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Tenants should request the right to have early access to the premises (i.e., 15 business days prior to the lease commencement date at no charge for the purpose of installing wiring, cabling and servers, and possibly workstations and furniture) as early as the first draft of a letter of intent.
A tenant’s right to early access to the premises can only be for taking measurements and preparing tenant’s construction plans.
Landlords prefer to limit a tenant’s rights during early access as much as possible (as they prefer, for example, to not allow the tenant to install or store their workstations during any early access period).
The majority of leases do not address the minimum temperature that must be maintained by the building owner in the winter and maximum temperature a space can be during the summer.
The American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE) seeks to advance technology to serve humanity and promote a sustainable world (in addition to having created the “ASHRAE Comfort Chart”).
Whenever possible, tenants should negotiate for its landlord to install a supplemental HVAC unit in the demised premises (e.g., in its IT server room).
Tenants should always agree to be responsible to repair and replace the major parts and components of the HVAC system.
A tenant’s advocate should push for language stating that the entire HVAC system is and shall at all times remain property of landlord, and at the expiration or sooner termination of the lease, tenant shall surrender to landlord the entire HVAC system in good working order and condition.
In a landlord’s ideal world, its landlord’s work LOI provision should merely state: “Tenant accepts the premises ‘as-is’.” By doing so, the inclusion of “as-is” language within its initial lease draft will generally (a) relieve the landlord of any liability as to the condition of the premises, and (b) allow the landlord to avoid providing the tenant with any representations or warranties as to the quality and condition of the then existing improvements within the space.
For tenants not willing to take its space “as-is,” assuming that the tenant will not be leasing a pre-built or turnkey space, after a tenant’s inspection of the space, it should assemble a “wish list” of those items the landlord must complete prior to the delivery of the space to the tenant.
Tenant needs to be as detailed as possible as to what specifications and finishes are considered “building standard” (such as a hollow wooden door instead of a solid wooden door), prior to agreeing to a landlord’s work letter.
In regards to a tenant improvement allowance (“TIA”), the tenant should include language stating that (a) at the tenant’s option, landlord shall make the payment to tenant as a reimbursement, or at tenant’s option, directly to tenant’s contractor; and (b) in the event tenant does not use all of the TIA, at its option, tenant may apply the balance as additional free rent.
Tenant advocates should provide language in the LOI requiring the tenant to reimburse the landlord for all of the landlord’s costs and expenses incurred in reviewing tenant’s plans and for additional costs that landlord may incur as a consequence of tenant changing its plans after landlord’s initial review.
Once a landlord approves tenant’s plans and contractors and tenant secures its building permits, the lease should contain an express requirement that the tenant (a) commence its work immediately, (b) proceed diligently in order to complete the work lien free within a reasonable period of time, and (c) must use “first class materials.”
Tenants should try to negotiate language allowing any and all initial improvements made to the space to remain (and not be required to be removed) at lease expiration, in tenant’s discretion.
If a landlord allows the tenant to leave all of tenant’s “ordinary” improvements in the space at lease expiration, it should also allow tenant to leave all “specialty alterations” at lease expiration.
For landlord advocates, it is imperative that the landlord retain control over the look, feel, and design of a tenant’s signage.
It is only important to the tenant to have the right to control the look, feel, and design over a tenant’s signage for retail space.
Once a tenant receives landlord’s consent, tenant’s signage does not have to be subject to and conditioned upon all applicable laws, codes, rules and regulations of any governmental or quasi-governmental entity.
The landlord’s process in reviewing a tenant’s proposed signage should not be explicit in the lease.
If possible, prior to lease execution, a tenant should prepare a design of their proposed signage to be pre-approved by their landlord and annexed to their lease.
For tenant advocates in office spaces, it is imperative to ask for hallway and/or door lobby signage in the LOI.
Landlord advocates should contain language in their leases that (i) the tenant’s signage will comply with all applicable regulations and ordinances of any department, municipal or other agency asserting jurisdiction, and (ii) the tenant will obtain all necessary licenses and permits.
Prudent landlords will ensure that tenant is obligated to comply with reasonable design, safety and construction considerations with regards to its signage installation.
Tenant advocates should negotiate that the landlord will be allowed to use any scaffolding to display signage of a nature not related to a tenant of the building.
A landlord should not be concerned as to whether or not the lease requires tenant to obtain the necessary licenses and permits required for any signage that tenant installs.