Understand the enforcement and pitfalls of liquidated damages clauses and strategies for negotiating a more favorable clause.
Timely performance is one of the most important, and therefore hotly contested, issues in the construction industry. As a result, many construction contracts contain liquidated damages clauses that provide in advance for specific damages in the event of a delay in completion of the project. However, many owners fail to properly consider the impact and enforceability of such clauses. Similarly, many contractors and subcontractors fail to properly evaluate the risks and potential costs of agreeing to these provisions. This topic will help owners, contractors, subcontractors, design professionals and their respective attorney's, principals and project managers to understand their rights and obligations under liquidated damages clauses. In addition, the materials also discuss and explain the enforcement and pitfalls of liquidated damages clauses and strategies for negotiating a more favorable liquidated damages clause. Failing to properly understand and address these issues can lead to costly litigation or arbitration and significant financial consequences.
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Over 37 years and 1.4 million customers worth of experience providing continuing education. Our passion is providing you world-class training to help you succeed in business and as a professional.
Agenda
Brief Overview of Liquidated Damages Clauses
- Damages for Delay Clauses
- Other Types of Damages
Legal Requirements
- Reasonable Forecast of Loss
- Damages Difficult or Impossible to Estimate
- Avoiding Unenforceable Penalty Clauses
- Is Proof of Actual Damages Required?
- Jurisdictional Differences
Drafting Considerations
- AIA and Consensus DOCS Form Provisions
- Model Manuscript Form Provisions
- Owner Considerations
- Contractor/Subcontractor Considerations
- Related Contract Terms
Enforcement Considerations
- Is the Clause Enforceable?
- Establishing Amount and Terms
- Calculation of Damages
Apportionment of Delay
- Excused Performance
- Termination and Abandonment
- Other Actual or Consequential Damages
- Pass Through to Subcontractor or Supplier
- Waiver of Liquidated Damages
Practice Pointers
- For Owners
- For Contractors
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Why Lorman?
Over 37 years and 1.4 million customers worth of experience providing continuing education. Our passion is providing you world-class training to help you succeed in business and as a professional.
Credits
OnDemand Course
This course was last revised on October 24, 2019.
Call 1-866-352-9540 for further credit information.
- NY CLE 1.5 including Areas of Professional Practice 1.5
- This course has been approved in accordance with the requirements of the New York Continuing Legal Education Board for up to a maximum of 1.5 credit hours in the area(s) of Areas of Professional Practice for 1.50 hours. Each hour may be counted only as satisfying one category of credit. Duplicate credit for the same hour of instruction is not permitted. This course qualifies for both established and newly admitted attorneys. Lorman Education- Noggin Guru, Inc. has a financial hardship guideline. Please contact customer service at 1.866.352.9539 for instructions on how to apply.
To earn each credit Lorman offers through the OnDemand learning platform, you need to watch 100% of the program. Also, for certain credits you will need to fulfill additional requirements which will be displayed on the "credits" tab when viewing the course.
This program does NOT qualify, nor meet the National Standard for NASBA accreditation.
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Why Lorman?
Over 37 years and 1.4 million customers worth of experience providing continuing education. Our passion is providing you world-class training to help you succeed in business and as a professional.
Faculty
Andrew C. Ruben
Sandberg, Phoenix & Von Gontard, PC
- Of counsel with the St. Louis law firm of Sandberg, Phoenix & Von Gontard, PC, and former attorney with Dentons and Bryan Cave Leighton Paisner
- Practice emphasizes all aspects of commercial construction and real estate development matters
- Former general counsel and senior real estate executive
- Negotiated and documented complex construction transactions throughout the United States totaling well over $1 billion in public and private investment for clients such as Starwood Hotels, Siemens Power, Yocha Dehe Wintun Nation, St. Louis County Port Authority, McCormack Baron Salazar and AIG/SunAmerica
- Teaches and conducts seminars and classes in the areas of general corporate law and construction and real estate development
- Member of ABA’s Forum on the Construction Industry and the Bar Association of Metropolitan St. Louis’ Construction Law Committee
- J.D. degree, Washington University, St. Louis School (Order of the Coif); Graduate and undergraduate degrees in music, University of Michigan
- Can be contacted at 314-725-4909 or [email protected]
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