Time Is Of The Essence Clause - General Discussion - Contractor Talk

Time Is Of The Essence Clause

 
Thread Tools Search this Thread Display Modes
Old 11-22-2019, 03:28 PM   #1
Registered User
 
Timberlake20's Avatar
 
Trade: General Contractor
Join Date: Oct 2019
Location: SE Missouri
Posts: 3
Rewards Points: 8

Time Is Of The Essence Clause


So I'm negotiating a Contractor Agreement with a client where they have awarded me the job to build them an office building...a $400k project. But one of the owners is insisting on a "time is of the essence" clause and she (and her lawyer) are not budging even though I added additional language to provide a little more control/protection for them.

The only other solution I see is simply adding another 4-6 weeks to my completion date but I doubt they will agree to that.

Just curious to hear thoughts from other contractors on this.

The language I have in the agreement now is,

Project Timeline and Extension: Work is planned to begin on or about ___________________. Work shall be completed by __________________. Time may be extended for delays from extreme weather, a Change Order, fire, unusual delay in deliveries, unavoidable casualties, or other causes beyond Contractor’s control or which justify the delay.

It is the Contractor’s responsibility to mitigate or prevent delays. If any type of delay is expected by either party, written notice shall be provided to explain the reason for the delay, associated costs, and specify steps taken to minimize the delay. Once the extension of time is approved, a Change Order shall be created.
Timberlake20 is offline  

Warning: The topics covered on this site include activities in which there exists the potential for serious injury or death. ContractorTalk.com DOES NOT guarantee the accuracy or completeness of any information contained on this site. Always use proper safety precaution and reference reliable outside sources before attempting any construction or remodeling task!

   

Advertisement

 

Old 11-22-2019, 03:58 PM   #2
Pro
 
TimNJ's Avatar
 
Trade: Remodeler
Join Date: Sep 2005
Posts: 6,929
Rewards Points: 852

Re: Time Is Of The Essence Clause


I would take out the word "extreme" in the weather.

Any $$ penalty for being late?

Advertisement

__________________
Trump-The "Con Man's" Con Man.
TimNJ is offline  
Old 11-22-2019, 04:13 PM   #3
Registered User
 
Timberlake20's Avatar
 
Trade: General Contractor
Join Date: Oct 2019
Location: SE Missouri
Posts: 3
Rewards Points: 8

Re: Time Is Of The Essence Clause


No penalty. She just wants legal recourse if I am delay the project for any reason whatsoever.
Timberlake20 is offline  
Sponsored Links
Advertisement
 
Old 11-22-2019, 04:35 PM   #4
Particulate Filter
 
Metro M & L's Avatar
 
Trade: Flooring
Join Date: Jun 2009
Location: Portland, OR
Posts: 4,430
Rewards Points: 1,484

Re: Time Is Of The Essence Clause


It's simple. They can have the clause but they have to pay for it.

If you meet the terms of the clause you get rewarded, if you don't you get punished.

Fairs fair. Whatever they want in damages if you are late is what you get compensated for if you are on time.

This has gotten rid of every TOE request I've ever had.
__________________
"A smart man learns from his mistakes; a wise man learns from the mistakes of others."

www.portlandhardwoodrefinishing.com
Metro M & L is offline  
The Following 4 Users Say Thank You to Metro M & L For This Useful Post:
BlueRidgeGreen (11-22-2019), Kowboy (11-30-2019), Ohio painter (11-22-2019), overanalyze (11-22-2019)
Old 11-22-2019, 04:54 PM   #5
Pro
 
NYCB's Avatar
 
Trade: Concrete/Masonry
Join Date: Sep 2010
Location: Central NY
Posts: 2,143
Rewards Points: 1,510

Re: Time Is Of The Essence Clause


Quote:
Originally Posted by Metro M & L View Post
It's simple. They can have the clause but they have to pay for it.

If you meet the terms of the clause you get rewarded, if you don't you get punished.

Fairs fair. Whatever they want in damages if you are late is what you get compensated for if you are on time.

This has gotten rid of every TOE request I've ever had.
That's what I was going to suggest.

If they insist on liquidated damages then tell them it's not going to happen unless there is an equal daily bonus for coming in before contracted completion time.
NYCB is offline  
Old 11-22-2019, 05:17 PM   #6
Registered User
 
Timberlake20's Avatar
 
Trade: General Contractor
Join Date: Oct 2019
Location: SE Missouri
Posts: 3
Rewards Points: 8

Re: Time Is Of The Essence Clause


Carrot and stick approach. I like it. Right now they are not asking for a liquidated damages clause. But it may be required to at least list damages that would occur if there is a delay in order to make the TOE stick in court.

They are renting the space they have now so I believe the only "damage" would be another month of rent.
Timberlake20 is offline  
Old 11-22-2019, 08:51 PM   #7
Talking Head
 
EthanB's Avatar
 
Trade: Poking Things With Sticks
Join Date: Sep 2011
Location: Rhode Island
Posts: 5,388
Rewards Points: 438

Re: Time Is Of The Essence Clause


Imo, TOE clauses aren't very enforceable if you are making a good faith effort to complete. If you expect to be juggling jobs during this time frame then it might be an issue. I wouldn't be too scared of it. Most of our commercial contracts have it. You can always buy an extra day or two(or more) with every change order to increase the pad that way. It's not ideal but sometimes you have to play the game.
__________________
Quote:
Originally Posted by Jaws View Post
Planer.....
EthanB is offline  
Old 11-22-2019, 09:16 PM   #8
Member
 
BLI's Avatar
 
Trade: Carpentry
Join Date: Dec 2017
Location: Long Island
Posts: 32
Rewards Points: 12

Re: Time Is Of The Essence Clause


I worked on a job where the owners of the company were getting a three million dollar bonus if the job was done by the deadline. There was 60-80 guys working on that place toward the end.
BLI is offline  
Old 11-22-2019, 10:18 PM   #9
Fire up the BBQ
 
griz's Avatar
 
Trade: GC
Join Date: Nov 2009
Location: ex-calif
Posts: 23,478
Rewards Points: 2,704

Re: Time Is Of The Essence Clause


TOE, please hurry, must be done by etc etc etc...

don't mean jack diddly unless there is reference to liquidated damages if the project is not completed by a certain date.

nothing is implied that you will get a bonus if done early unless it is stipulated in the contract.

LD's, are often difficult to get if you can show that you have diligently prosecuted the project throughout the time frame.

change orders, RFI's due to difficulties w/plans etc, weather, material delays, inspector issues, unforseen/unknowns, etc can & will effect the outcome.

to defend yourself it is ABSOLUTELY CRITICAL that you keep a daily log indicating the manpower on the job, subs, equipment, material deliveries, RFI's, unknown/unforseens, inspector issue, weather etc.

any of the above can & will cause delays and add days to the schedule but must be thoroughly documented.
__________________
SOME JOBS JUST AREN'T WORTH DOING:
griz is online now  
The Following 2 Users Say Thank You to griz For This Useful Post:
KAP (11-22-2019), overanalyze (11-22-2019)
Old 11-23-2019, 11:21 AM   #10
Pro
 
A2Zcontracting's Avatar
 
Trade: General Building
Join Date: Jun 2019
Location: San Diego
Posts: 101
Rewards Points: 208

Re: Time Is Of The Essence Clause


Do you have a definition for "substantial completetion" in your contract? Might CYA if you have finish items or punchlist stuff after the deadline. Basically, write it in that if they can move into the office and start using it, even if there is still work to be done by you then you are covered.

Sent from my LM-Q710.FG using Tapatalk

Advertisement

A2Zcontracting is offline  


Thread Tools Search this Thread
Search this Thread:

Advanced Search
Display Modes Rate This Thread
Rate This Thread:

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are Off
Refbacks are Off


Join Now... It's Fast and FREE!

I am a professional contractor
I am a DIY Homeowner
Drywall Talk is for
PROFESSIONAL CONTRACTORS ONLY!

At DrywallTalk.com we cater exlusivly to professional contractors who make their living as a contractor. Knowing that many homeowners and DIYers are looking for a community to call home, we've created www.DIYChatroom.com DIY Chatroom is full of helpful advices and perfect for DIY homeowners.

Redirecing in 10 seconds
No Thanks
terms of service

Already Have an Account?