The most critical issue surrounding “progress payment waivers” is the date through which the Contractor / Subcontractor is being asked to release rights. Locate these Forms in the Palecek & Palecek Legal Resources Section. Remember to NEVER sign an unconditional waiver unless one is receiving cash or its equivalent. The Contractor / Subcontractor must also be wary that it did not agree that it would sign unconditional waivers in exchange for a progress payment check at the time it signed the negotiated subcontract: [Remember to review all attachments to the contract before signing],
Also, a Contractor / Subcontractor must ensure that its application for payment covered by this waiver included all work performed through the date set forth in the waiver. That is, if one has performed work during a month but has not applied for payment for a portion of that work for whatever reason, one must EXCEPT OUT of the waiver this work. Typically, the Contractor / Subcontractor can put an asterisk by the date in the waiver and “hand-write” at the bottom of the waiver the work performed that is not covered by this waiver. Palecek & Palecek has helped clients ensure that the proper “exceptions” are noted on lien waivers.
In addition, if the Contractor / Subcontractor wants to maintain its ability to argue for prompt payment interest and other attorney’s fees and costs incurred in a particular month, it must EXCEPT OUT these issues at the time it signs the waiver in the same manner set forth above by use of an asterisk and a hand-written change.
