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197 Cards in this Set

  • Front
  • Back

Duties

An obligation that a landscape architect is bound or required to perform. This requires the landscape architect perform with at least minimal competency, any of the abilities protected by licensing.


1.Protection of public health


2.Protection of public safety


3.Protection of public welfare

Tort

A wrong committed by an individual that causes damage to the property of another individual. The injury produces damage that may be satisfied by payment of money by the party held responsible for the damage.

Libel

The intentional injury to the good name and reputation of another through written


communication.

Slander

Intentional injury to the good name and reputation of another through an oral


communication.

Trespass

A wrong committed against the real property (i.e. land) or personal property owned by another person. Involves a physical entry upon the land of another without permission and causing damage to the land.

Nuisance

Occurs through actions by a person that disrupt another person's use, comfort and enjoyment of property (land). Does not require entry on the land of another, but causes a condition that produces personal discomfort to a landowner.

Negligence

A failure on the part of one person to exercise sufficient care or precaution to protect the health and safety of another person.

Violation of Riparian Rights

Riparian rights are the rights of ownership of land adjacent to both banks of a non-navigable stream.

Rights of Lateral and Sub-Adjacent Support

The right of an owner to have land supported by adjacent lands.

Those torts most directly involved with project design work are:

Nuisance, negligence and violations of


riparian rights and lateral and sub-adjacent support.

Easement

A defined portion of a lot, tract, or parcel reserved for use by someone other than the property owner.

Breach of Contract

When on arty of a contract does not perform or adequately complete one of the services spelled out in the contract.


Liability

The responsibility to provide a design that precludes third party injury.


Public Safety and Welfare

Minimum standards for insuring the safety and welfare of the public.

Civil Law

Rights and obligations of individual and corporations. (Contract and Tort Law)

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.

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. 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. They 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.

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 Landscape Architect, in a typical contract, is the represen- tative of the owner and not of the agent.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 bid-ding.

ALTERNATE

A material or method used in place of the base material or method specified for the project. 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.

AMBIGUITY

Doubtfulness; doubtfulness of meaning, duplicity, indistinctness, or uncertainty of meaning of an expression used in a written instrument.

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.

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 this statute.

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 these hearings, unlike those in judicial cases, do not establish precedents.

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.

BETTERMENT

An improvement brought upon an estate (land and/or buildings) which enhances its value more that mere repairs. The improvement may either be temporary or permanent.

BID

An offer to perform a contract for work and labor or for supplying materials at a specified price. In the construction industry, an offer by the contractor to the owner.

BID DEPOSITORY

A clearing house for subcontractors to submit their bids for a particular project and for prime con-tractors to receive bids from the various subcontractors.

BOILER PLATE

A term used to represent standard legal conditions inserted at the “front end” of a construction contract. These conditions are typically titled “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.

BUILDING CODE

There are several model codes, including Southern Standard Building Code (SSDSC), Uniform Building Code (UBC), Building Officials and Code Administrators (BOCA), the National Building Code (NBC), and the International Building Code (IBC) one of which is
enacted in most jurisdictions.

CAPACITY

The attribute of persons which enables them to perform civil or juristic acts; necessary for parties entering into a contract.

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 con-forms to all relevant code sections and is, therefore, safe for use. An owner must obtain this before he or she can use a building.

CERTIFICATE OF PAYMENT

A document issued by the Landscape Architect in which the Landscape Architect certifies that the contractor has adequately performed. The certificate is then presented to the owner for payment to the contractor.

CERTIFICATE OF SUBSTANTIAL COMPLETION

The document issued by the Landscape 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.

CHANGE ORDER

A document issued by the Landscape Architect directing the contractor to erect some portion of the building in a manner different than described in the original plans and specifications. This change must have an effect on the price and/or time of the contract. 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 Landscape Architect, owner, or contractor.

CLAIM

A demand, an assertion, a pretense, a right or title to. An action initiated by one of the parties of a contract against the other party. This action may be in the form of a written letter, a legal document, or some instrument establishing the difference between the two parties.

IMMUNITY

Legal status granted to a Landscape Architect in the quasi-judicial role as arbitrator in settling a dispute between the owner and the contractor. This cloak protects the Landscape Architect from liability by either party (owner or con-tractor) 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, conspiracy, or concert of action between two or more per-sons for fraudulent or deceitful purposes.

COMPETITIVE BIDDING

A process whereby sealed proposals are submitted to the owner for consideration. Mandatory on public works projects.

CONTRACT

A promissory agreement between two or more persons that creates, modifies, or destroys a legal relation-ship. Several essential elements must be present in order to render a contract valid. These elements include an offer, acceptance, and consideration on the part of both parties, the capacity of both parties to contract, a state of mind (mutuality of assent), and the “meeting of minds.”

CONTRACTOR

Anyone who contracts to provide the labor and services necessary to complete a project. May be hired by the owner or by another _____. When the ________ is hired directly by the owner, the _______ is classified as a prime ______. When a ______ is hired by another ______, the ______ is classified as a subcontractor in relation to the project.

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 two parties, but also from the contract agreed to by other parties.

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 of such act.

DAMAGES, DELAY

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.

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.

DAMAGES, PUNITIVE

Awarded by the courts in the amount of three times 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.

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.

“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 reason-able 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.

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 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. 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 breech is included as a part of the contract, that remedy is considered exclusive of other remedies provided by law.

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. In the jargon of the construction industry, indemnification clauses and disclaimer clauses examples of this.

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.

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 Landscape Architect and the owner are in a ______ relation-ship 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 Landscape Architect directing the contractor to erect some portion of the building in a manner different from that described in the plans and specifications. Issued when the modification will not affect the money and/or the time spent on the project.

“FLOW-DOWN” CLAUSE

In a contract between a subcontractor and a prime contractor, the performance of the sub-contractor will be tied to the prime contractor in the same manner as the prime’s performance is tied to the owner.

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, specifications, 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 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 pro-visions 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.

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.

IMMUNITY

Exemption from performing duties which the law generally requires others to perform.

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 the implied covenant of good faith and fair dealing.

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 be excused from performance must have been in no way responsible for the impossibility.

IMPUTED KNOWLEDGE

Knowledge of a fact which is attributed vicariously to another. Knowledge 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.

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 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 these contractual provisions; but, they are hesitant to permit a party to use them when that party has played a major role in causing the loss. 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

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 these grounds. However, before liability will be assessed, most courts require that violation with the contract be intentional and not merely negligent.

LATENT

Hidden, concealed, dormant; does not appear upon the face of a thing.

LIABILITY

Bound or obliged in law or equity; responsible or answerable to make satisfaction, compensation, or restitution.

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.

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.

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.

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.

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. If a public body is withholding the execution of a contract, mandamus may be applied to compel that body to act.

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.

NEGLIGENCE

Failure to exercise the degree of care which a reasonable and prudent party would exercise under the same circumstances. Committed when a contractual duty is breached.

O.S.H.A. - (OCCUPATIONAL SAFETY AND HEALTH ACT)

A federal act creating an agency responsible for safety and health in the work place.

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.

PAROL EVIDENCE

Oral or verbal evidence; that which is given by word of mouth; the ordinary kind of evidence given by witnesses in court

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.

PATENT/LATENT TEST

Determines whether the danger which caused the damage was hidden and, there-fore, beyond the control of the observer or 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 hidden 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.

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.

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.

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.

PUNITIVE DAMAGES

Relating to punishment; having the character of punishment or penalty; inflicting punishment or a penalty.

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 ______ 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 ________ role. It is in this role that the design professional is granted 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.

REJECT ANY AND ALL BIDS

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.

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.

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.

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, ______ 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 _________.

RISK-SHIFTING TECHNIQUES

Typical _______ 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. In the construction industry, bonds are considered _______ against default by the bidder or contractor during the respective process.

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 __________ 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 _______ 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 _______ contracts hold the _______ to the same terms and conditions which are established in the prime contractor’s contract with the other parties. Generally, _______ specialize in specific building trade, and, as specialists, most _________ are licensed by the state in which they operate. The _________ 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. ________might be considered the opposite of 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 ________ of the work for that period of time.

SUPPLEMENTAL CONDITIONS

When an organization has standard general conditions for inclusion in specifications, __________ 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.

“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.

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.

TORT

A private or civil wrong or injury; a wrong independent of contract.

TORT FEASOR

A wrongdoer; one who commits or is guilty of a tort.

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 _______ projects are built for the Department of Housing and Urban Development (HUD).

UNIFIED BID

In a multiple prime construction contract, solicitation for bids is presented to the bidders in several separate prime contract packages. In a _______ procedure, the bidders are permitted to bid on either one or as many of the bid packages as are presented.

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.

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. 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.

The Functional Diagram

Illustrates the best and most appropriate relationships between function and spaces.

Critical Path Method

A schedule that shows the interrelations which control the progress of a project.



Can help you figure out:


* how long your complex project will take to complete
* which activities are "critical," meaning that they have to be done on time or else the whole project will take longer

Liquidated Damages

Monetary compensation for a loss, detriment, or injury to a person or a person's rights or property, awarded by a court judgment or by a contract stipulation regarding breach of contract.



Generally, contracts that involve the exchange of money or the promise of performance have a _______ stipulation. The purpose of this stipulationis to establish a predetermined sum that must be paid if a party fails to perform as promised.

Retainage

The portion of the agreed upon contract price deliberately withheld until the work is substantially complete to assure that contractor or subcontractor will satisfy its obligations and complete a construction project.

General Specifications

Designed to instruct a contractor on what is required during the project including where to deliver and store materials, the description of the work to take place and the sequence of work.

Writ of Execution

A court order intended to satisfy a judgement in a civil case. Granted when the defendant refuses to pay the judgement and may result in a levy against the defendant’s property.

Standards of Practice

The common expectations for professionals with which they can reasonably be held accountable.

Compensatory Damages

Payments made for actual losses that have occurred. Same as Actual Damages.

Consequential Damages

Payment for losses caused by faulty work.

Prevailing Wage

Generally includes salary and benefits. Required on federally funded projects.

A General Warranty

A confirmation that what is stated within an ownership article is actual fact, and serves to assure that nothing negative was incurred while


the owner was in ownership of said property.

Special Warranty

Similar to a General Warranty except it


deals with a more detailed/limited time frame, precluding the owner from liability for anything incurred before their actual ownership.

Addendum

A change made prior to a bid package being sent out.

Change Order

A change to the specifications of a project after a contract has been signed.

Surety Bond

A financial promise provided by a specialized outside party assuring completion of the bid should the bidder be selected.

Bid Bond

Included with an actual proposal and serves as a guarantee of contract should the proposal be accepted; it also results in a penalty should the bidder withdraw following acceptance.

Performance Bond

An assurance of the contractor’s intention to


complete their work.

Payment Bond

A guarantee that the contractor will pay all bills accrued within their work.

Compressive Strength Test.

The test being performed after twenty eight days. Fresh concrete is placed in cylinders at the time of the pour and allowed to harden so that the strength of the concrete could then be tested. It is one of the most common tests of concrete.

Slump Test


Tests the consistency of the concrete and is done at the time of the pour.

Misfeasance

Undergoing a lawful act in an inappropriate way, and so the pertinent aspect in this differentiating definition is the form of the act, not the act itself.

Malfeasance

Knowingly committing actions that are expressly forbidden by contract or law.

Deposition

Any testimony given outside of court.

Affidavit

Sworn statement of fact

Time is of the Essence Clause

Put into a contract to make it well known that a project needs to be completed by a specifi c date and if it is not, then the owner can sue for liquidated damages.

Metes and Bound

Legal definition of the boundaries of a parcel of land.

Gantt Chart

A form of bar chart that aids in...


-production control


-scheduling


-sequencing of tasks in relation to one another


-measuring milestones

Fiduciary Responsibility

Provides the agent the power to bind the principle to decision made with a third party.

Scope of Services

Includes a detailed description of tasks, schedule of completion, general description of work, and identification of product.

Schematic Design

Includes diagrammatic design and cost estimates/financial feasibility studies.

Linear Task, Clustered Tasks

In a typical Critical Path Method, ________ tasks cannot be preformed simultaneously while _____ tasks can.

Pre-design Services

Include programming and market studies.

Bid Allowance

Used to assign a dollar amount to work that has not been specifically detailed. 6

Retainage

Released after final completion.

Linear, Clustered

In a typical Critical Path Method, ________ tasks cannot be preformed simultaneously while ______ tasks can.

Professional Liability and Contractual Liability

Types of insurance typically required of consulting firms.

Arterial Streets

Street type that carries the highest number of vehicles, usually at higher rates of speed in relation to other street types.

Collector or Local

Street type having smaller traffic volume capacity.

Variance

Used in a case where unusual lot shape and size prevents a lot from meeting all applicable development standards.

Financial Guarantee

The general category of financial forms, typically issued by an entity other than the contractor, that assures the owner that the contract obligations for the monetary amount of the work will be met. (Surety Bonds, Cash Deposits, Assignment of Funds, and Irrevocable Letter of Credit).

Site Line Triangle

A setback at a street and driveway intersection that restricts anyone from placing view obstructions at the height of the drivers line of site, generally located between 3' and 6' above ground for a specified horizontal distance related to a street design speed.

Exoneration

Financial term referring to the process of surety bond release.

CPSC - Consumer Product Safety Commission

Board that regulates federal standards for product safety.

CSI - Construction Specification Institute

A nonprofit industry association that promulgates the most widely used specification referencing system.

ASTM - American Society for Testing and Material

Governs the use of construction material throughout North America. Establish the standards widely used to define the attributes for construction materials. The standard primarily used for specifications.

Deed of Trust

A signed and sealed document that contains the legal description of a property and is required for the transfer of real estate.

Sunset Law Review

Conducted when legislation requires a periodic review to prevent automatic expiration.

Floor Area Ratio

The area of all floor of all building on site in relation to the total site area.

Force Account (Similar to Allowance)

Contracted construction work paid-for on the basis of time taken and material consumed. A way to address the need to purchased specialized item that cannot be specified in the bid phase.

Joint Venture

The partnership of two different firms for the length of a project or a set amount of time .

Writ of Execution

A court order intended to satisfy a judgment in a civil case. Is granted when a defendant refuses to pay the judgment and may result in a levy against the defendant's property.

Reasonable Care and Skill

Terminology involved with traditional negligence and malpractice cases that relate to standards of practice.

Consequential Damages

The result of faulty work.

Restrictive Covenant

Prohibits dramatic changes to a piece of property. Passes on to subsequent buyers through he deed and are often used by homeowners' associations.

Malpractice

Knowingly committing an unlawful act that results in suffering or loss.

Plot of Consolidation

Drawings need to combine two (or more) adjacent properties into one property.

Cost Plus Fixed Fee

Payment arrangement that provides payment for all labor and material cost and adds an amount on to the contract to act as the profit for the design team. No profit can be built into the labor cost with this type of agreement.

Lump Sum Fee

A fixed dollar amount that is negotiated before hand and is usually paid out at different stages of the contract, such as percentage complete.

Time and Material

Payment agreement that allows for the design team to get paid for all labor cost and other costs to complete the work such as printing and postage.

Administrative Law

Governs state regulation boards. This type of law allows government agencies the right to make rules, adjudications, and the ability to enforce its rules and regulations.

Reference Specifications

Standard specifications used for many of the common material installed on a project

Proprietary Specifications

Created by the company that manufactures the specific product.

Descriptive Specifications

Step by step guides for how to produce a desired outcome. Time consuming to create and typically project specific.

Milestone Chart

A way to set up a schedule for a small project and provide due dates for deliverables based on certain timed events in the project. Does not take up a lot of time or budget.