Applying Best Contracting Practices to Construction Contracts
February 27-28, 2018
Houston, TX

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Overview

The objective of this course is to assist professionals in avoiding unnecessary contractual mistakes.  In some sense, contractual mistakes are just another name for experience.  Experience is always good.  In this course, experience is used as the basis to suggest how to implement contractual strategies.  Lack of focus and clarity in a contract can lead to great disappointment for all parties involved in a project.

Risk is sometimes defined as “decision-making under uncertainty.”  The challenge of the parties to a contract is not to try to eliminate risk but rather to put into place a narrative structure that enables the parties to predict what contractual result would be obtained if a risk materializes.  If a contract does not allow the parties to determine the consequences of an unanticipated situation, they will have to look to an expert, mediator, tribunal or court to impart guidance or pass judgment. 

Form contracts will be handed out. 

Learning Outcomes 

  • Discern the anatomy of a construction contract
  • Implement philosophy of project into the construction contract
  • Identify types of unforeseen circumstances, adjustments and change orders
  • Define limitations on overall liability and contract expiration
  • Parse owners and contractors responsibilities
  • Differentiate contractors warranties
  • Evaluate legal regimes and how to choose a legal entity

Credits

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EUCI has been accredited as an Authorized Provider by the International Association for Continuing Education and Training (IACET).  In obtaining this accreditation, EUCI has demonstrated that it  complies with the ANSI/IACET Standard which is recognized internationally as a standard of good practice. As a result of their Authorized Provider status, EUCI is authorized to offer IACET CEUs for its programs that qualify under the ANSI/IACET Standard.

EUCI is authorized by IACET to offer 1.0 CEUs for this event.

 

Requirements for a Successful Completion of Program 

Participants must sign in/out each day and be in attendance for the entirety of the course

Instructional Methods 

This program will use PowerPoint presentations, group discussions, as well as active participation.

Agenda

 Tuesday, February 27, 2018 

8:00 – 8:30 a.m. :: Registration and Continental Breakfast 

8:30 a.m. – 5:00 p.m. :: Course Timing 

12:00 – 1:00 p.m. :: Group Luncheon 

Contractual Principles 


Legal Regimes- Civil Codes vs. Case Law 


Choosing a Legal Entity 

  • General and Limited Partnerships
  • LLPs and PCs
  • Corporations
  • Limited Liability Companies
  • Forming a Project Entity
  • SPVs

Communication with the Contractor and the Attorney/Client Privilege 

  • Quasi-Contract
  • Parold (Oral) Evidence
  • Additional Terms

Philosophy of the Contract 

  • Prudent Practices
  • “Best” Efforts and “Commercially Reasonable” Efforts
  • “Good Faith” and “Good Intentions”

Third-Party Beneficiaries 


Unforeseen Circumstances, Adjustments and Change Orders 

  • Force Majeure
  • Risk of Loss
  • Builder’s All Risk Insurance to Cover Risk of Loss
  • Equitable Adjustments
  • Change Orders
  • Constructive Changes
  • Cardinal Changes and Contractual Abandonment
  • Cumulative Impact Changes

The Contractor’s Failure to Preform 

  • The Concept of Default
  • Remedies at Law vs. Remedies in Equity
  • Adequate Assurance
  • Exclusivity of Remedies
  • U.S. Bankruptcy Code
    • Rejection of Contracts

The Owner’s Failure to Discharge Its Responsibilities  

  • “No Damages for Delay” Provisions
  • Active Interference and Loss of Efficiency

Liquidated Damages for Delay and Impaired Performance 

  • Output
  • Efficiency
  • Availability
  • Emissions
  • “Double Counting”, “Caps” and “Sub Caps”

Contractors Warranties  

  • Hidden or Latent Defects
  • Subcontractor Warranties
  • Superior Vendor Warranties
  • “Pre-ordered” Equipment
  • “Serial” Defects
  • Locating Defects and Deficiencies
  • Remedies for Breach of General Warranty
  • Scheduling of Warranty Work
  • Warranty Exclusions
  • Limitation of Warranties
  • Warranty Bonds

Security for the Contractor’s Performance

  • Performance Bonds
  • Parent Guarantors
    • Other Security
    • Collection vs. Payment
    • Forum
  • Letters of Credit
    • “Direct Pay”
    • Eligible Banks
    • Standby Letters of Credit
    • Expiration
  • Bank Guaranties

Limitations on Overall Liability and Contract Expiration

  • Negligence and Gross Negligence
  • Types of Damages
  • Waiver of Damages
  • Who Owes the Damages and to Whom Are They Owed?
  • No Excuse of Performance
  • Incoterms
  • Subrogation

Title and Other Legal Matters

  • Licenses
  • Representations and Warranties
  • Legal Opinions

Indemnification and Insurance 

  • Builder’s Insurance
  • Operating Period Insurance

Dispute Resolution and Governing Law 

  • Litigation
  • Arbitration

Wednesday, February 28, 2018 

8:00 – 8:30 a.m. :: Continental Breakfast 

8:30 a.m. – 12:00 p.m. :: Course Timing 


Anatomy of a Construction Contract 

  • Definitions
  • Intent
  • Commencement of the Work
  • Relationship of the Sponsor, the Contractor and Subcontractors
  • Contractor’s Responsibilities
  • Review, Inspections, and Auditing
  • Sponsor’s Responsibilities and Rights
  • Testing and Completion
  • Guarantees and Liquidated Damages
  • Contract Price, Payment, and Credit Support
  • Force Majeure, Hazardous Materials and Site Conditions
  • Representations and Warranties
  • Contractor’s Warranties
  • Title and Risk of Loss
  • Insurance
  • Indemnification
  • Default, Termination and Suspension
  • Damages and Liabilities
  • Adjustments
  • Dispute Resolution and Governing Law
  • Assignment
  • Financing

Instructor

Howard M. Steinberg is a retired partner and now “Of Counsel” to the project development and finance group of the international law firm of Shearman & Sterling LLP.  He concentrates on transactions involving the energy sector and focuses on the power industry in particular.  He has represented sponsors, offtakers, miners, fuel suppliers, contractors, operators, underwriters and lenders in the development, acquisition, restructuring and privatization of infrastructure projects around the world.  His two-volume tome on engineering, procurement and construction contracts is being published this year by Routledge, Taylor & Francis Group.

Location

Royal Sonesta Houston
2222 West Loop S
Houston, TX 77027

To reserve your room, please call 1-866-463-3091
Please use Group Code 0220EUCI to  receive the group rate.

Click here to book online

Room Rate:

The room rate is $169.00 single or double plus applicable taxes.

Room Block Dates:

A room block has been reserved for the nights of February 26 – 27, 2018.

Rate Available Until:

Make your reservations prior to February 13, 2018. There are a limited number of rooms available at the conference rate. Please make your reservations early.

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