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Contract Payment and Performance Clause

MarylandConstruction Contract

Hello, My company is in the process of going thru contracts for two schools in Maryland that are private/public partnerships in which we are working the CM/Private partner. In the process I noticed the below clause in the contract and this not a typical clause I see in our contracts I wanted to see if this was typical in the industry. "It is expressly agreed that time is of the essence of this Agreement, and that the payment of the consideration herein expressed to be paid by Construction Manager is executory and strictly conditioned upon timely completion of Trade Contractors Work and proper performance of Trade Contractors obligations under this agreement. Unless otherwise agreed by Trade Contractor and Construction Manager, Trade Contractor shall bear the risk of loss of any of Trade Contractors Work (including property intended to become part of its work) and shall insure it on a 100% replacement cost basis, until such work or property is delivered to the project site and/or accepted by the Construction Manager." The concern is that payment is linked to performance or time of completion and the fact that many issues beyond our control can cause delays that should not result in holding payment for our installed work. We are a steel erection company located in Virginia and we have been in business since 2002. As a result we will not be supplying much other than labor, equipment and consumables such as welding rods in our scope of work. Thank you, Michael D. Belcher Vice-President Trinity Steel Erection, Inc.

2 replies

Dec 13, 2021
Good afternoon, Mr. Belcher. The contract to which you refer likely contains a liquidated damages clause (LD) by which penalties are assessed for failure to meet deadlines; other subcontracts may also contain such clauses. This language is designed to ensure that if you are late and cause other delays, you get hit with the LDs. It can be quite expensive and adversarial, often used as a weapon to reduce the price at the end of the contract.
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Dec 14, 2021

The contract needs to be read as a whole. While the one provision you cited does appear to somewhat hinge payment upon timely completion, it is likely that there is another provision providing for monthly progress payments. Although I have not seen the whole contract, it seems to me that the provision you indicated is intended to function more as a warranty provision than a condition precedent to payment condition.

Regardless, I advice all my clients to forward me their subcontracts in advance of signing them for my review and modification. In this way I have been able to level the playing field somewhat for subcontractors, as the typical, unmodified subcontract agreement is highly slanted in favor of the general contractor. If disputes do arise in the future, a fair subcontract is crucial to protecting your interests!

Pending a conflicts check, I would be happy to review and modify the subcontracts at issue. I can be contacted at (410) 499-2615.

Good luck!

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