The Soto Law Group, P.A.

                                   This is the sixth installment in a ten-part series analyzing critical construction clauses.  This installment analyzes the “Pay If Paid” and “Pay When Paid” clauses. My first five articles can be found on our blog at   http://sotolawgroup.blogspot.com/ . A.       Overview and Background It is hard to understate the significance of the “Paid If Paid” provision (also known as the “Contingent Payment Provision”) and its less draconian counterpart, the “Pay When Paid” provision. The “Pay If Paid” Provision permits a general contractor to place the risk of an owner’s nonpayment upon its subcontractor notwithstanding the fact that the subcontractor fully performed its obligations and would be otherwise entitled to payment. A properly worded “Pay If Paid” provision can be a lifesaver for a general cont...

Active Interference and The No Damage for Delay Clause             No Damage for Delay Clauses are designed to pass the risk of project delays and their costs to a specific party (generally the contractor). These clauses are recognized as valid and enforceable in the State of Florida. See McIntire v. Green Tree Communities, Inc., 318 So. 2d 197 (Fla 2 nd DCA 1975); Southern Gulf Util., Inc. v. Boca Ciega Sanitary Dist., 238 So. 2d 458, 459 (Fla. 2d Dist.Ct.App.1970) ; Pertun Constr. Co. v. Harvesters Group, Inc., 918 F.2d 915, 919 (11th Cir.1990) . These clauses can seem harsh when faced with the reality that delays on construction projects are very common. Because of this reality, Florida courts have created several exceptions to enforcement. Situations in which it would be unfair to bar recovery to contractors who have been delayed in completing their work through no fault of their own. These judicially created exc...

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TOP TEN CONSTRUCTION CLAUSES – PART 4 THE FORCE MAJEURE CLAUSE (HURRICANE SEASON IS UPON US!) This is the fourth in a ten-part series analyzing critical construction clauses.  In this installment, the force majeure clause is examined.  The first three articles addressed: (i) Indemnification ; (ii) Mutual Waiver of Consequential Damages ; and (iii) Liquidated Damages . A. Overview  The phrase “force majeure” derives from the French for a “superior force.” A force majeure clause is a contractual provision allocating the risk if performance becomes impossible or impracticable as a result of an event or effect that the parties could not have anticipated or controlled.  Typical force majeure events include, but are not limited to, acts of nature, such as floods and hurricanes, and acts of people, such as riots, strikes, war, and acts of terror.          The force majeure clause is an important protection device for th...

LABOR & EMPLOYMENT PRACTICE GROUP HOLIDAY PAY – IS IT A RIGHT OR A PRIVILEGE?    Employees and employers alike often share the same misunderstanding that everyone is entitled by law to receive time off for nationally recognized holidays. However, the reality may surprise you: there is no federal law requiring private employers to provide time off (paid or unpaid) to employees for nationally recognized holidays or on any other days . Additionally, no federal law requires employers to pay non-exempt* employees (whether hourly or salaried) for holidays on which they are not required to work.    If an employee is required to work on a holiday, there is nothing in federal or state law mandating employers to pay extra for working on that holiday. Hours worked on holidays are treated like hours worked on any other day of the week except when a non-exempt employee works overtime hours on that holiday. In the event a non-exempt employee will be working overtim...