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192 Cards in this Set

  • Front
  • Back
ACCELERATION COST
cost incurred by a contractor when the project is interfered with by the owner, in such a way, that the contractor must employ more manpower or work more hours in order to complete the project on time. If the contractor contributes to the cause of its own delays, acceleration cost may not be granted.
ACCEPTANCE
act of a person to whom a thing is offered by another whereby he receives the thing with the intention of retaining it, such intention being evidenced by a sufficient act. (See CONTRACT)
ACTIVE INTERFERENCE
action by a party to a contract that causes the other party of the contract to not complete the work of the project on time or in the manner established by the contract writing. Positive action must be performed on the part of the interfering party as opposed to passive negligence, which is inactive, permissive or sub-missive.
ACTUAL DAMAGES (ACTUAL LOSS)
damages resulting from real and substantial loss, as opposed to those which are merely theoretical, estimated, or anticipated. Actual damages represent the real and true value of the total loss suffered, as opposed to liquidated damages which represent an estimated amount of calculated as anticipated loss at a future time.
ADDENDA
modifications to the contract documents issued during the bid period. Addenda become official parts of the contract documents and are legally binding to the signatories of the contract.
ADVERSARY
parties to a contract are in adversary or arms-length relationship to one another as a result of the commitment they have made to each other in teh contract terms and conditions. This relationship is recognized by the courts and binds the 2 parties together in that relationship. A relationship of mistrust.
AGENT
a person authorized by another to act of him or her; one who is employed to represent another in business and legal dealings with third persons. In a typical agency relationship, 3 parties are involved: a principal, an agent and a third party. The agent represents the principal in dealing w/ the 3rd party or parties. In the construction industry, a typical misunderstanding is that the LA, in a typical contract, is the representative of the owner. An agency relationship is est. in writing (express agency) w/ all 3 parties acknowledging the relationship. An agency may also be est. by acts and/or omissions of the parties (implied or apparent agency) which will bind the parties legally in the same manner as an expressed agency relationship.
ALLOWANCE
a sum of money set aside by the owner to remove a particular portion of work from competitive bidding. This is typical of gov't-subsidized institutions w/ work that must be competitively bid and w/ projects in which certain portions of the work are proprietary and therefore must be removed from competitive bidding.
ALTERNATE
a material or method used in place of the base material or method specified for the project. In a typ. construction contract, the owner chooses the alt. or remains w/ the base requirement, giving it control over the total cost of the project. An alt differs from an option in that cost is a factor in the selection of an alt by the owner, whereas an option does not have cost as a factor and the choice is made by the contractor (see OPTION)
AMBIGUITY
doubtfulness of meaning, duplicity, indistinctness, or uncertainty of meaning of an expression used in written instrument. The courts, interpreting a writing, will permit parol evidence to clarify the writing if the writing is in fact ambiguous. However, the courts will not permit parol evidence if the writing is clear, even though it may be in error (see PAROL EVIDENCE)
ANTICIPATORY BREACH (ANTICIPATORY REPUDIATION)
est. when a contractor makes a positive and unequivocal statement that it will not or cannot substantially perform the contract or when a contractor, by any voluntary affirmative act, renders substanital performance of its contract apparently impossible. Based on these 2 conditions, the owner may terminate the contract immediately or upon completion of a waiting period to determine the contractor's performance according to the contract writing. In either case the owner must est that the contractor's statement is positive an unequivocal. If the owner terminates the contractor for default after a statement which is ambiguous, the owner will be held to have wrongfully defaulted the contractor.
ANTITRUST LAWS
federal and state statutes to protect trade and commerce from unlawful restraints and monopolies. In the construction industry, bid rigging is considered a violation of antitrust laws. Those found guilty of bid rigging are assessed treble damages. (see BID RIGGING)
APPARENT AGENCY
an agency relationship created by an act of the parties and deduced from proof of other facts.
ARBITRATION
the submission of a dispute to a third party (ind or panel), known as arbitrator(s), whose judgement is final and binding. Decisions at arbitration hearings, unlike those in judicial cases, do not est precedents.
ARBITRATOR
one who resolves disputes between 2 parties. In a typ construction contract, the LA is designated as an arbitrator in resolving the disputes between the owner and the contractor. Unlike formal arb (as est by the Amer. Arb. Ass.) a LA acting as arbitrator in the construction process is the 1st level of resolving disputes and its decision is not final and binding.
LANDSCAPE ARCHITECT
person or org. hired by owner to design project. The LA's duties are producing plans and specs from improvements will be constructed. May preside at the bid opening, monitor the construction process to assure that the owner's interests are protected, and approve payments to the contractor. Its relationship to the owner is that of an independent contractor. All LA's must be licensed by the states in which they practice. In addition to the contract w/ the owner, the LA also will enter into contracts w/ consultants but will not execute a contract w/ the contractor
ASSIGNMENT
a legal action which allows a person who is not party to a contract to obtain the contract of a party who is. A contractor may assign the rights contained in its contract w/ the owner to a subcontractor. In a similar manner, the LA can assign portions of the design of the project to its consulting engineers, primarily in the areas of structural, mechanical, and electrical design.
ATTACHMENT
the act or process of taking, apprehending, or seizing person or property by virtue of a writ, summons, or other judicial order and bringing the same into the custody of the law; a remedy ancillary to an action by which the plaintiff is enabled to acquire a lien upon the property of effects of the defendant for satisfaction of judgement which the plaintiff may have obtained (see LIEN)
BETTERMENT
an improvement brought upon an estate (land and/ or buildings) which enhances its value that mere repairs. The improvements may either be temp. or permanent. This term also applies to denote the additional value which an estate acquires in consequence of some public improvement, such as the widening of a street, etc.
BID
an offer to perform a contract for work and labor or for supplying material at a specified price. In the construction industry, a bid is considered an offer by the contractors to the owner. A bid, as an offer, becomes a contract once the owner accepts the bidders offer w/ all other contractual requirements in order. (see CONTRACT)
BID DEPOSITORY
a clearing house for subcontractors to submit their bids for a particular project and for the prime contractors to receive bids from the various subcontractors. In Cali. a bid depository was found in violation of antitrust laws based on its rules for membership imposing fine, suspension, or expulsion to members not abiding by the rules.
BID REJECTION
the act of not allowing a bid to stand because of an impropriety in the process of submission or as a result of the owners arbitrary decision to reject the bid. The owner, in a typ. contract, reserves the right to reject any and all bids. However, in rejecting a bid, an owner and its LA run the risk of interfering w/ the bidders right to do work or defamation of character of the part of the bidder.
BOARD OF CONTRACT APPEALS
an independent adm. quasi-judicial board to decide all public contract disputes. Various states have created these boards to relieve the courts from backlog of cases related to public contracts. Note that these boards hear only disputes related to public contracts and not to private contracts.
BOILER PLATE
a term used to represent standard legal conditions inserted at the front end of a construction contract. These conditions are typ. titled "general conditions" "supplemental conditions" "special conditions" and are inserted at the front end of the project manual.
BOND
an instrument w/ a clause, w/ a sum fined as a penalty, binding the parties to pay the same, and w/ the condition that the payment of the penalty may be avoided by the performance of certain acts by some, one, or more of the parties; a certification or evidence of a debt; a mere promise to perform or pay; a written obligation. In the constuction industry, there are several types:
bid bonds - ensures the bidder will enter the contract if awarded project.
performance bonds - insures completion of the project by the contractor, guaranteeing that if the contrator defaults, the bonding company will step in and finish the work. Also can be between prime and subcontractors, assuring the prime that the subs will perform or pay.
payment bonds (labor and material payment bond) - provides a source of payment for the contractors and subs' labor and materialmen.
BUILDER
one whose occupation is the building structures, the controlling and directing of constuction, or the remodeling and adopting to particular uses of buildings and other structures. Often the same as "contractor - see CONTRACTOR)
BUILDING CODE
several model codes (Southern Standard Building Code - SSDSC, Uniform Buiding Code - UBC, Building Officials and Code Administrators - BOCA, National Building Code - NBC, and International Building Code - IBC one of which is enacted in most jurisdictions. A code is not applicable to a certain jurisdiction or locality until it is enacted into local law.
CAPACITY
the attribute of persons which enables them to perform civil or juristic acts; necessary for parties entering into a contract (see CONTRACT)
CASE LAW
The aggregate of reported cases forming a body of jurisprudence or the law of a particular subject as evidenced or formed by the adjudged cases; distinct from statutes and other sources of written law.
CAVEAT
a caution; literally, "let him beware."
CERTIFICATE
A written assurance, or official representation, that some act has or has not been done, that some event occurred, or that some legal formality is being complied with; a written and signed document est. that a fact is true.
CERTIFICATE OF OCCUPANCY
A doc. issued by the building inspector certifying that the structure conforms to all relevant code sections and is, therefore, safe for use. An owner must obtain a certificate of occupancy before they can use the building. New buildings cannot be considered complete until a cert. of occupancy has been issued. In some instances, a partial cert. of occupancy will be issued for portions of the building to be occupied.
CERTIFICATE OF PAYMENT
Document issued by the LA in which the LA certifies that the contractor has adequately performed. Presented to the owner for payment to the contractor.
CERTIFICATE OF SUBSTANTIAL COMPLETION
Document issued by the LA when the project is complete to the degree that the owner can use the project for its intended purpose. (see SUBSTANTIAL COMPLETION)
CHANGE
Revision to the original contract document. Differs from modification in that the modification is agreed to by both parties of the contract, a change may be made unilaterally by the owner in spite of the contractor’s lack of agreement.
CHANGE ORDER
Document issued by LA directing the contractor to erect some portion of the project in a manner different than described in the original plans and specs. This change must have an effect on the price/time of the contract in order to constitute a change order (if not – then the change is a field order or minor change order). May be requested by the LA, owner, or contractor.
CLAIM
An action initiated by one of the parties of a contract against the other party. This may be in the form of a written letter, a legal doc, or some instrument establishing the difference between the 2 parties. (note – letter is sufficient in some courts to est. a claim)
IMMUNITY
legal status granted to LA in the quasi-judicial role as arbitrator in settling a dispute between the owner and contractor. This cloak protects the LA from liability by either party as a result of the decision rendered in resolving the dispute (see IMMUNITY)
COLLUSION
An agreement between 2 or more parties to defraud a person of their right by the forms of law or to obtain an object forbidden by law; a secret combination, conspiracy, or concert of action between 2 or more persons for fraudulent or deceitful purposes.
COMPETITIVE BIDDING
Sealed proposals submitted to the owner for consideration. Mandatory on public works projects. Private owners may use to secure the most economical/capable contractor for the construction of the project. Private owners are not legally bound to the competitive bidding process.
CONSIDERATION
the incentive to a contract; the cause, motive, price, or impelling influence which induces a contracting party to enter into a contract; the reason or material cause of a contract. (see CONTRACT)
CONSTITUTION
the written instrument agreed upon by the people of the United States, or of a particular state, as the absolute rule of action and decisions for all departments and officers of the government in respect to all the points covered by it. This instrument must control until it is changed by the authorities which established it. Any act or ordinance of any government department or office opposed to it is null and void. Several states have enacted statutes which have affected the construction industry and have been found unconstitutional or null and void in their application. One such statute is the statute of limitations which is applied for the protection
of the owner and Landscape Architect but not for the contractor.
CONSTRUCTION MANAGEMENT
A process of professional mgmt applied to a construction program from conception to completion for the purpose of controlling time, cost and quality. Ideally, CM organization links itself to the owner as an agent and thereby places itself in a fiduciary relationship w/owner. Then CM can properly represent the owner to both the design professionals and the contractors w/out concern regarding conflict of interest.
CONSTRUCTIVE
The term typically is used w/ other legal terms like “acceleration” indicating that in the absence of an acceleration clause, it is the actions of party that determine the validity of acceleration costs. Another application is in the use of the term “construction change” indicating that although a change may not have been directed, it is implied by the act or omission of the parties involved (see ACCELERATION and CHANGE)
CONTINUOUS TREATMENT
An uninterrupted series of activities. This theory is sometimes employed in the determination of statue of limitations claims regarding the commencement of the time for the claim. The Stat. of limitations claim typically starts to run upon completion of the project. However, if the contractor is required to repair defects in the work and as a result renders “continuous treatment” to the work, the contractor may extend the time for commencement of the statute.
CONTRACT
A promissory agreement between 2 or more parties that creates, modifies, or destroys a legal relationship. Essential elements include an offer, acceptance, consideration on the part of both parties, the capacity to contract, a state of mind (mutuality of assent), and the ‘meeting of minds’. In the construction industry, especially w/ public bidding, the bid proposal is considered an offer and the owner’s selection to the bid is acceptance. Consideration is giving up of something on the part of both parties (money for labor/material). The capacity of both parties represents their legal standing in relation to one another, namely as legally recognized principals of the organizations entering into the contract. The state of mind (mutuality of assent) of the individuals must be such that they are free to enter into the contract or not to enter into the contract. If coercion is present, then the contract could be rendered null and void. The meeting of the minds represents that which was intended by both parties at the time of the signing of the contract and that both parties were in harmony w/ each other’s intentions. (see BID)
CONTRACTOR
Anyone who contracts to provide the labor and services necessary to complete a project. A contractor may be hired by the owner or by another contractor. When the contractor is hired directly by the owner, the contractor is classified as a prime contractor. When hired by another contractor, the contractor is classified as a subcontractor (see SUBCONTRACTOR)
CONTRACTUAL DUTY - (CONTRACTUAL OBLIGATION)
The obligation which arises from a contract or agreement. In a typical contract agreement, the parties are required to fulfill the duties enumerated in the contract writing between the 2 parties, but also from the contract agreed to by other parties. An example of this is the duty owed by the LA to the contractor as a result of the requirements called out in the contract between the owner and the contractor.
CONTRIBUTION
The sharing or loss of payment among several debtors. The act of any one or several of a number of co-debtors in reimbursing one of their number which has paid the whole debt or suffered the whole liability, each to the extent of its proportionate share. The right of one who has discharged a common liability to recover from another, who is also liable, the portion which ought to pay or bear. In many jurisdictions, the damages will be assessed to the parties held liable based on their contribution to the negligence.
CUSTOM
a usage or practice of the people which, by common adoption and acquiescence
and by long and unvarying habit, has become compulsory and has acquired the force of a law
with respect to the place or subject matter to which it relates. On the technical side of the
construction industry, this term can apply to techniques and methods of construction, such as
the finishing of a concrete slab with a trowel. Administratively, it is the custom of an Landscape
Architect to monitor the construction phase of the work, unless the writing contains a clause
deleting that requirement.
DAMAGES
compensation for a loss or injury suffered; compensation which may be recovered
in the courts by any person who has suffered loss, detriment, or injury, whether to his or her
person, property, or rights, through the unlawful act, omission, or negligence of another. In the
courts there are many divisions pertaining to damages which can-not be covered here.
DAMAGES, ACTUAL
Real, substantial, and just damages, or the amount awarded to a complainant in compensation for actual and real loss or injury, as opposed to “nominal” or “punitive” damages.
DAMAGES, COMPENSATORY
Repair or replacement of the loss caused by the wrong or injury and nothing more.
DAMAGES, CONSEQUENTIAL
Such damage, loss or injury which does not flow directly from the act of the party but only from some of the consequences or results for such act.
DAMAGES, DELAY
Economic loss suffered as a result of extended time from that of the original time stipulated in the contract writing. This differs from property damage and personal damage.
DAMAGES, LIQUIDATED
A specific sum of money expressly stipulated by the parties to a bond or contract as the amount of damages to be recovered by either party for a breach of the agreement by the other. In the construction industry, it is an amount established in the contract writing to be withheld by the owner on a daily basis for everyday past the stipulated completion date of the contract. A ‘liquidated damages’ clause is to fix the amount to be paid in lieu of performance. ‘Penalty’ clause, without some kind of balancing bonus, are rendered unenforceable in the courts of law.
DAMAGES, PUNITIVE
Awarded by the courts in the amount of 3 times the actual damages. Treble damages usually apply in antitrust actions.
DEFAULT
An omission of that which ought to be done; a failure to perform a legal duty.
DEMURRER
An allegation of a defendant which, admitting the matters of fact alleged by the bill to be true, shows that they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer.
DESIGN-BUILD
A method of organizing a building project in which a single entity undertakes the design and erection of the structure at a set fee negotiated in advance. Unlike the conventional construction contract whereby an owner hires both a LA and a contractor separately, in the design-build contract, the owner negotiates only one contract w/ one organization.
DEVIATION
A change made in the progress of a work from the original terms, design, or method agreed upon.
"DIFFERING SITE CONDITIONS" CLAUSE - ("CHANGED CONDITIONS" CLAUSE)
Typically provides that if the physical conditions at the site of the work vary materially from those represented or reasonably anticipated and in a manner which increases the time/cost, the contractor is entitled to additional compensation or extension of time.
DISCLAIMER
The disavowal, denial, or renunciation of an interest, right, or property imputed to a person or alleged to be his; also the declaration, or the instrument, by which the disclaimer is published.
DISCLOSURE
To bring into view by uncovering, to lay bare, to reveal, to free from secrecy or ignorance, or to make known; revelation; the impartation of that which is secret; that which is disclosed or revealed.
DISCOVERY
The ascertainment of that which was previously unknown, the disclosure or coming to light of what was previously hidden, the acquisition of notice or knowledge of given acts or facts as in regard to the discovery of fraud affecting the funning of the statute of limitations, or the granting of a new trial for newly discovered evidence; disclosure of facts resting in the knowledge of the defendant or of deeds, writings, or other things in his custody or power.
DOCUMENT, DOCUMENTATION
Instruments which record, by means of letters, figures, or marks, matter which may be evidentially used; the deeds, agreements, title papers, letters, receipts, and other written instruments used to prove the facts.
ECONOMIC LOSS
Additional cost incurred by an individual other than property damage or personal injury. In the construction industry, an economic loss may be represented by a loss in profits or a loss due to a delay in the contractor’s schedule (see DELAY DAMAGES)
ENGINEER
a person with a particular expertise in a limited area of building design. An
engineer typically may specialize in structural, mechanical, electrical, or plumbing design. It is
the limitation of this specialty, which distinguishes an engineer from the Landscape Architect,
who has general responsibility for the entire project. Engineers ordinarily are hired as
consultants to assist the Landscape Architect. The con-tract between the Landscape Architect
and the engineer usually reflects the same terms and conditions that exist in the contract
between the owner and the Landscape Architect. In some instances, such as an industrial
project, the roles are reversed in that the owner hires the engineer as the prime designer, and
the engineer, in turn, hires the Landscape Architect as a consultant for the building enclosure.
EQUITABLE DOCTRINE
Just and conformable to the principles of justice and right; existing in equity; available or sustainable only in equity or only upon the principles of equity (see EQUITY, COURT OF)
EQUITY, COURT OF
Court which administers justice according to the system of equity and according to a peculiar course of procedure or practice. Equity denotes the spirit and habit of fairness, justness, and right dealing which should regulate the interaction of men. Its obligation is ethical rather than jural. It is grounded in the precepts of the conscience, not in any sanction of positive law. It is justice that is ascertained by the natural reason or ethical insight independent of the formulated body of law.
ESTOPPEL, PROMISSORY
An equitable doctrine which holds the promisor bound to a promise if injustice can be avoided only by enforcement of the promise. Typical application in the construction industry is holding a subcontractor to its bid submitted to the prime contractor.
EXCLUSIVITY OF CONTRACT PROVISIONS
When a remedy for breech is included as a part of the contract, that remedy is considered exclusive of other remedies provided by law. Some courts do not recognize the exclusivity of a contract provision unless it is specifically stipulated that the remedy is exclusive. Courts typically will look at all of the facts and circumstances surrounding the agreement as a means of determining the intention of the parties and will refuse to exclude other remedies unless such a result is required by consideration of the facts of the particular agreement.
EXCULPATORY LANGUAGE
Clause in which a party who suffer a loss agrees not to institute legal action against the party who may cause the loss. The classic example is a patient who, upon entering the hospital, agrees not to institute any legal action against the hospital or any of the doctors in the event he suffers injury or death from their acts. In the jargon of the construction industry, indemnification clauses and disclaimer clauses are considered exculpatory language
EXPERT WITNESS
May be a person of science, one educated in the arts or a person possessing special or peculiar knowledge acquired from practical experience.
EXPRESSED WARRANTY
In contract and sales, a promised created by the apt and explicit statements of the seller or person to be bound. (see WARRENTY)
FAST TRACK METHOD
a way of organizing a design pro-gram which allows the contractor to
begin construction on earlier phases of the project before the plans are completed for the entire
project. Caution must be exercised in the signing of a contract using these fast-track methods
because of the lack of information typically expressed in a conventional method of contract.
Many changes may result when going from phase to phase, and provisions must be included in
the contract to compensate the contractor for additional work.
FIDUCIARY
A person holding the position of a trustee or character analogous of that of a trustee in respect to the trust and confidence involved and the scrupulous good faith and candor which are required. Construction industry – the LA and the owner are in a fiduciary relationship to the contractor.
FIELD ENGINEER
An engineer assigned to a project during the construction phase and located at the project on a full-time basis.
FIELD ORDER
Document issued by the LA directing the contractor to erect some portion of the project in a manner different from that described in the plans and specs. A field order is issued when the modifications will not affect the money/time spent on the project. These factors distinguish a field order from a change order. The change may be requested by the LA, owner, or contractor. Also known as minor change orders (see CHANGE ORDER).
FINALITY OF DECISION
A contact provision or the procedure of a legally recognized process which states that the decision rendered in the settlement of a dispute is final. Pursuant to such a provision, the courts will accord finality to that decision absent gross error for arbitrary and capricious action. In the arbitration process, the decision by the arbitrators is final.
"FLOW-DOWN" CLAUSE
In a contract between a subcontractor and a prime contractor, the performance of the sub will be tied to the prime in the same manner as the prime’s performance is tied to the owner. Some contracts between contractors and subs require more of the sub than is required of the prime by the owner. In a ‘flow-down’ clause, the same requirements are est. as a min. requirement for the sub.
FOREIGN CORPORATION
an organization not incorporated in the state or jurisdiction in which it is performing work. A contractor must meet the legal requirements of the state in which it is performing work. These requirements may include incorporation and licensing as a construction contractor in that state.
FOUR-CORNER RULE
The face of a written instrument. That which is contained on the face of a deed, w/out any aid from the knowledge of the circumstances under which it is made, is said to be within its four corners. Construction industry – the contract documents, (including the drawings, specs, general conditions, etc.) form the face value of the contract.
FRAUD, FRAUDULENT
An intentional perversion of truth for the purpose of inducing another, in reliance upon it, to part w/ some valuable thin or to surrender a legal right; a false representation of a matter of fact, whether by words, by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that they act upon it to their injury.
GENERAL CONDITIONS
Those portions of the contract documents which define, set forth, or relate to the contract terminology, the rights and responsibilities of the contracting parties and of others involved in the work and similar provisions of a general non-technical nature. Conditions can be either expressed, which are stated in the contract, or implied, which are not set forth in words but arise out of the intentions of the parties to the contract.
GENERAL CONTRACTOR
the builder of the portion of the building which is considered the general portion or the Landscape Architectural portion. This terms sometimes is erroneously interchanged with the term "prime contractor." (See PRIME CONTRACTOR)
GUARANTY
Collateral agreement for performance of another undertaking; a promise to answer to payment of debt or performance of an obligation if the liable person fails to make payment or perform obligation.
"HOLD-HARMLESS" CLAUSE
this heading is inter-changeably used with the heading "Indemnification Clause." (See INDEMNIFICATION)
IMMUNITY
exemption from performing duties which the law generally requires others to perform. (See CLOAK OF IMMUNITY).
IMPLIED
where the intention is not manifested by an explicit and direct word but is gathered by implication or deduction from the circumstances.
IMPLIED AGENCY
an agency relationship created by acts of the parties and deduced from proof of other facts. (See AGENCY)
IMPLIED CONTRACTUAL PROVISIONS
provisions which do not appear in the written
embodiment of the agreement, but which exist by implication. These primarily include the
implied duties to cooperate and to disclose, the implied warranty of specification suitability, and
the implied covenant of good faith and fair dealing. Recovery under these implied clauses may
not be subject to the limitations on recovery under the expressed provisions of the contract.
IMPLIED WARRANTY
a promise established by implication or inference from the nature of
the transaction or the situation or circumstances of the parties. (See WARRANTY)
IMPOSSIBILITY OF PERFORMANCE
a requirement of the contract which is physically
impossible to perform with-in the existing state of the art. Three factors must exist to render a
requirement impossible: (1) the impossibility must be inherent in the nature of the act to be
performed rather than personal to the contract, (2) the facts which make the performance
impossible must not have been foreseeable, and (3) the person seeking to
IMPRACTICABILITY, COMMERCIAL
the doctrine that recognizes that, in some instances,
contract performance may become so costly that its impracticability makes it the equivalent of
impossibility. (See IMPOSSIBILITY OF PERFORMANCE)
IMPUTED KNOWLEDGE
knowledge of a fact which is attributed vicariously to another.
Knowledge is said to be imputed to a person when it is ascribed or charged to the person not
because he or she is personally cognizant of the fact or responsible for it, but because another
person, over whom the first person has control or for whose acts or knowledge he or she is
responsible, is cognizant of it or responsible for it. In an agency relationship, the principal has
knowledge imputed to him or her when the agent receives or is made cognizant of that
knowledge. (See AGENCY)
INCORPORATED PAPERS
where the signatories execute a contract which refers to another
instrument in such a manner as to establish that they intended to make the terms and
conditions of that other instrument a part of their understanding. The two instruments may be
interpreted together as the agreement of the parties.
INDEMNIFICATION
the process by which one party seeks to protect itself from any claims by
a plaintiff who has been injured or who has suffered loss. One method of obtaining
indemnification is to obtain a promise from the contractor that it will insure the owner, and in
some cases the Landscape Architect, against any liens or suits by a third party not privy to the
contract. The courts generally enforce contractual indemnification provisions; but, they are
hesitant to permit a party to use indemnification when that party has played a major role in
causing the loss. Indemnification is a contractual obligation by which one person or
organization agrees to secure another against loss or damage from specified liability.
INJUNCTION
a prohibitive writ issued by a court of equity to a party defendant, forbidding the
latter to do some act or to permit its servants or agent to do some act which it is threatening or
attempting to commit, or restraining it in the continuance thereof, such as being unjust,
inequitable, or injurious to the plaintiff. In the application of the equitable doctrine of promissory
estoppel, one can only stop the subcontractor from withdrawing its bid. This is an injunctive
procedure preventing the subcontractor from performing an act, but it cannot assess damages
against the subcontractor.
INSPECTION TEAM
the inspectors assigned to a project for the purpose of carrying out the
quality control plan.
INSURANCE
a contract whereby, for a stipulated consideration, one party undertakes to
compensate the other for loss on a specified subject by specifying perils. The party agreeing to
make the compensation usually is called the insurer or underwriter; the other is the insured or
assured; the agreed consideration is the premium; the written contract is the policy; the events
insured against are risks or perils; and the subject, right, or interest to be protected is the
insurable interest. Insurance is contract whereby one undertakes to indemnify another against
loss, damage, or liability arising from an unknown or contingent event and is applicable only to
some contingency or act to occur in the future.
INTERFERENCE
the act of hampering, hindering, disturbing, intervening, interposing, or
taking part in the concerns and affairs of others. In the construction industry, when a contractor
has work interrupted by the acts of the Landscape Architect or owner, it may file suit on the
grounds of interference. However, before liability will be assessed, most courts require that
interference with the contract be intentional and not merely negligent.
INVITATION TO BID
a solicitation for competitive bids; an invitation to submit offers on behalf
of contractors, which are then subject to acceptance by the procuring agency or owner to form
the basis of the contract. The invitation to bid competitively is not an offer on behalf of the
procuring agency or owner to contract but is simply a request or solicitation for offers to
contract.
JUDICIAL
belonging to the office of a judge, as in a judicial authority, a court of justice, a
judicial writ, or a judicial determination.
JUDICIARY
pertaining or relating to the courts of justice, to the judicial department of
government, or to the administration of justice; that branch of government invested with the
judicial power; the system of courts in a country.
LATENT
hidden, concealed, dormant; does not appear upon the face of a thing, as in a latent
ambiguity.
LIABILITY
bound or obliged in law or equity; responsible or answerable to make satisfaction,
compensation, or restitution.
LICENSE
certificate or document which gives permission; a permission by a competent
authority to do some act which, without such authorization, would be illegal or would be a
trespass or a tort.
LIEN
a charge, security, or encumbrance upon property; a claim or charge on property for
payment of some debt, obligation, or duty.
LIEN, MECHANIC'S
a claim created by law for the purpose of securing priority of payment of
the price or value of the work performed and materials furnished in erecting or repairing a
building or other structure and, as such, attached to the land as well as to buildings and
improvements erected thereon. (See ATTACHMENT)
LIEN, PARTIAL WAIVER OF
in the construction industry, a document used to certify that a
portion of the total amount due to a subcontractor has been paid and, there-fore, that that
portion or amount of money cannot be used as a basis for a lien against the property.
LIEN, WAIVER
to deny the right expressed in the lien. In the construction industry, it is a
certificate issued upon completion of the work, signifying that all monies have been paid and
that the right to lien against the property is removed.
LIMITATIONS, STATUTE OF
a statute prescribing limitations to the right to bring on action
based on certain pre-scribed causes of action; that is, declaring that no suit shall be maintained
on such causes of action unless brought within a specified period after the right has accrued; a
certain time allowed by a statute for litigation. The provisions of state constitution are not a
grant but are a limitation of legislative power.
MANDAMUS
a writ issued from a court of superior jurisdiction and directed to a private or
municipal corporation, or any of its offices, or to an executive, administrator, or judicial officer,
commanding the performance of a particular act therein specified and belonging to its public,
official, or ministerial duty or directing the restoration of the complainant to rights or privileges of
which he or she has been illegally deprived; a command from a higher court to a lower court to
perform a particular act. In the construction industry, a writ is issued to the contracting officer
conducting a bid opening session or the letting of contracts if the officer is not complying with
the proper legal procedures. If a public body is withholding the execution of a contract,
mandamus may be applied to compel that body to act. (See MANDATE)
MANDATE
a precept or order issued by superior court upon the decision of an appeal or writ
of error which directs action to be taken or disposition to be made of case. In some state
jurisdictions, the term "mandate" has been substituted for "mandamus" as the formal title of that
writ. (See MANDAMUS)
MANDATORY CLAUSES - (MANDATORY PROVISIONS)
clauses which must appear in the
contract writing due to their legal status as a federal, state, or local law. The amount of minority
business participation or the licensing of a contractor or subcontractor are clauses which fall
into this category in certain jurisdictions.
MATERIAL VARIANCE
a deviation from that which was specified in the original contract
documents. In the bid process, a material variance from that which is required in the bid
documents will be the basis for rejection of the bid. The degree of variance in a bid process is
determined by whether the bidder's proposal gives it an advantage or benefit not enjoyed by
the other bidders. A mere irregularity in form which can be corrected upon the opening of the
bid is not considered a material variance.
MEETING OF MINDS
the "meeting of minds" required to make a contract is not based on
secret purposes or intentions on the part of one of the parties, which it has stored away and not
brought to the attention of the other parties, but must be based on purpose and intention which
has been made known or from which all of the circumstances should be known. (See
CONTRACT)
MERCHANTABILITY -
MERCHANTABILITY
the article sold will be of the general kind described and reasonably fit
for the general purpose for which it shall have been sold. Where the article sold is ordinarily
used in only one way, its fitness for use in that particular way is impliedly warranted unless
there is evidence to the contrary.
MISREPRESENTATION
any manifestation by words or other conduct of one person to
another that, under the circumstances, amounts to an assertion not in accordance with the
facts. A party may be guilty of misrepresentation if it has erred in giving professional opinions or
in making representations as to existing facts or conditions which a third party has relied upon
in the performance of its work.
MUTUALITY OF ASSENT
compliance, approval of some-thing done, or a declaration of
willingness to do something in compliance with a request; an acting by two parties to perform a
duty toward each other. (See CONTRACT)
NEGLIGENCE
failure to exercise the degree of care which a reasonable and prudent party
would exercise under the same circumstances. Negligence is committed when a contractual
duty is breached. A good example of negligence is where an Landscape Architect failed to
indicate in the plans the existence of an electric power line which he or she knew to be in the
area of construction.
NO DAMAGE FOR DELAY
a clause contained in contracts which grants a party to the
contract an extension of time but does not reimburse that party for any additional costs suffered
during that time.
NULL AND VOID
naught, of no validity or effect. When used in a contract or statute, it often is
construed as meaning voidable. A contract is rendered null and void when one of the essential
elements that make up a contract is missing. An example of this is that when an organization is
not licensed to perform work in a particular state, that organization does not have the capacity
to execute contracts in that state. Such a contract can then be rendered null and void because
of its deficiency regarding the capacity of one of the parties.
NULLITY
nothing; an act or proceeding in a cause which the opposite party may treat as
though it had not taken place or which has absolutely no legal force or effect.
OFFER
an act on the part of one party whereby it gives to another the legal power of creating
the obligation called contract; a proposal to do a thing; an element of a contract. It must be
made by the party which is to make the promise, and it must be made to the party to which the
promise is made. It may be made either by word or by signs, either orally or in writing, and
either personally or by a messenger; but, in whatever way it is made, it is not an offer in law
until it comes to the knowledge of the party to which it is made. An offer must be so definite in
its terms, or require such definite terms in acceptance, that the promises and performances to
be rendered by each party are reasonably certain. (See CONTRACT)
OPTION
a choice; the power or liberty of choosing; some-thing that is or can be chosen. In
the construction industry, an option is presented to the building contractor in the form of
materials and/or methods which vary from the base requirements, which it may choose in order
to meet other requirements of the contract. An example would be to choose a method which
would employ more minorities to meet the minority quota. An option has no effect on the cost to
the owner. (See ALTERNATE)
O.S.H.A. (OCCUPATIONAL SAFETY AND HEALTH ACT)
a federal act creating an agency
responsible for safety and health in the work place. The agency has the authority to issue
citations to violators of the federal regulations imposed by the agency. There have been
instances in the construction industry where O.S.H.A. has been used by the courts to establish
a standard of care for the participants in the construction process.
OWNER
the party at the instance of which the project is undertaken and the one which will
take title to it when it is completed; the party in which is vested the ownership, dominion, or title
to property. On a construction project, the owner typically contracts independently with the
Landscape Architect or engineer and with the contractor.
PAROL EVIDENCE
oral or verbal evidence; that which is given by word of mouth; the
ordinary kind of evidence given by witnesses in court. In a particular sense, and with reference
to contracts, deeds, wills, and other writings, parol evidence is the same as extraneous
evidence or evidence taken from outside of the contract writing.
PAROL EVIDENCE RULE
under this rule, when parties put their agreement in writing, all
previous oral agreements merge in the writing and a contract, as written, can-not be modified or
changed by parol evidence in the absence of a plea of mistake or fraud in the preparation of the
writing. But, this rule does not forbid a resort to parol evidence not inconsistent with the matters
stated in the writing. In common layman's terms, parol evidence or extrinsic evidence is not
permitted to be used a part of the contract writing once the contract is executed. However,
should the writing be ambiguous and in need of clarification, then the courts will permit parol
evidence to be received concerning the contract writing. In the construction industry, only the
contract is executed, the bid proposal cannot be entered as evidence contrary to the contract
writing unless the con-tract writing is ambiguous and the bid proposal is needed for clarification
of the ambiguity.
PATENT/LATENT TEST
determines whether the danger which caused the damage was
latent (hidden) and, there-fore, beyond the control of the observer or patent (readily seen upon
a reasonable inspection) and, therefore, within the control of the observer. Application of this
test to the construction industry is enforced when the building is turned over to the owner. If the
danger can be observed at the time of the acceptance of the building by the owner, but the
owner does not make the contractor aware of the deficiency, then the owner will be held
responsible for any future damage. However, if the danger is latent and not observable by the
owner, then the contractor will be held responsible for any future damage emanating out of this
danger.
PAYMENT BOND
a legal instrument which provides a source of payment for labor and
materialmen should their employer fail to pay them because of either default or bankruptcy.
(See BOND)
PERFORMANCE BOND
a legal instrument which assures that if the contractor defaults, the
surety company will complete performance or pay damages to the extent of the bond. (See
BOND)
PLAINTIFF
a person or organization which brings an action; the party which complains or
sues in a personal action and is so named on the record.
PRECEDENT
an adjudged case or decision of a court of justice considered as furnishing an
example or authority for an identical or similar case arising afterward or for a similar question of
law. It means that a principle of law actually presented to a court of authority for consideration
and determination has, after due consideration, been declared to serve as a rule for future
guidance in the same or analogous cases, but matters which merely lurk in the record and are
not directly advanced or expressly decided are not precedent.
PRIME CONTRACTOR
the party signing a contract with another party to directly perform the
work required by that contract. (See CONTRACTOR and SUBCONTRACTOR)
PRIVITY
relationship of a party which has any part or interest in any action, matter, or thing.
Privity of contract is that relationship that exists between two or more contracting parties. In a
typical construction project, the contractual relationship between the participants is one of
privity between the owner and the design professional and the owner and the contractor.
However, there is no privity or contract between the design professional and the contractor.
PRIVITY—(NO PRIVITY RULE)
in the 1800's, many cases were settled when the plaintiff was
denied access to the bench due to the no privity rule (no contract existed between the plaintiff
and the defendant). However, in recent decades the no privity rule has given way to the notion
of third-party liability. (See THIRD-PARTY LIABILITY)
PROJECT MANAGEMENT
a system of organizing a construction project from conception to
the completion of the project. This system includes management of the preparation of the
contract documents, the bid process, and the construction phase. This term sometimes is
interchange-ably used with the term "construction management" (See CONSTRUCTION
MANAGEMENT)
PROTEST
a formal declaration made by a party interested or concerned in some act about to
be done, or already per-formed, whereby it expresses its dissent or disapproval or affirms the
act against its will. The object of such a declaration generally is to save some right which would
be lost to the party if its implied assent could be made out or to exonerate itself from some
responsibility which would attach to it otherwise. In common jargon, a protest is considered the
initial act in establishing a claim to retain a party's contractual rights.
PUNITIVE DAMAGES
relating to punishment; having the character of punishment or penalty;
inflicting punishment or a penalty. (See DAMAGES)
QUALITY ASSURANCE
policy in regard to assuring that quality will be achieved on a
program or project.
QUALITY ASSURANCE PLAN
a plan to implement the policies stated in the quality
assurance statement of an organization.
QUALITY CONTROL
the implementation of the quality assurance plan, usually during the
construction phase.
QUALITY CONTROL GROUP
the group of personnel assigned to implement quality control
during the construction phase.
QUALITY CONTROL PLAN
an implementation plan for application of the quality assurance
policies during the construction phase.
QUASI-JUDICIAL
a term applied to the action, discretion, etc., of public administrative officers
who are required to investigate facts, to draw conclusions from them as a basis for their official
action, and to exercise discretion of a judicial nature. The actions of the O.S.H.A. administrators
are quasi-judicial in character. When a design professional acts as an arbitrator in resolving
disputes between the owner and the contractor, he or she is considered to be acting in a quasijudicial
role. It is in this role that the design professional is granted immunity. (See IMMUNITY)
RECOVERY
obtaining a thing by the judgment of a court as the result of an action brought for
that purpose; the amount finally collected or the amount of judgment.
REDRESS
receiving satisfaction for any injury sustained.
REGULATION
a rule or order prescribed for management or government; a regulating
principle; a precept; rules of order prescribed by a superior or competent authority relating to
the actions of those under its control. An example is the body of federal regulations instituted by
O.S.H.A. These regulations must be adhered to by those in the work-place, including the
construction project site, or citations will be issued for their violation upon detection.
REJECT ANY AND ALL BIDS
a provision of most invitations to bid for both public and private
works. In addition, most jurisdictions grant, by statute or ordinance, that same apparent right to
all of its political subdivisions. It is the right of the owner or contracting agency to reject any and
all bids, generally for some reason. However, some jurisdictions grant outright authority to
reject all bids without cause or for any cause it might deem satisfactory. In some jurisdictions
and with some government agencies, it must be shown that the rejection was not arbitrary and
capricious. In other jurisdictions, the motive for rejection of all bids is immaterial. Yet, in other
jurisdictions, there is the requirement that rejection of bids be predicated on good faith and be
exercised promptly. Note that the above deals with the affirmative act of rejection of all bids and
not with the disqualification of bidders due to material variance in their submission or with the
rejection of one bid. In the rejection of a single bid (the lowest responsible and responsive
bidder), other factors come into play. In some jurisdictions, the rejected bidder was awarded
costs of its bidding process, while in others, though the cost of bid preparation was denied, the
contractor was awarded damages to recover reasonable profits, start-up costs, and postbid
costs.
RELEASE OF LIEN
the relinquishment, concession, or giving up of the right to a lien by the
party in which it exists or to which it accrues. In the construction industry, it is a document
releasing the signer's (contractor and/or subcontractor) right to a mechanics' lien on the project.
REPRESENTATIVE
one who stands in the place of another, usually as executor or
administrator but not as an agent; one who represents the interests of another. (See AGENT)
RESPONSIBLE BIDDER
one who has the capability, in all respects, to fully perform the
contract requirements and the integrity and reliability to assure good-faith performance.
RESPONSIVE BIDDER
one who has submitted a bid under a competitive sealed bid which
conformed in all respects to the invitation for bids so that all bidders may stand on equal footing
with respect to method and timeliness of sub-mission and as to the substance of any resulting
contract. One is responsive if one replies to the specific questions set forth. In the text of public
works contracts, one must respond clearly and without qualification to all inquiries addressed to
the invitation to bid.
RETAINAGE
an amount of money established by a fixed percentage agreed to in the contract
writing that is with-held by one party of the contract from the other as a means of security
and/or assurance of performance. In the construction industry, retainage is withheld by the
owner against the prime contractor, and the prime contractor, in a similar manner, withholds
from its subs. A typical percent-age in the construction industry is 10 percent of the amount
paid on the progress payments until 50 percent of the work is completed. At that time, the
owner may discontinue withholding the retainage.
RISK-SHIFTING TECHNIQUES
typical risk-shifting clauses include indemnification clauses,
surety requirements (bid bond, performance bond, and payment bond), "no damage for delay"
clauses, etc. Another similar clause is the "condition precedent to payment" clause, which
requires the prime contractor to pay his subcontractor only after he has been paid by the
owner.
SECURITY
protection; assurance; indemnification; terms usually applied to an obligation,
pledge, deposit, etc., given by a party to a contract to the other party. The name some-times
also is given to a party which becomes surety or guarantor for another. In the construction
industry, bonds are considered security against default by the bidder or contractor during the
respective process.
SOVEREIGN IMMUNITY
a concept adopted by the United States from the courts in England,
precluding any legal action against public bodies for either breach of contract or for tort claims.
This doctrine is applicable at the federal, state, and local levels of government. However, over
the last century, this doctrine has waned, especially in the area of tort claims. In most of the 50
states, sovereign immunity is no longer in effect, especially in the area of tort claims. At the
federal level, Congress consented to being sued for breach of contract in 1887 by the Tucker
Act, and in the tort field, Congress passed the Federal Tort Claims Act in 1946, permitting
lawsuits against the United States for certain types of legal wrongs.
STANDARD
general recognition and conformity to established practice; a type, model, or
combination of elements accepted as correct or perfect.
STANDARD OF PERFORMANCE - (STANDARD OF CARE)
that standard which a
professional (doctor, lawyer, Landscape Architect, engineer, etc.) must exercise to the degree
of care and expertise which a reasonably competent professional of the same discipline would
exercise under the circumstances. The standard of performance is established by the
professionals working in the same geographical area.
STATEMENT OF PROBABLE CONSTRUCTION COSTS
term introduced by the A.I.A. in
1963 to help minimize the responsibility of guaranteeing the cost estimate. Prior to that time,
"cost estimate" was used.
STATUTE
an act of a legislature declaring or prohibiting some-thing; a particular law enacted
and established by the will of the legislative department of government. These laws must be
adhered to by all parties within that jurisdiction.
STATUTE OF FRAUDS
a statute that requires that no suit or action shall be maintained on
certain classes of contracts or engagements unless there shall be a note or memorandum in
writing and signed by the party to be charged or by its authorized agent. Its object is to close
the door to the numerous frauds and perjuries. In essence, this statute declares that unless a
contract is put in writing, it may not be substantiated as legally binding in a court of law.
However, one should be aware of the fact that oral agreements are legally binding within
certain parameters. These parameters are usually established by the Uniform Commercial
Code.
STRICT LIABILITY
liability without fault. A case is one of strict liability where neither care nor
negligence, neither good nor bad faith, and neither knowledge nor ignorance will save the
defendant.
SUBCONTRACTOR
a party which takes over portions of a contract from the principal (prime)
contractor or another subcontractor; a party which has entered into a contract, express or
implied, for the performance of an act with the party which has already contracted for its
performance. Most subcontractor contracts hold the subcontractor to the same terms and
conditions which are established in the prime contractor's contract with the other parties.
Generally, subcontractors specialize in specific building trade, and, as specialists, most
subcontractors are licensed by the state in which they operate. The subcontractor's relationship
to the prime contractor is that of an independent contractor.
SUBSTANTIAL COMPLETION
the state of completion whereby the building, or a part
thereof, is rendered complete to the degree that the owner can use the building, or a part
thereof, for its intended purpose.
SUBSTANTIAL CONFORMITY
where a party has complied with the requirements of a writing
to the degree that it is essentially the same as that which is required. Substantial conformity
might be considered the opposite of material variance. (See MATERIAL VARIANCE)
SUBSTANTIAL PERFORMANCE
exists where there has been no willful departure from the
terms of the contract and no omission in essential points; where the contract has been honestly
and faithfully performed in its material and substantial particulars, and where the only variance
from the strict and literal performance consists of technical or unimportant omissions or defects.
In the construction industry, progress payments are made to the contractor based on the
substantial performance of the work for that period of time. Usually the issue of substantiality of
performance arises when the project is essentially completed, when the owner occupies the
building, and when minor deviations from contract requirements become evident. The
contractor demands the unpaid balance of the contract price based on substantial performance,
and the owner defends by asserting that the balance need not be paid until every deviation is
eliminated.
SUPPLEMENTAL CONDITIONS
when an organization has standard general conditions for
inclusion in specifications, supplemental conditions are utilized to modify the general conditions
to make them project specific.
SURETY
a party which undertakes to pay money in the event that its principal fails. (See
BOND)
"SUSPENSION OF WORK" CLAUSE
clause inserted in construction contracts only and
which deals with the right of the owner to suspend the work for a period of time as it may
determine to be appropriate for the convenience of the owner. When such a clause is inserted
into the contract and is then exercised, an adjustment shall be made, an increase in the cost of
performance of the contract (excluding profit) necessarily shall be caused by such
unreasonable suspension, delay, or interruption, and the contract shall be modified in writing
accordingly. However, no adjustment shall be made under this clause for any suspension by
the owner if performance would have been suspended by reason of any other cause, including
fault or negligence of the con-tractor, or if an equitable adjustment is provided for or excluded
under any other provision of the contract.
SWEAT EQUITY
a term used to mean "mutual help" in certain federal agencies' contracts.
The Department of Health and Urban Development (HUD) requires that the tenants of housing
built by federal assistance programs, such as housing for the Indians on Indian reservations,
con-tribute to the construction of the unit by giving of their manual labor. This labor is known as
mutual help or sweat equity.
TERMINATION
to put an end to; to make to cease; to end.
TERMINATION FOR DEFAULT
construction contracts generally contain specific provisions
itemizing events of default. However, even if not specifically itemized, delay in performance
resulting in a failure to complete the contract in a timely fashion is universally recognized as a
breach of contract. Whether the breach for untimely performance justifies an owner in
terminating the contract may depend upon whether "time is of the essence" for performance of
the contract. In federal construction contracts, time is of the essence, and if the contractor fails
to perform by the date specified, the government may terminate the contract for default. In
private contracts, where time is of the essence, the owner has a common-law right to terminate
if the contractor fails to perform within the time specified, unless the time for performance has
been waived or extended by the acts of the party.
THIRD PARTY
a party which is not privy to a contract but which may be bound or benefited
through a written or implied legal relationship.
THIRD-PARTY BENEFICIARY
in order for a party not privy to a contract to maintain an action
thereon as a third-party beneficiary, it must appear that the contract was made and intended for
its benefit. The benefit must be one that is not merely incidental but must be immediate in such
a sense as to indicate the assumption of a duty to make reparation if the benefit is lost.
THIRD-PARTY LIABILITY
a condition whereby a party to a contract may be held liable to a
third party related to the contract by its negligent or fraudulent activity in performance of
contract. A third party may recover damages where the circumstances are such that the
transaction, within the contract requirements, was intended to affect the plaintiff (third party) ,
and injury to the plaintiff was foreseeable.
TORT
a private or civil wrong or injury; a wrong independent of contract.
TORT FEASOR
wrongdoer; one who commits or is guilty of a tort.
TREBLE DAMAGES - damages given by statute in certain cases, consisting
TREBLE DAMAGES
damages given by statute in certain cases, consisting of the single
damages found by the jury tripled in amount. The usual practice is for the jury to find the
amount of the damages and then for the court to order that amount to be trebled.
TURNKEY CONTRACT
a method of organizing a building project in which a contractor and a
designer agree to provide a finished building at an agreed-upon price. Upon completion of the
project, all the owner has to do is "turn the key" in the door. Most turnkey projects are built for
the Department of Housing and Urban Development (HUD).
UNCERTAINTY
a state or quality of being unknown or vague; such vagueness, obscurity, or
confusion in any writ-ten instrument, e.g., a contract, as to render it unintelligible to those who
are called upon to execute or interpret it so that no definite meaning can be extracted from it.
UNCONSTITUTIONAL
that which is contrary to the constitution. The term can be used in two
different senses. The first is that legislation conflicts with some recognized general principle or
conflicts with a generally accepted policy. The second is that the legislation conflicts with some
provision of the written constitution which it is beyond the power of the legislature to change.
UNIFIED BID
in a multiple prime construction contract, solicitation for bids is presented to the
bidders in several separate prime contract packages. In a unified bid procedure, the bidders are
permitted to bid on either one or as many of the bid packages as are presented.
UNIFORM COMMERCIAL CODE
a body of laws which governs the sale of goods in almost
every state of the United States. Application of the Uniform Commercial Code in the
construction industry is rare except in the area of shipping, handling, and purchasing of
materials for the project.
UNJUST ENRICHMENT
doctrine stating that persons shall not be allowed to profit or to
enrich themselves inequitably at another's expense. A typical example of this doctrine is when
an owner withholds payment to a contractor for work already performed, claiming that work is
not acceptable. The value of the performed work far exceeds that portion which the owner
considers unacceptable.
WAIVER
the intentional or voluntary relinquishment of a known right. Waiver is essentially
unilateral, resulting as legal consequence from some act or conduct of parties against which it
operates, and no act of the party in whose favor it is made is necessary to complete it. In the
construction industry, an owner may waiver his or her right to a signed change order for work
incorporated into the project when the following conditions exist: the owner is aware of the
change but does not object; the item is of such magnitude that the change could not be made
without the owner's knowledge; the changes are necessary but were not foreseen by the
design professional; and some subsequent oral agreement (the Landscape Architect's orally
approved substitution and/or change with which the owner agreed) waives the requirement of a
signature.
WARRANTY
a promise that a proposition of fact is true.
WARRANTY OF SPECIFICATIONS
the owner's implied warranty, when providing the plans
and specifications, that the plans and specifications are possible to perform, are adequate for
their intended purpose, and are free from defect. Moreover, this warranty is not overcome by
the usual exculpatory clauses requiring bidders to visit the site, check the plans, or generally
inform themselves of the requirements of the work. The implied warranty of specification
suitability has been recognized in every American jurisdiction and applied with equal force to
public and private contracts. As with any contractual obligation, the warranty can be overcome
by explicit contractual provisions that impose absolute liability for performance on the con-tract.
ZONING
a local ordinance which governs the uses of land and the overall characteristics of
the structures that may be erected; the division of a city by legislative regulation into districts
and the prescription and application in each district of regulations having to do with structural
and Landscape Architectural designs of buildings and of regulations pre-scribing uses for
buildings within designated districts.