LEGAL: Key Contractual Payment Provisions and State Laws


Making Dollars and "Cents" of Key Contractual Payment Provisions and How State Law Can Impact your rights

Clauses that can affect your right to payment in different U.S. states

By Ashley Sherwood and Dan W. Ballesteros, Seyfarth Shaw LLP

In contracts that can sometimes be hundreds of pages, the provisions that contractors (and their attorneys) scrutinize the most concern payment. But it is not just the obvious payment application or interest clauses that can impact a contractor's right to payment. Indemnity, no-damages-for-delay and pay-if-paid clauses can drastically impact when a con- tractor sees the money. Adding another layer of complexity are statutory nuances about which contractors need to be aware. Construction laws vary from state to state and can, in some cases, invalidate what would otherwise be enforceable contract language. Subcontractors, in particular, should safeguard themselves, as state-law protections do not always trickle down past the prime contractor level.

Most statutory payment provisions fall into three categories (1) timing of pay- ment; (2) conditions of payment; and (3) 
bases for non-payment. This article discuss- es typical contractual clauses impacted by statute and provides examples on how state law may apply to your project and impact your rights. While not every payment-relat- ed issue or state law is covered in this article, contractors and subcontractors of all sizes and specialties should come away with a better understanding of what to look for in their existing contracts, and what to push back on during their next negotiation.



Posted in PileDriver Magazine.

PileDriver Magazine - Issue #3 2023


In this issue of PileDriver magazine, read about how Cape Romain Contractors has built South Carolina's iconic Folly Beach Pier twice, once in the early '90s and again in 2022. The new pier is 22 feet above sea level and supported by concrete pilings as opposed to the timber pilings that the previous pier was on. About 40 of the 228 PCCPs had to be lengthened with 30-foot steel stringers. Read about this interesting job and its unique challenges in the newest issue of PileDriver.

Don't miss these articles:
Screen shot of the Rigging It Right Toolbox Talk page
Toolbox Talk:
The Crucial Role of Proper Rigging
The latest in PDCA's 2023 Toolbox Talks, the PDCA Safety & Environmental Committee offers pointers when it comes to the significance of proper rigging. Don't forget to visit to download this free resource and use it with your crews.

Read more
Photo of marine pile driving
Project Spotlight:
NYC Ferry Homeport II Site
Trevcon Construction project manager Anika Alam walks us through how the Trevcon team is progressing as it helps facilitate the growth of NYC's waterfront transportation system.

Read more
Project Spotlight:
Casco Bay Cofferdams
International Construction Equipment, Inc.'s Debbie Reaney talks about H.B. Fleming's work on the massive infrastructure upgrades currently underway in Maine, aimed at protecting local waterways.

Read more
Aerial photo of a highway overpass
Driven Piles Outperforming Drilled Micropiles
Experts from Geosciences Testing and Research, Inc. give us a thorough look at an innovative driven pile solution for the Rhode Island Route 6/10 Interchange project.

Read more
Graphic for a legal article  showing an hourglass and coins on a teeter-totter
Key Contractual Payment Provisions and How State Law Can Impact Your Rights
Seyfarth Shaw LLP breaks down different clauses that can affect your right to payment in different U.S. states. If you like getting paid, don't skip this article.

Read more

Remembering "Industry Icon" Mike Elliott, 1949-2023

In February 2022, the PDCA South Carolina Chapter honored Mike Elliott for 50 years of contributions to the pile driving industry.

In addition to his long, successful career in the piling industry, Mike Elliott was also an important volunteer at PDCA when the organization was still in its infancy and had a staff of only one. As one past president told us, Mike donated significant time and resource to help create some of the early Annual Conferences, among other events.

For many years, Mike was President of Pile Equipment, Inc. near the PDCA offices in Florida. His time was flexible and his passion for pile driving burned bright, inspiring him to regularly volunteer on PDCA initiatives. As the years passed, Pile Equipment was acquired by Equipment Corporation of America (ECA), a stalwart PDCA supporter and a great fit for Mike where he continued to serve the industry as Vice President and Jacksonville Branch Manager. That is where he concluded his career in 2021.

Like many of you, we at PDCA were saddened to learn of Mike's passing on June 9, 2023. Through a poignant social media post from his last employer, ECA company President/CEO Roy Kern accurately stated in the post that Mike was 'an industry icon,' and that sentiment is shared far and wide. If you missed the post, please see below:

Shortly following Mike's retirement from ECA, PileDriver magazine published a Career Story chronicling his remarkable time in deep foundations equipment. If you would like to re-read the article, you can access it by clicking "Mike Elliott: Newly Retired After 50 Years, Now Teaching and Consulting." 
Watch for Issue #4-2023 of PileDriver magazine, coming this August, which will include an In Memoriam that will feature memories and quotes from many of Mike's friends and former colleagues. If you would like to submit your thoughts about Mike Elliott, please email

PDCA thanks Mike for his years of support of this organization and his decades advancing the driven pile industry. Our deepest sympathies are with his loving wife, Suzie, and children Justin and Lindsey. 

Thank you Mike Elliott!

DICEP 2023 Registration Open, Speakers Announced

(L-R) Timothy C. Seigal, P.E., G.E., D.GE, Silas Nicols, P.E., among DICEP 2023 presenters

PDCA 24th Annual Design & Installation OF cOST-Efficient Piles Conference; SEPTEMBER 12-13 IN hOUSTON, tx

  • Installation of Offshore Platforms
  • Vibrations in Urban Areas
  • The Roll of Sustainability in Future Design
  • A Case Study Experimental Pile Load Testing (PLT) for Evaluation of Skin Friction in Sandy and Clayey Soils
  • Tale of Two Shorings: Dallas Rail Yard & Lake Austin Water Control Pond
  • Optimizing Pile Lengths with an Embedded Instrumentation Load Test Program for a Large Industrial Plant
  • Innovative Methods for Pile Installation
  • Design Considerations for Displacement Rigid Inclusions
  • and more!
  • Gerry McShane, Director of Piling Sales, Service Steel Warehouse
  • Silas Nichols, P.E., Principal Geotechnical Engineer, FHWA
  • Brandon Phetteplace, P.E., Project Engineer, GRL Engineers, Inc.
  • Clayton Signor, Owner, Texas Pile, LLC
  • Timothy C. Seigel, P.E., G.E., D.GE, CEO/Senior Principal, Dan Brown & Associates
  • Daniel Sprunk, Project Manager, Cajun Industries, Inc.
  • Bob Stevens, PhD, P.E., F.ASCE, D.GE, Principal Consultant, Fugro Marine
  • Jamal N. Tahat, Doctoral Candidate, Department of Civil, Environmental, and Geodetic Engineering, Ohio State University
* Licensed PEs can earn up to 8.50 professional
development hours (PDHs) by attending this conference.

Hotel Accommodations

Conference Hotel

Houston Marriott West Loop by the Galleria

1750 West Loop S.
Houston, Texas 77027

  • PDCA has secured a conference rate ranging from $179, at the Houston Marriott West Loop, for reservations made through Friday, August 18, 2023.
  • Reservations made after this date will be subject to the hotel's standard rates.
Make Your Reservation

PDCA does not use a housing or room reservation service for its events. There are only two ways for you to make your hotel reservations:

  • By visiting the Houston Marriott West Loop online - HERE.
  • By calling the Houston Marriott West Loop, toll free, at 800-228-9290 and reference Pile Driving Contractors Association.

** Exhibit and Sponsor Opportunities are Available at DICEP
*** Click the button below to participate in this annual, technical event; see you in Houston, Sept. 12-13


Register Today

Driven Pile Represented at Annual SuperPile Conference

Contractors, engineers, equipment manufacturers, and material suppliers who are PDCA members and supporters of the Deep Foundations Institute (DFI), are returning from Atlanta, Ga where DFI, in partnership with ADSC, hosted the annual SuperPile '23. Event attendees participated in committee meetings, an exhibit hall, a variety of technical presentations, the Women in Deep Foundations reception, foundation industry networking opportunities, and more. PDCA is a Cooperating Organization for DFI functions and staffed the June SuperPile at the Mariott Marquis Downtown Atlanta. 

Subject matter experts on components of the pile driving industry who are PDCA members were among the many presenters during program. Member companies to give SuperPile '23 presentations; ICE-International Construction Equipment, Inc., (pictured), Fugro USA Land, Inc., Keller, The Citadel, Georgia Institute of Technology, Dan Brown and Associates, PC, Cajun Industries, LLC, Geosciences Testing & Research, Inc., GRL Engineers, Inc. Several PDCA members sponsored the two-day event in various capacities, they included: APE-American Piledriving Equipment, Inc., PileCo, Inc., Liebherr, Junttan USA, Richard Goettle, Inc., GRL Engineers, Inc., Keller, and Nucor Skyline.

See which PDCA members were SPOTTED at SuperPile '23:

Committee Meetings
PDCA attended the Working Platforms Industry-Wide Working Group (not pictured); PDCA Safety & Environmental Committee Chair Chris Normand spoke on behalf of the pile driving industry and how it is prioritizes safety in every facet of the practice, including the working platforms.

Also, PDCA attended the DFI Driven Pile Committee Meeting. Longtime PDCA Engineering Affiliate members and new Driven Pile Committee Co-chairs Seth Hamblin and Greg Canivan took the reins to the committee earlier this year and presided over their first live meeting during the DFI event. PDCA President Brian Heck, Executive Director Frank Peters, US-DOT Federal Highway Administration Principal Bridge Engineer Silas Nichols, PileDriver magazine publisher Jill Harris, and a host of PDCA Contractor, Associate, and Engineering Affiliate members participated in the proceedings.

Women in Deep Foundations Networking Reception

exhibit hall

VIRTUAL EDUCATION (6/8): 2023 Legal Developments to Enhance Your Profits

Rick Kalson (L) chairs the PDCA Contracts & Risk Committee, addresses attendees of a 2022 committee meeting

Don't miss the next installment of the PDCA Value Driven Webinar Series coming June 8, 2023, at 2 PM EDT when PDCA Contracts & Risk Committee Chair Rick Kalson offers participants legal perspectives on some of the latest judicial opinions that can impact their company's bottom line. Entitled Legal Developments that Will Make You More Profitable, the Partner at Benesch Friedlander law firm in Pittsburgh will delve into several opinions that have been issued during the first five months of 2023 and involve important issues such as Surety Payment Fund Plans, Pay if Paid clauses, Claims for Unforeseen Conditions, among others. Mr. Kalson's program is scheduled for one hour and eligible attendees will receive 1 PDH upon the completion of the program.

The PDCA 2023 Value Driven Webinar Series is produced in collaboration between the PDCA Associate Member Council and Education Committee. It provides PDCA members with the opportunity to gain at least one FREE PDH each month, non-members of PDCA are welcome to attend the seminars and gain PDH for a nominal cost. Each month brings a different topic which addresses subject matter of interest to the driven pile industry. Topics to date have included driven pile case studies, technology updates, actual project conversion methods, job site safety, legal, and more. This program is scheduled the second Thursday of each month from 2 - 3 PM ET. Watch your inbox for information about the next installment of the Value Driven Webinar Series, coming July 13, 2023.

Gulf Coast Chapter Holds Quarterly Meeting in Baton Rouge

The PDCA Gulf Chapter assembled at L'auberge Casino in Baton Rouge, LA for its quarterly meeting on June 1, 2023. Thanks to the generosity of sponsoring members APE - American Piledriving Equipment, Inc., and Scott Equipment, there was no cost for members in good standing to participate in the cocktail hour, dinner, or business meeting that comprised the event.

At the invitation of the Chapter which has advocated the reestablishment of a pile driving course in the Construction Management program at Louisiana State University, Bo Markovic provided perspectives from the institution on the idea. Additionally, Executive Director of PDCA Frank Peters gave the Chapter members an update on news and information from the national organization.

Attending members were qualified for a drawing which took place during the meeting; the Chapter donated fishing and golfing equipment to be given away during the event.

PDCA Gulf Coast Chapter President Dylan André reported that the next Chapter meeting would likely coincide with the annual Sporting Clay Shoot and the which is expected to take place in late August. Stay tuned for further information as it becomes available.

Posted in Chapter News.

Sadler of ICE, Inc. Wins May #PDCADriven Contest

A Pile of News - June 2023

A Pile of News: June 2023
A briefing on news and information from the pile driving contractors,
associated manufacturers, construction suppliers and affiliated engineers
who comprise PDCA.
By Matt Bisbee, PDCA

Originally sent June 1, 2023
Top of the Pile
June 1 marks the start of the 2023 Atlantic hurricane season. Most of you know, and many of you have experienced, the personal and professional interruption and in some cases devastation that the unpredictable storms bring. PDCA members are still performing work to rebuild from last year's violent storms, and even other storms dating back a decade or more. Freshen up on hurricane season preparedness with this Pensacola News Journal story, complete with photos from 2022 hurricanes, also predictions, tips, and even the list of names for the 2023 season. Violent weather is one of many safety considerations for pile drivers. Some others include threats from inadequate PPE and summer heat. PDCA members are always focused on safety: Father's Day is also a highlight in June here's looking at you, PDCA father figures (June 18). Make sure to read the Notes from the Field section below to see our salute to the dads!
From the Association & Chapters
Mark your calendars!
News and photos from the PDCA Blog:
Congratulations, Rick Sadler, you are this month's winner! Send an email to before the end of the month to claim your prize!
News from PDCA Companies
Dissen & Juhn opened in 1973 when founders Martin Juhn and Gil Dissen preserved a local marine construction business from their former employer, which relocated. Originally based in Rochester, NY, the company eventually expanded into Maryland in 1978. Headquarters moved to Stevensville, MD, in 2005 after current owners Gil W. and Mark Dissen took the helm. Watch PileDriver magazine for an upcoming story on Dissen & Juhn's 50 years in pile driving.

Flexicore of Texas celebrates 70 years producing PSC piles and more in Houston. The manufacturer lists a famous Texas landmark on its resume The Eighth Wonder of the World, AKA the Astrodome, used their treads and risers during its 1962 construction. Today, the company supplies TX-DOT bridges and petrochemical projects, among others. The team marked their anniversary with an April Customer Appreciation Crawfish Boil.

S&ME, Inc. embraces 50 years in business, AND the mighty ampersand! Engineers with names that are a series of letters, take note you might consider adding the quirky punctuation to your incorporation documents after watching a delightful video of S&ME staff explaining their unique name. We don't see you, technical principal/senior project manager and PDCA board member Greg Canivan!

Acquisitions & Expansions:
Giving back: Recognitions:
Governmental relations:
People on the Move
  • Miguel Arguelles was promoted to VP in the marine and industrial business unit at McCarthy in Channelview, TX. Joshua Martinez, P.E. joins the office as integrated design director.
  • John "J.P." Donoghue rejoins Orion Marine Group as area manager in Gulf Coast region. Also, Ryan Hallmark elevates to equipment manager to fill the shoes of retiring Joe Harrington.
  • Caroline Théorêt, GM at her Quebec family business PRECO-MSE, embraces her upbringing where "Tonka Trucks had no gender" she adds a new title as VP of Roxboro BauVal Group.
  • Chuck Sullivan elevates from project engineer to superintendent at Russell Marine in Houston.
  • Kris Bailey was chosen to oversee sales/consulting in foundation, utility, pile driving industries in eight-state, southeastern U.S. territory for CZM-US Foundation Equipment.
  • Tomas Delatorre retires after 36 years at Lodge Lumber; the team held a ceremony in his honor. Susan Gould joins the Houston-based supplier of pile cushions and more as executive assistant.
  • Brad Ford elevates to EVP for fabricated construction products at Nucor.
  • Garrett Smith at PVE Equipment USA promoted to business unit manager for the Gulf Coast region; James Ball onboards as the region's key account manager.
  • Ernie Nillen in New Orleans celebrates 41 years at Southern Earth Sciences! Other notable anniversaries in May were Danny Keller (33), Shane George (29) and Larry Jackson (25).

On the Job
ASAP Group shares aerial footage of a coffer cell installation for a spillway in the Florida Everglades.

Farrell Brothers Marine Construction, Inc. completes a recent North Florida bulkhead repair job, gives recommendations for incorporating a certain type of stainless steel into saltwater projects.

Forefront Deep Foundations installs steel sheets on a waterfront job in San Diego; crews use an International Construction Equipment vibro under the Southern California sun.

GeoStructures, Inc. updates progress on an eight-story development in New York City; photos depict crews installing DuroTerra ductile iron piles with less than a foot to the neighboring structure.

Orion drove 850 LF of vinyl for a special bulkhead; see a birds-eye view of the Texas-shaped product.

Palmetto Pile Driving, Inc. works close to home as it begins its scope on capital improvements for the Charleston County, SC, Plum Island Water Treatment Plant, a job valued around $60M.

Russell Marine LLC removes 62-year-old piles from the Port of Beaumont.

APE, Inc. hammers built San Francisco's new Treasure Island Ferry Terminal; Bill Ziadie performed wave equation analysis to prescribe the correctly sized hammers for driving the pier and breakwater piles.

JD Fields & Co. supplies coated steel sheets for seawall restoration in Daytona Beach, FL; 2022 hurricane activity left significant damage for several resorts and condos.

Eustis Engineering performs construction testing and inspection for the new Harrah's Casino that is progressing in downtown New Orleans.

Dewberry is building the Digital Coast platform for the National Oceanic & Atmospheric Administration, an initiative that will be a collection of data made available to parties interested in coastal development, natural disasters other oceanic concerns.
Media Hits
Geotechnical Special Publication, Highway 1 Rat Creek Embankment Failure analyzes the 2021 Big Sur, CA, roadway collapse, coauthored by Phil Gregory, Reid Fisher and Justin Lindman of Haley & Aldrich.

A Hands-Off Approach to Geotechnical Instrumentation by Isabella Kennedy, Kyle Szewczyk, Brendon Murphy of GZA GeoEnviromental published in Boston civil engineering publication.

Houston Business Journal honors JD Fields in inaugural recognition of family-owned business awards.

Sustainable Biz Canada writes about Samuel Roll Form Group CEO Colin Osborne's presentation on the viability of sustainability in business.
Notes from the Field  Here's to the Dads!
The big day is June 18  but consider celebrating early by partaking in a traditional dad-pastime of a horseshoe competition. Foundation Constructors' annual Horseshoe Tournament is on June 10

Sport shooting with dad is always fun imagine using this historical Gatling Gun that a Kokosing crew found on a military installation job in Virginia. Unofficially, only eight of these ever existed.

Hitting the links? We hope you don't get late snow like Michigan-based Koppers golfers did in May.

Snow or not, you'll be safe in a bowling alley; some of the dads at D.A. Collins Construction have begun practicing their technique to not get Munsoned if the family takes them bowling.

Wanna just show off that dad-bod? You could take it easy and enjoy a beach day like the team at Aggregate Technologies did for their annual company outing.

Got Beaver Nuggets? A Texas borne phenomenon, Buc-ee's is ubiquitous around the Lone Star State, as evidenced by this photo of breaking operators at Orion's Channelview yard. Dad needs that cooler!

Grandfathers are dads, too David Sauls at GeoEngineers has a very unique out-of-office email reply:
  • Grandparenting Advisory and working at odd times
--MondayWednesday, I will be grandparenting two boys today with my cell phone
--in a drawer. I am working a full schedule at odd times. I am in office on Thursday.

Father knows best  Hopefully, there's been a father figure in your life who gave you a lesson or two about self-accountability and perseverance. Here's another one, as shared to social media by Heron Wolf. Apparently, HBO sent a mass email to subscribers, but the email was for internal use only. HBO held itself accountable and protected an intern who was involved. Check out this collection of uplifting and supportive responses the intern received because of their employer's classy handling of the situation.

That's a wrap, thanks for reading the June installment of 'A Pile of News.' Coming in July, we will lead this publication with a list of all the new members who have joined PDCA during the second quarter of 2023. If you want to be included on that list, but you are procrastinating on your enrollment, you have one month left to activate. Please contact PDCA for more information about membership options. Otherwise, Happy Father's Day, Happy Summer (June 21), and stay vigilant about threatening weather.
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Posted in A Pile of News PDCA Monthly e-newsletter.


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