Emergency Generator. (A) Landlord grants to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside the rear of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35. (B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System. (C) At all times during the term of the Generator License, Tenant shall maintain and repair, at Tenant’s sole cost and expense, Tenant’s Equipment, and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results. (D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System. (E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35. (F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto. (G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment. (H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipment. (I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld. (J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator License. (K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 2 contracts
Samples: Lease Agreement (Hubspot Inc), Lease Agreement (Hubspot Inc)
Emergency Generator. For the duration of the Lease Term and any Option Term, Tenant shall have the right to use a fuel tank backup generator with a capacity of approximately 300 KW (A) the “Emergency Generator”), which Landlord grants shall, at it’s sole cost and expense, purchase in “new” condition, install and hook up next to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside the Premises at the rear of the Building and Building. While Tenant shall not be obligated to pay any fee to Landlord for its associated automatic transfer switch located within the main switchgear room in the basement use of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator Licensesuch Emergency Generator, Tenant shall maintain and repairshall, at Tenant’s sole cost and expense, Tenant’s Equipmentmaintain and repair such Emergency Generator in good condition, reasonable wear and tear excepted, and be responsible for any replacements related thereto. Tenant acknowledges that Landlord has made no representations or warranties, express, implied or otherwise, regarding the Backup Power System in good, operational condition or working order of the Emergency Generator. Except as otherwise expressly set forth in this Section 29.36, Tenant hereby represents that it accepts the Emergency Generator “AS IS AND WITH ALL FAULTS,” and condition that the Emergency Generator is hereby accepted by Tenant, subject to and in compliance accordance with all Applicable Lawsthe terms of this Section 29.36. Xxxxxx acknowledges and agrees that, codes, ordinances, orders, directives, rules notwithstanding Xxxxxx’s right to utilize the Emergency Generator as provided herein throughout the Lease Term and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator LicenseOption Term, Tenant may elect to shall acquire no ownership interest therein. Notwithstanding the foregoing, in the event that the Emergency Generator becomes damaged, then, at Landlord’s option, Tenant shall either (i) repair or replace the Backup Power System such Emergency Generator at Tenant’s sole cost and expense expense, provided that any replacement shall be made with reasonably comparable components, or (ii) discontinue its use of the Backup Power System and ii)pay to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused Landlord (promptly following demand therefor by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (aLandlord) the reasonable out-of-pocket repair and/or replacement costs incurred by associated with the damage to such Emergency Generator, reasonable wear and tear excepted. Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life shall not remove any part of the Backup Power System that still remains as Emergency Generator without Landlord’s prior consent, which consent may be withheld in Landlord’s sole and absolute discretion. Upon the expiration or earlier termination of the termination Lease Term or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power Systemany Option Term, Tenant shall also maintain a preventative maintenance service contract for surrender the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Emergency Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination Notwithstanding the foregoing or any contrary provision of the Generator License (but subject to the next paragraph)this Lease, Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility obligation to maintain, repair, replace or insure the Emergency Generator, nor to replace the Emergency Generator if it becomes damaged. Landlord and Tenant hereby acknowledge and agree that Landlord shall have no liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipmentuse, maintenance and/or repair of such Emergency Generator. Landlord hereby releases Tenant and its respective agents and employeesSuch Emergency Generator shall, in all instances, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all comply with applicable governmental laws, codes, rules and regulations. Tenant shall not be entitled to license the Emergency Generator to any unrelated third party, nor shall Tenant be permitted to receive any revenues, fees or a portion any other consideration for the use of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused such Emergency Generator by Landlord or another an unrelated third party. Tenant hereby expressly acknowledges Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the continued right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipment.
(Ix) Tenant may not install itself utilize any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee portion of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and where the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents)Emergency Generator is located, and (iiy) re-sell, license or lease any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating such space to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator Licensean unaffiliated third party.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 2 contracts
Samples: Office Lease (Roka BioScience, Inc.), Office Lease (Roka BioScience, Inc.)
Emergency Generator. Although Landlord is the owner of emergency generator and related automatic transfer switches serving the Building and the 901 Building (A) Landlord grants collectively, the “Emergency Generator”), prior to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside the rear date of this First Amendment, Tenant, as the sole tenant of the Building and its associated automatic the 901 Building, has been operating and maintaining the Emergency Generator. Tenant shall, on the date that is 1 day after the mutual execution and delivery of this First Amendment by the parties (“EG Transfer Date”), (x) deliver the Emergency Generator to Landlord in good working order with a full tank of diesel (y) assign to, transfer switch located within and deliver to Landlord all governmental permits and licenses (to the main switchgear room extent such permits and licenses are assignable), if any, warranties (to the extent assignable), operating and maintenance manuals, records and other documents concerning the Emergency Generator, and (y) terminate any service, maintenance or other contracts maintained by Tenant with respect to the Emergency Generator. Tenant has not been obligated to maintain a wastewater permit in connection with the Emergency Generator. With respect to any permit required for the Emergency Generator, Landlord acknowledges and agrees that Tenant has been in the basement process of obtaining a generator permit in connection with a Tenant permitting process underway with the Building Bay Area Air Quality Management District (the ‘Backup Power System’). The license granted under this Section 16.35 “BAAQMD”) for the Backup Power System shall be referred 901 Building, that Tenant will remove the generator from its permit application with BAAQMD, and that Landlord will need to herein as obtain a generator permit from BAAQMD in its own name. To the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location best of Tenant’s Equipment and knowledge, Tenant does not have any other permits in connection with the connection to Emergency Generator. To the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that extent Tenant has installed conduitscurrent contracts with any vendors for the Emergency Generator, wire, panels Tenant and transformers (collectively, ‘Tenant’s Equipment’) connecting Landlord shall reasonably cooperate to assign or terminate such contracts in the Premises manner set forth in Section 14 above regarding utilities. To the extent it is not possible for Tenant to remove the Backup Power System.
(C) At all times during request for a generator permit from its BAAQMD application or to assign or terminate any service maintenance or other contracts within 1 day after the term mutual execution and delivery of the Generator Licensethis First Amendment, Tenant shall maintain not be in default hereunder if Tenant promptly commences efforts to do so and repairdiligently performs until such actions have been completed within a reasonable period after such date. Landlord shall, within 5 days of the EG Transfer Date, as part of Expenses, conduct such testing of the Emergency Generator required, in Landlord’s sole and absolute discretion, to determine whether the Emergency Generator is, in fact, in good working order. If such testing discloses that the Emergency Generator is not in good working order, Landlord shall have the right, at Tenant’s sole cost and expense, Tenantto perform any maintenance and/or repairs required to put the Emergency Generator in good working order. Following the EG Transfer Date, Landlord’s Equipment, and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which sole obligation for either providing emergency generators or providing emergency back-up power to Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to shall be: (i) replace to provide emergency generators with not less than the Backup Power System at current capacity of the Emergency Generator and Tenant shall be entitled to Tenant’s sole cost and expense or (ii) discontinue its use share of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its capacity thereof available for use by all tenants of the Backup Power System Building and to terminate the Generator License901 Building, then Tenant at its sole cost and expense shall remove collectively, in accordance with the Backup Power System prior to the termination or expiration rentable area of this Lease and repair any and all damage to the Premises and the 901 Building caused and the collective rentable areas of the Building and the 901 Building occupied by such removalother tenants, (ii) to contract with a third party to maintain the emergency generators (“Emergency Generator Servicer”) as per the manufacturer’s standard maintenance guidelines, and (iii) to obtain and maintain licenses for the emergency generators as required by applicable law. If Tenant elects to replace the Backup Power System then Landlord shall have no obligation to provide Tenant with operational emergency generators or back-up power or to supervise, oversee or confirm that the option Emergency Generator Servicer or any other third party maintaining the emergency generators is maintaining the generators as per the manufacturer’s standard guidelines or otherwise. Landlord shall provide to either (i) require Tenant copies of any reports received by Landlord from the Emergency Generator Servicer regarding its maintenance and repairs of the emergency generators; provided, however, that in no event shall Landlord’s failure to remove deliver such reports constitute a default by Landlord under the Backup Power System prior Lease. During any period of replacement, repair or maintenance of the emergency generators when the emergency generators are not operational, including any delays thereto due to the termination inability to obtain parts or expiration replacement equipment, Landlord shall have no obligation to provide Tenant with an alternative back-up generator or generators or alternative sources of this Lease back-up power. Tenant expressly acknowledges and agrees that Landlord does not guaranty that such emergency generators will be operational at all times or (ii) pay Tenant an amount equal that emergency power will be available to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power SystemPremises when needed. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and Landlord shall provide Landlord Tenant with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more less than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days business days’ notice of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee scheduled disruption in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power Systememergency generators. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in In the case of an emergency), upon twenty-four (24) hours’ prior Landlord shall provide Tenant with notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. any emergency disruption as soon as reasonably possible after Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise becomes aware of the Generator License or compliance with its obligations related theretoneed for such emergency disruption.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator License.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 2 contracts
Samples: Lease Agreement (Theravance Biopharma, Inc.), Lease Agreement (Theravance Inc)
Emergency Generator. (A) Landlord grants A. Tenant, subject to Tenant an exclusive license to access and use Landlord’s 230kw/480v dieselreview and approval of Tenant’s plans therefore, shall have the right to install a 120-powered standby 240 kilowatt supplemental generator located outside (the rear of “Generator”) to provide emergency additional electrical capacity to the Building and its associated automatic transfer switch located within Premises during the main switchgear room Term. The Generator shall be placed in the basement of Building’s parking garage at the Building location outlined on Exhibit H attached hereto and made a part hereof (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator LicenseArea”). Landlord represents and warrants that it has full power and authority and all necessary rights to grant Notwithstanding the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repair, at Tenant’s sole cost and expenseforegoing, Tenant’s Equipmentright to install the Generator shall be subject to Landlord’s approval of the manner in which the Generator is installed, the manner in which any fuel pipe is installed, the manner in which any ventilation and exhaust systems are installed, the manner in which any cables are run to and from the Generator to the Premises and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may measures that will be promulgated by Landlord and of which Tenant is notified in writing taken to eliminate any vibrations or sound disturbances from time to time. If all or any part the operation of the Backup Power System (Generator, including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense any 2 hour rated enclosures or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused sound installation required by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agentsLaw. Landlord shall have the right to inspect require that Tenant install and maintain a chain-link fence around the Generator that is reasonably acceptable to Landlord. Tenant shall be solely responsible for obtaining all necessary governmental and regulatory approvals and for the cost of installing, operating, maintaining and removing of the Generator. Tenant shall not install or operate the Generator until Tenant has obtained and submitted to Landlord copies of all required governmental permits, licenses and authorizations necessary for the installation and operation of the Generator. In addition to and without limiting Tenant’s Equipment obligations under the Lease, Tenant shall comply with all applicable environmental and fire prevention Laws pertaining to Tenant’s use of the Backup Power SystemGenerator Area. Tenant shall also be responsible for the cost of all utilities consumed in the operation of the Generator. Notwithstanding anything herein to the contrary, if Tenant does not install the Generator on or before April 1, 2006, Tenant shall pay to Landlord the prevailing monthly rate for the parking spaces included (in whole or in part) in the Generator Area for the period commencing on such date and expiring on the date on which such installation occurs. In addition, if, after installing the Generator, Tenant removes the Generator from the Generator Area for more than twice per year (90 days for reasons other than the repair and replacement of the Generator, Tenant’s right to install and maintain the Generator and to use the Generator Area shall be null and void; provided, however, that Tenant may cause such right to be reinstated on the terms set forth in this Section 8 upon 90 days’ prior written notice to Landlord.
B. Tenant shall be responsible for assuring that the installation, maintenance, operation and removal of the Generator does not materially damage any portion of the Building or Property, and Tenant shall in any event repair any damage to the Building or Property whatsoever that is caused by such installation, maintenance, operation or removal, except for such wear and tear as would normally result from use of the Generator Area as one or more parking spaces. To the maximum extent permitted by Law, the Generator and all appurtenances in the case Generator Area shall be at the sole risk of an emergency)Tenant, upon twenty-four (24) hours’ prior notice and Landlord shall have no liability to Tenant if the Generator or any appurtenances installations are damaged for any reason; provided, however, that, except as provided in Section 15 of the Lease, Tenant shall not be required to waive any claims against Landlord (other than for loss or without prior notice damage to Tenant’s business) where such loss or damage is due to the negligence or willful misconduct of Landlord or any Landlord Related Parties. Tenant agrees to be responsible for any damage caused to the Building or Property in connection with the case installation, maintenance, operation or removal of an emergency)the Generator and, to ensure compliance in accordance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise Section 13 of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent Landlord and any mortgagee of the Building fully Landlord Related Parties harmless from and against any and all liabilityliabilities, lossobligations, suitsdamages, penalties, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines charges and expenses, including, without limitation, attorneys fees, consultantsreasonable architects’ fees, laboratory and attorneys’ fees (if and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used permitted by Tenant Law), which may be imposed upon, incurred by, or asserted against Landlord or any of the Landlord Related Parties in connection with the installation, maintenance, operation or removal of the Generator, including, without limitation, any environmental and hazardous materials claims, except to the extent caused by the negligence or willful misconduct of Landlord or any Landlord Related Parties with respect to the Generator. In addition to and without limiting Tenant’s obligations under the Lease, Tenant covenants and agrees that the installation and use of the Generator and appurtenances shall not adversely affect the insurance coverage for the Building (provided, however, that Landlord represents and warrants to Tenant that, as of the date of this Lease, Landlord does not have actual knowledge that the installation and use of the Generator and appurtenances in accordance with the provisions of this Section 8 will adversely affect the insurance coverage for the Building). If for any reason, the installation or use of the Generator and/or the appurtenances shall result in an increase in the amount of the premiums for such coverage, then Tenant shall be liable for the full amount of any such increase.
C. Tenant shall be responsible for the installation, operation, cleanliness, maintenance and removal of the Generator and appurtenances, all of which shall remain the personal property of Tenant, and shall be removed by Tenant at its own expense at the expiration or earlier termination of the Lease. Tenant shall repair any damage caused by such removal, including the patching of any holes to match, as closely as possible, the color surrounding the area where the Generator and appurtenances were attached. Such maintenance and operation shall be performed in a manner to avoid any unreasonable interference with any other tenants or Landlord. Tenant shall take the Generator Area “as is” in the condition in which the Generator Area is in as of the Commencement Date, without any obligation on the part of Landlord to prepare or construct the Generator Area for Tenant’s use or occupancy. Without limiting the foregoing, Landlord makes no warranties or representations to Tenant as to the suitability of the Generator Area for the installation and operation of the Backup Power System Generator. Tenant shall have no right to make any changes, alterations, additions, decorations or implantedother improvements to the Generator Area without Landlord’s prior written consent (which shall be governed by Section 9.03 of the Lease). Tenant agrees to maintain the Generator, deposited including, without limitation, any enclosure installed around the Generator, in good condition and repair, with reasonable wear and tear excepted. Tenant shall be responsible for performing any maintenance and improvements to any enclosure surrounding the Generator so as to keep such enclosure in good condition, with reasonable wear and tear excepted.
D. Tenant, upon prior notice to Landlord and subject to the reasonable rules and regulations enacted by Landlord (which rules shall allow Tenant to use the Generator for the purpose permitted hereunder upon satisfaction of all reasonable conditions imposed by Landlord), shall have access to the Generator and its surrounding area for the purpose of installing, repairing, maintaining and removing said Generator.
E. Tenant shall only test the Generator before or placed after Building Service Hours and at a time mutually agreed to in writing by Landlord and Tenant in advance. Tenant shall be permitted to use the Generator Area solely for the maintenance and operation of the Generator, and the Generator and Generator Area are solely for the benefit of Tenant. All electricity generated by the Generator may only be consumed by Tenant in the Premises. Notwithstanding the foregoing, electricity generated by the Generator may be consumed by any subtenant of all or a portion of the Premises under a sublease permitted under Section 11 of the Lease; provided, however, that if the entire Premises has been sublet (other than entirely pursuant to one or its officers, employees, contractors or agentsmore Permitted Transfers), and no subtenant shall be permitted to use such electricity unless Tenant pays to Landlord the prevailing monthly rate for 3 parking spaces with respect to the period of such use by such subtenant.
F. Landlord shall have no obligation to provide any services, including, without limitation, electric current, to the Generator Area.
G. Tenant shall have no right to sublet the Generator Area or to assign its interest hereunder except in connection with (i) any Transfer consisting of (a) an assignment of this Lease or (b) a sublease of the entire Premises, or (ii) any violation(s) by Permitted Transfer.
H. Tenant (shall ensure that the Generator and any appurtenances do not, in Landlord’s reasonable judgment, unreasonably interfere with the operations of the Building or its respective officers, employees, contractors, agents or invitees) the operations of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials of the occupants of the Building. In the event of such unreasonable interference, Tenant shall, as soon as possible upon notice from or relating Landlord, cause such unreasonable interference to cease and, if necessary to prevent the Backup Power System. This hold harmless and indemnity shall survive the termination continuation of such unreasonable interference, cease operation of the Generator Licenseunless and until Tenant shall have redesigned and modified the Generator and/or installations in a manner that eliminates such unreasonable interference and is approved by Landlord; provided however, that Landlord’s approval of such redesign and modification shall constitute the mere permission to operate the Generator, which permission shall in no event be construed to abrogate or diminish Landlord’s rights or Tenant’s obligations under this Section 8 or the Lease.
(K) For purposes of this LeaseI. Except as provided in Section 8.E above, “Hazardous Materials” during the initial Term, Tenant shall mean not be obligated to pay Landlord any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) Additional Rent or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any fee for the use of the Environmental LawsGenerator Area. As used in this LeaseAfter the initial Term, Landlord may charge Tenant a monthly fee (the “Environmental Laws” means all applicable federal, state and local laws relating to Generator Fee”) for the protection use of the environment or health Generator Area, which Generator Fee shall be deemed Additional Rent under the Lease and safety and/or may be adjusted from time to time to reflect the disposition of Hazardous Materialsthen current market rates for the Generator Area, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agencyas reasonably determined by Landlord.
Appears in 1 contract
Emergency Generator. (A) Landlord grants to Tenant an exclusive license to access hereby approves the construction, installation, operation, maintenance and use Landlord’s 230kw/480v dieselof any or all (as determined by Tenant) of (1) one diesel back-powered standby up emergency generator located outside the rear of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’2) one uninterrupted power source system and (3) one fuel storage tank and pipes and connections thereto ((1). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as , (2) and (3) collectively, the “Generator LicenseEmergency Generator”. Landlord represents ), all in accordance with specifications reasonably approved by Landlord, and warrants that it has full power and authority and all necessary rights to grant hereby grants Tenant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repairappurtenant right, at Tenant’s sole cost and expense, Tenant’s Equipment, and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality construct, install, operate, maintain and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except Emergency Generator in the case of an emergencylocation shown on Exhibit H attached hereto (the “Generator Space”), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) construct, run, install, operate, maintain, and use conduits, wires and other appurtenances to and from the Emergency Generator through the Common Areas of the Building reasonably designated by Landlord to the Premises (collectively, the “Appurtenances”), and (c) use the Emergency Generator (in instances where emergency power is required by Tenant) and to test at other times and intervals as advised by the manufacturer or as required by law or as reasonably agreed upon by Landlord and Tenant). Tenant’s use and maintenance of the Emergency Generator shall at all times comply will all applicable laws. Tenant acknowledges that Tenant shall be solely responsible for the use, operation and maintenance and securing of the Emergency Generator, that Landlord shall have absolutely no liability in connection therewith except damage caused to the Emergency Generator by Landlord’s gross negligence or willful misconduct, and that Tenant shall defend, indemnify and hold Landlord harmless from all loss, cost, liability and expense in connection with the Emergency Generator except to the extent due to Landlord’s gross negligence or willful misconduct. Notwithstanding the foregoing or anything in this Lease to the contrary, upon the Expiration Date or the earlier termination of the Lease or Tenant’s use of the Generator Space, Tenant shall have no responsibility or liability obligation to Landlord remove the Emergency Generator or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of ancillary equipment relating thereto from the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraphSpace, but may do so if Tenant exercises its right to terminate so chooses. Tenant agrees that the term “Premises,” as used in the Lease, shall include the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s EquipmentSpace.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator License.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 1 contract
Samples: Office Lease (Enernoc Inc)
Emergency Generator. (A) Landlord grants to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside the rear of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repairmay, at Tenant’s its sole cost and expense, Tenant’s Equipmentinstall an emergency generator and diesel fuel tank (collectively, and the Backup Power System “Emergency Generator”), in gooda location specified by Landlord in its reasonable discretion, operational working order and condition subject to and in compliance accordance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (this Lease including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Article IX. Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Emergency Generator License. If Tenant elects to discontinue its use shall be upon all of the Backup Power System conditions of the Lease, except as modified below:
(a) It is understood and to terminate the Generator Licenseagreed that Tenant shall be responsible, then Tenant at its sole cost and expense shall remove expense, for installing all necessary connections (the Backup Power System prior to “Generator Connections”) between the termination or expiration of this Lease and repair any and all damage to the Premises Emergency Generator and the Building caused by such removalPremises. If Tenant elects In addition to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be complying with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 construction provisions of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit install or operate the use Generator Connections in any portion of the Backup Power System by any other partyBuilding until (x) Tenant shall have obtained Landlord’s prior written approval, except which approval will not be unreasonably withheld or delayed, of Tenant’s plans and specifications for its service providersthe placement and installation of the Generator Connections, contractors or agentsand (y) Tenant shall have obtained and delivered to Landlord copies of all required governmental and quasi-governmental permits, approvals, licenses and authorizations necessary for the lawful installation, operation and maintenance of the Generator Connections. Landlord shall have inform Tenant at the right time of its review of the Generator Connections whether Landlord will require the same to inspect be removed by Tenant upon the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (expiration or without prior notice in the case of an emergency), to ensure compliance with the terms earlier termination of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility obligation to pay Annual Fixed Rent, Tax Excess or liability to Landlord or any third party Operating Expense Excess in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date respect of the termination of Emergency Generator or the Generator License in connection with Landlord’s or another party’s use of Tenant’s EquipmentConnections.
(Hc) Notwithstanding The Emergency Generator shall be used solely to provide back-up power in the event of an outage for Tenant’s lights and plugs in the Premises and dedicated heating, ventilation and air conditioning systems serving the Premises, but not for the purposes of running any life-safety systems or equipment (it being understood and agreed that such dedicated HVAC systems may not function during such an outage, even if connected to the Emergency Generator, to the extent that the base building systems are not functioning).
(d) Landlord shall have no obligation to provide any services to the Emergency Generator. Tenant shall, at its sole cost and expense and otherwise in accordance with the provisions of this Section 16.30, arrange for all utility services required for the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) operation of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Emergency Generator.
(e) Tenant will removeshall, at Tenant’s its sole cost and expense, be solely responsible for all or a portion of Tenant’s Equipment installed in connection with the Backup Power System maintenance and repair to the extent necessary to allow Emergency Generator and the Backup Power System to be reused by Generator Connections. In connection therewith, Tenant shall provide Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use evidence on an annual basis of the Backup Power System in order existence of a maintenance contract for the Emergency Generator with a service provider reasonably acceptable to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s EquipmentLandlord.
(If) Tenant may not install shall have no right to make any additional conduits changes, alterations, signs, or other related equipment (other than improvements to the Tenant’s Equipment) in connection with Emergency Generator or the Backup Power System Generator Connections without first obtaining Landlord’s prior written consent, which consent will shall not be unreasonably withheldwithheld or delayed.
(Jg) Subject Tenant shall be responsible for the cost of repairing any damage to Section 13.4 the Building caused by its use of the Emergency Generator and the Generator Connections.
(h) Except for assignees of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee Lease or subtenants of all or a portion of the Building fully harmless from and against any and all liabilityPremises, lossno other person, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, firm or entity (including, without limitation, attorneys feesother tenants, consultants’ fees, laboratory fees and clean up costs, and licensees or occupants of the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable Building) shall have the right to connect to the Emergency Generator other than Tenant.
(i) To the release maximum extent permitted by law, Tenant’s use of the Emergency Generator and the Generator Connections shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant in the event that the Emergency Generator or the Generator Connections are damaged for any Hazardous Materials atreason.
(j) Tenant shall comply with all applicable laws, onordinances and regulations in Tenant’s use of the Emergency Generator and the Generator Connections.
(k) Landlord shall have the right, upon no less than one hundred twenty (120) days notice to Tenant and at Landlord’s sole cost and expense, to relocate the Emergency Generator and the Generator Connections to another area in the vicinity of the Building. Landlord and Tenant shall cooperate with each other in good faith to schedule such relocation work on nights and weekends so as to minimize interference with Tenant’s business operations. Any such relocation by Landlord shall not independently (i.e., in the absence of another cause) be deemed to constitute a failure of electric supply under or around Section 7.6(C) above.
(l) In addition to the Building arising from indemnification provisions set forth in this Lease which shall be applicable to the operationEmergency Generator and the Generator Connections, repairTenant shall, maintenanceto the maximum extent permitted by law, replacement or removal by Tenant (or indemnify, defend, and hold Landlord, its officers, employeesagents, contractors and agents) employees harmless from any and all claims, losses, demands, actions or causes of actions suffered by any person, firm, corporation, or other entity arising from Tenant’s use of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), Emergency Generator and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator LicenseConnections.
(Km) For purposes Landlord shall have the right to designate or identify the Emergency Generator with or by a lease or license number (or other marking) and to place such number (or marking) on or near such Emergency Generator. It is expressly understood and agreed that, as Special Improvements, Landlord may require removal of the Emergency Generator and Generator Connection pursuant to Section 9.7 of this Lease and Tenant may elect to remove the Emergency Generator and Generator Connection at the expiration or earlier termination of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 1 contract
Emergency Generator. Tenant may, at its sole cost and expense, install an emergency generator (the “Emergency Generator”) in a location (“Generator Location”) at the Property to be designated by Landlord and certain connections between the Emergency Generator and the Premises (the “Generator Connections”). The exact specifications of the Emergency Generator and the Generator Connections, the method of installing the Emergency Generator and the Generator Connections and the location on the Property for the Emergency Generator and the Generator Connections shall all be subject to Landlord's prior written approval, which shall not be unreasonably withheld or delayed. Tenant and Tenant's contractors shall have reasonable access to Generator Location in order to inspect, service, repair, maintain and replace the Emergency Generator and Generator Connections, subject to Landlord's reasonable rules and regulations of which Tenant has been given prior notice relative to such access and use. Tenant's use of the Emergency Generator shall be upon all of the conditions of the Lease, except as modified below:
(A) Landlord grants It is understood and agreed that Tenant shall be responsible, at its sole cost and expense, for installing the Generator Connections. In addition to complying with the applicable construction provisions of this Lease, Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside shall not install or operate the rear Generator Connections in any portion of the Building and its associated automatic transfer switch located within or the main switchgear room in the basement Property until (x) Tenant shall have obtained Landlord's prior written approval, of the Building Emergency Generator and the Generator Connections, as provided above, and (the ‘Backup Power System’). The license granted under this Section 16.35 y) Tenant shall have obtained and delivered to Landlord copies of all required governmental and quasi-governmental permits, approvals, licenses and authorizations necessary for the Backup Power System shall be referred to herein as lawful installation, operation and maintenance of the “Emergency Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35Connections.
(B) The parties hereby acknowledge that Tenant has installed conduitsshall have no obligation to pay Annual Fixed Rent, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting Landlord's Tax Expenses Allocable to the Premises or Operating Expenses Allocable to the Backup Power SystemPremises in respect of the Emergency Generator or the Generator Connections.
(C) At The Emergency Generator may be used to provide back-up power for Tenant's business operations in the Premises.
(D) Landlord shall have no obligation to provide any services to the Emergency Generator. Tenant shall, at its sole cost and expense and otherwise in accordance with the provisions of this Article IX, arrange for all times during utility services required for the term operation of the Generator License, Emergency Generator.
(E) Tenant shall maintain and repairshall, at Tenant’s its sole cost and expense, Tenant’s Equipment, be solely responsible for all maintenance and repair to the Emergency Generator and the Backup Power System in goodGenerator Connections. In connection therewith, operational working order Tenant shall provide Landlord with evidence on an annual basis of the existence of a maintenance contract for the Emergency Generator with a service provider reasonably acceptable to Landlord.
(F) Tenant shall have no right to make any changes, alterations, signs, or other improvements to the Emergency Generator or the Generator Connections without Landlord's prior written consent, which consent shall not be unreasonably withheld or delayed.
(G) Tenant shall be responsible for the cost of repairing any damage to the Building caused by its use of the Emergency Generator and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and the Generator Connections.
(H) Except for assignees of which Tenant is notified in writing from time to time. If this Lease or subtenants of all or any part a portion of the Backup Power System Premises, no other person, firm or entity (including, without limitation, other tenants, licensees or occupants of the generatorBuilding) requires replacement prior shall have the right to connect to the end of Emergency Generator other than Tenant.
(I) To the term of the Generator Licensemaximum extent permitted by law, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its 's use of the Backup Power System Emergency Generator and to terminate the Generator License. If Connections shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant elects to discontinue its in the event that the Emergency Generator or the Generator Connections are damaged for any reason.
(J) Tenant shall comply with all applicable laws, ordinances and regulations in Tenant's use of the Backup Power System Emergency Generator and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Connections.
(K) Landlord shall have the option right, upon no less than ninety (90) days' notice to either (i) require Tenant and at Landlord's sole cost and expense, to remove relocate the Backup Power System prior Emergency Generator and the Generator Connections to another location at the termination or expiration of this Lease or (ii) pay Property reasonably acceptable to Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life provided that such relocation does not adversely affect Tenant's use of the Backup Power System that still remains Emergency Generator and the Generator Connections. Landlord and Tenant shall cooperate with each other in good faith to schedule such relocation work on nights and weekends so as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power Systemminimize interference with Tenant's business operations. Any such replacement relocation by Landlord shall not independently (in the absence of another cause) be with deemed to constitute a new service interruption under Section 7.7(C) or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15D) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such resultsabove.
(DL) The Emergency Generator and the Generator Connections shall be deemed to be a part of the Premises for the purposes of the indemnity and insurance provisions of Article XIII below. In addition to and not in limitation of the foregoing, Tenant shall not be obligated shall, to pay the maximum extent permitted by law, indemnify, defend, and hold Landlord, its agents, contractors and employees harmless from any license and all claims, losses, demands, actions or causes of actions suffered by any person, firm, corporation, or other fee in connection with its entity arising from Tenant's use of the Emergency Generator Area. However, Tenant shall (i) pay directly to and the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power SystemGenerator Connections.
(EM) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect designate or identify the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant Emergency Generator with or by a lease or license number (or without prior notice in the case of an emergency), other marking) and to ensure compliance with the terms of this Lease. Landlord will not cause, place such number (or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License marking) on or compliance with its obligations related theretonear such Emergency Generator.
(GN) The Tenant shall be responsible to disconnect from the Building Emergency Generator License shall terminate on at the expiration or earlier termination of (i) the termination or expiration Lease Term. It is expressly understood and agreed that Landlord may require removal of this Leasethe Emergency Generator and Generator Connections at the end of the Term, or (ii) upon ninety (90) days prior written notice of termination by but that Tenant may elect to Landlord, which notice may be provided remove the Emergency Generator and Generator Connection at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s EquipmentTerm.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator License.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 1 contract
Emergency Generator. (A) Landlord grants to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside the rear of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repairmay, at Tenant’s its sole cost and expense, Tenant’s Equipmentmaintain, repair and replace in the Backup Power System Building the existing emergency generator and diesel fuel tank (collectively, the “Emergency Generator”), in goodits existing location, operational working order and condition subject to and in compliance accordance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (this Lease including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Article IX. Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Emergency Generator License. If Tenant elects to discontinue its use shall be upon all of the Backup Power System conditions of the Lease, except as modified below:
(a) It is understood and to terminate the Generator Licenseagreed that Tenant shall be responsible, then Tenant at its sole cost and expense shall remove expense, for installing all necessary connections (the Backup Power System prior to “Generator Connections”) between the termination or expiration of this Lease and repair any and all damage to the Premises Emergency Generator and the Building caused by such removalPremises. If Tenant elects In addition to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be complying with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 construction provisions of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit install or operate the use Generator Connections in any portion of the Backup Power System by any other partyBuilding until (x) Tenant shall have obtained Landlord’s prior written approval, except which approval will not be unreasonably withheld or delayed, of Tenant’s plans and specifications for its service providersthe placement and installation of the Generator Connections, contractors or agentsand (y) Tenant shall have obtained and delivered to Landlord copies of all required governmental and quasi-governmental permits, approvals, licenses and authorizations necessary for the lawful installation, operation and maintenance of the Generator Connections. Landlord shall have inform Tenant at the right time of its review of the Generator Connections whether Landlord will require the same to inspect be removed by Tenant upon the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (expiration or without prior notice in the case of an emergency), to ensure compliance with the terms earlier termination of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility obligation to pay Annual Fixed Rent, Tax Excess or liability to Landlord or any third party Operating Expense Excess in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date respect of the termination of Emergency Generator or the Generator License in connection with Landlord’s or another party’s use of Tenant’s EquipmentConnections.
(Hc) Notwithstanding The Emergency Generator shall be used solely to provide back-up power in the event of an outage for Tenant’s lights and plugs in the Premises and dedicated heating, ventilation and air conditioning systems serving the Premises, but not for the purposes of running any life-safety systems or equipment (it being understood and agreed that such dedicated HVAC systems may not function during such an outage, even if connected to the Emergency Generator, to the extent that the base building systems are not functioning).
(d) Landlord shall have no obligation to provide any services to the Emergency Generator. Tenant shall, at its sole cost and expense and otherwise in accordance with the provisions of this Section 16.30, arrange for all utility services required for the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) operation of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Emergency Generator.
(e) Tenant will removeshall, at Tenant’s its sole cost and expense, be solely responsible for all or a portion of Tenant’s Equipment installed in connection with the Backup Power System maintenance and repair to the extent necessary to allow Emergency Generator and the Backup Power System to be reused by Generator Connections. In connection therewith, Tenant shall provide Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use evidence on an annual basis of the Backup Power System in order existence of a maintenance contract for the Emergency Generator with a service provider reasonably acceptable to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s EquipmentLandlord.
(If) Tenant may not install shall have no right to make any additional conduits changes, alterations, signs, or other related equipment (other than improvements to the Tenant’s Equipment) in connection with Emergency Generator or the Backup Power System Generator Connections without first obtaining Landlord’s prior written consent, which consent will shall not be unreasonably withheldwithheld or delayed.
(Jg) Subject Tenant shall be responsible for the cost of repairing any damage to Section 13.4 the Building caused by its use of the Emergency Generator and the Generator Connections.
(h) Except for assignees of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee Lease or subtenants of all or a portion of the Building fully harmless from and against any and all liabilityPremises, lossno other person, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, firm or entity (including, without limitation, attorneys feesother tenants, consultants’ fees, laboratory fees and clean up costs, and licensees or occupants of the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable Building) shall have the right to connect to the Emergency Generator other than Tenant.
(i) To the release maximum extent permitted by law, Tenant’s use of the Emergency Generator and the Generator Connections shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant in the event that the Emergency Generator or the Generator Connections are damaged for any Hazardous Materials atreason.
(j) Tenant shall comply with all applicable laws, onordinances and regulations in Tenant’s use of the Emergency Generator and the Generator Connections.
(k) Landlord shall have the right, upon no less than one hundred twenty (120) days notice to Tenant and at Landlord’s sole cost and expense, to relocate the Emergency Generator and the Generator Connections to another area in the vicinity of the Building. Landlord and Tenant shall cooperate with each other in good faith to schedule such relocation work on nights and weekends so as to minimize interference with Tenant’s business operations. Any such relocation by Landlord shall not independently (i.e., in the absence of another cause) be deemed to constitute a failure of electric supply under or around Section 7.6(C) above.
(l) In addition to the Building arising from indemnification provisions set forth in this Lease which shall be applicable to the operationEmergency Generator and the Generator Connections, repairTenant shall, maintenanceto the maximum extent permitted by law, replacement or removal by Tenant (or indemnify, defend, and hold Landlord, its officers, employeesagents, contractors and agents) employees harmless from any and all claims, losses, demands, actions or causes of actions suffered by any person, firm, corporation, or other entity arising from Tenant’s use of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), Emergency Generator and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator LicenseConnections.
(Km) For purposes Landlord shall have the right to designate or identify the Emergency Generator with or by a lease or license number (or other marking) and to place such number (or marking) on or near such Emergency Generator. It is expressly understood and agreed that, as Special Improvements, Landlord may require removal of the Emergency Generator and Generator Connection pursuant to Section 9.7 of this Lease and Tenant may elect to remove the Emergency Generator and Generator Connection at the expiration or earlier termination of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 1 contract
Emergency Generator. (A) Landlord grants to acknowledges that Tenant may be -------------------- installing an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby emergency generator located outside the rear of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’"EMERGENCY GENERATOR"). The license granted under this Section 16.35 for the Backup Power System Subject to Landlord's prior approval of all plans and specifications, which approval shall not be referred to herein as the “Generator License”. Landlord represents unreasonably withheld, and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repair, at Tenant’s 's sole cost and expense, Tenant’s EquipmentLandlord shall permit Tenant to install and maintain the Emergency Generator and related fuel storage tank (without the obligation to pay Rent on the space so occupied), and connections between the Backup Power System Emergency Generator and Landlord's electrical systems in goodthe Building and in the Adjacent Building and, operational working order and condition and all in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may applicable law. Such Emergency Generator shall be promulgated used by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to only during (i) replace the Backup Power System at Tenant’s sole cost testing and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s useregular maintenance, and (ii) Landlord shall have no responsibility or liability to Tenant the period of any electrical power outage in connection with any failures, disruptions or malfunctions of such Backup Power Systemthe Project. Tenant hereby releases shall be entitled to operate the Emergency Generator and such connections to the Adjacent Building for testing and regular maintenance only upon notice to Landlord and its property manager at times reasonably approved by Landlord. Tenant shall submit the specifications for design, operation, installation and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss maintenance of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply connections to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant Emergency Generator and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations facilities related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System thereto to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written 's consent, which consent will not be unreasonably withheld.
withheld or delayed and may be conditioned on Tenant complying with such reasonable requirements imposed by Landlord, based on the advice of Landlord's engineers, so that the Building's Systems and Equipment are not materially and adversely -49- TISHMAN WARNER CENTER VENTURE, LLC [20th Century Industries; 6303 Owensmouth] affected by the installation and operation of the Emergency Generator. The cost of design (Jincluding engineering costs) Subject and installation of the Emergency Generator and the costs of the Emergency Generator itself shall be Tenant's sole responsibility, but may, at Tenant's option, be a charge to Section 13.4 the Tenant Improvement Allowance. All repairs and maintenance of the Emergency Generator shall be the sole responsibility of Tenant, and Landlord makes no representation or warranty with respect to such Emergency Generator. At Landlord's option, Landlord may require that Tenant remove the Emergency Generator and all related facilities upon the expiration or earlier termination of this Lease and the Adjacent Building Lease and repair all damage to the Project resulting from such removal, at Tenant's sole cost and expense. Notwithstanding the foregoing, at such time as this Lease is no longer in effect, but Tenant continues to lease the Adjacent Building, Tenant shall continue to have the right to maintain the Emergency Generator in the Building, provided that, during such time Tenant shall pay rent to the space dedicated to the Emergency Generator at a rate equal to the "Dead Storage Annual Rental Rate", as that term is defined in the Adjacent Building Lease. The terms of the preceding sentence shall survive the termination or earlier expiration of this Lease. The Emergency Generator shall be deemed to be a part of the Premises for purposes of the indemnification and insurance provisions of this Lease, and Tenant shall indemnifymaintain, defend at Tenant's cost, industry standard "boiler and machinery" insurance coverage with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator Licenserespect thereto.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 1 contract
Emergency Generator. (A) Landlord grants Subject to Tenant an exclusive license to access Landlord's approval, which shall not be unreasonably withheld or delayed, and use Landlord’s 230kw/480v diesel-powered standby generator located outside the rear of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection subject to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels TCCs of this SECTION 29.30 and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term ARTICLE 8 of the Generator Licensethis Lease, Tenant shall maintain may install, for Tenant's own use and repair, at Tenant’s 's sole cost and expense, Tenant’s Equipmentbut without the payment of any Rent or a license or similar fee or charge, an emergency generator, cooling towers, storage enclosures and related enclosures and equipment (all such equipment defined collectively as the "EMERGENCY GENERATOR") in, on or adjacent to the Building (such location to be reasonably determined in conjunction with Landlord and Landlord's reasonable requirements). The location, physical appearance and the size of the Emergency Generator shall be subject to Landlord's reasonable approval, and the Backup Power System in goodLandlord may require Tenant to install screening around such Emergency Generator, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s 's sole cost and expense or (ii) discontinue its use expense, as reasonably designated by Landlord; provided, however, Landlord hereby pre-approves the embankment area for the installation of such Emergency Generator as identified on EXHIBIT A-3; provided further, however, that to the Backup Power System extent such Emergency Generator is located on Project parking areas, the number of spaces so used shall commensurately reduce Landlord's obligation to provide a particular number of spaces as otherwise set forth in ARTICLE 28 of this Lease. Tenant shall maintain such Emergency Generator, at Tenant's sole cost and to terminate expense. In the Generator License. If event Tenant elects to discontinue exercise its use of right to install the Backup Power System and to terminate the Generator LicenseEmergency Generator, then Tenant at its sole cost and expense shall give Landlord no less than forty-five (45) days prior written notice thereof. Tenant shall reimburse to Landlord the actual costs reasonably incurred by Landlord in approving such Emergency Generator. Tenant shall remove such Emergency Generator upon the Backup Power System prior to the expiration or earlier termination or expiration of this Lease and shall repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace removal and return the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life affected portion of the Backup Power System that still remains Premises to a building standard tenant improved condition as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power Systemdetermined by Landlord. Any such replacement Such Emergency Generator shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted installed pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant plans and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System specifications approved by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent approval will not be unreasonably withheld. Such Emergency Generator shall, in all instances, comply with applicable governmental laws, codes, rules and regulations.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator License.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 1 contract
Samples: Lease (Vical Inc)
Emergency Generator. (A) Landlord grants to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside the rear As part of the Base Building Improvements, Landlord shall provide a pad, enclosure and its associated automatic transfer switch located within two (2) 4” conduits and one (1) 2” conduit from such pad to the main switchgear room distribution panel in the basement of Building sufficient for Tenant to install and operate one emergency backup electrical generator to provide back-up electrical service to the Building Premises when electricity is not otherwise available to the Premises (the ‘Backup Power System’“Emergency Generator”). The license granted under Subject to the provisions of this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License7.5, Tenant shall maintain and repairhave the right, at Tenant’s its sole cost and expense, Tenant’s Equipmentto install the Emergency Generator on the pad provided by Landlord, and in the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator Licenselocation shown on Exhibit “O” attached hereto. If Tenant elects to discontinue its use of install the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power SystemEmergency Generator, Tenant shall also maintain a preventative maintenance service contract install such fuel tanks, fuel lines, power and refrigeration lines, additional risers, conduits, feeders, switchboards, appurtenances and/or additional electrical equipment in the Premises and/or the Building (“Additional Electrical Equipment”) as may be necessary for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other partyEmergency Generator, except and Landlord shall permit Tenant to install, at Tenant’s cost, the conduits, lines and pipes for its service providerspower, contractors or agentsrefrigeration and water between the Emergency Generator and the Premises. Landlord shall have the right to inspect approve plans and specifications for such Emergency Generator and the Additional Electrical Equipment (“Generator Plans”), which approval shall not be unreasonably withheld, and the schedule for Landlord’s review and response to the submission of such plans shall be as set forth on Schedule 1 to the Tenant Work Letter. Such Generator Plans shall include reasonable screening devices and other appropriate reasonable improvements intended to visually screen the Emergency Generator and Additional Electrical Equipment from view by visitors and tenants in the Park Place Project and to mitigate the penetration of noise or vibration from such Emergency Generator and Additional Electrical Equipment into any other tenant’s or occupant’s premises or into the Common Area. Landlord’s prior written approval must be obtained by Tenant as to the location of the Emergency Generator and Additional Electrical Equipment in the Park Place Project as well as the aesthetic and security aspects of the Emergency Generator and the Additional Electrical Equipment to make sure they are consistent with the quality of the Building and the Park Place Project, provided that any aesthetic or security aspects of the installation of the Emergency Generator that are set forth on the Generator Plans approved by Landlord shall not require any further approval by Landlord hereunder. Landlord shall provide reasonable access to Tenant for the installation, connection and maintenance of the Emergency Generator and Additional Electrical Equipment. The Emergency Generator and Additional Electrical Equipment shall not create any adverse impact on the Building Systems or on the Park Place Project and must comply with (i) the Generator Plans as approved by Landlord, and (ii) applicable insurance regulations and Applicable Laws. No work on the installation of the Emergency Generator shall be undertaken unless and until Landlord has reviewed and approved the Generator Plans. After installation, at Tenant’s sole expense, Tenant shall insure the Emergency Generator and Additional Electrical Equipment as part of Tenant’s property consistent with the provisions of Section 11 below, and Tenant, through a contractor reasonably approved by Landlord, shall maintain and repair (and replace, if needed and if Tenant still desires to use the Emergency Generator, in accordance with specifications and at Tenant’s cost) the Emergency Generator and Additional Electrical Equipment in accordance with the provisions of Section 9.1. Upon expiration or any earlier termination of this Lease and all other leases under which Tenant occupies space in the Park Place Project, the Emergency Generator and Additional Electrical Equipment may be removed by Tenant provided Tenant can demonstrate that it paid for the cost of such Emergency Generator and Additional Electrical Equipment (by showing that Tenant paid a total amount for the costs of design and construction of its initial Tenant Improvements in the Premises under this Lease together with the tenant improvements constructed in other premises leased by Tenant in the Park Place Project and the Backup Power System, not more Emergency Generator and Additional Electrical Equipment equal to or greater than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier sum of (i) the termination or expiration original cost of this Lease, or the Emergency Generator and Additional Electrical Equipment plus (ii) upon ninety (90) days prior written notice the total Tenant Improvement Allowance paid by Landlord or its Affiliates to or on behalf of termination Tenant). If Tenant is permitted to remove, and does remove the Emergency Generator and Additional Electrical Equipment, then Tenant shall repair all damage to the Park Place Project or any improvements therein caused by such removal, including removal of the diesel fuel tank and related equipment and restoration of the portion of the Common Area used to house such equipment. If Tenant cannot demonstrate that it paid for the cost of the Emergency Generator and Additional Electrical Equipment, then such equipment shall be surrendered with the Premises and shall not be removed by Tenant to Landlord, which notice may be provided at upon expiration or any time during the Term earlier termination of this Lease at Tenant’s option. In and the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided other leases under which Tenant leases premises in the next sentence)Park Place Project. The prior sentenceAll testing, howeverinspection, repair and replacement of the Emergency Generator and Additional Electrical Equipment shall not affect Landlord’s rights to enforce any defaults be conducted by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, upon reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability prior notice to Landlord or any third party in connection with any failures, disruptions its Affiliate or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or on a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused schedule reasonably approved by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with its Affiliate, and shall be conducted at such time(s) that will cause the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, least disruption to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or operations of other related equipment (other than tenants in the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator License.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (Park Place Project as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.is reasonably
Appears in 1 contract
Emergency Generator. (A) A. In addition to Tenant’s rights under ARTICLE 44 of this Lease, Landlord hereby grants to Tenant an exclusive license the right to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside install in a location or locations (collectively “Location”) in the rear lower level of the Building mutually agreeable to Landlord and its associated automatic transfer switch located within Tenant, a standby generator and related equipment. The generator and such equipment installed by Tenant, together with the main switchgear room equipment already referred to in said ARTICLE 44, shall be included in the basement definition of Equipment for all purposes of this Lease. Notwithstanding anything elsewhere in this Lease to the Building (contrary, the ‘Backup Power System’)generator and related equipment need not be removed by Tenant prior to the Termination Date but shall be removed by Tenant no later than the Termination Date. The license granted under Obligations with respect to removal shall survive any termination of this Section 16.35 Lease.
B. Landlord agrees that Tenant, upon reasonable prior written notice to Landlord, shall have access to the Location for the Backup Power System purpose of installing, maintaining, repairing and removing the generator and related equipment, all of which shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of performed by Tenant or Tenant’s Equipment and the connection authorized representative or contractors, which shall be approved by Landlord (such approval to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduitsbe not unreasonably withheld, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repairconditioned or delayed), at Tenant’s sole cost and risk. It is agreed, however, that only authorized engineers, employees or properly authorized contractors of Tenant or persons under their direct supervision will be permitted to have access to the Location. Tenant further agrees to exercise firm control over the people requiring access to the Location in order to keep to a minimum the number of people having access to the Location and the frequency of their visits.
C. Tenant agrees to be responsible for any damage caused to the Location or any other part of the Building, which may be caused by Tenant or any of its agents or representatives as a result of Tenant’s exercise of its rights under this ARTICLE 45.
D. Tenant, at its sole cost and expense, Tenant’s Equipmentand at its sole risk, shall install, operate and maintain the Backup Power System generator and related equipment in gooda good and workmanlike manner, operational working order and condition and in compliance with all Applicable Laws, building and safety codes, ordinances, ordersstandards, directives, rules regulations and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by now in effect or hereafter promulgated. Landlord and its agents assume no responsibility for the licensing, operation and/or maintenance of which Tenant is notified the generator and related equipment. Except as may arise from the negligence of the Landlord, neither Landlord nor its agents shall have any responsibility or liability for the conduct or safety of any of Tenant’s representatives or repair, maintenance and engineering personnel while in writing from time to time. If all or on any part of the Backup Power System (Building or the Location in connection with installing or maintaining the generator and related equipment. No failure of service hereunder shall constitute a Service Failure under this Lease.
E. Tenant agrees to maintain all of the generator and related equipment placed on or about the Location or in any other part of the Building in proper operating condition and maintain same in satisfactory condition as to safety in Landlord’s sole, reasonable discretion. Such maintenance and operation shall be performed in a manner to avoid any unreasonable interference with any other tenants or Landlord.
F. In light of the specialized nature of the generator and related equipment, Tenant shall be permitted to utilize the services of its choice for installation, operation, removal and repair of the generator and related equipment, subject to the reasonable approval of Landlord. Notwithstanding the foregoing, Tenant must provide Landlord with prior written notice of any such installation, removal or repair and coordinate such work with Landlord in order to avoid voiding or otherwise adversely affecting any warranties granted to Landlord with respect to the Location.
G. Tenant specifically acknowledges and agrees that the terms and conditions of ARTICLE 14 regarding indemnification and waiver of claims shall apply with full force and effect to the Location and any other portions of the Building accessed or utilized by Tenant, its representatives, agents, employees or contractors.
H. If Tenant defaults under any of the terms and conditions of this ARTICLE 45, and Tenant fails to cure said default within any applicable cure period provided for in this Lease, the same shall be an Event of Default under ARTICLE 24 of this Lease, but Landlord’s sole remedies for such a default shall be to terminate the rights hereunder on notice to Tenant and Tenant and, in addition, Landlord may perform any non-monetary obligations of Tenant hereunder, including, without limitationlimitation the obligations of Tenant to remove all or any of the generator and related equipment, and restore the generator) requires replacement Location to the condition that existed prior to the end installation of the term generator and related equipment. Tenant shall be liable for all out of pocket costs and expenses Landlord incurs in removing the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost generator and expense or (ii) discontinue its use of the Backup Power System related equipment and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair repairing any and all damage to the Premises and the Building caused by the installation, operation or maintenance of the generator and/or related equipment. In such removal. If event, Tenant elects to replace the Backup Power System then shall reimburse Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket for all such costs incurred by Tenant Landlord as aforesaid together with an administrative charge equal to replace the Backup Power System multiplied by (b) the percentage based upon the useful life 10% of the Backup Power System that still remains as cost of the termination or expiration of this Lease as compared work performed by Landlord. The amount to the total useful life of the Backup Power System. Any such replacement be reimbursed hereunder shall be paid together with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) interest from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
cost paid is by Landlord (D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) as evidenced by paid invoices supplied by Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise ) at the rate of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option12% per annum. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except Executed as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing a sealed instrument as of the date of the termination of the Generator License with respect to Tenant’s paymentfirst above written. XXXXXX PLACE ASSOCIATES, repair or replacement obligationsLLC, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described belowa Delaware limited liability company By: SPG XXXXXX ASSOCIATES, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator Licensea Delaware limited liability company, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good its Managing Member By: /s/ XXXXX XXXXX Xxxxx Xxxxx Hereunto duly authorized WAYFAIR LLC By: /s/ XXXXXXXX XXXXXX its: CFO and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator License.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.individually Hereunto duly authorized
Appears in 1 contract
Samples: Office Lease (Wayfair Inc.)
Emergency Generator. (A) Landlord grants to Tenant an exclusive license to access shall install, maintain and use Landlord’s 230kw/480v diesel-operate one (1) diesel powered standby emergency electric generator located outside (the rear “Generator”) and related cabling, pumps, mountings, bracing, supports, conduits, and fuel lines (collectively, “the related equipment”) on a portion of the Building rooftop setback of the Building, and its associated automatic transfer switch located within the main switchgear room (ii) at a location in the basement of the Building as determined by Landlord, furnish and install, operate and maintain one (1) diesel fuel tank (the ‘Backup Power System’)“Fuel Tank”) and a fuel riser leading to and servicing the Generator. The license granted under this Section 16.35 for Generator, Fuel Tank and such fuel riser shall all be purchased, installed, operated and maintained by Landlord in accordance with the Backup Power System Engineering Specifications attached hereto and made a part hereof as Exhibit M. Landlord shall be referred use all commercially reasonable efforts to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant cause the Generator License to Tenant. A drawing depicting be purchased, constructed, installed, erected and commissioned in accordance with the proposed location of Tenant’s Equipment Schedule set forth in Exhibit O, subject to Force Majeure and the connection to the Backup Power System is attached hereto as Exhibit 16.35Tenant Delay.
(B) The parties hereby acknowledge that Tenant has installed conduitsAll costs and expenses associated with designing, wireengineering, panels purchasing, constructing, installing erecting and transformers (collectivelycommissioning the Generator, ‘Tenant’s Equipment’) connecting the Premises including but not limited to the Backup Power System.
obtaining of all permits and licenses associated therewith, and all costs related to the Fuel Tank and the fuel riser (Cthe “Project Costs”) At shall be recorded by Landlord, and such Project Costs shall be made available to Tenant at all reasonable times during on an “open book” basis, together with all contracts, purchase orders, bids and proposals, drawings and specifications for the term Generator, and Landlord shall contribute the sum of One Million Six Hundred Thousand Dollars ($1,600,000.00) toward the Generator License, Tenant shall maintain and repair, at Tenant’s sole cost and expense, Tenant’s EquipmentProject Costs, and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part balance of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement Project Costs shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and paid by Tenant, or Tenant’s designated service provideras Additional Rent, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of following Landlord’s request (but for portions thereof from time to time until fully paid. All such requests shall be accompanied by invoices and back-up documentation as Tenant may reasonably require Tenant shall have the right to approve any and all plans and specifications developed in connection with Generator. Landlord shall promptly notify Tenant as soon as Landlord has any bidding and cost estimates with regard to the work. In the event the anticipated Project Costs exceed $4,900,000.00, then all contracts for such work shall be competitively bid on an open book basis so that Tenant does not have to pay more than twice per yearthe lowest bona fide bid for such work.
(C) from time-to-time. Tenant When the Generator, the Fuel Tank and the fuel riser are completed and fully operational, as described in Exhibit M, then thereafter throughout the Term, Landlord shall also arrange for repair, maintain, test and otherwise operate the testing of Generator in good and safe condition in compliance with all Legal Requirements, the Backup Power System at least once per yearrules, orders, and provide the results regulations of all public and quasi-public authorities, all manufacturers recommendations and specifications, and in accordance with such testing to Landlord within five (5) days of the date reasonable securities industry standards and practices as shall be required of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use All costs of the Generator Area. Howeversuch repair, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use maintenance, testing and operation of the Backup Power Generator and Related Equipment, including without limitation all costs of labor, materials fuel, licensing, service contracts and insurance (“Generator Operating Costs”) shall be calculated by Landlord and shared between Landlord and Tenant in the proportion by which the capacity of the Generator, as measured in Kilowatts, shall service, in the case of Landlord, Landlord’s Building Life Safety System.
(E) Tenant acknowledges that , and, in the case of Tenant, (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s useemergency power backup, and (ii) Landlord shall have no responsibility or liability the Cooling Tower referred to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Exhibit M. Tenant shall not permit the use of the Backup Power System by any other partypay to Landlord annually, except for its service providersas Additional Rent, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise 87.5% of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant Operating Costs within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt following delivery of Landlord’s notice of termination (statement therefore, which statement shall include reasonable detail as applicable)to the components thereof. Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination Landlord shall maintain logs and records of the Generator LicenseOperating Costs, Landlord will permit and Tenant shall have the right to reasonably access and examine the same from time to time, at all reasonable times. Landlord’s proportionate share of Generator Operating Costs shall be included in Operating Expenses. It is expressly understood that the Generator shall be for the sole use of Tenant except for the Backup Power System, capacities specifically allocated for Landlord’s life safety systems as outlined in Exhibit M.
(E) Notwithstanding anything to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator License.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used contrary contained in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating if Landlord shall fail following notice from Tenant (which notice need not be in writing in the event of an actual or threatened interruption in electric power from the public utility) if Landlord fail to supply fuel to the protection of Fuel Tank, Tenant shall have the environment right to supply such fuel in accordance with all Legal Requirements and manufacturer’s recommendation. The foregoing shall not in any manner be construed as granting to Tenant the right or health and safety and/or the disposition of Hazardous Materials, and authority to cure any rule other failures or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agencydefaults by Landlord under this Lease.
Appears in 1 contract
Samples: Lease (MF Global Ltd.)
Emergency Generator. Upon notice by Tenant to Landlord within sixty (A60) Landlord grants to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside days following the rear of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator LicenseLease Commencement Date, Tenant shall maintain and repairhave the right, at Tenant’s sole cost and expense, Tenant’s Equipment, and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior subject to the end of the term of the Generator Licenseterms hereof, Tenant may elect to install one (i1) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and approximately kw backup emergency power generator unit to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage provide emergency power to the Premises and (the Building caused “Generator”) in an area of approximately feet by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior feet, as set forth on Exhibit J attached to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time“Emergency Generator Area”). Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect terminate its right to use all or a portion the Emergency Area at any time upon not less than thirty (30) days’ notice to Landlord, in which event following such termination, Tenant shall promptly remove Tenant’s Emergency Generator Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice pursuant to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Leasehereof. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise The physical appearance and all specifications of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by be subject to Landlord’s reasonable approval and Landlord may require Tenant to Landlord, which notice may be provided at any time during install screening around the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will removeGenerator, at Tenant’s sole cost and expense, all or a portion of as reasonably designated by Landlord. Tenant shall be responsible, at Tenant’s Equipment installed sole cost and expense, for (x) obtaining all permits or other governmental approvals required in connection with the Backup Power System Generator, and (y) repairing and maintaining and causing the Generator to comply with all applicable laws. In no event shall Tenant permit the Generator to interfere with the Building Systems or any other communications equipment at the Building that is located on or in the Building prior to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination installation of the Generator License, Landlord will permit (or reasonable substitutes therefor). In the event Tenant the elects to exercise its right to reasonably access install the Generator, then Tenant shall give Landlord prior notice thereof and use Landlord and Tenant shall execute an amendment to this Lease covering the Backup Power Systemmatters addressed in this Article 31, to the extent reasonably necessary installation and maintenance of the Generator and the Generator Fuel Pad described in Section 31.2, Tenant’s indemnification of Landlord with respect thereto, Tenant’s obligation to remove Tenant’s Equipment.
the Generator (Iand restore the Emergency Generator Area to its previously existing condition) Tenant may not install any additional conduits upon the expiration or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 earlier termination of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, other related matters. Subject to Landlord’s managing agent reasonable rules and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, regulations (including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agentsLandlord’s reasonable notice requirements), Tenant shall be permitted to access the Emergency Generator Area in order to install, repair and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to maintain the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator LicenseGenerator.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 1 contract
Emergency Generator. (A) From and after the date ------------------- Landlord grants to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside the rear tenders possession of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to Tenant through the Backup Power System.
(C) At all times during Term of this Lease, and any renewals or extensions thereof, but only for so long as Portal Software, Inc., or a Related Entity is the term sole tenant of the Building, Landlord shall grant to Tenant the exclusive right (but not the obligation) to (i) use the existing emergency generator and any and all related existing switching gear located in the Building's emergency generator plant (the "Emergency Generator") and (ii) allocate the use of the electrical capacity of such Emergency Generator License, between the Premises and those certain premises occupied by Tenant shall maintain and repairpursuant to the CCCV Lease (the "CCCV Premises") at Tenant's discretion. Landlord agrees to cooperate with Tenant, at Tenant’s 's sole cost and expense, with Tenant’s Equipment's efforts, and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System conducted at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s 's sole cost and expense, to (y) obtain access rights ("Transmission Easement") across any real property owned or controlled by third parties located between the Premises and the CCCV Premises and (z) construct any and all conduits, cabling and junction boxes or a portion of Tenant’s Equipment installed in connection other electrical apparatus necessary to link the Premises with the Backup Power System CCCV Premises for purposes of transmitting backup power from the Emergency Generator ("Transmission Facilities"), all of which Transmission Facilities shall be installed pursuant to the terms of Article 5 and are hereby deemed to be Alterations that affect a Building System; provided that, as Landlord's sole contribution toward the cost of installing the Transmission Facilities, if Tenant so installs the Transmission Facilities, Landlord shall grant to Tenant a credit against the Review Fee payable by Tenant pursuant to Section 1(g) of the Workletter Agreement, which credit shall be in the amount of Seventeen Thousand Dollars ($17,000.00). Landlord hereby disclaims any responsibility whatsoever for the condition of the Emergency Generator or its fitness or suitability for Tenant's use or intended purpose and Tenant shall accept the Emergency Generator in its "as is" condition with all faults, including any deferred maintenance and, except to the extent necessary to allow caused by the Backup Power System to be reused by active negligence or willful misconduct of Landlord or another party. Landlord’s written request to remove Tenant’s Equipment 's Agent, but subject in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, all cases to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to provisions of Section 13.4 31.18 of this Lease, Tenant shall indemnify, defend with counsel engaged in hereby assumes all risks arising from Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee 's use of the Building fully harmless Emergency Generator. Tenant acknowledges that Landlord makes no representation nor warranty concerning Tenant's ability to obtain the Transmission Easement or any approvals from Governmental Authorities necessary to construct the Transmission Facilities. If Tenant so elects to use the Emergency Generator, Tenant shall be solely responsible for performing any maintenance or repair to the Emergency Generator which may be necessary or required to address any deferred maintenance or otherwise necessary to bring the Emergency Generator up to proper running order in compliance with all Requirements. In addition to the foregoing, during any such periods as Tenant elects to so utilize the Emergency Generator, Tenant shall also be responsible for performing, or causing to be performed, at Tenant's sole cost and against expense, (1) weekly testing of the Emergency Generator; (2) periodic replenishing of any fuel consumed by the Emergency Generator during any periods in which it is run; and (3) any and all liabilityinspections, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims maintenance or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System repairs to the extent such Hazardous Materials were used by Tenant Emergency Generator necessary to keep it in connection proper running order consistent with the operation of the Backup Power System or implantedstandards applicable to office buildings located in Cupertino, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating California comparable to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator LicenseBuilding.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 1 contract
Samples: Lease (Portal Software Inc)
Emergency Generator. (A) Landlord grants Subject to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside approval, which shall not be unreasonably withheld or delayed, and subject to the rear terms and conditions of Article 9 and Article 11 of the Building Original Lease, Tenant may install, for Tenant’s own use and its associated automatic transfer switch located within at Tenant’s sole cost and expense, but without the main switchgear room in the basement payment of the Building any Rent or a license or similar fee or charge an emergency back-up generator (the ‘Backup Power System’“Generator”). The license granted under this Section 16.35 for , with an associated above ground fuel storage tank (the Backup Power System shall be referred “Generator Unit”) and an electrical line from the Generator to herein the Premises (the “Line”), all at Tenant’s sole cost and expense (all such equipment defined collectively as the “Generator LicenseEquipment”). Landlord represents The Generator shall be located on the pad depicted on Exhibit D attached hereto. The physical appearance and warrants that it has full power and authority and all necessary rights to grant the size of the location housing the Generator License Equipment shall be subject to Tenant. A drawing depicting the proposed location of TenantLandlord’s reasonable approval, and Landlord may require Tenant to incorporate improvements surrounding such Generator Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repairarea, at Tenant’s sole cost and expense, Tenant’s Equipment, and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated as reasonably required by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of maintain such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense. In the event Tenant elects to exercise its right to install such Generator Equipment, all then Tenant shall give Landlord no less than fifteen (15) business days’ prior written notice thereof. Tenant shall remove such Generator Equipment upon the expiration or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the earlier termination of the Generator License, Landlord will permit Tenant the right to reasonably access Lease and use the Backup Power System, shall repair any damage to the extent reasonably necessary Project caused by such removal and return the affected portion of the Project to remove Tenant’s the condition existing prior to the installation of such Generator Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining , reasonable wear and tear excepted. Such Generator Equipment shall be installed pursuant to plans and specifications approved by Landlord’s prior written consent, which consent approval will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease. Such Generator Equipment shall, in all instances, comply with all applicable governmental laws, codes, rules and regulations. In addition, Tenant shall indemnifynot have the right to trench between the Premises and the Generator Equipment. Tenant shall be entitled to use the Generator for the sole purpose of providing electrical power to the Premises in the event of a power outage. If it is customary to obtain special insurance for the Generator, defend with counsel engaged in Landlord shall have the right to require Tenant to obtain such special insurance at Tenant’s discretion sole expense and hold Landlord, LandlordTenant shall name Landlord and its property manager as additional insureds on such insurance policy. Tenant’s managing agent and any mortgagee use of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes Generator shall constitute a use of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, Premises under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agentsArticle 13(a) of the Backup Power System Lease. Tenant shall perform all Generator testing in accordance with applicable laws and the Generator manufacturer’s recommended maintenance instructions, and Tenant shall act reasonably not to interfere with or disturb other tenants quiet use and enjoyment of their premises in the extent Project in performing such Hazardous Materials were used by testing, and in the event that Tenant is in connection with the operation default of the Backup Power System or implantedforegoing testing requirements, deposited or placed by Landlord shall have the right to require Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of stop using the Generator Licenseand to remove the Generator from the Project.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 1 contract
Emergency Generator. (A) Landlord grants In the event Tenant wishes to Tenant an exclusive license install a separate generator to access and use Landlord’s 230kw/480v dieselprovide back-powered standby up generator located outside the rear of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred services to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repair, at Tenant’s sole cost and expense, Tenant’s Equipment, and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and then subject to the receipt of all necessary approvals from the applicable governmental authority, Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except install a back-up generator in the case of an emergencyPremises, or outside the Premises in the location reasonably designated by Landlord (subject to the same being approved by the city), upon twenty-four as an Alteration (24) hours’ prior notice to Tenant (or without prior notice in the which case of an emergency), to ensure compliance with such installation shall be governed by the terms of this LeaseArticle 8) (the "Tenant Generator"). Tenant acknowledges that Landlord will has not causemade any representation regarding the receipt of approvals for the Tenant Generator, or enter into and if Tenant is unable for any agreement that would causereason to receive such approvals, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License Landlord shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may not be provided at liable for any time during the Term of this Lease at Tenant’s optiondamages resulting therefrom. In the event of terminationsuch Tenant Generator is installed, following then during the date of termination all of Lease Term, Tenant shall maintain such Tenant Generator at Tenant’s maintenance's sole cost and expense. Notwithstanding the foregoing, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, Landlord shall not affect Landlord’s rights to enforce be liable for any defaults by Tenant existing as damages whatsoever resulting from any failure in operation of the date Tenant Generator, or the failure of the termination Tenant Generator to provide suitable or adequate back-up power to the Premises, including but not limited to, loss of profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use, in each case, however occurring, or loss to inventory, scientific research, scientific experiments, laboratory animals, products, specimens, samples, and/or scientific, business, accounting and other records of every kind and description kept at the Generator License with respect to Premises and any and all income derived or derivable therefrom. Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification 's obligations with respect to Hazardous Materials described the Premises, including the insurance and indemnification obligations contained in Article 10, below, which enforcement rights shall survive the termination apply to Tenant's use of the Tenant Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, and Tenant shall return carry industry standard boiler and machinery insurance covering the Backup Power System to Landlord in good and operable condition, reasonable wear and tear exceptedTenant Generator. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and maintain all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed required permits in connection with the Backup Power System Tenant Generator throughout the Lease Term. If installed and then remaining at the Premises, at Landlord's election made in writing to Tenant at least six (6) months prior to the extent necessary to allow the Backup Power System to be reused by Landlord expiration or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of earlier termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnifyeither (A) leave the Tenant Generator in place, defend with counsel engaged in Tenant’s discretion which event Tenant shall surrender the Tenant Generator (and hold Landlordshall, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used assignable, transfer to Landlord all permits maintained by Tenant in connection with the operation Tenant Generator during the Lease Term) concurrent with the surrender of the Backup Power System Premises to Landlord as required hereunder in good operating and working order, ordinary wear and tear excepted, with all transferred permits current, or implanted, deposited or placed by (B) remove the Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating Generator prior to the Backup Power System. This hold harmless and indemnity shall survive the expiration or earlier termination of the Generator License.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Lawand repair all damage to the Building and Premises resulting from such removal, including those substances defined at Tenant's sole cost and expense. In the event that Landlord fails to expressly elect to have the Tenant Generator left in 42 U.S.C. Sec. 9601(14place at least six (6) months prior to upon the expiration or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form earlier termination of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating then Landlord shall be deemed to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining have elected to any federal, state or local government, department or agencyhave Tenant remove such Tenant Generator.
Appears in 1 contract
Samples: Lease (Nkarta, Inc.)
Emergency Generator. (A) Landlord grants to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside the rear of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License Subject to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection compliance with all Applicable Laws, Landlord shall permit Tenant to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repairmaintain, at Tenant’s sole cost and expense, Tenant’s Equipment, and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated above-ground emergency generator (as a Miscellaneous Common Area Item) previously installed by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior pursuant to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Existing Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s useuse in the Premises (the “Emergency Generator”); provided, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failureshowever, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord acknowledges and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from agrees that promptly following the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 execution of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will removeshall, at Tenant’s sole cost and expense, disconnect and/or remove all cabling, wiring, conduit and other such connections of the Emergency Generator, which cabling, wiring, conduit or a portion other such connections are connected to any non-Premises portions of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment Building, in accordance with the prior sentence must removal and repair requirements set forth in Section 8.5, below. Such Emergency Generator shall be provided to used by Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to only during (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, testing and regular maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) period of electrical power outage in the Building. Tenant shall be entitled to operate the Emergency Generator for testing and regular maintenance only upon notice to Landlord and at times reasonably approved by Tenant (Landlord. Any repairs and maintenance of such Emergency Generator shall be the sole responsibility of Tenant. Upon the expiration or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the earlier termination of the Lease, Tenant may, at Tenant’s sole cost and expense, remove the Emergency Generator License.
(K) For purposes and all associated cabling and wiring and repair all damage resulting from such removal; provided, however, to the extent this Lease is terminated prior to the Lease Expiration date pursuant to Article 19 of this Lease, “Hazardous Materials” then, unless Landlord provides prior written notice to Tenant requiring Tenant to remove such Emergency Generator in accordance with the removal and repair obligations in Section 8.5, below, such Emergency Generator shall mean any substance regulated under any Environmental Lawbecome the sole property of Landlord in accordance with the terms of Section 8.5, including those substances defined in 42 U.S.C. Secbelow. 9601(14) Landlord makes no representation or any related warranty with respect to the Emergency Generator or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) its suitability for use by Tenant and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any Article 10 of the Environmental Laws. As used in this LeaseLease shall apply with respect to Tenant’s use, “Environmental Laws” means all applicable federalmaintenance, state repair and local laws relating to the protection operation of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agencyEmergency Generator.
Appears in 1 contract
Samples: Office Lease and Settlement Agreement (Peregrine Systems Inc)
Emergency Generator. Subject to the provisions of this Section 8.5, Tenant shall have the right, at its sole expense, to install two emergency backup electrical generators and supplemental HVAC equipment (Athe “Emergency Generator”) in the Park Place Project to provide back-up electrical service and HVAC services to Premises when electricity is not otherwise available to the Premises. The Emergency Generator shall be located as shown on Exhibit “N” attached hereto. If Tenant elects to install the Emergency Generator, Tenant shall install such fuel tanks, fuel lines, additional risers, conduits, feeders, switchboards, appurtenances and/or additional electrical equipment in the Premises and/or the Building (“Additional Electrical Equipment”) as may be necessary for the use of the Emergency Generator. Landlord grants shall have the right to Tenant an exclusive license to access approve plans and use specifications for such Emergency Generator and the Additional Electrical Equipment (“Generator Plans”), which approval shall not be unreasonably withheld, and the schedule for Landlord’s 230kw/480v diesel-powered standby generator located outside review and response to the rear submission of such plans shall be as set forth on Schedule 1 to the Tenant Work Letter attached hereto as Exhibit “E”. Landlord shall provide reasonable access to a reasonable path for Tenant to run water, refrigeration, and power lines, pipes, and conduits from the approved Emergency Generator location to the Premises without material interference. Such Generator Plans shall include screening devices and other appropriate improvements reasonably required by Landlord to visually screen the Emergency Generator and Additional Electrical Equipment from view by visitors and tenants in the Park Place Project and to avoid the unreasonable penetration of noise or vibration from such Emergency Generator and Additional Electrical Equipment into any other tenant’s or occupant’s premises or into the Common Area. Landlord’s prior written approval must be obtained by Tenant as to the location of the Emergency Generator and Additional Electrical Equipment in the Park Place Project as well as the aesthetic and security aspects of the Emergency Generator and the Additional Electrical Equipment to make sure they are consistent with the quality of the Building and its associated automatic transfer switch located within the main switchgear room in Park Place Project, provided that (i) the basement location of the Building Emergency Generator shown on Exhibit “N” is hereby approved, and (ii) any aesthetic or security aspects of the ‘Backup Power System’)installation of the Emergency Generator that are set forth on the Generator Plans approved by Landlord shall not require any further approval by Landlord hereunder. Landlord shall provide reasonable access to Tenant for the installation, connection and maintenance of the Emergency Generator and Additional Electrical Equipment. The license granted under this Section 16.35 for Emergency Generator and Additional Electrical Equipment shall not create any adverse impact on the Backup Power System Building Systems or on the Park Place Project and must comply with (i) the Generator Plans as approved by Landlord, and (ii) applicable insurance regulations and Applicable Laws. No work on the installation of the Emergency Generator shall be referred to herein as the “Generator License”. undertaken unless and until Landlord represents has reviewed and warrants that it has full power and authority and all necessary rights to grant approved the Generator License to TenantPlans. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repairAfter installation, at Tenant’s sole cost and expense, Tenant shall insure the Emergency Generator and Additional Electrical Equipment as part of Tenant’s Equipmentproperty consistent with the provisions of Section 11 below, and Tenant, through a contractor reasonably approved by Landlord, shall maintain and repair (and replace, if needed and if Tenant still desires to use the Backup Power System Emergency Generator, in good, operational working order accordance with specifications and condition at Tenant’s cost) the Emergency Generator and Additional Electrical Equipment in compliance accordance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, the provisions of Section 9.1. Upon expiration or any earlier termination of this Lease and all reasonable rules other leases under which Tenant occupies space in the Park Place Project, the Emergency Generator and regulations which Additional Electrical Equipment may be promulgated removed by Landlord Tenant provided Tenant can demonstrate that it paid for the cost of such Emergency Generator and Additional Electrical Equipment (by showing that Tenant paid a total amount for the costs of which design and construction of its initial Tenant is notified Improvements in writing from time the Premises under this Lease together with the tenant improvements constructed in other premises leased by Tenant in the Park Place Project and the Emergency Generator and Additional Electrical Equipment equal to time. If all or any part greater than the sum of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System original cost of the Emergency Generator and Additional Electrical Equipment plus (ii) the total Tenant Improvement Allowance paid by Landlord or its Affiliates to or on behalf of Tenant). If Tenant is permitted to remove, and does remove the Emergency Generator and Additional Electrical Equipment, then Tenant shall repair all damage to the Park Place Project or any improvements therein caused by such removal, including removal of the diesel fuel tank and related equipment and restoration of the portion of the Common Area used to house such equipment. If Tenant cannot demonstrate that it paid for the cost of the Emergency Generator and Additional Electrical Equipment, then such equipment shall be surrendered with the Premises and shall not be removed by Tenant upon expiration or any earlier termination of this Lease and the other leases under which Tenant leases premises in the Park Place Project. All testing, inspection, repair and replacement of the Emergency Generator and Additional Electrical Equipment shall be conducted by Tenant upon reasonable prior notice to Landlord or its Affiliate or on a schedule reasonably approved by Landlord or its Affiliate, and shall be conducted at such time(s) that will cause the least disruption to the operations of other tenants in the Park Place Project as is reasonably practicable. Upon the expiration or earlier termination of this Lease, Tenant shall provide Landlord and its Affiliates with a report from a qualified environmental consultant which confirms that there has been no leakage of diesel fuel outside of the diesel fuel tank installed by Tenant in connection with the Emergency Generator, or if there has been any such leakage, Tenant shall immediately remediate such leakage at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit indemnify the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord Indemnified Parties in accordance with Section 15.2 of the Lease due 10.3 with respect to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused by Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s Equipmentsuch leakage.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining Landlord’s prior written consent, which consent will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costs, and the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator License.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.
Appears in 1 contract
Emergency Generator. (A) Landlord grants Subject to Tenant an exclusive license Landlord's approval, which shall not be unreasonably withheld or delayed, and subject to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside the rear TCCs of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents 29.37 and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location Article 8 of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator Licensethis Lease, Tenant shall maintain may install, for Tenant's own use and repair, at Tenant’s 's sole cost and expense, Tenant’s Equipmentbut without the payment of any Rent or a license or similar fee or charge, an emergency generator and related equipment, cabling and conduits (all such equipment defined collectively as the "EMERGENCY GENERATOR") in the location identified on EXHIBIT A, with conduits and cabling to be located between the Emergency Generator pad and the Premises' electrical room. The particular location, physical appearance (including such conduits and cabling) and the size of the Emergency Generator (and components thereof) shall be subject to Landlord's reasonable approval, and the Backup Power System in goodLandlord may require Tenant to install screening around such Emergency Generator, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time to time. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s 's sole cost and expense or (ii) discontinue its use of expense, as reasonably designated by Landlord. Tenant shall maintain such Emergency Generator, at Tenant's sole cost and expense. In the Backup Power System and to terminate the Generator License. If event Tenant elects to discontinue exercise its use of right to install the Backup Power System and to terminate the Generator LicenseEmergency Generator, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then give Landlord shall have the option to either no less than thirty (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenant, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (9030) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s optionthereof. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System reimburse to Landlord in good and operable condition, the reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated costs actually incurred by Landlord in accordance with Section 15.2 of the Lease due to an Event of Defaultapproving such Emergency Generator. Tenant shall, then upon Landlord’s written request pursuant to the next sentence, Tenant will remove, at Tenant’s sole cost and expense, all or a portion of Tenant’s Equipment installed in connection with the Backup Power System to the extent necessary to allow the Backup Power System to be reused if instructed by Landlord or another party. at the time of Landlord’s written request to 's approval of such Emergency Generator, remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant such Emergency Generator within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use of the Backup Power System in order to remove Tenant’s Equipment after the expiration or earlier termination of the Generator License, Landlord will permit Tenant the right to reasonably access this Lease and use the Backup Power System, shall repair any damage to the extent reasonably necessary Building caused by such removal and return the affected portion of the Project's parking, landscaping and driveway areas to remove Tenant’s Equipment.
(I) Tenant may not install any additional conduits or other related equipment (other than the Tenant’s Equipment) in connection with the Backup Power System without first obtaining their pre-Emergency Generator condition. Such Emergency Generator shall be installed pursuant to plans and specifications approved by Landlord’s prior written consent, which consent approval will not be unreasonably withheld.
(J) Subject to Section 13.4 of this Lease. Such Emergency Generator shall remain Tenant's personal property throughout the Lease Term and, Tenant shall indemnifyin all instances, defend comply with counsel engaged in Tenant’s discretion applicable governmental laws, codes, rules and hold Landlord, Landlord’s managing agent and any mortgagee of the Building fully harmless from and against any and all liability, loss, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, including, without limitation, attorneys fees, consultants’ fees, laboratory fees and clean up costsregulations, and the costs and expenses CC&Rs. [remainder of investigating and defending any claims or proceedings, resulting from, or attributable to (i) the release of any Hazardous Materials at, on, under or around the Building arising from the operation, repair, maintenance, replacement or removal by Tenant (or its officers, employees, contractors and agents) of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator License.
(K) For purposes of this Lease, “Hazardous Materials” shall mean any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agency.page intentionally left blank]
Appears in 1 contract
Samples: Office Lease (Fair Isaac Corp)
Emergency Generator. As of the date of this Lease, Tenant has installed an emergency generator and diesel fuel tank (Acollectively, the “Emergency Generator”) Landlord grants to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator in the garage located outside the rear of underneath the Building and its associated automatic transfer switch located within certain connections between the main switchgear room in Emergency Generator and the basement of the Building Premises (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator LicenseConnections”). To the best of Landlord’s actual knowledge as of the date of this Lease (without investigation or inquiry), Landlord represents and warrants that it has full power and authority and all necessary rights to grant is unaware of any non-compliance of the Emergency Generator or the Generator License to TenantConnections with the applicable provisions of this Lease (although it is Landlord’s understanding that the Emergency Generator and Generator Connections have not yet had a final inspection by the City of Waltham). A drawing depicting the proposed location of Tenant’s Equipment and use of the connection Emergency Generator shall be upon all of the conditions of the Lease, except as modified below:
(a) Tenant shall have no obligation to pay Annual Fixed Rent, Tax Excess or Operating Expense Excess in respect of the Backup Power System is attached hereto as Exhibit 16.35Emergency Generator or the Generator Connections.
(Bb) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Emergency Generator shall be used solely to provide back-up power in the event of an outage for Tenant’s Equipment’) connecting lights and plugs in the Premises and dedicated heating, ventilation and air conditioning systems serving the Premises, but not for the purposes of running any life-safety systems or equipment (it being understood and agreed that such dedicated HVAC systems may not function during such an outage, even if connected to the Backup Power SystemEmergency Generator, to the extent that the base building systems are not functioning).
(Cc) At all times during the term of the Generator License, Tenant Landlord shall maintain and repair, at Tenant’s sole cost and expense, Tenant’s Equipment, and the Backup Power System in good, operational working order and condition and in compliance with all Applicable Laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time have no obligation to time. If all or provide any part of the Backup Power System (including, without limitation, the generator) requires replacement prior services to the end of the term of the Generator LicenseEmergency Generator. Tenant shall, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Generator License. If Tenant elects to discontinue its use of the Backup Power System and to terminate the Generator License, then Tenant at its sole cost and expense shall remove and otherwise in accordance with the Backup Power System prior to the termination or expiration provisions of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and TenantSection 16.30, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of the Generator Area. However, Tenant shall (i) pay directly to the applicable provider all fuel costs related to utility services required for the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power SystemEmergency Generator.
(Ed) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit the use of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord shall have the right to inspect the Tenant’s Equipment and the Backup Power System, not more than twice per year (except in the case of an emergency), upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise of the Generator License or compliance with its obligations related thereto.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility or liability to Landlord or any third party in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date of the termination of the Generator License in connection with Landlord’s or another party’s use of Tenant’s Equipment.
(H) Notwithstanding the provisions of the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Tenant will removeshall, at Tenant’s its sole cost and expense, be solely responsible for all or a portion of Tenant’s Equipment installed in connection with the Backup Power System maintenance and repair to the extent necessary to allow Emergency Generator and the Backup Power System to be reused by Generator Connections. In connection therewith, Tenant shall provide Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use after request therefor with evidence of the Backup Power System in order existence of a maintenance contract for the Emergency Generator with a service provider reasonably acceptable to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s EquipmentLandlord.
(Ie) Tenant may not install shall have no right to make any additional conduits changes, alterations, signs, or other related equipment (other than improvements to the Tenant’s Equipment) in connection with Emergency Generator or the Backup Power System Generator Connections without first obtaining Landlord’s prior written consent, which consent will shall not be unreasonably withheldwithheld or delayed.
(Jf) Subject Tenant shall be responsible for the cost of repairing any damage to Section 13.4 the Building caused by its use of the Emergency Generator and the Generator Connections.
(g) Except for assignees of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee Lease or subtenants of all or a portion of the Building fully harmless from and against any and all liabilityPremises, lossno other person, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, firm or entity (including, without limitation, attorneys feesother tenants, consultants’ feeslicensees or occupants of the Building) shall have the right to connect to the Emergency Generator other than Tenant.
(h) To the maximum extent permitted by law, laboratory fees Tenant’s use of the Emergency Generator and clean up coststhe Generator Connections shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant in the costs and expenses of investigating and defending event that the Emergency Generator or the Generator Connections are damaged for any claims or proceedings, resulting from, or attributable to reason.
(i) Tenant shall comply with all applicable laws, ordinances and regulations in Tenant’s use of the release Emergency Generator and the Generator Connections.
(j) Landlord shall have the right, exercisable no more than one (1) time during the Lease Term upon no less than one hundred twenty (120) days notice to Tenant and at Landlord’s sole cost and expense, to relocate the Emergency Generator and the Generator Connections to another area in the vicinity of any Hazardous Materials atthe Building. Landlord and Tenant shall cooperate with each other in good faith to schedule such relocation work on nights and weekends so as to minimize interference with Tenant’s business operations. Any such relocation by Landlord shall not independently (i.e., onin the absence of another cause) be deemed to constitute a failure of electric supply under Section 7.6(C) above.
(k) In addition to the indemnification provisions set forth in this Lease which shall be applicable to the Emergency Generator and the Generator Connections, under or around Tenant shall, to the Building arising from the operationmaximum extent permitted by law, repairindemnify, maintenancedefend, replacement or removal by Tenant (or and hold Landlord, its officers, employeesagents, contractors and agents) employees harmless from any and all claims, losses, demands, actions or causes of actions suffered by any person, firm, corporation, or other entity arising from Tenant’s use of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), Emergency Generator and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator LicenseConnections.
(Kl) For purposes Landlord shall have the right to designate or identify the Emergency Generator with or by a lease or license number (or other marking) and to place such number (or marking) on or near such Emergency Generator. It is expressly understood and agreed that, as Special Improvements, Landlord may require removal of the Emergency Generator and Generator Connections pursuant to Section 9.1 of this Lease, “Hazardous Materials” shall mean but that Tenant may elect to remove the Emergency Generator and Generator Connections any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of time during the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agencyLease Term.
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Emergency Generator. (A) Landlord grants to Tenant an exclusive license to access and use Landlord’s 230kw/480v diesel-powered standby generator located outside the rear of the Building and its associated automatic transfer switch located within the main switchgear room in the basement of the Building (the ‘Backup Power System’). The license granted under this Section 16.35 for the Backup Power System shall be referred to herein as the “Generator License”. Landlord represents and warrants that it has full power and authority and all necessary rights to grant the Generator License to Tenant. A drawing depicting the proposed location of Tenant’s Equipment and the connection to the Backup Power System is attached hereto as Exhibit 16.35.
(B) The parties hereby acknowledge that Tenant has installed conduits, wire, panels and transformers (collectively, ‘Tenant’s Equipment’) connecting the Premises to the Backup Power System.
(C) At all times during the term of the Generator License, Tenant shall maintain and repairmay, at Tenant’s its sole cost and expense, Tenant’s Equipment, install an emergency generator (the “Emergency Generator”) on the Site and certain connections between the Emergency Generator and the Backup Power System Premises (the “Generator Connections”). The exact specifications of the Emergency Generator and the Generator Connections, the method of installing the Emergency Generator and the Generator Connections and the location on the Site for the Emergency Generator and the Generator Connections shall all be subject to Landlord’s prior written approval, which shall not be unreasonably withheld or delayed with respect to a natural gas-powered generator to be installed on the roof of the Building (but which shall otherwise be in goodLandlord’s sole discretion). Tenant and Xxxxxx’s contractors shall have reasonable access to the Site in order to inspect, operational working order service, repair, maintain and condition replace the Emergency Generator and in compliance with all Applicable LawsGenerator Connections, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and all subject to Landlord’s reasonable rules and regulations which may be promulgated by Landlord and of which Tenant is notified in writing from time has been given prior notice relative to timesuch access and use. If all or any part of the Backup Power System (including, without limitation, the generator) requires replacement prior to the end of the term of the Generator License, Tenant may elect to (i) replace the Backup Power System at Tenant’s sole cost and expense or (ii) discontinue its use of the Backup Power System and to terminate the Emergency Generator License. If Tenant elects to discontinue its use shall be upon all of the Backup Power System conditions of the Lease, except as modified below:
(a) It is understood and to terminate the Generator Licenseagreed that Tenant shall be responsible, then Tenant at its sole cost and expense shall remove the Backup Power System prior to the termination or expiration of this Lease and repair any and all damage to the Premises and the Building caused by such removal. If Tenant elects to replace the Backup Power System then Landlord shall have the option to either (i) require Tenant to remove the Backup Power System prior to the termination or expiration of this Lease or (ii) pay Tenant an amount equal to the product of (a) the reasonable out-of-pocket costs incurred by Tenant to replace the Backup Power System multiplied by (b) the percentage based upon the useful life of the Backup Power System that still remains as of the termination or expiration of this Lease as compared to the total useful life of the Backup Power System. Any such replacement shall be with a new or replacement item of similar or better quality and function. A replacement will only be considered required if the Backup Power System functions improperly and Tenantexpense, or Tenant’s designated service provider, cannot remedy such improper function after making reasonable attempts to do so. If Tenant is using or operating the Backup Power System, Tenant shall also maintain a preventative maintenance service contract for the Backup Power System with a licensed generator maintenance contractor and shall provide Landlord with copies of such reports on an annual basis or within fifteen (15) days of Landlord’s request (but not more than twice per year) from time-to-time. Tenant shall also arrange for the testing of the Backup Power System at least once per year, and provide the results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such results.
(D) Tenant shall not be obligated to pay any license or other fee in connection with its use of installing the Generator AreaConnections. However, Tenant shall (i) pay directly In addition to complying with the applicable provider all fuel costs related to the operation of the Backup Power System and (ii) pay any ongoing legally required permitting costs relating to the use and operation of the Backup Power System.
(E) Tenant acknowledges that (i) Landlord makes no warranty or representation with respect to the Backup Power System or its suitability for Tenant’s use, and (ii) Landlord shall have no responsibility or liability to Tenant in connection with any failures, disruptions or malfunctions of such Backup Power System. Tenant hereby releases Landlord and its property manager and their respective agents and employees, and waives any and all claims for damage or injury to person or property or loss of business sustained by Tenant, in connection with or resulting from the Backup Power System becoming in disrepair, malfunctioning, or failing, all as further set forth in Section 12.1 construction provisions of this Lease, which shall apply to the license granted pursuant to this Section 16.35.
(F) Tenant’s right to use the Backup Power System is exclusive to Tenant and granted solely to service the Premises, and Tenant shall not permit install or operate the use Generator Connections in any portion of the Backup Power System by any other party, except for its service providers, contractors or agents. Landlord Building until (x) Tenant shall have obtained Landlord’s prior written approval, of the right to inspect the Tenant’s Equipment Emergency Generator and the Backup Power SystemGenerator Connections, not more than twice per year as provided above, and (except in y) Tenant shall have obtained and delivered to Landlord copies of all required governmental and quasi-governmental permits, approvals, licenses and authorizations necessary for the case of an emergency)lawful installation, upon twenty-four (24) hours’ prior notice to Tenant (or without prior notice in the case of an emergency), to ensure compliance with the terms of this Lease. Landlord will not cause, or enter into any agreement that would cause, a material impediment to Tenant’s exercise operation and maintenance of the Emergency Generator License or compliance with its obligations related theretoand the Generator Connections.
(G) The Generator License shall terminate on the earlier of (i) the termination or expiration of this Lease, or (ii) upon ninety (90) days prior written notice of termination by Tenant to Landlord, which notice may be provided at any time during the Term of this Lease at Tenant’s option. In the event of termination, following the date of termination all of Tenant’s maintenance, service repair, replacement and payment obligations (if any) associated with the Generator License will cease (except as provided in the next sentence). The prior sentence, however, shall not affect Landlord’s rights to enforce any defaults by Tenant existing as of the date of the termination of the Generator License with respect to Tenant’s payment, repair or replacement obligations, nor affect Landlord’s right to enforce Tenant’s indemnification obligations with respect to Hazardous Materials described below, which enforcement rights shall survive the termination of the Generator License. Upon termination of the Generator License, unless otherwise specified by Landlord, Tenant shall return the Backup Power System to Landlord in good and operable condition, reasonable wear and tear excepted. Upon termination of the Generator License (but subject to the next paragraph), Tenant will provide to Landlord Tenant’s Equipment, which Landlord will accept with the Backup Power System. Landlord acknowledges that (a) Tenant makes no warranty or representation with respect to Tenant’s Equipment or its suitability for use, and (b) Tenant shall have no responsibility obligation to pay Annual Fixed Rent, Tax Excess or liability to Landlord or any third party Operating Expense Excess in connection with any failures, disruptions or malfunctions of Tenant’s Equipment. Landlord hereby releases Tenant and its respective agents and employees, and waives any and all claims, for damage or injury to person or property or loss of business sustained by Landlord (or another party) after the date respect of the termination of Emergency Generator or the Generator License in connection with Landlord’s or another party’s use of Tenant’s EquipmentConnections.
(Hc) Notwithstanding The Emergency Generator may be used to provide back-up power in the event of an outage for Tenant’s lights and plugs in the Premises and dedicated heating, ventilation and air conditioning systems serving the Premises, or for the purposes of running any life-safety systems or equipment.
(d) Landlord shall have no obligation to provide any services to the Emergency Generator. Tenant shall, at its sole cost and expense and otherwise in accordance with the provisions of this Section 16.32, arrange for all utility services required for the prior paragraph, if Tenant exercises its right to terminate the Generator License for Tenant’s convenience pursuant to clause (ii) operation of the first sentence of the prior paragraph or if the Lease is terminated by Landlord in accordance with Section 15.2 of the Lease due to an Event of Default, then upon Landlord’s written request pursuant to the next sentence, Emergency Generator.
(e) Tenant will removeshall, at Tenant’s its sole cost and expense, be solely responsible for all or a portion of Tenant’s Equipment installed in connection with the Backup Power System maintenance and repair to the extent necessary to allow Emergency Generator and the Backup Power System to be reused by Generator Connections. In connection therewith, Tenant shall provide Landlord or another party. Landlord’s written request to remove Tenant’s Equipment in accordance with the prior sentence must be provided to Tenant within thirty (30) days from Landlord’s receipt of Tenant’s notice of termination or Tenant’s receipt of Landlord’s notice of termination (as applicable). Should Tenant require access to or use evidence on an annual basis of the Backup Power System in order existence of a maintenance contract for the Emergency Generator with a service provider reasonably acceptable to remove Tenant’s Equipment after the termination of the Generator License, Landlord will permit Tenant the right to reasonably access and use the Backup Power System, to the extent reasonably necessary to remove Tenant’s EquipmentLandlord.
(If) Tenant may not install shall have no right to make any additional conduits changes, alterations, signs, or other related equipment (other than improvements to the Tenant’s Equipment) in connection with Emergency Generator or the Backup Power System Generator Connections without first obtaining Landlord’s prior written consent, which consent will shall not be unreasonably withheldwithheld or delayed.
(Jg) Subject Tenant shall be responsible for the cost of repairing any damage to Section 13.4 the Building caused by its use of the Emergency Generator and the Generator Connections.
(h) Except for assignees of this Lease, Tenant shall indemnify, defend with counsel engaged in Tenant’s discretion and hold Landlord, Landlord’s managing agent and any mortgagee Lease or subtenants of all or a portion of the Building fully harmless from and against any and all liabilityPremises, lossno other person, suits, claims, actions, causes of action, proceedings, demands, costs, penalties, damages, fines and expenses, firm or entity (including, without limitation, attorneys feesother tenants, consultants’ fees, laboratory fees and clean up costs, and licensees or occupants of the costs and expenses of investigating and defending any claims or proceedings, resulting from, or attributable Building) shall have the right to connect to the Emergency Generator other than Tenant.
(i) To the release maximum extent permitted by law, Xxxxxx’s use of the Emergency Generator and the Generator Connections shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant in the event that the Emergency Generator or the Generator Connections are damaged for any Hazardous Materials atreason.
(j) Tenant shall comply with all applicable laws, onordinances and regulations in Tenant’s use of the Emergency Generator and the Generator Connections.
(k) Landlord shall have the right, under or around upon no less than ninety (90) days’ notice to Tenant and at Landlord’s sole cost and expense, to relocate the Emergency Generator and the Generator Connections to another location on the roof of the Building arising from reasonably acceptable to Tenant provided that such relocation does not adversely affect Tenant’s use of the operationEmergency Generator and the Generator Connections. Landlord and Tenant shall cooperate with each other in good faith to schedule such relocation work on nights and weekends so as to minimize interference with Xxxxxx’s business operations. Any such relocation by Landlord shall not independently (in the absence of another cause) be deemed to constitute a service interruption under Section 7.6(C) above.
(l) The Emergency Generator and the Generator Connections shall be deemed to be a part of the Premises for the purposes of the indemnity and insurance provisions of Article XIII above. In addition to and not in limitation of the foregoing, repairTenant shall, maintenanceto the maximum extent permitted by law, replacement or removal by Tenant (or indemnify, defend, and hold Landlord, its officers, employeesagents, contractors and agents) employees harmless from any and all claims, losses, demands, actions or causes of actions suffered by any person, firm, corporation, or other entity arising from Tenant’s use of the Backup Power System to the extent such Hazardous Materials were used by Tenant in connection with the operation of the Backup Power System or implanted, deposited or placed by Tenant (or its officers, employees, contractors or agents), Emergency Generator and (ii) any violation(s) by Tenant (or its respective officers, employees, contractors, agents or invitees) of any applicable law (including under any ‘Environmental Laws’) regarding Hazardous Materials from or relating to the Backup Power System. This hold harmless and indemnity shall survive the termination of the Generator LicenseConnections.
(Km) For purposes Landlord shall have the right to designate or identify the Emergency Generator with or by a lease or license number (or other marking) and to place such number (or marking) on or near such Emergency Generator. It is expressly understood and agreed that, as Special Improvements, Landlord may require removal of the Emergency Generator and Generator Connections pursuant to Section 9.1 of this Lease, “Hazardous Materials” shall mean but that Tenant may elect to remove the Emergency Generator and Generator Connection at any substance regulated under any Environmental Law, including those substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable federal, state or local statute, law, regulation, or ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude oil or any fraction thereof), any form of natural or synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive substances, medical or biological hazard wastes, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes, hazardous substances, contaminants, pollutants or materials as defined, regulated or described in any of time during the Environmental Laws. As used in this Lease, “Environmental Laws” means all applicable federal, state and local laws relating to the protection of the environment or health and safety and/or the disposition of Hazardous Materials, and any rule or regulation promulgated thereunder and any order, standard, interim regulation, moratorium, policy or guideline of or pertaining to any federal, state or local government, department or agencyLease Term.
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Samples: Lease Agreement (A123 Systems, Inc.)
