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<br />Agreement between Client, KCDA and Contractor - Washington Page 13
<br />156691459.1
<br />(“Final Acceptance”). Final Payment shall not become due
<br />until after Final Acceptance. Before Final Acceptance, the
<br />Contractor must have submitted the following to the Client:
<br />
<br />.1 An affidavit that all payrolls, Subcontractors, bills
<br />for materials and equipment, and other indebtedness
<br />connected with the Work for which the Client or its
<br />property might in any way be responsible or
<br />encumbered, have been paid or otherwise satisfied,
<br />
<br />.2 consent of surety to final payment,
<br />
<br />.3 a certificate evidencing that insurance required by
<br />the Contract Documents to remain in force after final
<br />payment is currently in effect and will not be canceled
<br />or allowed to expire until at least 30 days’ prior written
<br />notice has been given to KCDA and the Client,
<br />
<br />.4 a written statement that the Contractor knows of no
<br />substantial reason why the insurance will not be
<br />renewable to cover the period required by the Contract
<br />Documents,
<br />
<br />.5 other data establishing payment or satisfaction of
<br />or protection (satisfactory to KCDA and the Client)
<br />against all obligations, such as receipts, releases and
<br />waivers of liens arising out of the Agreement,
<br />satisfactorily demonstrating to KCDA and the Client
<br />that the claims of Subcontractors and laborers who
<br />have filed claims have been paid,
<br />
<br />.6 pursuant to RCW 39.12.040, an “Affidavit of
<br />Wages Paid” from the Contractor and from each
<br />Subcontractor certified by the Industrial Statistician of
<br />the Department of Labor and Industries, with fees paid
<br />by the Contractor or Subcontractor,
<br />
<br />.7 a certified statement that the Contractor has closed
<br />all necessary permits or otherwise met the
<br />requirements of all governing jurisdictions related to
<br />this Project (including, without limitation, city/county
<br />building departments, health districts and utility
<br />districts; attach a copy of each of these closed or
<br />signed-off permits),
<br />
<br />.8 all warranties, guarantees, certificates, spare parts,
<br />specified excess material, and other documents or
<br />items required by the Contract Documents, and
<br />
<br />.9 a hard copy of the “record” drawings and
<br />specifications, delivered in a clear, clean and legible
<br />condition.
<br />
<br /> If any Subcontractor of any tier refuses to furnish a
<br />release or waiver required by KCDA of the Client, KCDA may
<br />retain in the fund, account, or escrow funds such amount as to
<br />defray the cost of foreclosing the liens of such claims and to pay
<br />attorneys’ fees, the total of which shall be no less than 150% of
<br />the claimed amount. If any such lien remains unsatisfied after
<br />all payments are made, the Contractor shall refund to KCDA all
<br />moneys that the latter or the Client may be compelled to pay in
<br />discharging such lien, including all costs and reasonable
<br />attorneys’ fees.
<br />
<br /> Final payment shall be made pursuant to RCW 60.28
<br />after the Contractor has properly submitted certificates from the
<br />Department of Revenue, the Department of Labor and
<br />Industries and, pursuant to RCW 50.24, a certificate from the
<br />Department of Employment Security.
<br />
<br /> 15.7 Waivers.
<br />
<br /> 15.7.1 Final Payment by KCDA. The making of
<br />final payment shall constitute a waiver of claims by KCDA and
<br />the Client except those arising from (1) liens, claims, security
<br />interests, or encumbrances arising out of the Agreement and
<br />unsettled; (2) failure of the Work to comply with the
<br />requirements of the Contract Documents; or (3) terms of
<br />warranties required by the Contract Documents or law.
<br />
<br /> 15.7.2 Final Payment to Contractor. Acceptance of
<br />final payment by the Contractor shall constitute a waiver of
<br />Claims except those previously made in writing and identified
<br />in writing as unsettled on the final Application for Payment.
<br />
<br /> 15.7.3 Change Orders. The execution of a Change
<br />Order shall constitute a waiver of Claims by the Contractor
<br />arising out of the Work to be performed or deleted pursuant to
<br />the Change Order, except as specifically described in the
<br />Change Order. If the Contractor adds to a Change Order or any
<br />other document a reservation of rights that has not been initialed
<br />by KCDA and the Client, all the amounts previously agreed
<br />shall be considered disputed and not yet payable unless the
<br />costs are re-negotiated or the reservation is withdrawn or
<br />changed in a manner satisfactory to and initialed by KCDA and
<br />the Client. If KCDA makes payment for a Change Order or an
<br />Application for Payment that contains a reservation of rights not
<br />initialed by KCDA and the Client to indicate agreement with
<br />the reservation, and if the Contractor accepts such payment,
<br />then the reservation of rights shall be deemed waived,
<br />withdrawn, and of no effect.
<br />
<br /> 15.8 Retainage.
<br />
<br /> 15.8.1 Progress Payments:
<br />
<br />.1 Pursuant to RCW 60.28, KCDA will reserve 5%
<br />from the moneys the Contractor earns on estimates
<br />during the progress of the Work, to be retained as a
<br />trust fund for the protection and payment of the claims
<br />of any person arising under the Agreement and the
<br />state with respect to taxes imposed pursuant to Title 82
<br />RCW which may be due from the Contractor.
<br />
<br />.2 The moneys reserved may, at the option of the
<br />Contractor, be (1) retained in a fund by KCDA until
<br />45 days following Final Acceptance; or (2) deposited
<br />by KCDA in an interest-bearing account in a bank,
<br />mutual savings bank, or savings and loan association,
<br />not subject to withdrawal until 45 days following Final
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