There is one tariff clause in the Reata Pharmaceuticals build-to-suit lease. It is not in the force majeure section.
A case-sensitive search of the filed exhibit finds the word “Tariffs” exactly once in 341,891 characters, in Section 5(b), under the heading “Includable Project Costs Overages,” three clauses into a definition about rent.[1]
“(b) Includable Project Costs Overages . As used in this Lease, the term “Includable Project Costs Overages” means any increase in the Total Project Costs to the extent caused solely by: (i) Force Majeure Delays; (ii) Tariffs enacted or made applicable to the materials for construction of the Base Building Improvements following the full execution and delivery of the applicable Construction Contract, for which reasonable documentation is delivered to Tenant promptly after Landlord learns of the same; (iii) Impact/government fees enacted or made applicable to the materials for construction of the Base Building Improvements following the full execution and delivery of the applicable Construction Contract, for which reasonable documentation is delivered to Tenant promptly after Landlord learns of the same; (iv) Tenant Change Orders (but only to the extent the cost thereof is included in Total Project Costs); (v) Tenant Delays; and (vi) Scope Changes.”
TC Legacy Land Venture, LLC and Reata Pharmaceuticals, Inc. signed this on 15 October 2019 for a single-tenant podium office building of about 327,400 square feet of rentable area and a parking garage on unimproved land in Plano, Collin County, Texas.[2]
Which means a Dallas developer and a pharmaceutical company wrote a tariff clause into an office lease five and a half years before the 2026 duties, put it in the rent article, and gave it no definition. “Tariffs” is capitalized like a defined term and is defined nowhere in the document.
The rent is a percentage of what the building cost#
This matters because of how Reata agreed to pay.
Base Rent is the lesser of two numbers: $13,344,000 a year, called the Maximum Base Rent, or 0.0760, called the Yield Constant, times Total Project Costs. The second number is a yield on cost. Whatever the building costs, the landlord gets 7.6% of it a year.
$13,344,000 across 327,400 square feet is $40.76. Divide it by 0.0760 instead and you get $175,578,947, which is the cost at which the cap starts to bite.
Exhibit I is the Preliminary Budget, and it is filed. Land, fixed at $10,560,000. Hard costs estimated at $119,443,576, of which site work and base building are $58,174,834, the parking structure is $31,200,000, the Improvement Allowance is $25,600,000 and a hard cost contingency fixed at 5% of the guaranteed maximum price contract is $4,468,742. Soft costs, fixed, $45,612,568. Total Project Costs, estimated: $175,616,144.[3]
Hold those two numbers next to each other. The cap converts to $175,578,947 of cost. The budget says $175,616,144. The parties set the Maximum Base Rent at essentially exactly the budget, and the budget came in $37,197 over it, so at signing the cap is about $2,827 a year tight.
So the cap is not headroom. It is the deal.
What the overage bucket does to the cap#
Section 5(b) then says the cap moves.
“Landlord and Tenant agree that Maximum Base Rent may increase as a result of Includable Project Cost Overages”
Not all of them, and not immediately. Items (i) through (iii), which are force majeure delays, tariffs and impact fees, are collected into a sub-category called Contingent Includable Project Costs Overages, and those are excluded from the calculation “unless the total increase in the Total Project Costs on account of any Contingent Includable Project Costs Overages exceeds the amount of the Remaining Contingency, and then only in the amount of such excess.” Above that line, “the amount of any such increase in the Maximum Base Rent shall equal the product obtained by multiplying (1) the Includable Project Cost Overages (subject to the limitation provided above) by (2) the Yield Constant.”
Multiply by the Yield Constant. A dollar of tariff above the contingency becomes 7.6 cents a year of base rent.
Then Section 5(c) escalates base rent 1.95% a year beginning on the first day of the third Lease Year, and the initial term runs sixteen years from the Commencement Date. Run the dollar through all of it and the tenant pays about $1.39 for every $1.00 of duty.[4]
Suppose the contingency is gone and a tariff adds $5,000,000 to the cost of the steel and the curtain wall. That is $380,000 in Lease Year 1 rent, about $466,000 by Lease Year 16, and roughly $6.9 million over the term, on a one-time customs charge paid once at a port.
That is not a drafting error. It is what yield on cost means. The landlord is being paid 7.6% on capital, the duty is capital, so the duty earns 7.6%. The clause is doing its job. The question is whether anyone at the table in 2019 said the sentence out loud.
The buffer is a line the tenant is already paying for#
The Remaining Contingency is the interesting part, and reading it carefully makes it smaller than it looks.
“‘Remaining Contingency’ means the unspent amount of the Owner’s Contingency following completion of the Base Building Improvements. The Remaining Contingency, if any, shall only be applied to reduce Base Rent in accordance with and subject to the limitations in Section 5(b) of the Lease and shall not be applicable to any other provisions of this Lease.”
The Owner’s Contingency is “a hard cost contingency in the amount of five percent (5%) of the guaranteed maximum price payable to the General Contractor under the Construction Contract,” which Exhibit I prices at $4,468,742. Before the final determination it may be used “only for the payment of the actual, third-party out-of-pocket hard and soft construction costs incurred by Landlord with respect to the construction of the Base Building Improvements.” After the final determination, “Landlord may retain the amount of any remaining Owner’s Contingency."[11]
Three consequences follow, and they run in the same direction.
The contingency sits inside Total Project Costs as its own component, item (d), “which amount shall be determined upon execution of the Construction Contract and shall not be subject to either increase or decrease thereafter.” So the full $4,468,742 is in the number the rent is computed from whether a dollar of it is ever spent. At the Yield Constant that is $339,624 a year of rent, and it is inside the $13,344,000 cap the parties set at the budget.
Unspent contingency does not come back to the tenant as a rent reduction in the ordinary case. The definition says it can only reduce Base Rent through Section 5(b), and Section 5(b) only uses it to absorb force majeure, tariff and impact fee overages. No tariff, no absorption, and the landlord keeps the money.
And the size of the buffer on the day a tariff lands depends on how the landlord ran the job. Every dollar of ordinary hard cost charged against the contingency during construction is a dollar not available at the end to stand between a duty and the tenant’s rent. The permitted uses are real third-party costs, so this is not a lever anyone can pull arbitrarily, and the landlord has no obvious reason to want overruns. But the tenant’s protection against a 2026-style duty is the residue of a pot it is paying yield on and the landlord will otherwise pocket, and nothing in the lease obliges the landlord to preserve it.
Reata’s Improvement Allowance works the same way and is worth noticing while we are here, because $25,600,000 is a component of Total Project Costs only “actually disbursed.” Unspent allowance reduces the yield-on-cost number. That is the mirror image of the contingency, and it is the one line where restraint flows back to the tenant. We have written before about allowance disbursement conditions and about who absorbs a work letter overrun; in a yield-on-cost lease every one of those dollars has a 7.6% annuity attached.
The force majeure clause in the same lease, which says “means only”#
Now go to the delay machinery, 154,000 characters further into the document, and read what it covers.
“Force Majeure Delay” means an actual delay caused by a Force Majeure Event. “Force Majeure Event” means only: (a) strikes, lockouts or labor disputes …; (b) war, warlike operation or conditions which prevent continued work at the Premises; (c) sabotage or terrorism affecting the Premises; (d) imposition after the Effective Date of new governmental moratoria or prohibitions on construction or other unforeseen governmental actions; (e) fire or other casualty damage …; (f) condemnation or other eminent domain proceedings …; (g) shortages or inability to obtain materials or equipment (unless the principal reason such materials or equipment are unavailable is that the party responsible for performing the applicable repair or work ordered such materials after a date which is customary for ordering similar materials or equipment for comparable repairs or work and the reason for such delay is within such party’s reasonable control); (h) inability to obtain fuel or energy …; or (i) adverse weather conditions that could not be reasonably anticipated
“Means only.” A closed list of nine, and tariffs are not on it.
What is on it, at (g), is “shortages or inability to obtain materials or equipment,” with a proviso about late ordering. And at (d), “new governmental moratoria or prohibitions on construction or other unforeseen governmental actions.”
So the same lease gives the landlord extra time for a steel shortage and extra time for a construction moratorium, and gives nobody extra time for a duty on steel. The duty goes to the rent article instead and comes back as money. Time and money are in separate clauses pointing in opposite directions, 154,000 characters apart, and a reader who finds one has no particular reason to look for the other.
Is that the right answer? Mostly, yes. A tariff makes material more expensive, not unobtainable, and a schedule does not need relief for a thing that is still on the boat. The gap is at the edge, where a duty is steep enough that a supplier stops importing and the material actually becomes unavailable. On that fact pattern (g) probably does the work, and clause (ii) also does, and the lease never says which, or whether both.
Three other leases drawing the same list at three widths#
Reata is unusual in naming tariffs at all. The ordinary approach is to leave the question to the shape of the force majeure list, and filed leases draw it very differently.
The narrowest I found is Green Dot Corporation’s lease with Wells REIT II - Pasadena Corporate Park, LP for 3465 East Foothill Boulevard in Pasadena, California, made as of 5 December 2011.[5]
“(J) Force Majeure . Notwithstanding anything in this Lease to the contrary, neither party shall be chargeable with, or liable to the other for, anything or in any amount for any failure to perform or delay caused by any of the following (“Force Majeure Delays”): fIre; earthquake; explosion; flood; hurricane; the elements; act of God or the public enemy; war, terrorist act or acts, invasion; insurrection; rebellion; or riots; provided, however, lack of funds shall not be deemed a Force Majeure Delay nor may any Force Majeure Delay be used to excuse Tenant from its obligation to pay Rent.”
Catastrophe and violence, and nothing else. No governmental action, no change in law, no shortage of materials, no labor dispute at all. A tariff, an import quota, an outright embargo and a supplier bankruptcy all fall outside it. (“fIre” with the capital I is in the document as filed.) Here it is the tenant building the work and the tenant claiming the extension, and what the extension buys is a postponed Commencement Date, not relief from rent.
The useful middle is ConforMIS, Inc.’s lease with Technology Park X Limited Partnership for 45,043 rentable square feet at 600 Technology Park Drive in Billerica, Massachusetts, executed 19 September 2016.[6]
“a “Force Majeure Delay” shall mean any actual delay in completion of Landlord’s Work resulting from any of the following: a change in governmental regulations first enacted after the date of this Lease (excluding typical periods for obtaining permits and approvals for the Landlord’s Work), unusual scarcity of or inability to obtain labor or materials that is beyond Landlord’s reasonable control (which shall not include lack of funds), labor difficulties not specifically related to Landlord or any contractor engaged by Landlord to perform any or all of Landlord’s Work (each, a “Contractor”), casualty, or other causes reasonably beyond Landlord’s reasonable control (which shall not include lack of funds)”
A newly enacted governmental regulation counts. Scarcity of materials counts. “Lack of funds” is carved out twice, once from the scarcity limb and once from the catch-all. And whatever the landlord claims, the Reference Data page caps it: the Outside Delivery Date of 31 July 2017 extends day for day for force majeure, “except that the Outside Delivery Date may not be extended by more than thirty (30) days for Force Majeure Delay.” The landlord must also notify the tenant in writing within five business days of the start of the delay or the extension is unavailable.
On cost, ConforMIS is the clean counterweight to Reata. The landlord builds the leasehold improvements described in the approved plans “at its sole cost and expense,” and increases reach the tenant only through change orders, at actual cost plus a 5% contractor’s fee. So the landlord eats escalation, and the landlord’s relief in time is capped at thirty days. A capped extension and a fixed-price obligation is one coherent position, and it is the opposite of Reata’s.
The widest is a BioMed Realty form, marked “BioMed Realty form dated 8/21/15,” used for the lease between BMR-Road to the Cure LP and Zeno Pharmaceuticals, Inc. for 10835 Road to the Cure in San Diego, entered into as of 12 November 2015.[7]
“shortages of materials (which shortages are not unique to the party claiming Force Majeure); government regulations, moratoria or other governmental actions, inactions or delays; failures by third parties to deliver gas, oil or another suitable fuel supply, or inability of the party claiming Force Majeure, by exercise of reasonable diligence, to obtain gas, oil or another suitable fuel; or other causes beyond the reasonable control of the party claiming that Force Majeure has occurred”
“Governmental actions, inactions or delays” is about as wide as that phrase can be drawn, and a tariff is a governmental action. There is no cost or funds carve-out anywhere in the definition and no day cap on the extension. Then the remedy closes: “Tenant shall not be entitled to termination of this Lease or any abatement or reduction of Rent, nor shall Tenant be relieved from the operation of any covenant or agreement of this Lease.”
The limit that would actually decide a tariff case is the parenthetical: a shortage counts only if it is “not unique to the party claiming Force Majeure.” A duty is the least unique thing in a supply chain. It hits every importer at the same rate on the same day, which is precisely why it passes that test and why a contractor’s own mispricing does not.
“Lack of funds” is not a cost carve-out#
Across four leases, none says that increases in the cost of labor or materials shall not constitute force majeure. Three say “lack of funds,” and one says nothing.
Those are different propositions. “Lack of funds” is about the claimant’s balance sheet: you cannot plead that you ran out of money. It says nothing about whether a price that went up by 25% is an excuse, and it does not address the case where the party has the money and objects to spending it. A clause that means to put price risk on the builder has to say price.
The commentary is clear that the common law will not fill the gap. Smith Currie’s tariff Q and A, published 24 September 2026 and originally run in The Construction Broadsheet two days earlier, puts the baseline plainly: “Courts are reluctant to excuse performance just because costs rose after signing; even the legal doctrines built for this scenario … commercial impracticability, Force Majeure, and frustration of purpose … set a high bar and are rarely successful based on cost increases alone, including tariff-driven ones."[8]
Its drafting prescription is about money and process rather than about the delay list. A workable clause should “provide relief in money (and time, if the tariff or cost increase also affects the schedule),” should “require the contractor or sub to generally substantiate the increase with documentation (supplier invoices, published tariff rates, etc.),” and should “route that relief through a defined change order process, rather than an open-ended renegotiation.”
Read Section 5(b) against that list and Reata’s lease scores two out of three. It provides relief in money. It requires documentation, though loosely: “reasonable documentation … delivered to Tenant promptly after Landlord learns of the same,” with no deadline in days and no stated consequence for failing. There is no change order route, because the landlord is not asking for anything. The number simply appears in a statement.
Where the tenant actually gets to argue#
The process is in Section 5(d), and it is better than the documentation sentence suggests.
Thirty days before the Commencement Date the landlord delivers an estimate of Total Project Costs, the overages, the Remaining Contingency and the resulting monthly base rent, and the tenant pays Estimated Base Rent until the real statement arrives. Within 120 days after the Commencement Date the landlord delivers the Final Project Costs Statement. The tenant then has 60 days to dispute it, and “if Tenant fails to so dispute Landlord’s Final Project Costs Statement within such 60-day period, Tenant shall be deemed to have accepted the Total Project Costs, Includable Project Cost Overages, and Remaining Contingency.”
If it does dispute, the audit right is unusually broad. The tenant and its advisers may review, at the landlord’s Dallas County offices, “all financial books and records of Landlord and the General Contractor relating to the construction of the Base Building Improvements.” Not the landlord’s records. The general contractor’s too. Then 30 days of good faith negotiation, and then binding arbitration under Section 35, which takes in any dispute under or related to the lease and carves out only applications for a restraining order or an injunction.[10]
Sixty days is the number to diary, and it has the same character as every other short window in a lease: it runs from a document arriving, not from anyone noticing a problem. A tenant that lets it pass has agreed to a rent figure for sixteen years. This is the same structure as a CAM audit deadline, except that a CAM year comes round again and a yield-on-cost determination happens once.
What is not here#
No court has decided this. The federal opinions collection and the state reporter mirrors reachable for this post hold no decision construing a tariff clause in a lease or a build-to-suit construction contract, and I found no 2026 client alert reporting one.[12]
The commentary is also thinner than the volume of search results suggests. A great deal of what surfaces on “tariffs and force majeure” is April to July 2025 vintage, written in the first weeks of the duties. Of the 2026 material, the piece that covers leases, work letters, escalation and change in law in one document is Kilpatrick’s 27 April 2026 takeaways from a presentation by partners Brian Gaudet and John Livingston at the University of Texas School of Law, and it is a conference recap rather than an alert.[9] On the tariff question it asks the right thing and does not answer it: contracts “should clearly address responsibility for tariff establishment or increases and whether tariff changes constitute a ‘change in law’ warranting a price adjustment.”
Its line on the delay clause is the one worth copying out, because it is about the shape of the clause rather than its list: “Many force majeure clauses are poorly written and fail to clearly define triggering events, notice requirements, or the start and end of a force majeure period. Many clauses require notice from the start of a force majeure event, which produced some odd results during the covid pandemic. Notice should be tethered to expected/actual impacts to the project.”
ConforMIS’s lease is exactly the clause that advice is aimed at. Five business days from “the commencement of such delay” asks a landlord to identify the first day of a shortage, which is not a day anybody can point to in a steel market. A notice tied to the first day the schedule actually slips is a thing a project manager can observe.
On escalation Kilpatrick adds the symmetry point, which none of the four leases contains: “Owners should consider negotiating price fluctuation clauses that capture both increases and decreases in costs.” Reata’s bucket is one-directional. Tariffs enacted after the construction contract raise Total Project Costs; a duty repealed or refunded during construction is not mentioned. Given how 2025 and 2026 went, with duties imposed, suspended, litigated and reinstated, a one-way clause is a live asymmetry rather than a theoretical one. Value engineering savings do flow back, so the lease is not uniformly one-sided; it is one-sided about government acts specifically.
Does your lease put the tariff in the delay clause or the rent clause?#
Most leases do not answer the question at all, which means the answer is whatever the force majeure list happens to say about shortages and governmental action, written by someone who was thinking about hurricanes.
The terms that decide the outcome are spread across articles that are not next to each other: whether the delay list is open or closed, whether governmental action is in it, whether “lack of funds” is the only cost exclusion, whether the extension is capped in days, whether there is a cost bucket at all, what the cost bucket multiplies by, what absorbs it first, who keeps the absorber if it goes unused, how many days the tenant has to dispute the final number, and whose books the dispute reaches.
Acrebase reads those terms out of the document and lines them up across a portfolio, so a closed “means only” list in one lease and “governmental actions, inactions or delays” in the next are visible side by side instead of 154,000 characters apart. The clause library holds the version your counsel approved, with the fallbacks ranked in the order you actually trade them, and the AI drafts and redlines against it, so a cost bucket does not arrive one-directional and a 60-day dispute window shows up as a diary entry rather than as a sentence somebody read once before closing. If you have ever found out what your lease says about tariffs by being handed a Final Project Costs Statement, that is the problem.
If you are a landlord, keep the two questions in two clauses and know which one you are negotiating. Time relief belongs in the force majeure list and should include shortages and governmental action; cost relief belongs in the rent or change order article and should be explicit, because no court is going to read it in for you. Reata’s Section 5(b) is the model: name the trigger, require documentation, and make it flow through a defined calculation. If you grant a contingency as the first absorber, say that the absorber is applied only to overages and that you retain the residue, which is what this lease does and what makes the structure financeable. If you are the one building at a fixed price, as in ConforMIS, then cap your own time relief in days, because an uncapped extension you never use is worth less than the fixed-price premium you can charge for it.
If you are a tenant, ask the question in two parts, because the answers are in two places. First: does a duty give the landlord more time? Read whether the list is closed, whether shortages are in it, and whether governmental action is in it. Second: does a duty give the landlord more money? Look in the rent article and the change order article, not the force majeure article. If there is a cost bucket, find out what it multiplies by, and if the answer is a yield constant, do the sixteen-year arithmetic before you agree to the trigger, because 7.6% a year compounding at 1.95% turns a dollar into $1.39. Make the absorber as large and as protected as you can get it, and ask what happens to it if no duty ever arrives. Insist the bucket runs both ways, so a repealed or refunded duty comes back out. Put a day count on the documentation obligation and a consequence for missing it. And diary the dispute window the day the lease is signed, because 60 days from a statement you were not expecting is the shortest clock in the document.
Footnotes
[1] Lease Agreement between TC LEGACY LAND VENTURE, LLC, a Delaware limited liability company, as Landlord, and REATA PHARMACEUTICALS, INC., a Delaware corporation, as Tenant, dated 15 October 2019 on its cover page and carrying an Effective Date of 15 October 2019 in the opening paragraph. Filed as Exhibit 10.1 to Reata Pharmaceuticals’ Form 8-K on 16 October 2019. On the count: a case-sensitive search of the stripped text finds “Tariffs” once, at character offset 24,437 of 341,891, and lower case “tariff” zero times. The term is capitalized the way the lease capitalizes defined terms and appears in neither the definitions schedule nor anywhere else. “Impact/government fees” in clause (iii) is likewise undefined, and the solidus is in the document. Both signature blocks are unexecuted in the filed copy: https://www.sec.gov/Archives/edgar/data/1358762/000156459019037025/reta-ex101_45.htm
[2] Same document, Recitals A and B and Section 1. The Land is an unimproved tract in the City of Plano, Collin County, Texas, described on Exhibit A; the improvements include “a single-tenant podium office building containing approximately 327,400 square feet of Rentable Area (the ‘Building’), and a parking garage.” Section 2 sets up a BSF Notice certified by the Project Architect, with arbitration if the tenant disagrees, and then provides that “Variances in the Building Square Footage shall not increase or decrease the Base Rent,” so the square footage affects nothing in the rent formula. The initial term under Section 3(a) runs to the day before the sixteenth anniversary of the Commencement Date, with five five-year Renewal Options exercisable on an Intent Notice given no earlier than eighteen and no later than twelve months before expiration, and the tenant may renew as to as little as 50% of the Building Square Footage provided it renews full floors and includes the Lab Space. Renewal rent is set by a Rate Notice process in Section 4(b), so the arithmetic in this post is confined to the sixteen year initial term.
[3] Same document, Exhibit I, “Preliminary Budget,” and the definition of “Total Project Costs” in Schedule 1. The budget lines are reproduced in the body as they appear. The 5% contingency figure is 5% of $89,374,834, the sum of the site work and base building line and the parking structure line, which is therefore the guaranteed maximum price contract the definition refers to; the three totals add up exactly. Total Project Costs “means the sum of the following costs, and only the following costs”: Soft Costs as set out in the Preliminary Budget “which shall neither increase nor decrease,” the Land Cost which “shall neither increase or decrease,” the guaranteed maximum price less value engineering savings initiated by the tenant, the Owner’s Contingency, the Improvement Allowance “actually disbursed,” Permit Fees, and Includable Project Costs Overages. Costs paid or reimbursed by the tenant and environmental remediation are excluded. So of the seven components, two are fixed by definition, one can only fall, one depends on disbursement, and one can only rise.
[4] My arithmetic, not the lease’s, and it depends on two assumptions. First, that the cap rather than the yield-on-cost formula governs, which the Preliminary Budget supports but which will not be known until the Final Project Costs Statement: $13,344,000 divided by 0.0760 is $175,578,947.37, against estimated Total Project Costs of $175,616,144, a difference of $37,196.63 of cost or $2,826.94 of annual rent. If the project came in below $175,578,947 the tenant pays the yield-on-cost number and a tariff raises rent at the Yield Constant directly, without needing Section 5(b) to lift the cap, so the direction of the result is the same either way. Second, that the 1.95% escalation applies to the increased figure, which follows from Section 5(c) escalating “the Base Rent in effect as of the final day of the preceding Lease Year” with no carve-out for Section 5(b). On that basis one dollar of qualifying overage above the Remaining Contingency produces $0.0760 of rent in Lease Years 1 and 2, then 1.95% more in each of Lease Years 3 through 16, reaching $0.0996 in Lease Year 16 and totalling $1.3856 across the initial term. The $5,000,000 illustration assumes a fully exhausted contingency: $380,000 in Lease Year 1, about $466,000 in Lease Year 16, about $6.93 million in aggregate. The $339,624 figure for the contingency line is the annual rent attributable to a $4,468,742 component of the cost base, not a separate charge.
[5] Lease between WELLS REIT II - PASADENA CORPORATE PARK, LP, a Delaware limited partnership, as Landlord, and GREEN DOT CORPORATION, a Delaware corporation, as Tenant, for 3465 East Foothill Boulevard, Pasadena, California, “made as of the 5 day of December, 2011.” Filed as Exhibit 10.8 to Green Dot Corporation’s Form 10-K on 29 February 2012, roughly fifteen months after the lease date. Section 32(J) is quoted in full in the body, including the “fIre” capitalization as filed. The attached Commencement Date Confirmation form is unexecuted and still carries blanks reading “dated as of ___ __, 2011.” The Work is the tenant’s, so the extension runs to the tenant’s benefit and postpones the Commencement Date only: https://www.sec.gov/Archives/edgar/data/1386278/000138627812000029/exb108-leaseagreement.htm
[6] Lease between Technology Park X Limited Partnership, c/o The Gutierrez Company, as Landlord, and ConforMIS, Inc., a Delaware corporation, as Tenant, for 45,043 rentable square feet at 600 Technology Park Drive, Billerica, Massachusetts, with a Date of Lease Execution of 19 September 2016 stated on the Reference Data page. Filed as Exhibit 10.1 to ConforMIS, Inc.’s Form 10-Q on 10 November 2016. The Notice of Lease at Exhibit G is undated in the filed copy, reading “dated as of September __, 2016,” so the execution date comes from the Reference Data page. Scheduled Term Commencement Date 1 April 2017, Outside Delivery Date 31 July 2017. On cost: the landlord constructs the improvements described in the final approved plans at Exhibit “C” “at its sole cost and expense,” and Approved Change Orders are payable by the tenant at “the actual cost of Approved Change Orders, less credits for any Landlord’s Work deleted, and plus a contractor’s fee of five percent (5%) of the net change costs.” The lease contains no cost escalation bucket of any kind: https://www.sec.gov/Archives/edgar/data/1305773/000130577316000056/cfms-093016xex101.htm
[7] Lease between BMR-ROAD TO THE CURE LP, a Delaware limited partnership, as Landlord, and ZENO PHARMACEUTICALS, INC., a Delaware corporation, as Tenant, for 10835 Road to the Cure, San Diego, California, “entered into as of this 12 th day of November, 2015 (the ‘Execution Date’).” The cover page also marks the document as “BioMed Realty form dated 8/21/15.” Filed as Exhibit 10.9 by Zentalis Pharmaceuticals, LLC on 6 March 2020, four and a half years after execution; Zeno became Zentalis, and the 2020 date is the filing, not the lease. The body quotes the clause’s second half; the omitted first half covers acts of God, fire, earthquake, floods and Severe Weather Conditions, and the full definition contains no cost or funds carve-out and no cap on the extension. A page number artifact, “19,” sits between “the acts” and “or omissions” in the stripped text and has been removed from the quotation. The sentence shutting off the tenant’s remedy follows immediately after the definition: https://www.sec.gov/Archives/edgar/data/1725160/000119312520065202/d827765dex109.htm
[8] Smith Currie Oles, “Legal Q and A: Tariffs and Construction Contracts,” published 24 September 2026 in the firm’s Common Sense Contract Law newsletter, stated on the page to have been originally published in The Construction Broadsheet on 22 September 2026. No individual attorney byline appears on the page. The second quotation is the firm’s list of what a well-drafted clause should do from the contractor’s or subcontractor’s perspective, and the piece adds that “Owners will typically request and require more stringent clauses with more involved mitigation efforts and reporting requirements.” The Q and A addresses contracts between contractors and owners rather than leases, so the application to a landlord’s cost recovery under a lease is mine: https://www.smithcurrie.com/publications/common-sense-contract-law/legal-q-and-a-tariffs-and-construction-contracts/
[9] Kilpatrick Townsend & Stockton LLP, “5 Key Takeaways: Construction Contracts, Lease Agreements, and Other Real Estate Contracts,” 27 April 2026, reporting a presentation by partners Brian Gaudet and John Livingston at the University of Texas School of Law 48th Annual Corporate Counsel Institute. The three quotations in the body are from takeaways 3, 4 and 5, on force majeure, price fluctuation clauses and supply chain risk. It also advises “strict procedures and deadlines for design plan approval, change orders, substantial completion, and the disbursement of allowances” and that “the work letter should align with the underlying construction contracts.” Because it is a conference recap rather than an alert, it states positions without working through clause text: https://ktslaw.com/insights/perspectives/2026/4/5-key-takeaways-construction-contracts-lease-agreements-and-other-real-estate-contracts
[10] Same Reata lease, Section 5(c), Section 5(d) and Section 35. Section 5(c): base rent increases 1.95% per annum beginning on the first day of the third Lease Year. Section 5(d) runs in order: the Estimated Base Rent statement 30 days before the Commencement Date, the Final Project Costs Statement within 120 days after it, the 60 day dispute notice and the deemed acceptance, review of “all financial books and records of Landlord and the General Contractor relating to the construction of the Base Building Improvements” at the landlord’s Dallas County offices, 30 days of negotiation, then arbitration. During a dispute the tenant pays rent based on the landlord’s statement subject to true-up. Section 35(a) also provides that whether a party may bring an application for an injunction in court “is neither arbitrable nor subject to arbitration.”
[11] Same Reata lease, definitions of “Owner’s Contingency” and “Remaining Contingency” in Schedule 1, both quoted in the body, and Total Project Costs item (d). The permitted use restriction and the landlord’s right to retain the residue are in the Owner’s Contingency definition. The claim in the body that nothing obliges the landlord to preserve the contingency is an absence rather than a provision: Schedule 1 limits the uses but sets no minimum balance, requires no notice on drawdown and no tenant consent, and the tenant’s first sight of the balance is the Estimated Base Rent statement. Note also that the Owner’s Contingency is defined as a hard cost contingency while its permitted uses extend to “hard and soft construction costs.”
[12] On what I could not find. The federal opinions collection and the state reporter mirrors reachable for this post hold no decision construing a tariff or import duty clause in a commercial lease or a build-to-suit agreement, none on whether a duty is a “governmental action” within a force majeure definition, and none on whether “lack of funds” excludes a cost increase. I found no 2026 client alert reporting such a decision. Disputes of this size are usually arbitrated, and Reata’s own lease sends everything to arbitration, so this is an absence of findable decisions rather than an absence of disputes. The four leases here were chosen because they disagree with each other on the width of the delay list, not as a sample, and the filed population is limited to documents material enough to be a public company’s exhibit, so nothing here supports a claim about market practice. On the commentary: the bulk of what is indexed on tariffs and force majeure dates from April to July 2025, including Peckar & Abramson’s “Construction Contracts That Mitigate Impacts From Tariffs and Immigration Enforcement” of 7 April 2025 and Seyfarth’s “Drafting Smarter: Force Majeure and Price Escalation Clauses in a Tariff-Heavy Era” of 24 July 2025, and Quinn Emanuel’s June 2026 client alert on force majeure in AI data center contracts is adjacent but concerns compute and power contracts rather than leases.
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