33-1008 - Waiver of lien

33-1008. Waiver of lien

A. An owner or contractor by any term of their contract, or otherwise, may not waive or impair the claims or liens of other persons whether with or without notice except by their written consent or as prescribed by section 33-1003. Any term of the contract to that effect shall be void. Any written consent given by any claimant pursuant to this section is unenforceable unless the claimant executes and delivers a waiver and release. This waiver and release is effective to release the property for the benefit of the owner, the construction lender, the contractor and the surety on a payment bond from claims and liens only if the waiver and release follows substantially one of the forms set forth in this section and is signed by the claimant or his authorized agent, and, in the case of a conditional release, if there is evidence of payment to the claimant. Evidence of payment may be by the claimant's endorsement on a single or joint payee check that has been paid by the bank on which it was drawn or by written acknowledgment of payment given by the claimant.

B. No oral or written statement purporting to waive, release or otherwise adversely affect a claim is enforceable or creates any estoppel or impairment of a claim unless it is pursuant to a waiver and release prescribed by this section or the claimant had actually received payment in full for the claim.

C. This section does not affect the enforceability of either an accord and satisfaction regarding a bona fide dispute or any agreement made in settlement of an action pending in any court provided the accord and satisfaction or agreement and settlement make specific reference to the mechanic's lien or bond claims.

D. The waiver and release given by any claimant is unenforceable unless it follows substantially the following forms in the following circumstances:

1. Where the claimant is required to execute a waiver and release in exchange for or in order to induce the payment of a progress payment and the claimant is not in fact paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release shall follow substantially the following form:

Conditional waiver and release on progress payment

Project: ______________________

Job No.: ______________________

On receipt by the undersigned of a check from _________________

(maker of check)

in the sum of $______________ payable to _______________________

(amount of check) (payee or payees of check)

and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic's lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned's position that the undersigned has on the job of ______________________________________________________________

(owner)

located at __________________________________ to the following

(job description)

extent. This release covers a progress payment for all labor, services, equipment or materials furnished to the jobsite or to ______________________________________________________________,

(person with whom undersigned contracted)

through _______________ only and does not cover any retention,

(date)

pending modifications and changes or items furnished after that date. Before any recipient of this document relies on it, that person should verify evidence of payment to the undersigned.

The undersigned warrants that he either has already paid or will use the monies he receives from this progress payment to promptly pay in full all of his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to the above referenced project up to the date of this waiver.

Date: ____________________ _________________________________

(Company name)

By: ____________________________

(Signature)

_________________________________

(Title)

2. Where the claimant is required to execute a waiver and release in exchange for or in order to induce the payment of a progress payment and the claimant asserts in the waiver that it has been paid the progress payment, the waiver and release shall follow substantially the following form:

Unconditional waiver and release on progress payment

Project: _________________

Job No.: _________________

The undersigned has been paid and has received a progress payment in the sum of $_____________ for all labor, services, equipment or material furnished to the jobsite or to ______________________________________________________________

(person with whom undersigned contracted)

on the job of ________________________________________________

(owner)

located at ___________________________________________________

(job description)

and does hereby release any mechanic's lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned's position that the undersigned has on the above referenced project to the following extent. This release covers a progress payment for all labor, services, equipment or materials furnished to the jobsite or to _______________________________________________________________

(person with whom undersigned contracted)

through ________________ only and does not cover any retention,

(date)

pending modifications and changes or items furnished after that date.

Dated: ____________________ ________________________________

(Company name)

By: ____________________________

(Signature)

________________________________

(Title)

(Each unconditional waiver shall contain the following language, in type at least as large as the largest type otherwise on the document:)

Notice: This document waives rights unconditionally and states that you have been paid for giving up those rights. This document is enforceable against you if you sign it, even if you have not been paid. If you have not been paid, use a conditional release form.

3. Where the claimant is required to execute a waiver and release in exchange for or in order to induce payment of a final payment and the claimant is not paid in exchange for the waiver and release or a single payee check or joint payee check is given in exchange for the waiver and release, the waiver and release shall follow substantially the following form:

Conditional waiver and release on final payment

Project: _______________

Job No.: _______________

On receipt by the undersigned of a check from ________________

(maker of check)

in the sum of $_________________ payable to ____________________

(amount of check) (payee or payees of check)

and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic's lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned's position, the undersigned has on the job of ___________________ located at ______________________________.

(owner) (job description)

This release covers the final payment to the undersigned for all labor, services, equipment or materials furnished to the jobsite or to _________________________________________________________,

(person with whom undersigned contracted)

except for disputed claims in the amount of $__________. Before any recipient of this document relies on it, the person should verify evidence of payment to the undersigned.

The undersigned warrants that he either has already paid or will use the monies he receives from this final payment to promptly pay in full all his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to the above referenced project up to the date of this waiver.

Dated: ____________________ _________________________________

(Company name)

By: _____________________________

(Signature)

_________________________________

(Title)

4. Where the claimant is required to execute a waiver and release in exchange for or in order to induce payment of a final payment and the claimant asserts in the waiver that it has been paid the final payment, the waiver and release shall follow substantially the following form:

Unconditional waiver and release on final payment

Project: _______________

Job No.: _______________

The undersigned has been paid in full for all labor, services, equipment or material furnished to the jobsite or to _______________________________________________________________,

(person with whom undersigned contracted)

on the job of _____________ located at _______________________

(owner) (job description)

and does hereby waive and release any right to mechanic's lien, any state or federal statutory bond right, any private bond right, any claim for payment and any rights under any similar ordinance, rule or statute related to claim or payment rights for persons in the undersigned's position, except for disputed claims for extra work in the amount of $ ___________.

The undersigned warrants that he either has already paid or will use the monies he receives from this final payment to promptly pay in full all of his laborers, subcontractors, materialmen and suppliers for all work, materials, equipment or services provided for or to the above referenced project.

Dated: ____________________ _________________________________

(Company name)

By: ____________________________

(Signature)

_________________________________

(Title)

(Each unconditional waiver shall contain the following language in type at least as large as the largest type otherwise on the document:)

Notice:

This document waives rights unconditionally and states that you have been paid for giving up those rights. This document is enforceable against you if you sign it, even if you have not been paid. If you have not been paid, use a conditional release form.