tenant Improvement Work to a competitive bidding process involving at least 3 licensed and reputable general contractors. If requested by Tenant, Landlord shall provide copies of the bid responses to Tenant. After adjustments for any inconsistent assumptions to reflect an “apples to apples” comparison, Landlord shall select the lowest qualified bidder for construction of the Tenant Improvements. Upon selection of the lowest qualified bidder, Landlord shall enter into a construction contract with the contractor so selected in the bid amount for construction of the Tenant Improvements.

Appears in 1 contract

Samples: Lease Agreement (Wm Technology, Inc.)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Landlord shall ~~pay up~~ cause its contractor to construct the ~~amount of the “~~Tenant Improvements at Landlord’s ~~Contribution” (as defined below) towards the~~ sole cost ~~of the Tenant Improvement Work. Any~~ and expense, provided that any additional cost ~~of the Tenant Improvement Work, including additional costs~~ resulting from “Changes” (as hereinafter defined) requested by ~~Tenant,~~ Tenant shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in the Plan or Cost Estimate, all materials, specifications and finishes utilized in constructing the Tenant Improvements shall be Landlord’s 's building standard tenant improvements, materials and specifications for the Project as set forth in Schedule I attached hereto (“Standard Improvements”), except for those additions or variations to Building Standard Improvements expressly approved by Landlord and noted on the Plan (any such addition or variation from the Standard Improvements shall be referred to herein as a “Non-Standard Improvement”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection with the Tenant Improvement Work, Tenant shall respond in writing, as appropriate, within 5 days unless a shorter period is provided herein. Tenant shall not unreasonably withhold its approval of any matter, and any disapproval shall be limited to items not previously approved by Tenant in the Plan or otherwise. B. In the event that Tenant requests in writing a revision to the Plan (“Change”), and Landlord so approves such Change as provided in the Section ~~1.C~~ next below, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the cost to complete the Tenant Improvement Work that such Change would cause. Such cost ~~of the Change~~ shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 53% of the cost of such Change. Tenant shall approve or disapprove such change ~~order~~ order, if any, in writing within 2 days following Tenant’s 's receipt of such change order. If Tenant approves any such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the increase in the cost ~~to complete~~ attributable to such change order concurrently with delivery of Tenant’s approval of the change order, or (ii) defer Tenant’s payment of such increase until the date 10 days after delivery of invoices for same, provided however, that the increase in cost must in any event be paid in full prior to Tenant’s commencing occupancy of the Premises. If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order. Landlord shall have no obligation to interrupt or modify the Tenant Improvement Work pending Tenant’s 's approval of a change order, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work, in which event any related critical path delays because of such suspension shall constitute Tenant Delays hereunder. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s 's requested ~~Changes to previously approved Non-Standard Improvements~~Changes, ~~unless Landlord determines, in its sole and absolute discretion,~~ provided that such consent may be withheld in all events if the requested Change ~~to the Non-Standard Improvements~~ (i) is of a lesser quality than the ~~Non-Standard~~ Tenant Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) would delay construction of the Tenant Improvements and Tenant declines to accept such delay in writing as a Tenant Delay, (v) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (vvi) would have an adverse aesthetic impact to the Premises or would cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. Notwithstanding any provision in the Lease to the contrary, and not by way of limitation of any other rights or remedies of Landlord, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within the time period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s 's receipt thereof), requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “"Tenant Delay”"), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date of this Lease shall be deemed to have occurred for all purposes, including without limitation Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver the Premises to Tenant but for the collective Tenant Delays. Should Landlord determine that the Commencement Date should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 days thereafter, of Tenant’s 's election to contest same by arbitration pursuant to the provisions of Section ~~Ill~~ III below. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. All Standard Tenant Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given either prior to or following the expiration or termination of the Lease, require Tenant either (i) to remove all or any of the Non-Standard Improvements, any “Alternates” in the Plan which are elected by Tenant, and all or any of the Tenant Improvements approved by way of a Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace any such Non-Standard Improvements with the applicable Building Standard Improvements, or (ii) to reimburse Landlord for the reasonable cost of such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. F. Landlord shall permit Tenant and its agents to enter the Premises not sooner than 3 weeks prior to the Commencement Date of the Lease in order that Tenant may install fixtures, furniture and cabling through Tenant’s own contractors prior to the Commencement Date. ~~In addition, Tenant may utilize the loading dock and parking area during such time.~~ Any such work shall be subject to Landlord’s 's prior written approval, and shall be performed in a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter the Premises prior to the Commencement Date is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party contractors, including without limitation the maintenance by Tenant and its contractors and subcontractors of workers’ ' compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. ~~Not by way of limitation,~~ Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s 's risk. In no event shall the failure of Tenant’s 's contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. G. Tenant hereby designates ~~Xxxxxx Xxxxxxxx~~ Xxxxx Xxxxxxx (Tenant’s Construction Representative”), Telephone No. (~~000~~____) ~~000-0000~~_________, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.

Appears in 1 contract

Samples: Lease (Patient Safety Technologies, Inc)

ARCHITECTURAL AND CONSTRUCTION PROCEDURES. A. Tenant and Landlord have approved, or shall ~~pay up~~ approve within the time period set forth below, both (i) a detailed space plan for Suite 100, prepared by Landlord's architect, which includes interior partitions, ceilings. interior finishes, interior office doors, suite entrance, floor coverings, window coverings, lighting, electrical and telephone outlets, plumbing connections, heavy floor loads and other special requirements ("Preliminary Plan"), and (ii) an estimate, prepared by Landlord's contractor, of the cost for which Landlord will complete or cause to be completed the Tenant Improvements ("Preliminary Cost Estimate"). Tenant shall approve or disapprove each of the Preliminary Plan and the Preliminary Cost Estimate by signing copies of the appropriate instrument and delivering same to Landlord within five (5) working days of its receipt by Tenant. If Tenant disapproves any matter, Tenant shall specify in detail the reasons for disapproval and Landlord shad attempt to modify the Preliminary Plan and the Preliminary Cost Estimate to incorporate Tenants suggested revisions in a mutually satisfactory manner. In no event, however, shad Tenant have the right to make additions to the Preliminary Plan as part of its approval thereof which would increase the improvements to be paid for by "Landlord's Contribution" (as hereinafter defined), it being understood and agreed that the Preliminary Plan submitted by Landlord's architect is intended to include all Improvements desired by Tenant using Landlord's "Standards" (as hereinafter defined), whether or not the full amount of Landlord's Contribution would be required to complete construction of the ~~“Landlord’s Contribution”~~ improvements as shown in the Preliminary Plan. In all events, however, Tenant shall approve in all respects a Preliminary Plan and Preliminary Cost Estimate not later than August 2, 2000 ("Plan Approval Date"), it being understood that Tenant's failure to do so shad constitute a "Tenant Delay" for purposes of this Lease. B. On or before the Plan Approval Date, Tenant shall provide in writing to Landlord or Landlords architect all specifications and Information requested by Landlord for the preparation of final construction documents and costing, including without limitation Tenant's final selection of wall and floor finishes, complete specifications and locations (including load and HVAC requirements) of Tenant's equipment, and details of all "Non-Standard Improvements" (as defined below) ~~towards~~ to be Installed in Suite 100 (collectively, "Programming Information"). Tenants failure to provide the ~~cost of the Tenant Improvement Work. Any additional cost of the Tenant Improvement Work, including additional costs resulting from “Changes” (as hereinafter defined) requested~~ Programming Information by ~~Tenant, shall be borne solely by Tenant and paid to Landlord as hereinafter provided. Unless otherwise specified in~~ the Plan ~~or Cost Estimate, all materials, specifications and finishes utilized in constructing~~ Approval Date shall constitute a Tenant Delay for purposes of this Lease. Tenant understands that final construction documents for the Tenant Improvements shall be ~~Landlord’s~~ predicated on the Programming Information, and accordingly that such Information must be accurate and complete. C. The Tenant Improvements shall incorporate Landlords building standard ~~tenant improvements,~~ materials and specifications ("Standards"). No deviations from the Standards may be required by Tenant with respect to doors and frames, finish hardware, entry graphics, the ceiling system, fight fixtures and switches, mechanical systems, life and safety systems, and/or window coverings; provided that Landlord may, in its sole discretion, authorize in writing one or more of such deviations, in which event Tenant shall pay to Landlord, prior to the commencement of construction and in addition to sums otherwise due hereunder from Tenant, an amount equal to the cost, as reasonably estimated by Landlord, of replacing the deviating item(s) with the applicable Standard Item(s) upon the expiration or termination of this Lease. Ad other non-standard items ("Nonstandard Improvements") shall be subject to the reasonable prior approval of Landlord. Landlord shall in no event be required to approve any Non-Standard Improvement if Landlord determines that such improvement (i) is of a lesser quality than the corresponding Standard, (ii) fails to conform to applicable governmental requirements, (iii) requires budding services beyond the level normally provided to other tenants, (v) would delay construction of the Tenant Improvements beyond the Estimated Commencement Date for Suite 100 and Tenant declines to accept such delay in writing as a Tenant Delay, or (v) would have an adverse aesthetic impact, from the exterior of Suite 100. D. Upon Tenant's approval of the Preliminary Plan and Preliminary Cost Estimate and delivery of the complete Programming Information, Landlord's architect and engineers shall prepare and deliver to Tenant working drawings and specifications ("Working Drawings and Specifications"), and Landlord's contractor shall prepare a final construction cost estimate ("Final Cost Estimate') for the ~~Project as set forth~~ Tenant Improvements in Schedule I attached hereto (“Standard Improvements”). Should Landlord submit any additional plans, equipment specification sheets, or other matters to Tenant for approval or completion in connection conformity with the ~~Tenant Improvement Work,~~ Working Drawings and Specifications. Tenant shall ~~respond in writing, as appropriate, within 5~~ have five (5) working days ~~unless a shorter period is provided herein~~from the receipt thereof to approve or disapprove the Working Drawings and Specifications and the Final Cost Estimate. Tenant shall not unreasonably withhold or delay its ~~approval of any matter~~approval, and any disapproval or requested modification shall be limited to items not ~~previously~~ contained in the approved Preliminary Plan or Preliminary Cost Estimate. In no event shall Tenant disapprove the Final Cost Estimate if it does not exceed the approved Preliminary Cost Estimate. Should Tenant disapprove the Working Drawings and Specifications and the Final Cost Estimate, such disapproval shall be accompanied by a detailed list of revisions. Any revision requested by Tenant and accepted by Landlord shall be incorporated into a revised set of Working Drawings and Specifications and Final Cost Estimate, and Tenant shall approve same in writing within rive (5) business days of receipt without further revision. Tenant's failure to comply in a timely manner with any of the requirements of this paragraph shall constitute a Tenant Delay. Without limiting the rights of Landlord for Tenant Delays as set forth herein, in the event Tenant has not approved both the Working Drawings and Specifications and the Final Cost Estimate within sixty (60) days following the date of this Amendment, then Landlord may, at its option, elect to terminate this Lease by written notice to Tenant in the ~~Plan~~ event Landlord elects to effect such a termination, Tenant shall, within ten (10) days following demand by Landlord, pay to Landlord any costs incurred by Landlord in connection with the preparation or ~~otherwise~~review of plans, construction estimates, price quotations, drawings or specifications under this Work Letter and for all costs incurred in the preparation and execution of this Amendment. Including any leasing commissions. B. E. In the event that Tenant requests in writing a revision to in the ~~Plan~~ approved Working Drawings and Specifications (“"Change”")~~, and Landlord so approves such Change as provided in Section 1.C below~~, Landlord shall advise Tenant by written change order as soon as is practical of any increase in the ~~cost to complete the~~ Completion Cost and/or any Tenant ~~Improvement Work that~~ Delay such Change would cause~~. Such cost of the Change shall include an administrative/supervision fee to be paid to Landlord or to Landlord’s management agent in the amount of 5% of the cost of such Change~~. Tenant shall approve or disapprove such change order in writing within 2 two (2) working days following its receipt from Landlord. Tenant~~’s receipt~~ 's approval of ~~such change order. If Tenant approves~~ a Change shall be accompanied by Tenant's payment of any ~~such change order, Landlord, at its election, may either (i) require as a condition to the effectiveness of such change order that Tenant pay the~~ resulting increase in the ~~cost~~ Completion Cost Landlord shall have the right to ~~complete attributable to such change order concurrently with delivery of~~ decline Tenant~~’s approval~~ 's request for a Change for any of the ~~change order, or (ii) defer Tenant’s payment~~ reasons set forth in Article I.C. above for Landlord's disapproval of ~~such increase until the date 10 days after delivery of invoices for same~~a Non-Standard Improvement. ~~If Tenant disapproves any such change order, Tenant shall nonetheless be responsible for the reasonable architectural and/or planning fees incurred in preparing such change order.~~ It is understood that Landlord shall have no obligation to interrupt or modify the Tenant Improvement ~~Work~~ work pending Tenant’s 's approval of a change order~~, but if Tenant fails to timely approve a change order, Landlord may (but shall not be required to) suspend the applicable Tenant Improvement Work~~. C. Landlord may consent in writing, in its sole and absolute discretion, to Tenant’s request for a Change, including any modification of a Standard Improvement in the Plan to a non- standard improvement (“Non-Standard Improvement”), if requested in writing by Tenant. In addition, Landlord agrees that it shall not unreasonably withhold its consent to Tenant’s requested Changes to previously approved Non-Standard Improvements, unless Landlord determines, in its sole and absolute discretion, that such requested Change to the Non-Standard Improvements (i) is of a lesser quality than the Non-Standard Improvements previously approved by Landlord, (ii) fails to conform to applicable governmental requirements, (iii) would result in the Premises requiring building services beyond the level normally provided to other tenants, (iv) interferes in any manner with the proper functioning of, or Landlord’s access to, any mechanical, electrical, plumbing or HVAC systems, facilities or equipment in or serving the Building, or (v) would have an adverse aesthetic impact to the Premises or cause additional expenses to Landlord in reletting the Premises. The cost to complete any Non-Standard Improvements shall be borne by Tenant. All Standard Improvements and Non-Standard Improvements shall become the property of Landlord and shall be surrendered with the Premises at the end of the Term; except that Landlord may, by notice to Tenant given at the time of Landlord’s approval of a Change, require Tenant either to remove all or any of the Non-Standard Improvements and all or any of the Tenant Improvements approved by way of such Change requested by Tenant, to repair any damage to the Premises or the Common Area arising from such removal, and to replace such Non-Standard Improvements with the applicable Standard Improvement, or to reimburse Landlord for the reasonable cost of any such removal, repair and replacement upon demand. Any such removals, repairs and replacements by Tenant shall be completed by the Expiration Date, or sooner termination of this Lease, or within 10 days following notice to Tenant if such notice is given following the Expiration Date or sooner termination. D. F. Notwithstanding any provision in the Lease to the contrary~~, and not by way of limitation of any other rights or remedies of Landlord~~, if Tenant fails to comply with any of the time periods specified in this Work Letter, fails otherwise to approve or reasonably disapprove any submittal within five (5) working days, fails to approve in writing both the Preliminary Plan and Preliminary Cost Estimate for the Tenant Improvements by the Plan Approval Date, fails to provide all of the Programming Information requested by Landlord by the Plan Approval Date, fails to approve in writing the Working Drawings and Specifications and the Final Cost Estimate within the time ~~period specified herein for such response (or if no time period is so specified, within 5 days following Tenant’s receipt thereof)~~provided herein, requests any Changes, furnishes inaccurate or erroneous specifications or other information, or otherwise delays in any manner the completion of the Tenant Improvements (including without limitation by specifying materials that are not readily available) or the issuance of an occupancy certificate (any of the foregoing being referred to in this Lease as a “"Tenant Delay”"), then Tenant shall bear any resulting additional construction cost or other expenses, and the Commencement Date ~~of this Lease~~ for Suite 100 shall be deemed to have occurred for ~~all~~ off purposes, including ~~without limitation~~ Tenant’s 's obligation to pay rent, as of the date Landlord reasonably determines that it would have been able to deliver ~~the Premises~~ Suite 100 to Tenant but for the collective Tenant Delays. In no event, however, shall such date be earlier than the Estimated Commencement Date for Suite 100 set forth in the Basic Lease Provisions. Should Landlord determine that the Commencement Date for Suite 100 should be advanced in accordance with the foregoing, it shall so notify Tenant in writing. Landlord’s 's determination shall be conclusive unless Tenant notifies Landlord in writing, within 5 five (5) working days thereafter, of Tenant’s 's election to contest same by arbitration ~~pursuant to the provisions of Section Ill below~~with JAMS/ENDISPUTE in Orange County, California. Pending the outcome of such arbitration proceedings, Tenant shall make timely payment of all rent due under this Lease based upon the Commencement Date set forth in the aforesaid notice from Landlord. E. G. Landlord shall permit Tenant and its agents to enter ~~the Premises 3 weeks~~ Suite 100 prior to the Commencement Date ~~of the Lease in~~ for Suite 100 In order that Tenant may ~~install fixtures~~perform any work to be performed by Tenant hereunder through its own contractors, ~~furniture and cabling through Tenant’s own contractors prior to the Commencement Date. In addition, Tenant may utilize the loading dock and parking area during such time. Any such work shall be~~ subject to Landlord’s 's prior written approval, and ~~shall be performed in~~ In a manner and upon terms and conditions and at times satisfactory to Landlord’s 's representative. The foregoing license to enter ~~the Premises~~ Suite 100 prior to the Commencement Date for Suite 100 is, however, conditioned upon Tenant’s 's contractors and their subcontractors and employees working in harmony and not interfering with the work being performed by ~~Landlord as determined by Landlord in~~ Landlord~~’s sole and absolute discretion~~. If at any time that entry shall cause disharmony or interfere with the work being performed by ~~Landlord as defined by Landlord in~~ Landlord~~’s sole and absolute discretion~~, this license may be withdrawn by Landlord upon 24 twenty-four (24) hours written notice to Tenant. That license is further conditioned upon the compliance by Tenant’s 's contractors with all requirements imposed by Landlord on third party ~~contractors, including without limitation the maintenance by Tenant and its~~ contractors and subcontractors of workers’ compensation and public liability and property damage insurance in amounts and with companies and on forms satisfactory to Landlord, with certificates of such insurance being furnished to Landlord prior to proceeding with any such entry. The entry shall be deemed to be under all of the provisions of the Lease except as to the covenants to pay rent. Not by way of limitation, Landlord shall not be liable in any way for any personal injury, and/or loss or damage of property which may occur in connection with such entry by Tenant or in connection with such work being performed by Tenant, the same being solely at Tenant’s risk. In no event shall the failure of Tenant’s contractors to complete any work in the Premises extend the Commencement Date of this Lease. F. Tenant hereby designates Xxxxxx Xxxxxxxx (Tenant’s Construction Representative”), Telephone No. (000) 000-0000, as its representative, agent and attorney-in-fact for all matters related to the Tenant Improvement Work, including but not by way of limitation, for purposes of receiving notices, approving submittals and issuing requests for Changes, and Landlord shall be entitled to rely upon authorizations and directives of such person(s) as if given directly by Tenant. The foregoing authorization is intended to provide assurance to Landlord that it may rely upon the directives and decision making of the Tenant’s Construction Representative with respect to the Tenant Improvement Work and is not intended to limit or reduce Landlord’s right to reasonably rely upon any decisions or directives given by other officers or representatives of Tenant. Tenant may amend the designation of its Tenant’s Construction Representative(s) at any time upon delivery of written notice to Landlord.subcontractors,

Appears in 1 contract

Samples: Industrial Lease (Sensar Corp /Nv/)

Common use of ARCHITECTURAL AND CONSTRUCTION PROCEDURES Clause in Contracts