Common use of Construction Warranties Clause in Contracts

Construction Warranties. (1) Developer shall assign, to the extent assignable, all Warranties. In the event that any Warranty is not assignable, whether by operation of law or the terms of the agreement pursuant to which such Warranty is provided, Developer shall be obligated to enforce the terms of such Warranty for the benefit of City for the full term of such Warranty. (2) Except as otherwise expressly provided herein, in the event that City notifies Developer of the existence of any Construction Defect in the Base Building Improvements or, unless City or Developer shall exercise the Space Improvements Assumption Election, the Space Improvements, as applicable, during the Developer’s Warranty Period, Developer shall exercise commercially reasonable efforts to cause Contractor to (a) perform and (b) cause each Subcontractor to perform its respective Warranty Obligations with respect to such Base Building Improvements and/or Space Improvements, as applicable. (3) Provided that Developer shall have assigned any and all Warranties to City in accordance with the provisions of Section 5.N.(1), Developer shall have no obligation to exercise commercially reasonable efforts to cause Contractor to perform, or cause any Subcontractor to perform, its Warranty Obligations with respect to the Base Building Improvements and/or Space Improvements, as applicable, if City shall (a) exercise its rights under Section 7.A.(3)(a) to complete the construction of the Base Building Improvements and/or the Space Improvements or (b) fail to provide Developer with written notice of any Construction Defect therein prior to the date that is the earlier of (i) the expiration of the Developer’s Warranty Period and (ii) to the extent that City’s failure to promptly notify Developer of the existence of any Construction Defect shall aggravate such condition, within fifteen (15) days following the date that such Construction Defect is initially discovered by City or Inspecting Consultant. (4) Except as expressly provided in this Section 5.N., Developer shall have no obligation with respect to the correction of construction defects after the Closing.

Construction Warranties. (1Landlord shall obtain customary warranties and guaranties from the contractor(s) Developer shall assign, to performing the extent assignable, all Warranties. In Landlord’s Work and/or the event that any Warranty is not assignable, whether by operation manufacturers of law or the terms equipment installed as part of the agreement pursuant to which such Warranty Landlord’s Work (including, without limitation, a not less than 10-year roof warranty on the Arithane foam roof), and shall cooperate with Tenant in obtaining any extended warranties requested by Tenant on the Tenant Improvements (and Tenant acknowledges that Tenant is provided, Developer responsible for purchasing the Funded Equipment and paying for and obtaining any warranties on the Funded Equipment). Landlord shall be obligated under no obligation to enforce incur additional expense in order to obtain extended warranties, provided that Tenant may elect to pay for such extended warranties from the terms of TI Fund. Landlord shall, upon request by Tenant, use its good faith efforts to pursue its rights under any such Warranty warranties obtained by Landlord for the benefit of City for Tenant, and unless such efforts are required to comply with Landlord’s compliance obligations under Section 7 of the full term Lease or its repair obligations under Section 13 of the Lease, Landlord shall be under no obligation to incur any expense in connection with asserting rights under such Warranty. (2) Except as otherwise expressly provided herein, warranties or guaranties against either the contractor or the manufacturer. Tenant shall be entitled to receive the benefit of all construction warranties and manufacturer’s equipment warranties relating to equipment installed in the event that City notifies Developer Premises, and relating to any new equipment installed as part of the existence of any Construction Defect Landlord’s Work in placing the Base Building Improvements orSystems in good working order. If requested by Tenant, unless City or Developer Landlord shall exercise attempt to obtain extended warranties from manufacturers and suppliers of such equipment, but the Space Improvements Assumption Election, cost of any such extended warranties shall be borne solely out of the Space Improvements, as applicable, during the Developer’s Warranty Period, Developer TI Fund. Landlord shall exercise commercially reasonable efforts to cause Contractor to (a) perform promptly undertake and (b) cause each Subcontractor to perform its respective Warranty Obligations with respect to such Base Building Improvements and/or Space Improvements, as applicable. (3) Provided that Developer shall have assigned any and all Warranties to City in accordance with the provisions of Section 5.N.(1), Developer shall have no obligation to exercise commercially reasonable efforts to cause Contractor to performcomplete, or cause any Subcontractor to performbe completed, its Warranty Obligations all punch list items in a manner that will not unreasonably interfere with respect to the Base Building Improvements and/or Space Improvements, as applicable, if City shall (a) exercise its rights under Section 7.A.(3)(a) to complete the construction Tenant’s use and occupation of the Base Building Improvements and/or the Space Improvements or (b) fail Premises, and will act reasonably to provide Developer with written notice mitigate any disturbance of any Construction Defect therein prior to the date that is the earlier of (i) the expiration Tenant’s employees during normal business hours of the Developer’s Warranty Period and (ii) to Building in performing such work. Landlord shall leave the extent that City’s failure to promptly notify Developer affected portions of the existence Premises clean and free of any Construction Defect shall aggravate debris resulting from such condition, within fifteen (15) days following the date that such Construction Defect is initially discovered by City or Inspecting Consultantpunch list work. (4) Except as expressly provided in this Section 5.N., Developer shall have no obligation with respect to the correction of construction defects after the Closing.

Construction Warranties. Tenant acknowledges that Landlord has made no representation or warranty as to the suitability of the design of the Building Shell Improvements for the conduct of Tenant's business, and Tenant waives any implied warranty that the Building Shell Improvements are suitable for Tenant's intended purposes. However, and in lieu of any implied warranties, Landlord expressly warrants to Tenant, which warranty shall run for the one (1) Developer shall assign, to year period from and after the extent assignable, all Warranties. In the event that any Warranty is not assignable, whether by operation actual date of law or the terms substantial completion of the agreement pursuant to which such Warranty is provided, Developer shall be obligated to enforce the terms of such Warranty for the benefit of City for the full term of such Warranty. (2) Except as otherwise expressly provided herein, in the event that City notifies Developer of the existence of any Construction Defect in the Base Building Improvements or, unless City or Developer shall exercise the Space Improvements Assumption Election, the Space Shell Improvements, as applicablethat the Building Shell Improvements will be constructed in a good and workmanlike manner and substantially in accordance with the specifications set forth in Attachment 1 to this Addendum 2 and the Building Shell Plans therefor, during will be of good quality and new, and will be free of material defects. The above warranty (i) includes labor and materials but (ii) excludes remedy for damage or defect caused by abuse, modifications not executed by Landlord or its contractors, Tenant's failure to reasonably maintain the Developer’s Warranty Period, Developer shall exercise commercially reasonable efforts to cause Contractor to (a) perform and (b) cause each Subcontractor to perform its respective Warranty Obligations with respect to such Base Building Shell Improvements and/or Space Improvements, as applicable. (3) Provided that Developer shall have assigned any and all Warranties to City in accordance with the provisions of Section 5.N.(1the Lease or Tenant's failure to reasonably operate or use the Building Shell Improvements for their intended purposes, and normal wear and tear under normal usage. If within one (1) year after the date of Substantial Completion of the Building Shell Improvements any of the Building Shell Improvements are found to be not in accordance with the specifications set forth on Attachment 1 to this Addendum 2 and the Building Shell Plans therefor, or are found to be otherwise defective, then Landlord shall correct such defects, and any other damaged materials or finishes that are part of the Building Shell Improvements (but not any of Tenant's fixtures, furniture, furnishings, equipment, machinery, supplies, stock, inventory or other personal property), Developer promptly after receipt of written notice from Tenant. Tenant shall have no obligation give written notice promptly after discovery of the condition. Landlord's warranties as set forth above are expressly intended to exercise commercially reasonable efforts to cause Contractor to perform, or cause any Subcontractor to perform, its Warranty Obligations with respect to the Base Building Improvements and/or Space Improvements, as applicable, if City shall (a) exercise its rights under Section 7.A.(3)(a) to complete survive substantial completion and completion of the construction of the Base Building Improvements Shell Improvements, acceptance and/or the Space Improvements or (b) fail to provide Developer with written notice of any Construction Defect therein prior to the date that is the earlier of (i) the expiration occupancy of the Developer’s Warranty Period Building Shell Improvements by Tenant, and the payment of Base Rent or other amounts payable under this Lease by Tenant, for the full one (ii1) year period herein set forth. Landlord shall assign to Tenant (or have Tenant named as a co-obligee on) all warranties that are assignable (or on which Tenant may be named as a co-obligee) and applicable to those portions of the Building Shell Improvements (including, without limitation, equipment, systems, and the roof) that Tenant is obligated to maintain or repair under this Lease; and, to the extent that City’s failure such warranties are not assignable (or Tenant cannot be named as a co-obligee), Landlord shall use reasonable efforts to promptly notify Developer enforce such warranties on behalf of and for the benefit of Tenant, if and as applicable. With respect to any warranties applicable to those portions of the existence of any Construction Defect Building Shell Improvements that Landlord is obligated to maintain or repair under this Lease, Landlord also shall aggravate use reasonable efforts to have Tenant named as an additional party entitled to enforce such condition, within fifteen (15) days following warranties in the date that such Construction Defect is initially discovered by City event Landlord fails or Inspecting Consultantrefuses to do so. (4) Except as expressly provided in this Section 5.N., Developer shall have no obligation with respect to the correction of construction defects after the Closing.

Construction Warranties. (1a) This Section governs construction warranties or guaranties covering or otherwise applicable to those portions of the Mall Improvements which will be part of the Common Elements ("CE WARRANTY WORK") and those portions of the Mall Improvements which will NOT be part of the Common Elements but will be the responsibility of Mall II LLC and/or Mall II Buyer to maintain in accordance with the Amended REA (collectively, "MALL II UNIT WARRANTY WORK"). (b) As to both CE Warranty Work and Mall II Unit Warranty Work, Developer shall include in its contracts with construction contractors warranty/guaranty provisions customary for the type or category of work involved (any such provision, a "CONTRACTOR WARRANTY") under which the respective contractor will be required, at its expense, to repair, replace, and/or correct work which is incorrect, defective, incomplete, or not otherwise in compliance with the Final Construction Drawings and Specs ("DEFECTIVE WORK"). Developer shall use commercially reasonable efforts to obtain the agreement of the respective contractor (i) that Mall II LLC and Mall II Buyer shall be the beneficiaries of, and may enforce directly, the contractor's Contractor Warranty as to any Mall II Unit Warranty Work and/or CE Warranty Work located in the Phase II Mall and (ii) that Mall II LLC and/or Mall II Buyer (and/or other Unit Owners) may enforce their applicable warranties without set-off or defense by reason of disputes between the Contractor and Developer (a "NO-OFFSET CLAUSE"). Any such Contractor Warranty for CE Warranty Work may also provide that other Unit Owners are third party beneficiaries. (c) As to both CE Warranty Work and Mall II Unit Warranty Work, until Developer has closed out the applicable contract and made final payment (including release of retainage) to a contractor ("Close-Out"), Developer shall use best efforts, at Developer's expense, to enforce the applicable Contractor Warranty in accordance with its terms and conditions so as to cause such contractor, at such contractor's expense, to repair, replace, and/or correct Defective Work of which Developer becomes aware or of which either Mall II LLC and/or Mall II Buyer gives notice to Developer. If there is any dispute regarding whether any work performed is Defective Work, Developer and Mall II Buyer shall submit the dispute for resolution to the Independent Expert, and the determination of the Independent Expert shall be binding. (d) After Close-Out of a contract with a Contractor Warranty for CE Warranty Work, Developer shall assign Developer's rights with respect to such Contractor Warranty to the party responsible for maintaining such Common Element, if not Developer. (e) After Close-Out of a contract with a Contractor Warranty for Mall II Unit Warranty Work, Developer shall assign (on a non-exclusive basis) Developer's rights with respect to such Contractor Warranty to Mall II LLC. If Developer obtains and delivers to Mall II LLC a No-Offset Clause from a particular contractor, Mall II LLC may thereafter enforce the Contractor Warranty against such contractor, and Developer will have no further obligations to do so. However, if Developer is unable to obtain a No-Offset Clause from a particular contractor and the contractor raises on-going claims with Developer as a defense in any claim by Mall II LLC for Defective Work against such contractor, then Developer shall use Developer's best efforts, at Developer's expense, to enforce the applicable Contractor Warranty in accordance with its terms and conditions so as to cause such contractor, at such contractor's expense, to repair, replace, and/or correct such Defective Work. Moreover, if Developer has failed to obtain any Contractor Warranty that Mall II LLC can enforce for the work of a particular contractor relating to any particular Mall II Unit Warranty Work, Developer shall be responsible, at Developer's expense, to repair, replace, and/or correct Defective Work in the work of such contractor for a period of time equal to the length of a typical warranty period for such work or one year from the date the item or work is placed in service if there is no typical warranty period. (f) Developer shall assignwill permit Mall II Buyer and its Consultants to review, to and will consult with them concerning, the extent assignabletext, all Warranties. terms, and conditions of proposed Contractor Warranties for contractors who will perform the Mall Improvement work which could become either CE Warranty Work or Mall II Unit Warranty Work. (g) In the event that any Warranty is Developer does not assignableengage a general contractor to construct the Mall Improvements, whether by operation of law or the terms of the agreement pursuant to which such Warranty is providedat Closing, Developer shall be obligated deliver to enforce the terms of such Warranty for the benefit of City for the full term of such Warranty. (2) Except as otherwise expressly provided herein, in the event that City notifies Developer of the existence of any Construction Defect in the Base Building Improvements or, unless City or Developer shall exercise the Space Improvements Assumption Election, the Space Improvements, as applicable, during the Developer’s Warranty Period, Developer shall exercise commercially reasonable efforts to cause Contractor to (a) perform and (b) cause each Subcontractor to perform its respective Warranty Obligations with respect to such Base Building Improvements and/or Space Improvements, as applicable. (3) Provided that Developer shall have assigned any and all Warranties to City in accordance with the provisions of Section 5.N.(1), Developer shall have no obligation to exercise commercially reasonable efforts to cause Contractor to perform, or cause any Subcontractor to perform, its Warranty Obligations with respect to the Base Building Improvements and/or Space Improvements, as applicable, if City shall (a) exercise its rights under Section 7.A.(3)(a) to complete Mall II Buyer a warranty covering the construction of the Base Building Mall Improvements and/or on terms consistent with those typically offered by general contractors with respect to similar projects (the Space Improvements or (b"DEVELOPER'S WARRANTY"). In such event, the covenants with respect to construction contracts and warranties thereunder set forth in Section 3.4(b), the first sentence of Section 3.4(c) fail and Sections 3.4(d) and 3.4(e) shall be inapplicable and Developer shall retain the right to provide Developer with written notice of any Construction Defect therein prior to the date that is the earlier of (i) the expiration of the Developer’s Warranty Period and (ii) to the extent that City’s failure to promptly notify Developer of the existence of any Construction Defect shall aggravate such condition, within fifteen (15) days following the date that such Construction Defect is initially discovered by City or Inspecting Consultantenforce all Contractor Warranties. (4h) Except as expressly provided in The provisions of this Section 5.N., Developer 3.4 shall have no obligation with respect to the correction of construction defects after survive the Closing.

Construction Warranties. (1a) Developer shall assign, This Section governs construction warranties or guaranties covering or otherwise applicable to the extent assignable, all Warranties. In the event that any Warranty is not assignable, whether by operation of law or the terms those portions of the agreement pursuant Mall Improvements which will be part of the Common Elements ("CE Warranty Work") and those portions of the Mall Improvements which will not be part of the Common Elements but will be the responsibility of Mall II LLC and/or Mall II Buyer to which such maintain in accordance with the Amended REA (collectively, "Mall II Unit Warranty is providedWork"). (b) As to both CE Warranty Work and Mall II Unit Warranty Work, Developer shall be obligated to enforce the terms of such Warranty include in its contracts with construction contractors warranty/guaranty provisions customary for the benefit type or category of City for work involved (any such provision, a "Contractor Warranty") under which the full term of such Warranty. respective contractor will be required, at its expense, to repair, replace, and/or correct work which is incorrect, defective, incomplete, or not otherwise in compliance with the Final Construction Drawings and Specs (2) Except as otherwise expressly provided herein, in the event that City notifies Developer of the existence of any Construction Defect in the Base Building Improvements or, unless City or "Defective Work"). Developer shall exercise the Space Improvements Assumption Election, the Space Improvements, as applicable, during the Developer’s Warranty Period, Developer shall exercise use commercially reasonable efforts to cause obtain the agreement of the respective contractor (i) that Mall II LLC and Mall II Buyer shall be the beneficiaries of, and may enforce directly, the contractor's Contractor Warranty as to (a) perform any Mall II Unit Warranty Work and/or CE Warranty Work located in the Phase II Mall and (bii) cause each Subcontractor to perform its respective that Mall II LLC and/or Mall II Buyer (and/or other Unit Owners) may enforce their applicable warranties without set-off or defense by reason of disputes between the Contractor and Developer (a "No-Offset Clause"). Any such Contractor Warranty Obligations with respect to such Base Building Improvements and/or Space Improvements, as applicablefor CE Warranty Work may also provide that other Unit Owners are third party beneficiaries. (3c) Provided that As to both CE Warranty Work and Mall II Unit Warranty Work, until Developer shall have assigned any has closed out the applicable contract and all Warranties made final payment (including release of retainage) to City in accordance with the provisions of Section 5.N.(1a contractor ("Close-Out"), Developer shall have no obligation use best efforts, at Developer's expense, to exercise commercially reasonable efforts enforce the applicable Contractor Warranty in accordance with its terms and conditions so as to cause Contractor such contractor, at such contractor's expense, to performrepair, replace, and/or correct Defective Work of which Developer becomes aware or cause of which either Mall II LLC and/or Mall II Buyer gives notice to Developer. If there is any Subcontractor to performdispute regarding whether any work performed is Defective Work, its Warranty Obligations with respect Developer and Mall II Buyer shall submit the dispute for resolution to the Base Building Improvements and/or Space ImprovementsIndependent Expert, as applicable, if City shall (a) exercise its rights under Section 7.A.(3)(a) to complete and the construction determination of the Base Building Improvements and/or the Space Improvements or (b) fail to provide Developer with written notice of any Construction Defect therein prior to the date that is the earlier of (i) the expiration of the Developer’s Warranty Period and (ii) to the extent that City’s failure to promptly notify Developer of the existence of any Construction Defect Independent Expert shall aggravate such condition, within fifteen (15) days following the date that such Construction Defect is initially discovered by City or Inspecting Consultantbe binding. (4) Except as expressly provided in this Section 5.N., Developer shall have no obligation with respect to the correction of construction defects after the Closing.

Construction Warranties. Landlord agrees that materials and equipment furnished in the performance of Landlord’s Work will be of good quality and new, and Landlord’s Work will be free from defects not inherent in the quality required or permitted under Appendix D and not relating to the design of Landlord’s Work (and the parties agree that any work performed or materials provided in conformance with the Construction Documents shall not be considered defective or in violation of Landlord’s warranty hereunder). Any portion of Landlord’s Work not conforming to the foregoing requirements, including substitutions not properly approved and authorized, may be considered defective. Landlord’s warranty also excludes remedy for damage or defect caused by abuse, modifications not made by Landlord, improper or insufficient maintenance or improper operation. Tenant shall give written notice to Landlord, within one (1) Developer year of Substantial Completion of Landlord’s Work (the “Warranty Expiration Date”), time being of the essence, of any portion of Landlord’s Work not conforming to the foregoing requirements, setting forth with specificity the manner in which Tenant believes that Landlord has failed to comply with its obligations under this Section. Landlord agrees that it shall, without cost to Tenant, correct any portion of Landlord’s Work which is found not to be in accordance with the requirements of the warranties set forth in this Section, unless Tenant has previously given Landlord express written acceptance of such defective condition. Landlord shall assigncorrect any such defect within a reasonable time period (which period is agreed to be thirty (30) days after receipt of notice from Tenant specifying the defective condition unless such defect cannot be remedied within such thirty-day period, in which event Landlord shall have commenced repair of such defect within thirty (30) days and thereafter diligently pursued such repair to completion). If Landlord fails to correct any such portion of Landlord’s Work within such time period, Tenant may, after notice to Landlord and at its option without waiving any other remedies Tenant may have by reason of Landlord’s failure to perform such work, correct such defective condition, and Landlord agrees to reimburse Tenant for the cost of such work withing thirty (30) days after invoice. Upon the Warranty Expiration Date, Landlord shall at Tenant’s request assign to Tenant any and all construction and manufacturers’ warranties and guarantees with respect to Landlord’s Work and, to the extent assignable, all Warranties. In the event that any Warranty is such warranties and guarantees are not assignable, whether by operation of law or the terms of the agreement pursuant to which such Warranty is provided, Developer shall be obligated Landlord agrees to enforce the terms of such Warranty same for the benefit of City for the full term of such WarrantyTenant, at Tenant’s sole cost and expense, paid in advance. (2) Except as otherwise expressly provided herein, in the event that City notifies Developer of the existence of any Construction Defect in the Base Building Improvements or, unless City or Developer shall exercise the Space Improvements Assumption Election, the Space Improvements, as applicable, during the Developer’s Warranty Period, Developer shall exercise commercially reasonable efforts to cause Contractor to (a) perform and (b) cause each Subcontractor to perform its respective Warranty Obligations with respect to such Base Building Improvements and/or Space Improvements, as applicable. (3) Provided that Developer shall have assigned any and all Warranties to City in accordance with the provisions of Section 5.N.(1), Developer shall have no obligation to exercise commercially reasonable efforts to cause Contractor to perform, or cause any Subcontractor to perform, its Warranty Obligations with respect to the Base Building Improvements and/or Space Improvements, as applicable, if City shall (a) exercise its rights under Section 7.A.(3)(a) to complete the construction of the Base Building Improvements and/or the Space Improvements or (b) fail to provide Developer with written notice of any Construction Defect therein prior to the date that is the earlier of (i) the expiration of the Developer’s Warranty Period and (ii) to the extent that City’s failure to promptly notify Developer of the existence of any Construction Defect shall aggravate such condition, within fifteen (15) days following the date that such Construction Defect is initially discovered by City or Inspecting Consultant. (4) Except as expressly provided in this Section 5.N., Developer shall have no obligation with respect to the correction of construction defects after the Closing.