TI Plans. Tenant shall be solely responsible for the timely preparation and submission to Landlord of the initial space programming requirements for the Premises in sufficient, commercially reasonable detail (exclusive of finishes) to allow the architect hired and mutually agreed upon by Landlord and Txxxxx (the “Architect”) to prepare the Design Development Drawings for Landlord’s Work, as that term is defined below (such requirements, the “Program”). The Program shall include the following items of work in Landlord’s Work: (a) removal of the internal stairway between the second and third floors in each of the two (2) existing atriums in the Building (collectively, the “Atrium”) and restoration of the affected areas of the Building; (b) the installation of shower facilities in the Premises; and/or (c) the installation of a private entry door to the Premises from the Patio (as that term is defined in Section 29.22 below). If Tenant elects to include any one or more of the foregoing items, Landlord agrees that Tenant shall have no obligation to remove, replace, or restore any such work at the end of the Term. Tenant shall respond in writing within three (3) business days to any information requests regarding the Program made by Landlord or the Architect. The Architect shall prepare and submit to Landlord and Tenant (i) the design development drawings “Design Development Drawings for Landlord’s Work”) and (ii) the final full sets of scaled and dimensioned construction documents, including architectural, electrical, mechanical, plumbing, sprinkler, life safety and other construction drawings, plans and specifications “Construction Drawings for Landlord’s Work”) (the final Construction Drawings for Landlord’s Work as approved by Landlord and Tenant pursuant to this Section 4.2 are the “TI Plans” and the foregoing plans are sometimes hereinafter referred to, collectively, as the “Construction Plans”) necessary to construct the tenant improvements in the Premises for Tenant’s occupancy, as well as the ancillary equipment to be installed by Landlord as part of Landlord’s Work to specifically serve the Premises. Landlord shall enter into a contract (the “Design Contract”) with the Architect, which term may include agreements with engineers and other professionals and consultants as subconsultants to the Architect, for the preparation of the Construction Plans. The Design Contract shall provide that the Architect shall deliver to Tenant simultaneously with the delivery of same to Landlord copies of all notices and other communications given to Landlord pursuant to such contract, including, without limitation, any plans or other submissions that may require the approval of the “Owner” under any such Design Contract. Tenant acknowledges and agrees that (i) Landlord will enter into the Design Contract solely as an accommodation to Tenant, and as Tenant’s agent, (ii) Tenant agrees to indemnify Landlord against any liability under the Design Contract that does not directly result from the negligence or willful misconduct of Landlord or its employees, (iii) Tenant shall be solely responsible for all decisions and action taken by Landlord as the “Owner” under any Design Contract except to the extent that Landlord takes any such decision or action without the written consent of Tenant thereto, (iv) Landlord shall in no event be responsible for any delay that would otherwise constitute a Tenant Delay (except to the extent the same directly results from the failure of Landlord to act timely), and any such delay shall constitute a Tenant Delay hereunder notwithstanding that Landlord is the party legally responsible for acting as the “Owner” under any such Design Contract, (v) no approval by Landlord under the Design Contract, of any plans, specifications, change orders, or other matter under the Design Contract shall constitute Landlord’s approval thereof under this Lease, it being understood and agreed that Lxxxxxxx’s approval of all such matters hereunder shall be governed solely by the provisions of this Lease, without any regard for the fact that Landlord is a party to the Design Contract, (vi) the fact that Landlord is a party to the Design Contract shall in no way relieve Tenant of any of its obligations under this
Appears in 1 contract
TI Plans. Tenant shall retain an architect reasonably approved by Landlord (the “TI Architect”) to design the tenant improvements necessary for Tenant’s particular use and occupancy of the Premises in accordance with the program attached as Schedule 5 and items identified as “by Tenant” on the allocation of responsibility attached as Schedule 2, including the TI by Landlord. Landlord acknowledges that it has approved the use of DGA as the TI Architect. Tenant shall cause the TI Architect to prepare, and Landlord shall approve, schematic plans, design development plans, and 100% construction document plans (the “TI Plans”), in each case fully coordinated with the Approved Core and Shell Plans, all in accordance with the milestone dates set forth on Schedule 4, subject to Force Majeure and Landlord Delays (as defined below). The TI Plans shall provide for a minimum investment equal to the TI Allowance across the entire Premises in accordance with the Approved Budget (as defined below). All material and equipment furnished by Tenant or its contractors as the Tenant Improvements shall be new or “like new;” and the quality of the Tenant Improvements shall be of a nature and character not less than a first-class standard for life sciences facilities. Any engineers used by Tenant or Tenant’s TI Architect in the design of the Tenant Improvements shall be subject to Landlord’s reasonable consent, Landlord acknowledging that the engineers referenced in Section 4.2 above, are deemed approved. Even if any such architect or engineers may have been otherwise engaged by Landlord or Xxxxxxxx’s affiliates in connection with the Landlord’s Construction Work or any other property, Tenant shall be solely responsible for the timely preparation liabilities and submission expenses of all architectural and engineering services relating to Landlord the Tenant Improvements (subject to reimbursement from the TI Allowance as provided below) and for the adequacy and completeness of the initial space programming requirements for the Premises in sufficient, commercially reasonable detail (exclusive of finishes) TI Plans submitted to allow the architect hired and mutually agreed upon by Landlord and Txxxxx (the “Architect”) to prepare the Design Development Drawings for Landlord’s Work, as that term is defined below (such requirements, the “Program”). The Program shall include the following items of work in Landlord’s Work: (a) removal of the internal stairway between the second and third floors in each of the two (2) existing atriums in the Building (collectively, the “Atrium”) and restoration of the affected areas of the Building; (b) the installation of shower facilities in the Premises; and/or (c) the installation of a private entry door to the Premises from the Patio (as that term is defined in Section 29.22 below). If Tenant elects to include any one or more of the foregoing items, Landlord agrees that Tenant shall have no obligation to remove, replace, or restore any such work at the end of the Term. Tenant shall respond in writing within three (3) business days to any information requests regarding the Program made by Landlord or the Architect. The Architect shall prepare and submit to Landlord and Tenant (i) acknowledge that the design development drawings “Design Development Drawings TI Plans shall provide for Landlord’s Work”) the division of the Tenant Improvements into two phases, as shown and (ii) further described on Schedule 5, attached, the final full sets first phase of scaled and dimensioned construction documents, including architectural, electrical, mechanical, plumbing, sprinkler, life safety and other construction drawings, plans and specifications “Construction Drawings for Landlord’s Work”) (the final Construction Drawings for Landlord’s Work which is referred to herein as approved by Landlord and Tenant pursuant to this Section 4.2 are the “TI PlansDay 1 Space” and the foregoing plans are sometimes hereinafter second phase of which is referred to, collectively, to herein as the “Construction PlansDay 2 Space” (each such phase, as applicable, being referred to herein as a “phase”) necessary to construct . The LCW by Tenant shall in all events be included within the tenant improvements first phase, regardless of whether it is located in the Premises for Tenant’s occupancy, as well as Day 1 Space or the ancillary equipment to be installed by Landlord as part of Landlord’s Work to specifically serve the Premises. Landlord shall enter into a contract (the “Design Contract”) with the Architect, which term may include agreements with engineers and other professionals and consultants as subconsultants to the Architect, for the preparation of the Construction Plans. The Design Contract shall provide that the Architect shall deliver to Tenant simultaneously with the delivery of same to Landlord copies of all notices and other communications given to Landlord pursuant to such contract, including, without limitation, any plans or other submissions that may require the approval of the “Owner” under any such Design Contract. Tenant acknowledges and agrees that (i) Landlord will enter into the Design Contract solely as an accommodation to Tenant, and as Tenant’s agent, (ii) Tenant agrees to indemnify Landlord against any liability under the Design Contract that does not directly result from the negligence or willful misconduct of Landlord or its employees, (iii) Tenant shall be solely responsible for all decisions and action taken by Landlord as the “Owner” under any Design Contract except to the extent that Landlord takes any such decision or action without the written consent of Tenant thereto, (iv) Landlord shall in no event be responsible for any delay that would otherwise constitute a Tenant Delay (except to the extent the same directly results from the failure of Landlord to act timely), and any such delay shall constitute a Tenant Delay hereunder notwithstanding that Landlord is the party legally responsible for acting as the “Owner” under any such Design Contract, (v) no approval by Landlord under the Design Contract, of any plans, specifications, change orders, or other matter under the Design Contract shall constitute Landlord’s approval thereof under this Lease, it being understood and agreed that Lxxxxxxx’s approval of all such matters hereunder shall be governed solely by the provisions of this Lease, without any regard for the fact that Landlord is a party to the Design Contract, (vi) the fact that Landlord is a party to the Design Contract shall in no way relieve Tenant of any of its obligations under thisDay 2 Space.
Appears in 1 contract
TI Plans. Tenant shall be solely responsible for the timely preparation and submission to Landlord of the initial space programming requirements for the Premises in sufficient, commercially reasonable detail (exclusive of finishes) to allow the architect hired and mutually agreed upon by Landlord and Txxxxx Xxxxxx (the “Architect”) to prepare the Design Development Drawings for Landlord’s Work, as that term is defined below (such requirements, the “Program”). The Program shall include the following items of work in Landlord’s Work: (a) removal of the internal stairway between the second and third floors in each of the two (2) existing atriums in the Building (collectively, the “Atrium”) and restoration of the affected areas of the Building; (b) the installation of shower facilities in the Premises; and/or (c) the installation of a private entry door to the Premises from the Patio (as that term is defined in Section 29.22 below). If Tenant elects to include any one or more of the foregoing items, Landlord agrees that Tenant shall have no obligation to remove, replace, or restore any such work at the end of the Term. Tenant shall respond in writing within three (3) business days to any information requests regarding the Program made by Landlord or the Architect. The Architect shall prepare and submit to Landlord and Tenant (i) the design development drawings “Design Development Drawings for Landlord’s Work”) and (ii) the final full sets of scaled and dimensioned construction documents, including architectural, electrical, mechanical, plumbing, sprinkler, life safety and other construction drawings, plans and specifications “Construction Drawings for Landlord’s Work”) (the final Construction Drawings for Landlord’s Work as approved by Landlord and Tenant pursuant to this Section 4.2 are the “TI Plans” and the foregoing plans are sometimes hereinafter referred to, collectively, as the “Construction Plans”) necessary to construct the tenant improvements in the Premises for Tenant’s occupancy, as well as the ancillary equipment to be installed by Landlord as part of Landlord’s Work to specifically serve the Premises. Landlord shall enter into a contract (the “Design Contract”) with the Architect, which term may include agreements with engineers and other professionals and consultants as subconsultants to the Architect, for the preparation of the Construction Plans. The Design Contract shall provide that the Architect shall deliver to Tenant simultaneously with the delivery of same to Landlord copies of all notices and other communications given to Landlord pursuant to such contract, including, without limitation, any plans or other submissions that may require the approval of the “Owner” under any such Design Contract. Tenant acknowledges and agrees that (i) Landlord will enter into the Design Contract solely as an accommodation to Tenant, and as Tenant’s agent, (ii) Tenant agrees to indemnify Landlord against any liability under the Design Contract that does not directly result from the negligence or willful misconduct of Landlord or its employees, (iii) Tenant shall be solely responsible for all decisions and action taken by Landlord as the “Owner” under any Design Contract except to the extent that Landlord takes any such decision or action without the written consent of Tenant thereto, (iv) Landlord shall in no event be responsible for any delay that would otherwise constitute a Tenant Delay (except to the extent the same directly results from the failure of Landlord to act timely), and any such delay shall constitute a Tenant Delay hereunder notwithstanding that Landlord is the party legally responsible for acting as the “Owner” under any such Design Contract, (v) no approval by Landlord under the Design Contract, of any plans, specifications, change orders, or other matter under the Design Contract shall constitute Landlord’s approval thereof under this Lease, it being understood and agreed that LxxxxxxxXxxxxxxx’s approval of all such matters hereunder shall be governed solely by the provisions of this Lease, without any regard for the fact that Landlord is a party to the Design Contract, (vi) the fact that Landlord is a party to the Design Contract shall in no way relieve Tenant of any of its obligations under thisthis Section 4.0, and (vii) Tenant shall, as additional rent, reimburse Landlord for all amounts payable to the Architect or any design professional under any Design Contract plus all reasonable, out of pocket costs and expenses incurred by Landlord in connection therewith, including, without limitation, all reasonable attorney’s fees incurred, not to exceed Two Thousand Dollars ($2,000) in negotiating, performing, and enforcing any Design Contract. Subject to the timely performance of Xxxxxx’s obligations hereunder, Landlord shall cause the Architect to submit Design Development Drawings for Landlord’s Work to Landlord and Tenant on or before May 15, 2015, and to submit the Construction Drawings for Landlord’s Work to Landlord and Tenant on or before June 19, 2015. All of such plans shall (i) be certified by an architect or engineer licensed in the Commonwealth of Massachusetts, (ii) comply with all applicable laws, (iii) be submitted to Landlord and Tenant no later than the dates set forth above with respect thereto and (iv) be subject to approval (in form and substance) or approved as noted by each of Landlord and Tenant (which approval shall not be unreasonably withheld, conditioned or delayed). Xxxxxxxx’s approval is solely given for the benefit of Landlord, and neither Tenant nor any third party shall have the right to rely upon Landlord’s approval of the Design Development Drawings for Landlord’s Work or the Construction Drawings for Landlord’s Work for any purpose whatsoever. Each of Landlord and Tenant shall respond to any plan submission by Architect within seven (7) business days after (i) delivery of the original submission and (ii) in the case of the Construction Drawings for Landlord’s Work, delivery of any resubmission. For the purposes of this Section 4 only, all responses required by either Landlord or Tenant may be given by email, with receipt of delivery requested to the following email addresses (or such other address(es) as the receiving party may from time to time designate by notice given pursuant to Section 27 below): if intended for Landlord: to and to , and if intended for Tenant: and . Any response by either of Landlord or Tenant shall be either an approval or an approval as noted. In the case of the Design Development Drawings for Landlord’s Work, if either or both of Landlord and Tenant approve same as noted, the Architect shall not revise the Design Development Drawings for Landlord’s Work to reflect the matters noted, but such matters shall be reflected in the Construction Drawings for Landlord’s Work. If either of Landlord or Tenant approves as noted the Construction Drawings for Landlord’s Work, Landlord shall cause the Architect to revise such drawings to reflect the matters noted; provided, however, that if Landlord disapproves the matters noted by Xxxxxx, Landlord shall forthwith notify Tenant of such disapproval, and such disapproved noted matters shall not be included in the Construction Drawings for Landlord’s Work. If Tenant disputes Xxxxxxxx’s disapproval of any such noted matters, Xxxxxx may submit such dispute to arbitration pursuant to Section 29.5 below. Except to the extent that any noted items merely correct errors or missing items (i.e., items that were included in the Design Development Drawings for Landlord’s Work (and not disapproved) but were omitted in error from the Construction Drawings for Landlord’s Work) in the Construction Drawings, if Tenant approves as noted the Construction Drawings for Landlord’s Work or any revision thereof, the time required to revise such drawings to reflect the matters noted by Tenant shall constitute Tenant Delay. If either of Landlord or Tenant fails to respond within such seven (7) business day period, the Design Development Drawings for Landlord’s Work or Construction Drawings for Landlord’s Work, as applicable, shall be deemed approved by such party. Xxxxxxxx has selected and Tenant hereby approves MJA Construction as the construction manager (“Construction Manager”) for the performance of Landlord’s Work (including pre-construction services), pursuant to a separate construction management agreement between Landlord and the Construction Manager (the “Construction Management Agreement,” which shall be a guaranteed maximum price contract) to be entered into by Landlord and Construction Manager. Upon issuance of the TI Plans, Construction Manager shall solicit on an open book basis competitive, fixed price bids for the performance of Landlord’s Work for the Premises from at least three (3) subcontractors per trade (although certain long–term lead items may be bid prior to issuance of the TI Plans, as agreed upon by Landlord and Tenant). Landlord shall review the bids with Tenant and its representatives. During the twelve (12) business day period following opening of the bids, (1) Landlord shall level the bids, and provide Tenant the opportunity to review the leveled bids and (2) Tenant shall be entitled to make value engineering changes to the TI Plans, subject to Landlord’s approval (which approval shall not be unreasonably withheld, delayed or conditioned), which value engineering changes shall be incorporated into the leveled bids. Except as otherwise expressly set forth in this Section 4.2, any time in making value engineering changes shall constitute Tenant Delay. After the completion of the leveling of the bids and the value engineering changes, Landlord and Construction Manager shall submit to Tenant the estimated cost of Landlord’s Work for the Premises which shall consist of, but not be limited to, the following: (i) estimated permit, filing, expediting, architect’s and engineering fees, (ii) reasonable legal fees (not to exceed $2,000.00) incurred by Landlord related to negotiating the form of the Design Contract(s) and the form of Construction Management Agreement for Landlord’s Work, (iii) a guaranteed maximum price for all work covered under the Construction Management Agreement and shown on TI Plans (the “GMP” which shall include all of the following costs: (a) the approved subcontractor bids, (b) Construction Manager insurance costs, (c) general conditions and general requirements, (d) a Construction Manager’s fee of three percent (3%) payable to the Construction Manager, and (e) a Construction Manager contingency (not to exceed five percent (5%), (iv) Landlord Insurance Costs, (v) third party project management fees paid by Landlord not to exceed Forty-Eight Thousand Dollars ($48,000), (vi) cost of controlled inspections, and (vii) such other out-of-pocket costs reasonably approved by Landlord and Tenant which are reasonably to be incurred by Landlord and are associated with and reasonably necessary for Landlord’s Work for the Premises (including all consultant, architect and engineering fees incurred by Landlord) (collectively, the “Final TI Cost”). In no event shall Final TI Cost include any costs incurred to remove, remediate or encapsulate any Hazardous Materials (including asbestos and lead paint) discovered in the Premises during the performance of the Landlord’s Work. Tenant shall approve or disapprove the Final TI Cost within five (5) business days from receipt thereof (which approval shall not be unreasonably withheld, conditioned or delayed and any delay by Tenant in the approval of the Final TI Cost beyond such five (5) business day period shall constitute Tenant Delay). If Tenant shall disapprove the Final TI Cost, Tenant shall have five (5) business days, before incurring Tenant Delay, to value engineer to reduce the Final TI Cost so that such amount is equal to or less than Landlord’s Contribution. Upon Tenant’s approval (or deemed approval) of the Final TI Cost (the “Approved Budget”), Landlord shall be authorized to proceed with the execution of Landlord’s Work and award the bids. Tenant shall have the right to make changes (“Changes”) from time to time in the TI Plans by approving revised plans, indicating the proposed Changes. Such Changes shall be subject to Landlord’s approval (which shall not be unreasonably withheld, delayed or conditioned, except to the extent such Changes affect the Building’s systems or the structural integrity of the Building, in which case approval shall be in Landlord’s sole discretion). Landlord shall notify Tenant of its approval or disapproval of any such proposed Change within seven (7) days following receipt of such proposed Change (or such longer period as may be reasonably necessary for Landlord to price such Change). Within such seven (7) day period (or such longer period as may be reasonably necessary for Landlord to price the Change), if Landlord approves the proposed Change, Landlord shall notify Tenant of the total amount of any net increase or decrease in the cost of Landlord’s Work, and any Tenant Delay in the completion of Landlord’s Work, resulting therefrom by presenting Tenant with a change order containing such information (a “Change Order”). Landlord’s failure to respond to such Change within the seven (7) day period (or such longer period as may be reasonably necessary for Landlord to price such Change) shall be deemed an approval of such Change, in which event, not later than three (3) business days after Xxxxxx’s subsequent written request therefor, Landlord shall give Tenant written notice (the “Change Notice”) indicating any net increase or decrease in the cost of Landlord’s Work and any Tenant Delay resulting from such Change Order. If Xxxxxx does not accept the Change Order within three (3) business days of the giving of such notice (i.e., Xxxxxxxx’s notice of cost and time changes as aforesaid when Landlord timely responds or, where the Change Order is deemed approved as aforesaid, the Change Notice), Landlord shall not make the proposed Change. If Tenant accepts the Change Order (including the adjustment in the cost of Landlord’s Work and the Tenant Delay in the completion of Landlord’s Work resulting therefrom as set forth in the Change Order), the provisions of this Article 4 shall apply to Landlord’s Work as adjusted by the approved Change Order and the Approved Budget and GMP shall be increased or decreased as a result of the Change Order (but maintaining the three percent (3%) Contingency for the GMP and Approved Budget as set forth above). Any time during which the performance of Xxxxxxxx’s Work must be postponed or delayed (in whole or in part) in order to review and approve any such Changes and determine the cost thereof as well as any additional time required to implement any such Changes shall all constitute Tenant Delay to the extent the same actually delays the prosecution of Xxxxxxxx’s Work.
Appears in 1 contract
TI Plans. Tenant shall be solely responsible for the timely preparation and submission to Landlord of the initial space programming requirements for the Premises in sufficient, commercially reasonable detail (exclusive of finishes) to allow the architect hired and mutually agreed upon by Landlord and Txxxxx (the “Architect”) to prepare the Design Development Drawings for Landlord’s Work, as that term is defined below (such requirements, the “Program”). The Program shall include the following items of work in Landlord’s Work: (a) removal of the internal stairway between the second and third floors in each of the two (2) existing atriums in the Building (collectively, the “Atrium”) and restoration of the affected areas of the Building; (b) the installation of shower facilities in the Premises; and/or (c) the installation of a private entry door to the Premises from the Patio (as that term is defined in Section 29.22 below). If Tenant elects to include any one or more of the foregoing items, Landlord agrees that Tenant shall have no obligation to remove, replace, or restore any such work at the end of the Term. Tenant shall respond in writing within three (3) business days to any information requests regarding the Program made by Landlord or the Architect. The Architect shall prepare and submit to Landlord and Tenant (i) the design development drawings “Design Development Drawings for Landlord’s Work”) and (ii) the final full sets of scaled and dimensioned construction documents, including architectural, electrical, mechanical, plumbing, sprinkler, life safety and other construction drawings, plans and specifications “Construction Drawings for Landlord’s Work”) (the final Construction Drawings for Landlord’s Work as approved by Landlord and Tenant pursuant to this Section 4.2 are the “TI Plans” and the foregoing plans are sometimes hereinafter referred to, collectively, as the “Construction Plans”) necessary to construct the tenant improvements in the Premises for Tenant’s occupancy, as well as the ancillary equipment to be installed by Landlord as part of Landlord’s Work to specifically serve the Premises. Landlord shall enter into a contract (the “Design Contract”) with the Architect, which term may include agreements with engineers and other professionals and consultants as subconsultants to the Architect, for the preparation of the Construction Plans. The Design Contract shall provide that the Architect shall deliver to Tenant simultaneously with the delivery of same to Landlord copies of all notices and other communications given to Landlord pursuant to such contract, including, without limitation, any plans or other submissions that may require the approval of the “Owner” under any such Design Contract. Tenant acknowledges and agrees that (i) Landlord will enter into the Design Contract solely as an accommodation to Tenant, and as Tenant’s agent, (ii) Tenant agrees to indemnify Landlord against any liability under the Design Contract that does not directly result from the negligence or willful misconduct of Landlord or its employees, (iii) Tenant shall be solely responsible for all decisions and action taken by Landlord as the “Owner” under any Design Contract except to the extent that Landlord takes any such decision or action without the written consent of Tenant thereto, (iv) Landlord shall in no event be responsible for any delay that would otherwise constitute a Tenant Delay (except to the extent the same directly results from the failure of Landlord to act timely), and any such delay shall constitute a Tenant Delay hereunder notwithstanding that Landlord is the party legally responsible for acting as the “Owner” under any such Design Contract, (v) no approval by Landlord under the Design Contract, of any plans, specifications, change orders, or other matter under the Design Contract shall constitute Landlord’s approval thereof under this Lease, it being understood and agreed that Lxxxxxxx’s approval of all such matters hereunder shall be governed solely by the provisions of this Lease, without any regard for the fact that Landlord is a party to the Design Contract, (vi) the fact that Landlord is a party to the Design Contract shall in no way relieve Tenant of any of its obligations under thisthis Section 4.0, and (vii) Tenant shall, as additional rent, reimburse Landlord for all amounts payable to the Architect or any design professional under any Design Contract plus all reasonable, out of pocket costs and expenses incurred by Landlord in connection therewith, including, without limitation, all reasonable attorney’s fees incurred, not to exceed Two Thousand Dollars ($2,000) in negotiating, performing, and enforcing any Design Contract. Subject to the timely performance of Txxxxx’s obligations hereunder, Landlord shall cause the Architect to submit Design Development Drawings for Landlord’s Work to Landlord and Tenant on or before May 15, 2015, and to submit the Construction Drawings for Landlord’s Work to Landlord and Tenant on or before June 19, 2015. All of such plans shall (i) be certified by an architect or engineer licensed in the Commonwealth of Massachusetts, (ii) comply with all applicable laws, (iii) be submitted to Landlord and Tenant no later than the dates set forth above with respect thereto and (iv) be subject to approval (in form and substance) or approved as noted by each of Landlord and Tenant (which approval shall not be unreasonably withheld, conditioned or delayed). Lxxxxxxx’s approval is solely given for the benefit of Landlord, and neither Tenant nor any third party shall have the right to rely upon Landlord’s approval of the Design Development Drawings for Landlord’s Work or the Construction Drawings for Landlord’s Work for any purpose whatsoever. Each of Landlord and Tenant shall respond to any plan submission by Architect within seven (7) business days after (i) delivery of the original submission and (ii) in the case of the Construction Drawings for Landlord’s Work, delivery of any resubmission. For the purposes of this Section 4 only, all responses required by either Landlord or Tenant may be given by email, with receipt of delivery requested to the following email addresses (or such other address(es) as the receiving party may from time to time designate by notice given pursuant to Section 27 below): if intended for Landlord: to and to , and if intended for Tenant: and . Any response by either of Landlord or Tenant shall be either an approval or an approval as noted. In the case of the Design Development Drawings for Landlord’s Work, if either or both of Landlord and Tenant approve same as noted, the Architect shall not revise the Design Development Drawings for Landlord’s Work to reflect the matters noted, but such matters shall be reflected in the Construction Drawings for Landlord’s Work. If either of Landlord or Tenant approves as noted the Construction Drawings for Landlord’s Work, Landlord shall cause the Architect to revise such drawings to reflect the matters noted; provided, however, that if Landlord disapproves the matters noted by Txxxxx, Landlord shall forthwith notify Tenant of such disapproval, and such disapproved noted matters shall not be included in the Construction Drawings for Landlord’s Work. If Tenant disputes Lxxxxxxx’s disapproval of any such noted matters, Txxxxx may submit such dispute to arbitration pursuant to Section 29.5 below. Except to the extent that any noted items merely correct errors or missing items (i.e., items that were included in the Design Development Drawings for Landlord’s Work (and not disapproved) but were omitted in error from the Construction Drawings for Landlord’s Work) in the Construction Drawings, if Tenant approves as noted the Construction Drawings for Landlord’s Work or any revision thereof, the time required to revise such drawings to reflect the matters noted by Tenant shall constitute Tenant Delay. If either of Landlord or Tenant fails to respond within such seven (7) business day period, the Design Development Drawings for Landlord’s Work or Construction Drawings for Landlord’s Work, as applicable, shall be deemed approved by such party. Lxxxxxxx has selected and Tenant hereby approves MJA Construction as the construction manager (“Construction Manager”) for the performance of Landlord’s Work (including pre-construction services), pursuant to a separate construction management agreement between Landlord and the Construction Manager (the “Construction Management Agreement,” which shall be a guaranteed maximum price contract) to be entered into by Landlord and Construction Manager. Upon issuance of the TI Plans, Construction Manager shall solicit on an open book basis competitive, fixed price bids for the performance of Landlord’s Work for the Premises from at least three (3) subcontractors per trade (although certain long–term lead items may be bid prior to issuance of the TI Plans, as agreed upon by Landlord and Tenant). Landlord shall review the bids with Tenant and its representatives. During the twelve (12) business day period following opening of the bids, (1) Landlord shall level the bids, and provide Tenant the opportunity to review the leveled bids and (2) Tenant shall be entitled to make value engineering changes to the TI Plans, subject to Landlord’s approval (which approval shall not be unreasonably withheld, delayed or conditioned), which value engineering changes shall be incorporated into the leveled bids. Except as otherwise expressly set forth in this Section 4.2, any time in making value engineering changes shall constitute Tenant Delay. After the completion of the leveling of the bids and the value engineering changes, Landlord and Construction Manager shall submit to Tenant the estimated cost of Landlord’s Work for the Premises which shall consist of, but not be limited to, the following: (i) estimated permit, filing, expediting, architect’s and engineering fees, (ii) reasonable legal fees (not to exceed $2,000.00) incurred by Landlord related to negotiating the form of the Design Contract(s) and the form of Construction Management Agreement for Landlord’s Work, (iii) a guaranteed maximum price for all work covered under the Construction Management Agreement and shown on TI Plans (the “GMP” which shall include all of the following costs: (a) the approved subcontractor bids, (b) Construction Manager insurance costs, (c) general conditions and general requirements, (d) a Construction Manager’s fee of three percent (3%) payable to the Construction Manager, and (e) a Construction Manager contingency (not to exceed five percent (5%), (iv) Landlord Insurance Costs, (v) third party project management fees paid by Landlord not to exceed Forty-Eight Thousand Dollars ($48,000), (vi) cost of controlled inspections, and (vii) such other out-of-pocket costs reasonably approved by Landlord and Tenant which are reasonably to be incurred by Landlord and are associated with and reasonably necessary for Lxxxxxxx’s Work for the Premises (including all consultant, architect and engineering fees incurred by Landlord) (collectively, the “Final TI Cost”). In no event shall Final TI Cost include any costs incurred to remove, remediate or encapsulate any Hazardous Materials (including asbestos and lead paint) discovered in the Premises during the performance of the Landlord’s Work. Tenant shall approve or disapprove the Final TI Cost within five (5) business days from receipt thereof (which approval shall not be unreasonably withheld, conditioned or delayed and any delay by Tenant in the approval of the Final TI Cost beyond such five (5) business day period shall constitute Tenant Delay). If Tenant shall disapprove the Final TI Cost, Tenant shall have five (5) business days, before incurring Tenant Delay, to value engineer to reduce the Final TI Cost so that such amount is equal to or less than Landlord’s Contribution. Upon Tenant’s approval (or deemed approval) of the Final TI Cost (the “Approved Budget”), Landlord shall be authorized to proceed with the execution of Landlord’s Work and award the bids. Tenant shall have the right to make changes (“Changes”) from time to time in the TI Plans by approving revised plans, indicating the proposed Changes. Such Changes shall be subject to Landlord’s approval (which shall not be unreasonably withheld, delayed or conditioned, except to the extent such Changes affect the Building’s systems or the structural integrity of the Building, in which case approval shall be in Landlord’s sole discretion). Landlord shall notify Tenant of its approval or disapproval of any such proposed Change within seven (7) days following receipt of such proposed Change (or such longer period as may be reasonably necessary for Landlord to price such Change). Within such seven (7) day period (or such longer period as may be reasonably necessary for Landlord to price the Change), if Landlord approves the proposed Change, Landlord shall notify Tenant of the total amount of any net increase or decrease in the cost of Landlord’s Work, and any Tenant Delay in the completion of Landlord’s Work, resulting therefrom by presenting Tenant with a change order containing such information (a “Change Order”). Landlord’s failure to respond to such Change within the seven (7) day period (or such longer period as may be reasonably necessary for Landlord to price such Change) shall be deemed an approval of such Change, in which event, not later than three (3) business days after Txxxxx’s subsequent written request therefor, Landlord shall give Tenant written notice (the “Change Notice”) indicating any net increase or decrease in the cost of Landlord’s Work and any Tenant Delay resulting from such Change Order. If Txxxxx does not accept the Change Order within three (3) business days of the giving of such notice (i.e., Lxxxxxxx’s notice of cost and time changes as aforesaid when Landlord timely responds or, where the Change Order is deemed approved as aforesaid, the Change Notice), Landlord shall not make the proposed Change. If Tenant accepts the Change Order (including the adjustment in the cost of Landlord’s Work and the Tenant Delay in the completion of Landlord’s Work resulting therefrom as set forth in the Change Order), the provisions of this Article 4 shall apply to Landlord’s Work as adjusted by the approved Change Order and the Approved Budget and GMP shall be increased or decreased as a result of the Change Order (but maintaining the three percent (3%) Contingency for the GMP and Approved Budget as set forth above). Any time during which the performance of Lxxxxxxx’s Work must be postponed or delayed (in whole or in part) in order to review and approve any such Changes and determine the cost thereof as well as any additional time required to implement any such Changes shall all constitute Tenant Delay to the extent the same actually delays the prosecution of Lxxxxxxx’s Work.
Appears in 1 contract
