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2. Beginning with the second Application for control the Work or for the means, methods , Payment, each Application shall include an affidavit of techniques, sequences, or procedures of construction , CONTRACTOR stating that all previous progress or the safety precautions and programs incident thereto, payments received on account of the Work have been or for CONTRACTOR's failure to comply with Laws and applied on account to discharge CONTRACTOR's Regulations applicable to CONTRACTOR's legitimate obligations associated with prior Applications performance of the Work. Additionally, said review or for Payment. recommendation will not impose responsibility on ENGI- NEER to make any examination to ascertain how or for 3.The amount of retainage with respect to pro- what purposes CONTRACTOR has used the moneys gress payments will be as stipulated in the Agreement.p 9 paid on account of the Contract Price, or to determine that title to any of the Work, materials, or equipment has B. Review of Applications passed to OWNER free and clear of any Liens. 1 . ENGINEER will, within 10 days after receipt of 5. ENGINEER may refuse to recommend the whole each Application for Payment, either indicate in writing a or any part of any payment if, in ENGINEER's opinion, it recommendation of payment and present the would be incorrect to make the representations to Application to OWNER or return the Application to OWNER referred to in paragraph 14.02. 6.2. ENGI- CONTRACTOR indicating in writing ENGINEER's NEER may also refuse to recommend any such pay- reasons for refusing to recommend payment. In the ment or, because of subsequently discovered evidence r latter case, CONTRACTOR may make the necessary or the results of subsequent inspections or tests, revise corrections and resubmit the Application. or revoke any such payment recommendation previously made, to such extent as may be necessary in 2. ENGINEER's recommendation of any payment ENGINEER's opinion to protect OWNER from loss ` requested in an Application for Payment will constitute a because: representation by ENGINEER to OWNER, based on ENGINEER's observations on the Site of the executed a. the Work is defective, or completed Work Work as an experienced and qualified design has been damaged, requiring correction or replace- professional and on ENGINEER's review of the Appli- ment cation for Payment and the accompanying data and schedules , that to the best of ENGINEER's knowledge, b. the Contract Price has been reduced by information and belief: Written Amendment or Change Orders; a. the Work has progressed to the point c. OWNER has been required to correct indicated; defective Work or complete Work in accordance b. the quality of the Work is generally in accor- with paragraph 13.09; or dance with the Contract Documents (subject to an d . ENGINEER has actual knowledge of the evaluation of the Work as a functioning whole prior occurrence of any of the events enumerated in to or upon Substantial Completion, to the results of paragraph 15.02.A. any subsequent tests called for in the Contract Documents , to a final determination of quantities C. Payment Becomes Due and classifications for Unit Price Work under paragraph 9. 08, and to any other qualifications 1 . Ten days after presentation of the Application for stated in the recommendation); and Payment to OWNER with ENGINEER's recommenda- tion, the amount recommended will (subject to the c. the conditions precedent to provisions of paragraph 14.02. 13) become due, and CONTRACTOR's being entitled to such payment when due will be paid by OWNER to CONTRACTOR. appear to have been fulfilled in so far as it is ENGINEER's responsibility to observe the Work. D. Reduction in Payment 3. By recommending any such payment ENGI- 1 . OWNER may refuse to make payment of the full NEER will not thereby be deemed to have represented amount recommended by ENGINEER because: that: (i) inspections made to check the quality or the quantity of the Work as it has been performed have a. claims have been made against OWNER on been exhaustive, extended to every aspect of the Work account of CONTRACTOR's performance or fur- in progress, or involved detailed inspections of the Work nishing of the Work; beyond the responsibilities specifically assigned to ENGINEER in the Contract Documents; or (ii) that there b. Liens have been filed in connection with the may not be other matters or issues between the parties Work, except where CONTRACTOR has delivered that might entitle CONTRACTOR to be paid additionally a specific Bond satisfactory to OWNER to secure by OWNER or entitle OWNER to withhold payment to the satisfaction and discharge of such Liens; CONTRACTOR. c. there are other items entitling OWNER to a 4. Neither ENGINEER's review of set-off against the amount recommended; or CONTRACTOR's Work for the purposes of recom- mending payments nor ENGINEER's recommendation d . OWNER has actual knowledge of the occur- of any payment, including final payment, will impose rence of -any of the events enumerated in para- responsibility on ENGINEER to supervise, direct, or 6706-38392\8/20/03 00700-30 VRB