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making satisfactory progress with the Services, City and Agency may, in their sole discretion, agree to reduce retention withheld for individual subcontractors at an earlier time, provided, however that City and Agency shall withhold an amount equal to at least five percent (5%) of the Cost of the Work completed and in place. As a condition to any reduction in retention, Developer shall provide City and Agency with written consent to the release of any retained funds by the surety or sureties of the Contractor and subcontractor to be paid. When the City, Agency and Developer have agreed that the Services are substantially complete, the City and Agency may, at their sole discretion, release the remaining retained funds excess of an amount equal to One Hundred and Fifty percent (150%) of value of any remaining complete or disputed work as shown on the list attached to the Notice of Substantial Completion. Those funds will be released no less than thirty five (35) days after the City has accepted the Streetscape Improvements and Street Modifications and has recorded a Notice of Completion for the Streetscape Improvements and Street Modifications. Withholdina Pavment. City and Agency may withhold, or on account of subsequently discovered evidence nullify, the whole or a part of any payment to such extent as may be necessary to protect City and Agency from loss, including costs and attorneys' fees, on account of (1) defective or deficient work product not remedied; (2) claims filed or reasonable evidence indicating probable filing of a claim or claims; (3) failure of Developer to make payments properly to its employees, Contractors or Consultants; or (4) failure to substantially adhere to the Project Schedule or to achieve sufficient progress with the Services such that Developer is unlikely to achieve timely completion. 3. ADDITIONAL SERVICES. In the event City or Agency desires the performance of additional services not otherwise included within the services described in Exhibit "A," such services shall be authorized by City and Agency by Change Order or task order approved in advance of the performance thereof. Such amendment or task order shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefor, the time of I. Atty/Agr/2005.072 101105 840847v12 33786/0001 LBack 10