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262 Cards in this Set

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Is inflating the cost estimate of bid documents when the firm's fee is based on percentage of construction costs a breach of ethics?
Yes because it places the professional's financial interests before the client's.
What controls the division of land and the land use intensity of a development?
subdivision regulations
the methods, materials, systems, strengths, minimum standards, and overall quality of development at a site
building codes
do environmental regulations address the division of land?
no
what is used to control the size of pavement or building coverage in relation to the total site size?
lot coverage limits
the extent of coverage of a lot (10% vs. 90%) is considered _______ and is addressed by zoning codes that might include land use tables or lists of allowable, conditional, and prohibited uses
land use intensity
what kind of street is used to carry the highest number of vehicles, usually at higher rates of speed in relation to other street types
arterial street
what kinds of streets have smaller traffic volume than arterial streets
local streets and collector streets
what kind of street normally has a landscape space in the center and at the edges
boulevard
what is a long-life major expenditure by a public agency
capital improvement program
a particular type of plan, authorized by California state law, that would include a capital improvement program or capital improvement project
specific area plan
a defined area or zone with specified properties that benefit from a specific capital improvement project, and has many local variations, such as the rural improvement district (RID) or the utility improvement district (ULID)
local improvement district (LID)
a civil or private wrong or injury involving the violation of an individual's private personal rights, causing injury to a person or to property
tort
a formal written claim against the property record, for the value or work performed or materials provided
lien
a duty not performed, omitted, or performed incorrectly so as to cause harm to a person or to property
negligence
the force or impression of one thing on another
impact
the limit that sets out terms and times under which certain actions can be brought forward in court
statute of limitations
specifications for construction work performance or materials quality
performance conditions
the manner in which an action is performed
prescriptive conditions
a legal term that means a wrongful act
misfeasance
a form of business organization that can protect a company's assets from creditors
limited liability company (LLC)
a financial arrangement organized to protect and transfer assets, usually for favorable taxation purposes
trust
a type of investment that includes several different securities (stocks, bonds, etc), regulated and organized to be traded in an active market for the ease of purchase or sale
mutual fund
a type of business organization where a single individual is the business owner
sole proprietorship
the process or action used to resolve contract disputes outside of the court system, usually with the use of a mediator or a neutral party to facilitate talks and record the resolution after it is reached
arbitration
an action ordered to remake a decision that was already made
remand
to repudiate, or reject as unauthorized
disavow
an improper action by a public official
malfeasance
the general category of financial forms, typically issued by an entity other than the contractor, that ensures the owner or a municipal agency that the contract obligation for the monetary amount of the work will be met
financial guarantee
name some examples of a financial guarantee
surety bonds, cash deposits, assignment of funds, irrevocable letters of credit
a general banking or economic term that refers to an overall policy on the regulation of the flow of capital
monetary policy
a setback at a street and driveway intersection that restricts anyone from placing view obstructions at the height of the driver's line of sight, generally located between 3 and 6 ft above ground for a specified horizontal distance related to street design speed
sight-line triangle
the vertical view corridor that might normally be 3 degrees measured up or down, from the height of the viewer's eye
line of sight
should be included in a services agreement to limit liability
time limits
should be included in contract documents to make clear where and how the process of dispute resolution can be performed
jurisdiction, or venue for dispute resolution
are basic services always included in an agreement?
yes
are optional services ALWAYS included in an agreement?
no
a program ranking based on criteria set by a private organization to ensure high sustainability and ecological principles in site and building design
leadership in energy and environmental design (LEED)
which agency has vast public land ownership as well as several branches, such as the national park service and the bureau of land management, that require the skills of landscape architects in various roles, such as project management, design, and planning
department of the interior
the type of decision or order made by a judge that ends a dispute between the parties in court
summary judgment
a hearing action used to make statements before or outside of a hearing when a party cannot attend or when detailed information needs to be recorded
deposition
a type of declaratory statement similar to a deposition, except that it is simply a signed written (usually sworn) statement by an individual, not necessarily formally recorded by a court reporter
affidavit
an order from a higher body to a lower body for a "do-over" decision or action, usually with specific instructions on how to correct or change an earlier decision
remand
the category of legal claim that pertains to copyrights and protection of the ownership of creative work, including software used by nearly all private-sector professional offices providing landscape architectural services
intellectual property
professional work done by an individual in addition to his or her principal occupation which can result in risk exposure for the employee or employer
moonlighting
a professional organization that publishes a widely used guide call American Standard for Nursery Stock
American Nursery and Landscape Association (ANLA)
what is the most widely used system for evaluating the value (based on factors such as location, age, use, condition, and size) of a tree in court, whether the expert witness is a landscape architect, appraiser, or arborist
the system used by the Council of Tree and Landscape Appraisers
the term prevailing wage is applicable to what type of projects?
public projects
does a landscape architecture firm, even if it is designated as a design/build firm, still need to provide full disclosure when specifying products that it sells?
yes
if a landscape architect modifies a software product and sells the revised product, does this require full disclosure?
yes, it is not legal under copyright laws and is subject to prosecution by the Software Publishers Association
can ASLA prevent the sale of software?
no
does a licensed landscape architect have a duty to report professional violations and truthfully represent personal qualifications?
no
does a licensed landscape architect have a duty to design to maximize profits and minimize expenses?
no
does a licensed landscape architect have a duty to design to maximize positive visual impacts and minimize visual nuisances?
no
does a licensed landscape architect have a duty to report to the city council regularly on landscape architecture related issues, and volunteer?
no
what is a valid reason for a landscape architect's license to be discontinued?
mental or physical disabilities (common clauses found in most state laws which enable licensing boards to discontinue licensure)
is relocation outside the state or country a valid reason to discontinue a landscape architect's license?
no
what type of gift policy is compatible with licensure requirements?
gifts of nominal value, such as hospitality, are allowed
if an owner directs a contractor to intentionally not comply with applicable building code requirements, what should the landscape architect do?
report the action to the local building official, in writing, and then terminate the agreement with the owner
what type of clause addresses the penalty for late completion by the contractor, primarily for schedule control
liquidated damages clause
if a landscape architect appears in a public setting and is representing one party, but also a consultant for an interest group, what must he do?
he must disclose all personal paid interests
define common law
a system of laws originally developed in England that result in decisions based on customs and usage rather than codified written law. court decisions based on common law usually involve equity or specific instances that are not addressed by local codes.
why are unit prices helpful in an estimate
they are specific prices, which when the design changes, can more accurately reflect the cost
define force account
a type of purchasing method for supplies or materials used that would apply to contractors doing work not necessarily for variable quantities
define MILSPEC reform
in 1994, the DOD transitioned from MILSPECs to the commercial ANSI specifications to meet military, economic, and policy objectives
acceleration cost
cost incurred by 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
active interference
action by a party to a contract which 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 submissive
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 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
two 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 the contract terms and conditions. this relationship is recognized by the courts and binds the two parties together in that relationship. in layman's language, it can be considered a relationship of mistrust.
agent
a person authorized by another to act for him or her; one who is employed to represent another in business and legal dealings with the third persons. in a typical agency relationship, three parties are involved: a principal, an agent, and a third party. the agent represents the principal in dealing with the third party or parties. in the construction industry, a typical misunderstanding is that the architect is the agent to the owner in dealing with the third party contractor. the architect, in a typical contract, is the representative of the owner and not the agent. in some contracts, the construction manager is an agent of the owner. an agency relationship is established in writing (express agency) with all three parties acknowledging the relationship. an agency relationship may also be established 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 government subsidized institutions with work that must be competitively bid and with 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 typical construction contract, the owner chooses the alternate or remains with the base requirement, giving it control over the total cost of the project. an alternate differs from an option in that cost is a factor in the selection of an alternate by the owner, whereas an option does not have cost as a factor and choice is made by the contractor.
ambiguity
doubtfulness, doubtfulness of meaning, duplicity, indistinctness, or uncertainty of meaning of an expression used in a 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.
anticipatory breach (anticipatory repudiation)
established 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 substantial performance of its contract apparently impossible. based on these two 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 establish that the contractor's statement is positive and 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.
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 (individual or panel), known as arbitrator(s), whose judgment is final and binding. decisions at arbitration hearings, unlike those in judicial cases, do not establish precedents.
arbitrator
one who resolves disputes between two parties. in a typical construction contract, the architect is designated as an arbitrator in resolving disputes between the owner and the contractor. unlike formal arbitration (as established by the American Arbitration Association), an architect acting as an arbitrator in the construction process is the first level for resolving disputes, and its decision is not final and binding.
architect
the person or organization hired by the owner to design the project. the architect's duties consist primarily of the production of the plans and specifications from which the building will be constructed. the architect may also 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 architects must be licensed by the states in which they practice. in addition to the contract with the owner, the architect also will enter into contracts with consultants (structural, mechanical, electrical engineers, etc.) but will not execute a contract with the contractor.
assignment
a legal action which allows a person who is not party to a contract to obtain the contract rights of a party who is. a contractor, for example, may assign the rights contained in its contract with the owner to a subcontractor. in a similar manner, the architect 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 custody of the law; a remedy ancillary to an action by which the plaintiff is enabled to acquire a lien upon the property or effects of the defendant for satisfaction of judgment which the plaintiff may have obtained.
betterment
an improvement brought upon an estate (land and/or buildings) which enhances its value more than mere repairs. the improvement may either be temporary 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 materials at a specified price. in the construction industry, a bid is considered an offer by the contractor to the owner. a bid, as an offer, becomes a contract once the owner accepts the bidder's offer with all other contractual requirements in order.
bid depository
a clearing house for subcontractors to submit their bids for a particular project and for prime contractors to receive bids from the various subcontractors. in California, 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 owner's arbitrary decision to reject the bid. the owner, in a typical contract, reserves the right to reject any and all bids. however, in rejecting a bid, an owner and its architect run the risk of interfering with the bidder's right to do work or of defamation of character on the part of the bidder.
board of contract appeals
an independent administration quasi-judicial board to decide all public contract disputes. various states have created these boards to relieve the courts from the 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 typically title "general conditions," "supplemental conditions", and/or "special conditions" and are inserted at the front end of the project manual.
bond
an instrument with a clause, with a sum fined as a penalty, binding the parties to pay the same, and with 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 certificate or evidence of a debt; a mere promise to perform or pay; a written obligation. in the construction industry, there are several types of bonds, including bid bonds, performance bonds, and payment bonds.
bid bond
a form of security to insure that the bidder will enter into the contract if the award is made to it
performance bond
insures completion of the project by the contractor, guaranteeing that if the contractor defaults, the bonding company will step in and finish the work. a performance bond also is applicable between a prime contractor and its subcontractor, assuring the prime that the subcontractor will perform or pay.
payment bond
(sometimes known as a labor and material payment bond) provides a source of payment for the contractors' or subcontractors' labor and material men.
builder
one whose occupation is the building or erection of structures, the controlling and directing of construction, or the remodeling and adapting to particular uses of buildings and other structures. the term "builder" is sometimes used interchangeably with the word "contractor"
building code
there are several model codes, including Southern Standard Building Code (SSDSC), Uniform Building Code (UBC), Building Officials and Code Administrators (BOCA), and the National Building Code (NBC), and the International Building Code (IBC), one of which is enacted in most jurisdictions. a code is not applicable in a certain jurisdiction or locality until it is enacted (legislated) into local law.
capacity
the attribute of persons which enables them to perform civil or juristic acts; necessary for parties entering into a contract.
case law
the aggregate of reported cases forming a body of jurisprudence or the law of a particular subject as evidenced 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 establishing that a fact is true.
certificate of occupancy
a document 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 he or she can use a building. a new building cannot be considered complete until a certificate of occupancy has been issued. in some instances, a partial certificate of occupancy will be issued for portions of the building to be occupied.
certificate of payment
a document issued by the architect in which the architect certifies that the contractor has adequately performed. the certificate is then presented to the owner for the payment to the contractor.
certificate of substantial completion
the document issued by the architect when the building, or a portion thereof, is complete to the degree that the owner can use the building, or a portion thereof, for its intended purpose.
change
a revision to the original contract documents. a change differs from a modification in that the modification is agreed to by both parties of the contract; however, a change may be made unilaterally by the owner in spite of the contractor's lack of agreement.
change order
a document issued by the architect directing the contractor to erect some portion of the building in a manner different than described in the original plans and specs. this change must have an effect on the price and/or time of the contract in order to constitute a change order. if the price and/or time is not affected, then the change is a field order or minor change order and not a change order. the change may be requested by the architect, owner, or contractor.
claim
a demand, an assertion, a pretense, a right or title to. this action may be in the form of a written letter, a legal document, or some instrument establishing the difference between the two parties. (note: a letter is sufficient, in the eyes of some courts, to establish a claim)
cloak of immunity
legal status granted to an architect in the quasi-judicial role as arbitrator in settling a dispute between the owner and the contractor. this cloak protects the architect from liability by either party (owner or contractor) as a result of the decision rendered in resolving the dispute.
collusion
an agreement between two or more persons to defraud a person of his or her right by the forms of law or to obtain an object forbidden by law; a secret combination, a conspiracy, or concert of action between two or more persons for fraudulent or deceitful purposes
competitive bidding
a process whereby sealed proposals are submitted to the owner for consideration. competitive bidding is mandatory on public works projects. a private owner may choose to use competitive bidding in securing the most economical contractor for the construction of the project. however, a private owner is not legally bound to the competitive bidding process
consideration
the inducement 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.
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 of 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 architect but not for the contractor.
construction management
a process of professional management applied to a construction program from conception to completion for the purpose of controlling time, cost, and quality. ideally, the construction management organization links itself to the owner as an agent and thereby places itself in a fiduciary relationship with the owner. in this relationship, the construction manager can properly represent the owner to both the design professional and the contractors without concern regarding conflict of interest on his part.
constructive
that which as the character assigned to it in its own essential nature but acquires such character as a consequence of the way in which it is regarded by a rule or policy of law; hence, inferred, implied, or made out by legal interpretation. the term "constructive" typically is used with other legal terms such as "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 "constructive change", indicating that although a change may not have been directed, it is implied by the act or omission of the parties involved
continuous treatment
an uninterrupted, unbroken series of activities or events. this theory is sometimes employed in the determination of statute of limitation claims regarding the commencement of the time for the claim. the statute of limitation 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 two or more persons that creates, modifies, or destroys a legal relationship. several essential elements must be present in order to render a contract valid. these elements include offer, acceptance, and consideration on the part of both parties, the capacity of both parties to contract, a state of mind (mutually of assent), and the "meeting of minds".
offer (contract)
bid proposal, especially in public bidding
acceptance (contract)
owner's selection of a bid
consideration (contract)
the giving up of something on the part of both parties (the owner gives money while the contractor gives labor, material, etc. in the construction process).
capacity (contract)
legal standing of both parties in relation to one another, namely as legally recognized principals of the organizations entering into a contract. if coercion is present, then the contract could be rendered null and void.
the meeting of the minds (contract)
represents that which was intended by both parties at the time of the signing of the contract and that both parties were in harmony with each other's intentions
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 the prime contractor. when a contractor is hired by another contractor, the contractor is classified as a subcontractor in relation to the project
contractual duty
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 two parties, but also from the contract agreed to by other parties. an example of this is the duty owed by the architect to the contractor as a result of the requirements called out in the contract between the owner and the contractor.
contribution
the sharing of a loss or 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, cho is also liable, the portion which he or she 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 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 cannot be covered here.
actual damages
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.
compensatory damages
repair or replacement of the loss caused by the wrong or injury and nothing more
consequential damages
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 of such act.
delay damages
the 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.
liquidated damages
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 every day 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" clauses, without some kind of balancing bonus, are rendered unenforceable in the courts of law.
punitive damages
awarded by the courts in the amount of 3x the actual damage. 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
a plea to dismiss a lawsuit on the grounds that the plaintiffs statements are insufficient to sustain the claim
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 an architect and a contractor separately, in the design-build contract, the owner negotiates only on contract with 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 in the event that 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 or cost of performance, the contractor is entitled to additional compensation or an 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 such disclaimer is published.
disclosure
to bring into view of uncovering, to lay bare, to reveal, to free from secrecy or ignorance, or to make known; revelation; the impartation of the which is secrete; that which is disclosed or revealed.
discovery
the ascertainment of that which was previously known, 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 running of the statute of limitations, or the granting of a new trial for newly discovered evidence; disclosure of facts resting in knowledge of the defendant or of deeds, writings, or other things in his custody or power.
document (documentation)
instruments which by record, by means of letters, figures, or marks, matter which may be evidentially used; the deeds, agreement, 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.
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 architect, who has general responsibility for the entire project. engineers ordinarily are hired as consultants to assist the architect. the contract between the architect and the engineer usually reflects the same terms and conditions that exist in the contract between the owner and the 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 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 in equity or only upon the rules and principles of equity.
court of equity
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 natural reason or ethical insight independant of the formulated body of justice that is ascertained by natural reason or ethical insight independent of the formulated body of law.
promissory estoppel
an equitable doctrine which holds the promisor bound to a promise if injustice can be avoided only by enforcement of the promise. a typical application of this doctrine in the construction industry is holding a subcontractor to its bid submitted to the prime contractor.
exclusivity of contract provisions
when a remedy for breach is included as a part of the contract, that remedy is considered exclusive or other remedies provided by law. some courts do not recognize 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 a consideration of the facts of the particular agreement.
exculpatory language
clause in which a party who may 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 the doctors. 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 promise created by the apt and explicit statements of the seller or person to be bound.
fast track method
a way of organizing a design program 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 the contract using these fast-track methods because of the 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 to that of a trustee in respect to the trust and confidence involved and the scrupulous good faith and candor which are required. in the construction industry, the architect and the owner are in a fiduciary relationship in respect 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
a document issued by the architect directing the contractor to erect some portion of the building in a manner different from that described in the plans and specs. a field order is issued when the modification will not affect the money and/or the time spent on the project. these factors distinguish a field order from a change order. the change may be requested by the architect, owner, or contractor. (field orders are sometimes known as minor change orders)
finality of decision
a contract 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 rendered by the arbitrators is final.
"flow-down" clause
in a contract between a subcontractor and a prime contractor, the performance of the subcontractor will be tied to the prime contractor in the same manner as the prime's performance is tied to the owner. some contracts between the contractors and subcontractors require more of the subcontractor than is required of the prime contractor by the owner. in a "flow-down" clause, the same requirements are established as a minimum requirement for the subcontractor
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, without any aid from the knowledge of the circumstances under which it is made, is said to be within its four corners. in the construction industry, the contract documents, including the drawings, specs, general conditions, etc. for 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 with some valuable thing 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 he or she shall act upon it to his or her legal injury
general conditions
those portions of the contract documents which define, set forth, or relate to contract terminology, the rights and responsibilities of the contracting parties and of others involved in the work, and similar provisions of a general nontechnical 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 contract.
general contractor
the builder of the portion of the building which is considered the general portion or the architectural portion. this term is sometimes erroneously interchanged with the term "prime contractor"
guaranty
a collateral agreement for performance of another undertaking; a promise to answer for payment of debt or performance of an obligation if the liable person fails to make payment or perform the obligation.
"hold-harmless" clause
this heading is interchangeably used with the heading 'indemnification clause"
immunity
exemption from performing duties which the law generally requires others to perform.
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.
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 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 interference from the nature of the transaction or the situation or circumstances of the parties.
impossibility of performance
a requirement of the contract which is physically impossible to perform within the existing state of the art. 3 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 (3) the person seeking to be excused from performance must have been in no way responsible for the impossibility.
commercial impracticability
the doctrine that recognizes that, in some instances, contract performance may become so costly that its impracticability makes it the equivalent of impossibility.
imputed knowledge
knowledge of a fact which is attributed vicariously to another. knowledge is said to be imputed to a person when it is charged to the person because another person is cognizant of it or responsible for it. in an agency relationship, the principle has knowledge imputed to him or her when the agent receives or is made cognizant of that knowledge.
incorporated papers
where the signatories execute a contract which refers to another instrument in such a manner as to establish that they intend 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 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 a specified liability.
injunction
a prohibitive writ issued by a court of equity to a party defendant, forbidding the latter 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 promissary 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 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 for 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.
mechanic's lien
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.
partial waiver of lien
in the construction industry, a document used to certify that a portion of the total amount due to a subcontractor has been paid and, therefore, that that portion or amount of money cannot be used as a basis for a lien against the property.
waiver lien
to deny the right expressed in the lien. in the construction industry, it is a certificate issued upon completion of work, signifying that all monies have been paid and that the right to lien against the property is removed.
statute of limitations
a statute prescribing limitations to the right to bring on action based on certain prescribed 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 the body to act.
mandate
a precept or order issued by a 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.
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 the 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 the 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.
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 representatives as to existing facts or conditions which a third party has relied on in performance of work.
mutuality of ascent
compliance, approval of something 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.
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 architect failed to indicated in the plans the existence of an electric power line which he or she knew to be in the area of construction
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. ability of material to perform as it was intended to
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 work
mutuality of assent
compliance, approval of something 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
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 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.
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 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 until it comes to the knowledge of the party to which it is made. an offer must be definite in its terms so that the promises and performances by each party are reasonably certain.
option
a choice; the power or liberty of choosing; materials which vary from the base requirements. an option has no effect on the cost to the owner.
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 OSHA 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 complete; the party in which is vested the ownership, dominion, or title to a property; on a construction project, the owner typically contracts independently with the 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 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
parol evidence or extrinsic evidence is not permitted to be used as part of the contract writing once the contract is executed. however, should writing be ambiguous and in need of clarification, then the courts will permit parol evidence. once the contract is executed, the bid proposal cannot be entered as evidence contrary to the contract writing unless the contract writing is ambiguous.
patent / latent test
patent - readily seen by reasonable inspection
latent - hidden (beyond control of observer
if the deficiency is patent at the time of inspection, then any future damages are the owner's responsibilities.
if the deficiency is latent (hidden) at the time of the inspection, then any future damages are the contractor's responsibilities.
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.
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
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 of authority for an identical or similar case arising afterward or for a similar question of law
prime contractor
the party signing a contract with another party to directly perform the work required by that contract.
privity
in contractual relationships, privity is a relationship between the owner and the architect, and the owner and the contractor. there is no privity or contract between the architect and the contractor
no privity rule
1800s plaintiff denied access to the bench due to the fact that no contract existed between the plaintiff and the defendant.
protest
the initial act in establishing a claim to retain a party's contractual rights
punitive damages
relating to punishment; have the character of punishment or penalty; inflicting punishment or penalty
quasi-judicial
OSHA regulator's actions are quasi-judicial. when an architect acts as an arbitrator between the owner and the contractor, his decisions are considered quasi-judicial
recovery
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. example: federal regulations instituted by OSHA
reject any and all bids
a provision for both public and private works.
representative
one who stands in the place of another, usually as an executor or administrator but not as an agent; one who represents the interests of another
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 submits a bid and fills out the forms completely and answers all questions
retainage
an amount of money established by a fixed percentage agreed to in the contract writing that is withheld 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 percentage is 10% of the amount paid on progress payments until 50% of the work is completed. at that time, the owner may discontinue withholding the retainage
risk-shifting techniques
include indemnification clauses, surety requirements (bid, performance, and payment bonds), "no damage for delay" clauses, etc. also, 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. bonds are considered security against default by the bidder or contractor during the respective process.
sovereign immunity
legal immunity from lawsuits for public offices at the federal, state, and local levels. concept is waning, and now public offices can be sued, especially in tort cases. one federal case was the Tucker Act where Congress was sued in 1887.
standard
general recognition and conformity to established practice; a type, model, or combination of elements accepted as correct or perfect
statement of probable construction costs
term introduced by the AIA 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 something; 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
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 that oral agreements are legally binding under certain parameters established by the Uniform Commercial Code (UCC)
strict liability
liability without fault. a case of strict liability where neither care nor negligence, neither good not bad faith, and neither knowledge nor ignorance will save the defendant
subcontractor
a party which takes over portions of a contract from the prime contractor. 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 may be considered the opposite of material variance
supplemental conditions
used 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
"suspension of work" clause
clause which allows the owner to suspend the work for any amount of time as convenient to the owner. an adjustment is usually made paying the contractor any increase caused by this suspense minus profits
sweat equity
"mutual help" in certain federal agencies' contracts. the department of health and urban development (HUD) requires that the tenants of housing built by the federal assistance programs, such as housing for the Indians on Indian Reservations, contribute 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
the owner's right to terminate the contract if the contractor does not finish the work in time; especially if time is of the essence. in federal construction projects, time is always of the essence.
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
a party that benefits from a contract between two other parties, not incidentally, but clearly stated in the contract
third party liability
a third party's right to recover damages from a party to a contract if shown 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 of civil wrong or injury; a wrong independent of contract
tortfeasor
a wrongdoer; one who commits or is guilty of tort
treble damages
damages given by a statute in certain cases, tripling the single damages. the usual practice is for the jury to find the amount of damages and for the court to order the amount be trebled.
turnkey contract
method of organizing a building project in which a contractor and a designer agree to provide a finished building at an agreed upon price. most turnkey projects are built for HUD.
uncertainty
vague; rendering a contract unintelligible, so that it cannot be interpreted or executed and no definite meaning can be extracted from it.
unified bid
in a multiple prime construction contract, solicitation for bids is presented to the bidders in several separate prime contact 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
UCC - Uniform Commercial Code
a body of laws which governs the sale of goods in almost every state of the US. can be found in shipping, handling, and purchasing of materials for a project
unjust enrichment
doctrine stating that persons shall not be allowed to profit or enrich themselves inequitably at another's expense
waiver
the intentional or voluntary relinquishment of a known right. example is when an owner waives the right to a signed change order
warranty
a promise that a proposition of fact is true
warranty of specifications
the owner's implied warranty, when providing the plans and specs, that the plans and specs are possible to perform, are adequate for their intended purposes, and are free from defect
zoning
a local ordinance which governs the use 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 architectural designs of buildings and of regulations prescribing uses for buildings within designated districts.
private practice
common business purpose, share in profits and losses, legal liability of partners for business decisions of partners, ownership of property in the name of the partnership
corporation
continuity of existence, ownership of property, limited liability
joint venture
limited duration, specific goal