Agmt10 R.C. Peninsula Park, LLC (2)

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Section 5.05. Payment. Upon approval of the Payment Request by the City Engineer, the City Engineer shall sign the Payment Request and forward the same to the City's Director of Finance. Upon receipt of the reviewed and fully signed Payment Request, the City's Director of Finance shall, within the then current City financial accounting payment cycle but in any event within twenty (20) days of receipt of the approved Payment Request, request the same to be paid by the Fiscal Agent under the applicable provisions of the Fiscal Agent Agreement, to the extent of funds then on deposit in the Improvement Fund. Any approved Payment Request not paid due to an insufficiency of funds in the Improvement Fund, shall be paid promptly following the deposit into the Improvement Fund of proceeds of any investment earnings or other amounts transferred to the Improvement Fund under the terms of the Fiscal Agent Agreement The Purchase Price paid hereunder for any Facility or Discrete Component shall constitute payment in full for such Facility or Discrete Component, including, without limitation, payment for all labor, materials, equipment, tools and services used or incorporated in the work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of such Facility or Discrete Component, as specified in the Plans. Section 5.06. Restrictions on Payments. Notwithstanding any other provisions of this Acquisition Agreement, the following restrictions shall apply to any payments made to the Developer under Sections 5.02 and 5.05 hereof: A. Amounts of Payments. Subject to the following paragraphs of this Section 5.06, payments for each Discrete Component will be made only in the amount of the Purchase Price for the respective Discrete Component; however, if the Actual Cost exceeds the Budgeted Cost for a Discrete Component, the excess shall be borne by the Developer until such time as (i) investment earnings are deposited in, or funds are otherwise transferred to, the Improvement Fund in accordance with the terms of the Fiscal Agent Agreement or (ii) a Budgeted Cost for another Discrete Component is greater than the Actual Cost therefore, in which event the earnings and savings shall be applied to reduce any excess of Actual Cost over Budgeted Cost previously paid for any Facility by the Developer. Any savings attributable to the Actual Cost being less than Budgeted Cost which are not disbursed under the previous sentence to cover unreimbursed Actual Costs or as otherwise consented to by the Developer shall be (i) carried forward to be credited against future cost overruns, or costs related to supplemental agreements (change orders), or if not needed for either of the foregoing purposes; or (ii) disposed of as provided in the Fiscal Agent Agreement for excess monies in the Improvement Fund following the funding of the Actual Costs of all Facilities. Nothing herein shall require the City in any event (i) to pay more than the Actual Cost of a Facility or a Discrete Component or (ii) to make any payment beyond the available funds in the Improvement Fund. The parties hereto acknowledge and agree that all payments to the Developer for the Purchase Prices of Facilities or Discrete Components are intended to be reimbursements to the Developer for monies already expended or for immediate payment by the Developer (or directly by the City) to third parties in respect of such Facilities or Discrete Components. -15-