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Session Leader - Michael Rothpletz, Esq.
IF YOU BUILD IT [TO SUIT] THESE ISSUES WILL COME: CHALLENGING ISSUES IN BUILD-TO-SUIT LEASE TRANSACTIONS Session Leader - Michael Rothpletz, Esq. Panelists - Loretta Kelly, Esq. and Martin Dowd, Esq.
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Pre-Construction Phase Issues
The teams Who are the players and roles? Many players conducting an orchestra Professionals, consultants, contractors, lender
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Building Design and Approvals
Building Design Process and Responsibilities Plans and Specifications Preparation and timing Tenant Input Governmental Approvals Analysis of Required Approvals Variances Timing
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Lease Contingencies Pre-construction versus construction phase rights
Contingencies, including acquisition, financing and approval contingencies Approvals (including utilities and incentives); Outside date for commencing construction
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Change Orders Cost and Time Landlord Concerns Changes to Base Building
Changes to Tenant Improvements Procedure Funding/Securing Additional Costs
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Definition of Substantial Completion
A crucial milestone requiring precise definition in each transaction. Term of art or objective set of facts? Who determines? Punchlist compilation and completion.
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Remedies for Delay Tenant delay and excusable delay termination right
rent abatement for late delivery self-help and offset rights costs and other damages
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Construction Contract
Risk Shifting Plans timing and remedies consistent with lease. Excusable delay no broader than lease. Warranties; assignment rights; bonding Warranties
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Project Funding Landlord Equity Construction Financing
Lender/Tenant relationship SNDA Tenant Estoppel Financial Statements
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