AND 5.1(A)(14) HEREOF, (II) THE
AMOUNTS DESCRIBED IN SECTION 5.1(A)(5) HEREOF (EXCEPT FOR THE "FINANCE (LOAN
FEE)" SHOWN IN THE BASELINE BUDGET ATTACHED HERETO AS EXHIBIT "G," WHICH SHALL
BE INCLUDED IN TOTAL PROJECT COSTS FOR PURPOSES OF THIS SECTION 5.1(A(10))) AND
(III) THE BROKERAGE COMMISSION PAYABLE TO LANDLORD OR ITS AFFILIATE PURSUANT TO
SECTION 5.1(A)(9), IN EACH CASE AS SET FORTH IN THE FINAL BUDGET APPROVED BY
TENANT PURSUANT TO SECTION 4.3, LESS
(B) THE BROKERAGE COMMISSION PAID TO LANDLORD OR ITS AFFILIATE PURSUANT TO
SECTION 5.1(A)(9) ABOVE;
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(11)
THE COST OF LANDSCAPING AND HARDSCAPE AS IS
SHOWN ON THE FINAL PLANS AND SPECIFICATIONS, AS MODIFIED BY ANY CHANGE ORDER
PURSUANT TO THE PROVISIONS OF SECTION 4.10 HEREOF, OR OTHERWISE APPROVED BY
TENANT, SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED;
(12)
ANY DUES OR ASSESSMENTS PAID BY LANDLORD TO ANY
OWNERS' ASSOCIATION, INCLUDING VISTA OAKS BUSINESS PARK AND OAK RIDGE BUSINESS
CENTER, FOR THE PERIOD BETWEEN THE DATE LANDLORD ACQUIRES THE REAL PROPERTY AND
THE COMMENCEMENT DATE;
(13)
THE COST OF ANY ENVIRONMENTAL ASSESSMENT
REQUESTED BY TENANT; AND
(14)
THE COST OF THE TITLE INSURANCE POLICY TO BE
PROVIDED PURSUANT TO SECTION 18.19.
(B)
NOTWITHSTANDING THE FOREGOING, TOTAL PROJECT
COSTS SHALL NOT INCLUDE ANY OF THE FOLLOWING:
(1)
FINANCING COSTS AFTER THE COMMENCEMENT
DATE;
(2)
COSTS PAYABLE TO AFFILIATES OF LANDLORD TO
THE EXTENT THAT THEY ARE HIGHER THAN THE COSTS WOULD BE FOR INDEPENDENT THIRD
PARTIES PERFORMING THE SAME WORK;
(3)
COSTS THAT RESULT FROM THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF LANDLORD OR ANY OF ITS AFFILIATES, EXCEPT FOR THE
NEGLIGENT FAILURE OF LANDLORD TO PREVENT TENANT OR ANY THIRD PARTY (OTHER THAN
LANDLORD'S CONTRACTORS AND CONSULTANTS) FROM TAKING ANY ACTION ("PASSIVE
NEGLIGENCE");
(4)
COSTS THAT ARISE FROM ANY DAMAGE OR
DESTRUCTION TO THE BUILDING AND THE OTHER IMPROVEMENTS;
(5)
LANDLORD'S INTERNAL COSTS AND EXPENSES,
INCLUDING LANDLORD'S OVERHEAD;
(6)
TRAVEL COSTS FOR LANDLORD, ITS AFFILIATES
AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, ETC.;
(7)
COSTS OF ENVIRONMENTAL ASSESSMENTS, UNLESS
REQUESTED BY TENANT, AND ABATEMENTS;
(8)
ANY AMOUNTS FOR WHICH ANY OTHER PERSON
REIMBURSES LANDLORD (INCLUDING, BUT NOT LIMITED TO, INSURANCE PROCEEDS,
CONDEMNATION PROCEEDS AND AMOUNTS REBATED TO LANDLORD BY ANY CONTRACTOR OR
CONSULTANT);
(9)
CHARITABLE OR POLITICAL CONTRIBUTIONS;
(10)
ANY OTHER COST OR EXPENSE NOT REQUIRED FOR THE
CONSTRUCTION OR DEVELOPMENT OF THE BUILDING OR THE IMPROVEMENTS WHICH IS NOT
INCLUDED IN THE BUDGET APPROVED BY TENANT PURSUANT TO THE PROVISIONS OF SECTION
5.1(A) (IT IS NOT THE INTENT OF THIS PARAGRAPH (10)
15
to limit the cost or expense of any item shown in the budget to the dollar
amount shown in the budget for such item);
(11)
ADDITIONAL COSTS INCURRED AS A RESULT OF
LANDLORD'S FAILURE TO MAKE A PAYMENT ON A TIMELY BASIS TO ITS CONTRACTORS,
CONSULTANTS OR LENDERS;
(12)
CONSTRUCTION COSTS FOR ITEMS OTHER THAN THOSE
SET FORTH IN THE FINAL PLANS AND SPECIFICATIONS OR A CHANGE ORDER APPROVED
PURSUANT TO THE PROVISIONS OF SECTION 4.10 HEREOF;
(13)
LEGAL FEES