The Law in Shopping Centers July 7-11, 2014 Scandic Potsdamer Platz, Berlin, Germany
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ICSC European Retail Property School The Law in Shopping Centers July 7-11, 2014 Scandic Potsdamer Platz, Berlin, Germany Avv. Claudio Cocuzza Cocuzza & Associati Milan, Italy www.cocuzzaeassociati.it The Law in Shopping Centers What do we want to achieve today? The Law in Shopping Centers Negotiation The Law in Shopping Centers Reliance General Contract Principles Formalities: Oral Vs. Good Faith Written The Law in Shopping Centers Commercial Correspondence Letters of Intent Side Letters Heads of Terms Steps to the Lease Lease Binding Offers Preliminary Lease The Law in Shopping Centers Letters of Intent (LOI)/Heads of Terms (HoT) Binding offers The Law in Shopping Centers Commercial People Key People in Real Estate Fiscal Counsel Negotiating Brokers SC Leases Legal Counsel: In-House Counsel Vs. Outside Counsel The Law in Shopping Centers Who should lead the negotiation? The Law in Shopping Centers Precontractual Liability The Law in Shopping Centers The Law in Shopping Centers The Law in Shopping Centers From: John Worthington "Honest John" Foulfellow [[email protected]] To: Pinocchio [[email protected]] Sent: July 7, 2014 Re: Shopping Center “Field of Miracles”, Catchfools Dear Pinocchio, Meeting you this morning was such an incomparable pleasure! I am so happy we got a deal!!! Please let me recap our agreement: -Premises n. A503; first floor; 123.99 sf -Use clause: toys - Hand-over: 30 days as of today -Term: 7 years -Walk out right: none -Rent: 7% T/O -Minimum guaranteed rent: GBP 100.000,00 + VAT -CAM: GBP 15.000,00 + VAT Please confirm asap the foregoing by replying to this e-mail. Our lawyers shall take care of boring formalities. Yours faithfully, HJ P.S.: greetings from Giddy!! John Worthington Straight Fox and Cat Associates The Law in Shopping Centers Tips and Tricks in Negotiation Controlling the The “Alternative “I’m not the bad “It’s for your Have a Way Out Text Clause Menu” guy” benefit, too!” The Law in Shopping Centers The End of the Negotiation: the “Quiet Room” Tip The Law in Shopping Centers The Lease in Shopping Centers The Law in Shopping Centers Landlord Tenant Lease The Law in Shopping Centers Lease Provisions (clauses) Lease Exhibits The Law in Shopping Centers ?Lease Fixed or renewable Term Pros and Cons Walk-Out Clause. Risks for the Landlord: how to mitigate them? Right of First Offer, Right of First Refusal in favor of Tenant: does it make sense? The Law in Shopping Centers Description Technical Surface Specifications The Premises Exhibits Tolerances The Law in Shopping Centers The Main Lease Clauses Use Lease Clause Term Maintenance Rent Tenant’s Service Fitting Charge Works The Law in Shopping Centers ?Lease Fixed or renewable Term Pros and Cons Walk-Out Clause. Risks for the Landlord: how to mitigate them? Right of First Offer, Right of First Refusal in favor of Tenant: does it make sense? The Law in Shopping Centers Fixed Rent Variable Rent The Law in Shopping Centers T/O to be % of turn-over (T/O) Variable communicated by obtained in a lease Tenant. How many year Rent times in a year? Is Landlord entitled Remedies in case of When to pay variable to check Tenant’s untruthful/missing rent? account books? Is T/O declaration there an audit right? The Law in Shopping Centers What is Turn-Over? Omni-Channel Sales The Law in Shopping Centers Rent Adjustment Adjustment through the Lease Years: Indexation Adjustment of the Rent in Case of Renewal The Law in Shopping Centers Bank Cash Deposit Guarantee Security The Law in Shopping Centers Taxes for Insurance for Common Common Areas Areas? Cleaning of Use of Parking Common Areas Spaces Costs of Common Area Utilities Extraordinary Consumption Maintenance? for Common Areas Systems Promotional Common Areas Service and Ordinary Advertising Maintenance Charge Costs? The Law in Shopping Centers Surface Criteria Ponderation How to Split The Case of Service Charge among Tenants Food Courts Caps The Law in Shopping Centers Tenants Association/Consortium of Tenants Promotional/Advertising Costs Managed by Landlord The Law in Shopping Centers Tenant’s Works To Consider: Non Structural Technical Structural Works Works Specifications of the Shopping Center The Law in Shopping Centers Maintenance of the Premises: Who Ordinary Is Doing What? Maintenance Extraordinary Maintenance The Law in Shopping Centers Other Typical Clauses Regulation of Radius Clause: the Shopping an Antitrust Center Issue? Sublease of Exclusivity Clause: an the Premises Antitrust Issue ? Assignment Insurance of Lease Clause Signage Trademarks The Law in Shopping Centers Informing Tenant of the Date of Grand Opening: When? New SC: Additional Clauses Tenant’s Tenant’s Obligation to Obligation to Open Its Store Complete Fitting upon Grand Works within Opening Grand Opening The Law in Shopping Centers Plan of the Premises Others (e.g. Shopping Pilotage Center Agreement, Technical etc.) Specifications Exhibits By-Laws of the Tenants Draft Bank Association/ Guarantee Consortium Regulation of the Shopping Center The Law in Shopping Centers Use of Common Areas Service Charge (Criteria) Trade Hours Shopping Center Continuous Regulation Operations Shop Windows Penalties Other The Law in Shopping Centers Handover of the Premises Before Upon Execution After Execution Execution of the Lease of the Lease of the Lease The Law in Shopping Centers Conditions of the Premises Authority to Sign It Handover/Return Certificate The Law in Shopping Centers Breach of an obligation Termination by Penalties Default The Law in Shopping Centers Litigation Courts Arbitration The Law in Shopping Centers A Case in Existing Shopping Centers: Relocation of Existing Tenants Key-Money as Cost of Fitting Purpose: New Tenants Compensation for Works/Rent for Existing in SC Relocation Tenant Mutual Termination of the Lease + New Lease for New Premises Vs. Transfer Agreement The Law in Shopping Centers Managing a Shopping Center The Law in Shopping Centers The Contracts Entered into/Administered by SC Managers Lease Agreements Insurance Promotional Contracts Contracts Operational Labor Service Contracts Contracts The Law in Shopping Centers Landlord’s Responsibility Insurance for Insurance for for Common Damages Civil Liability Areas The Law in Shopping Centers SC Collective Labour Employees Bargaining Contracts Contracts Agreements ICSC European Partners ICSC Global Partner ICSC European Partners The Law in Shopping Centers Avv. Claudio Cocuzza.