Tenant’s Work So long as Landlord has approved Tenant's Plans in writing, as hereinabove referenced, Landlord and Tenant agree that Landlord's general contractor will construct the tenant improvements set forth on the Tenant's Plans (hereinafter ''Tenant's Work'') with respect to the Premises at cost (as hereinafter defined), plus an amount for overhead and general conditions of five and one-half percent (5.50%) of such cost, plus a Landlord's contractors fee of six percent (6%) of such aggregate cost (i.e. cost plus overhead and general conditions). In order to provide for payment by Tenant of the cost of Tenant's Work and any Change Orders provided for hereunder, including but not limited to the Net Additional Cost of Landlord's Work and any Additional Cost due to Change Orders in Tenant's Work as aforesaid, Tenant expressly covenants with Landlord that Tenant agrees to pay Landlord, or its contractor, as the case may be, within ten (10) business days of receipt of each of Landlord's monthly requisitions therefor, the amount of such requisition for Tenant's Work and/or Change Orders, including without limitation the Net Additional Cost of Landlord's Work, performed in the Premises for the preceding month based on a percentage of completion basis, subject, however, to retainage as follows: (i) until such time as the Landlord's Work and Tenant's Work has been fifty percent (50%) completed, retainage in the amount of ten percent (10%) of each requested requisition, shall be deducted therefrom; and (ii) from and after that certain date on which Landlord's architect certifies to Tenant that Landlord's Work and Tenant's Work has been fifty percent (50%) completed, retainage in the amount of five percent (5%) of each requested requisition shall be deducted therefrom. All of such retainage shall be paid by Tenant to Landlord upon Substantial Completion (as hereinafter defined) of the Landlord's Work and the Tenant's Work, subject, however, to retainage in the amount of two hundred fifty percent (250%) of the estimated cost of completion of the Punch List Work (as hereinafter defined), which such cost shall be reasonably estimated by Landlord. Such retainage for the Punch List Work shall be paid by Tenant upon completion of the Punch List Work and receipt by Tenant of the Certificate of Final Completion (as hereinafter defined). Each requisition shall include copies of all subcontractor's and supplier's applications for payment and satisfactory evidence of payment of all previous invoices submitted by subcontractors and suppliers. In addition, Landlord's architect shall certify that the subject work specified in each of such monthly requisitions has been substantially completed, and a copy of such certification shall accompany each requisition furnished to Tenant hereunder. In no event shall any of such costs due and payable hereunder remain unpaid by Tenant as of the Term Commencement Date, except for any such retainage for Punch List Work as aforesaid. For purposes hereof, the cost of the Net Additional Cost of Landlord's Work and the Tenant's Work performed by Landlord's contractor shall be the aggregate of all Additional Costs specified in Landlord's Change Order Notices, excepting only with respect to Change Orders which are withdrawn by Tenant in accordance with the foregoing provisions. Landlord and Tenant further agree that the certification of cost by Xxxxxxxxx Construction Co., Inc. shall be based on the definition of cost as more particularly set forth in Exhibit L hereto. Any changes to the Tenant's Plans after the approval of the Tenant's Plans (and any changes to Landlord's Plans after the approval thereof as set forth in Section 3.1 above) shall be in accordance with the form of Work Change Order attached hereto as Exhibit K. As set forth above, within twenty-one (21) days after approval of Tenant's Plans, Landlord shall provide Tenant with construction cost estimates based on Tenant's Plans, including a breakdown by line-item and category (Landlord and Tenant agreeing, however, that in the case of items costing less than one thousand dollars ($1,000.00), then such breakdown shall be provided only if requested by Tenant), the name of the subcontractor, if available, and the work and/or materials to be provided. Unless otherwise mutually agreed upon by Landlord and Tenant, in the pricing of the cost of Tenant's Work (specifically excluding Landlord's Work hereunder), Landlord agrees to obtain three (3) qualified bids from subcontractors selected from a master list of subcontractors mutually prepared and agreed upon by Landlord and Tenant prior to the soliciting of bids for any item of Tenant's Work exceeding twenty-five thousand dollars ($25,000.00). The subcontractor selected for the performance of the work shall be the subcontractor with the lowest bid price; provided, however, that if Landlord, in its reasonable judgment, determines that due to changed conditions (such as increased work commitments on the part of the respective subcontractor, or other pertinent factors) the selection of such low bidder could result in Subcontractor Delay Days (as hereinafter defined), then Landlord shall provide written notice (a "Landlord's Subcontractor Notice") thereof to Tenant, which notice shall identify the low bidder and next lowest bidder and indicate the number of Subcontractor Delay Day(s) that would result from selection of the low bidder (giving due consideration of Landlord's obligations to use diligent efforts to accelerate construction to make up for lost time to delays). Tenant shall have four (4) business days upon receipt of such Landlord's Subcontractor Notice to notify Landlord that either (i) Landlord should proceed with the original low bidder (in which event the Outside Delivery Date shall be extended for the number of days equal to the number of Subcontractor Delay Days indicated in Landlord's Subcontractor Notice), or (ii) Landlord's selection of the next lowest bidder is acceptable to Tenant (in which event the Outside Delivery Date shall not be extended) Failure by Tenant to respond within said four (4) day period shall be deemed to constitute acceptance by Tenant of Landlord's selection of the next lowest bidder. Landlord agrees to use reasonable efforts to notify Tenant, simultaneously or forthwith upon Tenant's notification to Landlord as to its election set forth in (i) and (ii) above, if Landlord has knowledge or a reasonable basis to believe that a Subcontractor Delay Day(s) will likely result due to Landlord's notification requirements hereunder, regardless of whether or not Tenant elects to proceed with the original lowest bidder or not. Upon completion of Landlord's pricing of Tenant's Work as aforesaid, Landlord shall prepare and submit to Tenant a line-item budget for the Tenant's Work, which budget shall include without limitation, Landlord's contractors fee. Within not more than five (5) business days after receipt thereof, Tenant shall comment upon the proposed budget and may request that Landlord rebid certain portions of Tenant's Work, and thereafter, Landlord and Tenant shall use reasonable good faith efforts to reach an agreement on the budget as soon as thereafter as possible (after approval by both Landlord and Tenant, the "Approved Budget"). In connection therewith, if Tenant requests that Landlord rebid certain portions of Tenant's Work, (i) Landlord and Tenant shall each approve those line items of the proposed budget that are acceptable and shall note their respective objections to those line items that are unacceptable to each of them, and, if necessary due to Tenant's request to rebid certain portions of Tenant's Work, and (ii) Landlord may require an adjustment in the Outside Delivery Date (as hereinafter defined) equal to the actual number of days (the "Repricing Delay Days") as certified by Landlord and its architect that, despite Landlord's diligent efforts, the Scheduled Term Commencement Date was delayed by such Tenant's request that Landlord rebid certain portions of Tenant's Work. In addition, if Tenant requests that Landlord rebid certain portions of Tenant's Work, within thirty (30) days upon receipt of an invoice therefor (but in no event later than the Term Commencement Date), Tenant shall reimburse Landlord for all third party out-of-pocket costs and expenses, including architectural fees, engineering fees and other reasonable costs and expenses incurred by Landlord in connection with any such repricing of the Tenant's Work prior to the establishment of an Approved Budget. Such costs and expenses due from Tenant to Landlord hereunder shall exclude costs and expenses for which no invoices or other reasonable documentation is available. Upon Tenant's request, Landlord shall provide Tenant with copies of all bids, all final subcontracts with each subcontractor, invoices for materials and subcontractors' applications for payment. Tenant shall have the right to audit the cost of the Tenant's Work in the manner set forth in Section 5.2 of this Lease during construction of the Tenant's Work. In the event Tenant is unsatisfied with the costs of Tenant's Work (or any portion thereof) upon receipt of such work, or in the event Tenant is not satisfied with the subcontractor bids obtained by Landlord, then Tenant may, within ten (10) business days of receipt of such cost price or subcontractor bids from Landlord, elect to request Change Orders to Tenant's Plans, whereupon the Landlord shall solicit new bids and reprice the cost of Tenant's Work (or any portion thereof) in accordance with the preceding provisions, and Tenant shall be subject to any resulting days of Tenant's Delay and Additional Cost incurred in connection therewith as aforesaid. Tenant shall also have the right to audit the cost of the Tenant's Work within ninety (90) days following the final completion thereof, however, such audit shall be limited to confirm that Landlord has paid and has received appropriate lien waivers from all subcontractors in accordance with the Approved Budget, and any Change Orders requested by and not withdrawn by Tenant hereunder. Upon commencement of the Tenant's Work, Landlord and Tenant hereby further agree, each acting reasonably and in good faith, to attend and participate in weekly construction meetings with Landlord's general contractor's construction manager(s) during such construction process.
