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o. .. '-- 1. The Not-to-Exceed Parking Facility Cost includes funds for General '-- Conditions and Contingency in the amount of Four Hundred Fifty-One Thousand Two Hundred and Seventeen Dollars ($451,217.00). As set forth above, up to $230,000 of the General Conditions and Contingency funds are earmarked for payment of General Conditions. City and Agency must approve any payment of the General Conditions and Contingency funds. In order to obtain payment of any portion of the General Conditions and Contingency funds, other than the amounts ear marked for General Conditions as described above, Developer must establish to the satisfaction of City and Agency that the costs to be paid are attributable to unexpected conditions, non-negligent design errors or omissions, or other factors outside of Developer's direct control. 2. When the Public Parking Facility is complete and has been accepted by the City and Agency, any unexpended contingency funds will be distributed as follows: i) If the City and Agency determine, in their reasonable discretion, that Developer achieved Substantial Completion of the Public Parking Facility no later than November 18, 2005, one hundred percent (100%) of the unexpended General Conditions and Contingency funds will be paid to Developer when retention is released. If City and Agency contract with Developer for construction of the Retail/Cinema Block Streetscape, Developer must also achieve Substantial Completion of the Retail/Cinema Block Streetscape by the November 18, 2005 date in order to receive payment of the unexpended General Conditions and Contingency funds. For purposes of this paragraph 3.C.2.i, the term Substantial Completion shall mean that stage of completion when the Public Parking Facility (and Retail/Cinema Block Streetscape if applicable) are sufficiently complete ~n accordance with the Contract Documents so that the City and Agency can occupy or utilize the Public Parking Facility for its intended purpose, including any approval, inspection, or certification required from any public entity as a necessary precondition to beneficial occupancy, unless such public approval is delayed through no fault of the Developer, but subject to the completion of finishing details, minor omissions and corrections, decorations and mechanical and building system adjustments of the kind normally found on an architectural "punch list" and provided that Developer is working diligently to complete the remaining items. 5 770727vI633786/0001 .. . -.,. .,-+-.