Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10: (a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements. (b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion). (c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws. (d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.
Appears in 7 contracts
Samples: Deed of Lease, Deed of Lease, Deed of Lease
Capital Improvements. From and after Final CompletionDuring the term of this Agreement, Tenant the Refining Entity shall not replace or materially alter the Project, or any part thereof (except as provided be entitled to designate Capital Improvements to be made to the contrary Pipelines and the Tankage. The following provisions shall set forth the procedures pursuant to which Capital Improvements designated by the Refining Entity may be constructed:
(i) For any Capital Improvement designated by the Refining Entity, the Refining Entity shall submit a written proposal, including all specifications then available to it, for the proposed Capital Improvement to the Pipelines and/or the Tankage, as the case may be.
(ii) The Logistics Entity will review such proposal to determine, in its sole discretion, whether it will consent to proceed with respect the proposed Capital Improvement.
(iii) Should the Logistics Entity determine to Fixtures proceed and construct or cause to be constructed the approved Capital Improvement, the Logistics Entity will obtain bids from two or more general contractors reasonably acceptable to the Refining Entity for the construction of the Capital Improvement. Based upon the bids, the Logistics Entity will notify the Refining Entity of the Logistics Entity’s estimate of the total cost necessary to construct such Capital Improvement (which amount shall include the costs of capital and any other costs necessary to place such Capital Improvement in Article 13service) (“Estimated Expansion Capital Expenditure”). Within 30 days of such notice, the Refining Entity will notify the Logistics Entity whether or not the Refining Entity agrees to such Estimated Expansion Capital Expenditure. In the event the Refining Entity does not agree with such Estimated Expansion Capital Expenditure, the Parties shall work together in good faith to reach agreement on the Estimated Expansion Capital Expenditure (the agreed amount is referred to as the “Expansion Capital Expenditure”); provided that, in the event the Parties do not reach such agreement within 60 days of the notice provided under the second sentence of this Section 2(l)(iii), the Refining Entity shall be entitled to proceed with the construction of the Capital Improvement in accordance with Section 2(l)(v) below.
(iv) Prior to beginning any construction on the Capital Improvement, (1) the Logistics Entity shall have received all necessary regulatory approvals, (2) the Logistics Entity and the Refining Entity shall have agreed on (A) an additional monthly payment amount to be paid by the Refining Entity to the Logistics Entity (the “Monthly Expansion Capital Amount”) which amount (x) shall be payable over a mutually agreed to term not to exceed the then remaining balance of the Initial Term (or make the then current Renewal Term) plus any addition theretoRenewal Term to which the Refining Entity is then committed or shall then commit (the “Capital Amortization Period”), whether voluntarily and (y) shall be sufficient to provide the Logistics Entity the equivalent of a rate of return equal to the Prime Rate plus an additional rate of return to be agreed to by the Parties over the Capital Amortization Period on the Expansion Capital Expenditure after taking into account the increased cash flows to the Logistics Entity reasonably anticipated to be received by the Logistics Entity from the Refining Entity (or from a third party pursuant to a direct contractual commitment to the Logistics Entity) in connection with repairs required by this Lease such Capital Improvement, or (collectivelyB) another adjustment to the Throughput Fees or the Storage Fee, “as applicable, as the Parties may agree and (3) the Parties shall have agreed on any adjustment to the Minimum Throughput Commitment, the Minimum Throughput Capacity or the Minimum Storage Capacity, as the case may be. The Monthly Expansion Capital Improvements”), unless Tenant shall comply with the following requirements andAmount, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities billed and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to monthly following the commencement of operations of the proposed Capital Improvements Improvement and the Refining Entity’s obligation to pay the Monthly Expansion Capital Amount shall survive the termination of this Agreement (collectively, “Improvement Approvals”other than a termination in connection with a breach of this Agreement by the Logistics Entity or a Force Majeure event affecting the ability of the Logistics Entity to provide services under this Agreement). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity connection with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement pursuant to this Section 2(l)(iv), the Refining Entity shall be commenced until Tenant entitled to participate in all stages of planning, scheduling, implementing, and oversight of the construction. The Refining Entity shall also be entitled to audit all expenditures incurred in connection with the Capital Improvement and the Logistics Entity shall provide all invoices and other documentation reasonably requested by the Refining Entity for this purpose.
(v) If for any reason the Capital Improvement shall not be constructed pursuant to Section 2(l)(iv) above, and such Capital Improvement is in accordance with applicable required engineering and regulatory standards, and could not reasonably be expected to have delivered a material adverse impact on the operations or efficiency of the Pipelines or the Tankage or result in any material additional unreimbursed costs to the FCRHA certificates of insurance Logistics Entity, then the Refining Entity may proceed with the construction and copies financing of the declaration page(sCapital Improvement and, upon completion of construction, the Refining Entity shall be the owner and operator of such Capital Improvement. The Parties agree that any Capital Improvement constructed by the Refining Entity pursuant to this Section 2(l)(v) for shall be treated as the insurance required by Exhibit D. Such insurance policies separate property of Refining Entity. The Logistics Entity shall comply cooperate with the terms Refining Entity in ensuring that the Capital Improvement shall operate as intended, including by operating and maintaining all necessary connections to the Pipelines and the Tankage, subject to the Refining Entity’s reimbursing the Logistics Entity on a monthly basis for any incremental expenses arising from operating or maintaining such connections. The Refining Entity shall indemnify the Logistics Entity for any Liabilities resulting from the construction, ownership and operation by the Refining Entity of any Capital Improvement constructed by the Refining Entity pursuant to this Section 7.02 above2(l)(v).
(vi) Upon completion of the construction of such Capital Improvement, the Logistics Entity or the Refining Entity, as applicable, will own such Capital Improvement, and will operate and maintain such Capital Improvement in accordance with Applicable Law and recognized industry standards.
Appears in 5 contracts
Samples: Pipelines and Tankage Agreement, Pipelines and Tankage Agreement, Pipelines and Tankage Agreement (Delek US Holdings, Inc.)
Capital Improvements. From and after Final Completion, Tenant shall will not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall will comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Capital Improvements shall will be undertaken, as applicable, until Tenant shall will have procured from all Governmental Authorities and paid for all permits, consents, certificates certificates, and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA shall Landlord will not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHALandlord. True copies of all such Improvement Approvals shall will be delivered by Tenant to the FCRHA Landlord prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall will have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall will at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHALandlord, in its sole but reasonable discretion).
(c) All Capital Improvements shall will be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b)11.10, in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHALandlord, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement shall will be commenced until Tenant shall will have delivered to the FCRHA certificates Landlord certificate of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Section 7.05. Such insurance policies shall will comply with the terms of Section 7.02 above.Section
Appears in 4 contracts
Samples: Deed of Lease, Deed of Lease, Deed of Lease
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No 2.4.1 Capital Improvements shall be undertakenconstructed or procured and managed by Operator and will be subject to Operator’s design, engineering, operating and HSE standards, and, if an expansion area is required, subject to such Capital Improvement being able to be physically accommodated at the Site or on land in the vicinity of the Site that is available for purchase or lease. If the costs of a Capital Improvement are solely for the account of Infineum and the use of a separate Contractor will not adversely impact other work to be contemporaneously performed by or through Operator, in Operator’s reasonable judgment, then Infineum shall have the right to do the procurement for such Capital Improvement instead of Operator, provided that any contractors engaged by Infineum shall be subject to the reasonable approval of Operator.
2.4.2 Each Party shall have the right to propose any Capital Improvement to the Shared Facilities. The proposing Party shall present to the non-proposing Party relevant information, data and documentation with respect to such Capital Improvement. Operator shall provide each Owner with a general description of the proposed Capital Improvement and with a detailed description of the estimated costs of the proposed Capital Improvement and of the expected impact of the proposed Capital Improvement on volume, quality, Fixed and Variable Costs and reliability of production at the Shared Facilities in question, which detailed description shall provide the level of detail corresponding to the level of detail of information used by such Owner in preparation of appropriation requests for its internal capital expenditure approval procedure. Costs incurred by Operator in providing information pursuant to this Article 2.4.2 shall be considered costs of the proposed Capital Improvement and shall be allocated in accordance with Article 2.4.4. However, Shell, as applicableOwner and as Operator, until Tenant may elect not to disclose any proprietary technology or business aspects of the Capital Improvement to Infineum. Both Owners shall be deemed to have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed approved Capital Improvements which are required to be obtained prior mandated by regulatory authorities or are reasonably deemed necessary by Operator for the protection or enhancement of HSE to the commencement of same standards as are practiced at the proposed Capital Improvements (collectivelySite as a whole. However, “Improvement Approvals”). The FCRHA shall not unreasonably refuse with respect to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, the Operator shall be required to have timely, full and fair advance consultation with the Owners and to take their comments into due consideration. All other Capital Improvements to Facilities will be submitted to both Owners for approval. Each Owner shall have a value at least equal to the value sixty (60) days from receipt of the Premises immediately before construction information on the Capital Improvement proposal to approve such proposal, failing which such Owner shall be deemed to have elected not to approve. In case one Owner does not approve a Capital Improvement proposal, the other Owner may nevertheless approve such Capital Improvement and cause Operator to procure or construct it, provided that the Capital Improvement shall have no material adverse effect on the operations of the non-approving Owner, unless the approving Owner fully compensates the non-approving Owner for any decrease in the quantity, quality, reliability or competitiveness of the other Owner’s Product as a result of such Capital ImprovementsImprovement. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Minor Capital Improvements shall be made with reasonable diligence and continuity (subject deemed to Unavoidable Delays) and in a good and workmanlike manner and in compliance with be approved by both Owners provided that the same are (i) all Improvement Approvals, within the discretionary Capital Expenditure authority of the plant manager of the Facilities and (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with within the plans and specifications line item allocation for such minor Capital Improvements as contained in the applicable Annual Plan & Budget.
2.4.3 At all times, either Party may propose to add, drop, postpone, bring forward or alter Capital Improvements by following the procedure described in Article 2.4.2.
2.4.4 Costs of a Capital Improvement to Shared Facilities approved by the FCRHAboth Owners, and (iii) all Applicable Laws.
(d) No construction costs of any studies and other project costs incurred with the support of both Owners for proposed Capital Improvements that are not implemented, shall be for the account of and paid by both Owners according to the anticipated use by each of them of such Capital Improvement, and appropriate adjustments, where necessary, will be made in the ownership interests and Capacity Rights of the Owners in the portion of the Shared Facilities being improved. For purposes of the immediately preceding sentences only, unless the Owners agree otherwise, if both Owners elect to participate in a Capital Improvement, the anticipated use by each of them of such Capital Improvement shall be commenced until Tenant deemed to be in accordance with their respective percentage ownership interests (not including Infineum’s leased interests), then existing in the Shared Facility to which the Capital Improvement relates. The cost of capital improvements properly allocable to Infineum’s leased interests shall have delivered be recovered under applicable provisions of the Lease Agreement. Costs of a Capital Improvement to Shared Facilities approved by only one Owner shall be for the account of and paid by such approving Owner. In such event, the non-approving Owner shall not be entitled to receive the benefits in costs savings, performance enhancement, capacity increase and/or reliability resulting from such Capital Improvement and, if necessary, appropriate adjustments shall be made to the FCRHA certificates Capacity Rights and/or ownership interests in the improved Shared Facilities and/or in the allocation of insurance and copies costs or by capital charges and/or to the curtailment procedures and/or in any other way, so that the non-approving Owner remains in the same position that it would have been in if such Capital Improvement had not been made.
2.4.5 The Owners will share time lost because of shutdowns required for any Capital Improvement (in excess of any scheduled shutdown included in the Annual Plan & Budget, if the implementation of the declaration page(sCapital Improvement coincides with any such scheduled shutdown) in proportion to their respective shares in the costs of such Capital Improvement, unless the Owners agree otherwise.
2.4.6 Unless the Owners agree otherwise, the Owners’ ownership interests in the Capital Improvement to a Shared Facility, including with respect to any land purchased for a Capital Improvement, and their Capacity Rights with respect to such Capital Improvement, shall be in direct proportion to their respective payments for such Capital Improvement pursuant to Article 2.4.4.
2.4.7 Any financial, fiscal or other benefits enjoyed by any Party in connection with any Capital Improvement to the insurance required by Exhibit D. Such insurance policies Shared Facilities shall comply be appropriately taken into consideration when establishing the costs of such Capital Improvement.
2.4.8 The participating Owners shall pay for any Capital Improvement according to a payment schedule agreed with the terms of Section 7.02 aboveOperator, which payment schedule is intended to be working capital neutral to Operator.
Appears in 3 contracts
Samples: Facility Sharing and Operating Agreement (Kraton Performance Polymers, Inc.), Facilities Sharing and Operating Agreement (Kraton Polymers LLC), Facilities Sharing and Operating Agreement (Kraton Polymers LLC)
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.1011.09:
(a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA Landlord shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHALandlord. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA Landlord prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHALandlord, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a11.09(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHALandlord, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA Landlord certificates of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.Section
Appears in 3 contracts
Samples: Ground Lease, Ground Lease, Ground Lease
Capital Improvements. From The Lessee shall, if and after Final Completionto the extent required of it under the Plant Agreements or Applicable Law, Tenant shall not replace or materially alter the Project, or any part thereof at its sole expense (except as provided in Section 8(f)), promptly, but subject to Section 8(a) hereof, participate in the making of any Capital Improvement to Unit 1. The Undivided Interest Percentage of the net proceeds of (x) any sale or other disposition of property removed from Unit 1 received (without deduction of any amount set off or deducted by any Person claiming a right against the Lessee to do so) by, or credited to the contrary account of, the Lessee in accordance with the Plant Agreements and (y) any insurance proceeds received (without deduction of any amount set off or deducted by any Person claiming a right against the Lessee to do so) for the account of the Lessor or the Lessee in respect to Fixtures of the loss or destruction of, or damage or casualty to, any such property shall be applied as provided in Article 13Section 9(g), (h) or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”i), unless Tenant as the case may be. The Undivided Interest Percentage in property at any time removed from Unit 1 shall comply remain the property of the Lessor, no matter where located, until such time as a Capital Improvement constituting a replacement of such property shall have been installed in Unit 1 or such removed property has been disposed of in accordance with the following requirements andPlant Agreements. Simultaneously with such disposition, if title to the Lessor’s undivided interest in the removed property shall vest in the Person receiving such property, free and clear of any and all claims or rights of the Lessor. Unless paragraph (iii) of Section 8(e) shall be applicable, with upon the additional requirements set forth incorporation of a Capital Improvement in Section 11.10:
Unit 1, without further act, (ax) No title to an undivided interest equal to the Undivided Interest Percentage in such Capital Improvement shall vest in the Lessor and (y) such undivided interest in such Capital Improvement shall become subject to this Facility Lease and be deemed to be part of the Undivided Interest for all purposes hereof to the same extent that the Lessor had a like undivided interest in the property originally incorporated or installed in Unit 1. The Lessee warrants and agrees that the Lessor’s interest in all Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities free and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies clear of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital ImprovementsLiens, except Permitted Liens.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.
Appears in 2 contracts
Samples: Facility Lease (Entergy New Orleans, LLC), Facility Lease (Entergy New Orleans, LLC)
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:11.10:
(a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA Landlord shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHALandlord. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA Landlord prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHALandlord, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHALandlord, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates Landlord certificate of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Section 7.05. Such insurance policies shall comply with the terms of Section 7.02 7.03 above.
Appears in 2 contracts
Samples: Deed of Lease, Comprehensive Agreement
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permitsPermits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA Landlord shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHALandlord. True copies of all all such Improvement Approvals shall be delivered by Tenant to the FCRHA Landlord prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHALandlord, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHALandlord, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates Landlord certificate of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.
Appears in 2 contracts
Samples: Deed of Lease, Deed of Lease
Capital Improvements. From and after Final CompletionDuring the term of this Agreement, Tenant DKTS shall not replace or materially alter the Project, or any part thereof (except as provided be entitled to designate Capital Improvements to be made to the contrary Terminal and the Tankage. The following provisions shall set forth the procedures pursuant to which Capital Improvements designated by DKTS may be constructed:
(i) For any Capital Improvement designated by DKTS, DKTS shall submit a written proposal, including all specifications then available to it, for the proposed Capital Improvement to the Terminal and/or the Tankage, as the case may be.
(ii) Logistics will review such proposal to determine, in its sole discretion, whether it will consent to proceed with respect the proposed Capital Improvement.
(iii) Should Logistics determine to Fixtures proceed and construct or cause to be constructed the approved Capital Improvement, Logistics will obtain bids from two or more general contractors reasonably acceptable to DKTS for the construction of the Capital Improvement. Based upon the bids, Logistics will notify DKTS of Logistics’ estimate of the total cost necessary to construct such Capital Improvement (the “Capital Expenditure Notice”) (which amount shall include the costs of capital and any other costs necessary to place such Capital Improvement in Article 13service) (“Estimated Expansion Capital Expenditure”). Within 30 days of the Capital Expenditure Notice, DKTS will notify Logistics whether or not DKTS agrees to such Estimated Expansion Capital Expenditure. In the event DKTS does not agree with such Estimated Expansion Capital Expenditure, the Parties shall work together in good faith to reach agreement on the Estimated Expansion Capital Expenditure (the agreed amount is referred to as the “Expansion Capital Expenditure”); provided that, in the event the Parties do not reach such agreement within 60 days of the Capital Expenditure Notice, DKTS shall be entitled to proceed with the construction of the Capital Improvement in accordance with Section 2(l)(v) below.
(iv) Prior to beginning any construction on the Capital Improvement, (1) Logistics shall have received all necessary regulatory approvals, (2) Logistics and DKTS shall have agreed on (A) an additional monthly payment amount to be paid by DKTS to Logistics (the “Monthly Expansion Capital Amount”) which amount (x) shall be payable over a mutually agreed upon term not to exceed the then remaining balance of the Initial Term (or the then current Renewal Term) plus any Renewal Term to which DKTS is then committed or shall then commit (the “Capital Amortization Period”), and (y) shall be sufficient to provide Logistics the equivalent of a rate of return equal to the Prime Rate plus an additional rate of return to be agreed to by the Parties over the Capital Amortization Period on the Expansion Capital Expenditure after taking into account the increased cash flows to Logistics reasonably anticipated to be received by Logistics from DKTS (or make any addition thereto, whether voluntarily or from a third party pursuant to a direct contractual commitment to Logistics) in connection with repairs required by this Lease such Capital Improvement, or (collectivelyB) another adjustment to the Throughput Fee or the Storage Fees, “as applicable, as the Parties may agree and (3) the Parties shall have agreed on any adjustment to the Minimum Throughput Commitment, the Minimum Throughput Capacity or the Minimum Storage Capacity, as the case may be. The Monthly Expansion Capital Improvements”), unless Tenant shall comply with the following requirements andAmount, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities billed and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to monthly following the commencement of operations of the proposed Capital Improvements Improvement and DKTS’s obligation to pay the Monthly Expansion Capital Amount shall survive the termination of this Agreement (collectively, “Improvement Approvals”other than a termination in connection with a breach of this Agreement by Logistics or a Force Majeure event affecting the ability of Logistics to provide services under this Agreement). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity connection with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement pursuant to this Section 2(l)(iv), DKTS shall be commenced until Tenant entitled to participate in all stages of planning, scheduling, implementing, and oversight of the construction. DKTS shall also be entitled to audit all expenditures incurred in connection with the Capital Improvement in accordance with Section 13(k). The Parties agree that any Capital Improvement constructed by Logistics pursuant to this Section 2(l) (iv) shall be treated as the separate property of Logistics.
(v) If for any reason the Capital Improvement shall not be constructed pursuant to Section 2(l)(iv) above, and such Capital Improvement is in accordance with applicable required engineering and regulatory standards, and the Parties agree that the Capital Improvement would not reasonably be expected to have delivered a material adverse impact on the operations or efficiency of the Terminal or the Tankage, taken as a whole, or result in any material additional unreimbursed costs to Logistics, then DKTS may proceed with the construction and financing of the Capital Improvement and, upon completion of construction, DKTS shall be the owner and operator of such Capital Improvement. The Parties agree that any Capital Improvement constructed by DKTS pursuant to this Section 2(l)(v) shall be treated as the separate property of DKTS. Logistics shall reasonably cooperate with DKTS in ensuring that the Capital Improvement shall operate as intended, including by operating and maintaining all necessary connections to the FCRHA certificates Terminal and the Tankage, subject to DKTS’s reimbursing Logistics on a monthly basis for any incremental expenses arising from operating or maintaining such connections as determined by Logistics in good faith. DKTS shall defend, indemnify and hold harmless the Logistics Indemnitees from and against any Liabilities resulting from the construction, ownership and operation by DKTS of insurance and copies any Capital Improvement constructed by DKTS pursuant to this Section 2(l)(v).
(vi) Upon completion of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply construction of such Capital Improvement, Logistics or DKTS, as applicable, will own such Capital Improvement, and will operate and maintain such Capital Improvement in accordance with the terms of Section 7.02 aboveApplicable Law and recognized industry standards.
Appears in 1 contract
Samples: Throughput and Tankage Agreement (Delek Logistics Partners, LP)
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Licensee shall demolish any existing structures and construct or cause to be constructed the Capital Improvements as defined in Section 2.1(c). Such Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for include the proposed items listed in the Schedule of Capital Improvements which are required attached hereto as Exhibit C. Licensee shall perform and complete all such Capital Improvements in accordance with designs and plans approved by Parks and other government agencies having jurisdiction. Notwithstanding the foregoing, Licensee is permitted to be obtained prior to make additional Capital Improvements, provided, however, Licensee first obtains the commencement express written consent of the proposed Commissioner, which shall not be unreasonably withheld. All Additional Fixed Equipment and Expendable Equipment applied toward the Capital Improvements (collectivelyrequired in this Article shall become and remain the property of Parks upon installation, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvementsat Parks’ option.
(b) The Premises after completion of such Capital ImprovementsLicensee must provide Americans with Disabilities Act (“ADA”) accessibility as required by prevailing code throughout the Licensed Premises, including, but not limited to, installing ramps, as needed, and providing ADA signage. Licensee shall have a value at least equal comply with all City, State, and Federal requirements to provide safe and accessible recreational opportunities for everyone, including persons with disabilities. Licensee is encouraged to exceed accessibility requirements whenever possible, and not simply provide the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion)minimum level required.
(c) All Capital Improvements shall be made with reasonable diligence To guarantee prompt payment of moneys due to a contractor or his or her subcontractors and continuity (subject to Unavoidable Delays) all persons furnishing labor and materials to the contractor or his or her subcontractors in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction prosecution of any Capital Improvement Project with an estimated cost exceeding Two Hundred Fifty Thousand Dollars ($250,000), Licensee shall post a payment bond or other form of undertaking approved by Parks in the amount of one hundred percent (100%) of the cost of such Capital Improvement Project before commencing such work. Such bond or other undertaking shall be commenced until Tenant in a form acceptable to Parks. For purposes of this provision, a “Capital Improvement Project” shall have delivered mean a set of Capital Improvements that are reasonably related in time and purpose as determined by Parks in its sole discretion. In the event that Licensee does not post or cause to be posted a payment bond as required hereunder, the FCRHA certificates following undertaking will satisfy the requirements of insurance this Section 6.1(c): (i) Licensee guarantees payment in accordance with the provisions of Exhibit F, attached hereto and copies made a part hereof; and (ii) Licensee causes payment bonds to be posted by all contractors of Licensee and their subcontractors guaranteeing prompt payment of monies due to all person furnishing labor or materials to such contractors or subcontractors in the prosecution of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 aboveCapital Improvement Project.
Appears in 1 contract
Samples: License Agreement
Capital Improvements. From and after Final Completion, Tenant Capital Improvements on the Monongahela shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required be governed by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10provisions:
(a) No Capital Improvements From time to time, NSR or CSXT may propose to each other construction of capital improvement projects ("Project"). Each Project shall be undertakenreviewed promptly by the other party. If approved by both parties, NSR and CSXT shall be responsible for an equal share of the budgeted initial funding, as applicableapproved in the Capital Expenditure Budget, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required approved Project. A final accounting will be made to be obtained prior adjust the initial budgeted funding to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate actual project cost as specified in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital ImprovementsAccounting Plan.
(b) The Premises after completion If a proposed project is not approved, and the proposed Project would be a Nonseverable Improvement of the Monongahela which may be used in the normal course of business by NSR or CSXT, then the following procedure shall occur:
(i) At the written request of either NSR or CSXT delivered to the other, each party shall, within 45 days of the delivery of such Capital Improvementsrequest, shall have submit to an arbitrator in accordance with Section 16 a value at least equal written proposal with respect to a Nonseverable Improvement Project which was not agreed upon by the value parties (1) describing any changes from the initial request which such party proposes be made to such Project and specifying a schedule, budget and allocations between NSR and CSXT of the Premises immediately before construction capital costs of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor Nonseverable Improvement or (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion)2) proposing that it not be made.
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) The arbitrator receiving the proposals referred to in Section 11(b)(i) (A) shall consider (1) the degree, if required pursuant any, to Section 11.10(a) which the construction, operation and use of such Nonseverable Improvement would impair or (b), in substantial accordance interfere with the plans and specifications for such Capital Improvements as approved by use of the FCRHAMonongahela, conflict with any pending capital improvements, or be necessary or unnecessary to the operations of a particular party, and (iii2) all Applicable Laws.
the budget and allocations between NSR and CSXT of the capital costs of such Nonseverable Improvement as proposed by NSR and CSXT and (dB) No construction shall determine within 45 days of any Capital such receipt which of such proposals shall be accepted, or that such Nonseverable Improvement shall not be commenced until Tenant made. The arbitrator's decision shall have delivered be binding and enforceable upon NSR to fund and cause the FCRHA certificates of insurance Nonseverable Improvement to be made in accordance with such decision and copies of upon CSXT to fund such Nonseverable Improvement in accordance with such decision, unless the declaration page(s) for the insurance required by Exhibit D. Such insurance policies decision is that such Nonseverable Improvement shall comply with the terms of Section 7.02 abovenot be made.
Appears in 1 contract
Capital Improvements. From and after Final CompletionDuring the term of this Agreement, Tenant DKTS shall not replace or materially alter the Project, or any part thereof (except as provided be entitled to designate Capital Improvements to be made to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant Terminal and the Pipeline. The following provisions shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10the procedures pursuant to which Capital Improvements designated by DKTS may be constructed:
(a) No For any Capital Improvements Improvement designated by DKTS, DKTS shall be undertakensubmit a written proposal, as applicableincluding all specifications then available to it, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior Improvement to the commencement of Terminal and/or the proposed Capital Improvements (collectivelyPipeline, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in as the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvementscase may be.
(b) The Premises after completion of Delek-Big Xxxxx will review such Capital Improvements, shall have a value at least equal proposal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHAdetermine, in its sole but reasonable discretion), whether it will consent to proceed with the proposed Capital Improvement.
(c) All Should Delek-Big Xxxxx determine to proceed and construct or cause to be constructed the approved Capital Improvements Improvement, Delek-Big Xxxxx will obtain bids from two or more general contractors reasonably acceptable to DKTS for the construction of the Capital Improvement. Based upon the bids, Delek-Big Xxxxx will notify DKTS of Delek-Big Sandy’s estimate of the total cost necessary to construct such Capital Improvement (which amount shall include the costs of capital and any other costs necessary to place such Capital Improvement in service) (“Estimated Expansion Capital Expenditure”). Within 30 days of such notice, DKTS will notify Delek-Big Xxxxx whether or not DKTS agrees to such Estimated Expansion Capital Expenditure. In the event DKTS does not agree with such Estimated Expansion Capital Expenditure, the Parties shall work together in good faith to reach agreement on the Estimated Expansion Capital Expenditure (the agreed amount is referred to as the “Expansion Capital Expenditure”); provided that, in the event the Parties do not reach such agreement within 60 days of the notice provided under the second sentence of this Section 8(c), DKTS shall be made entitled to proceed with reasonable diligence and continuity (subject to Unavoidable Delays) and the construction of the Capital Improvement in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iiiSection 8(e) all Applicable Lawsbelow.
(d) No Prior to beginning any construction on the Capital Improvement, (I) Delek-Big Xxxxx shall have received all necessary regulatory approvals, (2) Delek-Big Xxxxx and DKTS shall have agreed on (A) an additional monthly payment amount to be paid by DKTS to Delek-Big Xxxxx (the “Monthly Expansion Capital Amount”) which amount (x) shall be payable over a mutually agreed to term not to exceed the then remaining balance of the Initial Term (or the then current Renewal Term) plus any Renewal Term to which DKTS is then committed or shall then commit (the “Capital Amortization Period”), and (y) shall be sufficient to provide Delek-Big Xxxxx the equivalent of a rate of return equal to the Prime Rate plus an additional rate of return to be agreed to by the Parties over the Capital Amortization Period on the Expansion Capital Expenditure after taking into account the increased cash flows to Delek-Big Xxxxx reasonably anticipated to be received by Delek-Big Xxxxx from Refining (or from a third party pursuant to a direct contractual commitment to Delek-Big Xxxxx) in connection with such Capital Improvement, or (B) another adjustment to the Throughput Fees or the Storage Fees, as applicable, as the Parties may agree and (3) the Parties shall have agreed on any adjustment to the Minimum Pipeline Throughput Commitment, the Minimum Terminalling Throughput Capacity, the Minimum Pipeline Capacity, the Minimum Terminalling Capacity or the Minimum Storage Capacity, as the case may be. The Monthly Expansion Capital Amount, if applicable, shall be billed and paid monthly following the commencement of operations of the Capital Improvement and DKTS’ obligation to pay the Monthly Expansion Capital Amount shall survive the termination of this Agreement (other than a termination in connection with a breach of this Agreement by Delek-Big Xxxxx or a Force Majeure event affecting the ability of Delek-Big Xxxxx to provide services under this Agreement). In connection with the construction of any Capital Improvement pursuant to this Section 8(d), DKTS shall be commenced until Tenant entitled to participate in all stages of planning, scheduling, implementing, and oversight of the construction. DKTS shall also be entitled to audit all expenditures incurred in connection with the Capital Improvement and Delek-Big Xxxxx shall provide all invoices and other documentation reasonably requested by DKTS for this purpose.
(e) If for any reason the Capital Improvement shall not be constructed pursuant to Section 8(d) above, and such Capital Improvement is in accordance with applicable required engineering and regulatory standards, and could not reasonably be expected to have delivered a material adverse impact on the operations or efficiency of the Terminal or the Pipeline or result in any material additional unreimbursed costs to Delek-Big Xxxxx, then DKTS may proceed with the construction and financing of the Capital Improvement and, upon completion of construction, DKTS shall be the owner and operator of such Capital Improvement. The Parties agree that any Capital Improvement constructed by DKTS pursuant to this Section 8(e) shall be treated as the separate property of DKTS. Delek-Big Xxxxx shall cooperate with DKTS in ensuring that the Capital improvement shall operate as intended, including by operating and maintaining all necessary connections to the FCRHA certificates Terminal and the Pipeline, subject to DKTS’s reimbursing Delek-Big Xxxxx on a monthly basis for any incremental expenses arising from operating or maintaining such connections. DKTS shall indemnify Delek-Big Xxxxx for any Liabilities resulting from the construction, ownership and operation by DKTS of insurance and copies any Capital Improvement constructed by DKTS pursuant to this Section 8(e).
(f) Upon completion of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply construction of such Capital Improvement, Delek-Big Xxxxx or DKTS, as applicable, will own such Capital Improvement, and will operate and maintain such Capital Improvement in accordance with the terms of Section 7.02 aboveApplicable Law and recognized industry standards.
Appears in 1 contract
Capital Improvements. From Reasonably promptly following the date of this Agreement, AB shall obtain from a third party vendor an estimate (the “Bid Estimate”) of the amount of the capital expenditures required to be incurred by AB at each US AB Facility set forth on Exhibit B hereto to enable the Production of the CBA Brands and after Final Completion, Tenant shall not replace or materially alter related Specified Products hereunder at each such US AB Facility (the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”). AB shall provide to CBA the Bid Estimate together with any related supporting documentation provided by the applicable third party vendor, unless Tenant and AB shall comply with not engage such third party vendor to commence the following requirements andCapital Improvements without the prior written approval of the Bid Estimate by CBA (such approval not to be unreasonably withheld, if applicable, with the additional requirements set forth in Section 11.10:
conditioned or delayed); provided that (a) No in the event that CBA does not approve the Bid Estimate, AB and CBA shall discuss in good faith alternatives with respect to the Capital Improvements (which may include soliciting a Bid Estimate from an alternative third party vendor, which alternative Bid Estimate shall be subject to approval by CBA in accordance with this Section 2.3), (b) AB shall have no obligation to Produce any Specified Products hereunder that require the Capital Improvements for the Production thereof until such time as the parties shall have agreed on a Bid Estimate and the Capital Improvements shall be undertaken, as applicable, until Tenant have been fully implemented and (c) AB shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for no obligation to engage any third party vendor to conduct the proposed Capital Improvements which are required or to be obtained commence the implementation thereof prior to the commencement Effective Date. Promptly following the delivery by AB of a written invoice to CBA for the proposed Capital Improvements (collectivelywhich invoice shall include reasonable documentation supporting the incurrence of such expenses), “Improvement Approvals”). The FCRHA CBA shall not unreasonably refuse pay to join or otherwise unreasonably refuse to cooperate in AB the application for any actual capital expenditures incurred at each such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) US AB Facility with respect to the FCRHA. True copies Capital Improvements; provided that, CBA shall in no event be obligated to pay to AB an amount in excess of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement 110% of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as Bid Estimate approved by the FCRHA, and (iii) all Applicable LawsCBA.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.
Appears in 1 contract
Samples: Contract Brewing Agreement (Craft Brew Alliance, Inc.)
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided Lessor acknowledges that it has been advised by Lessee that Lessee intends to perform certain capital improvements to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease Facilities (collectively, “the "Capital Improvements”"). Lessee shall select the architects, unless Tenant engineers, contractors and subcontractors of its choice to complete the Capital Improvements, subject to the reasonable approval of Lessor. Prior to commencing construction of any Capital Improvements, Lessee shall comply with have (a) submitted complete plans and specifications prepared by such architects to Lessor for Lessor's review and approval at least twenty (20) days before the following requirements planned start of construction thereof, (b) obtained Lessor's written approval thereof and, if applicablerequired, with the additional requirements set forth in Section 11.10:
approval of any Facility Mortgagee (awhich Lessor shall use its prompt and best efforts to obtain), which approval shall not be unreasonably withheld, conditioned or delayed, and if no response has been received by Lessee within fifteen (15) No Capital Improvements days after submission of the plans and specifications for approval then such approval shall be undertaken, as applicable, until Tenant deemed to have been given. Lessee shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals be responsible for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain improvements in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such approved by Lessor, and shall promptly correct any failure with respect thereto. All alterations, improvements and additions shall be constructed in a first class, workmanlike manner, in compliance with all Insurance Requirements and Legal Requirements, be in keeping with the character of the Leased Properties and the area in which the Leased Property in question is located and be designed and constructed so that the value of the Leased Properties will not be diminished or and that the primary Intended Use of the Leased Properties will not be changed. All improvements, alterations and additions shall immediately become a part of the Leased Properties. Any Capital Improvements made by Lessee pursuant to this Paragraph 2, other than expenditures for additions (as approved defined in the definition of Qualified Capital Expenditures), the cost of which Capital Improvements are not paid for by Lessor as part of the FCRHAImprovement Allowance in accordance with Paragraph 3, below, shall be included as capital expenditures for purposes of inclusion in the capital expenditures budget for the Facilities and for measuring compliance with the obligations of Lessee set forth in Section 8.3 of the Lease. In connection with any alteration which involves the removal, demolition or disturbance of any asbestos-containing material, Lessee shall cause such removal, demolition or disturbance to be performed in accordance with, and (iii) shall carry out such asbestos monitoring and maintenance program with respect thereto as may be required by, all Applicable Laws.
(d) No applicable Legal Requirements. Anything herein or in the Lease to the contrary notwithstanding, in the event of any conflict or inconsistency between this Paragraph 2 and Section 10.1 of the Lease, the terms and provisions of this Paragraph 2 shall be deemed to control and govern the approval and construction of any the Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 aboveImprovements.
Appears in 1 contract
Samples: Consolidated Amended and Restated Master Lease (Advocat Inc)
Capital Improvements. From Commencing upon the first release of any Security Deposit and after Final Completion, Tenant shall not replace or materially alter Collateral pursuant to Section 11.3 (the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital ImprovementsCapEx Reserve Commencement Date”), unless Tenant, Pool 1 Tenant and Pool 2 Tenant shall comply with make, in the following requirements andaggregate, if applicableannual expenditures for capital improvements to the Facility, with the additional requirements set forth “Facilities” (as defined in Section 11.10:
the Pool 1 Lease) and the “Facilities” (aas defined in the Pool 2 Lease) No Capital Improvements shall be undertakenequal to one and three-fourths percent (1.75%) of the “Gross Revenues”, as calculated in the aggregate under this Lease, the Pool 1 Lease and the Pool 2 Lease (the “Aggregate Gross Revenues”), for the applicable “Lease Year” under this Lease, the Pool 1 Lease and/or the Pool 2 Lease, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for or the proposed Capital Improvements which are required to be obtained prior to applicable portion thereof in the commencement case of the proposed first “Lease Year” hereunder or thereunder in which this obligation commences (the “Required Tenant Capital Improvements (collectively, “Improvement ApprovalsExpenditures”). The FCRHA Concurrently with each payment of Additional Rent due on October 1, January 1, April 1 and July 1 of each Lease Year after the CapEx Reserve Commencement Date, Tenant shall not unreasonably refuse deliver to join or otherwise unreasonably refuse Landlord in a form mutually agreed upon by Landlord and Tenant, a certificate, certified by an officer of Tenant, setting forth the actual year-to-date expenditures for capital improvements to cooperate the Facility, the “Facilities” (as defined in the application Pool 1 Lease) and the “Facilities” (as defined in the Pool 2 Lease) made by Tenant, Pool 1 Tenant and Pool 2 Tenant as of the end of the applicable quarter. If such actual year-to-date expenditures for any capital improvements are less than one and three-fourths percent (1.75%) of year-to-date Aggregate Gross Revenues for such Improvement Approvals“Lease Year” under this Lease, the Pool 1 Lease and/or the Pool 2 Lease, as applicable, or such applicable portion thereof in the case of the first “Lease Year” hereunder or thereunder in which this obligation commences, Tenant, Pool 1 Tenant Pool 2 Tenant shall, in the aggregate, deposit with Landlord, Pool 1 Landlord and Pool 2 Landlord an amount equal to such deficiency, and such funds (the “CapEx Funds”) shall be impounded with Landlord, Pool 1 Landlord and Pool 2 Landlord, in the aggregate, in accordance with Section 5.10 of this Lease, the Pool 1 Lease and the Pool 2 Lease. Each and every capital improvement funded by Tenant, Pool 1 Tenant and Pool 2 Tenant in accordance with this Section 5.9 or with use of CapEx Funds, as provided such application is made without costunder Section 5.10 of this Lease, expense the Pool 1 Lease and the Pool 2 Lease, shall immediately become a part of the Premises, the “Premises” (as defined in the Pool 1 Lease) or liability the “Premises” (contingent as defined in the Pool 2 Lease), as the case may be, and shall belong to Landlord, Pool 1 Landlord or otherwise) Pool 2 Landlord, as the case may be, subject to the FCRHAterms and conditions of this Lease, the Pool 1 Lease or the Pool 2 Lease, as applicable. True copies Notwithstanding the foregoing, if, at any time after the CapEx Reserve Commencement Date, the Security Deposit and Collateral is restored to one hundred percent (100%) of all such Improvement Approvals its original requirement under this Lease, the Pool 1 Lease and the Pool 2 Lease in accordance with the provisions of Section 11.3 under this Lease, the Pool 1 Lease and the Pool 2 Lease, the obligations under Section 5.9 of this Lease, the Pool 1 Lease and the Pool 2 Lease shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In additionsuspended until any Security Deposit and Collateral is thereafter released under this Lease, the Project shall at all times remain Pool 1 Lease and/or the Pool 2 Lease in substantial conformity accordance with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion)such Section 11.3.
(c) All Capital Improvements shall be made with reasonable diligence The following is hereby added to and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to incorporated into the Original Lease as Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.5.10 thereof:
Appears in 1 contract
Samples: Lease and Security Agreement (American Retirement Corp)
Capital Improvements. From (a) Licensee shall expend or cause to be expended during the Construction Period and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof Term of this License a minimum of seven hundred thousand dollars (except $700,000) for Capital Improvements as provided defined in Section 2.1(b) herein. Notwithstanding anything to the contrary with respect contained herein, in the event Licensee has reclaimed equipment and or materials from other projects or locations, Licensee shall be permitted to Fixtures in Article 13install such equipment or materials at the Licensed Premises and upon providing invoices for the equipment or materials (or otherwise justifying the values), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease such amounts will be applied toward the minimum of seven hundred thousand dollars (collectively, “$700,000) for Capital Improvements”), unless Tenant shall comply with . The architectural and design fees necessary to implement the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Capital Improvements shall be undertakenincluded in the foregoing amount, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for but not the proposed Design Review Fee referenced in Section 6.2 herein. Such Capital Improvements which shall include, but are required to be obtained prior to not limited to, the commencement items listed in the Schedule of Capital Improvements attached hereto as Exhibit D. Licensee shall perform and complete all such Capital Improvements at its sole cost and expense and in accordance with designs and plans approved by Parks and other government agencies having jurisdiction. If, for reasons outside the control of Licensee, Licensee does not receive approval for any and all permits from Parks or any other agency of the proposed Capital Improvements City of New York (collectively, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate provided that in each case the application party applying for any such Improvement Approvalspermit or approval has submitted a complete application for, provided such application is and has made without cost, expense or liability (contingent or otherwise) diligent and good faith efforts to the FCRHA. True copies of comply with all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement conditions of the proposed governmental agency granting such, permits or approvals), Licensee and Parks shall work together to revise the plan for Capital Improvements. Notwithstanding the foregoing, Licensee is permitted to make additional Capital Improvements, provided, however, Licensee first obtains the express written consent of the Commissioner, which shall not be unreasonably withheld, conditioned or delayed. All Additional Fixed Equipment and Expendable Equipment applied toward the Capital Improvements required in this Section 6 shall become the property of Parks upon installation, at Parks’ option.
(b) The Premises after completion of such Capital ImprovementsLicensee shall provide Americans with Disabilities Act (“ADA”) accessibility as required by prevailing code throughout the Licensed Premises, including, but not limited to, installing ADA accessible counters in the café area, installing ramps, as needed, and providing ADA signage. Licensee shall have a value at least equal comply with all City, State, and Federal requirements to provide safe and accessible opportunities for everyone, including persons with disabilities. Licensee is encouraged to exceed accessibility requirements whenever possible, and not simply provide the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion)minimum level required.
(ca) All Upon affixing its signature to this License Agreement, Licensee shall pay to the City the amount of seven thousand dollars ($7,000), representing one percent (1%) of the cost of the minimum guaranteed Capital Improvements shall be made with reasonable diligence and continuity described in Section 6.1 above, as a fee for design review by Parks personnel (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (bthe “Design Review Fee”), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.
Appears in 1 contract
Samples: License Agreement
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) : No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA Landlord shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHALandlord. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA Landlord prior to commencement of the proposed Capital Improvements.
(b) . The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHALandlord, in its sole but reasonable discretion).
(c) . All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHALandlord, and (iii) all Applicable Laws.
(d) . No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates Landlord certificate of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Section 7.05. Such insurance policies shall comply with the terms of Section 7.02 7.03 above.
Appears in 1 contract
Samples: Deed of Lease
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Licensee shall expend or cause to be expended during the Term of this License a minimum of Two Hundred Twenty-Nine Thousand Dollars ($229,000.00) for Capital Improvements as defined in Section 2.1(b) herein. The architectural and design fees necessary to implement the Capital Improvements shall be undertakenincluded in the foregoing amount, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for but not the proposed Design Review Fee referenced in Section 6.2 herein. Such Capital Improvements which shall include, but are required not limited to, the items listed in the Schedule of Capital Improvements attached hereto as Exhibit D. Licensee shall perform and complete all such Capital Improvements in accordance with designs and plans approved by Parks and other government agencies having jurisdiction. Notwithstanding the foregoing, Licensee is permitted to be obtained prior to make additional Capital Improvements, provided, however, Licensee first obtains the commencement express written consent of the proposed Commissioner, which shall not be unreasonably withheld. All Additional Fixed Equipment and Expendable Equipment applied toward the Capital Improvements (collectivelyrequired in this Article 6 shall become the property of Parks upon installation, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvementsat Parks’ option.
(b) The Premises after completion of such Capital ImprovementsLicensee must provide Americans with Disabilities Act (“ADA”) accessibility as required by prevailing code throughout the Licensed Premises, including, but not limited to, installing ADA accessible counters in outdoor café areas and providing ADA signage. Licensee
(a) Upon affixing its signature to this License Agreement, Licensee shall have a value at least equal pay to the value City the amount of Two Thousand Two Hundred Ninety Dollars ($2,290.00) representing one percent (1%) of the Premises immediately before construction cost of such the minimum guaranteed Capital Improvements. In additionImprovements described in Section 6.1 above, as a fee for design review by Parks personnel (the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion“Design Review Fee”).
(cb) All Capital Improvements shall be made with reasonable diligence To guarantee prompt payment of moneys due to a contractor or her or his subcontractors and continuity (subject to Unavoidable Delays) all persons furnishing labor and materials to the contractor or her or his subcontractors in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction prosecution of any Capital Improvement Project with an estimated cost exceeding Two Hundred Fifty Thousand Dollars ($250,000.00), Licensee shall post a payment bond or other form of undertaking approved by Parks in the amount of one hundred percent (100%) of the cost of such Capital Improvement Project before commencing such work. Such bond or other undertaking shall be commenced until Tenant in a form acceptable to Parks. For purposes of this provision, a “Capital Improvement Project” shall have delivered mean a set of Capital Improvements that are reasonably related in time and purpose as determined by Parks in its sole discretion. In the event that Licensee does not post or cause to be posted a payment bond as required hereunder, the FCRHA certificates following undertaking will satisfy the requirements of insurance this Section 6.2(c); (i) Licensee guarantees payment in accordance with the provisions of Exhibit H, attached hereto and copies made a part hereof; and (ii) Licensee causes payment bonds to be posted by all contractors of Licensee and their subcontractors guaranteeing prompt payment of monies due to all persons furnishing labor or materials to such contractors or subcontractors in the prosecution of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 aboveCapital Improvement Project.
Appears in 1 contract
Samples: License Agreement
Capital Improvements. From and after Final CompletionDuring the term of this Agreement, Tenant DKTS shall not replace or materially alter the Project, or any part thereof (except as provided be entitled to designate Capital Improvements to be made to the contrary Terminal and the Tankage. The following provisions shall set forth the procedures pursuant to which Capital Improvements designated by DKTS may be constructed:
(i) For any Capital Improvement designated by DKTS, DKTS shall submit a written proposal, including all specifications then available to it, for the proposed Capital Improvement to the Terminal and/or the Tankage, as the case may be.
(ii) Logistics will review such proposal to determine, in its sole discretion, whether it will consent to proceed with respect the proposed Capital Improvement.
(iii) Should Logistics determine to Fixtures proceed and construct or cause to be constructed the approved Capital Improvement, Logistics will obtain bids from two or more general contractors reasonably acceptable to DKTS for the construction of the Capital Improvement. Based upon the bids, Logistics will notify DKTS of Logistics’ estimate of the total cost necessary to construct such Capital Improvement (the “Capital Expenditure Notice”) (which amount shall include the costs of capital and any other costs necessary to place such Capital Improvement in Article 13service) (“Estimated Expansion Capital Expenditure”). Within 30 days of the Capital Expenditure Notice, DKTS will notify Logistics whether or not DKTS agrees to such Estimated Expansion Capital Expenditure. In the event DKTS does not agree with such Estimated Expansion Capital Expenditure, the Parties shall work together in good faith to reach agreement on the Estimated Expansion Capital Expenditure (the agreed amount is referred to as the “Expansion Capital Expenditure”); provided that, in the event the Parties do not reach such agreement within 60 days of the Capital Expenditure Notice, DKTS shall be entitled to proceed with the construction of the Capital Improvement in accordance with Section 2(i)(v) below.
(iv) Prior to beginning any construction on the Capital Improvement, (1) Logistics shall have received all necessary regulatory approvals, (2) Logistics and DKTS shall have agreed on (A) an additional monthly payment amount to be paid by DKTS to Logistics (the “Monthly Expansion Capital Amount”) which amount (x) shall be payable over a mutually agreed upon term not to exceed the then remaining balance of the Initial Term (or the then current Renewal Term) plus any Renewal Term to which DKTS is then committed or shall then commit (the “Capital Amortization Period”), and (y) shall be sufficient to provide Logistics the equivalent of a rate of return equal to the Prime Rate plus an additional rate of return to be agreed to by the Parties over the Capital Amortization Period on the Expansion Capital Expenditure after taking into account the increased cash flows to Logistics reasonably anticipated to be received by Logistics from DKTS (or make any addition thereto, whether voluntarily or from a third party pursuant to a direct contractual commitment to Logistics) in connection with repairs required by this Lease such Capital Improvement, or (collectivelyB) another adjustment to the Throughput Fee or the Storage Fees, “as applicable, as the Parties may agree and (3) the Parties shall have agreed on any adjustment to the Minimum Throughput Commitment, the Minimum Throughput Capacity or the Minimum Storage Capacity, as the case may be. The Monthly Expansion Capital Improvements”), unless Tenant shall comply with the following requirements andAmount, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities billed and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to monthly following the commencement of operations of the proposed Capital Improvements Improvement and DKTS’ obligation to pay the Monthly Expansion Capital Amount shall survive the termination of this Agreement (collectively, “Improvement Approvals”other than a termination in connection with a breach of this Agreement by Logistics or a Force Majeure event affecting the ability of Logistics to provide services under this Agreement). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity connection with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement pursuant to this Section 2(i)(iv), DKTS shall be commenced until Tenant entitled to participate in all stages of planning, scheduling, implementing, and oversight of the construction. DKTS shall also be entitled to audit all expenditures incurred in connection with the Capital Improvement in accordance with Section 21(o). The Parties agree that any Capital Improvement constructed by Logistics pursuant to this Section 2(i)(iv) shall be treated as the separate property of Logistics.
(v) If for any reason the Capital Improvement shall not be constructed pursuant to Section 2(i)(iv) above, and such Capital Improvement is in accordance with applicable required engineering and regulatory standards, and the Parties agree that the Capital Improvement would not reasonably be expected to have delivered a material adverse impact on the operations or efficiency of the Terminal or the Tankage, taken as a whole, or result in any material additional unreimbursed costs to Logistics, then DKTS may proceed with the construction and financing of the Capital Improvement and, upon completion of construction, DKTS shall be the owner and operator of such Capital Improvement. The Parties agree that any Capital Improvement constructed by DKTS pursuant to this Section 2(i)(v) shall be treated as the separate property of DKTS. Logistics shall reasonably cooperate with DKTS in ensuring that the Capital Improvement shall operate as intended, including by operating and maintaining all necessary connections to the FCRHA certificates Terminal and the Tankage, subject to DKTS’ reimbursing Logistics on a monthly basis for any incremental expenses arising from operating or maintaining such connections as determined by Logistics in good faith. DKTS shall defend, indemnify and hold harmless the Logistics Indemnitees from and against any Liabilities resulting from the construction, ownership and operation by DKTS of insurance and copies any Capital Improvement constructed by DKTS pursuant to this Section 2(i)(v).
(vi) Upon completion of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply construction of such Capital Improvement, Logistics or DKTS, as applicable, will own such Capital Improvement, and will operate and maintain such Capital Improvement in accordance with the terms of Section 7.02 aboveApplicable Law and recognized industry standards.
Appears in 1 contract
Samples: Throughput and Tankage Agreement (Delek Logistics Partners, LP)
Capital Improvements. From The cost of capital improvements or other costs incurred in connection with the Project (a) which are intended to effect, and after Final Completionactually result in, Tenant shall not replace economies in the operation or materially alter maintenance of the Project, or any part thereof portion thereof, (except b) that are required to comply with present or anticipated conservation programs, (c) which are replacements or modifications of structural or nonstructural items located in the Common Areas required to keep the Common Areas in good order or condition, or (d) that are required under any governmental law or regulation which comes into effect after the Commencement Date. Notwithstanding anything in this Paragraph 4(b) to the contrary, Insurance Expenses, Utility Expenses and Taxes (and costs expressly excluded therefrom as provided below), and the following items shall not be deemed to constitute "Operating Expenses" for purposes of this Paragraph 4(b)(2)(A):
(I) any costs which, under generally acceptable accounting principles, consistently applied, are of a capital nature (including rental costs for equipment and services that would be considered capital in nature), except those that are expressly permitted under clause (vi) above;
(II) costs of repairs, restoration, replacements or other work occasioned by fire or other casualty which is insured or required to be insured by Landlord pursuant to the contrary with respect to Fixtures in Article 13)terms of this Lease, or the exercise by governmental or quasi-governmental entities of the right of eminent domain;
(III) interest and amortization of funds borrowed by Landlord, or rent under any ground lease or master lease entered into by Landlord;
(IV) costs, fines, penalties or fees incurred due to Landlord's failure to make any addition theretopayment when due;
(V) costs incurred for any items to the extent Landlord has the right to be reimbursed for, whether voluntarily or to recover the same, under any warranty or any insurance policy, and/or costs incurred for items to the extent Landlord actually recovers the same from any other third party;
(VI) the costs of items provided by affiliates of Landlord to the extent that such costs exceed reasonable and customary charges for such services;
(VII) leasing commissions;
(VIII) costs and expenses (including court costs, attorneys' fees and disbursements and prepayment of any indebtedness) incurred in connection with any mortgaging, financing, or refinancing of the Building or Project or any portion thereof or related to or in connection with repairs required disputes with any holder of a mortgage or by this Lease or among any persons having a security interest in Landlord or the Building or Project;
(collectivelyIX) Any charge for Landlord's income taxes, “Capital Improvements”)excess profit taxes, unless franchise taxes, or similar taxes on Landlord's business;
(X) all costs and expenses (including costs and expenses for utilities and Building amenities) paid directly by Tenant shall comply or other tenants or users of the Building or Project and not paid by Landlord, and all costs for any services, utilities and/or amenities provided to any tenant or occupant of the Building or Project, but not provided to all tenants and occupants;
(XI) costs and expenses incurred by Landlord associated solely with the following requirements andoperation of the business of the legal entity or entities which constitute Landlord (as opposed to operation of the Premises);
(XII) depreciation of the Building or Project;
(XIII) costs incurred to defend Landlord and any judgments or costs of settlement of such lawsuits, if applicablejudgments and/or settlements (but without limiting Tenant's indemnification obligations or any other rights of Landlord under this Lease);
(XIV) acquisition or leasing costs of sculpture, with the additional requirements set forth in Section 11.10:paintings or other objects of art;
(XV) charitable or political contributions;
(XVI) salaries and benefits of any employee (whether paid by Landlord or Landlord's Agents): (a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals above the grade of on-site property manager or similarly designated on-site individual who has responsibility for the proposed Capital Improvements which are required to be obtained prior to the commencement management of the proposed Capital Improvements (collectivelyBuilding, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
and (b) The Premises after completion who does not devote substantially all of such Capital Improvements, shall have a value at least equal his or her time to the value Building, unless such salaries and benefits of any such employee at or below the Premises immediately before construction grade of such Capital Improvements. In additionproperty manager who does not devote substantially all of his/her time to the Building are equitably prorated to reflect time spent on operating, managing or otherwise servicing the Project shall at all times remain in substantial conformity with Building vis-a-vis time spent on matters unrelated to operating, managing or otherwise servicing the original Plans and Specifications therefor Building;
(except XVII) any costs to the extent specifically consented to incurred by Landlord by reason of the FCRHA, in its sole but reasonable discretion).negligence or intentional misconduct of Landlord or Landlord's Agents or any breach of this Lease by Landlord;
(cXVIII) All Capital Improvements shall costs of decorating, redecorating, or special cleaning or other services provided to certain tenants and not provided on a regular basis to all tenants of the Building;
(XIX) all costs relating to activities for the marketing, solicitation, negotiation and execution of leases of space in the Building, including without limitation, costs of tenant improvements;
(XX) all costs for which Tenant or any other tenant in the Building is being charged other than pursuant to the operating expense clauses of leases for the Building;
(XXI) the cost of correcting defects in the construction of the Building or in the building equipment, except that conditions (not occasioned by construction defects) resulting from ordinary wear and tear will not be made with reasonable diligence and continuity deemed defects for the purpose of this category;
(subject XXII) any operating expense representing an amount paid to Unavoidable Delaysthe related corporation, entity, or person which is in excess of the amount which would be paid in the absence of such relationship; and
(XXIII) and the cost of any work or service performed for or facilities furnished to any tenant of the Building to a greater extent or in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant more favorable to Section 11.10(a) such tenant than that performed for or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Lawsfurnished to Tenant.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.
Appears in 1 contract
Samples: Office Lease Agreement (Performance Capital Management LLC)
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No In the event the Borough or AES reasonably determines that Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement Infrastructure are required, such Party shall notify the other Party and the Parties shall meet in good faith to determine the scope of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) AES shall determine if it would be more cost effective or expeditious for it or a contractor, as opposed to the Borough, to implement the Capital Improvements agreed upon in accordance with Section 3.4(a).
(c) In the event AES determines to implement the Capital Improvements itself or through a contractor reasonably acceptable to the Borough, AES or such contractor shall coordinate with the Borough in order to ensure the minimum disruption of the Parties' activities. The Premises after completion of Borough agrees to use its best efforts to assist AES or such contractor in completing the Capital Improvements and agrees to promptly execute such documents and instruments as may be necessary or desirable to complete the Capital Improvements.
(d) In the event AES determines that it would be more cost effective or expeditious for the Borough to implement the Capital Improvements, AES shall have a value at least equal give the Borough written notice to that effect. Upon receipt of such notice the value Borough shall use its best efforts to promptly implement the Capital Improvements with the minimum disruption of the Premises immediately before construction Parties' activities; PROVIDED, that prior to implementing such Capital Improvements the Borough shall provide to AES a budget and work plan (including timetable) for the implementation of such the Capital Improvements.
(e) AES shall bear its own costs and expenses in connection with the implementation of the Capital Improvements. In addition, AES shall reimburse the Project shall at all times remain Borough for its reasonable costs and expenses in substantial conformity connection with the original Plans and Specifications therefor (except to implementation of the extent specifically consented to by the FCRHA, in its sole but reasonable discretion)Capital Improvements including all necessary inspections.
(cf) All In the event that AES causes damage to the Capital Improvements or Infrastructure while constructing, installing, operating, maintaining or repairing the Project, AES shall be made with reasonable diligence and continuity (restore or pay the Borough to restore, at the Borough's election, the Capital Improvements or Infrastructure as nearly as possible to its condition prior to such damage. The provisions of this Section 3.4(f) are subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies applicable laws of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms State of Section 7.02 aboveNew Jersey (including those that relate to municipality authorities).
Appears in 1 contract
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.1011.09:
(a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA Landlord shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHALandlord. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA Landlord prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHALandlord, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made in compliance with the Deed Restrictions.
(d) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a11.09(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHALandlord, and (iii) all Applicable Laws.
(de) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates Landlord certificate of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.
Appears in 1 contract
Samples: Ground Lease
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Licensee shall expend or cause to be expended during the Term of this License a minimum of Seven Million Five Thousand Four Hundred Twenty-Seven Dollars ($7,005,427) for Capital Improvements as defined in Section 2.1(b) herein. The architectural and design fees necessary to implement the Capital Improvements shall be undertakenincluded in the foregoing amount, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for but not the proposed Design Review Fee referenced in Section 6.2 herein. Such Capital Improvements which shall include, but are required not limited to, the items listed in the Schedule of Capital Improvements attached hereto as Exhibit D. Licensee shall perform and complete all such Capital Improvements in accordance with designs and plans approved by Parks and other government agencies having jurisdiction. Notwithstanding the foregoing, Licensee is permitted to be obtained prior to make additional Capital Improvements, provided, however, Licensee first obtains the commencement express written consent of the proposed Commissioner, which shall not be unreasonably withheld. All Additional Fixed Equipment and Personal Equipment applied toward the Capital Improvements (collectivelyrequired in this Article shall become the property of Parks upon installation, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvementsat Parks’ option.
(b) The Premises after completion of such Capital ImprovementsLicensee must provide Americans with Disabilities Act (“ADA”) accessibility as required by prevailing code throughout the Licensed Premises, shall have a value at least equal including, but not limited to, providing ADA accessibility to the value gas stations and food service structures, providing ADA compliant restroom(s), installing ADA accessible service counters and doors and egress throughout the Licensed Premises, installing ramps, as needed, and providing ADA signage. Licensee shall comply with all City, State, and federal requirements to provide safe and accessible recreational opportunities for everyone, including persons with disabilities. Licensee is encouraged to exceed accessibility requirements whenever possible and not simply provide the minimum level required.
(a) Upon affixing its signature to this License Agreement, Licensee shall pay to the City the amount of seventy thousand fifty-four dollars and twenty-seven cents ($70,054.27) representing one percent (1%) of the Premises immediately before construction cost of such the minimum guaranteed Capital Improvements. In additionImprovements described in Section 6.1 above, as a fee for design review by Parks personnel (the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion“Design Review Fee”).
(cb) All Capital Improvements shall be made with reasonable diligence To guarantee prompt payment of moneys due to a contractor or her or his subcontractors and continuity (subject to Unavoidable Delays) all persons furnishing labor and materials to the contractor or her or his subcontractors in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction prosecution of any Capital Improvement Project with an estimated cost exceeding Two Hundred Fifty Thousand Dollars ($250,000), Licensee shall post a payment bond or other form of undertaking approved by Xxxxx in the amount of one hundred percent (100%) of the cost of such Capital Improvement Project before commencing such work. Such bond or other undertaking shall be commenced until Tenant in a form acceptable to Parks. For purposes of this provision, a “Capital Improvement Project” shall have delivered mean a set of Capital Improvements that are reasonably related in time and purpose as determined by Parks in its sole discretion. In the event that Licensee does not post or cause to be posted a payment bond as required hereunder, the FCRHA certificates following undertaking will satisfy the requirements of insurance this Section 6.2(c); (i) Licensee guarantees payment in accordance with the provisions of Exhibit H, attached hereto and copies made a part hereof; and (ii) Licensee causes payment bonds to be posted by all contractors of Licensee and their subcontractors guaranteeing prompt payment of monies due to all person furnishing labor or materials to such contractors or subcontractors in the prosecution of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 aboveCapital Improvement Project.
Appears in 1 contract
Samples: License Agreement
Capital Improvements. From 6.5.1 Without limiting the provisions of Section 8.1, the Operating Lessee and after Final Completion, Tenant the Sellers shall have no obligation to perform or complete any capital improvements at the Properties prior to Closing and it shall not replace or materially alter the Project, be a condition to Purchaser’s obligation to close title under this Agreement that all or any part thereof (except as provided portion of any capital improvements have been commenced or completed.
6.5.2 Notwithstanding the provisions of Section 6.5.1, the Seller owning the Trumbull Hotel may commence work relating to the contrary with respect property improvement plan for the Trumbull Hotel, provided that the parties agree that it is the intention of the parties that such Seller shall not perform any such work except to Fixtures the extent that in Article 13such Seller’s good faith judgment the failure to perform such work would result in a material risk of an event of default under the Franchise Agreement for the Trumbull Hotel (a “PIP Default Risk”). In the event that such Seller so determines that a PIP Default Risk exists, such Seller may undertake or make cause the Operating Lessee to undertake such capital improvements as may be necessary or, in such Seller’s good faith judgment, desirable, to mitigate such PIP Default Risk and such Seller shall be entitled to a credit at Closing for any addition thereto, whether voluntarily amounts expended by the Operating Lessee or such Seller prior to Closing in connection with repairs required by this Lease the performance of such capital improvements, provided that such Seller shall regularly consult with Purchaser during the undertaking of such capital improvements and shall obtain Purchaser’s approval of the contract and budget for such capital improvements, such approval not to be unreasonably withheld or delayed, provided further, that Purchaser shall at Closing assume any contracts for performance of such work pursuant to an agreement of assignment and assumption substantially in the form of Exhibit I (collectivelyas it relates to the Hotel Contracts) and without warranty and representation.
6.5.3 Notwithstanding the provisions of Section 6.5.1, the San Diego Seller shall diligently endeavor to promptly enter into an agreement (the “Capital ImprovementsRepair Contract”) with Landmark Hospitality Contracting, Inc. (the “Repair Contractor”), unless Tenant which Repair Contract shall comply incorporate the material terms set forth in that certain proposal dated June 29, 2006 (the “Repair Proposal”) from the Repair Contractor to the Manager (a copy of which has been provided to Purchaser prior to the date hereof), for repairs of work that was performed in connection with the following requirements andrenovation of certain of the guest bathrooms at the San Diego Hotel (as further described in Exhibit C). The Repair Proposal was intended to include the correction of all material defects in the original renovations of which the Sellers had knowledge. The terms and conditions of the Repair Contract (not including the compensation payable thereunder) shall be subject to Purchaser’s prior written consent, which consent shall not be unreasonably withheld or delayed, provided that Purchaser hereby approves the scope of work set forth in the Repair Proposal, and provided further that if Purchaser fails to disapprove any other aspect of the Repair Contract within three (3) Business Days from the receipt thereof, Purchaser shall be deemed to have approved the Repair Contract. In the event the San Diego Seller, despite the use of diligent efforts, is unable to enter into the Repair Contract with the Repair Contractor or the terms and conditions of such Repair Contract are not reasonably approved (or deemed approved) by Purchaser, the San Diego Seller shall diligently endeavor to promptly enter into an agreement with another contractor or contractors for such repair work which shall incorporate the material terms set forth in the Repair Proposal, such other agreement (not including the compensation payable thereunder) and contractor(s) to be subject to Purchaser’s prior written consent, which consent shall not be unreasonably withheld or delayed (such agreement, if applicable, with also referred to herein as the additional requirements “Repair Contract” and such approved contractor, also referred to herein as the “Repair Contractor”). In no event shall the specifications for the repair work under the Repair Contract be of lesser quality in any material respect than the specifications that were set forth in the contract for the original renovations. During the period from and after the execution of the Repair Contract to and including the Closing Date (but subject to the eighth sentence of this Section 11.10:
6.5.3), the San Diego Seller shall comply in all material respects with the terms of the Repair Contract and shall not waive any material provision of or materially amend the Repair Contract without Purchaser’s prior written consent (a) No Capital Improvements not including for this purpose changes to the compensation payable thereunder), such consent not to be unreasonably withheld or delayed; provided, that upon the prior written approval of Purchaser, not to be unreasonably withheld or delayed, the San Diego Seller shall be undertakenpermitted to delete any work from the Repair Contract that the San Diego Seller determines in good faith is unnecessary because the original work was properly performed and does not require repair. In connection with providing or withholding any such approval, as applicable, until Tenant Purchaser shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the right to first inspect any such work proposed Capital Improvements which are required to be obtained deleted by San Diego Seller. Notwithstanding anything to the contrary contained in this Section 6.5.3, Purchaser acknowledges and agrees that the Sellers are not making (nor shall they make as of the Closing Date) any representation or warranty with respect to the quality, sufficiency or any other aspect of the work performed by the Repair Contractor, that Purchaser shall look solely to the Repair Contractor with respect to any claims arising with respect to the work performed under the Repair Contract and that the Sellers shall be under no obligation to have completed such repair work prior to the commencement Closing Date or in accordance with a schedule and lead times comparable to those set forth in the Repair Proposal or any other particular timetable. Pursuant to Section 8.1, Purchaser shall accept such Property on the Closing Date “as-is” and, except for the work contemplated in the Repair Contract, neither the Operating Lessee nor the San Diego Seller shall be obligated to perform any work at the San Diego Hotel. In the event such repair work has not been completed as of the proposed Capital Improvements (collectivelyClosing Date, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvalsthe San Diego Seller shall assign and Purchaser shall assume the Repair Contract pursuant to an assignment and assumption agreement substantially in the form of Exhibit I (as it relates to the Hotel Contracts) and without warranty or representation, (ii) if required Purchaser shall receive a credit against the Purchase Price at Closing equal to the unpaid amount remaining under the Repair Contract (as same may have been amended by San Diego Seller from time to time pursuant to this Section 11.10(a) or (b6.5.3), (iii) the San Diego Seller shall, promptly after the completion of such repair work, receive a refund of any portion of the credit described in substantial accordance with clause (ii) of this sentence that Purchaser is not obligated or required to pay to the plans and specifications Repair Contractor (excluding the effect of any amendment by Purchaser after the Closing Date that would result in an increase in the amount payable to the Repair Contractor for such Capital Improvements as approved by work in excess of that referred to in the FCRHARepair Proposal), and (iiiiv) Purchaser shall provide such information as the Sellers reasonably request from time to time regarding the progress and cost of such work. Upon reasonable prior notice, Purchaser shall have the right from time to time to inspect the work performed by the Repair Contractor under the Repair Contract to satisfy itself that the work is being performed in accordance with Repair Contract, provided that Purchaser shall not interfere in any material respect with the operation of the San Diego Hotel or the repair work being undertaken. The Sellers shall retain all Applicable Laws.
(d) No construction of any Capital Improvement claims against the contractor that performed the original bathroom renovations and its insurance carrier, which claims shall be commenced until Tenant an Excluded Item, and Purchaser shall have delivered cooperate with the Sellers in all reasonable respects in Sellers’ assertion and prosecution of such claims so long as the Sellers do not interfere in any material respect with the ownership or operation of the San Diego Hotel. Notwithstanding anything to the FCRHA certificates contrary in Section 6.7, none of insurance Sellers’ obligations under this Section 6.5.3 shall survive the Closing nor shall Sellers have any liability under this Section 6.5.3 from and copies of after the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 aboveClosing.
Appears in 1 contract
Capital Improvements. From (i) Operator may from time to time during the Term propose to PREB certain capital improvements, taking into account the Integrated Resource Plan and after Final Completionthe Federally Funded Generation Project Plan, Tenant that would be (x) federally funded and owned by Owner, (y) made, owned and funded by Owner or (z) made, owned and funded by Operator or its designated Affiliate; provided, however, that no such capital improvements shall be made that would in any manner jeopardize the exclusion from gross income of interest on Owner’s or its Affiliates’ obligations under the Internal Revenue Code. Operator shall provide PREB, with copy to Administrator and Owner, with a description of the capital improvement in sufficient detail to enable PREB to make a fully informed assessment and analysis thereof; provided that any such proposal pertaining to Operator-owned capital improvements shall contemplate Operator having the opportunity to earn a reasonable rate of return thereon consistent with the returns permitted to be earned by companies operating in the United States generation business on similar investments. Any such proposed federally funded or Owner-owned capital improvement shall be subject to review, and approval or rejection, by PREB in accordance with Applicable Law and shall be accompanied by an opinion of tax counsel to Administrator providing that such capital improvement shall not replace adversely affect the exclusion from gross income of interest on obligations of Owner, its Affiliates or materially alter another Governmental Body for federal income tax purposes under the ProjectInternal Revenue Code. In reviewing any such proposed capital improvement, PREB may request additional information or reports from Operator, and may require that any such proposed capital improvement be presented as part thereof of a rate review proceeding.
(except ii) Owner shall notify Operator in writing of any Capital Improvements that may be eligible for federal funding. In such case, Owner and Operator shall cooperate with each other to address and comply with federal agency requirements, so as provided not to jeopardize the contrary relevant Legacy Generation Asset’s eligibility to receive federal funding. Such cooperation shall include Owner (i) providing Operator with such documents and information it requests with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvalsapplicable federal funding requirements, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance sharing with the plans and specifications for such Capital Improvements as approved Operator any specific requirements imposed by the FCRHA, relevant funding agency to maintain eligibility to receive federal funding and (iii) all Applicable Lawsmaking requests to such federal agencies to review Owner and Operator’s systems and plans to comply with federal funding requirements.
(diii) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies The inclusion of the declaration page(sprovisions of this Section 5.6(b) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.(
Appears in 1 contract
Samples: Operation and Maintenance Agreement
Capital Improvements. From and after Final Completion, The cost of capital improvements or other costs incurred in connection with the Project (a) to the extent they reduce the cost to Tenant shall not replace of operating or materially alter maintaining the Project, or any part thereof portion thereof, (except as provided b) that are required to comply with present or anticipated conservation programs pursuant to any Legal Requirement, (c) which are replacements of nonstructural items located in the Project, including the Common Areas, required to keep the Project, including the Common Areas, in good order or condition, (d) that are required under any Legal Requirement, or (e) subject to Landlord's obligations under Paragraph 13(b), and not including any such costs to the contrary extent Landlord receives proceeds of Landlord's insurance with respect thereto or any condemnation award received by Landlord (subject to Fixtures in Article 13Landlord's obligation to diligently and reasonably attempt to recover all proceeds and awards available to cover such costs), or make any addition thereto, whether voluntarily or that are required in connection with repairs required by this Lease the repair, replacement or improvement of any Systems; provided, that all such capital costs (collectively, “Capital Improvements”where such improvements have a useful life in excess of five (5) years), unless shall be paid by Landlord in the same manner and according to the same procedures for payment of the Tenant Allowance and performance of the Tenant Improvements, except that each such capitalized cost advanced by Landlord shall be amortized over the useful life of the improvements at the Rate of Return, with Tenant's liability therefor limited to the annual cost thereof attributable to that portion of the useful life included within the remainder of the Term; and for any improvements having a useful life of five (5) years or less, Tenant shall comply with pay the following requirements and, if applicable, with the additional requirements set forth full cost of such improvements. Notwithstanding anything in Section 11.10:
(a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwisethis Paragraph 4(b) to the FCRHA. True copies contrary, Insurance Expenses, Utility Expenses and Taxes shall not be deemed to constitute "Operating Expenses" for purposes of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretionthis Paragraph 4(b)(2)(A).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.
Appears in 1 contract
Samples: Lease Agreement (Broadcom Corp)
Capital Improvements. From (a) Licensee shall expend or cause to be expended during the Construction Period and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof Term of this License a minimum of $2,208,341 (except Two million two hundred and eight thousand and three hundred forty-one dollars) for Capital Improvements as provided defined in Section 2.1(b) herein. Notwithstanding anything to the contrary with respect to Fixtures in Article 13contained herein, and upon providing invoices for the equipment or materials (or otherwise justifying the values), or make any addition thereto, whether voluntarily or in connection with repairs such amounts will be applied toward the minimum required by this Lease (collectively, “for Capital Improvements”), unless Tenant shall comply with . The architectural and design fees necessary to implement the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Capital Improvements shall be undertakenincluded in the foregoing amount, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for but not the proposed Design Review Fee referenced in Section
6.2 herein. Such Capital Improvements which shall include, but are required to be obtained prior to not limited to, the commencement items listed in the Schedule of Capital Improvements attached hereto as Exhibit D. Licensee shall perform and complete all such Capital Improvements in accordance with designs and plans approved by Parks and other government agencies having jurisdiction. If, for reasons outside the control of Licensee, Licensee does not receive approval for any and all permits from Parks or any other agency of the proposed Capital Improvements City of New York (collectively, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate provided that in each case the application party applying for any such Improvement Approvalspermit or approval has submitted a complete application for, provided such application is and has made without cost, expense or liability (contingent or otherwise) diligent and good faith efforts to the FCRHA. True copies of comply with all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement conditions of the proposed governmental agency granting such, permits or approvals) or if Licensee does not receive approval from ConEdison, Licensee and Parks shall work together to revise the plan for Capital Improvements.
(b) The Premises after completion of such . Notwithstanding the foregoing, Licensee is permitted to make additional Capital Improvements, shall have a value at least equal to provided, however, Licensee first obtains the value express written consent of the Premises immediately before construction of such Capital ImprovementsCommissioner, which shall not be unreasonably withheld. In addition, All Additional Fixed Equipment and Expendable Equipment applied toward the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Capital Improvements required in this Article shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvalsbecome the property of Parks upon installation, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Lawsat Parks’ option.
(d) No construction of any Capital Improvement shall be commenced until Tenant shall have delivered to the FCRHA certificates of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of Section 7.02 above.
Appears in 1 contract
Samples: License Agreement
Capital Improvements. From and after Final Completion, Tenant shall will not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall will comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) : No Capital Improvements shall will be undertaken, as applicable, until Tenant shall will have procured from all Governmental Authorities and paid for all permits, consents, certificates certificates, and approvals for the proposed Capital Improvements which are required to be obtained prior to the commencement of the proposed Capital Improvements (collectively, “Improvement Approvals”). The FCRHA shall Landlord will not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHALandlord. True copies of all such Improvement Approvals shall will be delivered by Tenant to the FCRHA Landlord prior to commencement of the proposed Capital Improvements.
(b) . The Premises after completion of such Capital Improvements, shall will have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall will at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHALandlord, in its sole but reasonable discretion).
(c) . All Capital Improvements shall will be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHALandlord, and (iii) all Applicable Laws.
(d) . No construction of any Capital Improvement shall will be commenced until Tenant shall will have delivered to the FCRHA certificates Landlord certificate of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Section 7.05. Such insurance policies shall will comply with the terms of Section 7.02 7.03 above.
Appears in 1 contract
Samples: Deed of Lease
Capital Improvements. From and after Final Completion, Tenant shall not replace or materially alter the Project, or any part thereof (except as provided to the contrary with respect to Fixtures in Article 13), or make any addition thereto, whether voluntarily or in connection with repairs required by this Lease (collectively, “Capital Improvements”), unless Tenant shall comply with the following requirements and, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Licensee shall expend or cause to be expended during the Interim Period and Term of this License a minimum of Two Million, Five Hundred Fifty-Five Thousand, Seven Hundred Seven Dollars and Eighty-Five cents ($2,555,707.85) for Capital Improvements as defined in Section 2.1(b) herein. The architectural/engineering and design fees necessary to implement the Capital Improvements shall be undertakenincluded in the foregoing amount, as applicable, until Tenant shall have procured from all Governmental Authorities and paid for all permits, consents, certificates and approvals for but not the proposed Design Review Fee referenced in Section 6.2 herein. Such Capital Improvements which shall include, but are required not limited to, the items listed in the Schedule of Capital Improvements attached hereto as Exhibit D. Licensee shall perform and complete all such Capital Improvements at its sole cost and expense and in accordance with designs and plans approved by Parks and other government agencies having jurisdiction. Notwithstanding the foregoing, Licensee is permitted to be obtained prior to make additional Capital Improvements, provided, however, Licensee first obtains the commencement express written consent of the proposed Commissioner, in the Commissioner’s sole judgment. All Additional Fixed Equipment and Expendable Equipment applied toward the Capital Improvements (collectivelyrequired in this Article 6 shall become the property of Parks upon installation, “Improvement Approvals”). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvementsat Parks’ option.
(b) The Premises after completion of such Capital ImprovementsLicensee shall provide Americans with Disabilities Act (“ADA”) accessibility as required by prevailing code throughout the Licensed Premises, including, but not limited to, installing ADA accessible service counters in the Outdoor Cafes, installing ramps, as needed, and providing ADA signage. Licensee shall have a value at least equal comply with all City, State and Federal requirements to provide safe and accessible recreational opportunities for everyone, including persons with
(a) Upon affixing its signature to this License Agreement, Licensee shall pay to the value City the amount of Twenty -Five Thousand, Five Hundred and Fifty-Seven Dollars and Eight cents ($25,557.08) representing one percent (1%) of the Premises immediately before cost of the minimum guaranteed Capital Improvements described in Section 6.1 above, as a fee for design review by Parks personnel (the “Design Review Fee”).
(b) At Parks’ discretion, Licensee may be required to provide a construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHAsecurity deposit, in its sole but reasonable discretion)an amount and format approved by Parks, to ensure that all capital work is completed. This security deposit, preferably in the form of a letter of credit, must be in place before any capital work commences.
(c) All Capital Improvements shall be made with reasonable diligence To guarantee prompt payment of monies due to a contractor or his or her subcontractors and continuity (subject to Unavoidable Delays) and all persons furnishing labor or materials to the contractor or his or her subcontractors in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction performance of any Capital Improvement Project, as defined below, with an estimated cost exceeding two hundred fifty thousand dollars ($250,000.00), Licensee shall post or cause to be posted a payment bond or other form of undertaking approved by Parks in the amount of one hundred percent (100%) of the cost of such Capital Improvement Project before commencing such work. Such bond or other undertaking shall be commenced until Tenant in a form acceptable to Parks. For purposes of this provision, a “Capital Improvement Project” shall have delivered mean a set of Capital Improvements that are reasonably related in time and purpose as determined by Parks in its sole discretion. In the event that Licensee does not post or cause to be posted a payment bond as required hereunder, the FCRHA certificates following undertaking will satisfy the requirements of insurance and copies of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply with the terms of this Section 7.02 above.6.2(c):
Appears in 1 contract
Samples: License Agreement
Capital Improvements. From and after Final CompletionDuring the term of this Agreement, Tenant DKTS shall not replace or materially alter the Project, or any part thereof (except as provided be entitled to designate Capital Improvements to be made to the contrary Rail Offloading Facility. The following provisions shall set forth the procedures pursuant to which Capital Improvements designated by DKTS may be constructed:
(i) For any Capital Improvement designated by DKTS, DKTS shall submit a written proposal, including all specifications then available to it, for the proposed Capital Improvement to the Rail Offloading Facility, as the case may be.
(ii) Logistics will review such proposal to determine, in its sole discretion, whether it will consent to proceed with respect the proposed Capital Improvement.
(iii) Should Logistics determine to Fixtures proceed and construct or cause to be constructed the approved Capital Improvement, Logistics will obtain bids from two or more general contractors reasonably acceptable to DKTS for the construction of the Capital Improvement. Based upon the bids, Logistics will notify DKTS of Logistics’ estimate of the total cost necessary to construct such Capital Improvement (the “Capital Expenditure Notice”) (which amount shall include the costs of capital and any other costs necessary to place such Capital Improvement in Article 13service) (“Estimated Expansion Capital Expenditure”). Within 30 days of the Capital Expenditure Notice, DKTS will notify Logistics whether or not DKTS agrees to such Estimated Expansion Capital Expenditure. In the event DKTS does not agree with such Estimated Expansion Capital Expenditure, the Parties shall work together in good faith to reach agreement on the Estimated Expansion Capital Expenditure (the agreed amount is referred to as the “Expansion Capital Expenditure”); provided that, in the event the Parties do not reach such agreement within 60 days of the Capital Expenditure Notice, DKTS shall be entitled to proceed with the construction of the Capital Improvement in accordance with Section 2(g)(v).
(iv) Prior to beginning any construction on the Capital Improvement, (1) Logistics shall have received all necessary regulatory approvals, (2) Logistics and DKTS shall have agreed on (A) an additional monthly payment amount to be paid by DKTS to Logistics (the “Monthly Expansion Capital Amount”) which amount (x) shall be payable over a mutually agreed upon term not to exceed the then remaining balance of the Initial Term (or the then current Renewal Term) plus any Renewal Term to which DKTS is then committed or shall then commit (the “Capital Amortization Period”), and (y) shall be sufficient to provide Logistics the equivalent of a rate of return equal to the Prime Rate plus an additional rate of return to be agreed to by the Parties over the Capital Amortization Period on the Expansion Capital Expenditure after taking into account the increased cash flows to Logistics reasonably anticipated to be received by Logistics from DKTS (or make any addition thereto, whether voluntarily or from a third party pursuant to a direct contractual commitment to Logistics) in connection with repairs required by this Lease such Capital Improvement, or (collectivelyB) another adjustment to the Throughput Fees, “as applicable, as the Parties may agree and (3) the Parties shall have agreed on any adjustment to the Minimum Quarterly Throughput Payment or the Minimum Throughput Capacity, as the case may be. The Monthly Expansion Capital Improvements”), unless Tenant shall comply with the following requirements andAmount, if applicable, with the additional requirements set forth in Section 11.10:
(a) No Capital Improvements shall be undertaken, as applicable, until Tenant shall have procured from all Governmental Authorities billed and paid for all permits, consents, certificates and approvals for the proposed Capital Improvements which are required to be obtained prior to monthly following the commencement of operations of the proposed Capital Improvements Improvement and DKTS’ obligation to pay the Monthly Expansion Capital Amount shall survive the termination of this Agreement (collectively, “Improvement Approvals”other than a termination in connection with a breach of this Agreement by Logistics or a Force Majeure event affecting the ability of Logistics to provide services under this Agreement). The FCRHA shall not unreasonably refuse to join or otherwise unreasonably refuse to cooperate in the application for any such Improvement Approvals, provided such application is made without cost, expense or liability (contingent or otherwise) to the FCRHA. True copies of all such Improvement Approvals shall be delivered by Tenant to the FCRHA prior to commencement of the proposed Capital Improvements.
(b) The Premises after completion of such Capital Improvements, shall have a value at least equal to the value of the Premises immediately before construction of such Capital Improvements. In addition, the Project shall at all times remain in substantial conformity connection with the original Plans and Specifications therefor (except to the extent specifically consented to by the FCRHA, in its sole but reasonable discretion).
(c) All Capital Improvements shall be made with reasonable diligence and continuity (subject to Unavoidable Delays) and in a good and workmanlike manner and in compliance with (i) all Improvement Approvals, (ii) if required pursuant to Section 11.10(a) or (b), in substantial accordance with the plans and specifications for such Capital Improvements as approved by the FCRHA, and (iii) all Applicable Laws.
(d) No construction of any Capital Improvement pursuant to this Section 2(g)(iv), DKTS shall be commenced entitled to participate in all stages of planning, scheduling, implementing, and oversight of the construction. DKTS shall also be entitled to audit all expenditures incurred in connection with the Capital Improvement in accordance with Section 17(n). The Parties agree that any Capital Improvement constructed by Logistics pursuant to this Section 2(g)(iv) shall be treated as the separate property of Logistics.
(v) If for any reason the Capital Improvement shall not be constructed pursuant to Section 2(g)(iv) above, and such Capital Improvement is in accordance with applicable required engineering and regulatory standards, and the Parties agree that the Capital Improvement would not reasonably be expected to have a material adverse impact on the operations or efficiency of the Rail Offloading Facility, taken as a whole, or result in any material additional unreimbursed costs to Logistics, then DKTS may proceed with the construction and financing of the Capital Improvement and, upon completion of construction, DKTS shall be the owner and operator of such Capital Improvement; provided, however, that, until Tenant a lease, right-of-way or other agreement contemplated by Section 6.6 (b) of the Purchase Agreement has been obtained, Logistics shall determine in its sole discretion whether any construction by DKTS on the South Rack Parcel or the North Rack Parcel (each as defined in the Purchase Agreement) would not reasonably be expected to have delivered a material adverse impact on the operations or efficiency of the Rail Offloading Facility, taken as a whole, or result in any material additional unreimbursed costs to Logistics. The Parties agree that any Capital Improvement constructed by DKTS pursuant to this Section 2(g)(v) shall be treated as the separate property of DKTS. Logistics shall reasonably cooperate with DKTS in ensuring that the Capital Improvement shall operate as intended, including by operating and maintaining all necessary connections to the FCRHA certificates Rail Offloading Facility, subject to DKTS’ reimbursing Logistics on a monthly basis for any incremental expenses arising from operating or maintaining such connections as determined by Logistics in good faith. DKTS shall defend, indemnify and hold harmless the Logistics Indemnitees from and against any Liabilities resulting from the construction, ownership and operation by DKTS of insurance and copies any Capital Improvement constructed by DKTS pursuant to this Section 2(g) (v).
(vi) Upon completion of the declaration page(s) for the insurance required by Exhibit D. Such insurance policies shall comply construction of such Capital Improvement, Logistics or DKTS, as applicable, will own such Capital Improvement, and will operate and maintain such Capital Improvement in accordance with the terms of Section 7.02 aboveApplicable Law and recognized industry standards.
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Samples: Throughput Agreement (Delek Logistics Partners, LP)
