The Mother of Dragons and Your Lease
April 6 is not far away and my excitement knows no bounds.
No, I do not mean opening day for my NY Mets (which is excitement enough).
April 6th is the first episode of Season 4 of HBO’s Game of Thrones, the clash of kings in the fictional land of Westeros.
With the return of Game of Thrones, it is also time for my high school senior son Noah to ridicule me mercilessly for confusing the names and histories of the countless characters. With its seven kingdoms and many jousting families, there are endless characters overwhelming this weak, middle-aged mind.
As I have said before, Noah has required in the past that I read as remedial G.O.T. training the books in the “Song of Ice and Fire” series by George R.R. Martin on which the show is based.
But I still often resort to referring to characters as “the guy without the face”, “Jon Snow’s girl” or “the crazy fire lady”.
It appears that I am not alone. There are web links about a memory addled dad lamely attempting to name all the participants (hey, that wasn’t me!).
I feel for this internet dad. At least Noah’s ridicule is only addressed to everyone within earshot, not the entire world-wide web.
Yes, I know. The link with commercial leasing is clear.
Yet, putting aside the obvious similarities in battles to the death between good and evil (and, of course, gratuitous sex and violence), it can also be hard to keep track of all of the participants in a commercial lease transaction.
In addition to the landlord, tenant and broker (and perhaps subtenant, ground lessor and mortgagee), a tenant may need to engage one or more additional parties in the role of consultant or vendor, such as an architect, project manager, engineer, construction manager or general contractor, benefits advisor and code consultant.
All of these consultants and vendors play vital parts in a successful lease negotiation and build out process.
Make sure to follow these eleven suggestions when keeping track of your own cast of characters:
- Do not dawdle. The sooner you button up the contracts with your consultants the better. Too often tenants wait too long and first start negotiating these contracts in earnest after the lease has been signed. You will need these consultants involved and engaged during lease negotiations and planning. Also, once your lease has been executed and they have already been on the job, your negotiating leverage with them will markedly decrease.
- Use your own contract form. You will be entering into a number of agreements and it will save you time and money to develop your own standard vendor form. Be aware that this may not prove feasible with everyone (e.g., architect and contractor agreements are somewhat unique and many architects and contractors are wedded to AIA (American Institute of Architects) standard forms).
- Clearly define the scope of services. This section of the agreement lays out the framework of the basic services to be provided under the contract for the agreed upon compensation and services not included can become costly additional services.
- Require high standards. Your agreement should require that the consultant meet the highest prevailing industry standards, use its best skill and judgment, and devote sufficient time and resources to your project.
- Cover legal and lease requirements. Require that the consultant comply with all legal requirements and provisions of the lease. To the extent possible, also make it responsible for obtaining all authorizations, approvals, consents, licenses and permits.
- Make time of the essence. Timing is often critical to the success of your project so clearly indicate that the consultant must complete its services consistent with the project schedule and that time is of the essence.
- Fees. Create a fee schedule that conforms to the progress of the work, with enough held at the back end through retainage or otherwise to maintain an incentive for the vendor to complete the job as expeditiously as possible. All invoices should reflect the dates and number of hours performed and should be accompanied by supporting documentation.
Specify any “additional services” in addition to the fee and indicate how these services are to be compensated (e.g., by pre-negotiated hourly rates).
The consultant should be responsible for its own overhead, but the contract should identify any applicable extra “reimbursable expenses” such as long distance travel or shipping. Provide that such reimbursables cannot exceed an agreed upon amount per month or in the aggregate unless pre-approved by you, shall be substantiated by itemized invoices and shall be charged to you at actual cost without any markup.
- Termination rights: for cause and convenience. Allow yourself the right to terminate if the consultant/vendor defaults, but also “without cause” if it does not default but is not meeting your expectations or for any other reason that you may determine.
- Key personnel. Indicate in your agreement if there are particular persons who you expect will be devoting a significant portion of their time to your project. Provide that these persons cannot be removed from the project without your consent.
- Confidentiality. Vendors who will have access to your proprietary information should enter into confidentiality agreements in which they covenant not to disseminate any of your non-public information.
- Insurance/indemnity. Be sure to review your consultant/vendor contract with your insurance advisor/risk management professional so that you are adequately insured by your vendor.
The one G.O.T. character I identify correctly is the “Mother of Dragons”. It does not hurt that she calls herself that two or three times per episode and is surrounded by giant, fire-breathing dragons. I suppose it helps for me to be hit over the head with some incredibly obvious hints. Without hitting yourself over the head, follow the hints provided above and you can rule the kingdom of consultants and vendors and win the battle of your lease transaction.