Common use of Development decisions Clause in Contracts

Development decisions. The Managing Member shall monitor the --------------------- completion of all work at the Properties Under Development in conformance with a development budget ("Development Budget"), in accordance with a schedule ("Development Schedule") and pursuant to plans and specifications ("Development Plans and Specifications"), which have been approved by NYSTRS and which are attached hereto as part of the Business Plan attached as Exhibit E. Any Undeveloped Properties that the Company may decide to develop from time to time shall be considered "New Projects" and shall henceforth be considered Properties Under Development for all intents and purposes of this Agreement. Likewise, Properties Under Development which are completed shall henceforth be considered Developed Properties for all intents and purposes of this Agreement. The Company from time to time, with the approval of the Management Committee, may decide to acquire new properties, and upon acquisition such new properties shall be considered Properties for all intents and purposes of this Agreement. Depending upon the circumstances, such newly acquired properties may be Developed Properties, Properties Under Development or Undeveloped Properties. The Management Committee shall approve all future Development Budgets, Development Schedules and Development Plans and Specifications relating to the Properties Under Development or New Projects. All Properties Under Development shall be constructed in accordance with existing construction contracts which have been approved by NYSTRS. All new construction contracts for Properties under Development or New Projects must be guaranteed maximum price contracts, stipulated sum contracts or otherwise approved by the Management Committee. All requisitions for payment or periodic reports required to be delivered by the developer to the Company or its representative under the Development Agreements shall, at the option of NYSTRS, be delivered also to NYSTRS and/or its construction consultant, it being understood that such construction consultant shall have no independent approval rights but shall review the requisitions for the benefit of NYSTRS. Additional costs attributable to change orders, cost overruns or other obligations of the Company shall be covered by borrowings of the Company or through Additional Capital Contributions, as proposed by the Managing Member and, if the applicable modification to any Development Budgets, Development Schedules and Development Plans and Specifications, taken in the aggregate as to all modifications, would constitute a "Material" modification, approved by the Management Committee. The Managing Member shall use reasonable efforts to avoid multiple requests for Additional Capital Contributions in any one month. The Company shall commence development of the Undeveloped Properties and New Projects pursuant to Development Budgets, Development Schedules and Development Plans and Specifications proposed by the Managing Member and approved by the Management Committee. The Management Committee must approve any Material modifications to the Development Budgets, the Development Schedules or the Development Plans and Specifications for the Undeveloped Properties, the Properties Under Development and New Projects. The Managing Member shall monitor all development of the Properties Under Development, the Undeveloped Properties and New Projects pursuant to the Development Agreements and shall keep the Management Committee informed of all development activities with regard thereto. With regard to the Undeveloped Properties, the Managing Member annually at the commencement of each Fiscal Year shall propose annual development plans for development of the Undeveloped Properties proposed to be developed in the ensuing Fiscal Year in concept form for the approval of the Management Committee, setting forth, amongst other factors, the Undeveloped Properties to be developed, the proposed yield parameters and expected capital and financing requirements, together with material information concerning the remaining Undeveloped Properties in each Subportfolio that are not covered by the conceptual development plans. After approval of the annual conceptual development plans by the Management Committee, the Managing Member shall develop detailed Development Budgets, Development Schedules and Development Plans and Specifications for the approval of the Management Committee. The Development Budgets, Development Plans and Specifications and Development Plans and Specifications approved by the Management Committee shall become part of the annual Business Plan. All proposed borrowings or required Additional Capital Contributions requested in the year in question for future development shall be set forth in the components of such approved Business Plan. The Managing Member shall proceed to develop the Properties Under Development, the Undeveloped Properties and the New Projects in conformance with the approved Business Plan. Notwithstanding the above, the Managing Member may make modifications to the Development Budgets, Development Schedules and Development Plans and Specifications for a single Property Under Development or New Project which are not "Material" without the approval of the Management Committee. For purposes of this Section 6.5:

Development decisions. The Managing Member shall monitor the --------------------- completion of all work at the Properties Under Development in conformance with a development budget ("“Development Budget"”), in accordance with a schedule ("“Development Schedule"”) and pursuant to plans and specifications ("“Development Plans and Specifications"”), which have been approved by NYSTRS and which are attached hereto as part of the Business Plan attached as Exhibit E. Any Undeveloped Properties that the Company may decide to develop from time to time shall be considered "“New Projects" ” and shall henceforth be considered Properties Under Development for all intents and purposes of this Agreement. Likewise, Properties Under Development which are completed shall henceforth be considered Developed Properties for all intents and purposes of this Agreement. The Company from time to time, with the approval of the Management Committee, may decide to acquire new properties, and upon acquisition such new properties shall be considered Properties for all intents and purposes of this Agreement. Depending upon the circumstances, such newly acquired properties may be Developed Properties, Properties Under Development or Undeveloped Properties. The Management Committee shall approve all future Development Budgets, Development Schedules and Development Plans and Specifications relating to the Properties Under Development or New Projects. All Properties Under Development shall be constructed in accordance with existing construction contracts which have been approved by NYSTRS. All new construction contracts for Properties under Development or New Projects must be guaranteed maximum price contracts, stipulated sum contracts or otherwise approved by the Management Committee. All requisitions for payment or periodic reports required to be delivered by the developer to the Company or its representative under the Development Agreements shall, at the option of NYSTRS, be delivered also to NYSTRS and/or its construction consultant, it being understood that such construction consultant shall have no independent approval rights but shall review the requisitions for the benefit of NYSTRS. Additional costs attributable to change orders, cost overruns or other obligations of the Company shall be covered by borrowings of the Company or through Additional Capital Contributions, as proposed by the Managing Member and, if the applicable modification to any Development Budgets, Development Schedules and Development Plans and Specifications, taken in the aggregate as to all modifications, would constitute a "“Material" ” modification, approved by the Management Committee. The Managing Member shall use reasonable efforts to avoid multiple requests for Additional Capital Contributions in any one month. The Company shall commence development of the Undeveloped Properties and New Projects pursuant to Development Budgets, Development Schedules and Development Plans and Specifications proposed by the Managing Member and approved by the Management Committee. The Management Committee must approve any Material modifications to the Development Budgets, the Development Schedules or the Development Plans and Specifications for the Undeveloped Properties, the Properties Under Development and New Projects. The Managing Member shall monitor all development of the Properties Under Development, the Undeveloped Properties and New Projects pursuant to the Development Agreements and shall keep the Management Committee informed of all development activities with regard thereto. With regard to the Undeveloped Properties, the Managing Member annually at the commencement of each Fiscal Year shall propose annual development plans for development of the Undeveloped Properties proposed to be developed in the ensuing Fiscal Year in concept form for the approval of the Management Committee, setting forth, amongst other factors, the Undeveloped Properties to be developed, the proposed yield parameters and expected capital and financing requirements, together with material information concerning the remaining Undeveloped Properties in each Subportfolio that are not covered by the conceptual development plans. After approval of the annual conceptual development plans by the Management Committee, the Managing Member shall develop detailed Development Budgets, Development Schedules and Development Plans and Specifications for the approval of the Management Committee. The Development Budgets, Development Plans and Specifications and Development Plans and Specifications approved by the Management Committee shall become part of the annual Business Plan. All proposed borrowings or required Additional Capital Contributions requested in the year in question for future development shall be set forth in the components of such approved Business Plan. The Managing Member shall proceed to develop the Properties Under Development, the Undeveloped Properties and the New Projects in conformance with the approved Business Plan. Notwithstanding the above, the Managing Member may make modifications to the Development Budgets, Development Schedules and Development Plans and Specifications for a single Property Under Development or New Project which are not "“Material" ” without the approval of the Management Committee. For purposes of this Section 6.5: (a) A “Material” change to a Development Budget shall mean an increased cost of more than the greater of (i) ten percent (10%) or (ii) $20,000, in any single line item; provided that not more than fifty percent (50%) of the contingency line item is committed and the total overall cost for the Property Under Development or New Project is not increased; and provided, further, that savings attributable to any line item covering any “hard” costs shall not be transferred to any line item covering any “soft” costs, or vice versa, without the approval of the Management Committee. (b) A “Material” change to a Development Schedule shall mean a delay in construction of at least three (3) months (exclusive of unavoidable delay) provided that the total cost for the Property Under Development or New Project is not increased. (c) A “Material” change in the Development Plans and Specifications means any proposed change orders that would cause a Material change in the Development Budget as set forth in Section 6.5(a).