Developer’s Responsibilities. Developer shall (i) use Best Efforts to coordinate, supervise and facilitate such services as may be necessary to implement the development, construction and completion of the Project in accordance with this Agreement, the Plans and the Schedule, and (ii) provide consultation, advice and assistance to PE Member concerning all matters with respect to the development of the Project. Developer shall supply the personnel necessary to perform its responsibilities under this Agreement, and all such persons shall be employees of Developer or an Affiliate of Developer or Developer’s Consultants and shall not be, or be deemed to be, employees of PE Member or the LLC or any of their direct or indirect subsidiaries. Developer’s obligations under this Agreement shall include, but shall not be limited to, the following: (a) Developer, Tower A Tenant or the Executive Construction Manager, as applicable, shall: (i) employ or continue to employ the Project Architect pursuant to the Project Architect Agreement, and (ii) enforce its rights and remedies (as appropriate) under any such agreements, to the extent commercially reasonable to do so; provided, however, that this subparagraph shall not preclude Developer from terminating, or causing the termination of (in each case in accordance with the terms of this Agreement), the Project Architect Agreement or any future contracts entered into by Developer, on account of a breach thereof by any such Person or counter-party, nor shall this subparagraph preclude Developer from entering into additional contracts with architects or other consultants in accordance with this Agreement; (b) Developer, as agent for Tower A Tenant, shall: (i) employ or continue to employ the Executive Construction Manager pursuant to the Executive Construction Management Agreement; and (ii) cause the Executive Construction Manager to employ or continue to employ the Construction Manager pursuant to the Construction Management Agreement; and (iii) enforce, and cause the Executive Construction Manager to enforce, its rights and remedies (as appropriate) under the Construction Management Agreement to the extent commercially reasonable to do so; (c) Developer, as agent for Tower A Tenant (and as agent for Destination Retail Tenant), shall or shall cause the Executive Construction Manager to (i) retain such Persons, and (ii) make such purchases of materials, equipment and supplies, as shall be necessary or appropriate to design, construct and complete the Developer Work and to achieve Final Completion (and completion of the Subway Entrance) and (iii) enforce its (or their) rights and remedies (as appropriate) under any agreements with any such Persons, to the extent commercially reasonable to do so; (d) Developer, as agent for Tower A Tenant (and as agent for Destination Retail Tenant), shall, or shall cause the Executive Construction Manager, to comply in all material respects with their obligations under any contracts, letter agreements or purchase orders or other agreements they enter into (or have entered into) in connection with the construction of the Developer Work; provided, however, that nothing in this Agreement shall preclude Developer from terminating, or causing the termination of, the Construction Management Agreement or the Project Architect Agreement or any of the contracts or purchase orders entered into by Developer or the Executive Construction Manager, on account of a breach thereof by the Construction Manager or by any such other Person or counter-party, nor shall it preclude the Executive Construction Manager from terminating, or causing the termination of, any contract or canceling any purchase order entered into in connection with the Project on account of a breach by the applicable contractor, consultant or materialman; (e) Developer, as agent for Destination Retail Tenant, shall: (i) employ or continue to employ the Executive Construction Manager pursuant to the DRB ECM Agreement; (ii) cause the Executive Construction Manager, to employ or continue to employ the construction manager for the Required Destination Retail Building Work (“DRB CM”); (iii) cause the Executive Construction Manager, to employ or continue to employ contractors, subcontractors, consultants, advisors and suppliers which perform work or provide materials in connection with the Required Destination Retail Building Work pursuant to their respective applicable agreements; and (iv) enforce, and cause the Executive Construction Manager to enforce, its respective rights and remedies (as appropriate) under any such agreements, to the extent commercially reasonable to do so; (f) Developer shall oversee, manage and coordinate the development of the Project, so as to, without limiting the foregoing, (i) cause the Developer Work to be completed and cause Substantial Completion, Punch List Work, and Final Completion to be achieved, and cause the Subway Entrance to be completed (subject to and in accordance with the terms and conditions of Section 3.10(b)) in each case, in accordance with the Plans, the Schedule, the applicable Construction Loan Documents, this Agreement and all applicable Laws, free from fault or defect, on a lien-free basis (subject only to Permitted Encumbrances and Developer’s right to bond and contest liens in good faith by appropriate proceedings) in a good and ▇▇▇▇▇▇▇-like manner and incorporating only new materials and equipment, and by means and methods complying with all applicable Laws and insurance requirements and the MTA Project Documents; (ii) apply for and obtain (or cause to be applied for and obtained) all building and other permits required for the Project, as and when required in accordance with the Schedule, including all certificates of occupancy to be obtained by Developer as required herein; (iii) manage and oversee the performance by (and enforce and pursue claims against, as appropriate and where reasonable to do so) the Executive Construction Manager, the Project Architect, the Construction Manager and all of Developer’s Consultants, contractors, subcontractors and vendors involved in the Project (except for any of the foregoing obtained or retained by any Member, in connection with the performance of any Finish Work for such Member); (iv) enforce the obligations of Destination Retail Tenant under the Co-Construction Agreement; and (v) cause the entire Building to be completed in accordance with a first-class standard; (g) Prior to the assignment of any Contractor Warranty as provided in Section 9.03, Developer shall use Best Efforts to enforce all such Contractor Warranties to the extent set forth in Section 9.03; (h) Developer shall or shall cause the Executive Construction Manager, the DRB ECM or the applicable contractor to remove or bond or satisfy all mechanic’s or materialmen’s liens filed (including, with respect to the PE Unit only, after the PE Unit Closing) against, or which encumber, the PE Unit or the Property (or any portion thereof) resulting from any work (other than PE Finish Work) performed by or on behalf of Developer, the LLC, Tower A Tenant, the Executive Construction Manager, the DRB ECM or any other Person, in each case within forty-five (45) days of delivery by Developer (or the LLC, Tower A Tenant, the Executive Construction Manager, the DRB ECM, or such other Person) of copies of any such lien (or shall cause the Title Insurer to insure over such lien(s), if permitted by the Construction Lender in order to have a Draw Request funded), or at the PE Unit Closing shall cause the title insurer of PE Member to insure over such liens with respect to the PE Unit and cause the title insurer of PE Member’s lenders, if any (if permitted by such lenders) to insure over such lien(s)) with respect to the PE Unit; and Developer shall cure and remove of record (or cause to be cured and removed of record) all Developer Violations within forty-five (45) days of delivery of copies of any such violation or as soon thereafter as is practicable. The costs to cure such liens and/or Violations shall be Project Costs; (i) Developer shall, or shall cause the Executive Construction Manager and/or the DRB ECM to, coordinate the safe and efficient performance, by all Unit Owners, of any Finish Work to be performed in the Building (in, except as otherwise provided in Section 8.03 of this Agreement, a reasonable, equitable and non-discriminatory manner and otherwise as required herein and in the Site Logistics Procedures), and shall coordinate the safe and efficient performance and completion of any Developer Work with any Finish Work being performed (likewise, except as otherwise provided in Section 8.03, in a reasonable, equitable and non-discriminatory manner but in a manner so as not to impede the completion of the Project, and otherwise as required herein and in the Site Logistics Procedures), which coordination, from and after the Severance Date, shall also be subject to the applicable provisions of the Condominium Documents and Co-Construction Agreement; (j) Developer shall, or shall cause the Executive Construction Manager and the DRB ECM to, be responsible for developing, with the approval of all requisite City departments, and implementing a site safety plan for all construction work being performed in and around the Building (including, without limitation, such netting and sidewalk sheds and other elements as required by applicable Law); (k) Developer shall arrange for the testing and inspecting and commissioning of all facilities, systems and equipment that are part of the Developer Work and promptly deliver to PE Member copies of all reports, results, sign-offs and certifications with respect thereto to PE Member; (l) Within one hundred eighty (180) days of achieving Final Completion, Developer shall cause to be prepared and delivered to PE Member a complete set of final “as built” construction drawings in a format reasonably acceptable to PE Member with respect to the Developer Work; (m) Developer shall cause the Project to be constructed so that the Building is eligible to achieve, at a minimum, LEED BD+C Gold for New Construction v2009 certification from the United States Green Building Council and shall use Best Efforts to obtain such certification. In addition, Developer shall cause the ERY to be constructed in a manner so that it is eligible to achieve LEED Neighborhood Development Certification from the United States Green Building Council and shall use Best Efforts to obtain such certification; (n) Developer shall pay, or shall cause Other Members or other Persons (other than PE Member) to pay, all Project Costs in excess of the PE Member Total Development Cost, other than any PE Member Additional Development Costs; (o) Upon request from PE Member, Developer shall provide (and Developer will use commercially reasonable efforts to cause its Affiliates to provide) reasonable assistance to (and shall reasonably cooperate with) PE Member to help facilitate PE Member’s financing of the PE Member Total Development Cost and any financing, leasing and/or sale of the PE Unit; (p) Upon request from PE Member, Developer shall provide (and Developer will use commercially reasonable efforts to cause its Affiliates to provide) reasonable assistance to PE Member to help facilitate PE Member’s search for up to 60,000 square feet of Additional Space during the period from and after the date hereof and prior to the PE Unit Closing Date; (q) Developer shall use reasonable efforts to provide temporary work space for 1-2 personnel of PE Member (and/or PE Member’s Consultants) at the Field Office to work for short periods of time upon reasonable advance request from PE Member (it being acknowledged that the foregoing is subject to availability of space and there will not be permanent work space or a permanent work station or office dedicated to PE Member in the Field Office); and (r) Developer shall perform all other obligations of Developer described elsewhere in this Agreement.
Appears in 1 contract
Developer’s Responsibilities. Developer shall shall: (i) use Best Efforts all commercially reasonable efforts and diligence to coordinate, supervise and facilitate such services as may be necessary to implement cause the development, construction Developer Work to be performed and completion of the Project completed in accordance with the terms of this Agreement, the Plans and the Schedule, and (ii) provide consultation, advice and assistance to PE Member Coach Legacy concerning all matters with respect to the development performance and completion of the ProjectPunch List Work. Developer shall supply the personnel necessary to perform its responsibilities under this Agreement, and all such persons shall be employees of Developer or an Affiliate of Developer or Developer’s Consultants and shall not be, or be deemed to be, employees of PE Member or the LLC or any of their direct or indirect subsidiariesCoach Legacy. Developer’s obligations under this Agreement shall include, but shall not be limited to, the following:
(a) DeveloperDeveloper shall oversee, Tower A Tenant or manage and coordinate the Executive Construction Manager, as applicable, shall: (i) employ or continue to employ performance of the Project Architect pursuant to Developer Work and Final Completion of the Project Architect Agreement, and (ii) enforce its rights and remedies (as appropriate) under any such agreements, to the extent commercially reasonable to do so; provided, however, that this subparagraph shall not preclude Developer from terminating, or causing the termination of (in each case Building in accordance with the terms of this Agreement), the Project Architect Agreement or any future contracts entered into by Developer, on account of a breach thereof by any such Person or counter-party, nor shall this subparagraph preclude Developer from entering into additional contracts with architects or other consultants in accordance with this Agreement;
(b) Developer, as agent for Tower A Tenant, shall: (i) employ or continue to employ the Executive Construction Manager pursuant to the Executive Construction Management Agreement; and (ii) cause the Executive Construction Manager to employ or continue to employ the Construction Manager pursuant to the Construction Management Agreement; and (iii) enforce, and cause the Executive Construction Manager to enforce, its rights and remedies (as appropriate) under the Construction Management Agreement to the extent commercially reasonable to do so;
(c) Developer, as agent for Tower A Tenant (and as agent for Destination Retail Tenant), shall or shall cause the Executive Construction Manager to (i) retain such Persons, and (ii) make such purchases of materials, equipment and supplies, as shall be necessary or appropriate to design, construct and complete the Developer Work and to achieve Final Completion (and completion of the Subway Entrance) and (iii) enforce its (or their) rights and remedies (as appropriate) under any agreements with any such Persons, to the extent commercially reasonable to do so;
(d) Developer, as agent for Tower A Tenant (and as agent for Destination Retail Tenant), shall, or shall cause the Executive Construction Manager, to comply in all material respects with their obligations under any contracts, letter agreements or purchase orders or other agreements they enter into (or have entered into) in connection with the construction of the Developer Work; provided, however, that nothing in this Agreement shall preclude Developer from terminating, or causing the termination of, the Construction Management Agreement or the Project Architect Agreement or any of the contracts or purchase orders entered into by Developer or the Executive Construction Manager, on account of a breach thereof by the Construction Manager or by any such other Person or counter-party, nor shall it preclude the Executive Construction Manager from terminating, or causing the termination of, any contract or canceling any purchase order entered into in connection with the Project on account of a breach by the applicable contractor, consultant or materialman;
(e) Developer, as agent for Destination Retail Tenant, shall: (i) employ or continue to employ the Executive Construction Manager pursuant to the DRB ECM Agreement; (ii) cause the Executive Construction Manager, to employ or continue to employ the construction manager for the Required Destination Retail Building Work (“DRB CM”); (iii) cause the Executive Construction Manager, to employ or continue to employ contractors, subcontractors, consultants, advisors and suppliers which perform work or provide materials in connection with the Required Destination Retail Building Work pursuant to their respective applicable agreements; and (iv) enforce, and cause the Executive Construction Manager to enforce, its respective rights and remedies (as appropriate) under any such agreements, to the extent commercially reasonable to do so;
(f) Developer shall oversee, manage and coordinate the development of the Project, so as to, without limiting the foregoing, (i) cause the Developer Work to be completed and cause Substantial Completion, Punch List Work, and Final Completion to be achieved, and cause the Subway Entrance to be completed (subject to and in accordance with the terms and conditions of Section 3.10(b)) in each case, in accordance with the Plans, the Schedule, the applicable Construction Loan Documents, this Agreement and all applicable Laws, free from fault or defect, on a lien-lien free basis (subject only to Permitted Encumbrances and Developer’s right to bond and contest liens in good faith by appropriate proceedings) Encumbrances), in a good and ▇▇▇▇▇▇▇-like manner and incorporating only new materials and equipment, and by means and methods complying with all applicable Laws and insurance requirements and the MTA Project Documents; (ii) apply for and obtain (or cause to be applied for and obtained) all building and other permits required for the Project, as and when required in accordance with the Schedule, including all certificates of occupancy to be obtained by Developer as required herein; (iii) manage and oversee the performance by (and enforce and pursue claims against, as appropriate and where reasonable to do so) the Executive Construction Manager, the Project Architect, the Construction Manager and all of Developer’s Consultants, contractors, subcontractors and vendors involved in the Project (except for any of the foregoing obtained or retained by any Member, in connection with the performance of any Finish Work for such Member); (iv) enforce the obligations of Destination Retail Tenant under the Co-Construction Agreement; and (v) cause the entire Building to be completed in accordance with a first-class standardrequirements;
(g) Prior to the assignment of any Contractor Warranty as provided in Section 9.03, Developer shall use Best Efforts to enforce all such Contractor Warranties to the extent set forth in Section 9.03;
(hb) Developer shall shall, or shall cause the Executive Construction ManagerManager to, coordinate the safe and efficient performance and completion of the Developer Work with work being performed by or on behalf of Coach and other tenants of the Building, in a nondiscriminatory manner, but in a manner so as not to impede the completion of the Developer Work, and otherwise as required herein;
(c) To the extent provided in Sections 6.03 or 6.04, Developer shall cause to be completed, repaired, replaced, rebuilt or corrected all items of Original Developer Work and Developer Work and all items of work the cost of which (or any portion of the cost of which) is included in the Coach Total Development Costs which are incorrect, defective, incomplete, omitted, or not otherwise in compliance with the Plans (in the event of a dispute as to whether any such item of work is incorrect, defective, incomplete, omitted, or not otherwise in compliance with the Plans, the DRB ECM Project Architect and Coach’s Architect will consult and meet at least twice in an effort to resolve any such dispute within ten (10) Business Days of notice of such dispute being given by one party to the other and, if the Project Architect and Coach’s Architect are unable to resolve any such dispute within such ten (10) Business Day period, then DOC ID - 24417143.10 either Coach Legacy or Developer may submit the matters still in dispute to Arbitration, to be resolved in accordance with the provisions of Article 9 by the Work Dispute Arbiter);
(d) Developer shall, or shall cause the Executive Construction Manager or the applicable contractor to to, remove or bond or satisfy all mechanic’s or materialmen’s liens or claims filed (including, with respect to the PE Unit only, including after the PE Unit Closing) against, or which encumber, against the PE Unit Premises or the Property (or any portion thereof) resulting from any work (other than PE Finish Work) performed by or on behalf of Developer, the LLC, Tower A Tenant, Legacy Tenant or the Executive Construction Manager, the DRB ECM or any other Person, in each case within forty-five (45) days of delivery receipt by Developer (or the LLC, Tower A Tenant, Coach Legacy or the Executive Construction Manager, the DRB ECM, or such other Person) of copies of any such lien lien; provided that in no event shall Developer, Legacy Tenant or the Executive Construction Manager have any obligation to remove or cause to be removed any mechanic’s or materialmen’s liens resulting from any work performed by Coach Legacy or by any Person on behalf of Coach Legacy (other than Developer or shall cause anyone engaged or retained by Developer, Developer’s Consultants, Executive Construction Manager, Construction Manager or Project Architect or any affiliates of the Title Insurer to insure over such lien(s)foregoing) in the Building or any portion thereof, if permitted by including the Construction Lender in order to have a Draw Request funded)Premises, or at the PE Unit Closing shall cause the title insurer otherwise arising from any act or wrongful omission (i.e., where there is an obligation to affirmatively act) of PE Member to insure over such liens with respect to the PE Unit and cause the title insurer Coach Legacy, Coach, Coach’s Architect or any of PE MemberCoach’s lenders, if any Consultants;
(if permitted by such lenderse) to insure over such lien(s)) with respect to the PE Unit; and Developer shall cure and remove of record (or cause to be cured and removed of record) all Developer Violations Violations, within forty-five (45) days of delivery receipt of copies of any such violation Developer Violation or as soon thereafter as is practicable. The costs to cure such liens and/or Violations shall be Project Costs;
(i) Developer shall, or shall cause the Executive Construction Manager and/or the DRB ECM to, coordinate the safe and efficient performance, by all Unit Owners, of any Finish Work to be performed in the Building (in, except as otherwise provided in Section 8.03 of this Agreement, a reasonable, equitable and non-discriminatory manner and otherwise as required herein and in the Site Logistics Procedures), and shall coordinate the safe and efficient performance and completion of any Developer Work with any Finish Work being performed (likewise, except as otherwise provided in Section 8.03, in a reasonable, equitable and non-discriminatory manner but in a manner so as not to impede the completion of the Project, and otherwise as required herein and in the Site Logistics Procedures), which coordination, from and after the Severance Date, shall also be subject to the applicable provisions of the Condominium Documents and Co-Construction Agreement;
(j) Developer shall, or shall cause the Executive Construction Manager and the DRB ECM to, be responsible for developing, with the approval of all requisite City departments, and implementing a site safety plan for all construction work being performed in and around the Building (including, without limitation, such netting and sidewalk sheds and other elements as required by applicable Law);
(k) Developer shall arrange for the testing and inspecting and commissioning of all facilities, systems and equipment that are part of the Developer Work and promptly deliver to PE Member copies of all reports, results, sign-offs and certifications with respect thereto to PE Member;
(lf) Within one hundred eighty twenty (180120) days of achieving Final Completion, Developer shall cause to be prepared and delivered to PE Member Coach Legacy a complete set of final “as built” construction drawings in a format reasonably acceptable to PE Member with respect to the Developer WorkBuilding;
(mg) Developer shall cause the Project to be constructed so that the Building is eligible to achieve, at a minimum, LEED BD+C Gold certification (for New Construction v2009 certification and Major Renovation) from the United States Green Building Council and shall use Best Efforts to obtain such certification. In addition, Developer shall cause the ERY to be constructed in a manner so that it is eligible to achieve LEED Neighborhood Development Certification from the United States Green Building Council and shall use Best Efforts to obtain such certification;
(n) Developer shall pay, or shall cause Other Members or other Persons (other than PE Member) to pay, all Project Costs in excess of the PE Member Total Development Cost, other than any PE Member Additional Development Costs;
(o) Upon request from PE Member, Developer shall provide (and Developer will use commercially reasonable efforts to cause its Affiliates to provide) reasonable assistance to (and shall reasonably cooperate with) PE Member to help facilitate PE Member’s financing of the PE Member Total Development Cost and any financing, leasing and/or sale of the PE Unit;
(p) Upon request from PE Member, Developer shall provide (and Developer will use commercially reasonable efforts to cause its Affiliates to provide) reasonable assistance to PE Member to help facilitate PE Member’s search for up to 60,000 square feet of Additional Space during the period from and after the date hereof and prior to the PE Unit Closing Date;
(q) Developer shall use reasonable efforts to provide temporary work space for 1-2 personnel of PE Member (and/or PE Member’s Consultants) at the Field Office to work for short periods of time upon reasonable advance request from PE Member (it being acknowledged that the foregoing is subject to availability of space and there will not be permanent work space or a permanent work station or office dedicated to PE Member in the Field Office); and
(rh) Developer shall perform all other obligations of Developer described elsewhere in this Agreement.
Appears in 1 contract
Sources: Development Agreement (Coach Inc)
Developer’s Responsibilities. Developer shall shall: (i) use Best Efforts all commercially reasonable efforts and diligence to coordinate, supervise and facilitate such services as may be necessary to implement the pre-development, development, design, construction and completion of the Project Developer Work and Base Building Work in accordance with this Agreement, the Plans Plans, the Budget and the Schedule, and (ii) provide consultation, advice and assistance to PE the Coach Member concerning all matters with respect to the development of the ProjectProject and the performance of the Coach Finish Work. Developer shall supply the personnel necessary to perform its responsibilities under this Agreement, and all such persons shall be employees of Developer or an Affiliate of Developer or Developer’s Consultants and shall not be, or be deemed to be, employees of PE the Coach Member or the LLC Building C JV or any of their its direct or indirect subsidiaries. Developer’s obligations under this Agreement shall include, but shall not be limited to, the following:
(a) Developer, Tower A Tenant or the Executive Construction Manager, as applicable, Developer shall: (i) employ or continue to employ the Project Architect pursuant to the Project Architect Agreement, and (ii) enforce its rights and remedies (as appropriate) under any such agreements, to the extent commercially reasonable to do so; provided, however, that this subparagraph shall not preclude Developer from terminating, or causing the termination of (in each case in accordance with the terms of this Agreement), the Project Architect Agreement or any future contracts entered into by Developer, on account of a breach thereof by any such Person or counter-party, nor shall this subparagraph preclude Developer from entering into additional contracts with architects or other consultants in accordance with this Agreement;
(b) Developer, as agent for Tower A Legacy Tenant, shall: (i) employ or continue to employ the Executive Construction Manager pursuant to the Executive Construction Management Agreement; and (ii) employ or continue to employ the Project Architect pursuant to the Project Architect Agreement; (iii) cause the Executive Construction Manager Manager, as agent for Developer, to employ or continue to employ the Construction Manager pursuant to the Construction Management Agreement; (iv) cause the Executive Construction Manager, as agent for Developer, to employ or continue to employ the Existing Consultants/Contractors pursuant to their respective applicable agreements; and (iiiv) enforce, and cause the Executive Construction Manager to enforce, its respective rights and remedies (as appropriate) under the Construction Management Agreement any such agreements, to the extent commercially reasonable to do so;
(cb) Developer, as agent for Tower A Tenant (and as agent for Destination Retail Legacy Tenant), shall or shall cause the Executive Construction Manager as agent for Developer to (i) retain such Personsadditional Persons (in addition to the Existing Consultants/Contractors), and (ii) subject to the applicable terms and conditions of this Agreement, make such purchases of materials, equipment and supplies, as shall be necessary or appropriate to design, construct and complete the Developer Work and to achieve Final Completion (and completion of the Subway Entrance) Completion, and (iii) enforce its (or their) rights and remedies (as appropriate) under any agreements with any such Persons, to the extent commercially reasonable to do so;
(d) Developer, as agent for Tower A Tenant (and as agent for Destination Retail Tenant), shall, or shall cause the Executive Construction Manager, to comply in all material respects with their obligations under any contracts, letter agreements or purchase orders or other agreements they enter into (or have entered into) in connection with the construction of the Developer Work; provided, however, that nothing in this Agreement shall preclude Developer from terminating, or causing the termination of, the Construction Management Agreement or the Project Architect Agreement or any of the contracts or purchase orders entered into by Developer or the Executive Construction Manager, on account of a breach thereof by the Construction Manager or by any such other Person or counter-party, nor shall it preclude the Executive Construction Manager from terminating, or causing the termination of, any contract or canceling any purchase order entered into in connection with the Project on account of a breach by the applicable contractor, consultant or materialman;
(e) Developer, as agent for Destination Retail Tenant, shall: (i) employ or continue to employ the Executive Construction Manager pursuant to the DRB ECM Agreement; (ii) cause the Executive Construction Manager, to employ or continue to employ the construction manager for the Required Destination Retail Building Work (“DRB CM”); (iii) cause the Executive Construction Manager, to employ or continue to employ contractors, subcontractors, consultants, advisors and suppliers which perform work or provide materials in connection with the Required Destination Retail Building Work pursuant to their respective applicable agreements; and (iv) enforce, and cause the Executive Construction Manager to enforce, its respective rights and remedies (as appropriate) under any such agreements, to the extent commercially reasonable to do so;
(f) Developer shall oversee, manage and coordinate the development of the Project, so as to, without limiting the foregoing, (i) cause the Developer Work to be completed and cause Substantial Completion, Punch List Work, and Final Completion to be achieved, and cause the Subway Entrance to be completed (subject to and in accordance with the terms and conditions of Section 3.10(b)) in each case, in accordance with the Plans, the Schedule, the applicable Construction Loan Documents, this Agreement and all applicable Laws, free from fault or defect, on a lien-free basis (subject only to Permitted Encumbrances and Developer’s right to bond and contest liens in good faith by appropriate proceedings) in a good and ▇▇▇▇▇▇▇-like manner and incorporating only new materials and equipment, and by means and methods complying with all applicable Laws and insurance requirements and the MTA Project Documents; (ii) apply for and obtain (or cause to be applied for and obtained) all building and other permits required for the Project, as and when required in accordance with the Schedule, including all certificates of occupancy to be obtained by Developer as required herein; (iii) manage and oversee the performance by (and enforce and pursue claims against, as appropriate and where reasonable to do so) the Executive Construction Manager, the Project Architect, the Construction Manager and all of Developer’s Consultants, contractors, subcontractors and vendors involved in the Project (except for any of the foregoing obtained or retained by any Member, in connection with the performance of any Finish Work for such Member); (iv) enforce the obligations of Destination Retail Tenant under the Co-Construction Agreement; and (v) cause the entire Building to be completed in accordance with a first-class standard;
(g) Prior to the assignment of any Contractor Warranty as provided in Section 9.03, Developer shall use Best Efforts to enforce all such Contractor Warranties to the extent set forth in Section 9.03;
(h) Developer shall or shall cause the Executive Construction Manager, the DRB ECM or the applicable contractor to remove or bond or satisfy all mechanic’s or materialmen’s liens filed (including, with respect to the PE Unit only, after the PE Unit Closing) against, or which encumber, the PE Unit or the Property (or any portion thereof) resulting from any work (other than PE Finish Work) performed by or on behalf of Developer, the LLC, Tower A Tenant, the Executive Construction Manager, the DRB ECM or any other Person, in each case within forty-five (45) days of delivery by Developer (or the LLC, Tower A Tenant, the Executive Construction Manager, the DRB ECM, or such other Person) of copies of any such lien (or shall cause the Title Insurer to insure over such lien(s), if permitted by the Construction Lender in order to have a Draw Request funded), or at the PE Unit Closing shall cause the title insurer of PE Member to insure over such liens with respect to the PE Unit and cause the title insurer of PE Member’s lenders, if any (if permitted by such lenders) to insure over such lien(s)) with respect to the PE Unit; and Developer shall cure and remove of record (or cause to be cured and removed of record) all Developer Violations within forty-five (45) days of delivery of copies of any such violation or as soon thereafter as is practicable. The costs to cure such liens and/or Violations shall be Project Costs;
(i) Developer shall, or shall cause the Executive Construction Manager and/or the DRB ECM to, coordinate the safe and efficient performance, by all Unit Owners, of any Finish Work to be performed in the Building (in, except as otherwise provided in Section 8.03 of this Agreement, a reasonable, equitable and non-discriminatory manner and otherwise as required herein and in the Site Logistics Procedures), and shall coordinate the safe and efficient performance and completion of any Developer Work with any Finish Work being performed (likewise, except as otherwise provided in Section 8.03, in a reasonable, equitable and non-discriminatory manner but in a manner so as not to impede the completion of the Project, and otherwise as required herein and in the Site Logistics Procedures), which coordination, from and after the Severance Date, shall also be subject to the applicable provisions of the Condominium Documents and Co-Construction Agreement;
(j) Developer shall, or shall cause the Executive Construction Manager and the DRB ECM to, be responsible for developing, with the approval of all requisite City departments, and implementing a site safety plan for all construction work being performed in and around the Building (including, without limitation, such netting and sidewalk sheds and other elements as required by applicable Law);
(k) Developer shall arrange for the testing and inspecting and commissioning of all facilities, systems and equipment that are part of the Developer Work and promptly deliver to PE Member copies of all reports, results, sign-offs and certifications with respect thereto to PE Member;
(l) Within one hundred eighty (180) days of achieving Final Completion, Developer shall cause to be prepared and delivered to PE Member a complete set of final “as built” construction drawings in a format reasonably acceptable to PE Member with respect to the Developer Work;
(m) Developer shall cause the Project to be constructed so that the Building is eligible to achieve, at a minimum, LEED BD+C Gold for New Construction v2009 certification from the United States Green Building Council and shall use Best Efforts to obtain such certification. In addition, Developer shall cause the ERY to be constructed in a manner so that it is eligible to achieve LEED Neighborhood Development Certification from the United States Green Building Council and shall use Best Efforts to obtain such certification;
(n) Developer shall pay, or shall cause Other Members or other Persons (other than PE Member) to pay, all Project Costs in excess of the PE Member Total Development Cost, other than any PE Member Additional Development Costs;
(o) Upon request from PE Member, Developer shall provide (and Developer will use commercially reasonable efforts to cause its Affiliates to provide) reasonable assistance to (and shall reasonably cooperate with) PE Member to help facilitate PE Member’s financing of the PE Member Total Development Cost and any financing, leasing and/or sale of the PE Unit;
(p) Upon request from PE Member, Developer shall provide (and Developer will use commercially reasonable efforts to cause its Affiliates to provide) reasonable assistance to PE Member to help facilitate PE Member’s search for up to 60,000 square feet of Additional Space during the period from and after the date hereof and prior to the PE Unit Closing Date;
(q) Developer shall use reasonable efforts to provide temporary work space for 1-2 personnel of PE Member (and/or PE Member’s Consultants) at the Field Office to work for short periods of time upon reasonable advance request from PE Member (it being acknowledged that the foregoing is subject to availability of space and there will not be permanent work space or a permanent work station or office dedicated to PE Member in the Field Office); and
(r) Developer shall perform all other obligations of Developer described elsewhere in this Agreement.
Appears in 1 contract
Sources: Development Agreement (Coach Inc)