Lare Section 1_ Jm

Front 1

ACCELERATION COST

Back 1

cost incurred by a contractor when the project isinterfered with by the owner, in such a way, that the contractor must employmore manpower or work more hours in order to complete the project on time. Ifthe contractor contributes to the cause of its own delays, acceleration costmay not be granted.

Front 2

ACCEPTANCE

Back 2

act of a person to whom a thing is offered by anotherwhereby he receives the thing with the intention of retaining it, suchintention being evidenced by a sufficient act. (See CONTRACT)

Front 3

ACTIVE INTERFERENCE

Back 3

action by a party to a contract that causes the other partyof the contract to not complete the work of the project on time or in themanner established by the contract writing. Positive action must be per-formedon the part of the interfering party as opposed to passive negligence, which isinactive, permissive, or sub-missive.

Front 4

ACTUAL DAMAGES - (ACTUAL LOSS)

Back 4

damages resulting from real and substantial loss, asopposed to those which are merely theoretical, estimated, or anticipated.Actual damages represent the real and true value of the total loss suffered, asopposed to liquidated damages, which represent an estimated amount calculatedas anticipated loss at a future time.

Front 5

ADDENDA

Back 5

modifications to the contract documents issued during thebid period. Addenda become official parts of the contract documents and arelegally binding to the signatories of the contract.

Front 6

ADVERSARY

Back 6

parties to a contract are in an adversary or arms-lengthrelationship to one another as a result of the commitment they have made toeach other in the con-tract terms and conditions. This relationship isrecognized by the courts and binds the two parties together in thatrelationship. In layman's language, it can be considered a relationship ofmistrust.

Front 7

AGENT

Back 7

a person authorized by another to act for him or her; one who isemployed to represent another in business and legal dealings with thirdpersons. In a typical agency relationship, three parties are involved: aprincipal, an agent, and a third party. The agent represents the principal indealing with the third party or parties. In the construction industry, atypical misunderstanding is that the Landscape Architect is the agent to theowner in dealing with the third-party con-tractor. The Landscape Architect, ina typical contract, is the representative of the owner and not of the agent. Insome contracts, the construction manager is an agent of the owner. An agencyrelationship is established in writing (express agency) with all three partiesacknowledging the relationship. An agency relationship may also be establishedby acts and/or omissions of the parties (implied or apparent agency) which willbind the parties legally in the same manner as an expressed agencyrelationship.

Front 8

ALLOWANCE

Back 8

a sum of money set aside by the owner to remove a particular portion ofwork from competitive bid-ding. This is typical of government-subsidizedinstitutions with work that must be competitively bid and with projects inwhich certain portions of the work are proprietary and, therefore, must beremoved from competitive bidding.

Front 9

ALTERNATE

Back 9

a material or method used in place of the base material or methodspecified for the project. In a typical construction contract, the ownerchooses the alternate or remains with the base requirement, giving it controlover the total cost of the project. An alternate differs from an option in thatcost is a factor in the selection of an alternate by the owner, whereas anoption does not have cost as a factor and the choice is made by the contractor.(See OPTION)

Front 10

AMBIGUITY

Back 10

doubtfulness; doubtfulness of meaning, duplicity,indistinctness, or uncertainty of meaning of an expression used in a writteninstrument. The courts, interpreting a writing, will permit parol evidence to clarifythe writing if the writing is in fact ambiguous. However, the courts will notpermit parol evidence if the writing is clear, even though it may be in error.(See PAROL EVIDENCE)

Front 11

ANTICIPATORY BREACH - (ANTICIPATORY REPUDIATION

Back 11

established whena contractormakes a positive and unequivocal statement that it will not or cannotsubstantially perform the contract or when a contractor, by any voluntaryaffirmative act, renders substantial performance of its contract apparently impossible.Based on these two conditions, the owner may terminate the contract immediatelyor upon completion of a waiting period to determine the contractor'sperformance according to the contract writing. In either case, the owner mustestablish that the con-tractor's statement is positive and unequivocal. If theowner terminates the contractor for default after a statement which isambiguous, the owner will be held to have wrongfully defaulted the contractor.

Front 12

ANTITRUST LAWS

Back 12

federal and state statutes to protect trade and commerce from unlawfulrestraints and monopolies. In the construction industry, bid rigging isconsidered a violation of antitrust laws. Those found guilty of bid rigging areassessed treble damages. (See BID RIGGING)

Front 13

APPARENT AGENCY

Back 13

an agency relationship created by an act of the parties and deduced fromproof of other facts. (See AGENCY)

Front 14

ARBITRATION

Back 14

the submission of a dispute to a third party (individual or panel),known as arbitrator(s), whose judgment is final and binding. Decisions atarbitration hearings, unlike those in judicial cases, do not establishprecedents.

Front 15

ARBITRATOR

Back 15

one who resolves disputes between two par-ties. In atypical construction contract, the Landscape Architect is designated as anarbitrator in resolving the disputes between the owner and the contractor.Unlike formal arbitration (as established by the American ArbitrationAssociation), an Landscape Architect acting as arbitrator in the constructionprocess is the first level for resolving disputes, and its decision is notfinal and binding.

Front 16

LANDSCAPE ARCHITECT

Back 16

the person or organization hired by the owner to design theproject. The Landscape Architect's duties consist primarily of the productionof the plans and specifications from which the building will be constructed.The Landscape Architect may also preside at the bid opening, monitor theconstruction process to assure that the owner's interests are protected, andapprove payments to the contractor. Its relationship to the owner is that of anindependent contractor. All Landscape Architects must be licensed by the statesin which they practice. In addition to the contract with the owner, theLandscape Architect also will enter into contracts with consultants(structural, mechanical, electrical engineers,etc.) but will not execute acontract with the contractor.

Front 17

ASSIGNMENT

Back 17

a legal action which allows a person who is not party to acontract to obtain thecontract rights of a party who is. A contractor, for example, may assign therights contained in its contract with the owner to a subcontractor. In a similarmanner, the Landscape Architect can assign portions of the design of theproject to its consulting engineers, primarily in the areas of structural,mechanical, and electrical design.etc.)

Front 18

ATTACHMENT

Back 18

the act or process of taking, apprehending, or seizing person orproperty by virtue of a writ, summons, or other judicial order and bringing thesame into the custody of the law; a remedy ancillary to an action by which theplaintiff is enabled to acquire a lien upon the property or effects of thedefendant for satisfaction of judgment which the plaintiff may have obtained.(See LIEN)

Front 19

BETTERMENT

Back 19

an improvement brought upon an estate (land and/or buildings) whichenhances its value more that mere repairs. The improvement may either betemporary or permanent. This term also applies to denote the additional valuewhich an estate acquires in consequence of some public improvement, such as thewidening of a street, etc.

Front 20

BID

Back 20

an offer to perform a contract for work and labor or for supplyingmaterials at a specified price. In the construction industry, a bid isconsidered an offer by the contractor to the owner. A bid, as an offer, becomesa contract once the owner accepts the bidder's offer with all other contractualrequirements in order. (See CONTRACT)

Front 21

BID DEPOSITORY

Back 21

a clearing house for subcontractors to submit their bids for aparticular project and for prime con-tractors to receive bids from the varioussubcontractors. In California, a bid depository was found in violation ofantitrust laws based on its rules for membership imposing fine, suspension, orexpulsion to members not abiding by the rules.

Front 22

BID REJECTION

Back 22

the act of not allowing a bid to stand because of an impropriety in theprocess of submission or as a result of the owner's arbitrary decision toreject the bid. The owner, in a typical contract, reserves the right to rejectany and all bids. However, in rejecting a bid, an owner and its LandscapeArchitect run the risk of interfering with the bidder's right to do work or ofdefamation of character on the part of the bidder.

Front 23

BOARD OF CONTRACTAPPEALS

Back 23

an independent administration quasi-judicial board to decide all publiccon-tract disputes. Various states have created these boards to relieve thecourts from the backlog of cases related to public contracts. Note that theseboards hear only disputes related to public contracts and not to privatecontracts.

Front 24

BOILER PLATE

Back 24

a term used to represent standard legal conditions insertedat the "front end" of a construction contract. These conditions aretypically titled "General Conditions," "SupplementalConditions," and/or "Special Conditions" and are inserted at thefront end of the project manual.

Front 25

BOND

Back 25

an instrument with a clause, with a sum fined as a penalty, binding theparties to pay the same, and with the condition that the payment of the penaltymay be avoided by the performance of certain acts by some, one, or more of theparties; 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 ofbonds, including bid bonds, performance bonds, and payment bonds. A bid bond isa form of security to insure that the bidder will enter into the contract ifthe award is made to it. A performance bond insures completion of the projectby the con-tractor, guaranteeing that if the contractor defaults, the bondingcompany will step in and finish the work. A performance bond also is applicablebetween a prime contractor and its subcontractor, assuring the prime that thesubcontractor will perform or pay. A payment bond (sometimes known as a laborand material payment bond) provides a source of payment for the contractors' orsubcontractors' labor and materialmen.

Front 26

BUILDER

Back 26

one whose occupation is the building or erection of structures, thecontrolling and directing of construction, or the remodeling and adapting toparticular uses of buildings and other structures. The term "builder"is sometimes used interchangeably with the word "contractor." (SeeCONTRACTOR)

Front 27

BUILDING CODE

Back 27

there are several model codes, including Southern Standard Building Code(SSDSC), Uniform Building Code (UBC), Building Officials and CodeAdministrators (BOCA), the National Building Code (NBC), and the InternationalBuilding Code (IBC) one of which is enacted in most jurisdictions. A code is notapplicable in a certain jurisdiction or locality until it is enacted(legislated) into local law.

Front 28

CAPACITY

Back 28

the attribute of persons which enables them to perform civil or juristicacts; necessary for parties entering into a contract. (See CONTRACT)

Front 29

CASE LAW

Back 29

the aggregate of reported cases forming a body of jurisprudence or thelaw of a particular subject as evidenced or formed by the adjudged cases;distinct from statutes and other sources of written law.

Front 30

CAVEAT

Back 30

a caution; literally, "let him beware."

Front 31

CERTIFICATE

Back 31

a written assurance, or official representation, that some act has orhas not been done, that some event occurred, or that some legal formality isbeing complied with; a written and signed document establishing that a fact istrue.

Front 32

CERTIFICATE OFOCCUPANCY

Back 32

a document issued by the building inspector certifying that thestructure con-forms to all relevant code sections and is, therefore, safe foruse. An owner must obtain a certificate of occupancy before he or she can use abuilding. A new building cannot be considered complete until a certificate ofoccupancy has been issued. In some instances, a partial certificate ofoccupancy will be issued for portions of the building to be occupied.

Front 33

CERTIFICATE OFPAYMENT

Back 33

a document issued by the Landscape Architect in which the LandscapeArchitect certifies that the contractor has adequately performed. Thecertificate is then presented to the owner for payment to the contractor.

Front 34

CERTIFICATE OFSUBSTANTIAL COMPLETION

Back 34

the document issued by the Landscape Architect when thebuilding, or a portion thereof, is complete to the degree that the owner canuse the building, or a portion thereof, for its intended purpose. (SeeSUBSTANTIAL COMPLETION)

Front 35

CHANGE

Back 35

a revision to the original contract documents. A change differs from amodification in that the modification is agreed to by both parties of thecontract; however, a change may be made unilaterally by the owner in spite ofthe contractor's lack of agreement.

Front 36

CHANGE ORDER

Back 36

a document issued by the Landscape Architect directing the contractor toerect some portion of the building in a manner different than described in theoriginal plans and specifications. This change must have an effect on the priceand/or time of the contract in order to constitute a change order. If the priceand/or time is not affected, then the change is a field order or minor changeorder and not a change order. The change may be requested by the LandscapeArchitect, owner, or contractor.

Front 37

CLAIM

Back 37

a demand, an assertion, a pretense, a right or title to. An actioninitiated by one of the parties of a contract against the other party. Thisaction may be in the form of a written letter, a legal document, or someinstrument establishing the difference between the two parties. (NOTE: A letteris sufficient, in the eyes of some courts, to establish a claim.)

Front 38

CLOAK OF IMMUNITY

Back 38

legal status granted to a Landscape Architect in the quasi-judicial roleas arbitrator in settling a dispute between the owner and the contractor. Thiscloak protects the Landscape Architect from liability by either party (owner orcon-tractor) as a result of the decision rendered in resolving the dispute.(See IMMUNITY)

Front 39

COLLUSION

Back 39

an agreement between two or more persons to defraud a person of his orher right by the forms of law or to obtain an object forbidden by law; a secretcombination, conspiracy, or concert of action between two or more per-sons forfraudulent or deceitful purposes.

Front 40

COMPETITIVE BIDDING

Back 40

a process whereby sealed proposals are submitted to the owner forconsideration. Competitive bidding is mandatory on public works projects. Aprivate owner may choose to use competitive bidding in securing the mosteconomical contractor for the construction of the project. However, a privateowner is not legally bound to the competitive bidding process.

Front 41

CONSIDERATION

Back 41

the inducement to a contract; the cause, motive, price, or impellinginfluence which induces a contracting party to enter into a contract; thereason or material cause of a contract. (See CONTRACT)

Front 42

CONSTITUTION

Back 42

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 alldepartments and officers of the government in respect to all the points coveredby it. This instrument must control until it is changed by the authoritieswhich established it. Any act or ordinance of any government department oroffice opposed to it is null and void. Several states have enacted statuteswhich have affected the construction industry and have been foundunconstitutional or null and void in their application. One such statute is thestatute of limitations which is applied for the protection of the owner andLandscape Architect but not for the contractor.

Front 43

CONSTRUCTIONMANAGEMENT

Back 43

a process of profession-al management applied to a construction programfrom conception to completion for the purpose of controlling time, cost, andquality. Ideally, the construction management organization links itself to theowner as an agent and thereby places itself in a fiduciary relationship withthe owner. In this relationship, the construction manager can properlyrepresent the owner to both the design profession-al and the contractorswithout concern regarding conflict of interest on his part.

Front 44

CONSTRUCTIVE

Back 44

that which has the character assigned to it in its ownessential nature but acquires such character as a consequence of the way inwhich it is regarded by a rule or policy of law; hence, inferred, implied, ormade out by legal interpretation. The term "constructive" typicallyis used with other legal terms such as "acceleration," indicatingthat in the absence of an acceleration clause, it is the actions of party thatdetermine the validity of acceleration costs. Another application is in the useof the term "constructive change," indicating that although a changemay not have been directed, it is implied by the act or omission of the partiesinvolved. (SeeACCELERATION and CHANGE)

Front 45

CONTINUOUS TREATMENT

Back 45

an uninterrupted, unbroken series of activities or events. This theoryis sometimes employed in the determination of statute of limitation claimsregarding the commencement of the time for the claim. The statute of limitationtypically starts to run upon completion of the project. However, if thecontractor is required to repair defects in the work and, as a result, renders"continuous treatment" to the work, the contractor may extend thetime for commencement of the statute.

Front 46

CONTRACT

Back 46

a promissory agreement between two or more persons thatcreates, modifies, or destroys a legal relation-ship. Several essentialelements must be present in order to render a contract valid. These elementsinclude an offer, acceptance, and consideration on the part of both parties,the capacity of both parties to contract, a state of mind (mutuality ofassent), and the "meeting of minds." In the construction industry,especially in public bidding, the bid proposal is considered an offer and the owner'sselection of the bid is the acceptance. Consideration is the giving up ofsomething on the part of both parties (the owner gives money while thecontractor gives labor, material, etc., in the construction process). Thecapacity of both parties rep-resents their legal standing in relation to oneanother, namely as legally recognized principals of the organizations enteringinto the contract. The state of mind (mutualityof assent) of the individuals must be such that they are free to enter into thecontract or not to enter into the contract. If coercion is present, then thecontract could be rendered null and void. The meeting of the minds representsthat which was intended by both parties at the time of the signing of thecontract and that both parties were in harmony with each other's intentions.(See BID)

Front 47

CONTRACTOR

Back 47

anyone who contracts to provide the labor and services necessary tocomplete a project. A contractor may be hired by the owner or by anothercontractor. When the contractor is hired directly by the owner, the contractoris classified as a prime contractor. When a contractor is hired by anothercontractor, the contractor is classified as a subcontractor in relation to theproject. (See SUBCONTRACTOR)

Front 48

CONTRACTUAL DUTY - (CONTRACTUAL OBLIGATION)

Back 48

the obligation which arises from a contract or agreement. In a typicalcontract agreement, the parties are required to fulfill the duties enumeratedin the contract writing between the two parties, but also from the contractagreed to by other parties. An example of this is the duty owed by theLandscape Architect to the contractor as a result of the requirements calledout in the contract between the owner and the contractor.

Front 49

CONTRIBUTION

Back 49

the sharing of a loss or payment among several debtors. The act of anyone or several of a number of co-debtors in reimbursing one of their numberwhich has paid the whole debt or suffered the whole liability, each to theextent of its proportionate share; The right of one who has discharged a commonliability to recover from another, who is also liable, the portion which he orshe ought to pay or bear. In many jurisdictions, the damages will be assessedto the parties held liable based on their contribution to the negligence.

Front 50

CUSTOM

Back 50

a usage or practice of the people which, by common adoption andacquiescence and by long and unvarying habit, has become compulsory and hasacquired the force of a law with respect to the place or subject matter towhich it relates. On the technical side of the construction industry, this termcan apply to techniques and methods of construction, such as the finishing of aconcrete slab with a trowel. Administratively, it is the custom of an LandscapeArchitect to monitor the construction phase of the work, unless the writingcontains a clause deleting that requirement.

Front 51

DAMAGES

Back 51

compensation for a loss or injury suffered; compensation which may berecovered in the courts by any person who has suffered loss, detriment, orinjury, whether to his or her person, property, or rights, through the unlawfulact, omission, or negligence of another. In the courts there are many divisionspertaining to damages which can-not be covered here.

Front 52

DAMAGES, ACTUAL

Back 52

real, substantial, and just damages, or the amount awarded to acomplainant in compensation for actual and real loss or injury, as opposed to"nominal" or "punitive" damages. r negligence

Front 53

DAMAGES, COMPENSATORY

Back 53

repair or replacement of the loss caused by the wrong or injury andnothing more.

Front 54

DAMAGES,CONSEQUENTIAL

Back 54

such damage, loss, or injury which does not flow directly from the actof the party but only from some of the consequences or results of such act.

Front 55

DAMAGES, DELAY

Back 55

the economic loss suffered as a result of extended time from that of theoriginal time stipulated in the contract writing. This differs from propertydamage and personal damage.

Front 56

DAMAGES, LIQUIDATED

Back 56

a specific sum of money expressly stipulated by the parties to a bond orcontract as the amount of damages to be recovered by either party for a breachof the agreement by the other. In the construction industry, it is an amountestablished in the contract writing to be withheld by the owner on a dailybasis for every day past the stipulated completion date of the contract. A"liquidated damages" clause is to fix the amount to be paid in lieuof performance. "Penalty" clauses, without some kind of balancingbonus, are rendered unenforceable in the courts of law.

Front 57

DAMAGES, PUNITIVE

Back 57

awarded by the courts in the amount of three times the actual damage.Treble damages usually apply in antitrust actions.

Front 58

DEFAULT

Back 58

an omission of that which ought to be done; a failure to perform a legalduty.

Front 59

DEMURRER

Back 59

an allegation of a defendant which, admitting the matters of factalleged by the bill to be true, shows that they are insufficient for theplaintiff to proceed upon or to oblige the defendant to answer.

Front 60

DESIGN-BUILD

Back 60

a method of organizing a building project in which a single entityundertakes the design and erection of the structure at a set fee negotiated inadvance. Unlike the conventional construction contract whereby an owner hiresboth an Landscape Architect and a contractor separately, in the design-buildcontract, the owner negotiates only one con-tract with one organization

Front 61

DEVIATION

Back 61

a change made in the progress of a work from the original terms, design,or method agreed upon

Front 62

DIFFERING SITE CONDITIONS"CLAUSE - ("CHANGED CONDITIONS"CLAUSE)

Back 62

typically provides that in the event that the physicalconditions at the site of the work vary materially from those represented orreason-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.

Front 63

DISCLAIMER

Back 63

the disavowal, denial, or renunciation of an interest, right, orproperty imputed to a person or alleged to be his; also the declaration, or theinstrument, by which such disclaimer is published.

Front 64

DISCLOSURE

Back 64

to bring into view by uncovering, to lay bare, to reveal,to free from secrecy or ignorance, or to make known; revelation; theimpartation of that which is secret; that which is disclosed or revealed.

Front 65

DISCOVERY

Back 65

the ascertainment of that which was previously unknown, the disclosureor coming to light of what was previously hidden, the acquisition of notice orknowledge of given acts or facts as in regard to the discovery of fraudaffecting the running of the statute of limitations, or the granting of a newtrial for newly discovered evidence; disclosure of facts resting in theknowledge of the defendant or of deeds, writings, or other things in hiscustody or power.

Front 66

DOCUMENT,DOCUMENTATION

Back 66

instruments which record, by means of letters, figures, or marks, matterwhich may be evidentially used; the deeds, agreement, title papers, letters,receipts, and other written instruments used to prove the facts.

Front 67

ECONOMIC LOSS

Back 67

additional cost incurred by an individual other than property damage orpersonal injury. In the construction industry, an economic loss may berepresented by a loss in profits or a loss due to a delay in the contractor'sschedule. (See DELAY DAMAGES)

Front 68

ENGINEER

Back 68

a person with a particular expertise in a limited area of buildingdesign. An engineer typically may specialize in structural, mechanical,electrical, or plumbing design. It is the limitation of this specialty, whichdistinguishes an engineer from the Landscape Architect, who has generalresponsibility for the entire project. Engineers ordinarily are hired asconsultants to assist the Landscape Architect. The con-tract between theLandscape Architect and the engineer usually reflects the same terms andconditions that exist in the contract between the owner and the LandscapeArchitect. In some instances, such as an industrial project, the roles arereversed in that the owner hires the engineer as the prime designer, and theengineer, in turn, hires the Landscape Architect as a consultant for thebuilding enclosure.

Front 69

EQUITABLE DOCTRINE

Back 69

just and conformable to the principles of justice and right; existing inequity; available or sustainable only in equity or only upon the rules andprinciples of equity. (See EQUITY, COURT OF)

Front 70

EQUITY, COURT OF

Back 70

court which administers justice according to the system of equity andaccording to a peculiar course of procedure or practice. Equity denotes thespirit and habit of fairness, justness, and right dealing which should regulatethe interaction of men. Its obligation is ethical rather than jural. It isgrounded in the precepts of the conscience, not in any sanction of positivelaw. It is justice that is ascertained by natural reason or ethical insightindependent of the formulated body of law.

Front 71

ESTOPPEL, PROMISSORY

Back 71

an equitable doctrine which holds the promisor bound to a promise ifinjustice can be avoided only by enforcement of the promise. A typicalapplication of this doctrine in the construction industry is holding asubcontractor to its bid submitted to the prime contractor

Front 72

EXCLUSIVITY OF CONTRACT PROVISIONS

Back 72

when a remedy for breech is included as a part of the contract, thatremedy is considered exclusive of other remedies provided by law. Some courtsdo not recognize the exclusivity of a contract provision unless it isspecifically stipulated that the remedy is exclusive. Courts typically willlook at all of the facts and circumstances surrounding the agreement as a meansof determining the intention of the parties and will refuse to exclude otherremedies unless such a result is required by a consideration of the facts ofthe particular agreement.

Front 73

EXCULPATORY LANGUAGE

Back 73

clause in which a party who may suffer a loss agrees not to institutelegal action against the party who may cause the loss. The classic example is apatient who, upon entering the hospital, agrees not to institute any legalaction against the hospital or any of the doctors in the event he suffersinjury or death because of an act of the hospital or the doctors. In the jargonof the construction industry, indemnification clauses and disclaimer clausesare considered exculpatory language.

Front 74

EXPERT WITNESS

Back 74

may be a person of science, one educated in the arts, or a personpossessing special or peculiar knowledge acquired from practical experience

Front 75

EXPRESSED WARRANTY

Back 75

in contract and sales, a promise created by the apt andexplicit statements of the seller or person to be bound. (See WARRANTY)

Front 76

FAST TRACK METHOD

Back 76

a way of organizing a design pro-gram which allows the contractor tobegin construction on earlier phases of the project before the plans arecompleted for the entire project. Caution must be exercised in the signing of acontract using these fast-track methods because of the lack of informationtypically expressed in a conventional method of contract. Many changes mayresult when going from phase to phase, and provisions must be included in thecontract to compensate the contractor for additional work.

Front 77

FIDUCIARY

Back 77

a person holding the position of a trustee or character analogous tothat of a trustee in respect to the trust and confidence involved and thescrupulous good faith and candor which are required. In the constructionindustry, the Landscape Architect and the owner are in a fiduciary relation-shipin respect to the contractor.

Front 78

FIELD ENGINEER

Back 78

an engineer assigned to a project during the construction phase andlocated at the project on a full-time basis

Front 79

FIELD ORDER

Back 79

a document issued by the Landscape Architect directing the contractor toerect some portion of the building in a manner different from that described inthe plans and specifications. A field order is issued when the modificationwill not affect the money and/or the time spent on the project. These factorsdistinguish a field order from a change order. The change may be requested bythe Landscape Architect, owner, or contractor. (Field orders sometimes areknown as minor change orders.) (See CHANGE ORDER)

Front 80

FINALITY OF DECISION

Back 80

a contract provision or the procedure of a legally recognized processwhich states that the decision rendered in the settlement of a dispute isfinal. Pursuant to such a provision, the courts will accord finality to thatdecision absent gross error for arbitrary and capricious action. In thearbitration process, the decision rendered by the arbitrators is final

Front 81

"FLOW-DOWN"CLAUSE

Back 81

in a contract between a subcontractor and a prime contractor, theperformance of the sub-contractor will be tied to the prime contractor in thesame manner as the prime's performance is tied to the owner. Some contractsbetween contractors and subcontractors require more of the subcontractor thanis required of the prime contractor by the owner. In a "flow-down"clause, the same requirements are established as a minimum requirement for thesubcontractor.

Front 82

FOREIGN CORPORATION

Back 82

an organization not incorporated in the state or jurisdiction in whichit is performing work. A contractor must meet the legal requirements of thestate in which it is performing work. These requirements may includeincorporation and licensing as a construction contractor in that state.

Front 83

FOUR-CORNER RULE

Back 83

the face of a written instrument. That which is contained on the face ofa deed, without any aid from the knowledge of the circumstances under which itis made, is said to be within its four corners. In the construction industry,the contract documents, including the drawings, specifications, generalconditions, etc., form the face value of the contract.

Front 84

FRAUD, FRAUDULENT

Back 84

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 legalright; a false representation of a matter of fact, whether by words, byconduct, by false or misleading allegations, or by concealment of that whichshould have been disclosed, which deceives and is intended to deceive anotherso that he or she shall act upon it to his or her legal injury.

Front 85

GENERAL CONDITIONS

Back 85

those portions of the contract documents which define,set forth, or relate to contract terminology, the rights and responsibilitiesof the contracting parties and of others involved in the work, and similarpro-visions of a general non-technical nature. Conditionscan be either expressed, which are stated in the contract, or implied, whichare not set forth in words but arise out of the intentions of the parties tothe contract.

Front 86

GENERAL CONTRACTOR

Back 86

the builder of the portion of the building which is considered thegeneral portion or the Landscape Architectural portion. This terms sometimes iserroneously interchanged with the term "prime contractor." (See PRIMECONTRACTOR)

Front 87

GUARANTY

Back 87

a collateral agreement for performance of another undertaking; a promiseto answer for payment of debt or performance of an obligation if the liableperson fails to make payment or perform the obligation.

Front 88

"HOLD-HARMLESS"CLAUSE

Back 88

this heading is inter-changeably used with the heading"Indemnification Clause." (See INDEMNIFICATION)

Front 89

IMMUNITY

Back 89

exemption from performing duties which the law generally requires othersto perform. (See CLOAK OF IMMUNITY).

Front 90

IMPLIED

Back 90

where the intention is not manifested by an explicit and direct word butis gathered by implication or deduction from the circumstances.

Front 91

IMPLIED AGENCY

Back 91

an agency relationship created by acts of the parties and deduced fromproof of other facts. (See AGENCY)

Front 92

IMPLIED CONTRACTUALPROVISIONS

Back 92

provisions which do not appear in the written embodiment of theagreement, but which exist by implication. These primarily include the impliedduties to cooperate and to disclose, the implied warranty of specificationsuitability, and the implied covenant of good faith and fair dealing. Recoveryunder these implied clauses may not be subject to the limitations on recoveryunder the expressed provisions of the contract.

Front 93

IMPLIED WARRANTY

Back 93

a promise established by implication or inference from the nature of thetransaction or the situation or circumstances of the parties. (See WARRANTY )

Front 94

IMPOSSIBILITY OFPERFORMANCE

Back 94

a requirement of the contract which is physically impossible to performwith-in the existing state of the art. Three factors must exist to render arequirement impossible: (1) the impossibility must be inherent in the nature ofthe act to be performed rather than personal to the contract, (2) the factswhich make the performance impossible must not have been foreseeable, and (3)the person seeking to be excused from performance must have been in no wayresponsible for the impossibility.

Front 95

IMPRACTICABILITY,COMMERCIAL

Back 95

the doctrine that recognizes that, in some instances, contractperformance may become so costly that its impracticability makes it theequivalent of impossibility. (See IMPOSSIBILITY OF PERFORMANCE)

Front 96

IMPUTED KNOWLEDGE

Back 96

knowledge of a fact which is attributed vicariously to another.Knowledge is said to be imputed to a person when it is ascribed or charged tothe person not because he or she is personally cognizant of the fact orresponsible for it, but because another person, over whom the first person hascontrol or for whose acts or knowledge he or she is responsible, is cognizantof it or responsible for it. In an agency relationship, the principal hasknowledge imputed to him or her when the agent receives or is made cognizant ofthat knowledge. (See AGENCY)

Front 97

INCORPORATED PAPERS

Back 97

where the signatories execute a contract which refers to anotherinstrument in such a manner as to establish that they intended to make theterms and conditions of that other instrument a part of their understanding.The two instruments may be interpreted together as the agreement of theparties.

Front 98

INDEMNIFICATION

Back 98

the process by which one party seeks to protect itself from any claimsby a plaintiff who has been injured or who has suffered loss. One method ofobtaining indemnification is to obtain a promise from the contractor that itwill insure the owner, and in some cases the Landscape Architect, against anyliens or suits by a third party not privy to the contract. The courts generallyenforce contractual indemnification provisions; but, they are hesitant topermit a party to use indemnification when that party has played a major rolein causing the loss. Indemnification is a contractual obligation by which oneperson or organization agrees to secure another against loss or damage fromspecified liability.

Front 99

INJUNCTION

Back 99

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 dosome act which it is threatening or attempting to commit, or restraining it inthe continuance thereof, such as being unjust, inequitable, or injurious to theplaintiff. In the application of the equitable doctrine of promissory estoppel,one can only stop the subcontractor from withdrawing its bid. This is aninjunctive procedure preventing the subcontractor from performing an act, butit cannot assess damages against the subcontractor. ΀�E<

Front 100

INSPECTION TEAM

Back 100

the inspectors assigned to a project for the purpose of carrying out thequality control plan.

Front 101

INSURANCE

Back 101

a contract whereby, for a stipulated consideration, one party undertakesto compensate the other for loss on a specified subject by specifying perils.The party agreeing to make the compensation usually is called the insurer orunderwriter; the other is the insured or assured; the agreed consideration isthe premium; the written contract is the policy; the events insured against arerisks or perils; and the subject, right, or interest to be protected is theinsurable interest. Insurance is contract whereby one undertakes to indemnifyanother against loss, damage, or liability arising from an unknown orcontingent event and is applicable only to some contingency or act to occur inthe future.

Front 102

INTERFERENCE

Back 102

the act of hampering, hindering, disturbing, intervening, interposing,or taking part in the concerns and affairs of others. In the constructionindustry, when a contractor has work interrupted by the acts of the LandscapeArchitect or owner, it may file suit on the grounds of interference. However,before liability will be assessed, most courts require that interference withthe contract be intentional and not merely negligent. t. Insurance

Front 103

INVITATION TO BID

Back 103

a solicitation for competitive bids; an invitation to submit offers onbehalf of contractors, which are then subject to acceptance by the procuringagency or owner to form the basis of the contract. The invitation to bidcompetitively is not an offer on behalf of the procuring agency or owner to contractbut is simply a request or solicitation for offers to contract.

Front 104

JUDICIAL

Back 104

belonging to the office of a judge, as in a judicial authority, a courtof justice, a judicial writ, or a judicial determination

Front 105

JUDICIARY

Back 105

pertaining or relating to the courts of justice, to the judicialdepartment of government, or to the administration of justice; that branch ofgovernment invested with the judicial power; the system of courts in a country.

Front 106

LATENT

Back 106

hidden, concealed, dormant; does not appear upon the face of a thing, asin a latent ambiguity.

Front 107

LIABILITY

Back 107

bound or obliged in law or equity; responsible or answerable to makesatisfaction, compensation, or restitution.

Front 108

LICENSE

Back 108

certificate or document which gives permission; a permission by acompetent authority to do some act which, without such authorization, would beillegal or would be a trespass or a tort.

Front 109

LIEN

Back 109

a charge, security, or encumbrance upon property; a claim or charge onproperty for payment of some debt, obligation, or duty.

Front 110

LIEN, MECHANIC'S

Back 110

a claim created by law for the purpose of securing priorityof payment of the price or value of the work performed and materials furnishedin erecting or repairing a buildingor other structure and, as such, attached to the land as well as to buildingsand improvements erected thereon. (See ATTACHMENT)

Front 111

LIEN, PARTIAL WAIVER

Back 111

in the construction industry, a document used to certify that a portionof the total amount due to a subcontractor has been paid and, there-fore, thatthat portion or amount of money cannot be used as a basis for a lien againstthe property.

Front 112

LIEN, WAIVER

Back 112

to deny the right expressed in the lien. In theconstruction industry, it is a certificate issued upon completion of the work, signifyingthat all monies have been paid and that the right to lien against the propertyis removed.

Front 113

LIMITATIONS, STATUTEOF

Back 113

a statute prescribing limitations to the right to bring on action basedon certain pre-scribed causes of action; that is, declaring that no suit shallbe maintained on such causes of action unless brought within a specified periodafter the right has accrued; a certain time allowed by a statute forlitigation. The provisions of state constitution are not a grant but are alimitation of legislative power.

Front 114

MANDAMUS

Back 114

a writ issued from a court of superior jurisdiction and directed to aprivate or municipal corporation, or any of its offices, or to an executive,administrator, or judicial officer, commanding the performance of a particularact therein specified and belonging to its public, official, or ministerialduty or directing the restoration of the complainant to rights or privileges ofwhich he or she has been illegally deprived; a command from a higher court to alower court to perform a particular act. In the construction industry, a writis issued to the contracting officer conducting a bid opening session or theletting of contracts if the officer is not complying with the proper legalprocedures. If a public body is withholding the execution of a contract,mandamus may be applied to compel that body to act. (See MANDATE)

Front 115

MANDATE

Back 115

a precept or order issued by superior court upon the decision of anappeal or writ of error which directs action to be taken or disposition to bemade of case. In some state jurisdictions, the term "mandate" hasbeen substituted for "mandamus" as the formal title of that writ.(See MANDAMUS)

Front 116

MANDATORY CLAUSES - (MANDATORY PROVISIONS)

Back 116

clauses which must appear in the contract writing due to their legalstatus as a federal, state, or local law. The amount of minority businessparticipation or the licensing of a contractor or subcontractor are clauseswhich fall into this category in certain jurisdictions.

Front 117

MATERIAL VARIANCE

Back 117

a deviation from that which was specified in the original contractdocuments. In the bid process, a material variance from that which is requiredin the bid documents will be the basis for rejection of the bid. The degree ofvariance in a bid process is determined by whether the bidder's proposal givesit an advantage or benefit not enjoyed by the other bidders. A mereirregularity in form which can be corrected upon the opening of the bid is notconsidered a material variance.

Front 118

MEETING OF MINDS

Back 118

the "meeting of minds" required to make a contract is notbased on secret purposes or intentions on the part of one of the parties, whichit has stored away and not brought to the attention of the other parties, butmust be based on purpose and intention which has been made known or from whichall of the circumstances should be known. (See CONTRACT)

Front 119

MERCHANTABILITY

Back 119

the article sold will be of the general kind described and reasonablyfit for the general purpose for which it shall have been sold. Where thearticle sold is ordinarily used in only one way, its fitness for use in thatparticular way is impliedly warranted unless there is evidence to the contrary.

Front 120

MISREPRESENTATION

Back 120

any manifestation by words or other conduct of one person to anotherthat, under the circumstances, amounts to an assertion not in accordance withthe facts. A party may be guilty of misrepresentation if it has erred in givingprofessional opinions or in making representations as to existing facts orconditions which a third party has relied upon in the performance of its work.

Front 121

MUTUALITY OF ASSENT

Back 121

compliance, approval of some-thing done, or a declaration of willingnessto do something in compliance with a request; an acting by two parties toperform a duty toward each other. (See CONTRACT)

Front 122

NEGLIGENCE

Back 122

failure to exercise the degree of care which a reasonable and prudentparty would exercise under the same circumstances. Negligence is committed whena contractual duty is breached. A good example of negligence is where anLandscape Architect failed to indicate in the plans the existence of an electricpower line which he or she knew to be in the area of construction.

Front 123

NO DAMAGE FOR DELAY

Back 123

a clause contained in contracts which grants a party to the contract anextension of time but does not reimburse that party for any additional costssuffered during that time.

Front 124

NULL AND VOID

Back 124

naught, of no validity or effect. When used in a contract or statute, itoften is construed as meaning voidable. A contract is rendered null and voidwhen one of the essential elements that make up a contract is missing. Anexample of this is that when an organization is not licensed to perform work ina particular state, that organization does not have the capacity to executecontracts in that state. Such a contract can then be rendered null and voidbecause of its deficiency regarding the capacity of one of the parties.

Front 125

NULLITY

Back 125

nothing; an act or proceeding in a cause which the opposite party maytreat as though it had not taken place or which has absolutely no legal forceor effect.

Front 126

OFFER

Back 126

an act on the part of one party whereby it gives to another the legalpower of creating the obligation called contract; a proposal to do a thing; anelement of a contract. It must be made by the party which is to make thepromise, and it must be made to the party to which the promise is made. It maybe made either by word or by signs, either orally or in writing, and eitherpersonally or by a messenger; but, in whatever way it is made, it is not anoffer in law until it comes to the knowledge of the party to which it is made.An offer must be so definite in its terms, or require such definite terms inacceptance, that the promises and performances to be rendered by each party arereasonably certain. (See CONTRACT)

Front 127

OPTION

Back 127

a choice; the power or liberty of choosing; some-thing that is or can bechosen. In the construction industry, an option is presented to the buildingcontractor in the form of materials and/or methods which vary from the baserequirements, which it may choose in order to meet other requirements of thecontract. An example would be to choose a method which would employ moreminorities to meet the minority quota. An option has no effect on the cost tothe owner. (See ALTERNATE)

Front 128

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

Back 128

a federal act creating an agency responsible for safety and health inthe work place. The agency has the authority to issue citations to violators ofthe federal regulations imposed by the agency. There have been instances in theconstruction industry where O.S.H.A. has been used by the courts to establish astandard of care for the participants in the construction process.

Front 129

OWNER

Back 129

the party at the instance of which the project is undertaken and the onewhich will take title to it when it is completed; the party in which is vestedthe ownership, dominion, or title to property. On a construction project, theowner typically contracts independently with the Landscape Architect orengineer and with the contractor.

Front 130

PAROL EVIDENCE

Back 130

oral or verbal evidence; that which is given by word of mouth; theordinary kind of evidence given by witnesses in court. In a particular sense,and with reference to contracts, deeds, wills, and other writings, parolevidence is the same as extraneous evidence or evidence taken from outside ofthe contract writing.

Front 131

PAROL EVIDENCE RULE

Back 131

under this rule, when parties put their agreement in writing, allprevious 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 ofmistake or fraud in the preparation of the writing. But, this rule does notforbid a resort to parol evidence not inconsistent with the matters stated inthe writing. In common layman's terms, parol evidence or extrinsic evidence isnot permitted to be used a part of the contract writing once the contract isexecuted. However, should the writing be ambiguous and in need ofclarification, then the courts will permit parol evidence to be receivedconcerning the contract writing. In the construction industry, only thecontract is executed, the bid proposal cannot be entered as evidence contraryto the contract writing unless the con-tract writing is ambiguous and the bidproposal is needed for clarification of the ambiguity.

Front 132

PATENT/LATENT TEST

Back 132

determines whether the danger which caused the damage was latent(hidden) and, there-fore, beyond the control of the observer or patent (readilyseen upon a reasonable inspection) and, therefore, within the control of theobserver. Application of this test to the construction industry is enforcedwhen the building is turned over to the owner. If the danger can be observed atthe time of the acceptance of the building by the owner, but the owner does notmake the contractor aware of the deficiency, then the owner will be heldresponsible for any future damage. However, if the danger is latent and notobservable by the owner, then the contractor will be held responsible for anyfuture damage emanating out of this danger.

Front 133

PAYMENT BOND

Back 133

a legal instrument which provides a source of payment for labor andmaterialmen should their employer fail to pay them because of either default orbankruptcy. (See BOND)

Front 134

PERFORMANCE BOND

Back 134

a legal instrument which assures that if the contractor defaults, thesurety company will complete performance or pay damages to the extent of thebond. (See BOND)

Front 135

PERFORMANCE BOND

Back 135

a legal instrument which assures that if the contractor defaults, thesurety company will complete performance or pay damages to the extent of thebond. (See BOND)

Front 136

PLAINTIFF

Back 136

a person or organization which brings an action; the party whichcomplains or sues in a personal action and is so named on the record.

Front 137

PRECEDENT

Back 137

an adjudged case or decision of a court of justice considered asfurnishing an example or authority for an identical or similar case arisingafterward or for a similar question of law. It means that a principle of lawactually presented to a court of authority for consideration and determinationhas, after due consideration, been declared to serve as a rule for futureguidance in the same or analogous cases, but matters which merely lurk in therecord and are not directly advanced or expressly decided are not precedent.

Front 138

PRIME CONTRACTOR

Back 138

the party signing a contract with another party to directly perform thework required by that contract. (See CONTRACTOR and SUBCONTRACTOR)

Front 139

PRIVITY

Back 139

relationship of a party which has any part or interest in any action,matter, or thing. Privity of contract is that relationship that exists betweentwo or more contracting parties. In a typical construction project, thecontractual relationship between the participants is one of privity between theowner and the design professional and the owner and the contractor. However,there is no privity or contract between the design professional and thecontractor.

Front 140

PROJECT MANAGEMENT

Back 140

a system of organizing a construction project fromconception to the completion of the project. This system includes management ofthe preparation of the contract documents, the bid process, and theconstruction phase. This term sometimes is interchange-ably used with the term"construction management" (See CONSTRUCTION MANAGEMENT)

Front 141

PROTEST

Back 141

a formal declaration made by a party interested or concerned in some actabout to be done, or already per-formed, whereby it expresses its dissent ordisapproval or affirms the act against its will. The object of such adeclaration generally is to save some right which would be lost to the party ifits implied assent could be made out or to exonerate itself from someresponsibility which would attach to it otherwise. In common jargon, a protestis considered the initial act in establishing a claim to retain a party'scontractual rights.

Front 142

PUNITIVE DAMAGES

Back 142

relating to punishment; having the character of punishment or penalty;inflicting punishment or a penalty. (See DAMAGES)

Front 143

QUALITY ASSURANCE

Back 143

policy in regard to assuring that quality will be achieved on a programor project

Front 144

QUALITY ASSURANCEPLAN

Back 144

a plan to implement the policies stated in the quality assurancestatement of an organization

Front 145

QUALITY CONTROL

Back 145

the implementation of the quality assurance plan, usually during theconstruction phase.

Front 146

QUALITY CONTROL GROUP

Back 146

the group of personnel assigned to implement quality control during theconstruction phase

Front 147

QUALITY CONTROL PLAN

Back 147

an implementation plan for application of the qualityassurance policies during the construction phase.

Front 148

QUASI-JUDICIAL

Back 148

a term applied to the action, discretion, etc., of public administrativeofficers who are required to investigate facts, to draw conclusions from themas a basis for their official action, and to exercise discretion of a judicialnature. The actions of the O.S.H.A. administrators are quasi-judicial incharacter. When a design professional acts as an arbitrator in resolvingdisputes between the owner and the contractor, he or she is considered to beacting in a quasijudicial role. It is in this role that the design professionalis granted immunity. (See IMMUNITY)

Front 149

RECOVERY

Back 149

obtaining a thing by the judgment of a court as the result of an actionbrought for that purpose; the amount finally collected or the amount ofjudgment.

Front 150

REDRESS

Back 150

receiving satisfaction for any injury sustained.

Front 151

REGULATION

Back 151

a rule or order prescribed for management or government; a regulatingprinciple; a precept; rules of order prescribed by a superior or competentauthority relating to the actions of those under its control. An example is thebody of federal regulations instituted by O.S.H.A. These regulations must beadhered to by those in the work-place, including the construction project site,or citations will be issued for their violation upon detection.

Front 152

REJECT ANY AND ALLBIDS

Back 152

a provision of most invitations to bid for both public and privateworks. In addition, most jurisdictions grant, by statute or ordinance, thatsame apparent right to all of its political subdivisions. It is the right ofthe owner or contracting agency to reject any and all bids, generally for somereason. However, some jurisdictions grant outright authority to reject all bidswithout cause or for any cause it might deem satisfactory. In somejurisdictions and with some government agencies, it must be shown that therejection was not arbitrary and capricious. In other jurisdictions, the motivefor rejection of all bids is immaterial. Yet, in other jurisdictions, there isthe requirement that rejection of bids be predicated on good faith and beexercised promptly. Note that the above deals with the affirmative act ofrejection of all bids and not with the disqualification of bidders due tomaterial variance in their submission or with the rejection of one bid. In therejection of a single bid (the lowest responsible and responsive bidder), otherfactors come into play. In some jurisdictions, the rejected bidder was awardedcosts of its bidding process, while in others, though the cost of bidpreparation was denied, the contractor was awarded damages to recover reasonableprofits, start-up costs, and postbid costs

Front 153

RELEASE OF LIEN

Back 153

the relinquishment, concession, or giving up of the right to a lien bythe party in which it exists or to which it accrues. In the constructionindustry, it is a document releasing the signer's (contractor and/orsubcontractor) right to a mechanics' lien on the project

Front 154

REPRESENTATIVE

Back 154

one who stands in the place of another, usually as executor oradministrator but not as an agent; one who represents the interests of another.(See AGENT)

Front 155

RESPONSIBLE BIDDER

Back 155

one who has the capability, in all respects, to fully perform thecontract requirements and the integrity and reliability to assure good-faithperformance.

Front 156

RESPONSIVE BIDDER

Back 156

one who has submitted a bid under a competitive sealed bid whichconformed in all respects to the invitation for bids so that all bidders maystand on equal footing with respect to method and timeliness of sub-mission andas to the substance of any resulting contract. One is responsive if one repliesto the specific questions set forth. In the text of public works contracts, onemust respond clearly and without qualification to all inquiries addressed tothe invitation to bid.

Front 157

RETAINAGE

Back 157

an amount of money established by a fixed percentage agreed to in thecontract writing that is with-held by one party of the contract from the otheras a means of security and/or assurance of performance. In the constructionindustry, retainage is withheld by the owner against the prime contractor, andthe prime contractor, in a similar manner, withholds from its subs. A typicalpercent-age in the construction industry is 10 percent of the amount paid onthe progress payments until 50 percent of the work is completed. At that time,the owner may discontinue withholding the retainage

Front 158

RISK-SHIFTINGTECHNIQUES

Back 158

typical risk-shifting clauses include indemnification clauses, suretyrequirements (bid bond, performance bond, and payment bond), "no damagefor delay" clauses, etc. Another similar clause is the "condition precedentto payment" clause, which requires the prime contractor to pay hissubcontractor only after he has been paid by the owner.

Front 159

SECURITY

Back 159

protection; assurance; indemnification; terms usually applied to anobligation, pledge, deposit, etc., given by a party to a contract to the otherparty. The name some-times also is given to a party which becomes surety orguarantor for another. In the construction industry, bonds are consideredsecurity against default by the bidder or contractor during the respectiveprocess.

Front 160

SOVEREIGN IMMUNITY

Back 160

a concept adopted by the United States from the courts in England,precluding any legal action against public bodies for either breach of contractor for tort claims. This doctrine is applicable at the federal, state, andlocal levels of government. However, over the last century, this doctrine haswaned, especially in the area of tort claims. In most of the 50 states,sovereign immunity is no longer in effect, especially in the area of tortclaims. At the federal level, Congress consented to being sued for breach ofcontract in 1887 by the Tucker Act, and in the tort field, Congress passed theFederal Tort Claims Act in 1946, permitting lawsuits against the United Statesfor certain types of legal wrongs. promptly.

Front 161

STANDARD

Back 161

general recognition and conformity to established practice; a type,model, or combination of elements accepted as correct or perfect

Front 162

STANDARD OFPERFORMANCE - (STANDARD OF CARE)

Back 162

that standardwhich a professional(doctor, lawyer, Landscape Architect, engineer, etc.) must exercise to thedegree of care and expertise which a reasonably competent professional of thesame discipline would exercise under the circumstances. The standard ofperformance is established by the professionals working in the samegeographical area.

Front 163

STATEMENT OF PROBABLECONSTRUCTION

Back 163

term introducedby the A.I.A. in 1963to help minimize the responsibility of guaranteeing the cost estimate. Prior tothat time, "cost estimate" was used.

Front 164

STATUTE

Back 164

an act of a legislature declaring or prohibiting some-thing; aparticular law enacted and established by the will of the legislativedepartment of government. These laws must be adhered to by all parties withinthat jurisdiction.

Front 165

STATUTE OF FRAUDS

Back 165

a statute that requires that no suit or action shall be maintained oncertain classes of contracts or engagements unless there shall be a note ormemorandum in writing and signed by the party to be charged or by itsauthorized agent. Its object is to close the door to the numerous frauds andperjuries. In essence, this statute declares that unless a contract is put inwriting, 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 legallybinding within certain parameters. These parameters are usually established bythe Uniform Commercial Code. tatesڀ�I<

Front 166

STRICT LIABILITY

Back 166

liability without fault. A case is one of strict liability whereneither care nor negligence, neither good nor bad faith, and neither knowledgenor ignorance will save the defendant.

Front 167

SUBCONTRACTOR

Back 167

a party which takes over portions of a contract from the principal(prime) contractor or another subcontractor; a party which has entered into acontract, express or implied, for the performance of an act with the partywhich has already contracted for its performance. Most subcontractor contractshold the subcontractor to the same terms and conditions which are establishedin the prime contractor's contract with the other parties. Generally,subcontractors specialize in specific building trade, and, as specialists, mostsubcontractors are licensed by the state in which they operate. Thesubcontractor's relationship to the prime contractor is that of an independentcontractor.

Front 168

SUBSTANTIALCOMPLETION

Back 168

the state of completion whereby the building, or a part thereof, isrendered complete to the degree that the owner can use the building, or a partthereof, for its intended purpose.

Front 169

SUBSTANTIAL CONFORMITY

Back 169

where a party has complied with the requirements of a writing to thedegree that it is essentially the same as that which is required. Substantialconformity might be considered the opposite of material variance. (See MATERIALVARIANCE)

Front 170

SUBSTANTIALPERFORMANCE

Back 170

exists where there has been no willful departure from the terms of thecontract and no omission in essential points; where the contract has beenhonestly and faithfully performed in its material and substantial particulars,and where the only variance from the strict and literal performance consists oftechnical or unimportant omissions or defects. In the construction industry,progress payments are made to the contractor based on the substantialperformance of the work for that period of time. Usually the issue ofsubstantiality of performance arises when the project is essentially completed,when the owner occupies the building, and when minor deviations from contractrequirements become evident. The contractor demands the unpaid balance of thecontract price based on substantial performance, and the owner defends byasserting that the balance need not be paid until every deviation iseliminated.

Front 171

SUPPLEMENTALCONDITIONS

Back 171

when an organization has standard general conditions for inclusion inspecifications, supplemental conditions are utilized to modify the generalconditions to make them project specific.

Front 172

SURETY

Back 172

a party which undertakes to pay money in the event that itsprincipal fails. (See BOND)

Front 173

"SUSPENSION OF WORK"CLAUSE

Back 173

clause inserted in construction contracts only and which deals with theright of the owner to suspend the work for a period of time as it may determineto be appropriate for the convenience of the owner. When such a clause isinserted 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, orinterruption, and the contract shall be modified in writing accordingly.However, no adjustment shall be made under this clause for any suspension bythe owner if performance would have been suspended by reason of any othercause, including fault or negligence of the con-tractor, or if an equitableadjustment is provided for or excluded under any other provision of thecontract.

Front 174

SWEAT EQUITY

Back 174

a term used to mean "mutual help" in certain federal agencies'contracts. The Department of Health and Urban Development (HUD) requires thatthe tenants of housing built by federal assistance programs, such as housingfor the Indians on Indian reservations, con-tribute to the construction of theunit by giving of their manual labor. This labor is known as mutual help orsweat equity.

Front 175

TERMINATION

Back 175

to put an end to; to make to cease; to end.

Front 176

TERMINATION FORDEFAULT

Back 176

construction contracts generally contain specific provisions itemizingevents of default. However, even if not specifically itemized, delay inperformance resulting in a failure to complete the contract in a timely fashionis universally recognized as a breach of contract. Whether the breach foruntimely performance justifies an owner in terminating the contract may dependupon whether "time is of the essence" for performance of thecontract. In federal construction contracts, time is of the essence, and if thecontractor fails to perform by the date specified, the government may terminatethe contract for default. In private contracts, where time is of the essence,the owner has a common-law right to terminate if the contractor fails toperform within the time specified, unless the time for performance has beenwaived or extended by the acts of the party.

Front 177

THIRD PARTY

Back 177

a party which is not privy to a contract but which may be bound orbenefited through a written or implied legal relationship

Front 178

THIRD-PARTYBENEFICIARY

Back 178

in order for a party not privy to a contract to maintain an actionthereon as a third-party beneficiary, it must appear that the contract was madeand intended for its benefit. The benefit must be one that is not merelyincidental but must be immediate in such a sense as to indicate the assumptionof a duty to make reparation if the benefit is lost.

Front 179

THIRD-PARTY LIABILITY

Back 179

a condition whereby a party to a contract may be held liable to a thirdparty related to the contract by its negligent or fraudulent activity inperformance of contract. A third party may recover damages where thecircumstances are such that the transaction, within the contract requirements,was intended to affect the plaintiff (third party) , and injury to theplaintiff was foreseeable.

Front 180

TORT

Back 180

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

Front 181

TORT FEASOR

Back 181

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

Front 182

TREBLE DAMAGES

Back 182

damages given by statute in certain cases, consisting of the singledamages found by the jury tripled in amount. The usual practice is for the juryto find the amount of the damages and then for the court to order that amountto be trebled.

Front 183

TURNKEY CONTRACT

Back 183

a method of organizing a building project in which a contractor and adesigner agree to provide a finished building at an agreed-upon price. Uponcompletion of the project, all the owner has to do is "turn the key"in the door. Most turnkey projects are built for the Department of Housing andUrban Development (HUD).

Front 184

UNCERTAINTY

Back 184

a state or quality of being unknown or vague; such vagueness, obscurity,or confusion in any writ-ten instrument, e.g., a contract, as to render itunintelligible to those who are called upon to execute or interpret it so thatno definite meaning can be extracted from it.

Front 185

UNCONSTITUTIONAL

Back 185

that which is contrary to the constitution. The term can beused in two different senses. The first is that legislation conflicts with somerecognized general principle or conflicts with a generally accepted policy. Thesecond is that the legislation conflicts with some provision of the writtenconstitution which it is beyond the power of the legislature to change.

Front 186

UNIFIED BID

Back 186

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

Front 187

UNIFORM COMMERCIALCODE

Back 187

a body of laws which governs the sale of goods in almost every state ofthe United States. Application of the Uniform Commercial Code in theconstruction industry is rare except in the area of shipping, handling, andpurchasing of materials for the project.

Front 188

UNJUST ENRICHMENT

Back 188

Donald Trump

doctrine stating that persons shall not be allowed to profit or toenrich themselves inequitably at another's expense. A typical example of thisdoctrine is when an owner withholds payment to a contractor for work alreadyperformed, claiming that work is not acceptable. The value of the performedwork far exceeds that portion which the owner considers unacceptable.

Front 189

WAIVER

Back 189

the intentional or voluntary relinquishment of a known right. Waiver isessentially unilateral, resulting as legal consequence from some act or conductof parties against which it operates, and no act of the party in whose favor itis made is necessary to complete it. In the construction industry, an owner maywaiver his or her right to a signed change order for work incorporated into theproject when the following conditions exist: the owner is aware of the changebut does not object; the item is of such magnitude that the change could not bemade without the owner's knowledge; the changes are necessary but were notforeseen by the design professional; and some subsequent oral agreement (theLandscape Architect's orally approved substitution and/or change with which theowner agreed) waives the requirement of a signature.

Front 190

WARRANTY

Back 190

a promise that a proposition of fact is true.

Front 191

WARRANTY OFSPECIFICATIONS

Back 191

the owner's implied warranty, when providing the plans andspecifications, that the plans and specifications are possible to perform, areadequate for their intended purpose, and are free from defect. Moreover, thiswarranty is not overcome by the usual exculpatory clauses requiring bidders tovisit the site, check the plans, or generally inform themselves of therequirements of the work. The implied warranty of specification suitability hasbeen recognized in every American jurisdiction and applied with equal force topublic and private contracts. As with any contractual obligation, the warrantycan be overcome by explicit contractual provisions that impose absoluteliability for performance on the con-tract.

Front 192

ZONING

Back 192

a local ordinance which governs the uses of land and the overallcharacteristics of the structures that may be erected; the division of a cityby legislative regulation into districts and the prescription and applicationin each district of regulations having to do with structural and LandscapeArchitectural designs of buildings and of regulations pre-scribing uses forbuildings within designated districts.