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

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City Engineer shall so notify the Developer as soon as reasonably practicable in writing specifying the reason(s) therefor. Nothing in this Acquisition Agreement shall be deemed to prohibit the Developer from contesting in good faith the validity or amount of any mechanic's or materialman's lien nor limit the remedies available to the Developer with respect thereto so long as such delay in performance shall not subject the Facilities or any Discrete Component thereof to foreclosure, forfeiture or sale. In the event that any such lien is contested, the Developer shall only be required to post or cause the delivery of a bond in an amount equal to) twice the amount in dispute with respect to any such contested lien, so long as such bond is drawn on an obligor and is otherwise in a form acceptable to the City Engineer. D. Retention. The City shall withhold in the Improvement Fund an amount equal to ten percent (10 %) of the Purchase Price of each Facility or Discrete Component to be paid hereunder. Provided no claims have been filed, any such retention will be released to the Developer as soon as practicable following 35 days after the filing of a Notice of Completion acceptable to the City Engineer, contingent in any event upon the availability of monies in the Improvement Fund therefor. If claims have been filed, the City shall have no obligation to pay the retention until all claims have been satisfied or resolved to the City's satisfaction or surety bonds acceptable to the City and as permitted under Paragraph C, above, have been posted by the Developer or the Contractor. No retention shall apply if the Developer proves to the Finance Director's satisfaction that the Developer's contracts for the Facilities (or Discrete Components) provide for the same retention as herein provided, so that the Purchase Price paid for the Facility or Discrete Component is at all times net of the required retention E. Frequency. Unless otherwise agreed to by the City Engineer and the City Director of Finance, no more than one Payment Request for Purchase Price for Facilities or Discrete Components shall be submitted by the Developer in any calendar month, although a single Payment Request may include a request for payment for more than one Facility or Discrete Component. F. Right -of -Way. Payments for any right -of -way or other real property interests relating to the Facilities described in Exhibit B hereto shall be based upon appraisals of the respective land to be acquired in a form acceptable to the City Engineer, or upon such other basis as the City Engineer shall determine is appropriate in the circumstances. Section 5.07. Use of Excess Funds in the Improvement Fund. If the construction and acquisition of all the Facilities theretofore listed in Exhibit A and B have been completed and the Purchase Prices (including any retentions described in 5.06(D) above) with respect thereto have been paid, and funds remain on deposit in the Improvement Fund, such excess funds will be used to pay debt service on the Bonds as provided in the Fiscal Agent Agreement. Section 5.08. Defective or Nonconforming Work. Any work which does not conform with the requirements of the approved Plans or which is found unacceptable or deficient by the City's Engineer shall be remedied or removed and replaced by the Developer at the Developer's sole cost and expense, together with any other work which may be displaced in so doing, and no -17-