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The Relationship Between Rent Commencement and Construction

BY CSA STAFF

By Sandra Gold Slon, [email protected]

The relationship between the date rent first becomes due and the date construction of tenant improvements is complete is critical because it directly affects the tenant’s rental cost and the landlord’s income stream. In the current economic climate, landlords are seeking ways to start collecting rent earlier, and tenants are trying to ensure that they are not paying rent before they are able to use their space. These competing needs make it more important than ever that the parties involved understand the definition of the rent commencement date and that it is clearly described in the lease.

Who controls construction?
A preliminary issue is whether the landlord or the tenant is responsible for the tenant improvements. For the tenant, construction can be a time consuming and frustrating experience. Since the tenant is operating a business at the same time, and doesn’t necessarily know how to efficiently bid, contract and supervise the work, unless it’s a small job or the tenant has a good project manager, it’s generally best to have the landlord manage the process. However, when the landlord handles the construction, there will be a landlord supervision fee (the tenant can try to negotiate the amount) and the landlord may not competitively bid the project, so the cost may be higher. These issues should be taken into account when setting the amount of the tenant improvement allowance.

The parties should agree what work must be completed during non-business hours, because requiring off-hours work adds to the cost and may delay completion. The risk of delay that is not the fault of either party (“force majeure” events, such as earthquakes, floods, strikes, and delay in obtaining permits) should be negotiated during the rent commencement date discussion.

Control of construction and rent commencement date
It’s standard that the party who controls the construction is the party who assumes the risk of a delay in completion. If the tenant controls the construction, the rent commencement date will be a date certain (the date construction should reasonably be completed), regardless of whether the project is completed on that date. If the landlord is responsible for the construction, the rent commencement date should be the date of substantial completion of construction, not a date certain.

Tenant construction
Since rent commences on a date certain, regardless of whether construction is complete by that date, a realistic time period for completion of construction will have to be agreed to by the parties. It’s important for the tenant to consult with a qualified project manager familiar with the building and the local permitting agencies to determine how long it will take to complete construction — and then add as much of a cushion as possible! There should be defined time frames for landlord’s approval of various stages of the project.

Normally, the landlord has approval rights over the architect and general contractor, the plans and change orders. It’s best if the tenant can identify the architect and general contractor and provide space plans during the lease negotiation, so the landlord can pre-approve them. However, that is not always possible, and there will be other items that will require landlord approval (final construction drawings and change orders). Since landlord delay in consenting will affect the time for completion of construction, it’s important to make sure that consent will not be unreasonably withheld and that there is a definite and reasonable period for the landlord to respond. If the landlord does not respond within the required time period, the tenant should be entitled to an equivalent number of days of delay in rent commencement. Alternatively, the tenant may argue that it is entitled to “deemed consent” if the landlord does not respond within the required number of days.

If the tenant completes the construction more quickly than anticipated, the tenant should have the right to use the space for business purposes rent free until the “rent commencement date.”

Landlord construction 

When the landlord manages the construction, rent is not due until the project has been “substantially completed.” Substantial completion means that the space is usable for the tenant’s business purposes, except for minor issues of décor or completion that don’t materially interfere with use. Substantial completion should be defined in the lease, and the definition should include a certificate of occupancy. The lease should state that the parties will create a list of items not completed by the date of substantial completion (punch list items), along with a schedule for completion.

The tenant should be given early access to the space without charge (generally two weeks prior to substantial completion) to install telephone and data and computer lines, and built-in fixtures and furniture.

Since rent doesn’t start until the landlord has completed construction, the landlord will demand that the rent commencement date be advanced on a day-for-day basis for every day that substantial completion is delayed due to tenant delay. Tenants should carefully review the list of “tenant delays” and make sure the definition of tenant delay is reasonable. For example, instead of “lack of timely response,” a tenant delay should be failure to respond within a specified number of days from request. A “lack of availability of tenant requested materials” shouldn’t be considered a tenant delay unless the landlord has advised the tenant that its selected material will cause a delay.

Linkage
Although the relationship between rent commencement date and completion of construction translates to dollars in a very real and immediate way, the lease may not make the relationship clear. The rent commencement date is at the beginning of the document, the force majeure clause (which permits delay for “beyond a party’s control” events) is at the end of the lease, and the work letter is attached to the lease as an exhibit. Although these sections are separated in the document, and often in the negotiation, they should be analyzed and negotiated together.

Sandra Gold Slon is an attorney at TroyGould in Los Angeles, specializing in real estate and corporate transactions, operational business contracts, and general corporate counseling. Her clients range from start-up companies to multi-national corporations, as well as a Los Angeles municipality. She can be reached at [email protected].


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F.Dallson says:
Nov-28-2012 08:17 am

I am going to rent my first
I am going to rent my first flat very soon so I am searching for any available information on the internet about it. Thanks to your website, I just found an awesome article here! I will definitely have to print it out. I think facial expression is very important while having a first talk with a rent manager. At least that's my opinion on this one.

F.Dallson says:
Nov-28-2012 08:17 am

I am going to rent my first flat very soon so I am searching for any available information on the internet about it. Thanks to your website, I just found an awesome article here! I will definitely have to print it out. I think facial expression is very important while having a first talk with a rent manager. At least that's my opinion on this one.

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HOT CONCEPTS

Uniqlo, San Francisco

BY CSA STAFF

Uniqlo has made its West Coast, opening a three-story, 29,000-sq.-ft. flagship in San Francisco.

The store in the city’s Union Square district, combines a sleek design with the latest modern technology, including the unveiling of the chain’s “Magic Mirror” technology. Developed by Dai Nippon Printing (DNP), this ‘virtual dressing room’ allows customers to use the Kinect color-changing engine and half-mirror touch-panel technology to instantly switch between different color palettes of iconic Uniqlo clothing. The large bright color monitor is engineered make consumers feel like they are actually wearing the real product, according to Uniqlo.

“We are very pleased with the beautiful design and stunning architecture of our flagship San Francisco store,” said Uniqlo USA COO Yasunobu Kyogoku. “We’ve preserved the historical facade while completely remodeling the interior, rejuvenating the space with a modern contemporary twist. We’ve also infused the latest state-of-the art technology to create a marquis shopping destination.”

High-beamed ceilings and a large basement to roof skylight enables natural sunlight to illuminate the central glass case housing some of the more than 91 rotating mannequins situated around the store. Other features include a rainbow-colored LED-illuminated staircase, and 77 LCD screens that line the perimeter of the store on seven large monitor walls featuring a rotational mix of Uniqlo marketing campaigns and product promotions.

San Francisco is Uniqlo’s fifth U.S. retail location. The company operates three locations in Manhattan, and one in Paramus, N.J.


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OPERATIONS

Gap Inc. streamlines leadership to fuel growth

BY Gail Hoffer

San Francisco — Gap Inc. is bringing several of its divisions under the leadership of one executive in order to fuel long-term growth.

With the start of the 2013 fiscal year, the company will bring together its North American, international, online, outlet and franchise divisions under a single global executive for each of its Gap, Banana Republic and Old Navy brands. In addition, the company will form a new Innovation and Digital Strategy team to further its leadership position in this area.

“Our strong performance gives us the confidence to make this move to bring each brand together with the goal of gaining market share around the world and enhancing shareholder value,” said Glenn Murphy, chairman and chief executive officer of Gap Inc. “The global teams will move even faster in anticipating and responding to the ever-evolving needs of customers, delivering consistently great product around the world.”

Effective Nov. 5, the following members of the company’s management team will begin to transition into their new roles in preparation for the upcoming fiscal year:

At Gap brand, Steve Sunnucks, current president of the Gap Inc. international division, will become global president, based in New York. Mark Breitbard, the senior product leader for the brand in the United States and Canada, will take on an expanded role based in San Francisco as President of Gap North America, reporting to Sunnucks.

Art Peck, the current president of Gap North America, has been appointed president of the new innovation, digital strategy and new brands division. Peck will build upon the company’s leadership position in e-commerce and oversee further investments to provide our portfolio of brands with world-class digital capabilities and expertise. He will also guide the development and growth of the Athleta and Piperlime brands.

At Banana Republic, Jack Calhoun, the established president for North America, will become global president and expand his focus to include all channels and markets globally. The brand’s top merchant, Julie Rosen, will take on additional responsibility for the brand’s North American performance, while continuing to lead global product, reporting to Calhoun.

At Old Navy, as previously announced, Stefan Larsson, a veteran of global retailer H&M, started earlier this month as global president. Jill Stanton, the former Nike executive who has served as a creative advisor to Old Navy this year, joins the brand full-time overseeing all aspects of product design, development and production, reporting to Larsson.

Tthe current, dedicated team in Shanghai, led by Redmond Yeung and Jeff Kirwan, will be overseen by Murphy in the new fiscal year. Nancy Green, product leader for Old Navy, will assume a new role supporting China with responsibility for guiding the product assortment and merchandise for the market.

The company also announced that Toby Lenk, president of its online division, will leave Gap Inc. in February 2013, after ensuring a smooth transition. Lenk has indicated his desire to return to his entrepreneurial roots. Under his leadership, the online division has been a stellar performer and is expected to deliver $2 billion in sales ahead of its 2014 goal.

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