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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.
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 per-formed 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 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 an adversary or arms-length relationship to one another as a result of the commitment they have made to each other in the con-tract 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.
ALLOWANCE
a sum of money set aside by the owner to remove a particular portion of work from competitive bid-ding. 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.
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 third persons. In a typical agency rela- tionship, 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 Landscape Architect is the agent to the owner in dealing with the third-party con-tractor. The Landscape Architect, in a typical contract, is the represen- tative of the owner and not of 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
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 the choice is made by the contractor. (See OPTION)
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. (See PAROL EVIDENCE)
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