Common use of Construction of Improvements by Landlord Clause in Contracts

Construction of Improvements by Landlord. (a) Landlord shall enter into a construction contract with a general contractor selected by Landlord (the “General Contractor”) for the design, construction, installation, and completion of the Landlord Improvements in accordance with the Landlord Improvement Plans, the Approvals and any applicable Change Orders (as defined below). Landlord shall be responsible for obtaining all building permits and other governmental approvals required to construct the Improvements and for constructing the Improvements as described on and substantially in accordance with the Improvement Plans. Landlord will keep Tenant apprised with respect to the status of, and significant developments concerning, the pursuit of all Approvals, variances and similar items for and construction of the Improvements. Landlord will arrange for all labor, materials, equipment, machinery, utilities, transportation, and other facilities and services necessary for the proper execution and timely completion of the construction of all Improvements. Excluding the design of the Tenant Improvements (which shall remain the responsibility of Tenant), Landlord shall be responsible for the design and construction of the Improvements in accordance with the Landlord Improvement Plans and the Tenant Improvement Plans and the Work Schedule. (b) In connection with performing the Improvements, Landlord may (i) make changes to the Improvement Plans that are not material (i.e., customary “field” changes), (ii) substitute a product (excluding interior and exterior finishes) of equal quality in the event any product specified in the Improvement Plans is not available or is not available within a time frame required to maintain the construction schedule; (iii) make changes to the Improvement Plans as are required by any governmental authority; (iv) make changes that do not materially affect the overall quality or intended look of the Improvements; and (v) make non-material changes that are required to address a circumstance arising during construction which was not foreseen at the time of the finalization of the Improvement Plans (collectively, “Landlord Permitted Changes”). If Landlord desires to make any substitution and/or change which does not constitute a Landlord Permitted Change, Landlord shall comply with the provisions of paragraph 10 below. (c) Notwithstanding the provisions of the Work Schedule or this Work Letter to the contrary, in the event Landlord is unable to meet the timelines set forth in this Work Letter or the Work Schedule and such delay is a result of (i) the failure by Tenant to perform its obligations, or meet critical deadlines, under this Work Letter in accordance with the time frames set forth herein or on the Work Schedule, (ii) a request by Tenant for changes, modifications, or alterations to Improvement Plans after the Landlord Improvement Plans and Tenant Improvement Plans, as applicable, have been approved by Landlord, including, but not limited to, any Change Orders, (iii) any other delay in the installation by Landlord of the Improvements caused directly by Tenant or Tenant’s agents, servants, contractors, or employees, (iv) any Force Majeure Event (as defined in the Lease), or (v) any delay caused in obtaining necessary Approvals from governmental authorities despite Landlord’s commercially reasonable efforts to obtain such Approvals (collectively, the “Construction Delays”), the periods set forth in the Work Schedule shall, except as otherwise expressly set forth herein, be increased, at Landlord’s option, for each day of a Construction Delay.

Construction of Improvements by Landlord. (a) Landlord shall be responsible for the design and construction of the Landlord Improvements in accordance with the Landlord Improvement Plans and, excluding any portion of the Landlord Improvements which are conditioned on completion of the Tenant Improvements (which shall be completed as soon as reasonably practicable), the Work Schedule. Landlord shall enter into a construction contract with a general contractor selected by Landlord (the “General Contractor”) for the design, construction, installation, and completion of the Landlord Improvements in accordance with the Landlord Improvement Plans, the Approvals and any applicable “Change Orders Orders” (as defined below). Landlord shall be responsible for obtaining all building permits and other governmental approvals required to construct the Improvements and for constructing the Improvements as described on and substantially in accordance with the Improvement Plans. Landlord will keep Tenant apprised with respect to the status of, and significant developments concerning, the pursuit of all Approvals, variances and similar items for and commence construction of the Improvements. Landlord will arrange for all laborImprovements (inclusive of any Change Orders) and use commercially reasonable good faith efforts to inspect, materials, equipment, machinery, utilities, transportationoversee, and other facilities supervise the design, construction, and services necessary for the proper execution and timely completion of the construction Landlord Improvements (inclusive of any Change Orders) to the point that the Building is ready, in all Improvements. Excluding material respects and sufficient for Tenant to obtain required Approvals for the design of Building, for Tenant to commence work on the Tenant Improvements (which shall remain the responsibility of Tenant), Landlord shall be responsible for the design and construction of the Improvements in accordance consistent with the Landlord Improvement Plans and the Tenant Improvement Plans Plans, without materials within the Building suffering weather damage by rain, wind, or other weather conditions (and otherwise in dry-in condition), and finishing the Building in rough-in condition, as confirmed by Landlord’s architect and Tenant’s architect (such condition, the “Turnover Condition”) on or before the “Turnover Condition Deadline” as such date is shown in the Work Schedule. (b) In connection with performing , or such earlier date as the Improvementsparties may mutually agree upon, Landlord as such date may (i) make changes to the Improvement Plans that are not material (i.e.be extended for Tenant Construction Delays, customary other than Approval Delays. The term “fieldActual Turnover Condition Date,” changes), (ii) substitute a product (excluding interior as used herein and exterior finishes) of equal quality in the event any product specified in Lease, shall mean the Improvement Plans is not available or is not available within a time frame required to maintain the construction schedule; (iii) make changes to the Improvement Plans as are required by any governmental authority; (iv) make changes that do not materially affect the overall quality or intended look of the Improvements; and (v) make non-material changes that are required to address a circumstance arising during construction which was not foreseen at the time of the finalization of the Improvement Plans (collectively, “Landlord Permitted Changes”). If Landlord desires to make any substitution and/or change which does not constitute a Landlord Permitted Change, Landlord shall comply with the provisions of paragraph 10 below. (c) Notwithstanding the provisions of the Work Schedule or this Work Letter to the contrary, in the event Landlord is unable to meet the timelines set forth in this Work Letter or the Work Schedule and such delay is a result earlier of (i) the failure by Tenant to perform its obligationsSeptember 1, 2016, or meet critical deadlines, under this Work Letter in accordance with the time frames set forth herein or on the Work Schedule, (ii) a request by Tenant for changes, modifications, or alterations to Improvement Plans after the date on which Landlord Improvement Plans and Tenant Improvement Plans, as applicable, have been approved by Landlord, including, but not limited to, any Change Orders, (iii) any other delay delivers the Leased Premised in the installation by Landlord of the Improvements caused directly by Tenant or Tenant’s agents, servants, contractors, or employees, (iv) any Force Majeure Event (as defined in the Lease), or (v) any delay caused in obtaining necessary Approvals from governmental authorities despite Landlord’s commercially reasonable efforts to obtain such Approvals (collectively, the “Construction Delays”), the periods set forth in the Work Schedule shall, except as otherwise expressly set forth herein, be increased, at Landlord’s option, for each day of a Construction DelayTurnover Condition.

Construction of Improvements by Landlord. (a) Prior to the Commencement Date for Suite E, Landlord shall enter into a construction contract with a general contractor selected construct improvements to Suite E pursuant to the Work Letter attached as Exhibit B. Prior to the Commencement Date for Suite F, Landlord shall, at Landlord's sole cost, construct the improvements described in Exhibit E (which are referred to herein as the Suite F Tenant Improvements), subject to modification of the Suite F Tenant Improvements at the request of, and at the cost of Tenant. If Tenant desires Landlord to change the Suite F Tenant Improvements prior to the completion thereof by Landlord, Tenant shall request such change(s) in writing and the change(s) shall be subject to Landlord's approval, which shall not be unreasonably withheld. Any increases in costs in the Suite F Tenant Improvements that result from Tenant-requested changes shall be paid by Tenant. Estimates thereof shall be provided by Landlord and Tenant shall within five (5) business days of receipt of such estimate advance the “General Contractor”) for the design, construction, installation, and cost thereof to Landlord. Upon completion of the Landlord Improvements in accordance with the Landlord Improvement PlansSuite F Tenant Improvements, the Approvals actual cost of the changes shall be determined by Landlord's general contractor or architect, evidence of such cost shall be provided to Tenant, and any applicable Change Orders if the actual cost exceeds the estimate that was advanced by Tenant to Landlord, the overage amount shall be paid by Tenant to Landlord within five (as defined below). 5) business days of receipt of the supporting invoices for such overage, and if the actual cost is less than the amount advanced by Tenant, Landlord shall be responsible promptly refund to Tenant the excess amount paid by Tenant. If any request for obtaining all building permits and other governmental approvals required to construct a change in the Suite F Tenant Improvements and for constructing delays the Improvements as described on and substantially in accordance with the Improvement Plans. Landlord will keep Tenant apprised with respect to the status of, and significant developments concerning, the pursuit of all Approvals, variances and similar items for and construction of the Improvements. Landlord will arrange for all labor, materials, equipment, machinery, utilities, transportation, and other facilities and services necessary for the proper execution and timely completion of the construction of all Improvements. Excluding the design of the Suite F Tenant Improvements (which shall remain beyond the responsibility date that such improvements would otherwise have been completed, as determined by Landlord's general contractor or architect, the period of Tenant), Landlord such delay shall be responsible for the design and construction of the Improvements in accordance with the Landlord Improvement Plans a Tenant Delay and the Tenant Improvement Plans and the Work Schedule. (b) In connection with performing the Improvements, Landlord may (i) make changes to the Improvement Plans that are not material (i.e., customary “field” changes), (ii) substitute a product (excluding interior and exterior finishes) of equal quality in the event any product specified in the Improvement Plans is not available or is not available within a time frame required to maintain the construction schedule; (iii) make changes to the Improvement Plans Commencement Date for Suite F shall be adjusted as are required by any governmental authority; (iv) make changes that do not materially affect the overall quality or intended look of the Improvements; and (v) make non-material changes that are required to address a circumstance arising during construction which was not foreseen at the time of the finalization of the Improvement Plans (collectively, “Landlord Permitted Changes”). If Landlord desires to make any substitution and/or change which does not constitute a Landlord Permitted Change, Landlord shall comply with the provisions of paragraph 10 below. (c) Notwithstanding the provisions of the Work Schedule or this Work Letter to the contrary, in the event Landlord is unable to meet the timelines set forth provided in this Work Letter or the Work Schedule and such delay is a result of (i) the failure by Tenant to perform its obligations, or meet critical deadlines, under this Work Letter in accordance with the time frames set forth herein or on the Work Schedule, (ii) a request by Tenant for changes, modifications, or alterations to Improvement Plans after the Landlord Improvement Plans and Tenant Improvement Plans, as applicable, have been approved by Landlord, including, but not limited to, any Change Orders, (iii) any other delay in the installation by Landlord of the Improvements caused directly by Tenant or Tenant’s agents, servants, contractors, or employees, (iv) any Force Majeure Event (as defined in the Lease), or (v) any delay caused in obtaining necessary Approvals from governmental authorities despite Landlord’s commercially reasonable efforts to obtain such Approvals (collectively, the “Construction Delays”), the periods set forth in the Work Schedule shall, except as otherwise expressly set forth herein, be increased, at Landlord’s option, for each day of a Construction Delay.

Construction of Improvements by Landlord. (a) Excluding any portion of the Landlord Improvements which are conditioned on completion of the Tenant Improvements, Landlord shall be responsible for the design and construction of the Landlord Improvements in accordance with the Landlord Improvement Plans and the Work Schedule. Landlord shall enter into a construction contract with a general contractor selected by Landlord (the “General Contractor”) for the design, construction, installation, and completion of the Landlord Improvements in accordance with the Landlord Improvement Plans, the Approvals and any applicable Change Orders (as defined below). Landlord shall be responsible for obtaining all building permits and other governmental approvals required to construct the Improvements and for constructing the Improvements as described on and substantially in accordance with the Improvement Plans. Landlord will keep Tenant apprised with respect to the status of, and significant developments concerning, the pursuit of all Approvals, variances and similar items for and commence construction of the Improvements. Landlord will arrange for all laborImprovements and use commercially reasonable good faith efforts to inspect, materials, equipment, machinery, utilities, transportationoversee, and other facilities supervise the design, construction, and services necessary for the proper execution and timely completion of the construction of Landlord Improvements to the point that the Building is ready, in all Improvements. Excluding material respects and sufficient for Tenant to obtain required Approvals for the design of Leased Premises for Tenant to commence work on the Tenant Improvements consistent with the Tenant Improvement Plans, without materials within the Building suffering weather damage by rain, wind, or other weather conditions (and otherwise in dry-in condition), and having the Premises in rough-in condition, as confirmed by Landlord’s architect and Tenant’s architect, with all HVAC and utilities (electrical, water, sewage) installed in the space and a working elevator accessing the Premises such that Tenant can reasonably construct the Tenant Improvements (which shall remain such condition, the responsibility of Tenant), Landlord shall be responsible for “Turnover Condition”) on or before the design and construction of the Improvements “Turnover Condition Deadline” as such date is shown in accordance with the Landlord Improvement Plans and the Tenant Improvement Plans and the Work Schedule. (b) In connection with performing the Improvements, Landlord may (i) make changes to the Improvement Plans that are not material (i.e., customary “field” changes), (ii) substitute a product (excluding interior and exterior finishes) of equal quality in the event any product specified in the Improvement Plans is not available or is not available within a time frame required to maintain the construction schedule; (iii) make changes to the Improvement Plans as are required by any governmental authority; (iv) make changes that do not materially affect the overall quality or intended look of the Improvements; and (v) make non-material changes that are required to address a circumstance arising during construction which was not foreseen at the time of the finalization of the Improvement Plans (collectively, “Landlord Permitted Changes”). If Landlord desires to make any substitution and/or change which does not constitute a Landlord Permitted Change, Landlord shall comply with the provisions of paragraph 10 below. (c) Notwithstanding the provisions of the Work Schedule or this Work Letter to the contrary, in the event Landlord is unable to meet the timelines set forth in this Work Letter or the Work Schedule and such delay is a result of (i) the failure by Tenant to perform its obligations, or meet critical deadlines, under this Work Letter in accordance with the time frames set forth herein or on the Work Schedule, (ii) a request by Tenant for changes, modifications, or alterations to Improvement Plans after such earlier date as the Landlord Improvement Plans and Tenant Improvement Plansparties may mutually agree upon, as applicable, have been approved by Landlord, including, but not limited to, any Change Orders, (iii) any other delay in the installation by Landlord of the Improvements caused directly by such date may be extended for Tenant or Tenant’s agents, servants, contractors, or employees, (iv) any Force Majeure Event (Construction Delays. The term “Actual Turnover Condition Date,” as defined used herein and in the Lease), or (v) any delay caused in obtaining necessary Approvals from governmental authorities despite Landlord’s commercially reasonable efforts to obtain such Approvals (collectively, shall mean the “Construction Delays”), date on which Landlord delivers the periods set forth Leased Premised in the Work Schedule shall, except as otherwise expressly set forth herein, be increased, at Landlord’s option, for each day of a Construction DelayTurnover Condition.

Construction of Improvements by Landlord. (a) Promptly following the Lease Date, Landlord shall enter into shall, at its sole cost and expense, cause to be prepared a set of plans and specifications and/or construction contract with a general contractor selected drawings (collectively, the "Plans and Specifications") based on the preliminary plans and specifications and/or preliminary floor plans set forth on Exhibit B-1 attached hereto and incorporated herein ("Preliminary Plans"), covering all work to be performed by Landlord (collectively, the “General ContractorImprovements”) and shall submit such Plans and Specifications to Tenant, for Tenant’s approval, such approval not to be unreasonably withheld, delayed, conditioned or denied. Tenant shall have no right to disapprove the Plans and Specifications unless the same are materially inconsistent with the Preliminary Plans nor to request any changes to the Plans and Specifications which would materially alter either the Demised Premises or the exterior appearance or basic nature of the Building, as the same are contemplated by the Preliminary Plans. If Tenant requests any changes to the Plans and Specifications because the same are materially inconsistent with the Preliminary Plans, Tenant must give written notice of such request within five (5) business days of receipt thereof by Tenant, whereupon 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 Priority Fulfillment Services, Inc. Lease Agreement — Stateline Business Park Bldg. H Initial Initial 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. Landlord and Tenant shall at all times in their respective preparation or review of the Plans and Specifications, and of any revisions thereto, act reasonably and in good faith. After the Plans and Specifications or the Plans and Specifications have 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 five percent (5%) 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 (including Landlord's overhead) 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. (b) Landlord shall use reasonable speed and diligence to Substantially Complete the Improvements set forth on Exhibit B-1 hereto, at Landlord's sole cost and expense, which the parties anticipate will be Substantially Complete within sixty (60) days after the Lease Date. If the Landlord Work is not Substantially Complete on that date, then, commencing with the sixty-first (61st) day following the Lease Date, Tenant’s obligation to pay Base Rent hereunder shall be abated for each day until Landlord Substantially Completes Landlord’s Work. Except as 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 Improvements, 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) Tenant hereby covenants and agrees that Tenant is familiar with the condition of the Building and the Demised Premises as of the Lease Date. Except for Landlord's express obligations under this Lease, including, without limitation, Landlord’s obligation to perform Landlord’s Work, with respect to the Improvements and the maintenance and repair of the Building, Tenant agrees that Tenant is accepting the Demised Premises on an "AS-IS," "WHERE-IS" basis, and that except for Landlord’s Work and except as otherwise expressly set forth in this Lease, Landlord is making absolutely no repairs, replacements or improvements of any kind or nature to the Demised Premises or the Building in connection with, or in consideration of, this Lease and that Landlord makes no representation or warranty Priority Fulfillment Services, Inc. Lease Agreement — Stateline Business Park Bldg. H Initial Initial regarding security at the Demised Premises or the Building. Notwithstanding the foregoing, Landlord shall, at its sole cost and expense (and such expense shall not be included in Operating Expense), perform all of the repairs to the heating, ventilation and cooling system (“HVAC”) serving the Demised Premises described in that certain letter from Xxx May Heating & Air Conditioning Co., Inc. to Tenant, dated June 2, 2016, a true copy of which is attached hereto and incorporated herein as Exhibit I. Landlord further hereby warrants that the HVAC shall be in good working condition for a period of six (6) months following the Lease Commencement Date, Landlord shall perform any and all maintenance, repairs and replacements of the HVAC during such six month period, at Landlord’s sole cost and expense, and such expense shall not be included in Operating Expenses. (e) Notwithstanding anything to the contrary set forth in this Lease, Landlord hereby warrants to Tenant, which warranty shall survive for the designone (1) year period following the date of the Substantial Completion of the Improvements, construction, installation, that (i) the materials and equipment furnished by Landlord's contractors in the completion of the Landlord Improvements will be in good working condition, and (ii) such materials and equipment and the work of such contractors shall comply with all applicable laws, rules, regulations, building codes and insurance requirements in effect on the date Improvements were permitted and shall be completed in accordance with the Landlord Improvement PlansPlans and Specifications in all material respects in a good and workmanlike manner and 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 Approvals and term "Substantial Completion" (or any applicable Change Orders (as defined below). Landlord variation thereof) shall be responsible for obtaining all building permits and other governmental approvals required to construct the Improvements and for constructing the Improvements as described on and substantially in accordance with the Improvement Plans. Landlord will keep Tenant apprised with respect to the status of, and significant developments concerning, the pursuit of all Approvals, variances and similar items for and construction of the Improvements. Landlord will arrange for all labor, materials, equipment, machinery, utilities, transportation, and other facilities and services necessary for the proper execution and timely mean completion of the construction of all Improvements. Excluding the design of the Tenant Improvements (which shall remain the responsibility of Tenant), Landlord shall be responsible for the design and construction of the Improvements in accordance with the Landlord Improvement approved Plans and the Tenant Improvement Plans and the Work Schedule. (b) In connection with performing the ImprovementsSpecifications therefor, Landlord may (i) make changes subject only to the Improvement Plans that are not material (i.e., customary “field” changesPunchlist items established pursuant to Section 17(c), as established by the delivery by Landlord to Tenant of a certificate of occupancy or its equivalent (iior temporary certificate of occupancy or its equivalent) substitute for the Demised Premises issued by the appropriate governmental authority, if a product (excluding interior and exterior finishes) of equal quality in the event any product specified in the Improvement Plans certificate is not available or is not available within a time frame required to maintain the construction schedule; (iii) make changes to the Improvement Plans as are so required by any a governmental authority; (iv) make changes that do not materially affect the overall quality or intended look of the Improvements; and (v) make non-material changes that are required to address a circumstance arising during construction which was not foreseen at the time of the finalization of the Improvement Plans (collectively, “Landlord Permitted Changes”). If Landlord desires to make any substitution and/or change which does not constitute a Landlord Permitted Change, Landlord shall comply with the provisions of paragraph 10 below. (c) Notwithstanding the provisions of the Work Schedule or this Work Letter to the contrary, in the event Landlord is unable to meet the timelines set forth in this Work Letter or the Work Schedule and such delay is a result of (i) the failure by Tenant to perform its obligations, or meet critical deadlinesif not so required or if unavailable because of unfinished work to be performed by Tenant, under this Work Letter in accordance with then by the time frames set forth herein or delivery by Landlord to Tenant of a Certificate of Substantial Completion for the Improvements on the Work Schedule, (ii) a request by Tenant for changes, modifications, or alterations to Improvement Plans after the Landlord Improvement Plans and Tenant Improvement Plans, as applicable, have been approved Standard AIA Form G-704 certified by Landlord, including, but not limited to, any Change Orders, (iii) any other delay in the installation by Landlord of the Improvements caused directly by Tenant or Tenant’s agents, servants, contractors, or employees, (iv) any Force Majeure Event (as defined in the Lease), or (v) any delay caused in obtaining necessary Approvals from governmental authorities despite Landlord’s commercially reasonable efforts to obtain such Approvals (collectively, the “Construction Delays”), the periods set forth in the Work Schedule shall, except as otherwise expressly set forth herein, be increased, at Landlord’s option, for each day of a Construction Delay's architect.