Tenant Delays. A "Tenant Delay” shall be defined as any delay in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 4 contracts
Samples: Lease Agreement (Irobot Corp), Lease Agreement (Irobot Corp), Lease Agreement (Irobot Corp)
Tenant Delays. A "Tenant Delay” shall be defined responsible for any actual delay (including associated costs) in Substantial Completion resulting from any of the following causes (“Tenant Delays”):
(a) Tenant’s failure to timely respond to any submissions of the Space Plans and/or the Construction Documents for the Tenant Improvements, unless such failure is due to causes beyond Tenant’s control;
(b) Tenant’s failure to pay any portion of Tenant’s Costs within ten (10) days after when due (except that if Tenant has a bona fide, good faith dispute as to an item of Tenant’s Costs, Tenant may elect to pay such amount “under protest,” so that Tenant may reserve its rights to seek reimbursement of the disputed amounts);
(c) Tenant’s specification of special materials or finishes, or special installations, which special items cannot be delivered or completed within Landlord’s construction schedule (subject to Landlord’s obligation to give Tenant prior notice of same at the time of such specification);
(d) any change in the Space Plans and/or the Construction Documents caused by Tenant once finally approved and accepted by the parties, even though Landlord may approve such change (and Landlord agrees to estimate the delay to be caused by a change order; or
(e) any other delay in the design, permitting or performance of the Base Building Work Substantial Completion directly attributable to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant negligent or Tenant's contractors, architects, engineerswillful acts or omissions of, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 breach of this Lease within five (5) days thereafter); providedby, howeverTenant, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour periodits employees, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such agents, or contractors. If any Tenant Delay Notice results in or contributes to an actual delay in Substantial Completion, then, Substantial Completion (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (iCommencement Date) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date Landlord would have otherwise achieved Substantial Completion, but for Tenant’s Delay. Landlord will specify in writing to Tenant the Tenant Delay(s) which resulted in or contributed to a delay in Substantial Completion. (Tenant is not responsible for delays other than Tenant Delays.) Landlord’s failure to notify Tenant within three (3) business days after the occurrence of substantial completion a Tenant Delay shall constitute a waiver by Landlord of the Base Building Workapplicable Tenant Delay (but, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise event of its good faith a continuing Tenant Delay, it is waived only for the period of time preceding three (3) business judgment days before Tenant’s receipt of Landlord’s notice). Tenant’s failure to notify Landlord within five (it being understood and agreed that 5) business days after Landlord’s notice of a Tenant Delay shall constitute a waiver by Tenant of the foregoing right to dispute the existence of the applicable Tenant Delay (but shall not be construed so limit Tenant’s right to dispute the length of the applicable Tenant Delay). If Landlord and Tenant timely provide their respective notices and there is a dispute between Landlord and Tenant as to relieve the existence or length of a particular instance of Tenant Delay, which dispute is not resolved by the parties within ten (10) business days after Tenant’s notice to Landlord of the Tenant’s disagreement with a Tenant Delay notice delivered by Landlord, then, within ten (10) days after the expiration of such ten (10) business day period, Landlord and Tenant shall each select an independent disinterested architect, which architects shall mutually determine (within ten (10) days) whether there exists such Tenant Delay (and, if so, the length thereof). The losing party (as designated by the architects) shall bear the costs of the architects. If the architects cannot agree, then the architects shall mutually select a third independent disinterested architect Such third architect shall then (within ten (10) days) make its obligation to actually complete determination whether there exists such Tenant Delay (and, if so, the Base Building Worklength thereof), notwithstanding whose decision shall be final and binding. The losing party (as designated by the fact that architect) shall pay the fees and costs of such third architect. At a minimum, each of the architects shall be disinterested architects, with substantial completion may have been deemed to have occurred prior to actual completion as experience in the result of Tenant Delays)Miami-Dade County commercial real estate office market.
Appears in 3 contracts
Samples: Lease Agreement (Interval Leisure Group, Inc.), Lease Agreement (Interval Leisure Group, Inc.), Lease Agreement (Interval Leisure Group, Inc.)
Tenant Delays. A "The term “Tenant Delay” as used in the Lease or this Agreement shall be defined as mean any delay that Landlord may encounter in the design, permitting or performance of Landlord’s obligations under the Base Building Work to the extent that such delay is actually caused by Lease or this Agreement because of any act or, where there is a duty to act under this Lease, or omission of any failure to act nature by Tenant or Tenant's its agents or contractors, architects, engineers, including any: (1) delay attributable to changes in or anyone else engaged additions to the Approved Plans or to the Landlord’s Work requested by or on behalf Tenant; (2) delay attributable to the postponement of any Landlord’s Work at the request of Tenant; (3) delay caused by a Change Order requested by Tenant; (4) delay attributable to the failure of Tenant in connection with to pay, when due, any amounts required to be paid by Tenant pursuant to the construction Lease; or (5) delay attributable to a failure of Tenant to employ union labor for Tenant’s work at the Premises during the time the Landlord’s Work is being constructed. Tenant shall pay all actual costs and expenses incurred by Landlord which result from any Tenant Delay and the Commencement Date of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event Lease shall be deemed accelerated one (1) day for each day the Premises is not Ready for Occupancy as a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that result of a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred unless Landlord gives Tenant prior written notice or written notice within five (5) days of the occurrence, as reasonable under the circumstances, specifying the claimed reasons for the purposes of this Article III). In additionsuch Tenant Delay, any delay and Tenant shall fail to the extent caused by (i) Landlord Delay promptly correct or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute cure such Tenant Delay. There shall be excluded from the number of days of any Tenant covenants that no Tenant Delay shall delay commencement Delay, or any of the Term following events of force majeure: labor disputes, fire, unusual delay in transportation, adverse weather conditions not reasonably anticipatable, unavoidable casualties, delays in obtaining permits or the obligation to pay Annual Fixed Rent governmental approvals or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Workany other causes beyond Landlord’s or its contractor’s reasonable control (and other than for financial reasons) (collectively, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant “Force Majeure Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays”).
Appears in 2 contracts
Samples: Lease Agreement (Palmsource Inc), Lease Agreement (Palm Inc)
Tenant Delays. A "Tenant Delay” shall be defined as any delay a. If Landlord is delayed in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of Substantially Completing the Tenant Improvement Work Improvements or in delivering the Premises to Tenant as set forth in this Article III a result of any act, neglect, failure or omission of Tenant, its employees or agents (including, without limitation, any delays resulting from contractor or subcontractor employed by Tenant performing work at the Approved Premises), including any of the following, such delay shall be deemed a “Tenant Finishes under Section 3.l(CDelay”: (1) aboveTenant’s failure to meet any of Tenant’s deadlines set forth herein; (2) and disclosed Tenant’s failure to timely approve revised Plans after resubmission by Landlord; (3) Tenant’s delay in submitting or approving any other drawings, plans or specifications; (4) Tenant’s failure, within two (2) business days after request therefor, to provide Landlord with any other information reasonably requested by Landlord for the purpose of completing the Plans or the ordering of materials or the letting of bids for the Tenant as hereinafter provided. Notwithstanding Improvements; (5) any change by Tenant in the foregoingContract Documents, the specifications of Long Lead Items, or in no event shall any delays other plan, specification or finish information furnished by Tenant, after Landlord has commenced the same; (6) delay in the completion of the Base Building Work caused work by any person (other than Landlord or its contractors) performing work for Tenant; (7) work by Tenant’s use , if any, not being completed on schedule which under good construction scheduling practices should be completed before some portion of non-union labor constitute a the Tenant Delay hereunder. Notwithstanding Improvements is undertaken or which otherwise interferes with Landlord undertaking the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant DelayImprovements; (y8) installation of Tenant’s telephone and/or other communications systems; (9) any Change Orders; (10) installation by Tenant of any systems or furniture in the Premises; (11) any act or omission by Tenant which delays the receipt by Landlord of a certificate of occupancy (or its equivalent) for the Premises; (12) direction by Tenant that Landlord hold up proceeding or continuing with a segment of the basis on which Landlord has determined that Tenant Improvements preliminary to a Tenant Delay is occurringpossible Change Order or for any other reason; and (z13) Tenant’s failure to comply with any of the actions which Landlord believes Tenant’s deadlines attached hereto as Schedule C-1. In any such event, such delay or delays shall not postpone or defer the Commencement Date or Tenant’s obligation to pay Rent, but the Commencement Date shall occur on the day when they would otherwise have occurred if such delay or delays had not occurred (despite the fact that Tenant must take will not be entitled to eliminate such possess the Premises until actual delivery by Landlord). In addition, Tenant shall pay to Landlord all additional out-of-pocket costs actually incurred by Landlord resulting from any Tenant Delay, including, without limitation, any costs incurred by Landlord due to delay damages claimed by the Contractor. No event Any such sums shall be paid to Landlord within ten (10) days after demand therefor by Landlord. Any costs payable by Tenant to Landlord hereunder shall be deemed to be Additional Rent under the Lease, and, in the event of any default by Tenant in any payment thereof, Landlord shall (in addition to all other rights and remedies) have the same rights and remedies arising under the Lease in the event of a Tenant Delay unless and until Tenant has failed default regarding the payment of Rent.
b. Landlord shall be responsible for obtaining all permits required to rectify the situation causing be obtained in order to Substantially Complete the Tenant Delay within forty-eight (48) hours after Tenant's receipt of Improvements, and the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period costs thereof shall be included in Construction Costs.
c. In the period event that Long Lead Items will not be available on the job site on or prior to January 17, 2013, the Contractor shall notify Tenant or Landlord (who will notify Tenant) of time charged this fact promptly after ascertaining same. In such event, Tenant shall, within two (2) business days after such notification, either (i) specify a replacement item which is not a Long Lead Item and is otherwise readily-available, or (ii) so long as the Long Lead Item is not necessary for Landlord to Tenant pursuant obtain a certificate of occupancy or otherwise comply with Legal Requirements, direct Landlord to such Tenant Delay Notice (it being understood and agreed that if Tenant shall wait for the arrival of the unavailable Long Lead Item, in fact eliminate which case the Tenant Delay within the 48-hour cure period, no Tenant Delay Improvements shall be deemed to have occurred for be Substantially Completed and the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) Commencement Date shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, occur notwithstanding the fact that substantial completion may any improvements requiring the Long Lead Item have not been completed, and Landlord shall instead complete such improvements following the arrival of the previously-unavailable Long Lead Item.
d. The Tenant Improvements will be deemed to be “Substantially Complete” at such time as (i) Landlord’s Architect certifies in writing to Tenant that the Tenant Improvements have been deemed fully completed in accordance with the Contract Documents, subject only to have occurred prior items contained on the Punch List (hereinafter defined), and (ii) the appropriate governmental authority having jurisdiction over the Building and Premises issues a Certificate of Occupancy or similar certificate or permit with respect to actual completion the Premises.
e. Notwithstanding anything to the contrary in this Exhibit C or the Lease, Landlord shall pay, at Landlord’s sole cost and not out of Landlord’s Allowance, for all costs of improvements to the Common Areas of the Building and any tenant-space adjacent to the Premises which are necessitated by Legal Requirements, so long as such improvements would be required as a pre-requisite to obtaining any building permit or certificate of occupancy in the result Building (and not, in contrast, by reason of Tenant’s particular design of the Tenant DelaysImprovements). Any costs of improvements to the Premises which are necessitated by Legal Requirements shall be included in Construction Costs. Further, Landlord shall pay, at Landlord’s sole cost and not out of Landlord’s Allowance, for all costs of completing the elevator lobby and common corridor on the floor in which the Premises are located, as noted on the plans attached to the Lease as Exhibit A-1 and Exhibit A-3. Further, Landlord shall install security card readers to limit access to the men’s and women’s restrooms in the Common Areas of Tenant’s floor of the Building, at Tenant’s cost but subject to the Landlord’s Allowance.
Appears in 2 contracts
Samples: Office Lease, Office Lease (Connecture Inc)
Tenant Delays. A "If there shall be any actual delay or delays in the Substantial Completion of Landlord’s Work and/or the Tenant Improvements as a direct, proximate or total result of any of the following (individually, a “Tenant Delay” ”, and collectively, “Tenant Delays”):
(i) subject to Section 5.4 below, Tenant’s failure to timely approve the Working Drawings or any other matter requiring Tenant’s approval within the time periods expressly provided in this Tenant Work Letter (where this Tenant Work Letter is silent as to the time period for Tenant’s approval, Tenant shall be defined as any delay in the design, permitting have five (5) Business Days to approve or performance disapprove of such matters);
(ii) a breach by Tenant of the Base Building terms of this Tenant Work to the extent that such delay is actually caused Letter (other than as expressly addressed by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf another category of Tenant in connection with the construction of the Tenant Improvement Work as Delays set forth in this Article III Section 4.2), provided Landlord shall give Tenant prompt Email Notice of such breach upon becoming aware of such breach; in no event shall a Tenant Delay be deemed to have commenced more than three (3) Business Days prior to Tenant’s receipt of such notice;
(iii) Tenant’s request for changes in any of the Construction Drawings, after the initial approval thereof;
(iv) Tenant’s requirement for materials, components, finishes or improvements that are not available in a commercially reasonable time, provided that Landlord has notified Tenant that such materials, components, finishes, or improvements are not available in a commercially reasonable time and Tenant elects to proceed anyway;
(v) any changes in the Construction Drawings (after the Construction Drawings are initially approved by Landlord and Tenant) and/or Landlord’s Work and/or the Tenant Improvements required by Applicable Laws if such changes are directly attributable to Tenant’s Specialized Improvements, other than those set forth in the Base, Shell and Core Description (as reasonably determined by Landlord);
(vi) any Change Orders with respect to the Tenant Improvements or changes to the plans with respect to the Tenant Improvements (after the approval of the parties) requested by Tenant;
(vii) Tenant’s failure to meet any deadline set forth herein (including, without limitation, any delays resulting from the Approved deadline to submit or re-submit the Space Plan or Working Drawings);
(viii) changes requested by Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion (after approval of the Construction Drawings) to the base, shell and core work or the Base Building Building;
(ix) time spent by Tenant contemplating Landlord’s reasonable response to changes requested by Tenant to Landlord’s Work caused and the Tenant Improvements after approval of the applicable Construction Drawings (whether or not ultimately pursued), only to the extent of any delay actually incurred by Landlord where Landlord’s Work or the Tenant Improvements cannot proceed as planned as a result of Landlord’s need to wait for Tenant’s use decision that could change the scope of non-union labor constitute a Landlord’s Work or the Tenant Delay hereunder. Notwithstanding Improvements;
(x) any work performed by Tenant which interferes with Landlord’s Work and/or the foregoingTenant Improvements, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant where such interference continues for two (2) Business Days after written notice (or Email Notice) from Landlord;
(xi) actions by Tenant which cause delays in Landlord receiving permits for Landlord’s Work, where such actions continue for two (2) Business Days after written notice (or Email Notice) from Landlord (provided, however, Landlord shall not be required to provide any notice after the "Tenant Delay Notice"third such delay);
(xii) advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as any changes to the likely length scope of such Landlord’s Work requested by Tenant Delay; (y) after approval of the basis on Construction Drawings, including, without limitation, those involving upgraded or highly specialized improvements;
(xiii) any Specialized Improvements to be constructed as part of the Tenant Improvements, other than those set forth in the Base, Shell and Core Description;
(xiv) if Tenant rejects a Cost Proposal or Partial Cost Proposal, all time thereafter in which Landlord has determined that a the parties seek alternative cost proposal(s); or
(xv) any other unreasonable or negligent acts or omissions or willful misconduct of Tenant, or its agents or employees where such acts or misconduct continue for two (2) Business Days after written notice (or Email Notice) from Landlord; then, notwithstanding anything to the contrary set forth in the Lease and regardless of the actual date of the Substantial Completion of Landlord’s Work and the Tenant Delay is occurring; Improvements with respect to the Phase I Premises and (z) the actions which Landlord believes that Phase II Premises, the Substantial Completion of Landlord’s Work and the Tenant must take Improvements with respect to eliminate such Tenant Delay. No event the Phase I Premises and the Phase II Premises shall be deemed to be a Tenant Delay unless the date the Substantial Completion of Landlord’s Work and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of Improvements would have occurred with respect to the Tenant Delay Notice (which for Phase I Premises and the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that Phase II Premises if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as set forth above, had occurred (which date shall be reasonably determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant DelaysLandlord).
Appears in 2 contracts
Samples: Lease Agreement (Sweetgreen, Inc.), Lease Agreement (Sweetgreen, Inc.)
Tenant Delays. A "Notwithstanding the provisions of Paragraph 4.1, if the Tenant Improvement are not substantially completed by November 1, 2021, as a result of any delays caused by Tenant, then, the Commencement Date shall be accelerated by one (1) day for each day of any delay caused by Tenant. Delays caused by Tenant (each, a “Tenant Delay” ”) shall be defined as mean any delay actual delays in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction completion of the Tenant Improvement Work as set forth in this Article III Improvements that are caused by: (including, without limitation, any delays resulting from i) Tenant’s failure to furnish information to Landlord for the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion preparation of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless Final Plans and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing Specifications for the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease Improvements within five (5) business days thereafter)after Landlord’s written request therefor; provided(ii) Tenant’s request for any special materials, howeverfinishes or installations which are not readily available or will require a long lead time, provided that if Xxxxxxxx has informed Tenant shall fail of any delays that will result from the selection of such materials, finishes or installations and Tenant still elects to eliminate use such materials, finishes or installations; (iii) Tenant’s request for any changes or additions to the delay within Tenant Improvements shown on the aforesaid 48-hour periodapproved Space Plan, then provided that Landlord has informed Tenant of any delays that will result from such changes or additions and Tenant still elects to proceed with such changes or additions; (iv) Tenant’s failure to reasonably approve the 48-hour cure period shall be included Final Plans and Specifications in accordance with the provisions set forth in the period Work Letter Agreement attached as EXHIBIT D; (v) Tenant’s request for any changes to the Final Plans and Specifications after they have been approved by Landlord and Tenant, provided that Landlord has informed Tenant of time charged any delays that will result from such changes and Tenant still elects to Tenant pursuant proceed with such changes; (vi) Tenant’s failure to such Tenant Delay Notice (it being understood complete any of its own work, including installation in the Premises of any of Tenant’s furniture, fixtures and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure periodequipment, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent Tenant delays completion by the City of Sunnyvale of its final inspection and approval of the Tenant Improvements; or (vii) any interference with the construction and/or installation of the Tenant Improvements that is caused by Tenant or by Tenant’s contractors or subcontractors and continues for one (i1) Landlord Delay or (ii) subject to the limitations day following Tenant’s receipt of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)notice thereof from Landlord.
Appears in 2 contracts
Samples: Lease Agreement (Ceribell, Inc.), Lease Agreement (Ceribell, Inc.)
Tenant Delays. A "Each of the following shall constitute a “Tenant Delay” shall be defined (collectively, “Tenant Delays”):
(a) Tenant’s failure to deliver plans, specification, revisions, comments, requests or information as any delay provided in the designArticle 3 hereof, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant to furnish any required notice, plan, drawing, information, approval or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work consent within any respective required time period as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays Exhibit “D” or elsewhere in the completion of Lease.
(b) Delays in furnishing materials, services, supplies, labor or components required by the Base Building Work Tenant.
(c) Delays caused by Tenantthe performance of any work or activity in the Premises by Tenant or any of its employees, agents, or contractors.
(d) The inclusion of any item in Landlord’s use of non-union labor constitute a Work or the Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Improvement Work required by Tenant: (xi) that which is required for the issuance of a temporary or permanent Certificate of Occupancy for the Premises, but is not obtainable (or is not actually delivered) by the dates specified by Landlord in the Construction Schedule (as defined below) to permit Substantial Completion (as defined below) or (ii) which results in delays in obtaining a building permit or any other permit or authorization required for the performance of Landlord’s Work or the Tenant Delay is occurring Improvement Work or a temporary or permanent Certificate of Occupancy for the Premises. Landlord shall prepare and setting forth Landlord's good faith estimate as submit to Tenant, a schedule (the likely length of such Tenant Delay; (y“Construction Schedule”) of the basis on which Landlord has determined that a shall designate the dates by which various items included in the Landlord’s Work and the Tenant Improvement Work must be delivered for inclusion in the Landlord’s Work and the Tenant Improvement Work. The period of any Tenant Delay is occurring; and (zpursuant to this subparagraph 4(e) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged from the date on which any item should have been delivered to satisfy the Construction Schedule and the date on which such item is actually delivered for inclusion in the Landlord’s Work and the Tenant Improvement Work.
(e) A failure by Tenant timely to pay Landlord any amounts which Tenant is obligated to pay to Landlord pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (Dsubparagraph 8(b) below, Tenant's Force Majeure .
(as defined in said subsection (D)f) shall not constitute Any other default by Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)obligations under this Lease.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement (Faro Technologies Inc)
Tenant Delays. A "Tenant Delay” shall acknowledges that substantial time will be defined required on its part to provide complete information concerning its requirements to the architect and engineers for the Base Building Work and the Initial Tenant Work, that Tenant must make timely decisions as any and when requested hereunder, that time is of the essence to Landlord in causing the Term Commencement Date to occur as early as possible, and that Tenant will cooperate with Landlord to achieve the earliest possible Term Commencement Date. Any delay in the design, permitting commencement or performance of the Base Building Work or the Initial Tenant Work as a result of any of the following is referred to herein as a “Tenant Delay”:
(i) any failure by Tenant to timely respond within the extent above-designated time periods to requests for information necessary to complete the preparation of the Construction Documents or to carry out the Base Building Work or the Initial Tenant Work;
(ii) any failure by Tenant timely to approve within the above-designated time periods a substitute for any materials, equipment, designs, processes, or products shown on the Construction Documents that such delay is actually caused by are not readily available to Landlord’s contractor to acquire in a timely manner and incorporate into the Initial Tenant Work in the ordinary course without delay,
(iii) any act or, where there is a duty failure of Tenant to act under this Leasein a timely manner within the above-designated time periods on any construction-related question or matter,
(iv) any request by Tenant that Landlord delay the commencement of, or delay or suspend the performance of, any failure to element of the Initial Tenant Work,
(v) any other act by or omission of Tenant or Tenant's any of their officers, employers, agents, contractors, architectsor equipment vendors, engineersincluding without limitation under Paragraph C.7 above, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays that actually causes a delay in the completion commencement or performance of the Base Building Work caused by Tenant’s use and the Initial Tenant Work, or
(vi) any Change Order that actually causes a delay in the commencement or performance of non-union labor constitute a the Initial Tenant Delay hereunderWork, whether or not such requested Order is actually implemented. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length For each day of such Tenant Delay; (y) of , the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event “Substantial Completion Date” shall be deemed to be a Tenant Delay unless one day earlier than the actual date thereof, and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the Commencement Date and Tenant’s obligation to pay Annual Fixed Base Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion and additional charges shall be accelerated accordingly under Section 3.01 of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Lease.
Appears in 2 contracts
Samples: Lease Agreement (Monte Rosa Therapeutics, Inc.), Lease Agreement (Monte Rosa Therapeutics, Inc.)
Tenant Delays. A "If substantial completion of Landlord's Market Ready Improvements and/or the Tenant Delay” Improvements is delayed as a result of the acts or omissions of Tenant, then the Delivery Date shall be defined as accelerated by one day for each day of such delay resulting from such acts or omissions of Tenant. Delays to the acts or omissions of Tenant shall mean any delays caused by: (i) Tenant's failure to furnish information to Landlord for the preparation of plans and drawings for the Tenant Improvements in accordance with the time periods provided in EXHIBIT D; (ii) Tenant’s request for special materials, finishes or installations which are not readily available, which delay attributable to Tenant shall be the number of days of delay specified by Landlord at the time Tenant requests the same; (iii) Tenant’s failure to reasonably approve plans and working drawings in accordance with EXHIBIT D; (iv) Tenant’s changes in plans and/or working drawings after their approval by Landlord, which delay attributable to Tenant shall be the number of days of delay specified in the designchange order therefor approved by Tenant; (v) Tenant’s failure to complete any of its own improvement work (including installation of Tenant’s furniture, permitting or performance fixtures and equipment in the Premises if required by the City of the Base Building Work Sunnyvale to complete its final inspection) to the extent that such delay is actually Tenant delays completion by the City of Sunnyvale of its final inspection and approval of the Tenant Improvements; or (vi) interference with Landlord’s work caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding contractors or subcontractors, which interference continues beyond the foregoing, no event shall be deemed a Tenant Delay unless and until day that Landlord has given Tenant written delivers notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand thereof to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 2 contracts
Samples: Lease Agreement (Silk Road Medical Inc), Lease Agreement (Silk Road Medical Inc)
Tenant Delays. A "Tenant Delay” " shall be defined as any delay in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C3.1(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s 's use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Samples: Lease Agreement (Irobot Corp)
Tenant Delays. A "If on the Anticipated Commencement Date Landlord is unable to deliver the Premises to Tenant Delay” shall be defined as any delay in accordance with and in the designcondition required by this Work Schedule and the Lease due to omission, permitting delay or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act default by Tenant or anyone acting under or for Tenant ("Tenant delay"), then Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in obligations under this Article III Lease (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Total Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, ) shall be deemed to have occurred nonetheless commence as of the date when Anticipated Commencement Date (which shall in such Delivery Dates and/or date of substantial completion case be the Commencement Date), except that, in the event that Landlord cannot deliver possession of the Base Building WorkPremises to Tenant on the Anticipated Commencement Date because of Tenant delay, as applicablethis Lease shall be voidable at the sole option of Landlord at any time prior to Tenant's performance of such obligations or payment of the Total Rent due under this Lease; and, would have occurred but for any should Landlord so elect to void this Lease, all monies advanced by Tenant Delays, as determined to Landlord shall be retained by Landlord in as liquidated damages (the exercise parties hereto recognizing and acknowledging the difficulty of its good faith business judgment (it being understood determining such damages), and agreed that thereafter the foregoing parties hereto shall have no further rights, claims, or obligations under this Lease, except for such matters which by the express terms of the Lease survive expiration or termination thereof. EXHIBIT "F" RULES AND REGULATIONS
1. The sidewalks, and public portions of the Building, such as entrances, passages, courts, elevators, vestibules, stairways, corridors or halls shall not be construed so as obstructed or encumbered by Tenant or used for any purpose other than ingress and egress to relieve and from the Premises.
2. No awnings or other projections shall be attached to the outside walls of the Building. No curtains, blinds, shades, louvered openings or screens shall be attached to or hung in, or used in connection with, any window or door of the Premises, without the prior written consent of Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited, inscribed, painted or affixed by Tenant on any part of the outside of the Premises or Building or on corridor walls. Signs on entrance door or doors shall conform to building standard signs, samples of which are on display in Landlord's rental office. Signs on doors shall, at Tenant's expense, be inscribed, painted or affixed for each tenant by sign makers approved by Landlord. In the event of the violation of the foregoing by Tenant, Landlord of its obligation may remove same without any liability, and may charge the expense incurred by such removal to actually complete Tenant.
4. The sashes, sash doors, skylights, windows, heating, ventilating and air conditioning vents and doors that reflect or admit light and air into the Base halls, passageways or other public places in the Building Workshall not be covered or obstructed by Tenant, notwithstanding nor shall any bottles, parcels, or other articles be placed on the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)window xxxxx.
Appears in 1 contract
Tenant Delays. A In no event shall the Commencement Date of the Lease be extended or delayed due or attributable to delays due to the fault of Tenant ("Tenant Delay” Delays"). Tenant Delays shall be defined as include, but are not limited to delays caused by or resulting from any delay one or more of the following:
(a) Tenant's failure to timely review and reasonably approve the Working Drawings or to promptly cooperate with Landlord's Architect and furnish information to Landlord for the preparation of the Preliminary Plans and Working Drawings;
(b) Tenant's request for or use of special materials, finishes or installations which are not included in the designWorking Drawings, permitting provided that Landlord shall notify Tenant in writing that the particular material, finish, or performance installation is not readily available promptly upon Landlord's discovery of the Base Building Work to the extent that such delay is actually caused same;
(c) Change orders requested by any act or, where there is a duty to act under this Lease, any failure to act Tenant;
(d) Interference by Tenant or by Tenant's contractorsAgents with Landlord's construction activities;
(e) Tenant's failure to approve any other item or perform any other obligation in accordance with and by the dates specified herein or in the Construction Contract;
(f) Tenant's requested changes in the Preliminary Plans, architects, engineers, Working Drawings or anyone else engaged any other plans and specification after the approval thereof by Tenant or on behalf submission thereof by Tenant to Landlord;
(g) Tenant's failure to approve written estimates of Tenant costs in connection accordance with the construction this Work Letter; and
(h) Tenant's obtaining or failure to obtain any necessary governmental approvals or permits for Tenant's intended use of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from Premise. If the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion Commencement Date of the Base Building Work caused Lease is delayed by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined then the Commencement Date of the Lease and the payment of Rent shall be accelerated by the number of days of such delay. Landlord in the exercise shall give Tenant written notice within a reasonable time of its good faith business judgment (it being understood and agreed any circumstance that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of believes constitutes a Tenant Delays)Delay.
Appears in 1 contract
Tenant Delays. A "If the Commencement Date has not occurred on or before March 1, 2011, due to the fault of Tenant, then, beginning on March 1, 2011 and continuing on the first day of each calendar month thereafter until the Commencement Date, Tenant shall pay to landlord the Base Rent set forth in Paragraph 4(a). Delays “due to the fault” of Tenant (each, a “Tenant Delay” ”) shall be defined as include those caused by:
(i) Tenant’s failure to furnish information to Landlord for the preparation of plans and drawings for the Tenant Improvements in accordance with the time periods provided in EXHIBIT C;
(ii) Tenant’s request for special materials, finishes or installations which are not readily available provided that Landlord shall advise Tenant at the time of request whether the special materials, finishes or installations requested by Tenant are available and, if not available, what delay, if any, would result from the use of special materials, finishes or installations, and allow Tenant one (1) business day to revoke its request for such special materials, finishes or installations;
(iii) Tenant’s failure to reasonably approve plans and working drawings in accordance with EXHIBIT C;
(iv) Tenant’s changes in plans and/or working drawings after their approval by Landlord provided that Landlord shall advise Tenant at the time of Tenant’s request whether any delay in the design, permitting or performance will result from such changes and allow Tenant one (1) business days to revoke such changes;
(v) Tenant’s failure to complete any of the Base Building Work its own improvement work to the extent that such delay is actually Tenant delays completion by the City of Sunnyvale of its final inspection and approval of the Tenant Improvements described in EXHIBIT C; or
(vi) Interference with Landlord’s work caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use contractors or subcontractors provided that Landlord shall notify Tenant in writing of non-union labor constitute a such interference and if Tenant Delay hereunder. Notwithstanding the foregoingcures such interference with one (1) business day from Tenant’s receipt of Landlord’s notice, no event there shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such no Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Samples: Lease Agreement (Silicon Image Inc)
Tenant Delays. A "Any delay in the commencement or in the performance of the Initial Tenant Work that actually occurs as a result of any of the following events or requests, as the case may be, is referred to herein as a “Tenant Delay”:
(i) any failure by Tenant to timely respond to requests for information necessary to carry out the Initial Tenant Work within three (3) Business Days;
(ii) any request made by Tenant for Landlord to delay or suspend the Initial Tenant Work, or to make a change or addition to the Initial Tenant Work, whether or not actually implemented (it being agreed, however, that Landlord shall not be required to comply with any such request and may decline to comply therewith in its sole discretion, and if Landlord elects to comply with such a request, Tenant shall be responsible for all costs arising from such request, including without limitation additional design and construction costs and applicable xxxx-ups, and shall pay such costs to Landlord, within ten (10) days after invoice); or
(iii) any delay due to any interference or damage caused by Tenant or any Tenant Party (including without limitation any equipment vendors) arising from Tenant’s entry into the Premises Paragraph C.3 above. For each day of Tenant Delay, the “Substantial Completion Date” shall be defined deemed to be one day earlier than the actual date thereof, and the Term Commencement Date and Tenant’s obligation to pay Base Rent and additional charges shall be accelerated accordingly under Section 3.01 of the Lease. [see attached plans and specifications] The Initial Tenant Work shall consist of Landlord’s “spec build-out” of the Premises as any delay follows:
(i) the office lay-out in the design, permitting or performance of locations generally shown on the preliminary plans attached hereto,
(ii) all Base Building Work systems furnished to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III Premises (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) electrical conduits and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoingappurtenances, plumbing, heating, ventilating and air conditioning (HVAC systems), in no event shall any delays good working order and condition, and
(iii) finishes consistent with or superior to the finishes in the completion spec suite space for Xxxxx Capital on the eleventh (11th) floor of the Base Xxxxxxxx. Date Tenant Address Re: Commencement Letter with respect to that certain Lease dated as of , 20 , by and between 500 BOYLSTON & 222 BERKELEY OWNER (DE) LLC, a Delaware limited liability company, as Landlord, and , as Tenant, for rentable square feet on the floor of the Building Work caused located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. Lease Id: Business Unit Number: Dear : In accordance with the terms and conditions of the above referenced Lease, Tenant accepts possession of the Premises and acknowledges:
1. The Term Commencement Date of the Lease is . The Rent Commencement Date of the Lease is .
2. The Term Expiration Date of the Lease is . Please acknowledge the foregoing and your acceptance of possession by signing all 3 counterparts of this Commencement Letter in the space provided and returning two (2) fully executed counterparts to my attention. Tenant’s use failure to execute and return this letter, or to provide written objection to the statements contained in this letter, within thirty (30) days after the date of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event this letter shall be deemed a an approval by Tenant Delay unless of the statements contained herein. Sincerely, Authorized Signatory Acknowledged and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Accepted: Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).By: Name: Title: Date:
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Tenant Delays. A "Tenant Delay” If Landlord shall actually be defined as delayed in meeting any delay in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays deadline imposed upon it in the completion of Landlord’s Work and/or any Tenant’s Work to be performed by Landlord as a result of:
(1) Tenant’s failure to inform Landlord of Tenant’s desired contractor for a particular trade within five (5) business days after Landlord provides copies of the bid responses for such trade (which shall be accompanied by Landlord’s recommendation as to the most responsive bidder) and notifies Tenant that such selection is required; or
(2) Tenant’s failure to comply in a timely manner with the provisions of Paragraph 5(b), above; or
(3) Tenant’s changes in the Plans following Landlord’s and Tenant’s written approval thereof (notwithstanding Landlord’s approval of any such changes); or
(4) Tenant’s improper failure to pay timely any amounts required to be paid to Landlord pursuant to Paragraph 4(a) and/or any other provision hereof which continues for five (5) business days after written notice to Tenant; or
(5) Landlord’s inability to obtain materials, finishes or installations requested by Tenant which are not available from ordinary trade sources or which constitute “long lead” items, provided that Landlord notified Tenant thereof on or before the date on which Landlord submitted to Tenant the proposed Plans that specified the applicable material, finish or installation; or
(6) Any other unreasonable act or wrongful omission by Tenant or its agents, contractors, representations and/or employees which continues for five (5) business days after written notice to Tenant (collectively, “Tenant Delay”); Then, the deadline for completion of Landlord’s Work and/or Tenant’s Work (as applicable) by Landlord shall be appropriately extended as a result of such delay. At Tenant’s request, Landlord shall use commercially reasonable efforts to overcome the effects of any Tenant Delay. Base Building Work caused by Tenant’s use shall include the following:
1. HVAC - Perimeter baseboard electric heat for winter operations and a forced air-cooling system for summer operations. Perimeter baseboard electric heat, central high velocity fan system which utilizes a minimum of non10% to a maximum of 100% fresh air to maintain no less than 68 degrees F interior at 0 degrees F exterior, with a 15 mile per hour wind. Air-union labor constitute cooling shall maintain a Tenant Delay hereunder. Notwithstanding temperature of no more than 72 degrees F dry bulb with approximately 50% relative humidity, measured five (5’) feet from the foregoinginside of the exterior windows, no event shall be deemed a Tenant Delay unless when the outdoor conditions are 88 degrees F dry bulb and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to venetian window blinds closed on the likely length of such Tenant Delay; (yside(s) of the basis on Demised Premises, if any, facing the sun. The above heating and cooling standards are for normal office use only, which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless one (1) person for every two hundred and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight fifty (48250) hours after Tenant's receipt useable square feet and/or electricity usage of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within more than five (5) days thereafter); providedxxxxx per rentable square foot in any given or confined area, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) which shall not constitute Tenant Delayinclude areas with special HVAC requirements such as computer rooms, conference rooms, cafeterias or other rooms for high density or excessive heat producing equipment. Tenant covenants that no Tenant Delay shall delay commencement One (1) 24” x 24” diffuser to supply one (1) CFM per square foot of usable space but not fewer than one (1) such diffuser per [two hundred fifty (250)] square feet of usable interior area of the Term or the obligation to pay Annual Fixed Rent or Additional RentDemised Premises.
2. The Delivery Dates and/or the date of substantial completion of the Base Building WorkWINDOW COVERINGS - one (1) building-standard Venetian blind per exterior window.
3. FINISHED CEILING - using building standard quantities and materials.
4. CORRIDOR - Landlord, as applicableat Landlord’s sole cost and expense, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood construct a demising corridor using building standard quantities and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)materials.
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Tenant Delays. A "Tenant Delay” shall acknowledges that substantial time will be defined required on its part to provide complete information concerning its requirements to the architect and engineers for the Base Building Work and the Initial Tenant Work, that Tenant must make timely decisions as any and when requested hereunder, that time is of the essence to Landlord in causing the Term Commencement Date to occur as early as possible, and that Tenant will cooperate with Landlord to achieve the earliest possible Term Commencement Date. Any delay in the design, permitting commencement or performance of the Base Building Work or the Initial Tenant Work as a result of any of the following is referred to the extent that such delay is actually caused by any act or, where there is herein as a duty to act under this Lease, “Tenant Delay”:
(i) any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with to timely respond within the construction above-designated time periods to requests for information necessary to complete the preparation of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed Construction Documents or to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of carry out the Base Building Work caused by Tenant’s use of non-union labor constitute a or the Initial Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or Work;
(ii) subject any failure by Tenant timely to approve within the limitations of subsection above-designated time periods a substitute for any materials, equipment, designs, processes, or products shown on the Construction Documents that are not readily available to Landlord’s contractor to acquire in a timely manner and incorporate into the Initial Tenant Work in the ordinary course without delay,
(Diii) below, Tenant's Force Majeure (as defined any Initial Tenant Work Change Order that actually causes a delay in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay the commencement or performance of the Term Initial Tenant Work, whether or not such requested Initial Tenant Work Change Order is actually implemented;
(iv) any failure of Tenant to act in a timely manner within the obligation to pay Annual Fixed Rent above-designated time periods on any construction-related question or Additional Rent. The Delivery Dates and/or matter,
(v) any request by Tenant that Landlord delay the date commencement of, or delay or suspend the performance of, any element of substantial completion the Initial Tenant Work, or
(vi) any other act or omission of Tenant or any of their officers, employers, agents, contractors, or equipment vendors, including without limitation under Paragraph C.7 above, that actually causes a delay in the commencement or performance of the Base Building Work, as applicablethe Initial Tenant Work, the Add Alternate Items and any Initial Tenant Work Change Order. For each day of Tenant Delay, the “Substantial Completion Date” shall be deemed to have occurred as be one day earlier than the actual date thereof, and the Term Commencement Date and Tenant’s obligation to pay Base Rent and additional charges shall be accelerated accordingly under Section 3.01 of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Lease.
Appears in 1 contract
Tenant Delays. A "If (a) Tenant Delay” fails to furnish the Tenant Construction Documents in accordance with Section 2, or (b) Landlord is delayed in Substantially Completing the Tenant Improvement Work as a result of:
(i) Tenant’s request for materials, finishes or installations other than those which are readily available and will not cause a delay (provided that Landlord shall be defined as notify Tenant within five (5) days following Landlord’s receipt of the request for such materials which shall give the Tenant the opportunity to request readily available materials instead). Without limiting the foregoing, Tenant Delay shall include any delay due to Tenant’s efforts to obtain LEED certification for the Premises; or
(ii) Tenant’s failure to approve cost estimates in the design, permitting or performance time frames provided above; or
(iii) Tenant’s requested Change Orders to the Tenant Construction Documents (Change Orders do not include budget changes prior to approval of the Base Building Work to the extent that such delay is actually caused by any act GMP); or, where there is a duty to act under this Lease, any failure to act by Tenant or
(iv) Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection ’s interference with the construction of the Tenant Improvement Work as set forth in this Article III during Tenant Improvement Work within the Premises (includingwhether Tenant’s Work is performed by Tenant or its contractor or a subcontractor), without limitationprovided, any delays resulting from however, that Landlord has notified Tenant contemporaneously that such conduct is delaying the Approved Tenant Finishes under Section 3.l(CImprovement Work; or
(v) above) and disclosed Tenant’s failure to pay the Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion Portion of the Base Building Tenant Improvement Work caused by Tenant’s use Costs or the costs in excess of non-union labor constitute a the Tenant Delay hereunder. Notwithstanding Allowance for which Tenant is responsible within the foregoing, no event time frame specified above; then the foregoing shall be deemed a “Tenant Delay” and Tenant agrees to pay to Landlord, in addition to any sum due hereunder, a sum equal to any reasonably documented additional cost to Landlord in completing the Tenant Improvement Work resulting from any of the foregoing failures, acts or omissions of Tenant. Any such sums may be collected by Landlord as Additional Rent from time to time, within thirty (30) days of demand, and in default of payment thereof, Landlord will (in addition to all other remedies) have the same rights as in the event of default of payment of Monthly Rent. Notwithstanding anything herein to the contrary, Landlord shall notify Tenant with specificity of any alleged Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as pursuant to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representativethis Section 6, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease writing, within five (5) days thereafter); providedBusiness Days following the occurrence thereof, however, that if and in the event Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period give timely notice of time charged to a Tenant pursuant to Delay or Tenant cures such Tenant Delay Notice within three (it being understood and agreed that if Tenant 3) Business Days after notice thereof, such event shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall not be deemed to have occurred for constitute a Tenant Delay under this Section 6. Any failure of Landlord to comply with the purposes terms of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing Work Letter shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of a Tenant Delays)Delay.
Appears in 1 contract
Samples: Building Lease (Qumu Corp)
Tenant Delays. A In no event shall the Commencement Date of the Lease be extended or delayed due or attributable to delays due to the fault of Tenant ("Tenant Delay” Delays"). Tenant Delays shall be defined as include, but are not limited to, delays caused by or resulting from any delay in the design, permitting one or performance more of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any following:
a) Tenant's failure to act timely review and reasonably approve the Working Drawings or to furnish information to Landlord or Landlord's Architect for the preparation by Landlord or Landlord's Architect of the Working Drawings;
b) Tenant's request for or use of special materials, finishes or installations which are not readily available, provided that Landlord shall notify Tenant in writing that the particular material, finish, or installation is not readily available promptly upon Landlord's discovery of same;
c) Change orders requested by Tenant;
d) Interference by Tenant or by Tenant's contractorsAgents with Landlord's construction activities;
e) Tenant's failure to approve any other item or perform any other obligation in accordance with and by the dates specified herein or in the Construction Contract;
f) Tenant's requested changes in the Preliminary Space Plans, architects, engineers, Working Drawings or anyone else engaged any other plans and specifications after the approval thereof by Tenant or on behalf submission thereof by Tenant to Landlord;
g) Tenant's failure to approve written estimates of Tenant costs in connection accordance with the construction this Work Letter; and
h) Tenant's obtaining or failure to obtain any necessary governmental approvals or permits for Tenant's intended use of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from Premises. If the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion Commencement Date of the Base Building Work caused lease is delayed by any Tenant delays, whether or not within the control of Tenant’s use , then the Commencement Date of non-union labor the Lease and the payment of Rent shall be accelerated by the number of days of such delay. Landlord shall give Tenant written notice within a reasonable time of any circumstance that Landlord believes constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Samples: Lease Agreement (Virage Inc)
Tenant Delays. A "Tenant Delay” shall be defined as any delay in the design, permitting commencement or performance of Finish Work as a result of any of the following is referred to herein as a “Tenant Delay”):
(A) a failure timely to approve a substitute for any materials, equipment, designs, processes, or products shown on the Finish Work Construction Documents that are not readily available to Landlord’s contractor to acquire in a timely manner and incorporate into the Finish Work in the ordinary course without delay, provided such substitute is of substantially equal of greater quality and utility,
(B) any Finish Work Change Order causing a delay,
(C) any failure of Tenant to act in a timely manner as required hereunder on any construction-related question or matter,
(D) any request by Tenant that Landlord delay the commencement of, or suspend the performance of, any Finish Work (it being agreed that Landlord is not required to comply with such request and may decline to comply therewith in its sole discretion),
(E) any other act or omission of Tenant with respect to its obligations hereunder, or any of its officers, employers, agents, or contractors that actually results in a delay or
(F) any reasonably necessary rescheduling of the sequence of any Finish Work due to any of the causes set forth in this Subsection 10.03(b)(vi)A)-(E). For each day of Tenant Delay actually resulting in a delay of Landlord’s Substantial Completion of the Base Building Work to and/or Finish Work, the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event Delivery Date shall be deemed to be one day earlier than the actual date thereof. If any delay in Substantial Completion is the result of Force Majeure and such delay would not have occurred but for a Tenant Delay unless and until Delay, such delay shall be deemed added to Tenant has failed to rectify the situation causing the Delays. Tenant may propose a cure for such Tenant Delay within forty-eight (48) hours two full Business Days after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representativereceiving such notice and, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, if Landlord reasonably believes that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour such cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact will eliminate the Tenant Delay within the 48-hour Delay, Tenant may implement such cure period, no and such Tenant Delay shall be deemed not to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)occurred.
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Tenant Delays. A "Tenant Delay” shall be defined as responsible for, and shall pay to ------------- Landlord, any and all costs and expenses incurred by Landlord in connection with the following, or by reason of any delay in the design, permitting commencement or performance completion of the Base Building Tenant Improvements or Landlord's Work to the extent that such delay is actually caused by the following: (i) the failure of Tenant to submit the Space Plans, Final Space Plans, Working Drawings or Final Plans to Landlord by the dates or within the time periods set forth in Paragraph 4.a. above, (ii) the failure of the Space Plans, Final Space Plans, Working Drawings or Final Plans to meet the applicable requirements of Paragraph 4.a. above, (iii) any act orchanges in the Space Plans, where there is a duty Working Drawings or Final Plans, after submission thereof to act under this LeaseLandlord (including any costs or delays resulting from proposed changes that are not ultimately made), (iv) any delay by Tenant in promptly responding to inquiries regarding the construction of the Tenant Improvements or Landlord's Work or in granting Tenant's prompt approval of materials or finishes for the Tenant Improvements or Landlord's Work, (v) any failure to act by Tenant to timely pay any amounts due from Tenant hereunder (it being acknowledged that if Tenant fails to make or Tenantotherwise delays making such payments, Landlord may stop work on the Tenant Improvements and/or Landlord's contractorsWork rather than incur costs which Tenant is obligated to fund but has not yet done so and any delay from such a work stoppage will be a Tenant Delay), architects(vi) the inclusion in the Tenant Improvements of any so-called "long-lead" materials (such as fabrics, engineerspanelling, tiling, carpeting, light fixtures, supplemental HVAC equipment or anyone else engaged other items that must be imported or are of unusual character or limited availability), (viii) any interference by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work Improvements or Landlord's Work, or (viii) any other delay requested or caused by Tenant. Each of the foregoing is referred to herein and in the Lease as set forth in this Article III (including, without limitation, any delays resulting from the Approved a "Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter providedDelay". Notwithstanding the foregoing, Tenant shall not be charged with any delay by reason of clause (i) above if, in no event shall any delays event, on or prior to January 1, 2000 the Final Plans and budget have been approved by Landlord and Tenant, the bids for the Tenant Improvements have been awarded and all contracts in connection therewith executed, all required permits to commence and construct the completion Tenant Improvements have been obtained, and Landlord is otherwise in a position to commence construction of the Base Building Work caused by Tenant’s Tenant Improvements and continue the same without any interruption resulting from the matters described in such clause (i). Landlord will use its good faith efforts to notify Tenant of non-union labor constitute a any Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until as soon as reasonably practicable after Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length becomes actually aware of such Tenant Delay; (y) , together with Landlord's then good faith estimate of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate probable duration and/or cost, as applicable, of such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction RepresentativeWithout limitation, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of will use its good faith business judgment (it efforts to notify Tenant of "long lead items" as soon as reasonably practicable after actually being understood advised of the delay by the suppliers involved, or otherwise actually becoming aware of the delay, including any awareness gained from Landlord's review of the relevant plans or drawings. Landlord will suggest alternative products to alleviate the delay, if possible, and agreed that the foregoing may substitute reasonably equivalent products with Tenant's approval, which approval shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)unreasonably withheld.
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Samples: Office Lease (Bea Systems Inc)
Tenant Delays. A "As used in this Work Letter, “Tenant Delay” shall be defined as mean any actual delay in the design, permitting commencement, progress or substantial completion of any elements of the Landlord’s Work attributable to the following (i) the default of Tenant, or Tenant’s agents, employees or contractors under the Lease, including this Exhibit C, or (ii) the failure of Tenant or Tenant’s Construction Representative (as defined in Exhibit D) to make any requested written submission, or to respond to any written request to Tenant from Landlord, or to take any other required action, within the time periods for such submission, response, or action as set forth in the Lease and/or this Exhibit C; or (iii) Tenant Change Orders made by Tenant in accordance with Exhibit D; or (iv) any delays resulting from Tenant or any of Tenant’s contractors not complying with the rules and regulations for the performance of the Base Tenant Work in the Building Work to the extent that such delay of which Tenant is actually given written notice; or (v) any other delays caused by any act the acts or, where there is a duty of Tenant to act under this Leasethe Lease or Exhibit C or Exhibit D, any failure to act omissions by Tenant or Tenant's , Tenant’s contractors, architects, engineers, engineers or anyone else engaged by by, through or on behalf of under Tenant in connection with the construction preparation of the Tenant Improvement Work as set forth in this Article III (Premises for Tenant’s occupancy, including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) utility companies and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoingother entities furnishing communications, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoingdata processing or other service, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay equipment or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delayfurniture. Tenant covenants agrees that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Basic Rent or Additional Rent. The Delivery Dates and/or Rent and the Commencement Date will be the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, Commencement Date would have occurred but for Tenant Delay. Tenant shall reimburse Landlord for the amount, if any, by which the cost of Landlord’s Work is increased as the direct result of any Tenant DelaysDelay within thirty (30) days of billing therefor, as determined by and shall be considered to be Additional Rent. Landlord in the exercise of its agrees to provide Tenant with written notice advising Tenant that such Tenant Delay is occurring and setting forth Landlord’s good faith business judgment (it being understood and agreed that the foregoing shall not be construed so estimate as to relieve the likely length of such Tenant Delay within a reasonable period of time after Landlord becomes aware of its such Tenant Delay, provided, however, that Landlord will not have any obligation to actually complete deliver any Tenant Delay notice to Tenant with respect to any Tenant Delay that Landlord has previously disclosed in writing to Tenant or Tenant is otherwise aware of, such as, by way of example only, the Base Building Work, notwithstanding the fact Tenant Delay that substantial completion may have been deemed Landlord disclosed in writing to have occurred prior to actual completion as the result Tenant in connection with Landlord’s review and approval of a Tenant Delays)Change Order.
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Tenant Delays. A "Tenant Delay” shall acknowledges that that substantial time will be defined as any required on its part to provide complete information concerning its requirements to the architect and engineers for the Initial Tenant Work, that Tenant agrees to use commercially reasonable efforts to make timely decisions, and that Tenant will cooperate with Landlord to achieve the earliest possible Term Commencement Date. Any delay in the design, permitting commencement or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the substantial completion of the Base Building Work caused by Tenant’s use Initial Tenant Work, where indicated below, as a result of non-union labor constitute a Tenant Delay hereunder. Notwithstanding any of the foregoing, no event shall be deemed a Tenant Delay unless and until following of which Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, after the occurrence thereof (except that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period no notice shall be included required in the period of connection with any failure by Tenant to timely comply with any time charged periods expressly set forth in this Lease) is referred to herein as a “Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by Delay”:
(i) Landlord Delay any failure by Tenant to timely respond to requests for information necessary to complete the preparation of the Construction Documents or to carry out the Initial Tenant Work, as required in this Exhibit C;
(ii) subject any failure by Tenant timely to approve a substitute for any materials, equipment, designs, processes, or products shown on the limitations of subsection Construction Documents that are not readily available to Landlord’s contractor to acquire in a timely manner and incorporate into the Initial Tenant Work in the ordinary course without delay,
(Diii) below, Tenant's Force Majeure (as defined any Initial Tenant Work Change Order which causes a delay in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Initial Tenant Work, whether or not such requested Initial Tenant Change Order is actually implemented;
(iv) any failure of Tenant to act in a timely manner as applicablerequired hereunder (and if no time period is set forth in this Exhibit C for such matter, shall be deemed then within three (3) Business Days of request) on any construction-related question or matter, including any failure to have occurred as respond within two (2) Business Days to any requests for information by Landlord or the permitting authorities in connection with the applications for the Permits and Amended Building CO;
(v) any request by Tenant that Landlord delay the commencement of, or delay or suspend the performance of, any element of the date when Initial Tenant Work (it being agreed that Landlord is not required to comply with such Delivery Dates and/or date request and may decline to comply therewith in its sole discretion), or
(vi) any other act or omission of Tenant or any of their officers, employees, agents, contractors, or equipment vendors, including without limitation, any early entry pursuant to Paragraph C.7 above, which directly causes a delay in the substantial completion of the Base Building Initial Tenant Work, subject to Landlord’s obligation to give Tenant written notice within five (5) days after the occurrence thereof as applicable, would have occurred but for set forth above. The total number of days that the substantial completion of the Shell Condition Work and Initial Tenant Work is actually delayed beyond the Construction Period due to any Tenant DelaysDelays shall be referred to herein as the “Total Tenant Delay Days”. In the event that either Landlord or Tenant disputes in good faith the amount of the Total Landlord Delay Days or the Total Tenant Delay Days, such dispute shall be resolved by arbitration pursuant to Section 21.15 of the Lease. Landlord, at Landlord’s sole cost and expense and not as a deduction from the Allowance, shall perform the following work for the Premises, using building standard materials and construction methods:
1. Delivery of the Premises demolished, vacant and in so-called “broom clean” condition;
2. Installation of a code-compliant sprinkler loop (with heads turned up);
3. All Building Systems, including electrical service with a direct meter, submeter or check meter, shall be brought to the core electrical closet and fully operational in accordance with performance specifications suitable to support the Initial Tenant Work as set forth on Schedule C-2;
4. VAV boxes and diffusers currently in place will be in good working order, provided that Tenant may request, by written notice delivered to Landlord within five (5) days after the date of the Lease, that Landlord remove the VAV boxes at Landlord’s sole cost as part of the demolition scope;
5. Adequate connection points to the domestic water service and plumbing vent, located within the core;
6. Concrete floors finished and ready to accept commercial grade floor covering;
7. All core and shell walls and column enclosures (if currently enclosed) scraped and patched within reason;
8. New building standard perimeter window coverings will be installed following completion of the Initial Tenant Work; and
9. Remove from the Premises all actionable levels of Hazardous Materials (if any) in compliance with applicable Environmental, Health and Safety Laws. Landlord shall perform the work within the Premises in accordance with the layout as shown on the attached Fit Plan, and in accordance with the Construction Documents approved by Landlord, as determined by Landlord the same may be revised in accordance with the exercise express provisions of its good faith business judgment (it being understood and agreed that Exhibit C to the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Lease.
Appears in 1 contract
Tenant Delays. A "“Tenant Delay” shall be defined as mean any delay in the design, permitting or performance Substantial Completion of the Base Building Work to as a result of any of the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any following: (i) Tenant’s failure to act by Tenant complete or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of approve the Tenant Improvement Work Plans by the dates set forth in Section 5.B, (ii) Tenant’s failure to approve the bids for construction by the dates set forth in Section 5.C, (iii) changes to the plans requested by Tenant which delay the progress of the work, (iv) Tenant’s request for materials components, or finishes which are not available in a commercially reasonable time given the anticipated Commencement Date, (v) Tenant’s failure to make a progress payment for Tenant Improvements as provided in Section 5.F after notice from Landlord and expiration of the applicable cure period, (vi) Tenant’s request for more than one (1) rebidding of the cost of all or a portion of the work, and (vii) any errors or omissions in the Tenant Improvement Plans provided by Tenant’s architect unless caused by misinformation provided by Landlord, Landlord’s Architect or the General Contractor. Notwithstanding anything to the contrary set forth in this Article III (includingLease, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion regardless of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding actual date the foregoingPremises are Substantially Complete, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event Commencement Date shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing date the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that Commencement Date would have occurred if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have had occurred for the purposes of this Article III)as reasonable determined by Landlord. In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no if a Tenant Delay shall delay commencement results in an increase in the cost of the Term labor or materials, Tenant shall pay the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date cost of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)increases.
Appears in 1 contract
Samples: Sublease (Guidewire Software, Inc.)
Tenant Delays. A "Each of the following shall constitute a “Tenant Delay” shall be defined as under this Amendment:
(i) Failure of Tenant to have given Landlord written notice approving the Expansion Construction Documents within five (5) business days after receipt of each set of Expansion Construction Documents from Landlord.
(ii) Any changes to the Expansion Construction Documents requested by Tenant following Tenant’s approval or deemed approval of such documents, or any delay in the design, permitting or performance of the Base Building Additional Work to the extent Expansion Premises (as defined in Section 5(i)) requested by Tenant, provided that if Tenant’s request for Additional Work to the Expansion Premises is specifically conditioned upon its approval of Landlord’s estimate of such delay, Landlord shall promptly notify Tenant of Landlord’s good-faith estimate of the anticipated delay, and the Additional Work to the Expansion Premises shall not be constructed unless Tenant shall have approved such estimated delay is actually within five (5) business days after receipt of such estimates.
(iii) Delays in furnishing materials, services, supplies, labor or components that Tenant has requested be specified or required in the Expansion Construction Documents; provided, that if Landlord anticipates that any such item specified by Tenant will result in Tenant Delay, Landlord shall promptly notify Tenant of Landlord’s good-faith estimate of the anticipated delay, and the items specified by Tenant shall not be incorporated in the Expansion Construction Documents unless Tenant shall have approved such estimated delay within five (5) business days after receipt of such estimate.
(iv) Delays caused by the performance of or failure to perform any work or any activity in the Additional Expansion Premises and/or the Conference Center by Tenant or any of its employees, agents, or contractors.
(v) Delays caused by any act or, where there is a duty to act under this Lease, any failure to act by fault of Tenant or Tenant's its agents, employees or contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) its designers and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)consultants.
Appears in 1 contract
Samples: Office Lease (Quality Systems Inc)
Tenant Delays. A "Tenant Delay” shall be defined as responsible for, and shall pay to Landlord, any and all costs and expenses incurred by Landlord in connection with any delay in the designcommencement or completion of any Tenant Improvements and any increase in the cost of Tenant Improvements caused by (i) Tenant's failure to submit or resubmit plans or construction documents by the dates or within the time periods set forth in Paragraph 4.b. above or to have approved Plans completed by the Final Plan Date (as extended by any delay by Landlord in responding to plans within the periods set forth above), permitting (ii) any Changes requested by Tenant in the Tenant Improvements shown on the Plans (including any cost or performance delay resulting from proposed Changes that are not ultimately made) or Xxxxxx's disapproval of any aspect of the Base Building Work Working Drawings except to the extent that such delay is actually caused by any act oraspect does not properly reflect the Final Space Plans, where there is a duty to act under this Lease, (iii) any failure to act by Tenant to timely pay any amounts due from Tenant hereunder, including any additional costs resulting from any Change (it being acknowledged that if Tenant fails to make or Tenant's contractorsotherwise delays making such payments, architectsLandlord may stop work on the Tenant Improvements and any delay from such a work stoppage will be a Tenant Delay), engineers(iv) the inclusion in the Tenant Improvements of any so-called "long lead" materials (such as fabrics, panelings, carpeting or anyone else engaged other items that must be imported or are of unusual character or limited availability), (v) any delay by or on behalf of Tenant in connection with responding to inquiries regarding the construction of the Tenant Improvement Work as set forth Improvements or in this Article III granting Tenant's approval of materials or finishes for the Tenant Improvements, or (including, without limitation, vi) any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work other delay requested or caused by Tenant’s use . Each of non-union labor constitute the foregoing is referred to herein as a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay NoticeDelay.") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Samples: Office Lease (Ask Jeeves Inc)
Tenant Delays. A Whenever a period of time is herein prescribed for the taking of any action by Sublessor, during the period commencing on the execution date of this Sublease and ending on the Term Commencement Date, Sublessor shall not be responsible for or liable, and there shall be excluded from the computation of such period of time any of the following delays (a "Tenant Delay” shall be defined as "):
a. Sublessee's failure to furnish information or deliver plans in accordance with this Sublease including Section 3.1 hereof or the Work Letter Agreement or to respond to any delay in the designrequest by Sublessor for any approval or information within any time period prescribed, permitting or performance if on time period is prescribed, then within five (5) business days of the Base Building Work to the extent such request; or
b. Sublessee's insistence on materials, finishes or installations that have long lead times after having first been informed by Sublessor that such delay is actually caused materials, finishes or installations will cause a delay; or
c. Changes in any plans and specifications requested by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any Sublessee that delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays Sublessor in the completion of the Sublease Improvements or Base Building Work caused Work; or
d. The performance or nonperformance by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered person or entity employed by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included Sublessee in the period completion of time charged to Tenant pursuant to any work in the Sublease Premises (all such Tenant Delay Notice (it work and such persons or entities being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations prior approval of subsection (D) below, Tenant's Force Majeure (as defined Sublessor); or
e. Any request by Sublessee for changes to the Sublease Improvements that actually delay Sublessor in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement the completion of any of the Term Sublease Improvements or Base Building Work; or
f. Any breach or default by Sublessee in the obligation performance of Sublessee's obligations under this Sublease that delays Sublessor in the completion of any of the Sublease Improvements or Base Building Work; or
g. Any delay resulting from Sublessee's access to pay Annual Fixed Rent the Sublease Premises or Additional Rent. The Delivery Dates and/or having taken possession of the date of Sublease Premises for any reason prior to substantial completion of the Sublease Improvements or Base Building Work. For purposes of determining the Term Commencement Date, as applicable, the date of Substantial Completion shall be deemed to have occurred as determined in according with Section 3.2. All of the date when such Delivery Dates and/or date foregoing a through g being a "Tenant Delay" for purpose of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)this Sublease.
Appears in 1 contract
Tenant Delays. A "For purposes of this Work Letter, “Tenant DelayDelays” shall be defined as mean any delay in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Tenant Improvements resulting from any or all of the following: (a) Tenant’s failure to timely perform any of its obligations pursuant to this Work Letter, including any failure to complete, on or before the due date therefor, any action item which is Tenant’s responsibility pursuant to the Work Schedule or any schedule delivered by Landlord to Tenant pursuant to this Work Letter to the extent such failure is not caused by any Force Majeure delays encountered by Tenant with respect thereto; (b) Tenant’s use changes to the Tenant Improvements; (c) Tenant’s request for materials, finishes, or installations which are not readily available or which are incompatible with the Standards; (d) any delay of nonTenant in making payment to Landlord for Tenant’s share of any costs in excess 4841-union labor constitute a 8439-3092.v2 of the cost of the initially-described Tenant Improvements; or (e) any other act or failure to act by Tenant, Tenant’s employees, agents, architects, independent contractors, consultants and/or any other person performing or required to perform services on behalf of Tenant. In the event of any Tenant Delay hereunder. Notwithstanding claimed by Landlord, Landlord shall, within seven (7) business days following Landlord first obtaining actual knowledge that the foregoingoccurrence of an event is reasonably likely to cause the claimed Tenant Delay, no event shall be deemed a notify in writing Tenant Delay unless of the claimed Tenant Delay, the impact on the Landlord’s performance of its obligations under this Work Letter, to the extent then known, and until Landlord has given Tenant written notice to what it is attributable (the "Tenant “Delay Notice") advising ”). If a Delay Notice is not given within such 7-business day period to Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to , the likely length extent of such Tenant Delay; (y) Delay shall be reduced by the period of the basis on which Landlord has determined that a time of such Tenant Delay is occurring; and (z) as to which Tenant can reasonably establish could have been avoided had a Delay Notice thereof been given to Tenant by Landlord within such 7-business day period. Landlord shall use commercially reasonable efforts to mitigate the actions which Landlord believes that Tenant must take to eliminate such effects of any claimed Tenant Delay. No event , and shall be deemed to be a Tenant Delay unless provide reasonable information and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow alternatives to Tenant at the notice address set forth to assist in Section 1.2 of this Lease within five (5) days thereafter)such mitigation efforts; provided, however, that if Landlord shall not be required to incur any material cost or incur any material liability in seeking to mitigate any Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Delay. No Tenant Delay shall be deemed to have occurred for with respect to any contended delay by Landlord if Tenant cures the purposes of this Article III). In addition, any delay to event which would otherwise constitute such Tenant Delay within one (1) business day after receipt the extent caused by (i) applicable Delay Notice from Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute specifying such contended Tenant Delay. Tenant covenants that no The existence of a Tenant Delay shall delay commencement be used only for the determination of any acceleration of the Term or the obligation Commencement Date, and except as otherwise expressly provided in this Work Letter, Tenant shall not incur any other liability to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion Landlord by virtue of the Base Building Work, as applicable, shall be deemed to have occurred as mere existence of the date when any such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).Delay
Appears in 1 contract
Tenant Delays. A "Except to the extent resulting from a Landlord Delay (as defined below) “Tenant Delay” shall be defined as any actual delay in the design, permitting or performance completion of the Base Building Tenant Improvements or Landlord’s Work caused by the following: (i) the failure of Tenant to submit to Landlord the Space Plans by the Space Plan Deadline, the Working Drawings by the Final Plan Deadline, or revisions to the Space Plans or the Working Drawings by the dates or within the time periods set forth above, (ii) any changes in the Space Plan or Working Drawings after submission thereof to Landlord (except changes to respond to Landlord’s comments) and any Changes to the Final Plans (whether or not such change or Change is a result of Tenant’s disapproval of the budget and including any cost or delay resulting from proposed changes or Changes that are not ultimately made, but excluding Changes which result from unknown field conditions which could not reasonably have been anticipated by Tenant’s Architect), (iii) any failure by Tenant to timely pay any amounts due from Tenant hereunder (it being acknowledged that if Tenant fails to make or otherwise delays making such payments, Landlord may stop work on the Tenant Improvements rather than incur costs which Tenant is obligated to fund but has not yet done so and any delay from such a work stoppage will be a Tenant Delay), (iv) any failure of Tenant to submit any item or to approve or disapprove any matter within the time frame or by the deadline provided in the Work Letter, (v) any material changes to the Space Plans after submittal thereof which delay the completion of plans by the Design-Build Subcontractors, (vi) delay by Tenant in promptly responding to inquiries regarding the construction of the Tenant Improvements or Landlord’s Work or in granting Tenant’s prompt approval or disapproval of materials or finishes for the Tenant Improvements or Landlord’s Work, (vii) the inclusion in the Tenant Improvements of any so-called “long-lead” materials (such as fabrics, panelling, tiling or carpeting, or other items that must be imported, must be specially fabricated, or are of unusual character or limited availability) to the extent that there exists a reasonable substitute for such delay is actually caused material which would not be considered a long-lead material or would have a shorter lead time , as reasonably determined by Landlord’s Contractor, (viii) any act or, where there is a duty to act under this Lease, any failure to act interference by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection ’s vendors with the construction of the Tenant Improvement Improvements or Landlord’s Work as set forth resulting in a delay beyond the reasonable integration schedule developed under Section 13 of this Article III Work Letter, (includingix) any delay in the issuance of permits due to the submittal of drawings (other than drawings prepared by Design-Build Subcontractors) which do not comply with applicable codes, without limitationto the extent the code requirement could have reasonably been anticipated by Tenant’s Architect, any delays resulting (x) Tenant’s failure to provide, by the dates specified herein, the information required for the Design-Build Subcontractors to commence and complete their designs, (xi) the failure Tenant’s Architect failure to cooperate with the Design-Build Subcontractors or to respond to inquiries from the Approved Tenant Finishes under Section 3.l(CDesign-Build Subcontractors as and within the periods required herein, or (xii) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work other delay requested or caused by Tenant, Tenant’s use Representative or Tenant’s Architect. Each of nonthe foregoing is referred to herein and in the Lease as a “Tenant Delay”. Landlord’s Contractor will give Tenant notice of “long-union labor constitute a lead items” as soon as reasonably practicable after being advised of the delay by the suppliers involved, or otherwise becoming aware of the delay. Landlord’s Contractor will suggest alternative products to alleviate the delay, if feasible. The inclusion of “long lead” items in the Tenant Delay hereunder. Notwithstanding the foregoing, no event Improvements shall be deemed a Tenant Delay unless and until Landlord has given only if (A) Tenant fails to designate a reasonable substitute for such item within two (2) days after receipt of written notice from Landlord’s Contractor that such item is a “long lead” item, or (B) Landlord and Tenant do not agree that the "Tenant Delay Notice") advising Tenant: Improvements will be Substantially Complete notwithstanding the non-completion of long-lead items and related work (x) Landlord’s Contractor and Tenant agree that in such instances, if reasonably appropriate, a short term alternative product will be installed prior to Substantial Completion and will be replaced with the long lead item at a later date). In determining whether reasonable substitutes exist for long-lead items, Landlord’s Contractor shall consider the function of the material and shall not be required to consider the unique aspects of the material or the particular aesthetic of the material (i.e. a more common material can be a reasonable substitute for an item of limited availability). Notwithstanding the foregoing, matters otherwise designated hereunder as Tenant Delay is occurring and setting forth Delays which first occur following Landlord's good faith estimate as ’s Contractor’s establishment of the Estimated Completion Date shall be Tenant Delays only to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt extent Substantial Completion of the Tenant Delay Notice (which for Improvements is delayed beyond the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (Estimated Completion Date as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the a result of Tenant Delays)thereof.
Appears in 1 contract
Tenant Delays. A "If Landlord is unable to deliver the Premises to Tenant Delay” shall be defined as any delay in accordance with and in the designcondition required by this Work Schedule and this Lease due to Tenant Delay (as defined below), permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act then Tenant's obligations under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III Lease (including, including without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(Cobligation to pay Base Rent and additional rent) above) and disclosed to Tenant shall nonetheless commence as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter)Commencement Date; provided, however, that if in the event Landlord cannot deliver possession of the Premises to Tenant shall fail to eliminate on the delay within the aforesaid 48-hour periodCommencement Date because of Tenant Delay, then the 48-hour cure period this Lease shall be included in voidable at the period sole option of Landlord at any time charged prior to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement performance of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion such obligations and payment of the Base Building WorkRent and additional rent due under this Lease; and, as applicableshould Landlord so elect to void this Lease, all monies advanced by Tenant to Landlord shall be deemed retained by Landlord as liquidated damages (the parties hereto recognizing and acknowledging the difficulty of determining such damages), and thereafter the parties hereto shall have no further rights, claims, or obligations under this Lease, except for matters which by the express terms of this Lease survive expiration or termination thereof. For purposes hereof, "Tenant Delay" shall include, without limitation, the following: (a) failure by Tenant to have occurred furnish Landlord Tenant's Plans and any and all information necessary for Landlord to approve same; or (b) failure by Tenant to approve cost estimates and/or make the payments as described herein within the times specified; or (c) Tenant's ordering or requesting materials, finishes or installations which are unavailable in Suwanee, Georgia; or (d) Extra Work requested by Tenant or changes in the Drawings and/or specifications thereof or work or improvements required thereby made by Tenant (notwithstanding Landlord's approval of such changes); or (e) Tenant's failure to perform or cause to be performed timely any work to be performed by Tenant or any person, firm or corporation employed by Tenant; or (f) interference with or delay of the date when such Delivery Dates and/or date work of substantial Landlord's contractor by Tenant, whether directly, or indirectly through any person, firm or corporation employed by Tenant; or (g) any delay in Landlord's completion of the Base Building Work, as applicable, would have occurred but for Landlord's Work caused by any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result fault or negligence of Tenant Delays)or its agents.
Appears in 1 contract
Samples: Commencement Date Agreement (Brainy Brands Company, Inc.)
Tenant Delays. A If there shall be a delay or there are delays in the Substantial Completion of the Premises (as a direct, indirect, partial, or total result of any of the following (collectively, "Tenant Delay” shall be defined as Delays"):
(i) Tenant's failure to timely approve any delay matter requiring Tenant's approval, including the Preliminary GMAX by the GMAX Approval Date and/or Tenant's failure to timely perform any other obligation or act required of Tenant hereunder;
(ii) a breach by Tenant of the terms of this Tenant Work Letter or the Lease, which is not cured within the applicable notice and cure period;
(iii) Tenant's request for changes in the designConstruction Drawings (provided that if Tenant requests such a change, permitting Landlord shall use good faith efforts to promptly advise Tenant if it knows such change will result in a Tenant Delay);
(iv) Tenant's requirement for materials, components, finishes or performance improvements which are not available in a reasonable time (based upon the anticipated date of the Base Building Work Lease Commencement Date) or which are different from, or not included in, the Specifications (provided that if Tenant requests such materials, finishes or improvements, Landlord shall use good faith efforts to promptly advise Tenant if it knows such items will result in a Tenant Delay);
(v) changes to the extent Base, Shell and Core required by the Approved Working Drawings (provided that if Tenant requests such delay is actually caused a change, Landlord shall use good faith efforts to promptly advise Tenant if it knows such change will result in a Tenant Delay);
(vi) any changes in the Construction Drawings and/or the Tenant Improvements required by any act or, where there is a duty Requirements if such changes are directly attributable to act under this Lease, any failure to act by Tenant Tenant's use of the Premises or Tenant's contractorsspecialized tenant improvement(s) (as determined by Landlord) (provided that if Tenant requests such a change, architects, engineersLandlord shall use good faith efforts to promptly advise Tenant if it knows such change will result in a Tenant Delay); or
(vii) any other acts or omissions of Tenant, or anyone else engaged by its agents, or on behalf employees, if not cured within three (3) business days after receipt of Tenant written notice of same; then, notwithstanding anything to the contrary set forth in connection with the construction Lease and regardless of the Tenant Improvement Work actual date of the Substantial Completion of the Premises, the Lease Commencement Date (as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion 7.2 of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice"Summary) advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing date the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that Commencement Date would have occurred if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Workset forth above, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)had occurred.
Appears in 1 contract
Samples: Lease (Janux Therapeutics, Inc.)
Tenant Delays. A "If the Effective Date is delayed as a result of (i) the failure of Tenant to submit Space Plans, Working Drawings or Final Plans to Landlord by the dates or within the time periods set forth in Paragraph 3.b. above, (ii) any Changes requested by Tenant in the Tenant Improvements shown on the Final Plans (including any cost or delay resulting from proposed changes that are not ultimately made), (iii) any failure by Tenant to timely pay any amounts due from Tenant hereunder, including any additional costs resulting from any Change (it being acknowledged that if Tenant fails to make or otherwise delays making such payments, Landlord may stop work on the Tenant Improvements rather than incur costs which Tenant is obligated to fund but has not yet done so and any delay from such a work stoppage will be a Tenant Delay” shall ), (iv) the inclusion in the Tenant Improvements of any so-called "long lead" materials (such as fabrics, panellings, tiling, carpeting, light fixtures, HVAC equipment or other items that must be defined as imported or are of unusual character or limited availability), (v) any delay in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with responding to inquiries regarding the construction of the Tenant Improvement Work Improvements or in granting Tenant's approval of materials or finishes for the Tenant Improvements, or (vi) any other delay requested or caused by Tenant, then the date of commencement of Tenant's obligation to pay rent for the Substitute Premises, as set forth in this Article III (includingParagraphs 5 and 6 below, without limitation, any delays resulting from shall be accelerated by the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter providednumber of days of such delay. Notwithstanding the foregoing, in In no event shall Landlord be liable to Tenant for any delays delay in the completion of the Base Building Work Tenant Improvements shown on the Final Plans caused or occasioned by Tenant’s use strikes, lockouts, labor disputes, shortages of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoingmaterial or labor, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length fire or other casualty, acts of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, God or any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)other cause.
Appears in 1 contract
Tenant Delays. A In no event shall the Commencement Date of the Lease be extended or delayed due or attributable to delays due to the fault of Tenant ("Tenant Delay” Delays"). Tenant Delays shall be defined as include, but are not limited to, delays caused by or resulting from any delay in the design, permitting one or performance more of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any following:
(a) Tenant's failure to act timely review and reasonably approve the Preliminary Space Plan, Pricing Plan or Working Drawings or to promptly cooperate with Landlord's Architect and furnish information to Landlord for the preparation of the Preliminary Plan, Pricing Plan and Working Drawings;
(b) Tenant's request for or use of special materials, finishes or installations which are not readily available, provided that Landlord shall notify Tenant in writing that the particular material, finish, or installation is not readily available promptly upon Landlord's discovery of same;
(c) Change orders requested by Tenant;
(d) Interference by Tenant or by Tenant's contractorsAgents with Landlord's construction activities;
(e) Tenant's failure to approve any other item or perform any other obligation in accordance with and by the dates specified herein or in the Construction Contract;
(f) Tenant's requested changes in the Preliminary Space Plan, architectsPricing Plan, engineers, Working Drawings or anyone else engaged any other plans and specifications after the approval thereof by Tenant or on behalf submission thereof by Tenant to Landlord;
(g) Tenant's failure to approve written estimates of Tenant costs in connection accordance with the construction this Work Letter; and
(h) Tenant's obtaining or failure to obtain any necessary governmental approvals or permits for Tenant's intended use of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from Premises. If the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion Commencement Date of the Base Building Work caused Lease is delayed by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined whether or not within the control of Tenant, then the Commencement Date of the Lease and the payment of Rent shall be accelerated by the number of days of such delay. Landlord in the exercise shall give Tenant written notice within a reasonable time of its good faith business judgment (it being understood and agreed any circumstance that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of believes constitutes a Tenant Delays)Delay.
Appears in 1 contract
Samples: Office Lease (Noosh Inc)
Tenant Delays. A If the Anticipated Commencement Date occurs, but Landlord is unable to deliver the Premises to Tenant in accordance with and in the condition required by this Work Letter and the Lease due to any act, emission, delay or default by Tenant, including any delays by Tenant in the submission of plans, drawings, specifications or other information or in approving any drawings or estimates or in giving any authorization or .approval ("Tenant Delay” shall be defined as any delay in the design"), permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event then Landlord shall be deemed a to have substantially completed the Premises on the date the Premises would have been substantially completed but for such Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay NoticeCompletion Date") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representativeobligation under this Lease, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); providedincluding without limitation, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or shall nonetheless commence on the date of substantial completion which is thirty (30) days after the Tenant Delay Completion Date (which shall in such case be the Commencement Date). EXHIBIT E ACKNOWLEDGMENT, ACCEPTANCE AND AMENDMENT Tenant hereby acknowledges that the Premises demised pursuant to the Lease to which this Exhibit G is attached (the "Lease"), and all tenant finish items to be completed by the Landlord, or Landlord's Contractors have been satisfactorily completed in every respect, except for the punchlist items set forth below, and Tenant hereby accepts said Premises as substantially complete and ready for the uses intended as set forth in the Lease. Landlord shall complete the punchlist items, if any, as soon as is reasonably possible. Possession of the Base Building WorkPremises is hereby delivered to Tonan4 and any damages to walls, as applicableceilings, floors or existing work, except for any damages caused by Landlord or Landlord's contractors in completing any punchlist items, shall be deemed to have occurred the sole responsibility of Tenant. Tenant and Landlord hereby further acknowledge and agree as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).follows:
Appears in 1 contract
Tenant Delays. A In no event shall the Commencement Date of the Lease be extended or delayed due or attributable to delays due to the fault of Tenant ("Tenant Delay” Delays"). Tenant Delays shall be defined as include, but are not limited to, delays caused by or resulting from any delay in the design, permitting one or performance more of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any following
(a) Tenant's failure to act timely review and reasonably approve the Working Drawings or to promptly cooperate with Landlord's Architect and furnish information to Landlord for the preparation of the Preliminary Plans and Working Drawings
(b) Tenant's request for or use of special materials, finishes or installations which are not readily available, provided that Landlord shall notify Tenant in writing that the particular material, finish, or installation is not readily available promptly upon Landlord's discovery of same;
(c) Change orders requested by Tenant;
(d) Interference by Tenant or by Tenant's contractorsAgents with Landlord's construction activities;
(e) Tenant's failure to approve any other item or perform any other obligation in accordance with and by the dates specified herein or in the Construction Contract;
(f) Tenant's requested changes in the Preliminary Plans, architects, engineers, Working Drawings or anyone else engaged any other plans and specifications after the approval thereof by Tenant or on behalf submission thereof by Tenant to Landlord;
(g) Tenant's failure to approve written estimates of Tenant costs in connection accordance with the construction this Work Letter; or
(h) Tenant's obtaining or failure to obtain any necessary governmental approvals or permits for Tenant's intended use of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from Premises. If the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant Commencement Date at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused is delayed by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined whether or not within the control of Tenant, then the Commencement Data of the Lease and the payment of Rent shall be accelerated by the number of days of such delay. Landlord in the exercise shall give Tenant written notice within a reasonable time of its good faith business judgment (it being understood and agreed any circumstance that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of believes constitutes a Tenant Delays)Delay.
Appears in 1 contract
Samples: Lease Agreement (Omnicell Com /Ca/)
Tenant Delays. A For purposes of this Agreement and the Lease, the following events shall constitute delays caused by Tenant (a "Tenant Delay” shall be defined as "):
A. Xxxxxx'x xequest for Change Orders whether or not any delay in the design, permitting or performance of the Base Building Work to the extent that such delay is Change Orders are actually caused by any act performed; or, where there is a duty to act under this Lease, any failure to act by Tenant or
B. Tenant's contractorsrequirements for materials, architectscomponents, engineers, finishes or anyone else engaged by or on behalf improvements which are not available in a commercially reasonable time given the anticipated date of Tenant in connection with the construction Substantial Completion of the Tenant Improvement Work as Improvements; or
C. Xxxxxx'x xelay in reviewing, revising or approving plans and specifications beyond the periods set forth in this Article III (includingAgreement; or
D. Xxxxxx'x xelay in providing information critical to the normal progression of the Tenant Improvements. Tenant shall provide such information as soon as reasonably possible, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, but in no event shall any delays longer than the time period specified herein, or if no time period is specified, three (3) business days after receipt of such request for information from the Landlord; or
E. Xxxxxx'x xelay in the completion making Over-Allowance or Change Order payments to Landlord; or
F. Xxxxxx'x xnterference with construction activities during Tenaxx'x xarly occupancy of the Base Building Work caused by Tenant’s use Premises. If any of non-union labor constitute a the foregoing Tenant Delay hereunder. Notwithstanding the foregoingDelays occur, no event then Landlord shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth cause Landlord's good faith estimate as Architect to certify the likely length of such Tenant Delay; (y) of the basis date on which Landlord has determined that a the Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate Improvements would have been Substantially Completed but for such Tenant Delay. No event shall be deemed A Tenant Delay, in and of itself, is not to be construed as default under this Agreement or a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt breach of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter)Lease; provided, however, that if Tenant shall fail to eliminate the Tenant's delay in making a payment within the aforesaid 48-hour periodtime period specified in paragraph 4 of this Agreement will constitute a breach of the Lease which, then after notice by Landlord with Tenaxx'x xights to cure under Article 16 of the 48-hour cure period Lease, shall be included entitle Landlord to exercise all remedies set forth in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Lease.
Appears in 1 contract
Tenant Delays. A Whenever a period of time is herein prescribed for the taking of any action by Sublessor during the period commencing on the execution date of this Sublease and ending on the Term Commencement Date, Sublessor shall not be responsible for or liable, and there shall be excluded from the computation of such period of time any of the following delays (a "Tenant Delay” shall be defined as "):
a. Sublessee's failure to furnish information or deliver plans in accordance with this Sublease including Section 3.1 hereof or the Work Letter Agreement or to respond to any delay in the designrequest by Sublessor for any approval or information within any time period prescribed, permitting or performance if no time period is prescribed, then within five (5) business days of the Base Building Work to the extent such written request; or
b. Sublessee's insistence on materials, finishes or installations that have long lead times after having first been informed by Sublessor that such materials, finishes or installations will cause a delay; or
c. Changes in any plans and specifications requested by Sublessee that delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays Sublessor in the completion of the Sublease Improvements or Base Building Work caused Work; or
d. The performance or nonperformance by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered person or entity employed by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included Sublessee in the period completion of time charged to Tenant pursuant to any work in the Sublease Premises (all such Tenant Delay Notice (it work and such persons or entities being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations prior approval of subsection (D) below, Tenant's Force Majeure (as defined Sublessor); or
e. Any request by Sublessee for changes to the Sublease Improvements that actually delay Sublessor in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement the completion of any of the Term Sublease Improvements or Base Building Work; or
f. Any breach or default by Sublessee in the obligation performance of Sublessee's obligations under this Sublease that delays Sublessor in the completion of any of the Sublease Improvements or Base Building Work; or
g. Any delay resulting from Sublessee's access to pay Annual Fixed Rent the Sublease Premises or Additional Rent. The Delivery Dates and/or having taken possession of the date of Sublease Premises for any reason prior to substantial completion of the Sublease Improvements or Base Building Work. For purposes of determining the Term Commencement Date, as applicable, the date of Substantial Completion shall be deemed to have occurred as determined in accordance with Section 3.2. All of the date when such Delivery Dates and/or date forgoing a. through g. being a "Tenant Delay" for purposes of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)this Sublease.
Appears in 1 contract
Tenant Delays. A "(a) If the completion of Landlord’s Work in the Premises is delayed (after netting out any Landlord Delay and any delay caused by Force Majeure, as both terms are defined below) (i) at the request of Tenant, (ii) by Tenant’s failure to comply with the foregoing provisions, including failure to provide the Space Plans or the Detailed Plans and Specifications or other information or give approvals within the time periods specified herein and failure to pay any sums payable by Tenant within the time periods specified herein, (iii) by changes, additions or deletions in the work requested or ordered by Tenant, (iv) because Tenant chooses to have additional work performed by Landlord, or (v) because of any other act or omission of Tenant (any of the foregoing being referred to herein as a “Tenant Delay” ”), then Tenant shall be defined as responsible for all costs and any delay in the design, permitting or performance of the Base Building Work to the extent that expenses occasioned by such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any costs and expenses attributable to increases in labor or materials, and Base Rent with respect to the Premises shall accrue and be chargeable to Tenant based on the date that the Rent Commencement Date would have occurred but for delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant Delays, as hereinafter provided. Notwithstanding the foregoing, determined solely by Landlord in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to based on its sole business judgment.
(b) In performing its obligations under this Improvement Agreement, Landlord shall act with reasonable diligence and in a timely manner. Whenever the likely length submittals from Tenant require an approval, consent, designation or determination of such Tenant Delay; (y) of Landlord in accordance with the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 terms of this Lease Improvement Agreement (individually and collectively, a “Landlord Review”), Landlord shall provide the Landlord Review within five (5) business days thereafterafter Landlord’s receipt of a written request from Tenant for the same (except for the Landlord Review of the Detailed Plans and Specifications, as to which Landlord shall have ten (10) business days to review the same); provided, however, that if Tenant shall fail Tenant’s written request must be specific as to eliminate what Landlord is being asked to do and must be accompanied by sufficient information, in Landlord’s reasonable determination, for Landlord to provide the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III)Landlord Review. In additionthe event that Landlord has not been provided with sufficient information, any delay Landlord shall notify Tenant of such deficiency within said five (5) (or ten (10) as the case may be) business day period and shall have another five (5) business days to provide the extent caused by Landlord Review after Landlord’s receipt of the required information from Tenant. If the completion of Landlord’s Work is delayed (i) Landlord Delay at the request of Landlord, or (ii) subject by Landlord’s failure to provide the Landlord Review or give approvals within the time periods specified herein (a “Landlord Delay”), then such period shall be netted from or otherwise subtracted from any period of Tenant Delays (to the limitations extent applicable), and the Commencement Date shall be delayed as provided in the Lease but Landlord shall have no further liability to Tenant as a consequence thereof. Events of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)hereinafter defined) shall not constitute Tenant Delay. Tenant covenants be included as a delay that no is a Tenant Delay or a Landlord Delay.
(c) Landlord shall delay commencement have the right to cease all Landlord’s Work in the event the number of days attributable to Tenant Delays exceeds the aggregate of twenty (20) days, unless Tenant gives unconditional approval to all Approved Tenant Improvements in a manner requested by Landlord to allow Landlord to proceed with the immediate construction of the Term or the obligation to pay Annual Fixed Rent or Additional RentApproved Tenant Improvements. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result failure of Tenant Delays)to provide such unconditional approval within three (3) business days after written demand therefor from Landlord shall constitute a non-curable Event of Default under the Lease.
Appears in 1 contract
Tenant Delays. A "Tenant Delay” shall be defined as responsible for, and shall pay to Landlord, any and all costs and expenses (including lost rent) incurred by Landlord in connection with the following, or by reason of any delay in the design, permitting commencement or performance completion of the Base Building Work to the extent that such delay is actually Tenant Improvements caused by the following: (i) the failure of Tenant to approve any act orAdditional Plans or to submit to Landlord any information required in connection therewith by the dates or within the time periods set forth in Paragraph 4.a. above; (ii) any delay by Tenant in promptly responding to inquiries from Landlord or its authorized agents or employees regarding the construction of the Tenant Improvements or in granting Tenant’s prompt approval of Additional Plans or materials or finishes for the Tenant Improvements, where there is a duty to act under this Lease, (iii) any Changes requested by Tenant (including any costs or delays resulting from proposed Changes that are not ultimately made); (iv) any failure to act by Tenant to timely pay any amounts due from Tenant hereunder (it being acknowledged that if Tenant fails to make or Tenant's contractorsotherwise delays making such payments, architectsLandlord may stop work on the Tenant Improvements rather than incur costs which Tenant is obligated to fund but has not yet done so and any delay from such a work stoppage will be a Tenant Delay); (v) the inclusion in the Tenant Improvements of any so-called “long-lead” materials (such as fabrics, engineerspaneling, tiling, carpeting, light fixtures, HVAC equipment or anyone else engaged other items that must be imported or are of unusual character or limited availability); (vi) any interference by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III Improvements; or (including, without limitation, vii) any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work other delay requested or caused by Tenant’s use . Each of non-union labor constitute the foregoing is referred to herein and in the Lease as a “Tenant Delay.” Landlord shall endeavor in good faith to notify Tenant of any Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until as soon as practicable after Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) actual knowledge of the basis on which Landlord has determined that a Tenant Delay is occurring; Delay, and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt estimated impact of the Tenant Delay Notice (which for upon the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay commencement or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of Tenant Improvements or the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)cost thereof.
Appears in 1 contract
Samples: Office Lease (Artisoft Inc)
Tenant Delays. A "When Xxxxxxxx's architect has furnished Landlord with a certificate that the work to be done by Xxxxxxxx has been substantially completed (subject only to reasonable punch list items), the Premises will be deemed ready for occupancy and possession thereof deemed delivered to Tenant Delay” shall be defined as any delay in the design, permitting or performance for all purposes of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from regarding commencement of Rent and other obligations. Landlord shall prepare, certify by Xxxxxxxx's architect's signature and deliver in duplicate to Tenant, a written statement certifying that (a) the Approved Tenant Finishes under Section 3.l(CPremises are substantially complete in accordance with this Work Letter, and (b) above) and disclosed the date of such completion. Tenant's obligation to Tenant pay Rent shall not commence until the Premises are Substantially Complete (as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays defined in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafterLease); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period Landlord shall be included delayed in substantially completing any of the work for which it is responsible hereunder as a result of:
4.1 Tenant's failure to timely approve any matters requiring such approval and any delay resulting from the need to revise any drawings; or
4.2 Tenant's changes in the period Approved Working Drawings or any Tenant changes in the Final Working Drawings; or
4.3 Any delay of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall any other kind or nature in fact eliminate the completion of the Tenant Delay within Improvements caused by Tenant (or its agents or employees) or resulting from the 48-hour cure periodperformance of Tenant's Work (hereinafter defined), no if any; (all of the foregoing being hereinafter collectively referred to as "Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In additionDelays") then, any delay notwithstanding anything to the extent caused by (i) Landlord Delay contrary set forth herein or (ii) subject to in the limitations of subsection (D) belowLease, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the and Xxxxxx's obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to accelerated by the number of days of such Xxxxxx Xxxxxx, and Tenant shall reimburse Landlord for any and all reasonable additional actual costs and expenses incurred by Landlord as a result of such Tenant Delays. Landlord shall diligently complete any items of work not completed when the Premises are Substantially Complete. Substantial Completion shall have occurred as notwithstanding Xxxxxx's submission of a punchlist to Landlord, which Tenant must submit, if at all, within thirty (30) days after the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Commencement Date.
Appears in 1 contract
Samples: Office Lease (Puma Technology Inc)
Tenant Delays. A "For purposes of this Lease, including this Work Letter, delays in Landlord’s Work directly or indirectly caused by any of the following circumstances shall constitute “Tenant Delay” shall Delays”:
5.1. Any direction by Tenant that Landlord suspend work or otherwise hold up construction of any portion of Landlord’s Work because of a possible change to be defined as initiated by Tenant or for any delay other reason directed by Tenant, or delays which result directly or indirectly from Tenant’s requested changes in the design, permitting approved TI Plans or performance Landlord’s Work;
5.2. Tenant’s failure to timely approve any matter requiring Tenant’s approval;
5.3. A breach by Tenant of the Base Building terms of this Work Letter or this Lease beyond any applicable notice and cure period but only to the extent that such breach results in an actual delay is actually caused by in Substantial Completion;
5.4. The failure of Tenant to pay when due any act oramount payable pursuant to this Lease or this Work Letter;
5.5. Tenant’s requirement for materials, where there is components, finishes or improvements which are not available in a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineerscommercially reasonable time given the anticipated date of Substantial Completion of Landlord’s Work, or anyone else engaged by which are different from, or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (includingnot included in, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by TenantLandlord’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter)standard tenant improvement specifications; provided, however, that if Tenant this Section 5.5 shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay not apply to the extent caused by (i) Landlord Delay or (ii) subject Tenant agrees to substitute for such item another item that is available and can be installed within the required time frames;
5.6. Changes to the limitations base, shell and core requested by Tenant as specified on the approved TI Plans; or
5.7. Any other action or inaction of subsection (D) belowTenant, Tenant's Force Majeure (or its agents, contractors, or employees. In addition to the effect upon the Rent Commencement Date, as defined provided in said subsection (D)) shall not constitute the Lease, Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to shall, upon demand, pay Annual Fixed Rent or Landlord as Additional Rent. The Delivery Dates and/or the date , any actual and documented costs or expenses incurred by Landlord as a result of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord including without limitation, any increases in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)costs or expenses for labor or materials.
Appears in 1 contract
Samples: Office Lease Agreement (Somaxon Pharmaceuticals, Inc.)
Tenant Delays. A The term "Tenant Delay” " shall be defined as any mean, with respect to the completion of the Initial Improvements, delay which is attributable to any: (1) delay in the design, permitting giving of authorizations or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act approvals by Tenant within three (3) days following a written request which is faxed or personally delivered to Tenant's contractorsfacilities manager, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, the approval or selection of alternate like-quality, like-price finishes or components identified by Landlord as being readily available when materials, components, finishes or improvements shown on the Approved Final Plan or Scope of Work attached hereto as Attachment No. 2 are not available in a commercially reasonable time given the anticipated date of substantial completion of the Initial Improvements; (2) delay attributable to the negligent or willfully wrongful acts or failures to act, of Tenant, its agents, or contractors, (3) delay attributable to the interference of Tenant, its agents, or contractors with the completion of Landlord's Work, including delays due to Tenant's failure within three (3) days following a written request which is faxed or personally delivered to Tenant's facilities manager to make any portion of the Premises available for construction of the Initial Improvements, including without limitation, Tenant's failure to remove, equipment, furniture and employees from such area; (4) any extension of time required to complete the Initial Improvements because of changes to the Approved Final Plan or the Initial Improvements requested by Tenant, including any delays resulting from caused by requests for a Tenant Change; (5) delay attributable to Tenant's requirement for materials, components, finishes or improvements identified after the Approved execution of the Lease which are not available in a commercially reasonable time given the anticipated date of substantial completion of the Initial Improvements; (6) there is an Event of Default on the part of Tenant; or (7) any other event which is expressly identified as a Tenant Finishes Delay under Section 3.l(C) abovethis Agreement or in the Lease; provided, however, that the events described in (2) and disclosed to (3) shall only comprise a Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in Delay if the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless Initial Improvements is actually delayed thereby and until Landlord has given provided to Tenant written notice (that such act or omission may delay the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay progress of construction, which notice is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which provided by Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, following the date Landlord is informed that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term negligence, misconduct or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)interference will cause a delay.
Appears in 1 contract
Tenant Delays. A In no event shall the Commencement Date of the Lease be extended or delayed due or attributable to delays due to the fault of Tenant ("Tenant Delay” Delays"). Tenant Delays shall be defined as include, but are not limited to, delays caused by or resulting from any delay in the design, permitting one or performance more of the Base Building Work following:
(a) Tenant's failure to timely review and reasonably approve the Working Drawings or to furnish information to Landlord for the preparation by Landlord of the Working Drawings;
(b) Tenant's request for or use of special materials, finishes or installments which are not readily available, provided that Landlord shall notify Tenant in writing that the particular material, finish, or installation is not readily available promptly upon Landlord's discovery of same;
(c) Change orders requested by Tenant to the extent that such delay is actually caused by any act or, where there is change orders (in the aggregate) cause a duty to act under this Lease, any failure to act total of more than fourteen (14) calendar days of delay;
(d) Interference by Tenant or by Tenant's contractorsagents, architectsemployees, engineerscontractors or subcontractors with Landlord's construction activities;
(e) Tenant's failure to approve any other item or perform any other obligation in accordance with and by the dates specified in this Work Letter or in the Construction Contract;
(f) Tenant's requested changes in the Preliminary Plans, Working Drawings or anyone else engaged any other plans and specifications after the approval thereof by Tenant or on behalf submission thereof by Tenant to Landlord; and
(g) Tenant's failure to approve written estimates of Tenant costs in connection accordance with this Work Letter. If the construction Commencement Date of the Lease is delayed by any Tenant Improvement Work as set forth in this Article III (includingDelays, without limitationwhether or not within the control of Tenant, then the Commencement Date of the Lease and the payment of Rent shall be accelerated by the number of days of such Tenant Delay. Landlord shall give Tenant written notice within a reasonable time of any delays resulting from the Approved circumstance that Landlord believes constitutes a Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter providedDelay. Notwithstanding the foregoing, in In no event shall any construction delays in resulting from unanticipated problems related to the completion existing condition of the Base Building Work caused by Tenant’s use of non-union labor be deemed to constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Samples: Lease (Broadcom Corp)
Tenant Delays. A "Tenant Delay” shall be defined as any The number of days of delay in the design, permitting or performance Substantial Completion of the Base Building Work to Premises arising, directly or indirectly, out of or on account of any of the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any following events shall constitute "TENANT DELAYS":
(a) Tenant's failure to act by Tenant furnish Working Plans based upon or consistent with the Space Plans on or before the applicable dates set forth in Paragraph 2(a) hereof; or
(b) Tenant's contractors, architects, engineersfailure to deliver, or anyone else engaged by revise and deliver, the Working Plans or on behalf any of the Additional Plans required from Tenant after Landlord has properly disapproved Working Plans or Additional Plans within the applicable times specified in connection with the construction Paragraphs 2(b) or 3(b) (as applicable) hereof; or
(c) Any delay resulting from Tenaxx'x xevision of the Tenant Improvement Plans or Additional Plans unless expressly provided to the contrary herein or in any other agreement by Landlord; or
(d) The approval by Tenant of any estimate of Tenaxx Xxxxx xxxe by Landlord under Paragraph 2(a) and 3(c) above but only to the extent such Extra Work as set forth in this Article III causes a delay up to the amount of the estimate; or
(including, without limitation, any delays e) Any delay resulting from the Approved performance in a timely fashion consistent with the construction schedule of any work by Tenaxx xx any person, firm, or corporation employed by Tenant, or designated by Tenant Finishes under Section 3.l(C) above) and disclosed pursuant to any right granted to Tenant as hereinafter provided. Notwithstanding hereunder; or
(f) Any delay caused by Tenaxx'x xailure to provide in a timely fashion clarification of any errors, inconsistency or omission in the foregoingWorking Drawings or Additional Plans or informa- 128 tion regarding any errors, inconsistency or omission in the Working Plans or Additional Plans, requested by Landlord in writing and reasonably required for completion of construction; or
(g) Any delay caused by Tenaxx'x xailure to provide in a timely fashion, but in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within less than five (5) business days thereafter)after written notice from Landlord, substitutions for materials which Landlord and Tenant agree are not available; providedor
(h) Any delay caused by Tenaxx'x xailure to provide on or before the dates identified in the construction schedule, howeverafter the date of delivery of the Working Plans, those items to be supplied by Tenant which must be interfaced with Landlord's Work; or
(i) Any delay caused by Tenaxx'x xailure to provide in a timely fashion but in no event less than five (5) business days after written notice from Landlord, any information directly related to Landlord's Work required by this Lease or to do any other act required by this Lease directly related to Landlord's Work. Landlord shall promptly provide Tenant with written notice of any matters that if it claims could give rise to Tenant shall fail Delays and absent such notice within thirty (30) days after Landlord knows or with the exercise of reasonable care should have known of any right to eliminate the delay within the aforesaid 48-hour periodclaim Tenaxx Xxxxx xxx any such matter, then the 48-hour cure period such claim shall be included in the period waived. In each and every case of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if or claimed Tenant Delay, Landlord shall in fact eliminate be obligated to take reasonable measures to mitigate the extent of delay caused by Tenant Delay within or any costs associated with Tenant Delay. If the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay parties cannot agree as to the extent of delay caused by (i) Landlord Delay or (ii) subject to Extra Work either party may submit the limitations issue of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement to arbitration under Paragraph 33 of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Lease.
Appears in 1 contract
Samples: Sublease (Universal Access Inc)
Tenant Delays. A "(1) Anything contained herein or elsewhere in this Lease to the contrary notwithstanding, any of the following shall constitute a “Tenant Delay” shall be defined as ”: (i) the time period to review and approve or deny any Change Order; (ii) the time period to review and approve or deny any Upgraded Materials; (iii) any actual delay in the design, permitting or performance Substantial Completion of the Base Landlord’s Work, the Façade Work and/or the Initial Work due to any Change Order or Upgraded Materials; (iv) Tenant’s failure or delay in making its selection from Landlord’s standard-Building Work materials, finishes and installations within the time periods specified in this Lease; (v) Tenant’s failure or delay in delivering any plans, drawings, specifications and/or resubmissions required or desired pursuant to the extent that such delay is actually caused by any act orterms of this Lease for Landlord’s Work, where there is a duty to act under the Façade Work, and/or the Initial Work within the time periods specified in this Lease, or if no time frame is provided, within a reasonable period after request; (vi) Tenant’s failure or delay in issuing any failure to act by approval of plans, drawings or specifications for Landlord’s Work, Façade Work, and/or the Initial Work if and as needed from Tenant on a timely basis or Tenant's contractors, architects, engineerswithin the time periods specified in this Lease, or anyone else engaged by or if no time frame is provided, within a reasonable period after request; (vii) any default on behalf the part of Tenant in connection with the construction of the Tenant Improvement Work as set forth pursuant to this Lease; and/or (viii) any other act or omission described in this Article III Lease as a “Tenant Delay”.
(including2) In the event of any Tenant Delay: (a) Tenant shall be responsible for the incremental increase in Landlord’s cost to perform the Landlord’s Work, without limitationthe Façade Work and/or the Initial Work, and any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work damages caused by Tenant’s use of non-union labor constitute a such Tenant Delay hereunder. Notwithstanding Delay, if any; (b) the foregoing, no event Anticipated Commencement Date shall be deemed extended on a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that per diem basis for each day Landlord’s Work is delayed due to a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (yc) the Outside Date (as defined in the Article 24 of the preprinted form of Lease) shall be extended on a per diem basis on which Landlord has determined that for each day Landlord’s Work is delayed due to a Tenant Delay Delay; (d) the Façade Work Completion Date shall be extended on a per diem basis for each day Landlord’s Work is occurringdelayed due to a Tenant Delay; (e) the Initial Work Completion Date shall be extended on a per diem basis for each day the Initial Work is delayed due to a Tenant Delay; and (zf) the actions which Landlord believes that Tenant must take to eliminate Commencement Date shall be advanced by the number of days of such delays caused by each Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if in order for the Commencement Date to be advanced due to a Tenant Delay, Landlord shall give Tenant written notice of any Tenant Delay and Tenant shall fail have three (3) Business Days thereafter to eliminate cure same before the delay within the aforesaid 48-hour period, then the 48-hour cure period Commencement Date shall be included in advanced. Within thirty (30) days after the Commencement Date occurs, Landlord shall notify Tenant of Landlord's reasonable estimate of the date Landlord could have delivered possession of the Demised Premises to Tenant but for the Tenant Delays. After delivery of said notice, Tenant shall immediately pay to Landlord, as Additional Rent, the amount described above for the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any all Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Samples: Rider to Lease Agreement (Premier Exhibitions, Inc.)
Tenant Delays. A For purposes of this Exhibit D, "Tenant Delay” Delays" shall be defined as mean any actual delay in the design, permitting completion of Landlord’s Work resulting from any or performance all of the Base Building Work following: (a) Tenant's failure to timely perform any of its obligations pursuant to this Exhibit D, including any failure to complete, on or before the due date therefor, any action item which is Tenant's responsibility pursuant to the extent that such work schedule or any schedule delivered by Landlord to Tenant pursuant to this Exhibit D; (b) Tenant's changes to the Approved Plans; (c) Tenant's request for materials, finishes, or installations which are not readily available or which are incompatible with the Building standards; (d) any delay is actually caused by of Tenant in making payment to Landlord for any costs for Tenant’s changes to the Approved Plans, as provided in Section 1 above; or (e) any other act or, where there is a duty to act under this Lease, any or failure to act by Tenant or Tenant, Tenant's contractorsemployees, agents, architects, engineersindependent contractors, consultants and/or any other person performing or anyone else engaged by or required to perform services on behalf of Tenant which interferes with Xxxxxxxx’s performance of Landlord’s Work. If, as a result of Tenant Delay, the Substantial Completion Date is delayed in the aggregate for more than one hundred eighty (180) days, Landlord may (but shall not be required to) at any time thereafter terminate this Lease by giving written notice of such termination to Tenant and thereupon this Lease shall terminate without further liability or obligation on the part of either party, except that Tenant shall pay to Landlord the cost theretofore incurred by Landlord in performing Landlord’s Work, plus an amount equal to Xxxxxxxx’s out-of-pocket expenses incurred in connection with the construction of the Tenant Improvement Work as set forth in this Article III (Lease, including, without limitation, brokerage and legal fees, together with any delays resulting amount of Base Rent. Expense Charges or additional rent required to be paid from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, Substantial Completion Date as determined by Landlord in accordance with Section 3 above through the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)effective termination date.
Appears in 1 contract
Tenant Delays. A In no event shall the Commencement Date of the Lease be extended or delayed due or attributable to delays due to the fault of Tenant ("Tenant Delay” Delays"). Tenant Delays shall be defined as include. but are not limited to, delays caused by or resulting from any delay in the design, permitting one or performance more of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any following:
(a) Tenant's failure to act timely review and reasonably approve the Working Drawings or to furnish information to Landlord for the preparation by Landlord of the Working Drawings;
(b) Tenant's request for or use of special materials, finishes or installments which are not readily available, provided that Landlord shall notify Tenant in writing that the particular material, finish, or installation is not readily available promptly upon Landlord's discovery of same;
(c) Delays of any nature, whether or not within Tenant's control, resulting from Tenant's decision to use any materials, finishes or installations other than "building standard" materials, finishes or installations.
(d) Change orders requested by Tenant;
(e) interference by Tenant or by Tenant's contractorsagents, architectsemployees, engineers, contractors or anyone else engaged subcontractors with Landlord's construction activities;
(f) Tenant's failure to approve any other item or perform any other obligation in accordance with and by the data specified herein or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice Construction Contract;
(the "Tenant Delay Notice"g) advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of requested changes in the Preliminary Plans, Working Drawings or any other plans and specifications after the approval thereof by Tenant Delay Notice or submission thereof by Tenant to Landlord;
(which for the purposes of determining receipt may be delivered by hand to h) Tenant's Construction Representative, failure to approve written estimates of costs in accordance with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter)Work Letter; provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by and
(i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement obtaining or failure to obtain any necessary governmental approvals or permits for Tenant's intended use of the Term or Premises. If the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion Commencement Date of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for Lease is delayed by any Tenant Delays, as determined whether or not within the control of Tenant, then the Commencement Date of the Lease and the payment of Rent shall be accelerated by the number of days of such delay, Landlord in the exercise shall give Tenant written notice within a reasonable time of its good faith business judgment (it being understood and agreed any circumstance that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of believes constitutes a Tenant Delays)Delay.
Appears in 1 contract
Tenant Delays. A "Tenant Delay” 5.1 If (a) a delay shall be defined as any delay occur in the design, permitting Substantial Completion of the Tenant Finish Work or performance of the Base Building Work in accordance with the Final Plans (or any revised Final Plans) by the General Contractor as the result of (i) any written direction by Tenant that the General Contractor delay proceeding with the Tenant Finish Work, the Base Building Work or any segment of the Tenant Finish Work or the Base Building Work, (ii) any Change Order authorized by Tenant in writing (as more particularly described below), (iii) any interference in the General Contractor's performance of the Tenant Finish Work caused by Tenant or Tenant's agents, representatives, or contractors performing the Tenant Finish Work, (iv) any failure by Tenant to comply with the requirements of Paragraph 1.1 of this Exhibit, including, but not limited to, Tenant's failure to provide its approval, consent or input on the date or within the time period set forth above, or Tenant's requests that the General Contractor not enter into a subcontract with any subcontractor bidding on the Tenant Finish Work due to the extent that high nature of the bids received by the General Contractor, or (v) any other act or omission of Tenant, its agents, employees, or contractors (any of such delay is actually events being a "Tenant Delay"), then (b) the Commencement Date (even though no Certificate of Occupancy (temporary or permanent) has been issued or the Tenant Finish Work has not been Substantially Completed) shall be the date the Tenant Finish Work would have been Substantially Complete had there been no Tenant Delays. Excusable Delays shall not constitute Tenant Delay, unless such Excusable Delay was caused directly or indirectly by any an act or, where there is or a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Visitors.
5.2 If Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, desires any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as changes to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction RepresentativeFinal Plans, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to submit such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay proposed changes to the extent caused by General Contractor (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).a "
Appears in 1 contract
Samples: Lease Agreement (Medicines Co /De)
Tenant Delays. A In no event shall the Extension Commencement Date be extended or delayed due or attributable to delays due to the fault of Tenant ("Tenant Delay” Delays"). Tenant Delays shall include, but are not limited to, delays caused by or resulting from any one or more of the following:
(a) Tenant's failure to timely review and reasonably approve the Working Drawings or to furnish information to Landlord for the preparation by Landlord of the Working Drawings;
(b) Tenant's request for or use of special materials, finishes or installments which are not readily available, provided that Landlord shall notify Tenant in writing that the particular material, finish, or installation is not readily available promptly upon Landlord's discovery of same;
(c) Delays of any nature, whether or not within Tenant's control, resulting from Tenant's decision to use any materials, finishes or installations other than "building standard" materials, finishes or installations;
(d) Change orders requested by Tenant;
(e) Interference by Tenant or by Tenant's agents, employees, contractors or subcontractors with Landlord's construction activities;
(f) Tenant's failure to approve any other item or perform any other obligation in accordance with and by the dates specified herein or in the Construction Contract;
(g) Tenant's requested changes in the Preliminary Plans, Working Drawings or any other plans and specifications after the approval thereof by Tenant or submission thereof by Tenant to Landlord;
(h) Tenant's failure to approve written estimates of costs in accordance with this Work Letter; and
(i) Tenant's obtaining or failure to obtain any necessary governmental approvals or permits for Tenant's intended use of the Additional Space. If the Extension Commencement Date of the Lease is delayed by any Tenant Delays, whether or not within the control of Tenant, then the Extension Commencement Date and the payment of Rent shall be defined as accelerated by the number of days of such delay. Landlord shall give Tenant written notice within a reasonable time of any circumstance that Landlord believes constitutes a Tenant Delay. *If Tenant has paid for the cost of the Preliminary Plans or the Working Drawings, Tenant shall be reimbursed for such cost from the Tenant Improvement Allowance. Tenant acknowledges and agrees that Tenant is solely responsible for obtaining, delivering and installing in the Premises and the Additional Space all necessary and desired furniture, trade fixtures, equipment and other similar items, and that Landlord shall have no responsibility whatsoever with regard thereto. Tenant further acknowledges and agrees that neither the Extension Commencement Date nor the payment of Rent shall be delayed for any period of time whatsoever due to any delay in the design, permitting or performance furnishing of the Base Building Work to the extent that Premises with such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)items.
Appears in 1 contract
Tenant Delays. A "SECTION 6.1. In the event that Tenant Delay” does not comply with any of the time requirements imposed upon Tenant pursuant to Article 2 of this Exhibit B and by reason thereof the bidding and Guaranteed Price for the Tenant Work is obtained later than the bidding and Guaranteed Price for the Building, (a) the fee payable to Landlord's Contractor pursuant to Section 2.3(b) shall be defined as any delay in increased from five percent (5%) to such higher amount [not greater than ten percent (10%)] that may be charged by Landlord's Contractor, and (b) Landlord shall have the design, permitting or performance of right to obtain unit prices for Tenant Work at the Base Building Work to time Landlord obtains the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with bidding and Guaranteed Price for the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoingBuilding, in no which event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period unit prices shall be included in the period Guaranteed Price for the Tenant Work unless Tenant subsequently obtains a lower price in bidding its Tenant Work.
SECTION 6.2. In the event that Tenant requests any change in the Tenant Work after the Guaranteed Price has been approved by Tenant, the fee payable to Landlord's Contractor with respect to such change order work pursuant to Section 2.3(b) shall be increased from five percent (5%) to such higher amount [not greater than fifteen and one-half percent (15 1/2%)] that may be charged by Landlord's Contractor on the net increase in cost arising from such change order (treating related items of work or substitutions and additions as a single change order); provided that in the event of any increase in such fee the cost of general conditions work shall be paid by Landlord's Contractor out of such fee and shall not be included in the cost of the work pursuant to Section 2.3.
SECTION 6.3. In the event that the Completion Date is delayed by reason of any delay by Tenant in complying with any of the time charged to requirements imposed upon Tenant pursuant to such Article 2 of this Exhibit B, or in the event that Tenant Delay Notice (it requests any change in the Tenant Work after the Guaranteed Price has been approved by Tenant which results in the Completion Date being understood and agreed that if delayed, then Tenant shall pay to Landlord rent in fact eliminate the Tenant Delay within the 48amount of one three hundred sixty-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by fifth (i1/365) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but Rent for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed each day that the foregoing shall not be construed so as to relieve Landlord Completion Date is delayed by reason of its obligation to actually complete such delay or change order by Tenant. EXHIBIT C DECLARATION BY LANDLORD AND TENANT AS TO COMMENCEMENT DATE THIS DECLARATION is made and entered into this day of , 198 , by and between COMMUNITY MOTORS PROPERTY ASSOCIATES LIMITED PARTNERSHIP (the Base Building Work, notwithstanding "Landlord") and FEDERAL DATA CORPORATION (the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays"Tenant").
Appears in 1 contract
Tenant Delays. A "Each of the following shall constitute a “Tenant Delay” shall be defined as any delay in the design(collectively, permitting “Tenant Delays”):
(a) Change Orders requested by Tenant, or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant to furnish any required notice, plan, drawing, information, approval or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work consent within any respective required time period as set forth in this Article III Exhibit “D” or elsewhere in the Lease.
(includingb) Delays in furnishing materials, without limitationservices, supplies, labor or components required by the Tenant.
(c) Delays caused by the performance of any work or activity in the Premises by Tenant or any of its employees, agents, or contractors.
(d) The inclusion of any item in Landlord’s Work or the Tenant Improvement Work required by Tenant: (i) which is required for the issuance of a temporary or permanent Certificate of Occupancy for the Premises, but is not obtainable (or is not actually delivered) by the dates specified by Landlord in the Construction Schedule (as defined below) to permit Substantial Completion (as defined below) or (ii) which results in delays resulting in obtaining a building permit or any other permit or authorization required for the performance of Landlord’s Work or the Tenant Improvement Work or a temporary or permanent Certificate of Occupancy for the Premises. Landlord shall prepare and submit to Tenant, a schedule (the “Construction Schedule”) on which Landlord shall designate the dates by which various items included in the Landlord’s Work and the Tenant Improvement Work must be delivered for inclusion in the Landlord’s Work and the Tenant Improvement Work. The period of any Tenant Delay pursuant to this subparagraph 4(d) shall be the period of time from the Approved date on which any item should have been delivered to satisfy the Construction Schedule and the date on which such item is actually delivered for inclusion in the Landlord’s Work and the Tenant Finishes Improvement Work.
(e) A failure by Tenant timely to pay Landlord any amounts which Tenant is obligated to pay to Landlord pursuant to subparagraph 8(b) below.
(f) Any other default by Tenant of any of its obligations under Section 3.l(C) above) and disclosed to Tenant as hereinafter providedthis Lease. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as which have accrued prior to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 date of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Delay.
Appears in 1 contract
Tenant Delays. A "Tenant Delay” If there shall be defined as any a delay or there are delays in the design, permitting or performance Substantial Completion of the Base Building Expansion Space as a result of any of the following (collectively, “Tenant Delays”):
4.2.1 Tenant’s failure to timely approve any matter requiring Tenant’s approval, and/or Tenant’s failure to timely perform any other obligation or act required of Tenant hereunder;
4.2.2 a breach by Tenant of the terms of this Tenant Work Letter or the Lease (as modified by the Third Amendment);
4.2.3 Tenant’s request for changes in the Construction Drawings (other than changes to conform to the extent that such delay is actually caused by any act orScope of Work or Landlord’s Building standard specifications for the Building); and
4.2.4 Tenant’s requirement for materials, where there is a duty to act under this Leasecomponents, any failure to act by Tenant finishes or Tenant's contractors, architects, engineersimprovements which are different from, or anyone else engaged not included in, the Scope of Work or Landlord’s Building standard specifications for the Building;
4.2.5 any changes in the Construction Drawings and/or the Tenant Improvements required by or on behalf applicable laws if such changes are directly attributable to Tenant’s specific use of the Expansion Space (in a manner different from its use of the Existing Premises); then, notwithstanding anything to the contrary set forth in the Third Amendment and regardless of the actual date of the Substantial Completion of the Expansion Space, and provided that Landlord notified Tenant in connection with writing of such delay, the construction of the Tenant Improvement Work Expansion Commencement Date (as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion 2 of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice"Third Amendment) advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, Expansion Commencement Date would have occurred but for any if no Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment set forth above, had occurred (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred other than delay prior to actual completion as the result of Tenant Delayssuch written notice from Landlord).
Appears in 1 contract
Samples: Lease (Orexigen Therapeutics, Inc.)
Tenant Delays. A "In the event of any dispute between Landlord and Tenant Delay” with respect to the number of days attributable to any Force Majeure Delays or Tenant Delays, the dispute shall be defined resolved by the Space Architect whose decision shall be conclusive and binding on both Landlord and Tenant. If any Force Majeure Delays (limited as any described above) or Tenant Delays cause a delay in Substantial Completion of Landlord's Work then the designtime for completion of such Landlord's Work shall correspondingly increase by the amount of time reasonably attributable to such Completion Delay, permitting or performance such that Landlord would have such additional time within which to achieve Substantial Completion of Landlord's Work. If Landlord fails to deliver to Tenant actual possession of the Base Leased Premises, having achieved Substantial Completion of both the Building Improvements and Landlord's Work, by July 24, 2000, as extended for Force Majeure Delays and Tenant Delays, then Landlord shall provide Tenant one (1) day's abatement of both Minimum Annual Rental and Annual Rental Adjustment, for each day after July 24, 2000 that Landlord fails to deliver the Leased Premises to Tenant with Substantial Completion of both the Building Improvements and Landlord's Work to having been achieved. The abatement period shall begin as of the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any delayed Commencement Date. Such abatement shall be Tenant's only remedy for Landlord's failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with deliver the construction of the Tenant Improvement Work Leased Premises as set forth in this Article III above, and Tenant shall not be entitled to damages (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(Cconsequential or otherwise) above) and disclosed to Tenant as hereinafter provideda result thereof. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such request each Tenant Delay. No event shall be deemed change order in writing and note therein whether the change order is to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand priced prior to Tenant's Construction Representativeformal request for the change order, with copies or whether the change order is a formal request for a change order to follow to Tenant at occur regardless of the notice address set forth in Section 1.2 price associated therewith. Upon submission of this Lease a change order, Landlord shall notify Tenant, within five (5) business days thereafter); providedof Landlord's receipt thereof, howeverof the time period in which the change order can be completed, and whether or not Landlord reasonably believes such change order results in any delays or any savings of time to the Substantial Completion of Landlord's Work. To the extent that if a change order would increase the cost of the Landlord's Work above the Allowance, then Tenant shall fail pay for such work at the time of and as a condition to eliminate the delay approval of the change order. Landlord must notify Tenant within five (5) business days of the aforesaid 48-hour period, then date Landlord reasonably learns of the 48-hour cure beginning of any Tenant Delay period shall be included in and must give Tenant a reasonable estimate of the period of time charged the delay. If Landlord fails to give Tenant pursuant such notice, with respect to such any Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate Delay, the Tenant Delay within the 48-hour cure period, no applicable Tenant Delay shall be deemed deemed, for all purposes under this Lease, not to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)occurred.
Appears in 1 contract
Tenant Delays. A "Tenant Delay” shall be defined as responsible for, and shall pay to Landlord, any and all costs and expenses incurred by Landlord in connection with any delay in the designcommencement or completion of any Tenant Improvements and any increase in the cost of Tenant Improvements caused by (i) Tenant’s failure to submit information to the Architect or approve Working Drawings, permitting the Premises Contract, the Final Cost Estimate, or performance cost estimates for Changes within the time periods required herein or to provide any other response or information within the time periods required herein, (ii) any delays (other than a Force Majeure) in obtaining any items or materials constituting part of the Base Tenant Improvements requested by Tenant that are not Building Work Standard, including, but not limited to, the Special Tenant Improvements, (iii) any Changes which in the aggregate reasonably cause Substantial Completion to occur after the extent that such delay is actually caused by any act orScheduled Commencement Date, where there is a duty to act under this Lease, any (iv) Tenant’s failure to act make any payment within the time period specified herein, (v) any delays caused by Tenant or Tenant's contractors, architects, engineers’s contractors accessing the Premises prior to Substantial Completion pursuant to installation of Tenant’s Work and other items described in Section 8.3 of this Workletter, or anyone else engaged (vi) any other delay requested or caused solely by or on behalf of Tenant in connection with (collectively “Tenant Delay”). Notwithstanding anything to the construction of the Tenant Improvement Work as set forth contrary in this Article III (includingSection 9.4, without limitationTenant’s failure to submit information to the Architect or approve Working Drawings, the Premises Contract, or the Final Cost Estimate within the time periods required in Sections 5.2 or 7.1 of this Workletter or to provide any delays resulting from other response or information within the Approved time periods required in Sections 5.2 or 7.1 of this Workletter shall not constitute a default under the Lease and shall not result in Tenant Finishes under Section 3.l(C) above) being responsible for costs and disclosed expenses incurred by Landlord with respect to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any related delays in the commencement or completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter)Improvements; provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period Scheduled Commencement Date shall be included in the period extended by one (1) day for each such day of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Samples: Office Lease Agreement (Cray Inc)
Tenant Delays. A "Tenant Delay” shall be defined as responsible for, and shall pay to Landlord, any and all actual and reasonable costs and expenses incurred by Landlord in connection with any actual delay in the design, permitting commencement or performance completion of any Tenant Improvements and any increase in the cost of Tenant Improvements caused by (i) Tenant’s failure to respond to Landlord’s request for information required for the completion of the Base Building Work construction plans and specifications within five (5) Business Days of Landlord’s request, as required in Paragraph 4(a) above, (ii) Tenant’s failure to provide its written approval or disapproval of the extent construction plans and specifications (or any revisions thereto) within the time periods specified in Paragraph 4(a) above, (iii) Tenant’s failure to provide its approval or disapproval regarding the budget within the time periods specified in Paragraph 4(b) above, (iv) any Changes requested by Tenant in the Final Plans (including any cost or delay resulting from proposed changes that such delay is actually caused by any act orare not ultimately made), where there is a duty to act under this Lease, (v) any failure to act by Tenant to timely pay any amounts due from Tenant hereunder, including any additional costs resulting from any Change (it being acknowledged that if Tenant fails to make or Tenant's contractorsotherwise delays making such payments, architectsLandlord may stop work on the Tenant Improvements rather than incur costs which Tenant is obligated to fund but has not yet funded and any delay from such a work stoppage will be a Tenant Delay), engineers(vi) the inclusion by Tenant in the Tenant Improvements of any so-called “long lead” materials (such as fabrics, paneling, carpeting or other items that are not readily available within industry standard lead times (e.g., custom made items that require time to procure beyond that customarily required for standard items, or anyone else engaged items that are currently out of stock and will require extra time to back order) and for which no suitable substitutes exist) provided Landlord shall use commercially reasonable efforts to notify Tenant (which may be via e-mail to Tenant’s designated construction representative) that the items are long lead items, (vii) Tenant’s failure to respond within three (3) Business Days to reasonable inquiries by Landlord or on behalf of Tenant in connection with Contractor regarding the construction of the Tenant Improvement Work as set forth in this Article III Improvements, or (including, without limitation, vii) any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays other delay in the completion delivery of the Base Building Work Premises actually caused by Tenant’s use . Each of non-union labor constitute the foregoing that actually causes a Tenant Delay hereunder. Notwithstanding delay in the foregoing, no event shall be deemed delivery of the Premises is referred to herein as a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such “Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)”.
Appears in 1 contract
Samples: Office Lease (2U, Inc.)
Tenant Delays. A (a) There shall be a "Tenant Delay” " if Landlord shall be defined actually delayed, at any time after Commencement of Construction of the Building, in commencing or completing the Initial Base Building Work, or in commencing or completing any item(s) of the Post Delivery Base Building Work, or in obtaining the construction loan referred to in Section 16.l(c)(iv)(A), as a result of any of the following acts or omissions: (1) Tenant's failure to approve or accept (or to disapprove with comments) or its delay in approving or accepting (or disapproving with comments) the designBase Building CD's (or any versions thereof), permitting or performance any aspect of the Base Building Work which Landlord requests Tenant to the extent that such delay is actually caused by any act orapprove on an expedited basis, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant all in connection accordance with the construction of the Tenant Improvement Work as applicable time limitations set forth in this Article III 16 (includingto the extent the same are specifically set forth herein, without limitation, or with reasonable promptness if such time periods are not specifically set forth herein); (2) any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed additional time required to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of complete the Base Building Work caused by Tenant’s use Change Orders (but not caused by Base Building Enhancements, unless the scope of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (Base Building Enhancement in question is not consistent with the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length scope of such Base Building Enhancement as shown on Exhibit N), or caused by the failure of Tenant Delaytimely to respond to any Landlord requests for substitutions pursuant to Section 16.6; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z3) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt failure of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies Representative to follow to Tenant at the notice address set forth in Section 1.2 of this Lease respond within five (5) days thereafter); providedBusiness Days with respect to all issues which could not be addressed due to Tenant's failure to attend the coordination meetings contemplated in Section 16.12, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included as such issues are set forth in the period of time charged notice delivered to Tenant pursuant to such Section 16.12; (4) the performance of work by a contractor, vendor or employee of Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial which delays completion on of the Base Building Work; (5) any violation against the Premises or the Building caused by Tenant, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by which delays Landlord in obtaining a TCO for the exercise Premises sufficient for filing of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).so-called "Directive 14's" by Tenant; or
Appears in 1 contract
Samples: Lease Agreement (Wellchoice Inc)
Tenant Delays. A "Tenant Delay” shall be defined as responsible for, and shall pay to Landlord, any and all costs and expenses incurred by Landlord in connection with any delay in the design, permitting commencement or performance completion of any Landlord Work and any increase in the cost of Landlord Work caused by (i) Tenant’s failure to respond to Landlord’s request for information required for the completion of the Base Building Work construction plans and specifications within five (5) business days of Landlord’s request, as required in Section 1 above, (ii) Tenant’s failure to provide its written approval or disapproval of the extent that such delay is actually caused construction plans and specifications (or any revisions thereto) within five (5) business days of Tenant’s receipt thereof, (iii) any Changes requested by any act Tenant in the Tenant Approved Plans or, where there is a duty to act under this Leaseonce approved, the Final Plans (including any cost or delay resulting from proposed changes that are not ultimately made), (iv) any failure to act by Tenant to timely pay any amounts due from Tenant hereunder within the time frames herein, including any additional costs resulting from any Change (it being acknowledged that if Tenant fails to make or Tenant's contractorsotherwise delays making such payments, architectsLandlord may stop work on the Landlord Work rather than incur costs which Tenant is obligated to fund but has not yet funded and any delay from such a work stoppage will be a Tenant Delay), engineers(v) the inclusion in the Landlord Work of any so- called “long lead” materials (such as fabrics, paneling, carpeting or other items that are not readily available within industry standard lead times (e.g., custom made items that require time to procure beyond that customarily required for standard items, or anyone else engaged items that are currently out of stock and will require extra time to back order) and for which suitable substitutes exist), (vi) Tenant’s failure to respond within three (3) business days to reasonable inquiries by Landlord or on behalf of Tenant in connection with Contractor regarding the construction of the Landlord Work, or (vii) any other delay requested or caused by Tenant. Each of the foregoing is referred to herein as a “Tenant Improvement Delay”. If the date of Substantial Completion of the Landlord Work is delayed as set forth in this Article III (includinga result of a Tenant Delay, without limitation, any delays resulting from then Tenant’s obligation to pay rent for the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter providedPremises shall be accelerated by the number of days of such delay. Notwithstanding the foregoing, in no event shall any delays in with respect only to the completion first two (2) instances of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, for which no event shall be deemed a time period is expressly provided for Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure periodperform, no Tenant Delay shall be deemed to have occurred unless and until Landlord has given Tenant written notice that an act or omission on the part of Tenant is about to occur or has occurred which will cause a delay and Tenant has failed to cure such delay within two (2) days after its receipt of such written notice. No cure period shall be required or apply for the purposes third (3rd) or any subsequent Tenant Delay; however, Landlord shall still be required to provide Tenant with notice of this Article III)any such Tenant Delay.
1. In addition, any delay to the extent caused by Build an eat-in kitchen with (i) Landlord Delay or a new (stainless steel) sink, with hot and cold water, garbage disposal and dishwasher hookups (Tenant to provide dishwasher specifications and shall pay for dishwasher including the installation by Landlord’s contractor); (ii) subject new upper and lower cabinetry with Building standard laminate (color to be determined by Tenant); (iii) one copper water line for water machine, one copper water line for a refrigerator, and one copper water line for a coffee machine (water machine, coffee machine and refrigerator to be provided by Tenant including installation), and (iv) electrical outlets for microwave and coffee machines (separate circuits as needed). Coffee machine to be located as shown in the space plan in Tenant Approved Plans.
2. Provide new hardware (to match hardware in kitchen) to the limitations existing millwork in the storage room.
3. Provided electrical outlet for Tenant’s copy machine (separate circuit – 110-127 volts, 10 amps).
4. Build an IT/server room as shown in Tenant Approved Plans to support 2 racks of subsection equipment including 1 three (D3) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delayton supplemental HVAC system. Tenant covenants that no Tenant Delay shall delay commencement [In accordance with Section 7.1 of the Term or Lease, the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, foregoing equipment shall be deemed to have occurred as separately metered and Tenant shall be responsible for the cost of electricity for the date when use of such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined equipment within thirty (30) days after billing by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Landlord.]
Appears in 1 contract
Tenant Delays. A Tenant Delay(s)" shall mean delays in the preparation of Approved Plans and/or in the bidding, contracting and/or construction of Landlord's Work, but solely to the extent caused by the acts or omissions of Tenant, or any of its agents, employees, and/or contractors, or resulting from any change order or long lead item with respect to Landlord's Work caused or requested by Tenant, or any other delay which is defined in any part of the Lease or this Exhibit C as a "Tenant Delay” shall be defined as any delay in the design, permitting or performance of the Base Building Work ". If and to the extent that the Substantial Completion of any item(s) of Landlord's Work is delayed due to Tenant Delay, and the delayed completion of such delay is actually caused item(s) does not materially and adversely affect the timing of the Substantial Completion of Landlord's Work, then provided Tenant continues to pursue the elimination of such Tenant Delay with all due diligence, such Tenant Delay shall not affect the Commencement Date or otherwise result in or give rise to any damages or penalties payable by any act orTenant to Landlord, where there is or otherwise constitute a duty to act default by Tenant under this the Lease, except that Tenant shall be responsible for any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays increase in the cost of Landlord's Work occasioned thereby. If and to the extent the non-completion of the Base Building Work caused by Tenant’s use of non-union labor constitute any such item(s) due to a Tenant Delay hereunder. Notwithstanding does materially affect the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth timing of Substantial Completion of Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour periodWork, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay Commencement Date shall be deemed to have occurred for on the purposes of this Article III). In addition, any delay to day upon which the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, same would have occurred but for such Tenant Delay, and Tenant shall again be responsible for any Tenant Delays, as determined by Landlord increase in the exercise cost of its good faith business judgment Landlord's Work occasioned thereby. Without limiting any of the foregoing: (i) it being understood and agreed that the foregoing shall not be construed so constitute a "Tenant Delay" under this Lease if Landlord suffers any actual delay in securing a building permit or other required approvals for Landlord's Work as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the a result of Tenant Delays)the rejection by any governmental authority of any plans and specifications submitted to such authority for issuance of such permits or approvals because the same are not in conformity with local code or other legal requirements applicable thereto; and (ii) it shall constitute a "force majeure" within the meaning of this Lease if it takes more than twenty-one (21) days for Landlord to secure a building permit to perform Landlord's Work after the date of submission of the Approved Plans to the applicable governmental authorities for approval.
Appears in 1 contract
Tenant Delays. A If substantial completion of the Tenant Work for the Leased Premises is delayed as a result of any of the following causes or events, then such delay shall be conclusively deemed a "Tenant Delay” shall ":
(i) any cause or event that is deemed to be defined as a "Tenant Delay" pursuant to any delay in the design, permitting or performance of the Base Building provisions of this Work Agreement;
(ii) any changes or additions to the extent that such delay is actually caused by any act or, where there is a duty Tenant Work or to act under this Leasethe Tenant Plans (including without limitation, any failure to act changes or additions requested or required for the Leased Premises by Tenant or by any governmental authority or required in order to comply with any legal or base Building requirements or otherwise) subsequent to the date of Landlord's approval of the construction documents for the Leased Premises (unless such changes or additions are necessary as a result of a change made to the plans for the Standard Shell Work after the date hereof);
(iii) Tenant's contractors, architects, engineersfailure to deliver its approved Preliminary Plans or Construction Documents, or anyone else engaged to deliver the information or respond to the inquires or to take any of the other actions, described in Paragraph 2, above, by or on behalf of the dates specified in Paragraph 2, above;
(iv) a Tenant Delay in connection with obtaining a Building Permit, as specified in Paragraph 2(D);
(v) Tenant's request for any changes in the construction of the Tenant Improvement Work Plans or rebids as set forth in this Article III Paragraph 3 hereof;
(including, without limitation, vi) Tenant's failure to approve cost estimates for Tenant Work or pay for Excess Costs within the time required under Paragraph 3 hereof;
(vii) any delays resulting from changes or additions to the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding Work or the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Plans made after Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate approved same as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 Paragraph 4 hereof or changes to the base Building or Building systems as set forth in Paragraph 5 hereof;
(viii) Tenant's request for materials, finishes or installations which are out of this Lease within five the ordinary or which take a longer-than-normal time to obtain or install (5) days thereafter"long leadtime items"); provided, however, that if Tenant shall fail requests in writing, on or before the date that the Construction Documents are required to eliminate be delivered to Landlord (pursuant to Paragraph 2(A)(v) hereof) that Landlord identify the delay within long leadtime items clearly depicted on the aforesaid 48-hour periodConstruction Documents, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to request for such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing items shall not be construed so a Tenant Delay, unless Landlord identifies such items as long leadtime items on or before the date that Landlord submits to relieve Landlord Tenant written estimates of its obligation the cost of the Tenant Work pursuant to actually Paragraph 3(A)(i) of this Work Agreement;
(ix) the performance of, or failure to timely complete, work by Tenant or any person, firm, or entity hired or employed by Tenant, including without limitation, the failure to timely complete the Base Building Workinstallation or construction of any systems furniture to be installed or constructed by Tenant or any person, notwithstanding firm, or entity hired or employed by Tenant; or
(x) any other delays resulting from the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result actions or inactions of Tenant Delays)Tenant.
Appears in 1 contract
Tenant Delays. A "Tenant Delay” shall be defined as any delay in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in In no event shall the Commencement Date of the Lease be extended or delayed due or attributable to delays due to the fault of Tenant ("Tenant Delays"). Tenant Delays shall include, but are not limited to, delays caused by or resulting from any delays one or more of the following:
(a) Tenant's failure to promptly cooperate with the architects and furnish information for the preparation of the Preliminary Plans and Working Drawings, or to prepare and submit to Landlord the Preliminary Plans within the applicable Construction Information Submittal Dates;
(b) Tenant's failure to timely review and reasonably approve the Working Drawings by the applicable Construction Document Approval Dates;
(c) Tenant's request for or use of special materials, finishes or installations which are not readily available, provided that Landlord shall notify Tenant in writing that the particular material, finish, or installation is not readily available promptly upon Landlord's discovery of same;
(d) Delay attributable to failure by Tenant to timely provide, or changes (including without limitation changes in location) to, specifications relating to the laboratories, data center, or any of the other specialized improvements;
(e) Change orders requested by Tenant which actually delay the completion of the Base Building Work caused Tenant Improvements;
(f) Interference by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a or by any Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Parties with Landlord's good faith estimate as to the likely length of such Tenant Delay; construction activities;
(yg) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of failure to approve any other item or perform any other obligation in accordance with and by the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included dates specified herein or in the period of time charged Construction Contract;
(h) Requested or required changes in the Preliminary Plans, Working Drawings or any other plans and specifications after the approval thereof by Tenant or submission thereof by Tenant to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by Landlord;
(i) Unavailability of or delay in the ability to timely procure equipment or materials specified for the build-out of the laboratories, data center or other specialized improvements, provided that Landlord Delay shall notify Tenant in writing that the particular equipment or material is not readily available promptly upon Landlord's discovery of same;
(iij) subject to the limitations of subsection (D) below, Tenant's Force Majeure failure to timely approve written estimates of costs or to timely pay excess costs not timely elected to be amortized in accordance with this Work Letter; and
(as defined in said subsection (D)k) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement Tenant's obtaining or failure to obtain any necessary governmental approvals or permits for Tenant's intended use of the Term or Premises. If the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion Commencement Date of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for Lease is delayed by any Tenant Delays, as determined whether or not within the control of Tenant, then the Commencement Date of the Lease and the payment of Rent shall be accelerated by the number of days of such delay. Landlord shall give Tenant written notice within ten (10) business days following Landlord's discovery of any circumstance that Landlord believes constitutes a Tenant Delay, and in the exercise event of its good faith such timely notice the Tenant Delay shall relate back to the date such Tenant Delay began. If such notice is not given within ten (10) business judgment (it being understood days following Landlord's discovery of the circumstances that Landlord believes constitutes the Tenant Delay, then the Tenant Delay claim shall only be effective commencing from and agreed that after the foregoing shall not be construed so as to relieve Landlord date of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result delivery of Tenant Delays)such notice.
Appears in 1 contract
Samples: Lease (Western Digital Corp)
Tenant Delays. A "Tenant Delay” If there shall be defined a delay or there are delays in the Substantial Completion of the Premises (as a direct, indirect, partial, or total result of any of the following (collectively, “Tenant Delays”):
5.2.1 Tenant’s failure to timely approve any matter requiring Tenant’s approval, including the Cost Proposal and/or Tenant’s failure to timely perform any other obligation or act required of Tenant hereunder;
5.2.2 a breach by Tenant of the terms of this Work Letter Agreement or the Lease;
5.2.3 Tenant’s request for changes in the Construction Drawings only to the extent such changes cause a delay in the designtimelines;
5.2.4 Tenant’s requirement for materials, permitting components, finishes or performance improvements which are not available in a reasonable time (based upon the anticipated date of the Base Building Work Commencement Date set forth in Section 1.7 of the Summary) or which are different from, or not included in, the Specifications. In the event that items are not available, Landlord shall provide notice to Tenant of such unavailability and give Tenant the ability to select alternative items;
5.2.5 changes to the Base, Shell and Core required by the Approved Working Drawings only to the extent that such delay is actually caused required by any act or, where there is a duty to act under this Lease, any failure to act specific use by Tenant that is not covered by the Lease;
5.2.6 any changes in the Construction Drawings and/or the Tenant Improvements required by applicable laws if such changes are directly attributable to Tenant’s use of the Premises or Tenant's contractors’s specialized tenant improvement(s) (as determined by Landlord); or EXHIBIT “C” TXXXXX XXXXX COURT, architects, engineersLA JOLLA
5.2.7 any other acts or omissions of Tenant, or anyone else engaged by its agents, or on behalf of Tenant employees; then, notwithstanding anything to the contrary set forth in connection with the construction Lease and regardless of the Tenant Improvement Work actual date of the Substantial Completion of the Premises, the Commencement Date (as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion 1.7 of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice"Summary) advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a the date the Commencement Date would have occurred if no Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction RepresentativeDelays, with copies to follow to Tenant at the notice address as set forth in Section 1.2 of this Lease within five (5) days thereafter); providedabove, however, that if Tenant shall fail had occurred. Notwithstanding anything above to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure periodcontrary, no Tenant Delay shall be deemed apply to have occurred any delays by the City of San Diego or other governmental agency, in issuing permits beyond the period of time required to issue building permits for the purposes Tenant Improvements where the delays were not directly related to an action or inaction of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Tenant Delays. A In no event shall the Commencement Date be extended or delayed due or attributable to delays due to the fault of Tenant ("Tenant Delay” Delays"). Tenant Delays shall be defined as include, but are not limited to, delays caused by or resulting from any delay one or more of the following:
a) Tenaxx'x xailure to timely review and reasonably approve the Working Drawings or to promptly cooperate with Landlord's Architect and furnish information to Landlord for the preparation of the Preliminary Space Plans and Working Drawings;
b) Tenant's request for or use of special materials, finishes or installations which are not readily available, provided that Landlord shall notify Tenant that the particular material, finish, or installation is not readily available promptly upon Landxxxx'x xiscovery of same;
c) Change orders requested by Tenaxx;
d) Interference by Tenaxx xx by Tenaxx'x Xgents with Landxxxx'x xonstruction activities;
e) Tenant's failure to approve any other item or perform any other obligation in accordance with any by the dates specified herein or in the designConstruction Contract;
f) Tenaxx'x xequested changes in the Preliminary Space Plans, permitting Working Drawings or performance of any other plans and specifications after the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act approval thereof by Tenant or submission thereof by Tenant to Landlord;
g) Tenaxx'x xailure to approve written estimates of costs in accordance with this Work Letter; and
h) Tenaxx'x xbtaining or failure to obtain any necessary governmental approvals or permits for Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction intended use of the Premises. If the Commencement Date is delayed by any Tenant Improvement Work as set forth in this Article III (includingdelays, without limitationwhether or not within the control of Tenant, then the Commencement Date and the payment of Rent shall be accelerated by the number of days of such delay. Landlord shall give tenant written notice within a reasonable time of any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor circumstance that Landlord believes constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Samples: Lease Agreement (Tcsi Corp)
Tenant Delays. A The following items shall be referred to individually as, and shall constitute for all purposes of this Lease, a "Tenant Delay” shall be defined ":
(a) Tenant's failure to comply with any of the deadlines specified in this Work Agreement; or
(b) Tenant's request for changes or additions to the Tenant Improvements subsequent to the date of Landlord's approval of the CDS; or
(c) Tenant's failure to pay when due any amounts required pursuant to this Work Agreement; or
(d) The performance of any work by any person or firm employed or retained by Tenant; or
(e) Tenant's request for materials, finishes or installations which are not available as needed to meet the general contractor's schedule for Substantial Completion, but only to the extent identified by the general contractor as part of the bidding process as set forth in Section 2.4, above, or occurring in connection with a change order requested by Tenant pursuant hereto (and identified as part of the change order approval process); or
(f) Tenant's or Tenant's agent, including Tenant's contractors vendors, and Representative's interference with the general contractor's schedule; or
(g) Any delay occasioned by Tenant's Early Work. In the event of any delay in the design, permitting or performance construction of the Base Building Work to the extent that such delay is actually or any Tenant Improvements therein caused by Tenant Delay, the same shall not result in any act or, where there is a duty to act under delay in the Commencement Date of this Lease, any failure to act by even if the Substantial Completion of the Tenant or Improvements was delayed beyond the Commencement Date set forth in Article 1 of the Lease, and in such event, the Commencement Date shall be the date Tenant's contractorsArchitect reasonably estimates that the Tenant Improvements would have been Substantially Completed but for such Tenant Delay (provided that if Landlord disputes the date so estimated by Tenant's Architect, architectsand such dispute is not voluntarily resolved by Landlord and Tenant within ten (10) business days after Landlord's notifies Tenant of the existence of such dispute, engineers, or anyone else engaged by or the parties agree to submit the matter in controversy to binding arbitration (on behalf of Tenant an expedited basis) in connection accordance with the commercial arbitration rules of the American Arbitration Association. The foregoing notwithstanding, Landlord agrees that (i) the occurrence of any event or circumstance described in any of clauses (a) through (g) of this Section 6.3 which does not actually result in delay to the schedule for the planning, design or construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event Improvements shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall not be deemed a Tenant Delay unless (e.g., if an event or circumstance of the type described in any of clauses (a) through (g) of this Section 6.3 occurs at the same time as a contractor delay in construction, and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that delay reasonably attributable thereto does not extend beyond the concurrent contractor delay, the same shall not constitute a Tenant Delay is occurring to such extent). Landlord and setting forth Landlord's good faith estimate as Tenant shall each notify the other within three (3) business days after such party obtains knowledge of the occurrence of any delay attributable to the likely length other party, or to any event of such Tenant Delay; (y) of force majeure within the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 meaning of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Lease.
Appears in 1 contract
Tenant Delays. A "Tenant Delay” shall be defined as responsible for, and shall pay to Landlord, any and all costs and expenses (including lost rent) incurred by Landlord in connection with the following, or by reason of any delay in the design, permitting commencement or performance completion of Landlord's Work or in Landlord's timely delivery of any Phase of the Base Building Work to the extent that such delay is actually Premises caused by the following: (i) the failure of Tenant to submit the Space Plans, Final Space Plans, Working Drawings or Final Plans to Landlord by the dates or within the time periods set forth in Paragraph 1.a. above, or the failure of the Space Plans, Final Space Plans, Working Drawings or Final Plans to meet the applicable requirements of Paragraph l.a. above, (ii) any act orchanges in the Space Plans, where there is a duty Working Drawings or Final Plans, after submission thereof to act under this LeaseLandlord (including any costs or delays resulting from proposed changes that are not ultimately made), (iii) any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with to promptly respond to inquiries regarding the construction of the Tenant Improvement Improvements or Landlord's Work as set forth in this Article III or to promptly grant Tenant's approval of materials or finishes for the Tenant Improvements or Landlord's Work, (iv) any failure by Tenant to timely pay any amounts due from Tenant hereunder (it being acknowledged that if Tenant falls to make or otherwise delays making such payments, Landlord may stop Landlord's Work rather than incur costs which Tenant is obligated to fund but has not yet done so and any delay from such a work stoppage will be a Tenant Delay), (v) any failure of Tenant's Contractor to promptly commence and diligently pursue to completion the Tenant Improvements after Landlord's delivery of the Premises to Tenant, (vi) any interference by Tenant with the construction of Landlord's Work, or (vii) any other delay requested or caused by Tenant, including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work delay caused by Tenant’s use 's early entry into any portion of non-union labor constitute the Premises pursuant to Section 2.d. of the Lease. Each of the foregoing is referred to herein and in the Lease as a "Tenant Delay". Landlord shall notify Tenant in writing of any Tenant Delay hereunder. Notwithstanding (identifying the foregoing, no event shall be deemed a nature of the Tenant Delay unless and until Delay) as soon as reasonably practicable after Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length becomes actually aware of such Tenant Delay; (y) , together with Landlord's then good faith estimate of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate probable duration of such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Tenant Delays. A For purposes of this Agreement and the Lease, the following events shall constitute delays caused by Tenant (a "Tenant Delay” shall be defined as any delay in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or "):
A. Tenant's contractorsrequest for Change Orders whether or not any such Change Orders are actually performed; or
B. Tenant's requirements for materials, architectscomponents, engineers, finishes or anyone else engaged by or on behalf improvements which are not available in a commercially reasonable time given the anticipated date of Tenant in connection with the construction Substantial Completion of the Tenant Improvement Work as Improvements; or
C. Tenant's delay in reviewing, revising or approving plans and specifications beyond the periods set forth in this Article III (includingAgreement; or
D. Tenant's delay in providing information critical to the normal progression of the Tenant Improvements. Tenant shall provide such information as soon as reasonably possible, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, but in no event shall any delays longer than the time period specified herein, or if no time period is specified, three (3) business days after receipt of such request for information from the Landlord; or
E. Tenant's delay in the completion making Over-Allowance or Change Order payments to Landlord; or
F. Tenant's interference with construction activities during Tenant's early occupancy of the Base Building Work caused by Tenant’s use Premises. If any of non-union labor constitute a the foregoing Tenant Delay hereunder. Notwithstanding the foregoingDelays occur, no event then Landlord shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth cause Landlord's good faith estimate as Architect to certify the likely length of such Tenant Delay; (y) of the basis date on which Landlord has determined that a the Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate Improvements would have been Substantially Completed but for such Tenant Delay. No event shall be deemed A Tenant Delay, in and of itself, is not to be construed as default under this Agreement or a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt breach of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter)Lease; provided, however, that if Tenant shall fail to eliminate the Tenant's delay in making a payment within the aforesaid 48-hour periodtime period specified in paragraph 4 of this Agreement will constitute a breach of the Lease which, then after notice by Landlord with Tenant's rights to cure under Article 16 of the 48-hour cure period Lease, shall be included entitle Landlord to exercise all remedies set forth in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Lease.
Appears in 1 contract
Tenant Delays. A "Tenant Delay” In no event shall be defined as any delay in the design, permitting or performance Commencement Date of the Base Building Work Lease be extended or delayed due or attributable to delays due to the extent that such delay is actually fault of Tenant (“Tenant Delays”). Tenant Delays shall include, but are not limited to, delays caused by or resulting from any act or, where there is a duty to act under this Lease, any one or more of the following:
a) Tenant’s failure to act timely review and reasonably approve the Working Drawings or to furnish information to Landlord or Landlord’s Architect for the preparation by Landlord or Landlord’s Architect of the Working Drawings;
b) Tenant’s request for or use of special materials, finishes or installations which are not readily available, provided that Landlord shall notify Tenant in writing that the particular material, finish, or installation is not readily available promptly upon Landlord’s discovery of same;
c) Change orders requested by Tenant;
d) Interference by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s Agents with Landlord’s construction activities;
e) Tenant’s failure to approve any other item or perform any other obligation in accordance with and by the dates, if any, specified herein or in the Construction Contract;
f) Tenant’s requested changes in the Preliminary Space Plans, Working Drawings or any other plans and specifications after the approval thereof by Tenant or submission thereof by Tenant to Landlord;
g) Tenant’s failure to approve written estimates of costs in accordance with this Work Letter; and
h) Tenant’s obtaining or failure to obtain any necessary governmental approvals or permits for Tenant’s intended use of non-union labor constitute a Tenant Delay hereunderthe Premises, other than building permits that Landlord shall obtain. Notwithstanding If (but for the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) operation of the basis on which Landlord has determined that a Tenant Delay is occurring; and (zforegoing provisions of this paragraph 7) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt Commencement Date of the Lease is delayed by any Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representativedelays, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay whether or not within the aforesaid 48-hour periodcontrol of Tenant, then the 48-hour cure period Commencement Date of the Lease and the payment of Rent shall be included in accelerated by the period number of time charged to Tenant pursuant to days of such Tenant Delay Notice delay (it being understood and agreed that if Tenant i.e., the Commencement Date shall in fact eliminate the Tenant Delay within the 48-hour cure periodoccur, no Tenant Delay shall or be deemed to have occurred for the purposes of this Article III). In additionoccurred, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or on the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, that it would have occurred but for the occurrence of such Tenant delays). Landlord shall give Tenant written notice within a reasonable time of any circumstance that Landlord believes constitutes a Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)Delay.
Appears in 1 contract
Tenant Delays. A "In the event of any dispute between Landlord and Tenant Delay” with respect to the number of days attributable to any Force Majeure Delays or Tenant Delays, the dispute shall be defined resolved by the Space Architect whose decision shall be conclusive and binding on both Landlord and Tenant. If any Force Majeure Delays (limited as any described above) or Tenant Delays cause a delay in Substantial Completion of Landlord's Work then the designtime for completion of such Landlord's Work shall correspondingly increase by the amount of time reasonably attributable to such Completion Delay, permitting or performance such that Landlord would have such additional time within which to achieve Substantial Completion of Landlord's Work. If Landlord fails to deliver to Tenant actual possession of the Base Leased Premises by June 15, 2001, as extended for Force Majeure Delays and Tenant Delays, then Landlord shall provide Tenant one (1) day's abatement of both Minimum Annual Rental and Annual Rental Adjustment, for each day of delay after June 15, 2001 that Landlord fails to deliver the Leased Premises to Tenant with Substantial Completion of both the Building Improvements and Landlord's Work to having been achieved. The abatement period shall begin as of the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any delayed Commencement Date. Such abatement shall be Tenant's only remedy for Landlord's failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with deliver the construction of the Tenant Improvement Work Leased Premises as set forth in this Article III above, and Tenant shall not be entitled to damages (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(Cconsequential or otherwise) above) and disclosed to Tenant as hereinafter provideda result thereof. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such request each Tenant Delay. No event shall be deemed change order in writing and note therein whether the change order is to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand priced prior to Tenant's Construction Representativeformal request for the change order, with copies or whether the change order is a formal request for a change order to follow to occur regardless of the price associated therewith. Upon submission of a change order, Landlord shall notify Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) business days thereafter); providedof Landlord's receipt thereof, howeverof the time period in which the change order can be completed, and whether or not Landlord reasonably believes such change order results in any delays or any savings of time to the Substantial Completion of Landlord's Work. To the extent that if a change order would increase the cost of the Landlord's Work above the Allowance, then Tenant shall fail pay for such work at the time of and as a condition to eliminate the delay approval of the change order. Landlord must notify Tenant within five (5) business days of the aforesaid 48-hour period, then date Landlord reasonably learns of the 48-hour cure beginning of any Tenant Delay period shall be included in and must give Tenant a reasonable estimate of the period of time charged the delay. If Landlord falls to give Tenant pursuant such notice, with respect to such any Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate Delay, the Tenant Delay within the 48-hour cure period, no applicable Tenant Delay shall be deemed deemed, for all purposes under this Lease, not to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)occurred.
Appears in 1 contract
Tenant Delays. A "Tenant Delay” If there shall be defined a delay or there are delays in the Substantial Completion of the Expansion Space (as a direct, indirect, partial, or total result of any of the following (collectively, “Tenant Delays”):
5.2.1 Tenant’s failure to timely approve any matter requiring Tenant’s approval, including the Cost Proposal and/or Tenant’s failure to timely perform any other obligation or act required of Tenant hereunder;
5.2.2 a breach by Tenant of the terms of this Work Letter Agreement or the Lease (as modified by the First Amendment);
5.2.3 Tenant’s request for changes in the Construction Drawings only to the extent such changes cause a delay in the designtimelines;
5.2.4 Tenant’s requirement for materials, permitting components, finishes or performance improvements which are not available in a reasonable time (based upon the April 1, 2009 anticipated date of the Base Building Work Expansion Commencement Date) or which are different from, or not included in, the Specifications. In the event that items are not available, Landlord shall provide notice to Tenant of such unavailability and give Tenant the ability to select alternative items;
5.2.5 changes to the Base, Shell and Core required by the Approved Working Drawings only to the extent required by a specific use by Tenant that is not covered by the Lease;
5.2.6 any changes in the Construction Drawings and/or the Tenant Improvements required by applicable laws if such delay is actually caused changes are directly attributable to Tenant’s use of the Expansion Space or Tenant’s specialized tenant improvement(s) (as determined by any act or, where there is a duty to act under this Lease, any Landlord);
5.2.7 Tenant’s failure to act by Tenant comply with the Time Deadline; or
5.2.8 any other acts or omissions of Tenant's contractors, architects, engineers, or anyone else engaged by its agents, or on behalf of Tenant employees; then, notwithstanding anything to the contrary set forth in connection with the construction Lease and regardless of the Tenant Improvement Work actual date of the Substantial Completion of the Expansion Space, the Expansion Commencement Date (as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion 2.2 of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice"First Amendment) advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a the date the Expansion Commencement Date would have occurred if no Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction RepresentativeDelays, with copies to follow to Tenant at the notice address as set forth in Section 1.2 of this Lease within five (5) days thereafter); providedabove, however, that if Tenant shall fail had occurred. Notwithstanding anything above to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure periodcontrary, no Tenant Delay shall be deemed apply to have occurred any delays by the City of San Diego or other governmental agency, in issuing permits beyond the period of time required to issue building permits for the purposes Tenant Improvements where the delays were not directly related to an action or inactions of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Samples: Lease (Orexigen Therapeutics, Inc.)
Tenant Delays. A "Tenant Delay” shall be defined as responsible for, and shall pay to Landlord, any and all costs and expenses (including lost rent) incurred by Landlord in connection with the following, or by reason of any delay in the design, permitting commencement or performance completion of the Base Building Work to the extent that such delay is actually Tenant Improvements caused by any act orthe following: (i) the failure of Tenant to submit the Final Space Plan to Landlord by the date set forth in Paragraph 4.a. above, where there is a duty to act under this Lease, any (ii) Tenant's failure to act by Tenant approve or disapprove the budget within the time required in Paragraph 4.e. above, or Tenant's contractorsrequest for any revision to the budget, architects, engineers, or anyone else engaged (iii) any changes requested by or on behalf of Tenant in connection the Final Space Plans, Working Drawings or Final Plans (including any such change that is a result of a revision of the budget, and including any cost or delay resulting from proposed changes that are not ultimately made), (iv) any failure by Tenant to timely pay any amounts due from Tenant hereunder (it being acknowledged that if Tenant fails to make or otherwise delays making such payments, Landlord may stop work on the Tenant Improvements rather than incur costs which Tenant is obligated to fund but has not yet done so and any delay from such a work stoppage will be a Tenant Delay), (v) any delay by Tenant in responding to inquiries regarding the construction of the Tenant Improvements or Landlord's Work or in granting Tenant's approval or disapproval of materials or finishes for the Tenant Improvements or Landlord's Work, (vi) the inclusion in the Tenant 5 Improvements of any so-called "long-lead" materials (such as fabrics, panelling, tiling, carpeting, light fixtures, HVAC equipment or other items that must be imported or are of unusual character or limited availability), (vii) any interference by Tenant with the construction of the Tenant Improvement Work as set forth in this Article III Improvements by Landlord or Landlord's Work, or (including, without limitation, viii) any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work other delay requested or caused by Tenant’s use . Each of non-union labor constitute the foregoing is referred to herein and in this Lease as a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay NoticeDelay") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Tenant Delays. A For purposes of this Work Letter, "Tenant Delay” shall be defined as Delays" means any ------------- delay in the design, permitting or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act by Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Tenant Improvements resulting from any or all of the following: (a) Tenant's failure to timely perform any of its obligations pursuant to this Work caused Letter, including any failure to complete, on or before the due date therefor, any action item which is Tenant's responsibility pursuant to the Work Schedule delivered by Landlord to Tenant pursuant to this Work Letter provided Landlord notifies Tenant in writing within a reasonable time that Tenant’s use 's failure to act will delay the completion of non-union labor the Tenant Improvements and provided that such delay is due to reasons other than a Landlord delay; (b) Tenant's changes to Space Plans or Final Plans after Landlord's approval thereof; (c) in the delivery, installation or completion of Tenant's requested materials, finishes, or installations, provided, however, Landlord will request in the bid instructions that the Contractor notify Landlord of any long lead items and if Landlord is made aware of any such items, Landlord will notify Tenant of same and in such event, Tenant shall have five (5) business days to request another material, finish or installation to the extent such new request will reduce the delay (it being agreed that any such substitution made within such five (5) business day period shall not constitute a Tenant Delay hereunder. Notwithstanding if the foregoing, no event shall be deemed substituted item does not cause a delay and Landlord will reasonably inform the Tenant Delay unless and until Landlord has given of the applicable delivery times for any such substituted item in order for Tenant written notice (to have the "Tenant Delay Notice") advising Tenant: (x) option of substituting such items that may cause a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delaydelay); (yd) any delay of Tenant in making payment to Landlord for Tenant's share of the basis on which Landlord has determined that a Tenant Delay is occurringWork Cost; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (iie) subject any other act, delay or failure to the limitations of subsection (D) belowact caused directly or indirectly by Tenant, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement employees, agents, architects, contractors, independent contractors, consultants and/or any other person performing or required to perform services on behalf of the Term Tenant, including without limitation, delay, action or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Workinaction by Space Planner, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed acknowledged by Tenant that Tenant has selected such party to provide services pursuant to this Work Letter. These items will only amount to Tenant Delays if such events actually delay the foregoing shall not be construed so as Commencement Date of this Lease. Landlord agrees to relieve Landlord of its obligation use reasonable efforts to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result notify Tenant of Tenant Delays).
Appears in 1 contract
Samples: Office Lease (Sm&a Corp)
Tenant Delays. A "Tenant Delay” shall acknowledges that that substantial time will be defined required on its part to provide complete information concerning its requirements to the architect and engineers for the Relocation Premises Work, that Tenant must make timely decisions as any and when requested hereunder, that time is of the essence to Landlord in causing the Relocation Commencement Date to occur as early as possible, and that Tenant will cooperate with Landlord to achieve the earliest possible Relocation Commencement Date. Any delay in the designcommencement or in the performance of the Relocation Premises Work that actually occurs as a result of any of the following is referred to herein as a “Tenant Delay”:
(i) any failure by Tenant to timely respond to requests for information necessary to complete the preparation of the Construction Documents or to carry out the Relocation Premises Work within three (3) Business Days;
(ii) any failure by Tenant timely to approve a substitute for any materials, permitting equipment, designs, processes, or products shown on the Construction Documents that are not readily available to Landlord’s contractor to acquire in a timely manner and incorporate into the Relocation Premises Work in the ordinary course without delay,
(iii) any Relocation Work Change Order causing a delay in the commencement or performance of the Base Building Relocation Premises Work, whether or not such requested Relocation Work to the extent that such delay Change Order is actually caused by implemented,
(iv) any act or, where there is a duty failure of Tenant to act under this Leasein a timely manner as required hereunder on any construction-related question or matter,
(v) any request by Tenant that Landlord delay the commencement of, or delay or suspend the performance of, any failure element of the Relocation Premises Work (it being agreed that Landlord is not required to act comply with such request and may decline to comply therewith in its sole discretion), or
(vi) any delay due to any interference or damage caused by Tenant or any Tenant Party, (including without limitation any equipment vendors) arising from Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf ’s entry into the Relocation Premises under Paragraph B.7 above. For each day of Tenant in connection with Delay, the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event “Substantial Completion Date” shall be deemed to be a Tenant Delay unless one day earlier than the actual date thereof, and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Relocation Commencement Date and Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the ’s obligation to pay Annual Fixed Base Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion and additional charges shall be accelerated accordingly under Paragraph 1 of the Base Building Work, as applicable, shall First Amendment. Upgrade common area and restrooms on the thirteenth (13th) floor to be deemed of equal quality to have occurred as of those on the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment twelfth (it being understood and agreed that the foregoing shall not be construed so as 12th) floor. Finishes consistent with those attached to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)this Schedule X-0.
Appears in 1 contract
Samples: Lease (resTORbio, Inc.)
Tenant Delays. A "Tenant Delay” shall be defined as responsible for, and shall pay to Landlord, any and all costs and expenses (including lost rent) incurred by Landlord in connection with any delay in the designcommencement or completion of any Tenant Improvements and any increase in the cost of Tenant Improvements caused by (i) Tenant's failure to submit or resubmit plans or construction documents by the dates or within the time periods set forth in Paragraph 4.a. above or to have approved Plans completed by the Final Plan Date (as extended by any delay by Landlord in responding to plans within the periods set forth above), permitting (ii) any Changes requested by Tenant in the Tenant Improvements shown on the Space Plans, Working Drawings or performance Plans after submission thereof to Landlord (including any cost or delay resulting from proposed Changes that are not ultimately made) (except as otherwise provided in Paragraph 4.d.ii. above) or Tenant's disapproval of any aspect of the Base Building Work Working Drawings except to the extent that such delay is actually caused by any act oraspect does not properly reflect the Final Space Plans, where there is a duty to act under this Lease, (iii) any failure to act by Tenant to timely pay any amounts due from Tenant hereunder, including any additional costs resulting from any Change (it being acknowledged that if Tenant fails to make or Tenantotherwise delays making such payments, Landlord may stop work on the Tenant Improvements and any delay from such a work stoppage will be a Tenant Delay), (iv) if Landlord's contractorsContractor constructs the Tenant Improvements, architectsthe inclusion in the Tenant Improvements of any so-called "long lead" materials (such as fabrics, engineerspanelings, carpeting or anyone else engaged other items that must be imported or are of unusual character or limited availability), (v) any delay by or on behalf of Tenant in connection with responding to inquiries regarding the construction of the Tenant Improvement Work as Improvements or in granting Tenant's approval of materials or finishes for the Tenant Improvements, (vi) Tenant's failure to either select Landlord's Contractor pursuant to Paragraph 4.b.i. above or select a contractor pursuant to Paragraph 4.b.ii. above by the respective dates set forth in this Article III Paragraph 4.b., or (including, without limitation, vii) any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work other delay requested or caused by Tenant’s use . Each of non-union labor constitute the foregoing is referred to herein as a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay NoticeDelay." If Xxxxxxxx's Contractor constructs the Tenant Improvements, Landlord shall give Tenant notice of ") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate long lead" items as to the likely length of such Tenant Delay; (y) soon as reasonably practicable after being advised of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) delay by the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt suppliers involved, or otherwise becoming aware of the Tenant Delay Notice (which for delay or probable delay, and Xxxxxxxx's Contractor will use reasonable efforts to suggest alternative products to alleviate the purposes of determining receipt may be delivered by hand to Tenant's Construction Representativedelay, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)possible.
Appears in 1 contract
Samples: Office Lease (Ask Jeeves Inc)
Tenant Delays. A "Tenant Delay” shall be defined as responsible for, and shall pay to Landlord any and all costs and expenses incurred by Landlord in connection with any delay in Substantial Completion and any increase in the design, permitting or performance cost of the Base Building Work to the extent that such delay is actually Tenant Improvements caused by (i) any act Changes requested by Tenant in the Tenant Improvements shown on the Final Plan (including any cost or delay resulting from proposed Changes that are not ultimately made), (ii) any failure by Tenant to timely pay any amounts due from Tenant hereunder, including any additional costs resulting from any Change (it being acknowledged that if Tenant fails to make or otherwise delays making such payments, Landlord may stop work on the Tenant Improvements rather than incur costs which Tenant is obligated to fund but has not yet done so and any delay from such a work stoppage will be a Tenant Delay), (iii) the inclusion in the Tenant Improvements of any so-called "long lead" materials (such as fabrics, panellings, carpeting or other items that must be imported or are of unusual character or limited availability) which Landlord has informed Tenant, at the time Tenant selects such item(s), are long-lead items, (iv) any delay by Tenant in responding to inquiries within the time provided in this Amendment or, where there is a duty to act under this Leaseif not specified, any failure to act by Tenant or Tenant's contractorswithin commercially reasonable time periods, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with regarding the construction of the Tenant Improvement Work as set forth Improvements or in this Article III granting Tenant's approval of materials or finishes for the Tenant Improvements, or (including, without limitation, v) any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work other delay requested or proximately caused by Tenant’s use . Each of non-union labor constitute the foregoing is referred to herein as a Tenant Delay hereunder"TENANT DELAY". Notwithstanding the foregoing, no event Landlord shall be deemed a Tenant Delay unless and until Landlord has given provide Tenant written notice (promptly following the "occurrence of any Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth specifying Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)duration thereof.
Appears in 1 contract
Tenant Delays. A In no event shall the Commencement Date of the "Additional Space" be extended or delayed due or attributable to delays due to the fault of Tenant ("Tenant Delay” Delays"). Tenant Delays shall be defined as include, but are not limited to, delays caused by or resulting from any delay in the design, permitting one or performance more of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any following:
a) Tenant's failure to act timely review and reasonably approve the Working Drawings or to furnish information to Landlord or Landlord's Architect for the preparation by Landlord or Landlord's Architect of the Working Drawings;
b) Tenant's request for or use of special materials, finishes or installations which are not readily available, provided that Landlord shall notify Tenant in writing that the particular material, finish, or installation is not readily available promptly upon Landlord's discovery of same;
c) Change orders requested by Tenant;
d) Interference by Tenant or by Tenant's contractorsAgents with Landlord's construction activities;
e) Tenant's failure to approve any other item or perform any other obligation in accordance with and by the dates specified herein or in the Construction Contract;
f) Tenant's requested changes in the Preliminary Space Plans, architects, engineers, Working Drawings or anyone else engaged any other plans and specifications after the approval thereof by Tenant or on behalf submission thereof by Tenant to Landlord;
g) Tenant's failure to approve written estimates of Tenant costs in connection accordance with the construction this Work Letter; and
h) Tenant's obtaining or failure to obtain any necessary governmental approvals or permits for Tenant's intended use of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from Premises. If the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion Commencement Date of the Base Building Work caused "Additional Space" is delayed by any Tenant delays, whether or not within the control of Tenant’s use , then the Commencement Date of non-union labor the "Additional Space" and the payment of rent shall be accelerated by the number of days of such delay. Landlord shall give Tenant written notice within a reasonable time of any circumstance that Landlord believes constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays).
Appears in 1 contract
Samples: Lease Agreement (Virage Inc)
Tenant Delays. A For any PHASE PREMISES (where a PHASE PREMISES is either PHASE I, PHASE II AND PHASE III, each being separate and distinct). The following shall be deemed "Tenant Delay” shall be defined as Delays": (i) Tenant's failure to deliver the Pricing Plans described above within the time periods required above, (ii) the failure of Landlord to receive Final PHASE I, PHASE II AND PHASE III Construction Documents BEFORE THE TIME PERIODS REQUIRED ABOVE, (iii) Above-Standard Suite Improvements requested by Tenant, (iv) any delay changes or modifications in the design, permitting or performance work requested by Tenant following approval of the Base Building Work to Final Construction Documents, (v) Tenant's early entry onto the extent that such Premises as described in Paragraph 3 hereof, or (vi) any other delay is actually requested or caused by any act orTenant (collectively, where there is a duty to act under this Lease, any failure to act by "Tenant or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter providedDelays"). Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred unless and until Landlord gives written notice to Tenant specifying the action, inaction or occurrence constituting the Tenant Delay and the number of days of such Tenant Delay ("Tenant Delay Notice"). Notwithstanding anything to the contrary, Landlord's obligation to deliver the Premises on the Scheduled Completion Date for the purposes PHASE I Premises, the Scheduled Completion Date for the PHASE II Premises, and the Scheduled Completion Date for the PHASE III Premises, may at Landlord's election be extended by one (1) day for every one (1) day of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement If any Completion Date is delayed because of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined Tenant shall not be liable for any damage thereby including costs and expenses incurred by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)connection with such delay.
Appears in 1 contract
Samples: Sublease (Nextcard Inc)
Tenant Delays. A "If Substantial Completion of the Tenant Improvements is actually delayed as a result of any of the following (each, a “Tenant Delay” shall be defined as any delay ”):
(i) Tenant’s request for Additional Work or Tenant’s failure to furnish the Additional Drawings for the Additional Work, if any, in accordance with subparagraph 5 hereof, or Tenant’s failure to approve cost estimates for Additional Work within the time specified in subparagraph 5; or
(ii) Tenant’s changes in the design, permitting Tenant Improvements or Additional Work (notwithstanding Landlord’s approval of such changes); or
(iii) The performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any or failure to act perform any work or improvements in the New Space, by Tenant or any person, firm or corporation employed by Tenant's contractors, architects, engineers, ;
(iv) Any act or anyone else engaged by or on behalf omission of Tenant or its agents or representatives; or
(v) Any Default by Tenant hereunder or under the Lease beyond applicable notice and cure periods, then Tenant shall continue to pay Rent with respect to the Current Premises in connection accordance with the construction of the Tenant Improvement Work as set forth in Lease (not modified by this Article III (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) aboveAmendment) and disclosed to the New Space Commencement Date shall be the date the New Space Commencement Date would have commenced but for such Tenant as hereinafter providedDelays. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute If Landlord contends that a Tenant Delay hereunder. Notwithstanding has occurred, Landlord shall notify Tenant in writing of the foregoing, no event shall be deemed a which constitutes such Tenant Delay unless and until Landlord has given Tenant written promptly upon Landlord’s discovery of same. If such actions, inaction or circumstance described in the notice (the "Tenant Delay Notice") advising Tenant: are not cured by Tenant within one (x1) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length business day of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representativeand if such action, with copies to follow to inaction or circumstance otherwise qualify as a Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour periodDelay, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no a Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred commencing as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, Delay Notice and ending as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in of the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)date such delay ends.
Appears in 1 contract
Samples: Office Lease Agreement (Arcutis Biotherapeutics, Inc.)
Tenant Delays. A "If on the Anticipated Commencement Date Landlord is unable to deliver the Premises to Tenant Delay” shall be defined as any delay in accordance with and in the designcondition required by this Work Schedule and the Lease due to omission, permitting delay or performance of the Base Building Work to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any failure to act default by Tenant or anyone acting under or for Tenant ("Tenant delay"), then Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the construction of the Tenant Improvement Work as set forth in obligations under this Article III Lease (including, without limitation, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work caused by Tenant’s use of non-union labor constitute a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Total Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, ) shall be deemed to have occurred nonetheless commence as of the date when Anticipated Commencement Date (which shall in such Delivery Dates and/or date of substantial completion case be the Commencement Date), except that, in the event that Landlord cannot deliver possession of the Base Building WorkPremises to Tenant on the Anticipated Commencement Date because of Tenant delay, as applicablethis Lease shall be voidable at the sole option of Landlord at any time prior to Tenant's performance of such obligations or payment of the Total Rent due under this Lease; and, would have occurred but for any should Landlord so elect to void this Lease, all monies advanced by Tenant Delays, as determined to Landlord shall be retained by Landlord in as liquidated damages (the exercise parties hereto recognizing and acknowledging the difficulty of its good faith business judgment determining such damages), and thereafter the parties hereto shall have no further rights, claims, or obligations under this Lease, except for such matters which by the express terms of the Lease survive expiration or termination thereof. [DOOR SCHEDULE GRAPHIC OMITTED] Exhibit "E-1" Partition/Demo [LOGO] Loia o Budde & ASSXXXXXXX Quality Systems, Inc. ---------------- ------------------------- ------------------------------------------- CAD FILE NUMBER 5076 Winters Chapel Road 4xx Xxxxx Xxxxx 000 Tower Place 100 Atlxxxx, Xxxxxxx 00000 0000 Xxxxxxxxx Xxxx Xxxxnta, Gexxxxx 00000 00000X (it being understood 000) 000-0207 Fax 396-9597 ---------------- DRAWN CMM ---------------- DATE
11/1 00 ---------------- DRAWING NUMBER A1 1 OF 4 ---------------- [UTILITY LEGEND GRAPHIC OMITTED] Exhibit "E-1" Utility Plan [LOGO] Loia o Budde & ASSXXXXXXX Quality Systems, Inc. ---------------- ------------------------- ------------------------------------------- CAD FILE NUMBER 5076 Winters Chapel Road 4xx Xxxxx Xxxxx 000 Tower Place 100 Atlxxxx, Xxxxxxx 00000 0000 Xxxxxxxxx Xxxx Xxxxnta, Gexxxxx 00000 00000X (000) 000-0207 Fax 396-9597 ---------------- DRAWN CMM ---------------- DATE
11/1 00 ---------------- DRAWING NUMBER A2 2 OF 4 ---------------- [CEILING PRICING NOTES GRAPHIC OMITTED] Exhibit "E-1" Ceiling Plan [LOGO] Loia o Budde & ASSXXXXXXX Quality Systems, Inc. ---------------- ------------------------- ------------------------------------------- CAD FILE NUMBER 5076 WInters Chapel Road 4xx Xxxxx Xxxxx 000 Tower Place 100 Atlxxxx, Xxxxxxx 00000 0000 Xxxxxxxxx Xxxx Xxxxnta, Gexxxxx 00000 00000X (000) 000-0207 Fax 396-9597 ---------------- DRAWN CMM ---------------- DATE
11/1 00 ---------------- DRAWING NUMBER A3 3 OF 4 ---------------- [FINISH SCHEDULE GRAPHIC OMITTED] Exhibit "E-1" Finish Plan [LOGO] Loia o Budde & ASSXXXXXXX Quality Systems, Inc. ---------------- ------------------------- ------------------------------------------- CAD FILE NUMBER 5076 WInters Chapel Road 4xx Xxxxx Xxxxx 000 Tower Place 100 Atlxxxx, Xxxxxxx 00000 0000 Xxxxxxxxx Xxxx Xxxxnta, Gexxxxx 00000 00000X (000) 000-0207 Fax 396-9597 ---------------- DRAWN CMM ---------------- DATE
11/1 00 ---------------- DRAWING NUMBER A3 3 OF 4 ---------------- EXHIBIT "F" RULES AND REGULATIONS
1. The sidewalks, and agreed that public portions of the foregoing Building, such as entrances, passages, courts, elevators, vestibules, stairways, corridors or halls shall not be construed so as obstructed or encumbered by Tenant or used for any purpose other than ingress and egress to relieve and from the Premises.
2. No awnings or other projections shall be attached to the outside wails of the Building. No curtains, blinds, shades, louvered openings or screens shall be attached to or hung in, or used in connection with, any window or door of the Premises, without the prior written consent of Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited, inscribed, painted or affixed by Tenant on any part of the outside of the Premises or Building or on corridor walls. Signs on entrance door or doors shall conform to building standard signs, samples of which are on display in Landlord's rental office. Signs on doors shall, at Tenant's expense, be inscribed, painted or affixed for each tenant by sign makers approved by Landlord. In the event of the violation of the foregoing by Tenant, Landlord of its obligation may remove same without any liability, and may charge the expense incurred by such removal to actually complete Tenant.
4. The sashes, sash doors, skylights, windows, heating, ventilating and air conditioning vents and doors that reflect or admit light and air into the Base halls, passageways or other public places in the Building Workshall not be covered or obstructed by Tenant, notwithstanding nor shall any bottles, parcels, or other articles be placed on the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)window sills.
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Tenant Delays. A "Tenant Delay” shall be defined as responsible for any delay in the design, permitting commencement or performance completion of any Tenant Improvements and any increase in the cost of Tenant Improvements caused by (i) Tenant’s failure to respond to Landlord’s request for information required for the completion of the Base Building Work construction plans and specifications within three (3) Business Days of Landlord’s request, as required in Paragraph 4.a. above, (ii) Tenant’s failure to provide its written approval or disapproval of the extent that such delay is actually caused construction plans and specifications (or any revisions thereto) within three (3) Business Days of Tenant’s receipt thereof, (iii) Tenant’s failure to provide its approval or disapproval regarding the budget within the time periods specified in Paragraph 4.b. above, (iv) any Changes requested by any act Tenant in the Tenant Approved Plans or, where there is a duty to act under this Leaseonce approved, the Final Plans (including any cost or delay resulting from proposed changes that are not ultimately made), (v) any failure to act by Tenant to timely pay any amounts due from Tenant hereunder, including any additional costs resulting from any Change (it being acknowledged that if Tenant fails to make or Tenant's contractorsotherwise delays making such payments, architectsLandlord may stop work on the Tenant Improvements rather than incur costs which Tenant is obligated to fund but has not yet funded and any delay from such a work stoppage will be a Tenant Delay), engineers(vi) the inclusion in the Tenant Improvements of any so-called “long lead” materials (such as fabrics, paneling, carpeting or other items that are not readily available within industry standard lead times (e.g., custom made items that require time to procure beyond that customarily required for standard items, or anyone else engaged items that are currently out of stock and will require extra time to back order) and for which suitable substitutes exist), (vii) Tenant’s failure to respond within three (3) Business Days to reasonable inquiries by Landlord or on behalf of Tenant in connection with Contractor regarding the construction of the Tenant Improvement Work as set forth in this Article III Improvements, or (including, without limitation, viii) any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays in the completion of the Base Building Work other delay requested or caused by Tenant’s use . Each of non-union labor constitute the foregoing is referred to herein as a Tenant Delay hereunder. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such “Tenant Delay; (y) of the basis on which Landlord has determined that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be included in the period of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the obligation to pay Annual Fixed Rent or Additional Rent. The Delivery Dates and/or the date of substantial completion of the Base Building Work, as applicable, shall be deemed to have occurred as of the date when such Delivery Dates and/or date of substantial completion of the Base Building Work, as applicable, would have occurred but for any Tenant Delays, as determined by Landlord in the exercise of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have occurred prior to actual completion as the result of Tenant Delays)”.
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Samples: Office Lease (Zscaler, Inc.)
Tenant Delays. A "Landlord and Tenant Delay” shall acknowledge that the date on which Tenant’s obligation to pay Rent under the Lease would otherwise commence may be defined as any delayed because of a delay in the design, permitting or performance completion of construction of the Base Building Work Landlord Interior Improvements due to the extent that such delay is actually caused by any act or, where there is a duty to act under this Lease, any (i) Tenant’s failure to approve plans and specifications for the Landlord Interior Improvements by the due date set in the Performance Schedule, (ii) Tenant’s failure to give any necessary approval or consent by the dates set forth herein (unless Tenant has reasonable ground for withholding such consent or approval and has conveyed the same in writing to Landlord), (iii) any act by Tenant which interferes with or Tenant's contractors, architects, engineers, or anyone else engaged by or on behalf of Tenant in connection with the delays construction of the Tenant Improvement Work as set forth in this Article III Landlord Interior Improvements, including Tenant’s entry to install trade fixtures pursuant to Lease Paragraph 2.C (includingEarly Entry), without limitation(iv) any changes, any delays resulting from the Approved Tenant Finishes under Section 3.l(C) above) and disclosed to Tenant as hereinafter provided. Notwithstanding the foregoing, in no event shall any delays modifications and/or additions in the completion Cold Shell Improvements and/or Landlord Interior Improvements requested by Tenant and approved by Landlord, or (v) special materials or equipment ordered or specified by Tenant that cannot be obtained by Landlord at normal cost within a reasonable period of the Base Building Work caused by Tenant’s use time because of non-union labor constitute a Tenant Delay hereunderlimited availability. Notwithstanding the foregoing, no event shall be deemed a Tenant Delay unless and until Landlord has given Tenant written notice With respect to clause (the "Tenant Delay Notice") advising Tenant: (x) that a Tenant Delay is occurring and setting forth Landlord's good faith estimate as to the likely length of such Tenant Delay; (yv) of the basis on which preceding sentence, as a condition to asserting any delay by Tenant thereunder, Landlord has determined must inform Tenant as soon as possible that a Tenant Delay is occurring; and (z) the actions which Landlord believes that Tenant must take to eliminate such Tenant Delay. No event shall be deemed to be a Tenant Delay unless and until Tenant has failed to rectify the situation causing the Tenant Delay within forty-eight (48) hours after Tenant's receipt of the Tenant Delay Notice (which for the purposes of determining receipt may be delivered by hand to Tenant's Construction Representative, with copies to follow to Tenant at the notice address set forth in Section 1.2 of this Lease within five (5) days thereafter); provided, however, that if Tenant shall fail to eliminate the delay within the aforesaid 48-hour period, then the 48-hour cure period shall be special materials or equipment are included in the period Landlord Interior Improvements and the expected delay associated therewith. It is the intent of time charged to Tenant pursuant to such Tenant Delay Notice (it being understood and agreed the parties hereto that if Tenant shall in fact eliminate the Tenant Delay within the 48-hour cure period, no Tenant Delay shall be deemed to have occurred for the purposes of this Article III). In addition, any delay to the extent caused by (i) Landlord Delay or (ii) subject to the limitations of subsection (D) below, Tenant's Force Majeure (as defined in said subsection (D)) shall not constitute Tenant Delay. Tenant covenants that no Tenant Delay shall delay commencement of the Term or the Tenant’s obligation to pay Annual Fixed Rent under the Lease not be delayed by any of such causes or Additional Rent. The Delivery Dates and/or by any other act of Tenant and, in the date of substantial completion of event it is so delayed, Tenant’s obligation to pay Rent under the Base Building Work, as applicable, Lease shall be deemed to have occurred commence as of the date when such Delivery Dates and/or date it would otherwise have commenced absent delay caused by Tenant, provided that within a reasonable period of substantial completion time after learning of the Base Building Workoccurrence of the cause of any such delay, as applicable, would have occurred but for any Landlord notifies Tenant Delays, as determined by Landlord in the exercise writing of its good faith business judgment (it being understood and agreed that the foregoing shall not be construed so as to relieve Landlord of its obligation to actually complete the Base Building Work, notwithstanding the fact that substantial completion may have been deemed to have such delay has occurred prior to actual completion as and the result known or anticipated extent of Tenant Delays)any such delay.
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