Common use of Performance and Completion of Landlord’s Work Clause in Contracts

Performance and Completion of Landlord’s Work. Upon issuance of all governmental permits and approvals required for Landlord’s Work, Landlord shall commence and diligently exercise all reasonable efforts to complete Landlord’s Work. Tenant’s Construction Representative shall visit the Site at weekly intervals, or such other intervals appropriate to the stage of construction, to monitor the progress of Landlord’s Work, to inspect Landlord’s Work and to determine if Landlord’s Work is being performed in a manner indicating that Landlord’s Work, when completed, will be in accordance with the Plans. Landlord’s Construction Representative shall provide Tenant’s Construction Representative with reasonable advance notice of all scheduled job meetings at the Site, which notice may be by telephone or email, and Tenant’s Construction Representative’s attendance at all such meetings shall be mandatory. Tenant’s Construction Representative shall provide written notice to Landlord’s Construction Representative specifically describing any on-site observations indicating defects or deficiencies in Landlord’s Work (a “Claim”) immediately upon discovery, which in any event shall be no later than 3 business days after performance of that portion of Landlord’s Work that is the subject of such Claim. Except for latent defects that could not be reasonably discovered by Tenant’s Construction Representative during the inspections described in this Section 17.3 and de minimis “punch list” items as described below, if Tenant’s Construction Representative fails to provide written notice to Landlord’s Construction Representative of a Claim within such 3 business day period after performance of that portion of Landlord’s Work that is the subject of such Claim, such Claim shall be deemed irrevocably waived by Tenant. Landlord’s Construction Representative shall review Claims and take one or more of the following preliminary actions within 3 business days of receipt of a Claim: (1) request additional supporting data from Tenant’s Construction Representative, (2) submit a schedule to the parties indicating when Landlord’s Construction Representative expects to take action, (3) reject the Claim in whole or in part, stating reasons for rejection, (4) recommend approval of the Claim by Landlord or (5) suggest a compromise. If a Claim has been resolved, Landlord’s Construction Representative will prepare written documentation evidencing such resolution which shall be executed by both Landlord and Tenant. If a Claim has not been resolved, Tenant’s Construction Representative shall, within ten days after Landlord’s Construction Representative’s preliminary response, take one or more of the following actions: (1) submit additional supporting data requested by Landlord’s Construction Representative, (2) modify the initial Claim or (3) notify Landlord’s Construction Representative that the initial Claim stands, in which case if the parties are unable to resolve the Claim the dispute resolution procedure set forth in Section 17.6 below may be employed. Landlord’s Work shall be deemed to have been substantially completed on the first day as of which (i) Landlord’s Work has been completed in accordance with Exhibit C hereto except for items of work (and, if applicable, adjustment of equipment and fixtures) which can be completed without causing undue interference with Tenant’s preparation for its occupancy of the Leased Premises (i.e. so called “punch list” items), Landlord’s architect has so certified and Tenant has been given notice thereof; and (ii) the Town of Shrewsbury has issued a temporary or final certificate of occupancy for the Building and a copy of such certificate has been delivered to Tenant. Such date is hereinafter called the “Substantial Completion Date.” Landlord’s Work shall be deemed to have been fully completed on the first day as of which Landlord’s Work, including Tenant’s Punch List (as hereinafter defined), has been fully completed, Landlord’s architect has so certified and Tenant has been given notice thereof, and the Town of Shrewsbury has issued a final certificate of occupancy. Such date is hereinafter called the “Final Completion Date.” All work required to convert a temporary certificate of occupancy to a final certificate of occupancy shall be completed within sixty (60) days of the issuance of the temporary certificate, or if such work is not susceptible of being completed within such sixty (60) day period, for example as in the case of work requiring delivery of long lead-time items or work that must be delayed due to winter or other weather conditions, within a commercially reasonable time after issuance of the temporary certificate. Within ten (10) days following the Substantial Completion Date, Tenant shall inspect the Premises. Tenant shall have ten (10) days from the Substantial Completion Date to deliver to Landlord an itemized good faith punch list of work not done, not completed or in need of repair (“Tenant’s Punch List”). Any item not on Tenant’s Punch List which could reasonably have been discovered during Tenant’s Punch List inspection of the Premises shall be deemed irrevocably waived by Tenant. Landlord agrees that, upon receipt of Tenant’s Punch List, it shall diligently and in good faith, at its sole cost and expense and as expeditiously as practical (but in accordance with good construction practice) complete all appropriate Punch List repairs. With regard to those latent defects which could not be reasonably discovered during the Punch List inspection (or could not have been discovered at any prior inspection performed by Tenant, Tenant’s Construction Representative, Tenant’s architect or any other consultant, employee or agent of Tenant) Tenant shall have one year from the Substantial Completion Date to request that such defects be corrected by Landlord at its expense. Any construction defect noted more than one year from the Substantial Completion Date shall be solely Tenant’s responsibility. Landlord shall assign to Tenant any and all warranties of Landlord’s Work which Landlord may receive from third parties to the extent that such warranties are assignable. Upon completion of those items not completed as of the Substantial Completion Date, including, without limitation, all appropriate items specified on Tenant’s Punch List, Landlord shall submit to Tenant a written notice of the final completion of Landlord’s Work. Tenant shall afford Landlord access to the Premises for the purpose of completing Tenant’s Punch List.