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(2) Upon Owner's Representative's certification that ninety percent (90%) of the <br /> Work has been satisfactorily completed Retainage may be discontinued. <br /> Retainage may be discontinued, at Owner's Discretion, so long as work <br /> continues to be completed satisfactorily and on schedule. <br /> (iii) Final payment shall not be due to the Contractor until thirty (30) days after Final <br /> Completion of the Work, including punch list work, has been satisfactorily completed <br /> and an appropriate Affidavit, Indemnification, and Release as required in Section 8(d) <br /> below has been received by Owner. <br /> b. Should Owner reasonably determine that Contractor has failed to perform the Work related to <br /> a Request for Payment, Owner, at its discretion may provide the Contractor ten (10) days to <br /> cure the breach. Owner may withhold the accompanying payment without penalty until such <br /> time as Contractor cures the breach. <br /> (i) Should Contractor or its representatives fail to cure the breach within ten (10) days, or <br /> fail to reasonably agree to such modified schedule,Owner may immediately terminate <br /> this Agreement in writing, without penalty or incurring further obligation to <br /> Contractor. <br /> (ii) This section shall not be interpreted to limit the definition of breach to the failure to <br /> perform the Work related to a Request for Payment. <br /> c. The Contractor has included in the Contract Price and shall pay all taxes assessed by any <br /> authority on the Work or the labor and materials used therein. It shall be the Contractor's <br /> responsibility to furnish the Owner documentary evidence showing the materials used and <br /> sales and use tax paid by the Contractor and each of its subcontractors. <br /> d. Should the Owner receive notice that the Contractor has failed to pay a Subcontractor for the <br /> Work performed related to a Request for Payment,Owner shall have the authority to withhold <br /> payment of the disputed amount until parties resolve their dispute. Failure to pay the <br /> Contractor pursuant to this section of the Agreement shall not be deemed to be a breach of the <br /> Agreement. <br /> 6. NON—APPROPRIATION <br /> a. Contractor acknowledges that Owner is a governmental entity, and the validity of this <br /> Agreement is based upon the availability of public funding under the authority of its statutory <br /> mandate. <br /> b. In the event that public funds are unavailable and not appropriated for the performance of <br /> Owner's obligations under this Agreement, then this Agreement shall automatically expire <br /> without penalty to Owner immediately upon written notice to Contractor of the unavailability <br /> and non-appropriation of public Rinds. It is expressly agreed that Owner shall not activate this <br /> non-appropriation provision for its convenience or to circumvent the requirements of this <br /> Agreement,but only as an emergency fiscal measure during a substantial fiscal crisis. <br /> c. In the event of a change in the Owner's statutory authority, mandate and/or mandated <br /> functions, by state and/or federal legislative or regulatory action, which adversely affects <br /> Owner's authority to continue its obligations under this Agreement, then this Agreement shall <br /> Revised 10114 4 <br />