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A BILL TO BE ENTITLED
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AN ACT
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relating to the waiver and release of a mechanic's, contractor's, or |
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materialman's lien or payment bond claim. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 53.085(c), Property Code, is amended to |
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read as follows: |
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(c) The affidavit may include: |
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(1) a waiver or release of lien rights or payment bond |
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claims by the affiant that is conditioned on the receipt of actual |
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payment or collection of funds when payment is made by check or |
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draft, as provided by Subchapter L; |
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(2) a warranty or representation that certain bills or |
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classes of bills will be paid by the affiant from funds paid in |
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reliance on the affidavit; and |
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(3) an indemnification by the affiant for any loss or |
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expense resulting from false or incorrect information in the |
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affidavit. |
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SECTION 2. Chapter 53, Property Code, is amended by adding |
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Subchapter L to read as follows: |
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SUBCHAPTER L. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND CLAIM |
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Sec. 53.281. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND |
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CLAIM. (a) Any waiver and release of a lien or payment bond claim |
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under this chapter is unenforceable unless a waiver and release is |
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executed and delivered in accordance with this subchapter. |
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(b) A waiver and release is effective to release the owner, |
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the owner's property, the contractor, and the surety on a payment |
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bond from claims and liens only if: |
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(1) the waiver and release substantially complies with |
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one of the forms prescribed by this subchapter; |
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(2) the waiver and release is signed by the claimant or |
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the claimant's authorized agent; and |
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(3) in the case of a conditional release, evidence of |
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payment to the claimant exists. |
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Sec. 53.282. CONDITIONS FOR WAIVER, RELEASE, OR IMPAIRMENT |
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OF LIEN OR PAYMENT BOND CLAIM. (a) A statement purporting to |
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waive, release, or otherwise adversely affect a lien or payment |
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bond claim is not enforceable and does not create an estoppel or |
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impairment of a lien or payment bond claim unless: |
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(1) the statement is in writing and complies with this |
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subchapter; or |
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(2) the claimant has actually received payment in good |
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and sufficient funds in full for the lien or payment bond claim. |
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(b) This section does not affect the enforceability of an |
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accord and satisfaction regarding a bona fide dispute or any |
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agreement made in settlement of an action pending in any court if |
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the accord and satisfaction or agreement made in settlement makes |
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specific reference to the lien or payment bond claim. |
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Sec. 53.283. FORMS FOR WAIVER AND RELEASE OF LIEN OR PAYMENT |
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BOND CLAIM. (a) A waiver and release given by a claimant or |
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potential claimant is unenforceable unless it substantially |
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complies with the applicable form described by Subsections (b)-(e). |
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(b) If a claimant or potential claimant is required to |
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execute a waiver and release in exchange for or to induce the |
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payment of a progress payment and is not paid in exchange for the |
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waiver and release or if a single payee check or joint payee check |
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is given in exchange for the waiver and release, the waiver and |
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release must read: |
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"CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT |
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"Project ___________________ |
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"Job No. ___________________ |
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"On receipt by the signer of this document of a check from |
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________________ (maker of check) in the sum of $__________ payable |
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to _____________________ (payee or payees of check) and when the |
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check has been properly endorsed and has been paid by the bank on |
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which it is drawn, this document becomes effective to release any |
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mechanic's lien right, any right arising from a payment bond that |
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complies with a state or federal statute, any common law payment |
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bond right, any claim for payment, and any rights under any similar |
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ordinance, rule, or statute related to claim or payment rights for |
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persons in the signer's position that the signer has on the |
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property of ________________ (owner) located at |
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______________________ (location) to the following extent: |
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______________________ (job description). |
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"This release covers a progress payment for all labor, |
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services, equipment, or materials furnished to the property or to |
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__________________ (person with whom signer contracted) as |
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indicated in the attached statement(s) or progress payment |
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request(s), except for unpaid retention, pending modifications and |
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changes, or other items furnished. The unpaid retention, pending |
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modifications and changes, and other items furnished as of this |
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date total $______________. |
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"Before any recipient of this document relies on this |
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document, the recipient should verify evidence of payment to the |
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signer. |
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"The signer warrants that the signer has already paid or will |
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use the funds received from this progress payment to promptly pay in |
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full all of the signer's laborers, subcontractors, materialmen, and |
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suppliers for all work, materials, equipment, or services provided |
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for or to the above referenced project in regard to the attached |
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statement(s) or progress payment request(s). |
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"Date ____________________________ |
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"_________________________________ (Company name) |
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"By ______________________________ (Signature) |
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"_________________________________ (Title)" |
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(c) If a claimant or potential claimant is required to |
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execute an unconditional waiver and release to prove the receipt of |
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good and sufficient funds for a progress payment and the claimant or |
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potential claimant asserts in the waiver and release that the |
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claimant or potential claimant has been paid the progress payment, |
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the waiver and release must: |
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(1) contain a notice at the top of the document, |
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printed in bold type at least as large as the largest type used in |
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the document, but not smaller than 10-point type, that reads: |
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"NOTICE: |
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"This document waives rights unconditionally and states that |
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you have been paid for giving up those rights. This document may be |
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enforceable against you if you sign it, even if you have not been |
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paid. If you have not been paid, use a conditional release form."; |
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and |
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(2) below the notice, read: |
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"UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT |
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"Project ___________________ |
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"Job No. ___________________ |
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"The signer of this document has been paid and has received a |
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progress payment in the sum of $___________ for all labor, |
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services, equipment, or materials furnished to the property or to |
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_____________________ (person with whom signer contracted) on the |
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property of _______________________ (owner) located at |
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______________________ (location) to the following extent: |
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______________________ (job description). The signer therefore |
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waives and releases any mechanic's lien right, any right arising |
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from a payment bond that complies with a state or federal statute, |
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any common law payment bond right, any claim for payment, and any |
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rights under any similar ordinance, rule, or statute related to |
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claim or payment rights for persons in the signer's position that |
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the signer has on the above referenced project to the following |
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extent: |
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"This release covers a progress payment for all labor, |
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services, equipment, or materials furnished to the property or to |
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__________________ (person with whom signer contracted) as |
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indicated in the attached statement(s) or progress payment |
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request(s), except for unpaid retention, pending modifications and |
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changes, or other items furnished. The unpaid retention, pending |
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modifications and changes, and other items furnished as of this |
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date total $_____________. |
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"The signer warrants that the signer has already paid or will |
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use the funds received from this progress payment to promptly pay in |
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full all of the signer's laborers, subcontractors, materialmen, and |
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suppliers for all work, materials, equipment, or services provided |
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for or to the above referenced project in regard to the attached |
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statement(s) or progress payment request(s). |
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"Date ____________________________ |
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"_________________________________ (Company name) |
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"By ______________________________ (Signature) |
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"_________________________________ (Title)" |
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(d) If a claimant or potential claimant is required to |
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execute a waiver and release in exchange for or to induce the |
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payment of a final payment and is not paid in good and sufficient |
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funds in exchange for the waiver and release or if a single payee |
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check or joint payee check is given in exchange for the waiver and |
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release, the waiver and release must read: |
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"CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT |
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"Project ___________________ |
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"Job No. ___________________ |
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"On receipt by the signer of this document of a check from |
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________________ (maker of check) in the sum of $____________ |
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payable to _____________________ (payee or payees of check) and |
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when the check has been properly endorsed and has been paid by the |
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bank on which it is drawn, this document becomes effective to |
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release any mechanic's lien right, any right arising from a payment |
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bond that complies with a state or federal statute, any common law |
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payment bond right, any claim for payment, and any rights under any |
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similar ordinance, rule, or statute related to claim or payment |
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rights for persons in the signer's position that the signer has on |
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the property of _____________________ (owner) located at |
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______________________ (location) to the following extent: |
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______________________ (job description). |
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"This release covers the final payment to the signer for all |
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labor, services, equipment, or materials furnished to the property |
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or to __________________ (person with whom signer contracted), |
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except for claims for disputed work in the amount of $_________. |
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"Before any recipient of this document relies on this |
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document, the recipient should verify evidence of payment to the |
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signer. |
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"The signer warrants that the signer has already paid or will |
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use the funds received from this final payment to promptly pay in |
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full all of the signer's laborers, subcontractors, materialmen, and |
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suppliers for all work, materials, equipment, or services provided |
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for or to the above referenced project up to the date of this waiver |
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and release. |
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"Date ____________________________ |
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"_________________________________ (Company name) |
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"By ______________________________ (Signature) |
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"_________________________________ (Title)" |
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(e) If a claimant or potential claimant is required to |
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execute an unconditional waiver and release to prove the receipt of |
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good and sufficient funds for a final payment and the claimant or |
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potential claimant asserts in the waiver and release that the |
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claimant or potential claimant has been paid the final payment, the |
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waiver and release must: |
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(1) contain a notice at the top of the document, |
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printed in bold type at least as large as the largest type used in |
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the document, but not smaller than 10-point type, that reads: |
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"NOTICE: |
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"This document waives rights unconditionally and states that |
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you have been paid for giving up those rights. This document may be |
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enforceable against you if you sign it, even if you have not been |
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paid. If you have not been paid, use a conditional release form."; |
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and |
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(2) below the notice, read: |
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"UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT |
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"Project ___________________ |
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"Job No. ___________________ |
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"The signer of this document has been paid in full for all |
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labor, services, equipment, or materials furnished to the property |
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or to ___________________ (person with whom signer contracted) on |
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the property of ______________________ (owner) located at |
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______________________ (location) to the following extent: |
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______________________ (job description). The signer therefore |
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waives and releases any mechanic's lien right, any right arising |
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from a payment bond that complies with a state or federal statute, |
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any common law payment bond right, any claim for payment, and any |
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rights under any similar ordinance, rule, or statute related to |
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claim or payment rights for persons in the signer's position, |
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except for claims for disputed work in the amount of $_________. |
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"The signer warrants that the signer has already paid or will |
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use the funds received from this final payment to promptly pay in |
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full all of the signer's laborers, subcontractors, materialmen, and |
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suppliers for all work, materials, equipment, or services provided |
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for or to the above referenced project up to the date of this waiver |
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and release. |
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"Date ____________________________ |
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"_________________________________ (Company name) |
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"By ______________________________ (Signature) |
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"_________________________________ (Title)" |
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Sec. 53.284. ATTEMPTED COMPLIANCE. (a) A waiver or release |
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shall be construed to comply with this subchapter and is |
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enforceable in the same manner as a waiver and release under this |
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subchapter if the waiver or release: |
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(1) is furnished in attempted compliance with this |
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subchapter; or |
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(2) evidences by its terms intent to comply with this |
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subchapter. |
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(b) Any provision in any waiver or release furnished in |
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attempted compliance with this subchapter that expands or restricts |
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the rights or liabilities provided under this subchapter shall be |
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disregarded and the provisions of this subchapter shall be read |
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into that waiver or release. |
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Sec. 53.285. PUBLIC POLICY. (a) Notwithstanding any other |
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law and except as provided by Section 53.282, any contract, |
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agreement, or understanding purporting to waive the right to file |
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or enforce any lien or claim created under this chapter is void as |
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against public policy. |
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(b) This subchapter does not apply to a written agreement to |
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subordinate, release, or satisfy all or part of a lien claimed after |
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a notice of lien has been filed. |
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SECTION 3. The changes in law made by this Act apply only to |
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a contract executed on or after September 1, 2011. A contract |
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executed before September 1, 2011, is covered by the law applicable |
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to the contract immediately before the effective date of this Act, |
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and the former law is continued in effect for that purpose. |
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SECTION 4. This Act takes effect September 1, 2011. |