Construction of Demised Premises. (a) Within thirty (30) days after the date hereof, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications (collectively, the "Plans and Specifications") based upon the Preliminary Plans, covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part of the Demised Premises. Tenant shall have five (5) days after receipt of the Plans and Specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order and, as a result thereof, completion of construction of the Improvements is delayed beyond the Lease Commencement Date, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's cost. (b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below). (c) Landlord shall use reasonable speed and diligence to achieve Substantial Completion, at Landlord's sole cost and expense, on or before March 21, 2001. In the event that Landlord is unable to Substantially Complete the Demised Premises for occupancy by Tenant on or before March 21, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below), the Lease Commencement Date, the Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until the Demised Premises are Substantially Complete, unless the Delay was a Tenant Delay (as defined below) in which event no adjustment shall be made for the number of days of Tenant Delay. In addition, in the event that Landlord is unable to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below) (the "Penalty Date"), then from and after the adjusted Rent Commencement Date, Tenant shall receive a credit against Base Rent equal to two (2) days of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized by Tenant, as its sole remedy.
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Construction of Demised Premises. (a) Within thirty (30) days after the date hereofLease Date, Landlord shall prepare, at Landlord's ’s sole cost and expense, and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "“Plans and Specifications"”) based upon on the Preliminary Planspreliminary plans and specifications and/or preliminary floor plans set forth on Exhibit B attached hereto and incorporated herein, covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part of the Demised PremisesImprovements (as defined in Section 8(a)(ii)). Tenant shall have five ten (510) days after receipt of the Plans and Specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five ten (510) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications Specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. Tenant acknowledges that the Improvements are being constructed on a “fast track” basis and that Landlord shall have the right and option to submit various parts of the proposed Plans and Specifications from time to time during said thirty (30) day period and the time period for approval of any part of the proposed Plans and Specifications shall commence upon receipt of each submission. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "“Change Order"”) shall be at Tenant's ’s sole cost and expense and subject to Landlord's ’s written approval, which approval shall not be unreasonably withheld, conditioned or delayed. In the event Landlord approves any such requested Change Order, Landlord shall give written notice thereof to Tenant, which notice will specify the Change Order approved by Landlord as well as the estimated incremental cost thereof. The cost to Tenant for Change Orders shall be Landlord’s incremental cost plus ten percent (10%) of such amount as Landlord’s overhead. Tenant acknowledges and agrees that Landlord shall be under no obligation to proceed with any work related to the approved Change Order unless and until Tenant delivers to Landlord an amount equal to the full estimated incremental cost of such approved Change Order as set forth in Landlord’s notice. When the final incremental cost of any such Change Order has been determined and incurred, Landlord and Tenant each agree to pay or refund the amounts owed to the other with respect to such Change Order, based on the estimated payment made to Landlord. If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any a Change Order or any further changes to the Plans and Specifications and, as a result thereof, completion of construction Substantial Completion (as hereinafter defined) of the Improvements is delayed beyond delayed, then for purposes of establishing the Lease Commencement DateDate and any other date tied to the date of Substantial Completion, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications Substantial Completion shall be paid in cash by deemed to mean the date when Substantial Completion would have been achieved but for such Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costdelay.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial CompletionSubstantially Complete the Improvements, at Landlord's ’s sole cost and expense, and have the Demised Premises ready for occupancy on or before March 21the anticipated Lease Commencement Date of May 1, 20012006 set forth in Section 1(f). In the event that Landlord is unable to Substantially Complete If the Demised Premises for occupancy by are not Substantially Complete on that date, such failure to complete shall not in any way affect the obligations of Tenant on or before March 21, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below), hereunder except that the Lease Commencement Date, the Base Rent Commencement Date Date, and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until the Demised Premises are Substantially Complete, unless the Delay was a delay is caused by Tenant’s failure to approve the Plans and Specifications as set forth in Section 17(a), by change orders requested by Tenant Delay (as defined below) in which event no adjustment shall be made for after approval of the number of days Plans and Specifications or by any other act or omission of Tenant or Tenant’s Affiliates (collectively, “Tenant Delay”). In additionAdditionally, in and only on the event condition that Hewlett-Packard Company completes the purchase of the building located at 000 Xxxxxxxxx Xxxx, Xxxxxxx, XX from Tenant’s affiliate, Systemax Suwanee LLC, if Landlord is unable to achieve Substantial Completion Substantially Complete the Demised Premises for occupancy by Tenant on or before March 22June 15, 20012006, as such date shall be extended by Ordinary Delay and Tenant Delay (as defined below) (the "Penalty “Outside Date"”), then then, from and after the adjusted Base Rent Commencement Date, Tenant shall receive a credit against Base Rent equal to two (2) days of Base Rent $7,500.00 for each day of Delay Substantial Completion was delayed beyond the Outside Date (excluding any days of Tenant Delay) beyond the Penalty Date until said credit is fully realized by Tenant, as its sole remedy. For purposes of this Lease, “Delay” shall mean delays incurred (i) by reason of Tenant Delay and (ii) for such additional time as is equal to the time lost by Landlord or Landlord’s contractors or suppliers in connection with the performance of Landlord’s work and/or the construction of the Building and related improvements not within the control of Landlord due to strikes or other labor troubles, governmental restrictions and limitations, war or other national emergency, non-availability of materials or supplies, delay in transportation, accidents, floods, fire, damage or other casualties, weather or other conditions, delays by utility companies in bringing utility lines to the Demised Premises and other matters not within the reasonable control of Landlord. Except as expressly set forth herein, no liability whatsoever shall arise or accrue against Landlord by reason of its failure to deliver or afford possession of the Demised Premises, and Tenant hereby releases and discharges Landlord from and of any claims for damage, loss, or injury of every kind whatsoever as if this Lease were never executed.
(c) Upon Substantial Completion of the Demised Premises, a representative of Landlord and a representative of Tenant together shall inspect the Demised Premises and generate a punchlist of defective or uncompleted items relating to the completion of construction of the Improvements (the “Punchlist”). Landlord shall, within a reasonable time after the Punchlist is prepared and agreed upon by Landlord and Tenant, complete such incomplete work and remedy such defective work as is set forth on the Punchlist. All construction work performed by Landlord shall be deemed approved by Tenant in all respects except for items of said work which are not completed or do not conform to the Plans and Specifications and which are included on the Punchlist.
(d) Within forty-five (45) days after Substantial Completion of the Demised Premises, Landlord shall provide Tenant with copies of as-built architectural, structural, civil, electrical, plumbing, mechanical HVAC, fire protection and landscaping plans.
(e) Landlord hereby warrants to Tenant, which warranty shall survive for the one (1) year period following the Lease Commencement Date, that (i) the materials and equipment furnished by Landlord’s contractors in the completion of the Improvements will be of good quality and new, and (ii) such materials and equipment and the work of such contractors shall be free from defects not inherent in the quality required or permitted hereunder. This warranty shall exclude damages or defects caused by Tenant or Tenant’s Affiliates, improper or insufficient maintenance, improper operation, and normal wear and tear under normal usage.
(f) For purposes of this Lease, the term “Substantial Completion” (or any variation thereof) shall mean completion of construction of the Improvements in accordance with the Plans and Specifications, subject only to Punchlist items established pursuant to Section 17(c), as established by the delivery by Landlord to Tenant of a certificate of occupancy or its equivalent (or temporary certificate of occupancy or its equivalent) for the Demised Premises issued by the appropriate governmental authority, if a certificate is so required by a governmental authority, or if not so required or if unavailable because of unfinished work to be performed by Tenant, then by the delivery by Landlord to Tenant of a Certificate of Substantial Completion for the Improvements on Standard AIA Form G-704 certified by Landlord’s architect. In the event Substantial Completion is delayed because of Tenant’s failure to approve the Plans and Specifications as set forth in Section 17(a), by change orders requested by Tenant after approval of the Plans and Specifications or by any other delay caused by Tenant or Tenant’s Affiliates, then for the purpose of establishing the Lease Commencement Date and any other date tied to the date of Substantial Completion, Substantial Completion shall be deemed to mean the date when Substantial Completion would have been achieved but for such delay.
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Construction of Demised Premises. (a) Within thirty (30) days after the date hereofLease Date, Landlord shall prepare, at Landlord's ’s sole cost and expense, and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "“Plans and Specifications"”) based upon on the preliminary plans and specifications and/or preliminary floor plans set forth on Exhibit B attached hereto and incorporated herein (collectively, the “Preliminary Plans”), covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part of the Demised PremisesImprovements (as defined in Section 8(a)(ii)). Tenant shall have five fifteen (515) days after receipt of the Plans and Specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its requested changes to the Plans and Specifications (and Landlord must expressly notify Tenant upon delivery to Tenant of such Plans and Specifications, or any change thereto, that Tenant must approve or reject the same within fifteen (15) days or they will be deemed approved). Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five fifteen (515) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Provided that Landlord delivers the plans back to Tenant with the necessary changes made to the satisfaction of the Tenant, then Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications Specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Landlord and Tenant shall at all times in its their review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. Tenant acknowledges that the Improvements are being constructed on a “fast track” basis and that Landlord shall have the right and option to submit various parts of the proposed Plans and Specifications from time to time during said thirty (30) day period and the time period for approval of any part of the proposed Plans and Specifications shall commence upon receipt of each submission. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "“Change Order"”) shall be at Tenant's ’s sole cost and expense and subject to Landlord's ’s written approval, which approval shall not be unreasonably withheld, conditioned or delayed. In the event Landlord approves any such requested Change Order, Landlord shall give written notice thereof to Tenant, which notice will specify the Change Order approved by Landlord as well as the estimated incremental cost thereof. The cost to Tenant for Change Orders shall be Landlord’s incremental cost plus seven percent (7%) of such incremental amount as Landlord’s overhead. Tenant acknowledges and agrees that Landlord shall be under no obligation to proceed with any work related to the approved Change Order unless and until Tenant delivers to Landlord an amount equal to the full estimated incremental cost of such approved Change Order as set forth in Landlord’s notice. When the final incremental cost of any such Change Order has been determined and incurred, Landlord and Tenant each agree to pay or refund the amounts owed to the other with respect to such Change Order, based on the estimated payment made to Landlord. If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any a Change Order or any further changes to the Plans and Specifications and, as a result thereof, completion of construction Substantial Completion (as hereinafter defined) of the Improvements is delayed beyond delayed, then for purposes of establishing the Lease Commencement DateDate and any other date tied to the date of Substantial Completion, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications Substantial Completion shall be paid in cash by deemed to mean the date when Substantial Completion would have been achieved but for such Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costdelay.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial CompletionSubstantially Complete the Improvements, at Landlord's ’s sole cost and expense, and have the Demised Premises ready for occupancy on or before March 21October 1, 20012007, provided that, subject to Special Stipulation 3 on Exhibit C hereto, Landlord shall not be liable to Tenant in any way for achieving Substantial Completion after such target date, and any such failure to complete by such target date shall not in any way affect the obligations of Tenant hereunder. In No liability whatsoever shall arise or accrue against Landlord by reason of its failure to deliver or afford possession of the event that Demised Premises, and Tenant hereby releases and discharges Landlord is unable from and of any claims for damage, loss, or injury of every kind whatsoever as if this Lease were never executed.
(c) Landlord shall notify Tenant at least ten (10) days prior to Substantially Complete the anticipated date of Substantial Completion of the Demised Premises, and a representative of Landlord and a representative of Tenant together shall, prior to such anticipated date, inspect the Demised Premises for occupancy by Tenant on or before March 21, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below), the Lease Commencement Date, the Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until to confirm that the Demised Premises are nearly Substantially Complete. Within fourteen (14) days after Substantial Completion of the Demised Premises, unless the Delay was a Tenant Delay (as defined below) in which event no adjustment shall be made for the number representative of days Landlord and a representative of Tenant Delay. In addition, in together shall generate a punchlist of defective or uncompleted items relating to the event that Landlord is unable to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below) (completion of construction of the "Penalty Date"), then from and after the adjusted Rent Commencement Date, Tenant shall receive a credit against Base Rent equal to two (2) days of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized Improvements other than any damage caused by Tenant, its contractors, employees or agents (the “Punchlist”). Landlord shall, within a reasonable time after the Punchlist is prepared and agreed upon by Landlord and Tenant, complete such incomplete work and remedy such defective work as its sole remedyis set forth on the Punchlist. All construction work performed by Landlord shall be deemed approved by Tenant in all respects except for items of said work which are not completed or do not conform to the Plans and Specifications and which are included on the Punchlist.
Appears in 1 contract
Construction of Demised Premises. (a) Within thirty ten (3010) days after the date hereofLease Date, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "Plans and Specifications") based upon on the Preliminary Planspreliminary plans and specifications and/or preliminary floor plans set forth on Exhibit "D" attached hereto and incorporated herein, covering all work to be performed by Landlord in constructing the Building and other interior improvements which shall be a part of for the Demised Premises. Tenant shall have five (5) calendar days after receipt of the Plans and Specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its requested changes to approve the Plans and Specifications. Tenant shall have no right A failure of any proposed plans or specifications to request any changes conform to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) days after its receipt thereof, then Tenant Exhibit "D" shall be deemed to have approved the Plans and Specifications and the same shall thereupon be finala proper basis for disapproval. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any Any subsequent changes to the said Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not and any resulting increases or decreases in the scope of work with respect to Landlord's work may (subject to the limitations in Section 4.1 hereof) be unreasonably withheld, conditioned or delayedtaken into account in calculating the total cost of Landlord's Work (as hereinafter defined). If after The work contemplated by the Plans and Specifications have been finalized pursuant (the "Landlord's Work") will be performed by Kajima Construction Services, Inc. ("General Contractor") under the terms of a contract ("Construction Contract") between Landlord and General Contractor. The fee to the procedures set forth hereinabove Tenant requests any Change Order and, as a result thereof, completion of construction General Contractor will not exceed five percent (5.0%) of the Improvements is delayed beyond total amount of the Lease Commencement DateConstruction Contract and the cost of the General Conditions for the Construction Contract will not, in the Term and Tenant's obligation aggregate, exceed $50,000.00. The Construction Contract will require the General Contractor to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Dateobtain at least two bids for each subcontract, from qualified subcontractors. Tenant may by Change Order replace will be allowed to specify one qualified subcontractor for each subcontract, who must be allowed to submit a bid to the materials called for in General Contractor before a subcontract is awarded. Before executing the Plans and Specifications with comparable materialsConstruction Contract, or with materials of a higher grade, but Tenant shall have no right to change Landlord will submit the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost breakdown to Tenant for preparing and administering Change Orders shall be Landlord's costreview.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant subject to the Plans occurrence of Permitted Delay (as defined in Section 18), use reasonable diligence to achieve Partial Completion and SpecificationsSubstantial Completion (as defined in subsection (g), and in accordance with the terms and conditions below) of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial Completion, at Landlord's sole cost and expense, and have the Demised Premises ready for occupancy in the manner and on or before March 21, 2001the dates hereinafter specified. In the event Landlord fails to achieve Partial Completion by May 15, 1997, as extended by Permitted Delay, or in the event Landlord fails to achieve Substantial Completion by June 15, 1997, as extended by Permitted Delay, then, in either such event, this Lease shall remain in full force and effect and the Lease Commencement Date, the Base Rent Commencement Date, and the Expiration Date shall be postponed one day for each day that either Partial Completion or Substantial Completion is delayed, until the Demised Premises are Substantially Complete. Notwithstanding the provisions of this Section 17(b), (i) in the event that Landlord is unable to Substantially Complete the Demised Premises for occupancy by Tenant on or before March 21August 16, 20011997, as extended by Ordinary Delay and Permitted Delay, then, provided Tenant Delay has not exercised its right to terminate this Lease pursuant to part (as defined below)ii) of this sentence, Base Rent shall automatically be abated following the Lease Commencement Date, the ultimate Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until beyond August 16, 1997, as extended by Permitted Delay, up to a maximum of forty-five (45) days, and (ii) irrespective of Permitted Delay, if Landlord fails to achieve Substantial Completion by October 1, 1997 (but subject to extension beyond October 1, 1997 for Tenant Delay and no other reason), Tenant shall have the right, at its option and as its sole and exclusive remedy, to terminate this Lease by written notice to Landlord given within ten (10) days following said date (provided that Substantial Completion has not occurred prior to Landlord's receipt of said termination notice), and thereafter neither Landlord nor Tenant shall have any further rights or obligations hereunder except as expressly provided herein to the contrary. Promptly following any such termination by Tenant hereunder, Landlord shall return the Pre-Paid Rent to Tenant.
(c) Upon Substantial Completion of the Demised Premises, a representative of Landlord and a representative of Tenant together shall inspect the Demised Premises and generate a punchlist of defective or uncompleted items relating to the completion of construction of the improvements within the Demised Premises. After such punchlist is prepared and agreed upon in writing by Landlord and Tenant ("Punchlist"), with each of Landlord and Tenant acting reasonably and in good faith, Landlord shall in accordance with the terms of this Lease (i) within thirty (30) calendar days thereafter complete such incomplete work and remedy such nonconforming or defective work as is set forth on the Punchlist, in accordance with the Plans and Specifications, and which are Substantially Completeof such a nature that completion thereof is reasonably practicable within thirty (30) days and (ii) complete all remaining items on the Punchlist with due diligence and within a time period, unless as to each particular item, which is reasonable, giving due regard for the Delay was nature of the work to be performed.
(d) Upon acceptance of the Demised Premises by Tenant, Tenant shall execute and deliver to Landlord a letter of acceptance confirming that the Lease Commencement Date and Base Rent Commencement Date, and Expiration Date remain as set forth in Section 1, or if revised pursuant to the terms hereof, setting forth such dates as so revised. Within thirty (30) calendar days after Substantial Completion, Landlord shall deliver to Tenant a written certification of Landlord's architect (the "Architect") of the square footage contained in the Demised Premises and the Building, based on measurement from the face of the exterior walls of the Building and the centerline of any interior demising walls. The square footage so certified by the Architect shall, except as hereinafter provided, conclusively determine the Demised Premises Square footage and the Building Square Footage for all purposes under this Lease, including, without limitation, calculation of Base Rent, Monthly Base Rent Installments and Tenant's Operating Expense Percentage. For a period of ten (10) calendar days after receipt of the certification from the Architect, Tenant shall have the right, at the expense of Tenant, to cause another architect or engineer to perform a second measurement of the Demised Premises and the Building for the the purpose of verifying the measurement by the Architect. If the measurement by Tenant's architect shows square footage for the Demised Premises or the Building which is more than 1.0% less than the amounts certified by the Architect, Landllord and Tenant shall attempt in good faith to resolve the discrepancy for a period of five (5) business days. If Landlord and Tenant are unable to resolve the discrepancy during such period, Landlord shall appoint a third architect, who must be reasonably acceptable to Tenant, to certify the square footage of the Building and the Demised Premises, and such certification shall conclusively determine the Demised Premises Square footage and the Building Square Footage for all purposes under this Lease, including, without limitation, calculation of Base Rent, Monthly Base Rent Installments and Tenant's Operating Expense Percentage. The Monthly Base Rent Installments shall be adjusted on the basis of the square footage of the Demises Premises, as determined in accordance with the foregoing, using the following amounts for calculation: Lease Years 1-5 $0.63 per square foot per month Lease Years 6-10 $0.70 per square foot per month
(e) Tenant shall have the right, upon the occurrence of Partial Completion to enter the Demised Premises in order to install racking and otherwise prepare the Demised Premises for occupancy. In connection with such entry, (i) Tenant shall comply with all terms and conditions of this Lease other than the obligation to pay rent, (ii) Tenant shall not interfere with Landlord's completion of the Demised Premises and (iii) Tenant shall not begin operation of its business. In addition, Tenant shall be entitled to store certain of its equipment in those portions of the Demised Premises designated by Landlord in writing prior to said storage; provided, however, that Tenant shall store such equipment in such a manner and in such locations as to minimize interference with Landlord's completion of the improvements within the Demised Premises. Tenant does hereby expressly acknowledge and agree that its storage of said equipment in the Demised Premises shall be at Tenant's sole risk, cost and expense, and that Landlord shall not be liable for and Tenant hereby releases Landlord from any and all liability for theft thereof or any damage thereto occasioned by any act of God or by any acts, omissions or negligence of any persons. Tenant does hereby further agree to indemnify, defend (with counsel reasonably acceptable to Landlord), and hold harmless Landlord and its employees, officers, directors, agents and contractors from and against any and all claims, liabilities, losses, actions, causes of action, demands, costs and expenses (including, without limitation, attorneys' fees at the trial and appellate levels) of any and every nature arising out of or in any way relating to Tenant's storage of said equipment as provided herein.
(f) For purposes of this Lease, the term "Substantial Completion" shall mean completion of construction of the Demised Premises in accordance with the Plans and Specifications, subject only to Punchlist items established pursuant to Section 17(c), so that Tenant can lawfully occupy and conduct its business at the Demised Premises, as evidenced by the delivery by Landlord to Tenant of a certificate of occupancy (or temporary certificate of occupancy or its equivalent) for the Demised Premises issued by the appropriate governmental authority. In the event Substantial Completion is delayed because of Tenant Delay (as defined below) in which event no adjustment shall be made Section 18), then Substantial Completion shall, for the number purpose of days of establishing the Lease Commencement Date, be deemed to mean the date when Substantial Completion would have been achieved but for such Tenant Delay. In additionFor purposes of this Lease, in the event that term "Partial Completion" shall mean completion of Landlord's Work to the following extent: sufficient completion of the warehouse to allow Tenant to commence, subject to compliance by Tenant with applicable law, installation of racking and other improvements within a leak-free interior. Notwithstanding the provisions of this Section 17, Landlord is unable to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and shall provide Tenant Delay with at least fifteen (as defined below) (the "Penalty Date"), then from and after the adjusted Rent Commencement Date, Tenant shall receive a credit against Base Rent equal to two (215) days prior written notice of Base Rent for each the anticipated date of Substantial Completion, and the Lease Commencement Date shall not occur prior to the expiration of such fifteen (15) day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized by Tenant, as its sole remedyperiod.
Appears in 1 contract
Samples: Lease Agreement (I Flow Corp /Ca/)
Construction of Demised Premises. (a) Within thirty (30) days after following the date hereofLease Date, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "Plans and Specifications") based upon the Preliminary Plans, covering all work to be performed by Landlord in constructing the Building Improvements (as defined in Section 8(a)(ii)), which Plans and other improvements which Specifications shall be based on the preliminary plans and specifications set forth on Exhibit B attached hereto and incorporated herein, including, without limitation, Tenant's operational plan (the "Operational Plan") incorporated therein by reference (collectively, the "Performance Specifications"), it being agreed by Landlord and Tenant that, unless specifically noted on a part separate summary sheet attached to the final Plans and Specifications and agreed to and initialed by authorized employees or agents of Landlord and Tenant, in the Demised Premisesevent of any conflict between the Plans and Specifications and such Performance Specifications, the latter shall control. Tenant shall have five (5) business days after receipt of the Plans plans and Specifications specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans plans and Specifications specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans plans and Specifications specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same exist as of the Lease Date or are otherwise contemplated by the Preliminary PlansPerformance Specifications. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) business days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant acknowledges that the Improvements are being constructed on a "fast track" basis and that Landlord shall have the right and option to submit various parts of the proposed Plans and Specifications from time to time during the aforesaid thirty (30) day period and the time period for approval of any part of the proposed plans and specifications shall commence upon receipt of each submission. Tenant shall at all times in its review of the Plans plans and Specificationsspecifications, and of any revisions thereto, act reasonably and in good faith. Tenant's approval of the final Plans and Specifications shall not constitute an opinion or agreement by Tenant that the Demised Premises will be structurally sufficient or that the final Plans and Specifications comply with applicable building codes and laws. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. If If, after the Plans and Specifications specifications have been finalized pursuant to the procedures set forth hereinabove hereinabove, Tenant requests any Change Order further changes to the Plans and specifications and, as a result thereof, completion of construction of the Improvements is delayed beyond solely due to Tenant's changes (and Landlord gives Tenant reasonable evidence of the Lease Commencement Datedate that substantial completion of the Improvements would have occurred but for delays caused by Tenant's changes), the Term shall nevertheless begin, and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin begin, on the Lease Commencement Date. Tenant may by Change Order replace Date and the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Base Rent Commencement Date. The cost to , respectively, that would have occurred hereunder but for such Tenant for preparing and administering Change Orders shall be Landlord's costchanges.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial Completion"substantially complete" the Improvements, at Landlord's sole cost and expense, and have the Demised Premises ready for occupancy on or before March 21November 15, 20011999. In the event that Landlord is unable to Substantially Complete If the Demised Premises for occupancy by are not substantially complete on that date, such failure to complete shall not in any way affect the obligations of Tenant on or before March 21, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below), hereunder except that the Lease Commencement Date, the Base Rent Commencement Date Date, and the Expiration Date shall be postponed one day for each day Substantial Completion substantial completion is delayed until the Demised Premises are Substantially Completesubstantially complete, unless the Delay was delay is caused by Tenant's disapproval of any revised portions of the Plans and specifications (except to the extent Tenant's disapproval is as a result of Landlord having failed reasonably to incorporate reasonable comments of Tenant), or by change orders requested by Tenant Delay after approval of the Plans and Specifications; provided, however, that (x) in the event the Demised Premises are not substantially complete on or before November 15, 1999, as extended by "Construction Delay" (as defined below), and provided Tenant has not exercised its right to terminate this Lease as provided in part (y) in which event no adjustment of this sentence, then for each day after the ultimate Base Rent Commencement Date Tenant shall receive "free" Base Rent (i.e., Base Rent shall be made waived) on a one (1) for the number of days of Tenant one (1) basis for each day substantial completion was delayed beyond November 15, 1999, as extended by Construction Delay. In addition, and (y) in the event that Landlord is unable to achieve Substantial Completion substantial completion on or before March 22February 15, 20012000, as extended by Ordinary Delay Construction Delay, Tenant may, at its option and as its sole and exclusive remedy, terminate this Lease by written notice to Landlord given on or before February 29, 2000 (provided that substantial completion has not occurred prior to Landlord's receipt of said termination notice), and thereafter neither Landlord nor Tenant shall have any further obligation hereunder. Except as set forth in this subsection (b), no liability whatsoever shall arise or accrue against Landlord by reason of its failure to deliver or afford possession of the Demised Premises, and Tenant Delay (as defined below) (the "Penalty Date"), then hereby releases and discharges Landlord from and of any claims for damage, loss, or injury of every kind whatsoever as if this Lease were never executed. For purposes of this Lease, the term "Construction Delay" shall mean delays incurred by reason of Tenant's failure to deliver the Operation Plan by August 1, 1999, Tenant's failure to approve the Plans and Specifications as set forth in Section 17(a) or changes requested by Tenant in the Plans and Specifications after Tenant's approval thereof, and for such additional time as is equal to the adjusted Rent Commencement time lost by Landlord or Landlord's contractors or suppliers in connection with the performance of Landlord's work and/or the construction of the Demised Premises and related improvements due to industry-wide strikes or other labor troubles that are not specific to Landlord or the Demised Premises, governmental restrictions and limitations not known to Landlord (or reasonably capable of being known to Landlord) as of the Lease Date, war or other national emergency, non-availability of materials or supplies, delay in transportation, accidents, floods, fire, damage or other casualties, weather or other conditions, acts or omissions of Tenant, or delays by utility companies in bringing utility lines to the Demised Premises to the extent not resulting from Landlord's failure to order or apply for the same in a timely manner. For purposes of this Lease, the term "substantial completion" or any grammatical variation thereof shall mean sufficient completion of construction of the Demised Premises in accordance with the Plans and Specifications (including the Performance Specifications) so that Tenant shall receive a credit against Base Rent equal can lawfully occupy the Demised Premises for the uses permitted herein, subject only to two (2) days minor punchlist items, the completion of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized which will not interfere with such permitted uses by Tenant, as evidenced by the delivery by Landlord to Tenant of (i) a Certificate of Occupancy or its sole remedyequivalent (or Temporary Certificate of Occupancy or its equivalent) for the Demised Premises issued by the appropriate governmental authority if so required by applicable law, and (ii) a Certificate of Substantial Completion on standard AIA Form G-704 certified by Landlord's architect, working in good faith together with such duly licensed Tennessee architect, if any, as may be selected by Tenant as Tenant's architect by written notice to Landlord given, if at all, within thirty (30) days of the Lease Date.
Appears in 1 contract
Samples: Industrial Lease Agreement (Barnesandnoble Com Inc)
Construction of Demised Premises. (a) Within thirty (30) days after the date hereofLease Date, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "Plans and Specifications") based upon on the Preliminary Planspreliminary plans and specifications and/or preliminary floor plans set forth on Exhibit B attached hereto and incorporated --------- herein, covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part Improvements (as defined in Section 8(a)(ii)), together with Landlord's reasonable estimate of the Demised Premisescost to construct the Allowance Improvements (as defined in Special Stipulation 3 of Exhibit C to this Lease); provided, however, that Tenant acknowledges that such estimate of the cost to construct the Allowance Improvements will be only an estimate, and shall have no affect on any obligation Tenant may have under said Special Stipulation 3 to reimburse Landlord for the cost to construct the Allowance Improvements to the extent such cost exceeds the Tenant Allowance (as defined in said Special Stipulation 3). Tenant shall have five ten (510) days after receipt of the Plans and Specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. Landlord agrees to reasonably cooperate with Tenant during such ten (10) day period to value engineer the Plans and Specifications. If Tenant fails to approve or request changes to the Plans and Specifications by five ten (510) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications Specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant acknowledges that Landlord shall have the right and option to submit various parts of the proposed Plans and Specifications from time to time during the aforesaid thirty (30) day period and the time period for approval of any part of the proposed Plans and Specifications shall commence upon receipt of each submission provided that Landlord gives Tenant written notice that Tenant's approval is required in connection with such submitted part. Tenant shall at all times in its review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order further changes to the Plans and Specifications and, as a result thereof, completion of construction Substantial Completion (as hereinafter defined) of the Improvements is delayed beyond delayed, then for purposes of establishing the Lease Commencement Date, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications Substantial Completion shall be paid in cash by deemed to mean the date when Substantial Completion would have been achieved but for such Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costdelay.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial CompletionSubstantially Complete the Improvements, at Landlord's sole cost and expense, and have the Demised Premises ready for occupancy on or before March 21, 2001. In the event that Landlord is unable to Substantially Complete Lease Commencement Date set forth in Section 1(f).
(i) If the Demised Premises for occupancy by Tenant are not Substantially Complete on or before March 21that date (as such date is, 2001and shall be, extended as a result of Ordinary Delay, as extended by Ordinary Delay and Tenant Delay (as defined belowhereinafter defined, the "Target Completion Date"), such failure to complete shall not in any way affect the obligations of Tenant hereunder except that (A) the Lease Commencement Date, the Base Rent Commencement Date and the Expiration Date shall be postponed one (1) day for each day Substantial Completion is delayed until beyond the Demised Premises are Substantially CompleteTarget Completion Date, unless and (B) commencing on the Delay was a Tenant Delay Target Completion Date and continuing through and including February 1, 2001 (as defined below) in which event no adjustment such date is, and shall be made for the number be, extended as a result of days of Tenant Ordinary Delay. In addition, in the event that Landlord is unable to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below) (the "Penalty First Delay Date"), then from and after the adjusted Rent Commencement Date, Tenant shall receive a credit against Base Rent (but not Additional Rent) in an amount equal to two the product of (1) $3,186.77, and (2) the number of days of that Substantial Completion is delayed beyond the Target Completion Date, and (C) commencing on the date immediately following the First Delay Date and continuing through and including the date that the Improvements are Substantially Complete, Tenant shall receive a credit against Base Rent for each day in an amount equal to the product of (1) $6,373.54, and (2) the number of days that Substantial Completion is delayed beyond the First Delay Date.
(excluding ii) Notwithstanding subsection (i) above, in the event that the Improvements are not Substantially Complete on or before May 1, 2001 (as such date is, and shall be, extended as a result of Ordinary Delay and Tenant Delay) beyond , as hereinafter defined, being hereinafter referred to as the Penalty Date until said credit is fully realized by Tenant"Outside Delivery Date"), Tenant may, at its option and as its sole and exclusive remedy, terminate this Lease by written notice to Landlord given on or before the tenth (10th) day following the Outside Delivery Date (provided that Substantial Completion has not occurred prior to Landlord's receipt of said termination notice), and thereafter neither Landlord nor Tenant shall have any further obligation hereunder.
(iii) Except as set forth in this subsection (b), no liability whatsoever shall arise or accrue against Landlord by reason of its failure to deliver or afford possession of the Demised Premises, and Tenant hereby releases and discharges Landlord from and of any claims for damage, loss, or injury of every kind whatsoever as if this Lease were never executed.
(iv) For purposes of this Lease, the term (A) "Tenant Delay" shall mean delay resulting Tenant's failure to approve the Plans and Specifications as set forth in Section 17(a), by change orders requested by Tenant after approval of the Plans and Specifications (but only to the extent such requests actually result in delay), or acts or omissions of Tenant, and (B) "Ordinary Delay" shall mean such additional time as is equal to the time lost by Landlord or Landlord's contractors or suppliers in connection with the performance of Landlord's work and/or the construction of the Demised Premises and related improvements due to strikes or other labor troubles, governmental restrictions and limitations, war or other national emergency, non-availability of materials or supplies, delay in transportation, accidents, floods, fire, damage or other casualties, weather or other conditions, or delays by utility companies in bringing utility lines to the Demised Premises.
Appears in 1 contract
Construction of Demised Premises. (a) Within thirty (30) days after the date hereof, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications (collectively, the "Plans and Specifications") based upon the Preliminary Plans, covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part of the Demised Premises. Tenant shall have five ten (510) days after receipt of the Plans and Specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five ten (510) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications Specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant Each party shall at all times in its the preparation and review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order and, as a result thereof, completion of construction of the Improvements is delayed beyond the Lease Commencement Date, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon within fifteen (15) days of Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Datecost. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costcost plus ten percent (10%) of such amount as Landlord's overhead. In the event that Change Orders result in a reduction of the costs reflected in the Plans and Specifications, Tenant shall be entitled to a reduction in the first Monthly Base Rent Installment equal to the amount of such savings realized.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial Completion, at Landlord's sole cost and expense, on or before March 21December 1, 2001. In the event 1999, provided that Landlord shall not be liable to Tenant in any way for achieving Substantial Completion after such target date.
(d) No later than the date which is unable forty-five (45) days prior to Substantially Complete the estimated date of Substantial Completion, Landlord shall give Tenant written notice that Landlord estimates Substantial Completion will occur approximately forty-five (45) days thereafter. Upon receipt of such notice, Tenant may commence construction and installation of Tenant's improvements and fixtures within the Demised Premises (herein referred to as "Tenant's Work"). Landlord and Tenant shall cause their respective workmen to work in cooperation with each other.
(e) The Substantial Completion target date of December 1, l999 shall be extended for occupancy one (1) day for each day that Substantial Completion is delayed:
(i) as a result of the failure by Tenant on to timely approve or before March 21disapprove the Plans and Specifications, 2001or as a result of Change Orders or other changes requested by Tenant in the Plans and Specifications after the Tenant's approval thereof (collectively referred to herein as "Tenant Delay"); or
(ii) due to strikes or other labor troubles not specific to the Demised Premises, governmental restrictions and limitations, war or other national emergency, non-availability of materials or supplies, delay in transportation, accidents, floods, fire, damage or other casualties, weather or acts or omissions of Tenant, or delays by utility companies in bringing utility lines to the Demised Premises, and other circumstances beyond the reasonable control of Landlord (collectively referred to herein as extended by "Ordinary Delay Delay"). The inability or refusal of Landlord to make any monetary payment shall not constitute or result in an Ordinary Delay.
(f) On or prior to the date of Substantial Completion of the Demised Premises, a representative of Landlord and a representative of Tenant Delay together shall inspect the Demised Premises and, within fifteen (as defined below15) days thereafter, generate a punchlist of defective or uncompleted items relating to the completion of construction of the improvements within the Demised Premises (the "Punchlist"), which Punchlist shall indicate the estimation by the parties of the cost of each item. Landlord shall, within fifteen (15) days (or such other reasonable time) after the Punchlist is prepared and agreed upon by Landlord and Tenant, complete such incomplete work and remedy such defective work as are set forth on the Punchlist.
(g) Upon the Lease Commencement Date, Tenant shall execute and deliver to Landlord a letter confirming (i) the Lease Commencement Date, the Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until of this Lease, (ii) that Tenant accepts the Demised Premises are Substantially Completesubject only to Landlord's completion of the items listed on the Punchlist.
(h) Landlord hereby warrants to Tenant that the materials and equipment furnished by Landlord's contractors in the completion of Landlord's Work will be of good quality and new, unless that during the Delay was a Tenant Delay one (as defined below1) in which event no adjustment year period following the date of Substantial Completion of Landlord's Work, such materials and equipment and the work of such contractors shall be made for the number of days of Tenant Delay. In addition, free from defects not inherent in the event quality required or permitted hereunder, and that Landlord is unable such work will conform to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay the Plans and Tenant Delay (as defined below) Specifications (the foregoing referred to herein as "Penalty DateLandlord's Warranty"). This warranty shall exclude damages or defects caused by abuse by Tenant and Tenant's Affiliates, then from improper or insufficient maintenance, improper operation, or normal wear and after the adjusted Rent Commencement Date, Tenant shall receive a credit against Base Rent equal to two (2) days of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized by Tenant, as its sole remedytear under normal usage.
Appears in 1 contract
Samples: Industrial Lease Agreement (Global Directmail Corp)
Construction of Demised Premises. (a) Within thirty (30) days after the date hereof, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a complete set of plans and specifications and construction drawings (collectively, the "Plans and Specifications") based upon the Preliminary Plans, covering all work to be performed by Landlord in constructing the Building and other interior improvements which shall be a part of for the Demised Premises. Said Plans and Specifications shall be in such detail as Landlord may require and shall be in compliance with all applicable statutes, ordinances and regulations. Tenant shall have five (5) days after receipt of approve the Plans and Specifications by the date set forth in which to review and to give to Landlord in original also written notice of its approval l(l) of the Plans and Specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary PlansBasic Lease Provisions. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) days after its receipt thereofsuch date, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days completion of its receipt of such request submit the revised portion construction of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove requirements is delayed beyond the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoingCommencement Date, the Plans Term and Specifications as modified by said revisions, Tenant's obligation to pay rent hereunder shall be deemed to be final upon nevertheless begin on the submission of said revisions to TenantRent Commencement Date. Tenant shall at all times in its review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any Any subsequent changes to the said Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order and, as a result thereof, completion of construction of the Improvements is delayed beyond the Lease Commencement Date, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's cost.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial Completionsubstantially complete the improvements within the Demised Premises, at Landlord's sole cost and expense, have Demised Premises ready for occupancy on or before March 21, 2001the Commencement Date. In If Landlord shall be unable to give possession of the event Demised Premises on that date or if the construction has begun and Landlord is unable due to Substantially Complete Delay (as hereinafter defined) to complete the Demised Premises for occupancy by Tenant improvements on or before March 21that date, 2001, as extended by Ordinary Delay such failure to give possession shall not in any way affect the obligation of Tenant hereunder except that the Minimum Rent and Tenant Delay (as defined below), the Lease Commencement Date, the Base Additional Rent Commencement Date and the Expiration Date obligation shall be postponed one day for each day Substantial Completion is delayed not occur until the Demised Premises are Substantially Completemade available for occupancy by Tenant, unless such failure to give possession has been caused by any act or omission on the Delay was a part of Tenant; and Landlord and Tenant Delay agree that the Term xxxxx be extended b@ the period of such Delay. No liability whatsoever shall arise or accrue against Landlord any reason of its failure to deliver or afford possession, and Tenant hereby releases and discharges Landlord from and of any claims for damage, loss, or injury of every kind whatsoever as if this Lease were never executed.
(as defined belowc) in which event no adjustment The construction period shall be made extended for delays ("Delay") incurred by reason of changes requested by Tenant In the number Plans and Specifications after the Tenant's approval thereof, and for such additional time as is equal to the time lost by Landlord or Landlord's contractors or suppliers in connection with the performance of days Landiord's work and/or the construction of the Building and related improvements due to strikes or other labor troubles, governmental restrictions and limitations, war or other national emergency, non-availabi]ily of materials or supplies, delay in transportation, accidents, floods, fire, damage or other casualties, weather or other conditions, acts or omissions of Tenant, or delays by utility companies in bringing utility lines to the Demised Premises.
(d) Upon substantial completion of the Demised Premises, a representative of Landlord and a representative of Tenant Delaytogether shall inspect the Demised Premises and generate a punchlist of defective or uncompleted items relating to the completion of construction of the Improvements within the Demised Premises. In additionLandlord shall, within a reasonable time after such punchlist is prepared and agreed upon by Landlord and Tenant, complete such Incomplete work and remedy such defective work as are set forth on the punchlist. All construction work performed by Landlord shall be deemed approved by Tenant in all respects except for items of said work which are not completed or do not conform to the event that Landlord is unable to achieve Substantial Completion Plans and Specifications and which are included on or before March 22, 2001, as extended the punchlist.
(e) Upon acceptance of the Demised Premises by Ordinary Delay and Tenant Delay (as defined below) (the "Penalty Date"), then from and after the adjusted Rent Commencement DateTenant, Tenant shall receive execute and deliver to Landlord a credit against Base Rent equal letter of acceptance confirming that the Commencement Date and Expiration Date remain as set forth in the Basic Lease Provisions, or if revised pursuant to two (2) days of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty terms hereof, setting forth the Commencement Date until said credit is fully realized by Tenant, and Expiration Date as its sole remedyso revised.
Appears in 1 contract
Construction of Demised Premises. (a) Within thirty (30) days after the date hereofEffective Lease Date, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "Plans and Specifications") based upon on the Preliminary Planspreliminary plans and specifications and/or preliminary floor plans set forth on Exhibit B attached hereto and incorporated herein, covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part of the Demised PremisesImprovements (as defined in Section 8(a)(ii)). Tenant shall have five ten (510) days after receipt of the Plans plans and Specifications specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans plans and Specifications specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans plans and Specifications specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five ten (510) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Landlord and Tenant shall at all times in its their respective preparation or review of the Plans plans and Specificationsspecifications, and of any revisions thereto, act reasonably and in good faith. Tenant acknowledges that the Improvements are being constructed on a "fast track" basis and that Landlord shall have the right and option to submit various parts of the proposed Plans and Specifications from time to time during said thirty (30) day period and the time period for approval of any part of the proposed plans and specifications shall commence upon receipt of each submission. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. In the event Landlord approves any such requested Change Order, Landlord shall give written notice thereof to Tenant, which notice will specify the Change Order approved by Landlord as well as the estimated incremental cost thereof. The cost to Tenant for Change Orders shall be Landlord's incremental cost plus fifteen percent (15%) of such amount as Landlord's overhead. Tenant acknowledges and agrees that Landlord shall be under no obligation to proceed with any work related to the approved Change Order unless and until Tenant delivers to Landlord an amount equal to the full estimated incremental cost of such approved Change Order as set forth in Landlord's notice. When the final incremental cost of any such Change Order has been determined and incurred, Landlord and Tenant each agree to pay or refund the amounts owed to the other with respect to such Change Order, based on the estimated payment made to Landlord. If after the Plans and Specifications specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any a Change Order or any further changes to the Plans and specifications and, as a result thereof, completion of construction Substantial Completion (as hereinafter defined) of the Improvements is delayed beyond delayed, then for purposes of establishing the Lease Commencement DateDate and any other date tied to the date of Substantial Completion, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications Substantial Completion shall be paid in cash by deemed to mean the date when Substantial Completion would have been achieved but for such Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costdelay.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial CompletionSubstantially Complete the Improvements, at Landlord's sole cost and expense, and have the Demised Premises ready for occupancy on or before March 21the anticipated Lease Commencement Date of October 1, 20012004 set forth in Section 1(f). In the event that Landlord is unable to Substantially Complete If the Demised Premises for occupancy by are not Substantially Complete on that date, such failure to complete shall not in any way affect the obligations of Tenant on or before March 21, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below), hereunder except that the Lease Commencement Date, Date and the Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until the Demised Premises are Substantially Complete, unless the Delay was a Tenant Delay delay is caused by (i) Tenant's failure to approve or disapprove the Plans and Specifications as defined below) set forth in which event no adjustment shall be made for the number of days of Tenant Delay. In addition, in the event that Landlord is unable to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below) (the "Penalty Date"Section 17(a), then from and after the adjusted Rent Commencement Date, Tenant shall receive a credit against Base Rent equal to two (2ii) days of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized by Tenant, as its sole remedy.change orders requested by
Appears in 1 contract
Construction of Demised Premises. (a) Within thirty (30) days after the date hereof, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant have agreed on a set of plans and specifications and/or construction drawings (collectively, the "“Plans and Specifications"”) based upon the Preliminary Plansas set forth on Exhibit B attached hereto and incorporated herein, covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part of the Demised PremisesImprovements (as defined in Section 8(a)(ii)). Tenant shall have five (5) days after receipt of the Plans and Specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any Any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably and the related costs of construction, requested by Tenant and shall within ten (10) days or to comply with any law, rule, or ordinance as a result of its receipt of such request submit the revised portion Tenant’s particular use of the Plans and Specifications to Tenant. Demised Premises (collectively, “Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order"Changes”) shall be at Tenant's ’s sole cost and expense and subject to Landlord's ’s written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Tenant agrees to pay the xxxx for such changes and costs in full to Landlord within ten (10) calendar days following receipt of such xxxx. If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order and, as a result thereof, completion of construction of the Improvements is delayed beyond the Lease Commencement DateDate as a result of Tenant Changes, the Term and Tenant's ’s obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's cost.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial Completionsubstantially complete the Improvements, at Landlord's ’s sole cost and expenseexpense except for Tenant Changes (as described in subparagraph (a) above), and have the Demised Premises ready for occupancy on or before March 21, 2001the Lease Commencement Date set forth in Section 1(f). In the event that Landlord is unable to Substantially Complete If the Demised Premises are not substantially complete on that date, such failure to complete shall not in any way affect the obligation of Tenant hereunder except that the Lease Commencement Date, the Base Rent Commencement Date, and the Expiration Date shall be postponed one day for occupancy each day substantial completion is delayed until the Demised Premises are substantially complete, unless the delay is caused by Tenant on Changes. No liability whatsoever shall arise or before March 21accrue against Landlord by reason of its failure to deliver or afford possession of the Demised Premises, 2001, as extended by Ordinary Delay and Tenant Delay hereby releases and discharges Landlord from and of any claims for damage, loss, or injury of every kind whatsoever as if this Lease were never executed. See Special Stipulation 5 on Exhibit C hereto.
(c) Upon substantial completion of the Demised Premises, a representative of Landlord and a representative of Tenant together shall inspect the Demised Premises and generate a punchlist of defective or uncompleted items relating to the completion of construction of the Improvements (the “Punchlist”). Landlord shall, within a reasonable time after the Punchlist is prepared and agreed upon by Landlord and Tenant, complete such incomplete work and remedy such defective work as defined below)is set forth on the Punchlist. All construction work performed by Landlord shall be deemed approved by Tenant in all respects except for items of said work which are not completed or do not conform to the Plans and Specifications and which are included on the Punchlist.
(d) Upon substantial completion of the Demised Premises and the creation of the Punchlist, Tenant shall execute and deliver to Landlord a letter of acceptance in which Tenant (i) accepts the Demised Premises subject only to Landlord’s completion of the items listed on the Punchlist and (ii) confirms that the Lease Commencement Date, the Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until remain as set forth in Section 1, or if revised pursuant to the Demised Premises are Substantially Completeterms hereof, unless setting forth such dates as so revised.
(e) Landlord hereby warrants to Tenant that the Delay was a Tenant Delay (as defined below) in which event no adjustment shall be made for the number of days of Tenant Delay. In addition, materials and equipment furnished by Landlord’s contractors in the event completion of the Improvements will be of good quality and new, that Landlord is unable to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and Tenant Delay during the one (as defined below1) (year period following the "Penalty Date"), then from and after the adjusted Rent Lease Commencement Date, such materials and equipment and the work of such contractors shall be free from defects not inherent in the quality required or permitted hereunder, and that such work will conform to the Plans and Specifications. This warranty shall exclude damages or defects caused by Tenant shall receive a credit against Base Rent equal to two (2) days of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized by or Tenant’s Affiliates, as its sole remedyimproper or insufficient maintenance, improper operation, or normal wear and tear under normal usage.
Appears in 1 contract
Samples: Industrial Lease Agreement (Tandy Brands Accessories Inc)
Construction of Demised Premises. (a) Within thirty Tenant shall be responsible for constructing the interior improvements within the Demised Premises (30) days after the date hereof, “Improvements”). Landlord and Tenant acknowledge and agree that Xxxxxxxxxx Design Group shall prepare, at Landlord's sole cost act as Tenant’s architect and expense, Xxxxxx Construction Company shall act as Tenant’s construction contractor. Tenant shall prepare and submit to Tenant Landlord for Landlord’s written approval or disapproval (which approval will not be unreasonably withheld or conditioned) a complete set of plans and specifications and construction drawings (collectively, the "“Plans and Specifications"”) based upon on the Preliminary Planspreliminary plans and specifications and/or preliminary floor plans set forth on Exhibit B attached hereto and incorporated herein, covering all work to be performed by Landlord in constructing the Building Improvements. The Plans and other improvements which Specifications shall be a part in such detail as Landlord may reasonably require and shall be in compliance with all applicable statutes, ordinances and regulations; provided, however, that Landlord’s approval of the Demised PremisesPlans and Specifications shall not be deemed to be a warranty or representation that the Plans and Specifications comply with all applicable statutes, ordinances and regulations. Tenant Landlord shall have five review the Plans and Specifications and indicate requested changes, if any, by written notice to Tenant, within fifteen (515) days after receipt of the Plans and Specifications in which by Landlord. If Landlord fails to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its indicate such requested changes to the Plans and SpecificationsSpecifications by such date, the Plans and Specifications shall be deemed approved. Tenant shall have no right to request Thereafter, any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's ’s written approval, which approval shall not be unreasonably withheld, conditioned or delayed. If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order a changes to the Plans and Specifications and, as a result thereof, completion of construction Substantial Completion (as hereinafter defined) of the Improvements is delayed beyond delayed, then for purposes of establishing the Lease Commencement DateDate and any other date tied to the date of Substantial Completion, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications Substantial Completion shall be paid in cash by deemed to mean the date when Substantial Completion would have been achieved but for such Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costdelay.
(b) Landlord shallshall deliver the Demised Premises to Tenant within three (3) days following the Lease Date. The Demised Premises as so delivered shall consist of a building shell with sprinkler system but without demising walls. Tenant hereby expressly acknowledges and agrees that it shall accept, at its sole cost and expenseshall be deemed to have accepted, construct the Building Demised Premises AS IS, WHERE IS, and other improvements pursuant as suitable for the purposes for which the same are leased hereby. Notwithstanding the foregoing, Tenant’s acceptance of the Demised Premises prior to the Plans and SpecificationsLease Commencement Date shall not be deemed to create an obligation to pay Base Rent or Additional Rent prior to the dates set forth herein, and in accordance provided that Tenant shall otherwise comply with all of the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy upon acceptance of the Building and other improvementsDemised Premises. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord or its contractor shall use reasonable speed and diligence to achieve construct the Improvements in a good, first-class, workmanlike and timely manner and in accordance with the Plans and Specifications. Tenant shall carry, or cause its contractor to carry, insurance reasonably satisfactory to Landlord throughout the construction of the Improvements. Except as expressly set forth in Section 17(g) below, regardless of whether or not Tenant is able to Substantially Complete the Improvements or commence business operations from the Demised Premises by March 1, 2009, the Base Rent Commencement Date, Tenant’s obligation to pay Base Rent and Additional Rent hereunder shall nevertheless begin on such date.
(c) Upon Substantial Completion of the Demised Premises, a representative of Landlord and a representative of Tenant together shall inspect the Demised Premises and generate a punchlist of defective or uncompleted items relating to the completion of construction of the Improvements (the “Punchlist”). Tenant’s contractor shall, within a reasonable time after the Punchlist is prepared and agreed upon by Landlord and Tenant, complete such incomplete work and remedy such defective work as is set forth on the Punchlist. All construction work shall be deemed approved by Tenant in all respects except for items of said work which are included on the Punchlist.
(d) Notwithstanding anything to the contrary contained herein, Landlord shall be responsible for the cost of the construction of the Improvements only up to an amount equal to $1,040,345.00 (the “Tenant Allowance”). Landlord shall reimburse Tenant for Tenant’s costs (as defined in subsection (f) below) incurred in constructing the Improvements, up to the amount of the Tenant Allowance as follows:
(1) During construction of the Improvements, Landlord shall make periodic payments (but not more often than once a month) of up to an aggregate amount equal to seventy-five percent (75%) of the amount of the Tenant Allowance to Tenant at such time as:
(i) Tenant has delivered to Landlord copies of Tenant’s building permit (applies to the initial progress payment only);
(ii) Tenant has received Landlord’s written approval of the Plans and Specifications (applies to the initial progress payment only);
(iii) Tenant has submitted a written request for payment directly to Landlord, together with a corresponding application for payment from Tenant’s contractor, indicating the level of completion of the Improvements;
(iv) Tenant’s contractor has completed the stated portion of the Improvements within the Demised Premises, as evidenced by a certificate from Tenant’s architect and invoices, receipts and other evidence reasonably required by Landlord to evidence the cost of the Improvements made as of the date of Tenant’s request for payment; and
(v) Tenant has delivered to Landlord partial lien waivers for the completed portion of the Improvements, from Tenant’s contractor, all subcontractors and all laborers or material suppliers having performed any work at the Demised Premises relating to the completed portion of the Improvements.
(2) Landlord shall pay the remaining twenty-five percent (25%) of the Tenant Allowance to Tenant at such time that Tenant’s contractor has:
(i) Substantially Completed the Improvements as established by the delivery by Tenant to Landlord of (i) a certificate of occupancy or its equivalent (or temporary certificate of occupancy or its equivalent) for the Demised Premises issued by the appropriate governmental authority, if a certificate is so required by a governmental authority, and (ii) a Certificate of Substantial Completion for the Improvements on Standard AIA Form G-704 certified by Tenant’s architect;
(ii) delivered to Landlord lien waivers and affidavits from Tenant’s contractor, all subcontractors, and all laborers or materials suppliers having performed any work at the Demised Premises relating to the Improvements, together with any other evidence reasonably required by Landlord to satisfy Landlord’s title insurer that there are no parties entitled to file a lien against the real property underlying the Project in connection with such work; and
(iii) delivered to Landlord all invoices, receipts and other evidence reasonably required by Landlord to evidence the cost of the Improvements.
(e) For purposes of this Lease, the term “Substantial Completion” (or any variation thereof) shall mean completion of construction of the Improvements in accordance with the Plans and Specifications, at Landlord's sole cost subject only to Punchlist items established pursuant to Section 17(c), as established by the delivery by Tenant to Landlord of (i) a certificate of occupancy or its equivalent (or temporary certificate of occupancy or its equivalent) for the Demised Premises issued by the appropriate governmental authority, if a certificate is so required by a governmental authority, and expense, (ii) a Certificate of Substantial Completion for the Improvements on or before March 21, 2001Standard AIA Form G-704 certified by Tenant’s architect. In the event that Landlord Substantial Completion is unable to Substantially Complete the Demised Premises for occupancy by Tenant on or before March 21, 2001, as extended by Ordinary Delay and Tenant delayed because of any delay other than Force Majeure Delay (as defined in Section 17(g) below), then for the purpose of establishing the Lease Commencement Date and any other date tied to the date of Substantial Completion, Substantial Completion shall be deemed to mean the date when Substantial Completion would have been achieved but for such delay.
(f) Tenant hereby expressly acknowledges and agrees that in the event that following the final approval of the Plans and Specifications, Landlord reasonably determines that modifications to the base Building required in connection with the construction of the Improvements will cost in excess of $50,000 to repair and restore upon the expiration or earlier termination of this Lease, Tenant shall provide Landlord with an additional cash security deposit or letter of credit in an amount reasonably determined by Landlord to be held by Landlord pursuant to Section 5 hereof. Landlord shall provide written notice to Tenant specifying the amount of the additional security deposit required within thirty (30) days after the date of approval of the final Plans and Specifications. Tenant agrees to deliver to Landlord such amount within ten (10) days following receipt of notice requesting the same. Failure by Tenant to make such payment to Landlord shall be a default hereunder. Tenant further hereby expressly acknowledges and agrees that, notwithstanding anything in this Lease to the contrary, any and all wall panel systems installed within the Demised Premises in connection with the construction of the Improvements or thereafter shall remain the property of Landlord upon the expiration or earlier termination of this Lease.
(g) For purposes of this Lease, “Force Majeure Delay” shall mean delays incurred for such additional time as is equal to the time lost by Tenant’s contractors in connection with the completion of the Improvements as a result of a casualty to the Building or Building Common Area which precludes access to either the Building or the Demised Premises. Tenant shall notify Landlord in writing within fifteen (15) days after the commencement of any event which Tenant feels constitutes a Force Majeure Delay and Landlord and Tenant shall mutually agree upon the number of days of Force Majeure Delay as a result of such casualty. To the extent Substantial Completion is delayed because of Force Majeure Delay, then the Lease Commencement Date, the Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until the Demised Premises are Substantially Complete, unless the Delay was a Tenant Delay (as defined below) in which event no adjustment shall be made for the number of days of Tenant due to Force Majeure Delay. In addition, in the event that Landlord is unable to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below) (the "Penalty Date"), then from and after the adjusted Rent Commencement Date, Tenant shall receive a credit against Base Rent equal to two (2) days of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized by Tenant, as its sole remedy.
Appears in 1 contract
Samples: Industrial Lease Agreement (Dirtt Environmental Solutions LTD)
Construction of Demised Premises. (aNotwithstanding the provisions of Section 18(c) Within thirty (30) days after the date hereof, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications (collectively, the "Plans and Specifications") based upon the Preliminary Plans, covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part of the Demised Premises. Tenant shall have five (5) days after receipt of the Plans and Specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order and, as a result thereof, completion of construction of the Improvements is delayed beyond the Lease Commencement Date, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials whichthis Lease, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's cost.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial Completion, at Landlord's sole cost and expense, on or before March 21, 2001. In the event that Landlord is unable to Substantially Complete substantially complete the Demised Premises for occupancy by Tenant on or before March 21, 2001the date which is two hundred eighty-five (285) days after the Lease Date, as extended by Ordinary Delay and Tenant Delay (as defined belowbelow (the "Possession Date"), Tenant shall, beginning on the Lease Commencement Date, the be entitled to a credit against Base Rent Commencement Date equal to one and one-half days of Base Rent payable under the Expiration Date shall be postponed one day Lease for each day Substantial Completion is delayed until after the Possession Date that the Demised Premises are Substantially Complete, unless the Delay was a Tenant Delay (as defined below) in which event no adjustment shall be made for the number of days of Tenant Delaynot substantially complete. In addition, in the event that Landlord is unable to achieve Substantial Completion substantially complete the Demised Premises for occupancy by Tenant on or before March 22, 2001the date which is three hundred forty-five (345) days after the Lease Date, as extended by Ordinary Delay and Tenant Delay (as defined below) (the "Penalty Date"), then from may, at its option and after the adjusted Rent Commencement Date, Tenant shall receive a credit against Base Rent equal to two (2) days of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized by Tenant, as its sole remedy, terminate this Lease by written notice to Landlord given within thirty (30) days following the expiration of such three hundred forty-five (345) day period (provided that substantial completion has not occurred prior to Landlord's receipt of said termination notice), and thereafter neither Landlord nor Tenant shall have any further obligation hereunder. For purposes of this Lease, "Delay" shall mean delays incurred by reason of (a) Tenant's failure to approve the Plans and Specifications as set forth in Section 18(a) or changes requested by Tenant in the Plans and Specifications after Tenant's approval thereof, and (b) time lost by Landlord or Landlord's contractors or suppliers in connection with the performance of Landlord's work and/or the construction of the Building and related improvements due to strikes or other labor troubles, governmental restrictions and limitations, war or other national emergency, non-availability of materials or supplies, delay in transportation, accidents, floods, fire, damage or other casualties, weather or other conditions, acts or omissions of Tenant, or (c) delays by utility companies in bringing utility lines to the Demised Premises or (d) the time necessary for Landlord to cure any Tenant objection to a Title Defect as more particularly described in Special Stipulation 8 below.
Appears in 1 contract
Samples: Industrial Lease Agreement (Global Directmail Corp)
Construction of Demised Premises. Upon delivery of the Premises (the date the Building is vacated by Schlotzsky’s), Sublessee, at Sublessee’s sole expense, shall;
a. Submit or have submitted Sublessee’s plans and specifications for approval by Sublessor and per the terms of the Underlying Lease.
b. If required, per this Paragraph 1.07, provide the stipulated Letter of Credit.
c. Per the Underlying Lease, give notice to the Sublessor and the Landlord Under the Underlying Lease, prior to demolishing the Schlotzsky’s Building and site improvements contained within the delineated area identified in Exhibit 2a.
d. Construct a Building and improvements (referred to as “Replacement Building 2” in the “Underlying Lease”) in substantial accordance with the approved plans and specifications per paragraph 1.07
(a) Within thirty upon the Demised Premises and in accordance with Exhibit 2b, (30hereinafter the “Developed by Bank Plan”) and the specifications (hereinafter the “Curb and Paving Specifications”) included herein as Exhibit 3. The Building shall have a fair market value of not less than $250,000.00. All improvements made to the Demised Premises by the Sublessee shall be the property of the Sublessee during the term of this Lease Agreement and shall remain the property of Sublessor upon termination of this Lease Agreement. Sublessee will use its best efforts to have the space completed within two hundred forty (240) days from the date of delivery as herein above defined in this Section 1.05. Sublessee further agrees that any improvements it makes to the Demised Premises shall be made in substantial conformity with the proposed Building and Site plan, except that the proposed building and site plan may be modified to conform to the requirements of the appropriate governmental agency which must approve such proposed building and site plan. Sublessee agrees that if an Irrevocable Letter of Credit is required by the terms and conditions of the Underlying Lease, and it wishes to demolish the Schlotzsky’s Building, that it will not undertake the demolition of the Schlotzsky’s Building, unless twenty (20) days prior to the commencement of the demolition of said Building, an Irrevocable Letter of Credit has been issued by a Federal or South Carolina chartered bank operating in Greenville County, South Carolina for the benefit of Sublessor and delivered to Sublessor. Sublessor agrees that if an Irrevocable Letter of Credit is required by the terms and conditions of the Underlying Lease, that fourteen (14) days prior to the commencement of the demolition of said Building, it will cause an Irrevocable Letter of Credit to be issued by a Federal or South Carolina chartered bank operating in Greenville County, South Carolina for the benefit of the Landlord Under the Underlying Lease and delivered to the escrow agent per the terms of the Underlying Lease and which Irrevocable Letter of Credit is separate and distinct from the Irrevocable Letter of Credit to be issued to Sublessee on behalf of Sublessor. Replacement Building 2 shall be completed eight (8) months after the date of delivery of the Schlotzsky’s Building. In such event, Sublessee shall notify Sublessor in writing that it intends to demolish the Schlotzsky’s Building fifty (50) days before the demolition of said Building is to commence. The Irrevocable Letter of Credit issued by said Federal or State bank for the demolition of the Schlotzsky’s Building shall be in a form and substance agreeable to Sublessor, but shall contain at a minimum, the following provisions: (i) the Irrevocable Letter of Credit shall be in the amount which shall be the difference between Five Hundred Thousand and No/100 ($500,000.00) Dollars and the fair market value of Replacement Building 1 (as defined in the Underlying Lease) as determined by the appraiser provided for hereinabove employed to determine the fair market value of Replacement Building 1 as constructed; (ii) Sublessor shall be the beneficiary of the Irrevocable Letter of Credit; (iii) the Bank issuing the Irrevocable Letter of Credit will pay the Sublessor the face amount of the Letter of Credit upon the Sublessor delivering to said Bank within twelve (12) months from the date of the issuance of the Irrevocable Letter of Credit: (1) his affidavit stating that Greenville First Bank, its Sublessee, failed to complete the construction of the Replacement Building 2, the building which was to replace the Schlotzsky’s Building demolished by Sublessee, within eight (8) months from the date such demolition commenced; (2) his affidavit that he has not been furnished with a certification and appraisal from the designated appraiser for Replacement Building 2 as set forth herein below, that the construction of Replacement Building 2 has been completed in substantial conformity with the plans and specifications provided to him by Sublessor and Sublessee within eight (8) months from the date of the commencement of the demolition of the Schlotzsky’s Building and that Replacement Building 2 has a fair market value of Two Hundred Fifty Thousand and No/100 ($250,000.00) Dollars or more; and (3) a sight draft drawn on said Bank in the face amount of the said Irrevocable Letter of Credit. The fair market value of Replacement Building 2 shall be determined by a licensed commercial real estate appraiser in Greenville, South Carolina, having a MAI designation. The parties hereto agree that either Xxxxxxxx Company of Greenville, Inc. or Stone & Associates, Inc. is an acceptable appraiser. Sublessor shall select one of the two companies to perform the appraisal. In the event both companies cease to exist, or should decline to perform the appraisal, the Sublessor and the Landlord Under the Underlying Lease shall mutually select an appraiser per the Underlying Lease. SUBLESSEE SPECIFICALLY ACKNOWLEDGES THAT THE SELECTION PROCESS OF THE APPRAISER AS SET FORTH IN THE UNDERLYING LEASE IS CONTROLLING. Prior to commencement of demolition of Schlotzsky’s Building, an appraisal shall be provided to the Sublessor by the selected appraiser which appraisal shall be based on the plans and specifications provided him by the Sublessor and Sublessee certifying that the proposed Replacement Building 2 if built in accordance with said plans and specifications has a fair market value of at least $250,000.00. Unless otherwise approved in writing by Sublessor, the appraiser shall agree to have his final certification and appraisal completed within nine (9) months from the date demolition commenced on the Schlotzsky’s Building certifying whether Replacement Building 2 was completed in substantial conformity with the plans and specifications provided to him by Sublessor and Sublessee and certifying to the fair market value of said completed Building. The cost of this appraisal shall be paid by Sublessee. The appraiser may include in his fair market valuation of the Replacement Building 2 the site work for said building, but not the costs of demolition of any existing buildings or site work. Sublessor and Sublessee agree that the fair market value of Replacement Building 2 shall be determined by the selected appraiser from the plans and specifications provided to him by Sublessor and Sublessee prior to the commencement of construction of said Building, but which valuation shall be adjusted by the appraiser to the extent that said Building has not been constructed in substantial conformity with said plans and specifications. The fair market valuation of Replacement Building 2 contained in the certification and appraisal to be delivered to the Sublessor by the selected appraiser shall be determined by the selected appraiser, as set forth hereinabove. Sublessor and Sublessee agree that the date demolition is deemed to have commenced on the Schlotzsky’s Building shall be twenty (20) days after their issuing Bank executes the Irrevocable Letter of Credit, unless Sublessor and Sublessee jointly agree on a different date hereof, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications (collectively, the "Plans and Specifications") based upon the Preliminary Plans, covering all work to be performed by Landlord in constructing the writing. The date Replacement Building and other improvements which shall be a part of the Demised Premises. Tenant shall have five (5) days after receipt of the Plans and Specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord 2 has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications as modified by said revisions, been completed shall be deemed to be final upon the submission of said revisions date that Sublessee delivers to Tenant. Tenant shall at all times in its review Sublessor a certified copy of the Plans and SpecificationsOccupancy Permit for Replacement Building 2 issued by the City of Greenville, South Carolina. In the event the Replacement Building 2 is not completed within eight (8) months after the date the demolition of the Schlotzsky’s Building commenced, as defined herein, and Replacement Building 2 does not have a value of any revisions theretoTwo Hundred Fifty Thousand and No/100 ($250,000.00) Dollars or more, act reasonably the Sublessor shall present to the Bank issuing the Irrevocable Letter of Credit his affidavits and in good faiththe sight draft referred to hereinabove. After Tenant has approved The proceeds received by the Plans and Specifications or Sublessor from the Plans and Specifications have otherwise been finalized Irrevocable Letter of Credit shall be as compensation for the demolition of Sublessor’s Building by Sublessee. UPON THE PAYMENT OF THE PROCEEDS FROM THE IRREVOCABALE LETTER OF CREDIT TO SUBLESSOR, SUBLESSEE SHALL BE IN DEFAULT UNDER THIS LEASE AND SUBLESSOR SHALL HAVE THE RIGHT TO IMMEDIATELY EXERCISE ALL OF THE RIGHTS GRANTED IT UNDER THIS LEASE AND SUBLESSEE SHALL HAVE NO RIGHT TO CURE SAID DEFAULT, AS MAY BE OTHERWISE PROVIDED FOR IN THIS LEASE. The Sublessor shall promptly return the Irrevocable Letter of Credit to the issuing Bank pursuant to this Section 1.05 if Sublessee has completed construction of the procedures Replacement Building 2, provided for hereinabove, within eight (8) months from the date of the commencement of the demolition of the Schlotzsky’s Building and that the fair market value of Replacement Building 2 is in an amount equal to or greater than the minimum amount set forth hereinabove, any subsequent changes hereinabove for Replacement Building 2. Sublessee agrees that the demolition of the Schlotzsky’s Building and the construction of a new building to replace the Plans and Specifications requested Schlotzsky’s Building so demolished by Tenant (herein referred to as a "Change Order") Sublessee shall be made by Sublessee at Tenant's is sole cost and expense and Sublessor shall bear no obligation to pay any part of the cost or expenses related to the demolition of said building or the cost of constructing the new building or to otherwise make improvements to the Demised Premises. Sublessee hereby indemnifies and holds harmless Sublessor from and against all liabilities, losses, claims, demands, costs, expenses and judgments of any nature arising, or alleged to arise, from and in connection with Sublessee’s demolition of the Schlotzsky’s Building and the construction of new building 2 and otherwise in making improvement to the Demised Premises. The new building to be constructed by Sublessee and other improvements to be made to the Demised Premises, but shall be deemed to be the personal property of Sublessee during the period that this Sublease is in effect. The said new building and all other improvements constructed by Sublessee on the Demised Premises during the term of this Sublease, or any extensions thereof (the “Improvements”) shall become the property of Sublessor on the day of the expiration or termination of this Sublease, subject to Landlord's written approval, which approval the terms of the Underlying Lease. The time requirements imposed on Sublessee for the completion of the construction work contemplated by this Section 1.07 shall not be unreasonably withheld, conditioned or delayed. If after the Plans and Specifications have been finalized extended except pursuant to the procedures set forth hereinabove Tenant requests any Change Order and, as a result thereof, completion of construction agreement of the Improvements is delayed beyond the Lease Commencement Date, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for parties contained in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's cost.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions Section XXVI of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below)Sublease.
(c) Landlord shall use reasonable speed and diligence to achieve Substantial Completion, at Landlord's sole cost and expense, on or before March 21, 2001. In the event that Landlord is unable to Substantially Complete the Demised Premises for occupancy by Tenant on or before March 21, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below), the Lease Commencement Date, the Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until the Demised Premises are Substantially Complete, unless the Delay was a Tenant Delay (as defined below) in which event no adjustment shall be made for the number of days of Tenant Delay. In addition, in the event that Landlord is unable to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below) (the "Penalty Date"), then from and after the adjusted Rent Commencement Date, Tenant shall receive a credit against Base Rent equal to two (2) days of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized by Tenant, as its sole remedy.
Appears in 1 contract
Samples: Sublease Agreement (Greenville First Bancshares Inc)
Construction of Demised Premises. (a) Within thirty (30) days after the date hereofLease Date, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "Plans and Specifications") based upon on the Preliminary Planspreliminary plans and specifications and/or preliminary floor plans set forth on Exhibit B attached hereto and incorporated herein, covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part of the Demised PremisesImprovements (as defined in Section 8(a)(ii)). Tenant shall have five (5) days after receipt of the Plans plans and Specifications specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans plans and Specifications specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans plans and Specifications specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans plans and Specificationsspecifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. If after the Plans and Specifications specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order further changes to the Plans and specifications and, as a result thereof, completion of construction Substantial Completion (as hereinafter defined) of the Improvements is delayed beyond delayed, then for purposes of establishing the Lease Commencement Date, Substantial Completion shall, be deemed to mean the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. date when Substantial Completion would have been achieved but for such Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costdelay.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease Within thirty ("Landlord's Work"). Landlord shall make no changes to 30) days after the Plans and Specifications without Tenant's written consenthave been finalized pursuant to the procedures set forth above, with Landlord shall solicit bids from no less than three (3) reputable general contractors, which bids shall set forth the exception of immaterial details which will not affect Tenant's use price, terms, conditions and occupancy of time schedule that such general contractor would require if chosen to construct the Building and other improvementsDemised Premises. Such bids must be received within fourteen (14) days after the date hereof to be considered. Landlord shall have shall, within seven (7) days after the final Plans receipt of such bids and Specifications sealed by after consulting with Tenant, select a general contractor to construct the Architectimprovements to the Demised Premises. All other factors being equal, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in Landlord will choose the general contractor that submits the lowest bid unless Tenant selects a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) general contractor other than the low bidder. Landlord shall use reasonable speed and diligence to achieve Substantial CompletionSubstantially Complete the Improvements, at Landlord's sole cost and expense, and have the Demised Premises ready for occupancy on or before March 21, 2001the Lease Commencement Date set forth in Section 1(f). In the event that Landlord is unable to Substantially Complete If the Demised Premises for occupancy by are not Substantially Complete on that date, such failure to complete shall not in any way affect the obligations of Tenant on or before March 21, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below), hereunder except that the Lease Commencement Date, the Base Rent Commencement Date Date, and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until the Demised Premises are Substantially Complete, unless the Delay was delay is caused by Tenant's failure to approve the Plans and Specifications as set forth in Section 17(a) or by change orders requested by Tenant after approval of the Plans and Specifications. No liability whatsoever shall arise or accrue against Landlord by reason of its failure to deliver or afford possession of the Demised Premises, and Tenant hereby releases and discharges Landlord from and of any claims for damage, loss, or injury of every kind whatsoever as if this Lease were never executed.
(c) Upon Substantial Completion of the Demised Premises, a Tenant Delay (as defined below) in which event no adjustment shall be made for the number representative of days Landlord and a representative of Tenant Delay. In addition, in together shall inspect the event that Landlord is unable Demised Premises and generate a punchlist of defective or uncompleted items relating to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below) the completion of construction of the Improvements (the "Penalty DatePunchlist"). Landlord shall, then from and within a reasonable time after the adjusted Rent Punchlist is prepared and agreed upon by Landlord and Tenant, complete such incomplete work and remedy such defective work as is set forth on the Punchlist. All construction work performed by Landlord shall be deemed approved by Tenant in all respects except for items of said work which are not completed or do not conform to the Plans and Specifications and which are included on the Punchlist.
(d) Upon Substantial Completion of the Demised Premises and the creation of the Punchlist, Tenant shall execute and deliver to Landlord a letter of acceptance in which Tenant (i) accepts the Demised Premises subject only to Landlord's completion of the items listed on the Punchlist and (ii) confirms that the Lease Commencement Date, Tenant shall receive a credit against the Base Rent equal Commencement Date and the Expiration Date remain as set forth in Section 1, or if revised pursuant to two the terms hereof, setting forth such dates as so revised.
(2e) days Landlord hereby warrants to Tenant, which warranty shall survive for the one (1) year period following the Lease Commencement Date, that (i) the materials and equipment furnished by Landlord's contractors in the completion of Base Rent the Improvements will be of good quality and new, and (ii) such materials and equipment and the work of such contractors shall be free from defects not inherent in the quality required or permitted hereunder. This warranty shall exclude damages or defects caused by Tenant or Tenant's Affiliates, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage.
(f) For purposes of this Lease, the term "Substantial Completion" (or any variation thereof) shall mean completion of construction of the Improvements in accordance with the Plans and Specifications, subject only to Punchlist items established pursuant to Section 17(c), so that Tenant can lawfully occupy and conduct its business at the Demised Premises, as established by the delivery by Landlord to Tenant of a certificate of occupancy (or temporary certificate of occupancy or its equivalent) for each day the Demised Premises issued by the appropriate governmental authority, if a certificate is so required by a governmental authority. In the event Substantial Completion is delayed because of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized a delay caused by Tenant, as its sole remedythen Substantial Completion shall, for the purpose of establishing the Lease Commencement Date, be deemed to mean the date when Substantial Completion would have been achieved but for such delay.
Appears in 1 contract
Samples: Industrial Lease Agreement (Rockwell Medical Technologies Inc)
Construction of Demised Premises. (a) Landlord will submit to Tenant, within ten (10) calendar days execution of this Lease, a proposed floor plan for the interior of the Demised Premises. If Tenant does not approve the proposed floor plan within ten (10) calendar days after receipt of the proposed plan or after the Lease Date, whichever is later, each day that elapses after such tenth (10th) calendar day, until the approval is given by Tenant, will constitute a day of Tenant Delay. Within thirty ten (3010) days after the date hereofon which Landlord receives written approval from Tenant for such floor plan for the interior of the Demised Premises, Landlord shall prepare, at Landlord's sole cost and expenseexpense (provided that all such costs incurred and payable by Landlord to third parties shall be chargeable against the Maximum Construction Allowance), and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "Plans and Specifications") based upon on the Preliminary Planspreliminary plans and specifications and/or preliminary floor plans set forth on Exhibit C attached hereto and incorporated --------- herein, covering all work to be performed by Landlord in constructing the Building and other interior improvements which shall be a part of for the Demised Premises. Tenant shall have five (5) business days after receipt of to approve the Plans and Specifications Specifications. A failure of any proposed plans or specifications to conform to Exhibit C shall be a proper basis for --------- disapproval. In the process of reviewing and approving the proposed Plans and Specifications, Tenant shall not have the right to request any material change in which to review and to give to Landlord in original also written notice scope of its the work after final approval of the Plans and Specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications thereto requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, delayed or conditioned or delayed. If Landlord will, promptly after receipt of the written approval of the Plans and Specifications have been finalized pursuant by Tenant, submit to the procedures set forth hereinabove Tenant requests any Change Order andVillage of Bolingbrook, such applications as a result thereof, completion of construction of the Improvements is delayed beyond the Lease Commencement Datemay be necessary to obtain all permits (collectively, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on "Permits") required for the Lease Commencement Date. Tenant may work contemplated by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change (which will include the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and SpecificationsAllowance Work). The aggregate cost of all such Change Orders in excess Landlord will diligently pursue issue of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costPermits.
(b) Landlord shall, at its sole cost and expensesubject to the occurrence of Permitted Delay (as defined in Section 17.1), construct use reasonable diligence to achieve Substantial Completion (as defined in subsection (g), below) of the Building and other improvements pursuant to contemplated by the Plans and Specifications, and in accordance with Specifications (the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial Completion, at Landlord's sole cost and expenseexpense (subject to the provisions of Section 4.1 and use of the Maximum Construction Allowance for costs incurred by Landlord and payable to third parties), on or before March 21and have the Demised Premises ready for occupancy not later than May 1, 20011999. In the event that Landlord is unable fails to Substantially Complete the Demised Premises for occupancy by Tenant on or before March 21achieve Substantial Completion not later than May 1, 2001, 1999 as extended by Ordinary Delay Permitted Delay, then, in either such event, this Lease shall remain in full force and Tenant Delay (as defined below), effect and the Lease Commencement Date, the Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day that Substantial Completion is delayed delayed, until the Demised Premises are Substantially Complete; provided, unless the Delay was a however, that if Landlord fails to achieve Substantial Completion not later than September 1, 1999, as such date may be extended only by Tenant Delay (as defined in Section 17.1), Tenant will have the right, as its sole remedy, to terminate this Lease by giving written notice to Landlord at any time prior to the occurrence of Substantial Completion. If Tenant was entitled to give a notice of termination, but fails or elects not to do so, and Landlord achieves Substantial Completion, the right of Tenant to terminate this Lease pursuant to this subsection (b) will automatically expire.
(c) Upon Substantial Completion of the Demised Premises, a representative of Landlord and a representative of Tenant together shall inspect the Demised Premises and generate a punchlist of defective or uncompleted item, relating to the completion of construction of the improvements within the Demised Premises. After such punchlist is prepared and agreed upon in writing by Landlord and Tenant ("Punchlist"), with each of Landlord and Tenant acting reasonably and in good faith. Landlord shall in accordance with the terms of this Lease (i) within forty-five (45) calendar days thereafter complete such incomplete work and remedy such nonconforming or defective work as is set forth on the Punchlist, in accordance with the Plans and Specifications, and which are of such a nature that completion thereof is reasonably practicable within forty- five (45) days and (ii) complete all remaining items on the Punchlist with due diligence and within a time period, as to each particular item, which is reasonable, giving due regard for the nature of the work to be performed.
(d) Upon acceptance of the Demised Premises by Tenant, Tenant shall execute and deliver to Landlord a letter of acceptance confirming that the Lease Commencement Date and Base Rent Commencement Date, and Expiration Date remain as set forth in Section 1, or if revised pursuant to the terms hereof, setting forth such dates as so revised.
(e) Landlord shall, subject to the occurrence of Permitted Delay, use reasonable diligence to achieve Partial Completion (as defined in Subsection (f), below) of the Landlord's Work not later than April 1, 1999; provided that Landlord shall not incur any penalty or liability as a result of a failure to achieve Partial Completion by such date. Tenant shall have the right, upon the occurrence of Partial Completion, to enter the Demised Premises in which event no adjustment order to install racking and otherwise prepare the Demised Premises for occupancy. In connection with such entry, (i) Tenant shall be made comply with all terms and conditions of this Lease other than the obligation to pay rent, (ii) Tenant shall not interfere with Landlord's completion of the Demised Premises and (iii) Tenant shall not begin operation of its business or store any inventory or equipment.
(f) For purposes of this Lease, the term "Substantial Completion" shall mean completion of construction of the Landlord's Work in accordance with the Plans and Specifications, subject only to Punchlist items established pursuant to Section 17(c), so that Tenant can lawfully occupy and conduct its business at the Demised Premises, as evidenced by the delivery by Landlord to Tenant of a certificate of occupancy (or temporary certificate of occupancy or its equivalent) for the number of days of Tenant DelayDemised Premises issued by the appropriate governmental authority. In addition, in the event that Landlord is unable to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and is delayed because of Tenant Delay (as defined below) (the "Penalty Date"in Section 17.1), then from and after Substantial Completion shall, for the adjusted Rent purpose of establishing the Lease Commencement Date, Tenant shall receive a credit against Base Rent equal be deemed to two (2) days of Base Rent mean the date when Substantial Completion would have been achieved but for each day of Delay (excluding such Tenant Delay) beyond . For purposes of this Lease, the Penalty Date until said credit is fully realized by Tenant, as its sole remedyterm "Partial Completion" shall mean completion of Landlord's Work to the following extent: sufficient completion of the warehouse to allow installation of racking.
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Construction of Demised Premises. (a) Within thirty (30) days after the date hereofLease Date, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "Plans and Specifications") based upon on the Preliminary Planspreliminary plans and specifications and/or preliminary floor plans set forth on Exhibit B attached hereto and incorporated herein, covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part of the Demised Premises. (as defined in Section 8(a)(ii)) Tenant shall have five (5) business days after receipt of the Plans and Specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans and Specifications or its requested changes to the Plans and Specifications. Specifications Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. Plans If Tenant fails to approve or request changes to the Plans and Specifications by five (5) business days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. final If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications Specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. faith After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabovehercinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. delayed If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order further changes to the Plans and Specifications and, as a result thereof, completion of construction . Substantial Completion (as hereinafter defined) of the Improvements is delayed beyond delayed, then for purposes of establishing the Lease Commencement Date, Date and any other date tied to the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Datedate of Substantial Completion. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications Substantial Completion shall be paid in cash by deemed to mean the date when Substantial Completion would have been achieved but for such Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costdelay.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial CompletionSubstantially Complete the Improvements, at Landlord's sole cost and expense, and have the Demised Premises ready for occupancy on or before March 21, 2001. In the event that Landlord is unable to Substantially Complete Lease Commencement Date set forth in Section 1(f) If the Demised Premises for occupancy by are not Substantially Complete on that date, such failure to complete shall not in any way affect the obligations of Tenant on or before March 21, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below), hereunder except that the Lease Commencement Date, the Base Rent Commencement Date Date, and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until the Demised Premises are Substantially Complete, unless the Delay was delay is caused by Tenant's failure to approve the Plans and Specifications as set forth in Section 17(a) or by change orders requested by Tenant after approval of the Plans and Specifications No liability whatsoever shall arise or accrue against Landlord by reason of its failure to deliver or afford possession of the Demised Premises, and Tenant hereby releases and discharges Landlord from and of any claims for damage, loss, or injury of every kind whatsoever as if this Lease were never executed.
(c) Upon Substantial Completion of the Demised Premises, a Tenant Delay (as defined below) in which event no adjustment shall be made for the number representative of days Landlord and a representative of Tenant Delay. In addition, in together shall inspect the event that Landlord is unable Demised Premises and generate a punchlist of defective or uncompleted items relating to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below) the completion of construction of the Improvements (the "Penalty DatePunchlist")) Landlord shall, then from and within a reasonable time, not to exceed thirty (30) days, after the adjusted Rent Punchlist is prepared and agreed upon by Landlord and Tenant, complete such incomplete work and remedy such defective work as is set forth on the Punchlist All construction work performed by Landlord shall be deemed approved by Tenant in all respects except for items of said work which are not completed or do not conform to the Plans and Specifications and which are included on the Punchlist.
(d) Upon Substantial Completion of the Demised Premises and the creation of the Punchlist, Tenant shall execute and deliver to Landlord a letter of acceptance in which Tenant (i) accepts the Demised Premises subject only to Landlord's completion of Use items listed on the Punchlist and (ii) confirms that the Lease Commencement Date, Tenant shall receive a credit against the Base Rent equal Commencement Date and the Expiration Date remain as set forth in Section 1, or if revised pursuant to two the terms hereof, setting forth such dates as so revised.
(2e) days Landlord hereby warrants to Tenant, which warranty shall survive for the one (1) year period following the Lease Commencement Date, that (i) the materials and equipment furnished by Landlord's contractors in the completion of Base Rent the Improvements will be of good quality and new, and (ii) such materials and equipment and the work of such contractors shall be free from defects not inherent in the quality required or permitted hereunder. This warranty shall exclude damages of defects caused by Tenant or Tenant's Affiliates, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage.
(f) For purposes of this Lease, the term "Substantial Completion" (or any variation thereof) shall mean completion of construction of the Improvements in accordance with the Plans and Specifications, subject only to Punchlist items established pursuant to Section 17(c). which items in the aggregate do not materially interfere with Tenant's use of the Demised Premises, so that Tenant can lawfully occupy and conduct its business at the Demised Premises as established by the delivery by Landlord to Tenant of a certificate of occupancy (or temporary certificate of occupancy or its equivalent) for each day the Demised Premises issued by the appropriate governmental authority, if a certificate is so required by a governmental authority. In the event Substantial Completion is delayed because of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized a delay caused by Tenant, as its sole remedythen for the purpose of established the Lease Commencement Date and any other date tied to the date of Substantial Completion shall be deemed to mean the date when Substantial Completion would have been achieved but for such delay.
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Construction of Demised Premises. (a) Landlord shall, at Landlord's sole cost and expense, construct the shell of the Building in accordance with the specifications set forth on EXHIBIT B attached hereto. Promptly after the Lease Date, Landlord and Tenant shall meet to discuss the terms of preliminary space plans for the Demised Premises (the "Preliminary Space Plans") and, within twenty one (21) days from the Lease Date, Landlord and Tenant shall agree upon the Preliminary Space Plans. Within thirty (30) days after the date hereofPreliminary Space Plans are agreed upon by Landlord and Tenant, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "Plans and Specifications") based upon on the Preliminary Space Plans, covering all work to be performed by Landlord in constructing the Building and other improvements Improvements (as defined in Section 8(a)(ii)) which shall be a part will also incorporate Tenant provided work necessary for permitting in the City of the Demised PremisesWeston (i.e. racking, conveying, power etc.). Tenant shall have five (5) business days after receipt of the Plans plans and Specifications specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans plans and Specifications specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans plans and Specifications specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary preliminary Space Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) business days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be finalfinal (subject to the following paragraph). If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoingforegoing and subject to the following paragraph, the Plans and Specifications specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Landlord shall retain Current Construction Company as its general contractor for the Improvements. Within five (5) business days following receipt of the final approved Plans and Specifications for the Demised Premises, Landlord shall submit the major subcontracted portions of the final approved Plans and Specifications for competitive bid to at least three (3) subcontractors. Within five (5) business days after the opening of the bids, Landlord shall submit to Tenant a proposed construction budget for the Improvements (the "Construction Budget"), delineating the cost of the Improvements and any excess thereof over the Tenant Allowance (as defined in Special Stipulation 12). Landlord will make every reasonable effort to obtain the best possible pricing in connection with the construction of the Improvements. If the Construction Budget does not exceed the amount of the Tenant Allowance, then Tenant shall acknowledge and approve the Construction Budget simultaneously with Landlord's submission of the Construction Budget to Tenant. If the Construction Budget exceeds the amount of the Tenant Allowance, then, within five (5) business days from submission of the Construction Budget by Landlord, Tenant shall either approve the Construction Budget as submitted or provide Landlord with modifications to the Plans and Specifications to reduce the Construction Budget. If Tenant fails to approve the Construction Budget or submit modifications to the Plans and Specifications within such five (5) business day period, then the Construction Budget shall be deemed approved as submitted. If Tenant timely submits modifications to the Plans and Specifications pursuant to the preceding sentence, Landlord shall, within seven (7) business days, review and approve the modified Plans and Specifications (and submit a revised Construction Budget), or disapprove the modified Plans and Specifications (and give Tenant its reasons for disapproval). If the revised Construction Budget does not exceed the amount of the Tenant Allowance, then Tenant shall acknowledge and approve the revised Construction Budget simultaneously with Landlord's submission of the Construction Budget to Tenant. If the revised Construction Budget exceeds the amount of the Tenant Allowance and Tenant elects to make further changes to the Plans and Specifications, the time required to make such changes shall be a Tenant delay and the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the date Landlord would have achieved substantial completion, but for such Tenant's delay. Tenant shall at all times in its review of the Plans plans and Specificationsspecifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. If after the Plans and Specifications specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order further changes to the Plans and specifications, the time required to make such changes shall be a Tenant delay and, as a result thereof, completion of construction of the Improvements is delayed beyond the Lease Commencement Date, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the date Landlord would have achieved substantial completion, but for such Tenant's delay. Additionally, within twenty one (21) days after the Lease Commencement Date, Tenant shall prepare and submit to Landlord Tenant's furniture, fixture and equipment plans (including, but not limited to, plans for racking and conveyor/material handling systems) (the "FFE Plans") in form and detail necessary to enable Landlord to obtain its permits and licenses to construct the Demised Premises. Tenant may by Change Order replace Any delay in delivery to Landlord of the materials called for in the Plans and Specifications with comparable materialsFFE Plans, or with materials of changes to the FFE Plans, which delays Landlord in obtaining its permits and licenses to construct the Demised Premises, shall be deemed a higher gradeTenant delay and the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the date Landlord would have achieved substantial completion, but Tenant shall have no right to change the materials to materials which, in Landlordfor such Tenant's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications shall be paid in cash by Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costdelay.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial Completionsubstantially complete the Improvements, at Landlord's sole cost and expenseexpense (including, without limitation, all architectural and engineering fees, all impact fees and all permitting fees and costs related to the construction of the Demised Premises), and have the Demised Premises ready for occupancy on or before March 21the Lease Commencement Date set forth in Section 1(f). If the Demised Premises are not substantially complete on that date, 2001such failure to complete shall not in any way affect the obligation of Tenant hereunder except that the Lease Commencement Date, the Base Rent Commencement Date, and the Expiration Date shall be postponed one day for each day substantial completion is delayed until the Demised Premises are substantially complete, unless the delay is caused by Tenant's failure to approve the Plans and Specifications as set forth in Section 17(a) or by change orders requested by Tenant after approval of the Plans and Specifications. No liability whatsoever shall arise or accrue against Landlord by reason of its failure to deliver or afford possession of the Demised Premises, and Tenant hereby releases and discharges Landlord from and of any claims for damage, loss, or injury of every kind whatsoever as if this Lease were never executed. In no event shall substantial completion be deemed to have occurred prior to the event date that Landlord a conditional or non-conditional Certificate of Occupancy (or other similar certificate allowing Tenant to occupy the Demised Premises) has been obtained for the Demised Premises and the Landlord's construction of the Demised Premises and the parking area for the Building is unable sufficiently complete in accordance with the Plans and Specifications so as to Substantially Complete allow Tenant to occupy the Demised Premises for occupancy the use and purposes intended without unreasonable disturbance or interruption, subject to Landlord's completion of the Punchlist items.
(c) Upon substantial completion of the Demised Premises, a representative of Landlord and a representative of Tenant together shall inspect the Demised Premises and generate a punchlist of defective or uncompleted items relating to the completion of construction of the Improvements (the "Punchlist"). Landlord shall, within a reasonable time after the Punchlist is prepared and agreed upon by Landlord and Tenant, complete such incomplete work and remedy such defective work as is set forth on the Punchlist. All construction work performed by Landlord shall be deemed approved by Tenant in all respects except for (i) items of said work which are not completed or do not conform to the Plans and Specifications and which are included on the Punchlist or before March 21(ii) items warranted by or to be maintained by Landlord or (iii) latent defects. Upon Landlord's completion of the Punchlist, 2001Landlord shall prepare a completion of punchlist agreement which Tenant shall promptly execute.
(d) Upon substantial completion of the Demised Premises and the creation of the Punchlist, as extended by Ordinary Delay Tenant shall execute and deliver to Landlord a letter of acceptance in which Tenant Delay (as defined below), i) accepts the Demised Premises subject only to items listed in Section 17(c)(i) - (iii) above and Landlord's completion of the items listed on the Punchlist and (ii) confirms that the Lease Commencement Date, the Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until remain as set forth in Section 1, or if revised pursuant to the terms hereof, setting forth such dates as so revised and (iii) confirms the Building Square Footage, the Demised Premises are Substantially CompleteSquare Footage and the Annual Base Rent and Monthly Base Rent Installments in accordance with Section 2.
(e) Notwithstanding anything to the contrary contained in this Lease, unless the Delay was a Tenant Delay (as defined below) in which event no adjustment shall be made for the number of days first (1st) Lease Year, Landlord hereby provides a warranty in favor of Tenant Delayto repair or replace (if needed) any defect in the Improvements constructed by Landlord, so long as the need for such repair or replacement is not caused by the negligence or willful misconduct of Tenant or its agents, employees or contractors. The warranty contained herein is not intended to derogate from Landlord's obligations expressly set forth in Section 10 of this Lease.
(f) The Tenant shall have the right to retain, at Tenant's sole cost and expense, a third party consultant to assist Tenant throughout the entire construction process, including without limitation the space planning and plans preparation process. In addition, in no event may Landlord charge Tenant at any time for any supervisory or coordination or management fees regarding any construction related to the initial construction of the Demised Premises.
(g) Tenant shall have the right to install, at Tenant's sole cost and expense and risk, its furniture, trade fixtures and equipment prior to substantial completion and Landlord shall cooperate regarding same; provided, however, that no such pre-substantial completion installation may delay or interfere with Landlord's work pursuant to this Section, and Tenant shall arrange a meeting to coordinate with Landlord prior to any such pre-substantial completion installation.
(h) Notwithstanding the provisions of Section 17(b) of this Lease, in the event that Landlord is unable to achieve Substantial Completion substantially complete the Demised Premises for occupancy by Tenant on or before March 22October 1, 20011999, as extended by Ordinary Delay and Tenant Delay (as defined below) (the "Penalty Date"), then from and after the adjusted Rent Commencement Date, Tenant shall receive a credit against Base Rent equal to two (2) days of Base Rent for each day of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized by Tenantmay, at its option and as its sole remedy, terminate this Lease by written notice to Landlord given by November 1, 1999 (provided that substantial completion has not occurred prior to Landlord's receipt of said termination notice), and thereafter neither Landlord nor Tenant shall have any further obligation hereunder. For purposes of this Lease, "Delay" shall mean delays incurred by reason of Tenant's failure to approve the Plans and Specifications as set forth in Section 17(a) or changes requested by Tenant in the Plans and Specifications after Tenant's approval thereof, and for such additional time as is equal to the time lost by Landlord or Landlord's contractors or suppliers in connection with the performance of Landlord's work and/or the construction of the Building and related improvements due to strikes or other labor troubles, governmental restrictions and limitations, war or other national emergency, non-availability of materials or supplies, delay in transportation, accidents, floods, fire, damage or other casualties, weather or other conditions, acts or omissions of Tenant, or delays by utility companies in bringing utility lines to the Demised Premises.
Appears in 1 contract
Construction of Demised Premises. (a) Within thirty (30) days after the date hereofLease Date, Landlord shall prepare, at Landlord's ’s sole cost and expense, and submit to Tenant Tenant, for Tenant’s approval, a set of plans and specifications and/or construction drawings (collectively, the "Plans and Specifications") based upon on the Preliminary Planspreliminary plans and specifications and/or preliminary floor plans set forth on Exhibit B attached hereto and incorporated herein, covering all work to be performed by Landlord in constructing Improvements in the Building and other improvements which shall Demised Premises (all such Improvements to be a part so constructed by Landlord being referred to as the “Landlord Improvements”. The portion of the Demised PremisesLandlord Improvements to be located in Phase 1, and described as “Phase I Improvements” on Exhibit B are referred to herein as the “Phase I Improvements”. Tenant shall have five (5) days after receipt The portion of the Plans Landlord Improvements to be located in the Expansion Space and Specifications in which referred to review and as “Phase II” on Exhibit B are referred to give to Landlord in original also written notice of its approval of as the Plans and Specifications or its requested changes to the Plans and Specifications“Expansion Improvements”. Tenant shall have no right to request any changes to the Plans and Specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five ten (510) days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within by ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications Specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Landlord and Tenant shall at all times in its their respective preparation or review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. In the event Landlord approves any such requested Change Order, Landlord shall give written notice thereof to Tenant, which notice will specify the Change Order approved by Landlord as well as the estimated incremental cost thereof. The cost to Tenant for Change Orders shall be Landlord's incremental cost plus ten percent (10%) of such amount as Landlord's overhead. Tenant acknowledges and agrees that Landlord shall be under no obligation to proceed with any work related to the approved Change Order unless and until Tenant delivers to Landlord an amount equal to the full estimated incremental cost of such approved Change Order as reasonably determined by Landlord and which shall be set forth in Landlord’s notice. When the final incremental cost of any such Change Order has been determined and incurred, Landlord and Tenant each agree to pay or refund the amounts owed to the other with respect to such Change Order, based on the estimated payment made to Landlord. If after the Plans and Specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any a Change Order or any further changes to the Plans and Specifications and, as a result thereof, completion of construction Substantial Completion (as hereinafter defined) of the Phase 1 Improvements is delayed beyond delayed, then for purposes of establishing the Lease Commencement DateDate and any other date tied to the date of Substantial Completion, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications Substantial Completion shall be paid in cash by deemed to mean the date when Substantial Completion would have been achieved but for such Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costdelay.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial CompletionSubstantially Complete the Phase I Improvements by May 1, 2016, at Landlord's sole cost and expense, on or before March 21and have Phase I ready for occupancy as soon as reasonably practicable, 2001. In Landlord will be required to ensure that the event that Landlord is unable to Expansion Improvements are Substantially Complete prior to the Expansion Date, subject only to Delay. Any delay caused by any of the following is referred to as “Tenant Delay”: (i) Tenant's failure to approve or disapprove the Plans and Specifications as set forth in Section 17(a), (ii) Change Orders requested by Tenant after approval of the Plans and Specifications and/or (iv) any other act or omission of Tenant or Tenant’s Affiliates. Except as specifically set forth in this Lease, no liability whatsoever shall arise or accrue against Landlord by reason of its failure to deliver or afford possession of the Demised Premises for occupancy by Tenant on or before March 21Premises, 2001, as extended by Ordinary Delay and Tenant Delay (hereby releases and discharges Landlord from and of any claims for damage, loss, or injury of every kind whatsoever as defined below)if this Lease were never executed. Notwithstanding the foregoing, the Lease Commencement Date, the Base Rent Commencement Date and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until the Demised Premises are Substantially Complete, unless the Delay was a Tenant Delay (as defined below) in which event no adjustment shall be made for the number of days of Tenant Delay. In addition, in the event that if Landlord is unable fails to achieve Substantial Completion of the Phase I Improvements on or before March 22, 2001the seventieth (70th) day following the date on which the Plans and Specifications are finalized pursuant to subsection 17(a) above and Landlord has received all permits and approvals required by applicable governmental authorities to construct the Landlord Improvements, as such date may be extended by Ordinary Delay and Tenant Delay (as defined belowhereinafter defined) (the "Penalty “Outside Improvements Date"”), then from Tenant will have the right, as its sole and after exclusive remedy (subject to the adjusted Rent Commencement Dateadditional termination remedy set forth hereinbelow), Tenant shall receive to a credit against Base Rent equal to two (2) days of Base prorated monthly Rent for each day Substantial Completion of Delay the Phase I Improvements was delayed beyond the Outside Improvements Date (excluding Tenant any days of Delay, as defined below) beyond the Penalty Date until said credit is fully realized by Tenant. For purposes of this Lease, "Delay" shall mean (i) Tenant Delays, and (ii) such additional time as its sole remedyis equal to the time lost by Landlord or Landlord's contractors or suppliers in connection with the construction of the Landlord Improvements due to strikes or other labor troubles (but in no event due to Landlord’s failure to pay such contractors or suppliers as and when due), governmental restrictions and limitations, war or other national emergency, non-availability of materials or supplies, delay in transportation, accidents, floods, fire, damage or other casualties, weather or other conditions, and other matters not within the reasonable control of Landlord.
Appears in 1 contract
Construction of Demised Premises. (a) Within thirty (30) days after the date hereofLease Date, Landlord shall prepare, at Landlord's sole cost and expense, and submit to Tenant a set of plans and specifications and/or construction drawings (collectively, the "Plans and Specifications") based upon on the Preliminary Planspreliminary plans and specifications and/or preliminary floor plans set forth on Exhibit B attached hereto and incorporated --------- herein, covering all work to be performed by Landlord in constructing the Building and other improvements which shall be a part of the Demised PremisesImprovements (as defined in Section 8(a)(ii)). Tenant shall have five (5) business days after receipt of the Plans plans and Specifications specifications in which to review and to give to Landlord in original also written notice of its approval of the Plans plans and Specifications specifications or its requested changes to the Plans and Specifications. Tenant shall have no right to request any changes to the Plans plans and Specifications specifications which would materially alter either the size of the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary preliminary Plans. If Tenant fails to approve or request changes to the Plans and Specifications by five (5) business days after its receipt thereof, then Tenant shall be deemed to have approved the Plans and Specifications and the same shall thereupon be final. If Tenant requests any changes to the Plans and Specifications, Landlord shall make those changes which are reasonably requested by Tenant and shall within ten (10) days of its receipt of such request submit the revised portion of the Plans and Specifications specifications to Tenant. Tenant may not thereafter disapprove the revised portions of the Plans and Specifications specifications unless Landlord has unreasonably failed to incorporate reasonable comments of Tenant and, subject to the foregoing, the Plans and Specifications specifications, as modified by said revisions, shall be deemed to be final upon the submission of said revisions to Tenant. Tenant shall at all times in its review of the Plans plans and Specificationsspecifications, and of any revisions thereto, act reasonably and in good faith. After Tenant has approved the Plans and Specifications or the Plans and Specifications have otherwise been finalized pursuant to the procedures set forth hereinabove, any subsequent changes to the Plans and Specifications requested by Tenant (herein referred to as a "Change Order") shall be at Tenant's sole cost and expense and subject to Landlord's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. If after the Plans and Specifications specifications have been finalized pursuant to the procedures set forth hereinabove Tenant requests any Change Order further changes to the Plans and specifications and, as a result thereof, completion of construction Substantial Completion (as hereinafter defined) of the Improvements is delayed beyond delayed, then for purposes of establishing the Lease Commencement DateDate and any other date tied to the date of Substantial Completion, the Term and Tenant's obligation to pay Base Rent hereunder shall nevertheless begin on the Lease Commencement Date. Tenant may by Change Order replace the materials called for in the Plans and Specifications with comparable materials, or with materials of a higher grade, but Tenant shall have no right to change the materials to materials which, in Landlord's sole opinion, are of an inferior grade or quality to those called for in the Plans and Specifications. The aggregate cost of all such Change Orders in excess of the costs reflected in the Plans and Specifications Substantial Completion shall be paid in cash by deemed to mean the date when Substantial Completion would have been achieved but for such Tenant to Landlord upon Landlord's submission to Tenant of written request for payment of such additional cost and not later than the Lease Commencement Date. The cost to Tenant for preparing and administering Change Orders shall be Landlord's costdelay.
(b) Landlord shall, at its sole cost and expense, construct the Building and other improvements pursuant to the Plans and Specifications, and in accordance with the terms and conditions of this Lease ("Landlord's Work"). Landlord shall make no changes to the Plans and Specifications without Tenant's written consent, with the exception of immaterial details which will not affect Tenant's use and occupancy of the Building and other improvements. Landlord shall have the final Plans and Specifications sealed by the Architect, obtain all required building permits, certificates and licenses and thereafter, in accordance with all applicable law and insurance requirements, perform Landlord's Work in a diligent and good workmanlike manner, subject to Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial CompletionSubstantially Complete the Improvements, at Landlord's sole cost and expense, and have the Demised Premises ready for occupancy on or before March 21, 2001the Lease Commencement Date set forth in Section 1(f). In the event that Landlord is unable to Substantially Complete If the Demised Premises for occupancy by are not Substantially Complete on that date, such failure to complete shall not in any way affect the obligations of Tenant on or before March 21, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below), hereunder except that the Lease Commencement Date, the Base Rent Commencement Date Date, and the Expiration Date shall be postponed one day for each day Substantial Completion is delayed until the Demised Premises are Substantially Complete, unless the Delay was delay is caused by Tenant's failure to approve the Plans and Specifications as set forth in Section 17(a) or by change orders requested by Tenant after approval of the Plans and Specifications. No liability whatsoever shall arise or accrue against Landlord by reason of its failure to deliver or afford possession of the Demised Premises, and Tenant hereby releases and discharges Landlord from and of any claims for damage, loss, or injury of every kind whatsoever as if this Lease were never executed.
(c) Upon Substantial Completion of the Demised Premises, a Tenant Delay (as defined below) in which event no adjustment shall be made for the number representative of days Landlord and a representative of Tenant Delay. In addition, in together shall inspect the event that Landlord is unable Demised Premises and generate a punchlist of defective or uncompleted items relating to achieve Substantial Completion on or before March 22, 2001, as extended by Ordinary Delay and Tenant Delay (as defined below) the completion of construction of the Improvements (the "Penalty DatePunchlist"). Landlord shall, then from and within a reasonable time, not to exceed thirty (30) days, after the adjusted Rent Punchlist is prepared and agreed upon by Landlord and Tenant, complete such incomplete work and remedy such defective work as is set forth on the Punchlist. All construction work performed by Landlord shall be deemed approved by Tenant in all respects except for items of said work which are not completed or do not conform to the Plans and Specifications and which are included on the Punchlist.
(d) Upon Substantial Completion of the Demised Premises and the creation of the Punchlist, Tenant shall execute and deliver to Landlord a letter of acceptance in which Tenant (i) accepts the Demised Premises subject only to Landlord's completion of the items listed on the Punchlist and (ii) confirms that the Lease Commencement Date, Tenant shall receive a credit against the Base Rent equal Commencement Date and the Expiration Date remain as set forth in Section 1, or if revised pursuant to two the terms hereof, setting forth such dates as so revised.
(2e) days Landlord hereby warrants to Tenant, which warranty shall survive for the one (1) year period following the Lease Commencement Date, that (i) the materials and equipment furnished by Landlord's contractors in the completion of Base Rent the Improvements will be of good quality and new, and (ii) such materials and equipment and the work of such contractors shall be free from defects not inherent in the quality required or permitted hereunder. This warranty shall exclude damages or defects caused by Tenant or Tenant's Affiliates, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage.
(f) For purposes of this Lease, the term "Substantial Completion" (or any variation thereof) shall mean completion of construction of the Improvements in accordance with the Plans and Specifications, subject only to Punchlist items established pursuant to Section 17(c), which items in the aggregate do not materially interfere with Tenant's use of the Demised Premises, so that Tenant can lawfully occupy and conduct its business at the Demised Premises, as established by the delivery by Landlord to Tenant of a certificate of occupancy (or temporary certificate of occupancy or its equivalent) for each day the Demised Premises issued by the appropriate governmental authority, if a certificate is so required by a governmental authority. In the event Substantial Completion is delayed because of Delay (excluding Tenant Delay) beyond the Penalty Date until said credit is fully realized a delay caused by Tenant, as its sole remedythen for the purpose of establishing the Lease Commencement Date and any other date tied to the date of Substantial Completion, Substantial Completion shall be deemed to mean the date when Substantial Completion would have been achieved but for such delay.
Appears in 1 contract
Samples: Industrial Lease Agreement (D & K Healthcare Resources Inc)
