Common use of Delay of delivery Clause in Contracts

Delay of delivery. EXHIBIT “F” (i) The parties shall attempt in good faith to resolve any dispute arising out of or relating to approval of the Tenant Improvement Documents (as defined in Paragraph 3(b) below) in accordance with the terms set forth in this Work Letter. If ▇▇▇▇▇▇ has not approved such documents by 5:00 pm Pacific Standard Time on the applicable date set forth in Paragraph 3(c) below, then within two (2) business days following such failure, both Lessor and Lessee shall provide the other with written notice (each such notice, a “Design Dispute Notice”) that shall include with reasonable particularity (1) a statement of each party’s position and a summary of arguments supporting that position and (2) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within two (2) business days after the date required for delivery of the Design Dispute Notices, the designated executives of both parties shall meet at a mutually acceptable time and place. Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (the “First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired. If the parties fail to resolve the dispute at this First Meeting, the parties shall initiate binding arbitration proceedings with an arbitrator experienced in resolving disputes related to the design of commercial properties (the “Design Arbitrator”), to be mutually agreed upon and retained by the parties in writing upon execution of this Lease or within twenty-one (21) days thereafter. If the parties fail to agree upon a Design Arbitrator within such twenty-one day period, either party may apply to the American Arbitration Association to appoint an Arbitrator, and the parties shall split all associated administrative fees from the American Arbitration Association and hereby consent to the jurisdiction of the American Arbitration Association for such purposes. The Design Arbitrator shall only have the authority to choose between the positions (including the amount of Tenant Delay and Lessor Delay) set forth in the Design Dispute Notices, as well as to determine the amount of Tenant Delay and Lessor Delay, which shall be equal to the number of days that elapse from the applicable Final Approval Date set forth in Paragraph 3(c) to the date that the dispute regarding the Tenant Improvement Documents is resolved by the Design Arbitrator. If the Design Arbitrator selects the Lessee’s position, the delay shall be a Lessor Delay. If the Design Arbitrator selects the Lessor’s position, the delay shall be a Tenant Delay. The Design Arbitrator shall render a decision within ten (10) business days following the conclusion of the First Meeting. The parties agree to enter into a separate Agreement with the Design Arbitrator, which shall include the following provisions: the parties shall agree (i) to split equally all fees of the Design Arbitrator in connection with the Design Arbitrator’s services, and payment of such fees to the arbitrator shall be enforceable by any court of competent jurisdiction; (ii) to the extent allowable under applicable law, to defend and indemnify (subject to Section 14 below), the Design Arbitrator from claims, damages or causes of action (including reasonable attorneys’ fees) arising out of the parties’ acts or omissions under this Lease or the acts or omissions of any contractor or design professional providing services or labor or materials in connection with the Work. (ii) With respect to delays other than the delays described in subparagraph (i) above, no Lessor Delay or Tenant Delay shall be deemed to have occurred hereunder or in the Lease unless and until the party claiming such a delay has provided written notice to the other party specifying the action or inaction that such notifying party contends constitutes a Lessor Delay or ▇▇▇▇▇▇ ▇▇▇▇▇, as applicable as soon as possible, but not later than three (3) business days after the occurrence of such delay. The Lessor Delay or Tenant Delay, as set forth in such notice, shall be deemed to have occurred commencing as of the date that the event triggering the delay occurred and continuing for the number of days the performance in question was in fact delayed as a direct result of such action or inaction, provided that the party claiming such delay exercises commercially reasonable efforts to mitigate, if reasonably possible, the delaying effect of the complained of action or inaction.

Delay of delivery. EXHIBIT “F” (i) The parties shall attempt in good faith to resolve any dispute arising out of or relating to approval of the Tenant Improvement Documents (as defined in Paragraph 3(b) below) in accordance with the terms set forth in this Work Letter. If ▇▇▇▇▇▇ Lessee has not approved such documents by 5:00 pm Pacific Standard Time on the applicable date set forth in Paragraph 3(c) below, then within two (2) business days following such failure, both Lessor and Lessee shall provide the other with written notice (each such notice, a “Design Dispute Notice”) that shall include with reasonable particularity (1) a statement of each party’s position and a summary of arguments supporting that position and (2) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within two (2) business days after the date required for delivery of the Design Dispute Notices, the designated executives of both parties shall meet at a mutually acceptable time and place. Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of executives described above (the “First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired. If the parties fail to resolve the dispute at this First Meeting, the parties shall initiate binding arbitration proceedings with an arbitrator experienced in resolving disputes related to the design of commercial properties (the “Design Arbitrator”), to be mutually agreed upon and retained by the parties in writing upon execution of this Lease or within twenty-one (21) days thereafter. If the parties fail to agree upon a Design Arbitrator within such twenty-one day period, either party may apply to the American Arbitration Association to appoint an Arbitrator, and the parties shall split all associated administrative fees from the American Arbitration Association and hereby consent to the jurisdiction of the American Arbitration Association for such purposes. The Design Arbitrator shall only have the authority to choose between the positions (including the amount of Tenant Delay and Lessor Delay) set forth in the Design Dispute Notices, as well as to determine the amount of Tenant Delay and Lessor Delay, which shall be equal to the number of days that elapse from the applicable Final Approval Date set forth in Paragraph 3(c) to the date that the dispute regarding the Tenant Improvement Documents is resolved by the Design Arbitrator. If the Design Arbitrator selects the Lessee’s position, the delay shall be a Lessor Delay. If the Design Arbitrator selects the Lessor’s position, the delay shall be a Tenant Delay. The Design Arbitrator shall render a decision within ten (10) business days following the conclusion of the First Meeting. The parties agree to enter into a separate Agreement with the Design Arbitrator, which shall include the following provisions: the parties shall agree (i) to split equally all fees of the Design Arbitrator in connection with the Design Arbitrator’s services, and payment of such fees to the arbitrator shall be enforceable by any court of competent jurisdiction; (ii) to the extent allowable under applicable law, to defend and indemnify (subject to Section 14 below), the Design Arbitrator from claims, damages or causes of action (including reasonable attorneys’ fees) arising out of the parties’ acts or omissions under this Lease or the acts or omissions of any contractor or design professional providing services or labor or materials in connection with the Work. (ii) With respect to delays other than the delays described in subparagraph (i) above, no Lessor Delay or Tenant Delay shall be deemed to have occurred hereunder or in the Lease unless and until the party claiming such a delay has provided written notice to the other party specifying the action or inaction that such notifying party contends constitutes a Lessor Delay or ▇▇▇▇▇▇ ▇▇▇▇▇Tenant Delay, as applicable as soon as possible, but not later than three (3) business days after the occurrence of such delay. The Lessor Delay or Tenant Delay, as set forth in such notice, shall be deemed to have occurred commencing as of the date that the event triggering the delay occurred and continuing for the number of days the performance in question was in fact delayed as a direct result of such action or inaction, provided that the party claiming such delay exercises commercially reasonable efforts to mitigate, if reasonably possible, the delaying effect of the complained of action or inaction.