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a. The Owner's Representative will review the estimate and either indicate in writing to <br /> the Owner his or her concurrence with the estimate and his or her recommendation that <br /> payment be made, or indicate in writing to the Contractor his or her reasons for not <br /> concurring with the estimate. If the Owner's Representative recommends payment and <br /> the Owner concurs, the Owner will pay the Contractor a progress payment on the basis <br /> of the approved partial payment estimate, less retainage and any amounts the Owner <br /> may withhold pursuant to Contract or law. The recommendation of the Owner's <br /> Representative is not conclusive, final or binding upon the Owner. <br /> b. In the event the Owner's Representative does not concur with the estimate, the <br /> Contractor may make the changes necessary to obtain the Owner's Representative's <br /> concurrence and resubmit the partial payment estimate, or submit the original progress <br /> payment estimate directly to the Owner, indicating in writing its reasons for refusing to <br /> make the changes necessary to obtain concurrence. <br /> 3. Retained Percentage <br /> a. As provided in 9.7. Retainage, the Owner will retain five percent (5%) of all <br /> progress payments. <br /> 4. Withholding <br /> a. The Owner's Representative may refuse to recommend the whole or any part of any <br /> payment if in the Owner's Representative's opinion it would be incorrect to make such <br /> recommendation to the Owner. The Owner's Representative may also refuse to <br /> recommend any such payment, or because of subsequently discovered evidence or the <br /> result of tests, may nullify any such payment previously recommended to such extent as <br /> may be necessary in the Owner's Representative's opinion to protect the Owner from <br /> loss as a result of: <br /> 1) Defective or damaged Work. <br /> 2) A deductive Change Order. <br /> 3) Persistent failure of the Contractor to perform the Work in accordance with the <br /> Contract Documents, including failure to maintain the progress of the Work in <br /> accordance with the construction schedule. Persistent failure to maintain the <br /> progress of the Work shall mean that for a period of two consecutive months <br /> following a written notice from the Owner's Representative or Owner, the <br /> Contractor fails to correct a behind-schedule condition at a rate that would <br /> reasonably indicate that he or she will finish the Project on schedule. <br /> 4) Disregard of authority of the Owner or Owner's Representative or the laws of <br /> any public body having jurisdiction. <br /> 5) Liquidated damages. <br /> 6) Misrepresentation of the quality of materials installed or amount of Work <br /> performed. <br /> 7) Discovery that a previous pay estimate erred with respect to the amount of Work <br /> performed or materials installed, irrespective of the Owner's Representative's <br /> recommendation at the time of the progress pay estimate. <br /> b. The Owner may refuse to make payment of the full amount recommended by the <br /> Owner's Representative because of Contract Claims made against the Owner on <br /> account of Contractor's performance or furnishing the Work or because of liens filed in <br /> connection with the Work or other set offs entitling Owner to reduce the amount <br /> recommended. In such case, the Owner shall give Contractor prompt written notice <br /> with copy to the Owner's Representative stating the reasons for each action. <br /> 5. Final Payment <br /> WFP Operations Building Seismic Retrofit- Rebid January 6, 2017 <br /> WO#UP3600 007213 -40 <br />