Retainage Payment Agreement

RETAINAGE PAYMENT AGREEMENT

Parties

Recitals

This Retainage Payment Agreement (the Agreement) is entered into as of between Payor Name: and Payee Name: .

WHEREAS, the parties are associated with the contract identified as Contract No.: for the Project: located at ;

Retainage Payment Terms

Payor shall remit the Amount to be Paid to Payee on or before the Payment Date, subject to the Conditions Precedent set forth in this Agreement. Payment shall be made to the Payee at the address for notices below or as otherwise directed in writing by Payee, and shall be accompanied by a written statement identifying the Contract No. and Project.

Conditions Precedent

Payor's obligation to make the payment described above is conditional upon receipt, at Payor's address for notices, of the following items at least five (5) business days prior to the Payment Date: (a) a fully executed conditional waiver and release of lien in a form acceptable to Payor covering the payment amount; (b) reasonable evidence that Payee has paid subcontractors and suppliers for which this payment is intended or a contemporaneous partial or conditional waiver from such subcontractors and suppliers; (c) evidence of compliance with applicable insurance and bonding requirements; and (d) certification by Payee that all delivered work and materials for which retainage is sought have been completed to the standards required by the Contract.

Representations and Warranties

Each party represents and warrants that it is duly organized, validly existing and in good standing, has full corporate or organizational power and authority to execute and deliver this Agreement, and that the person signing on its behalf has been duly authorized to execute and deliver this Agreement. Payee further represents that no liens, claims or encumbrances exist against the retainage amount except as disclosed in writing to Payor.

Release; Waiver of Claims

Upon receipt of the payment described herein, Payee hereby fully and irrevocably releases and forever discharges Payor, its agents, officers, employees, insurers and sureties from any and all claims, demands, causes of action, liabilities, damages and obligations arising out of or related to the retainage, to the extent of the payment, whether known or unknown, including claims for payment, consequential damages, delay damages, and claims under mechanic's or materialmen's liens for the amount so paid.

Lien Waiver and Contractor's Certification

Concurrently with the payment, Payee shall deliver to Payor a conditional or unconditional waiver and release of lien (as applicable) in a form sufficient to remove any lien rights to the extent of the payment. Payee certifies that all subcontractors, suppliers and laborers who may assert lien or bond claims in connection with the retained amount have been paid or will be paid from the payment described in this Agreement in accordance with the documentation provided to Payor.

Indemnity

Payee shall indemnify, defend and hold harmless Payor from and against any and all claims, liabilities, losses, costs and expenses (including reasonable attorneys' fees) arising out of or related to third-party claims for payment, liens, bond claims, or other encumbrances that relate to the work for which this retention payment is made and to the extent such claims are not satisfied by Payee.

Default; Remedies

In the event Payee breaches any representation, warranty or obligation under this Agreement, Payor may withhold payment, set off amounts owed, pursue injunctive or other equitable relief, or seek any other remedy available at law or equity. Failure by Payor to exercise a remedy shall not constitute a waiver of that remedy or any other remedy.

Taxes and Withholding

Each party is responsible for its own taxes and payroll obligations arising from the payment. To the extent required by applicable law, Payor may withhold amounts from payment for taxes, and Payor shall provide Payee with written notice of any such withholding and the legal basis therefor.

Notices

All notices, requests and other communications to a party shall be in writing and delivered to the address set forth below or such other address as a party designates by written notice to the other party in accordance with this section.

Miscellaneous

This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, supersedes all prior agreements and understandings (oral or written) and may be amended only by a written instrument executed by both parties. If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the state governing the underlying Contract unless otherwise agreed below.

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