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City of Everett 00 72 00 - 32 writing to the Contractor his or her reasons for not concurring with the estimate. If the Owner's Representative recommends payment and the Owner concurs,the Owner will pay the Contractor a progress payment on the basis of the approved partial payment estimate,less retainage and any amounts the Owner may withhold pursuant to Contract or law. The recommendation of the Owner's Representative is not conclusive,fmal or binding upon the Owner. In the event the Owner's Representative does not concur with the estimate,the Contractor may make the changes necessary to obtain the Owner's Representative's concurrence and resubmit the partial payment estimate,or submit the original progress payment estimate directly to the Owner,indicating in writing its reasons for refusing to make the changes necessary to obtain concurrence. 9.1.2.3 Retained Percentage As provided in 9.7. Retainage,the Owner will retain five percent(5%)of all progress payments. ' 9.1.2.4 Withholding The Owner's Representative may refuse to recommend the whole or any part of any payment if in the Owner's Representative's opinion it would be incorrect to make such recommendation to the Owner. The Owner's Representative may also refuse to recommend any such payment,or because of subsequently discovered evidence or the result of tests,may nullify any such payment previously recommended to such extent as may be necessary in the Owner's Representative's opinion to protect the Owner from loss as a result of: 1. Defective or damaged Work. 2. A deductive Change Order. ' 3. Persistent failure of the Contractor to perform the Work in accordance with the Contract Documents,including failure to maintain the progress of the Work in accordance with the construction schedule. Persistent failure to maintain the progress of the Work shall mean that for a period of two consecutive months following a written notice from the Owner's Representative or Owner,the Contractor fails to correct a behind-schedule condition at a rate that would reasonably indicate that he or she will finish the Project on schedule. I 4. Disregard of authority of the Owner or Owner's Representative or the laws of any public body having jurisdiction. 5. Liquidated damages. 111 6. Misrepresentation of the quality of materials installed or amount of Work performed. 7. Discovery that a previous pay estimate erred with respect to the amount of Work performed or ' materials installed, irrespective of the Owner's Representative's recommendation at the time of the progress pay estimate. 8. Any other event that consists of a default under Section 5.4.1 of these General Conditions. 1 The Owner may refuse to make payment of the full amount recommended by the Owner's Representative because of Contract Claims made against the Owner on account of Contractor's performance or furnishing the Work or because of liens filed in connection with the Work or other set offs entitling Owner to reduce the amount recommended. In such case,the Owner shall give Contractor prompt written notice with copy to the Owner's Representative stating the reasons for each action. 9.1.3. Final Payment Upon receipt of Contractor's written Notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment,the Owner's Representative will inspect the Work. If the Owner's Representative fmds the Work acceptable under the Contract Documents and the Contract fully performed and if the Contractor has signed a final contract voucher,the Owner's Representative will issue a final certificate for payment. The certificate for payment will state that to the best of the Owner's 00 72 00 - 32 GENERAL CONDITIONS