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ii) If Developer does not achieve~Substantial Completion of the Public Parking Facility (and Retail/Cinema Block Streetscape if applicable) by November 18, 2005, fifty percent (50%) of the unexpended General Conditions and Contingency funds will be paid to Developer when retention is released and the remaining General Conditions and Contingency funds will remain with City and Agency. 4. Paragraph 3.D.2 is replaced with the following language: In addition to the Parking Facility Costs, City and Agency shall pay Developer a fee for Services in an amount equal to the lesser of (a) three percent (3%) of the Cost of the Work, as confirmed by audit or (b) Five Hundred and Twenty Two Thousand Dollars ($522,000) (the "Fee"). This Fee shall be paid monthly, based on the Cost of the Work approved for reimbursement as described in Section 3(H), beginning in the month Developer commences excavation for the Public Parking Facility. The Fee shall be subject to adjustment upon completion of the Project based upon the audited Cost of the Work, but shall in no event exceed $522,000. All amounts paid to Developer as a fee shall be included in calculating the Not-to-Exceed Parking Facility Cost. 5. Paragraph 3.D.3 is deleted in its entirety. 6. Paragraph 3.D.4 is deleted in its entirety. 7. Section 3.E -Change Orders - is replaced with the following language: 1. In consideration of the fact that Developer was responsible for the investigation of the Project Site and for the design of the Public Parking Facility, and of the parties' agreement to the increased Not-to-Exceed Parking Facility Cost set forth in paragraph 3 (Section 3.C), above, Developer agrees, for itself and on behalf of its Consultants and Contractors, that the City and Agency will not pay more than the Not- to-Exceed Parking Facility Cost on account of Services or work that Developer or a Consultant or Contractor could otherwise claim as a change order, extra services or 6 770727v16 33786/0001