Parking Structure. (a) Tenant shall have the obligation to construct a parking structure within two (2) years of the date hereof (such end date being the “Outside Completion Date”) in accordance with the terms of this Section 7.4 (the “Parking Structure”). All contracts and budgets for the design and construction of the Parking Structure shall be entered into by Tenant (and shall be subject to Landlord’s approval) but the Parking Structure, when constructed, shall be the sole property of Landlord and shall be a part of the Premises (and as such shall, during the Term, be reserved solely for the use of Tenant and Tenant’s employees and visitors). Costs for construction of the Parking Structure will be paid by draws from sums held by Mortgagee in a reserve account established on the date hereof (the “Parking Structure Reserve”). No construction shall commence until Landlord has reviewed and approved the plans and specifications for the Parking Structure and reviewed and approved evidence that Tenant has obtained (at its cost and expense) all required building and zoning approvals. All draws from such escrow shall be made in a manner consistent with the procedures and requirements as set forth on Exhibit K. Notwithstanding the right of Landlord to approve the plans for the Parking Structure, it will be deemed to be unreasonable for the Landlord or Mortgagee to require that Tenant construct a Parking Structure that (i) is estimated to cost more than the amount of Parking Structure Reserve account to design, permit, and construct, or (ii) which creates more parking spaces than Tenant requires (Tenant currently estimates its requirement to be approximately one hundred eighty (180) additional spaces) provided that such number satisfies all applicable Legal Requirements. To the extent Tenant is unable to build the Parking Structure within the Outside Completion Date, Landlord may use funds in the Parking Structure Reserve to complete the Parking Structure, provided, however, Landlord shall be under no obligation to complete the Parking Structure upon Tenant’s failure to do so. To the extent the funds in the Parking Structure Reserve are insufficient to pay for the completion of the Parking Structure (whether by Tenant or Landlord), Tenant shall nonetheless be obligated to complete the Parking Structure at its cost and expense and if Landlord uses its own funds to complete the Parking Structure, Tenant shall be obligated to reimburse Landlord for any costs incurred by Landlord to complete the Parking Structure in accordance with the term of this Lease plus interest on any such costs at the Interest Rate until paid. Disputes regarding draw requests shall be resolved in accordance with the arbitration procedures set forth in Article 33 of this Lease. If the amount of funds reserved for any line item in an approved budget shall not be sufficient to complete the cost of work set forth in such line item, the Tenant shall be responsible for paying such additional costs (or, at Tenant’s election, contributing such additional funds into the escrow) so that the unadvanced portion of the escrow reserved to pay such line item costs, together with the funds contributed by Tenant, are sufficient to pay the costs to complete all work described in such line item (it being understood that Landlord shall not be required to pay any costs of construction of the Parking Structure and that Tenant shall be responsible for paying all costs of constructing the Parking Structure whether or not funds in the escrow are sufficient to pay in full all such costs). No changes to any previously approved construction contract involving a net increase in costs greater that Fifty Thousand Dollars ($50,000), or which change would have the effect of increasing total construction costs by more than Two Hundred Thousand Dollars ($200,000) of that previously approved by Landlord, and no material changes in the design of the Parking Structure shall be made, without Landlord’s written approval. To the extent the Parking Structure is completed in accordance with the terms of this Lease and there are funds remaining in the Parking Structure Reserve, any undisbursed funds shall be delivered to Tenant in accordance with the provisions set forth in Exhibit K. Landlord shall use commercially reasonable efforts to cause the Mortgagee to disburse funds to Tenant from the Parking Structure Reserve, provided that Tenant has complied with the requirements of this Section 7.4. Tenant hereby agrees to indemnify and hold harmless Landlord and Mortgagee from and against all claims, costs, actions, proceedings, investigations, fines, penalties and liabilities arising out of the construction of the Parking Structure and the provisions of this Section. This obligation shall survive the termination of this Lease. (b) The provisions set forth in Exhibit K of this Lease supplement the terms of this Section 7.4 and are incorporated herein. To the extent that there is any inconsistency or conflict between the terms thereof and the terms of this Section 7.4, the terms of Exhibit K shall control. (c) All requests, notices and deliveries to be made by Tenant to Landlord in connection with the provisions of this Section 7.4 and with the provisions of Exhibit K shall be simultaneously made to Mortgagee. If Tenant fails to do so, Landlord’s obligation to cause Mortgagee to release such funds shall be suspended until Tenant does so.
Appears in 1 contract
Sources: Absolute Net Lease (Health Net Inc)
Parking Structure. Landlord shall endeavor to substantially complete a Parking Structure at the Project which shall be roughly similar to the rendering shown on Exhibit C attached to this Second Amendment (a) Tenant shall have the obligation to construct a parking structure within two (2) years of the date hereof (such end date being the “Outside Completion Date”) in accordance with the terms of this Section 7.4 (the “Parking Structure”) on or before March 1, 2016, subject only to punchlist items which do no materially impact the use of such Parking Structure (“Parking Structure Substantial Completion”). All contracts and budgets for Tenant acknowledges that Landlord had originally intended to construct the design and construction Parking Structure with approximately 421 parking spaces but, at Tenant’s request, Landlord has agreed to increase the size of the Parking Structure shall be entered into by Tenant (and shall be subject to accommodate Tenant’s desired parking ratio of 4 parking stalls per 1,000 rentable square feet of the Expansion Premises. In consideration of Landlord’s approval) but agreement to increase the Parking Structure, when constructed, shall be the sole property of Landlord and shall be a part of the Premises (and as such shall, during the Term, be reserved solely for the use of Tenant and Tenant’s employees and visitors). Costs for construction of the Parking Structure will be paid by draws from sums held by Mortgagee in a reserve account established on the date hereof (the “Parking Structure Reserve”). No construction shall commence until Landlord has reviewed and approved the plans and specifications for the Parking Structure and reviewed and approved evidence that Tenant has obtained (at its cost and expense) all required building and zoning approvals. All draws from such escrow shall be made in a manner consistent with the procedures and requirements as set forth on Exhibit K. Notwithstanding the right of Landlord to approve the plans for the Parking Structure, it will be deemed to be unreasonable for the Landlord or Mortgagee to require that Tenant construct a Parking Structure that (i) is estimated to cost more than the amount of Parking Structure Reserve account to design, permit, and construct, or (ii) which creates more parking spaces than Tenant requires (Tenant currently estimates its requirement to be approximately one hundred eighty (180) additional spaces) provided that such number satisfies all applicable Legal Requirements. To the extent Tenant is unable to build the Parking Structure within the Outside Completion Date, Landlord may use funds in the Parking Structure Reserve to complete the Parking Structure, provided, however, Landlord shall be under no obligation to complete the Parking Structure upon Tenant’s failure to do so. To the extent the funds in the Parking Structure Reserve are insufficient to pay for the completion of the Parking Structure (whether by Tenant or Landlord), Tenant shall nonetheless be obligated to complete the Parking Structure at its cost and expense and if Landlord uses its own funds to complete the Parking Structure, Tenant shall be obligated to reimburse Landlord for any costs incurred by Landlord to complete the Parking Structure in accordance with the term of this Lease plus interest on any such costs at the Interest Rate until paid. Disputes regarding draw requests shall be resolved in accordance with the arbitration procedures set forth in Article 33 of this Lease. If the amount of funds reserved for any line item in an approved budget shall not be sufficient to complete the cost of work set forth in such line item, the Tenant shall be responsible for paying such additional costs (or, at Tenant’s election, contributing such additional funds into the escrow) so that the unadvanced portion of the escrow reserved to pay such line item costs, together with the funds contributed by Tenant, are sufficient to pay the costs to complete all work described in such line item (it being understood that Landlord shall not be required to pay any costs of construction size of the Parking Structure and that to compensate Landlord for a portion of the additional costs to be incurred by Landlord to accommodate such request, Tenant shall be responsible for paying all costs required to pay to Landlord $650,000 (“Parking Structure Fee”) which amount shall be due and payable to Landlord concurrent with Tenant’s execution and delivery of constructing this Second Amendment to Landlord. Tenant may elect to credit any unused portion of the Tenant Improvement Allowance (but not the Additional Tenant Improvement Allowance) towards the Parking Structure whether or Fee. Notwithstanding the foregoing, Tenant acknowledges and agrees that Landlord does not funds in the escrow are sufficient to pay in full all such costs). No changes to any previously approved construction contract involving a net increase in costs greater that Fifty Thousand Dollars ($50,000), or which change would currently have the effect of increasing total construction costs by more than Two Hundred Thousand Dollars ($200,000) of that previously approved by Landlord, and no material changes in governmental approvals necessary for the design development of the Parking Structure shall be made, without Landlord’s written approvalStructure. To the extent the Parking Structure is completed in accordance with the terms of this Lease and there are funds remaining in the Parking Structure Reserve, any undisbursed funds shall be delivered to Tenant in accordance with the provisions set forth in Exhibit K. Landlord shall use commercially reasonable efforts to cause obtain the Mortgagee governmental approvals necessary for the development of the Parking Structure. If Landlord is unable, despite using commercially reasonable efforts, to disburse funds obtain the governmental approvals, on terms and conditions and with costs reasonably acceptable to Landlord, necessary for the development of a Parking Structure and to provide Tenant with 4 parking stalls per 1,000 rentable square feet of the Expansion Premises, then Landlord shall notify Tenant in writing and Tenant shall only be entitled to use 2.5 parking stalls per 1,000 rentable square feet of the Expansion Premises and Landlord shall refund to Tenant from the Parking Structure Reserve, provided that Tenant has complied with the requirements of this Section 7.4. Tenant hereby agrees to indemnify and hold harmless Landlord and Mortgagee from and against all claims, costs, actions, proceedings, investigations, fines, penalties and liabilities arising out of the construction cash portion of the Parking Structure and the provisions of this Section. This obligation shall survive the termination of this Lease.
(b) The provisions set forth in Exhibit K of this Lease supplement the terms of this Section 7.4 and are incorporated herein. To the extent Fee that there is any inconsistency or conflict between the terms thereof and the terms of this Section 7.4, the terms of Exhibit K shall control.
(c) All requests, notices and deliveries to be made was actually paid by Tenant to Landlord in connection with the provisions of this Section 7.4 and with the provisions of Exhibit K shall be simultaneously made to Mortgagee. If Tenant fails to do so, Landlord’s obligation to cause Mortgagee to release such funds shall be suspended until Tenant does so.
Appears in 1 contract
Sources: Lease Agreement (Receptos, Inc.)
Parking Structure. (ai) At any time that at least 84 months would remain in the Lease Term after the estimated time for completion thereof (the time for completion being referred to as the “Estimated Construction Period”), Tenant shall have has the obligation right to require Landlord to construct a an additional parking structure within two (2) years of on the date hereof (such end date being the “Outside Completion Date”) in accordance with the terms of this Section 7.4 Land (the “Parking Structure”)) that will accommodate either 100 additional parking spaces or 170 additional parking spaces. Landlord estimates the Estimated Construction Period to be six to nine months from the date Tenant makes its election. If, because of such construction, the number of parking spaces otherwise available to Tenant pursuant to this Lease is reduced during construction of the Parking Structure, Tenant is responsible for and shall pay all costs associated with obtaining replacement off-site parking to meet its needs, and Landlord is excused from its obligations to provide parking to the extent it is unable to do so because of such construction.
(ii) Tenant may exercise its right to require the construction of the Parking Structure by giving written notice to Landlord, specifying the number of spaces Tenant wishes to have Landlord construct and, if necessary exercising its option to extend pursuant to subparagraph (iv) below. Landlord shall promptly commence to plan, design, and construct the Parking Structure, which Landlord agrees to substantially complete construction of within 270 days after the date of Tenant’s notice. All contracts aspects of the location, design, construction, and budgets for the design and construction other elements of the Parking Structure shall be entered into determined by Landlord in its sole discretion; however, Landlord shall consult with Tenant with respect to those matters. Should Landlord fail to substantially complete the Parking Structure within 450 days after the date of Tenant’s notice or within such longer period of time as may be necessary so long as Landlord is diligently pursuing completion, Tenant may notify Landlord in writing that it intends to terminate this Lease if the Parking Structure is not substantially completed within thirty (30) days after such notice, and shall be subject if, at the end of such thirty (30) days, the Parking Structure is not substantially completed, Tenant has the right to terminate this Lease by giving written notice to Landlord at any time before the Parking Structure is substantially completed. Landlord is not obligated to construct the Parking Structure if there is a change in the applicable zoning ordinances that prohibits or, in Landlord’s approvaljudgment, materially and adversely alters the type of structure presently contemplated by Landlord.
(iii) but Upon substantial completion of the Parking Structure, when constructed, which for the purposes hereof shall be the sole property of Landlord and shall be a part mean all of the Premises (and as such shall, during the Term, be reserved solely for the use of Tenant and Tenant’s employees and visitors). Costs for construction of parking spaces in the Parking Structure will are suitable for parking by Tenant, Base Rent shall be paid increased for the remainder of the then existing Lease Term (but not to exceed a total of 84 months) (i) by draws from sums held $7,000.00 per month if Tenant requested 100 additional spaces, and (ii) by Mortgagee $12,500.00 per month if Tenant requested 170 additional spaces. Such additional Base Rent shall be prorated for any partial month in a reserve account established on which substantial completion occurs and the date hereof (first payment thereof shall be due and payable upon substantial completion. Notwithstanding the “Parking Structure Reserve”). No foregoing, if, at the time Tenant gives its notice to Landlord hereunder, Landlord determines in its sole judgment that construction shall commence until Landlord has reviewed and approved the plans and specifications costs for the Parking Structure have increased substantially over the costs anticipated by Landlord at the time this Lease was executed (but not including any increased profit for Landlord), then Landlord shall notify Tenant of such determination and reviewed and approved evidence that Tenant has obtained (at its cost and expense) all required building and zoning approvals. All draws from such escrow shall be made in a manner consistent with the procedures and requirements as set forth on Exhibit K. Notwithstanding the right of Landlord to approve the plans for the Parking Structure, it will be deemed to be unreasonable for the Landlord or Mortgagee to require that Tenant construct a Parking Structure that then either (i) is estimated the Base Rent increase described above shall be further increased by Landlord to cost more than the an amount of Parking Structure Reserve account determined by Landlord to design, permit, be fair and construct, equitable under such changed circumstances or (ii) which creates more parking spaces than Tenant requires may, within five (Tenant currently estimates 5) days after Landlord’s notice send written notice to Landlord rescinding its requirement election to be approximately one hundred eighty (180) additional spaces) provided that such number satisfies all applicable Legal Requirements. To the extent Tenant is unable to build have the Parking Structure within the Outside Completion Date, Landlord may use funds in the Parking Structure Reserve constructed. If Tenant fails to complete the Parking Structure, provided, however, Landlord shall be under no obligation elect to complete the Parking Structure upon Tenant’s failure to do so. To the extent the funds in the Parking Structure Reserve are insufficient to pay for the completion of the Parking Structure (whether by Tenant or Landlord), Tenant shall nonetheless be obligated to complete the Parking Structure at its cost and expense and if Landlord uses its own funds to complete the Parking Structurerescind such notice, Tenant shall be obligated deemed to reimburse have elected to accept the further increase in Base Rental determined by Landlord. Base Rent that will be negotiated or determined by appraisal for the renewal terms (described in Rider No. 101) or the Parking Extension (defined below) shall take into account the understanding of the parties that Landlord for any costs incurred by Landlord is entitled to complete a total of 84 months of such increased Base Rent.
(iv) If Tenant makes an election to have the Parking Structure constructed and there would be less than 84 months remaining in accordance the Lease Term after the Estimated Construction Period, but 84 months or more would remain if Tenant exercised its next existing option to renew, Tenant may, concurrently with the term giving of the notice described in the following two sentences, renew this Lease, for either (i) the entire renewal period allowed for the next existing option to renew under Rider No. 101 or (ii) a portion of the renewal period that, when added to the existing Lease Term, would renew this Lease for a period equal to 84 months plus interest the Estimated Construction Period. The extension of the Lease on any such costs at account of the Interest Rate until paid. Disputes regarding draw requests shall be resolved in accordance with exercise of the arbitration procedures set forth in Article 33 of foregoing option is referred to as the “Parking Extension.” As an example, if Tenant exercised its renewal right under this Lease. If Paragraph and the amount of funds reserved for any line item in an approved budget shall not be sufficient to complete the cost of work set forth in such line itemremaining Lease Term was 60 months, the Tenant shall be responsible for paying such additional costs (orParking Extension would be, at Tenant’s election, contributing such additional funds into for either (A) the escrowrenewal period under Rider No. 101 or (B) so a period of 24 months plus the Estimated Construction Period. A renewal under clause (i) above and a renewal under clause (ii) above that the unadvanced portion is for a period of three years or longer shall be deemed a use of the escrow reserved complete next existing option to pay such line item costs, together with the funds contributed by Tenant, are sufficient to pay the costs to complete all work described in such line item renew under Rider No. 101. A renewal under clause (it being understood ii) above that Landlord is for a period of less than three years shall not be required to pay any costs of construction deemed an exercise of the next existing option to renew under Rider No. 101. The terms and conditions of such renewal shall be as set out in subparagraph (v) below.
(v) If Tenant elects to renew the Lease Term to include the Parking Structure Extension, Landlord and that Tenant shall be responsible for paying all costs of constructing execute an amendment to this Lease extending the Parking Structure whether or not funds Lease Term on the same terms provided in this Lease, except that (i) the escrow are sufficient to pay in full all such costs). No changes to any previously approved construction contract involving a net increase in costs greater that Fifty Thousand Dollars ($50,000), or which change would have the effect of increasing total construction costs by more than Two Hundred Thousand Dollars ($200,000) of that previously approved by Landlord, and no material changes in the design of the Parking Structure shall be made, without Landlord’s written approval. To the extent the Parking Structure is completed in accordance with the terms original term of this Lease may not be renewed more often than as set forth above and there are funds remaining in Rider No. 101, (ii) Base Rent for the Parking Structure Reserve, any undisbursed funds Extension shall be delivered agreed upon by the parties within thirty (30) days after Tenant exercises its option or, if the parties fail to Tenant agree within that period, at the Prevailing Rental Rate (defined in Rider No. 101). If it is necessary to determine the Prevailing Rental Rate, the process described in subparagraph (a) of Rider No. 101 shall commence upon the expiration of the thirty (30) days described above and the Prevailing Rental Rate determined in accordance with the provisions set forth in Exhibit K. Landlord shall use commercially reasonable efforts to cause the Mortgagee to disburse funds to Tenant from the Parking Structure Reserve, provided that Tenant has complied with the requirements of this Section 7.4. Tenant hereby agrees to indemnify and hold harmless Landlord and Mortgagee from and against all claims, costs, actions, proceedings, investigations, fines, penalties and liabilities arising out of the construction of the Parking Structure and the provisions of this Section. This obligation shall survive the termination of this Lease.
subparagraphs (ba) The provisions set forth in Exhibit K of this Lease supplement the terms of this Section 7.4 and are incorporated herein. To the extent that there is any inconsistency or conflict between the terms thereof and the terms of this Section 7.4, the terms of Exhibit K shall control.
through (c) All requests, notices and deliveries to be made by Tenant to Landlord in connection with the provisions of this Section 7.4 and with the provisions of Exhibit K shall be simultaneously made to MortgageeRider No. If Tenant fails to do so, Landlord’s obligation to cause Mortgagee to release such funds shall be suspended until Tenant does so101.
Appears in 1 contract