Liquidated Damage Provision. In the event the Employer fails to make prompt and timely reports as required and payment of the contributions due to Local Union 513 Pension Fund, to Welfare Fund of Engineers Local 513, to Local Union 513 Annuity Fund, Vacation Fund of Engineers Local 513, and to the Operating Engineers Local 513 Journeyman and Apprenticeship Training Fund, the Union, following seventy-two (72) hours written notice by the Fund Trustees or the Union to such delinquent Employer, may order cessation of all work covered by Employer on all jobs of Employer until such reports are made and respective contributions due are paid. In addition thereto, it is agreed that the above delinquent contributions dues, plus liquidated damages to twenty percent (20%) of the delinquent contributions then due, or at any time previously due, shall constitute a debt owed by the Employer to said respective Funds’ Trustees and shall be further treated as unpaid contributions, and that in addition to all remedies on account thereof available to said Trustees and/or the Union, such debt/unpaid contributions may be recovered by suit or action at law brought by said Trustees and/or Union, and in the event of such action the Employer agrees to pay in addition to the liquidated damage amount and principal amount of such debt/unpaid contributions (including liquidated damages), all Court costs, interest on such debt at the maximum lawful rate computed from the due date of each such contribution, plus a reasonable attorney’s fee payable to the attorney or attorneys representing the Trustees and/or the Union in such action with the amount thereof fixed by the Court, but in no event less than thirty-three and one-third percent 33- 1/3%) of the total amount for which judgment is rendered. Liquidated damages are due and proper in these circumstances, the exact amount of damage caused by the Employer’s failure to live up to its contractual obligation being difficult if not impossible to ascertain in view of such items as overhead costs, internal audit costs, internal collector costs, and other efforts made by the Fund Administrator and its employees as a result of the failure of the delinquent Employer and any other delinquent Employers to make payments and file contribution reports in a timely manner.
Liquidated Damage Provision. IF BUYER DEFAULTS IN ITS OBLIGATION TO CLOSE UPON THE PURCHASE OF THE PROPERTY WHEN REQUIRED TO DO SO BY THE EXPRESS TERMS OF THIS AGREEMENT AND FAILS TO CURE THE DEFAULT WITHIN TEN (10) DAYS AFTER RECEIPT OF WRITTEN NOTICE (“DEMAND NOTICE”) FROM SELLER IDENTIFYING THE DEFAULT (THE “BUYER DEFAULT”), REQUESTING A CURE AND SPECIFICALLY STATING SELLER’S INTENTION TO EXERCISE SELLER’S RIGHT TO TERMINATE THIS AGREEMENT AND RECEIVE LIQUIDATED DAMAGES UNDER THIS SECTION IF THE BUYER DEFAULT IS NOT TIMELY CURED, AND IF, AS A RESULT OF THE BUYER DEFAULT, CLOSING FAILS TO OCCUR ON OR BEFORE THE SCHEDULED CLOSING (OR IF THE DEMAND NOTICE FROM SELLER IS RECEIVED BY BUYER LESS THAN TEN (10) DAYS PRIOR TO THE SCHEDULED CLOSING, ON THE DATE THAT IS TEN (10) DAYS AFTER SUCH DEMAND IS RECEIVED), UPON BUYER’S RECEIPT OF SELLER’S WRITTEN NOTICE OF TERMINATION, THIS AGREEMENT SHALL TERMINATE AND, PROVIDED SELLER IS NOT ALSO THEN IN DEFAULT UNDER THIS AGREEMENT (SO AS TO PERMIT BUYER TO TERMINATE THIS AGREEMENT AND RECOVER THE DEPOSIT EXCLUDING ANY INTEREST TO HAVE ACCRUED THEREON WHICH IS THE PROPERTY OF BUYER IN ALL EVENTS), SELLER SHALL BE ENTITLED, AS THE SOLE AND EXCLUSIVE REMEDY FOR THE BUYER DEFAULT, TO RECEIVE AND RETAIN THE DEPOSIT THEN HELD PURSUANT TO ESCROW, EXCLUDING ANY INTEREST ACCRUED THEREON WHICH IS THE PROPERTY OF BUYER IN ALL EVENTS, AS LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE BY INITIALING THIS SECTION THAT SELLER’S DAMAGES IN THE EVENT OF THE BUYER DEFAULT WILL BE UNCERTAIN AND EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN, ESPECIALLY IN VIEW OF SELLER’S WITHDRAWAL OF THE PROPERTY FROM THE MARKET, ANY CHANGES IN THE OPERATION OF THE PROPERTY DURING THAT PERIOD, AND THE POSSIBLE LOSS OF PROSPECTIVE BUYERS. THE PARTIES HAVE NEGOTIATED THE AMOUNT OF LIQUIDATED DAMAGES, AND IT REPRESENTS A REASONABLE ESTIMATE OF SELLER’S DAMAGES CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF EXECUTION OF THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH AMOUNTS AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. /s/ LQ /s/ PP ________________ ________________ [Initials of Buyer] [Initials of Seller]
