Lare Section 1 Terms

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ACCELERATION COST

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

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ACCEPTANCE

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

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ACCORD + SATISFACTION

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the execution of agreement to cancel or legal obligation in return for something less than or different from the legal duty owed

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ACT OF GOD

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an accident or event that is the result of natural causes without human intervention, that could not have been prevented by reasonable foresight

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ACTION

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a law suit brought in court for enforcement of a legal right

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ACTIVE INTERFERENCE

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action by a party to a contract that causes the other party of the contract to not complete the work of the project on time or in the manner established by the contract writing. Positive action must be performed on the part of the interfering party as opposed to passive negligence, which is inactive, permissive, or submissive.

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actual acceleration

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consists of a direct order by the owner to hire additional works, work overtime, or work extra shifts

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ACTUAL DAMAGES – (ACTUAL LOSS/compensatory damages)

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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 resulting from real and substantial loss, as opposed to those which are merely theoretical, estimated, or anticipated. Actual damages represent the real and true value of the total loss suffered, as opposed to liquidated damages, which represent an estimated amount calculated as anticipated loss at a future time. (Payments made for the actual losses that have occurred)

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ACTUARY

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one who is trained in the mathematics and statistics of insurance and calculates premiums, reserves, and other values

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Add-Alternate or Deduct-Alternate

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Request included in the bidding documents that asks the contractor to provide an additional cost to add or deducts components

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ADDENDA

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Modifications to the contract documents issued during the bid period. Addenda become official parts of the contract documents and are legally binding to the signatories of the contract.

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addendum

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change that is made prior to a bid package being sent out

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ADDITIONAL NAMED INSURED

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a party added to the coverage of an insurance policy with the right of recovery but without the obligation to pay the premium or meet the terms of the policy

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ADJUSTER

Back 14

one who settles insurance claims

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ADMITTED CARRIER

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an insurance company licensed and authorized to do business in a specific state and subject to regulation by the state insurance commission

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ADMONITION

Back 16

a private reprimand issued by a jursidictional registration board for violation of professsional conduct rules same as 'censure'

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ADVERSARY

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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 contract terms and conditions. This relationship is recognized by the courts and binds the two parties together in that relationship. In layman’s language, it can be considered a relationship of mistrust.

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Advertisement For Bid

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The official notice of a search for qualified bidders on a government or public-sector construction project. The notice usually includes information about the project and provides the public with a contact name for details about solicitation, rules for submission of bids, and awarding of the contract.

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AFFIDAVIT

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submitted by contractor to the architect - payrolls, bills for materials, and equipment - voluntary written statement of facts, confirmed by oath of the maker and before an authorized officer (sworn statement of fact)

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affirmation

Back 20

same as an oath without the spiritual implications

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AGENCY

Back 21

relationship where agent has authority to represent or act for another person, called a principal

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AGENT

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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 relationship, three parties are involved: a principal, an agent, and a third party. The agent represents the principal in dealing with the third party or parties. In the construction industry, a typical misunderstanding is that the LA is the agent to the owner in dealing with the third-party con-tractor. The Landscape Architect, in a typical contract, is the representative of the owner and not of the agent. In some contracts, the construction manager is an agent of the owner. An agency relationship is established in writing (express agency) with all three parties acknowledging the relationship. An agency relationship may also be established by acts and/or omissions of the parties (implied or apparent agency) which will bind the parties legally in the same manner as an expressed agency relationship.

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AGGREGATE LIMIT

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the total amount payable under a policy regardless of the number of claims - usually annual

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AIA Document A201 - General Conditions of the Contract for Construction

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Universally accepted document in the contraction industry that outlines the legal definitions of the elements in the construction process and the items that will be provided by the contractor

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ALL RISK

Back 25

includes everything but specifically excluded risks

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ALLEGATION

Back 26

a statement in a claim or pleading asserting something expected to be substantiated or to be proven in court

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ALLOWANCE

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a sum of money set aside by the owner to remove a particular portion of work from competitive bidding.

This is typical of government-subsidized institutions with work that must be competitively bid and with projects in which certain portions of the work are proprietary and, therefore, must be removed from competitive bidding.

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ALTERNATE/ Alternatives

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a material or method used in place of the base material or method specified for the project. In a typical construction contract, the owner chooses the alternate or remains with the base requirement, giving it control over the total cost of the project.

An alternate differs from an option in that cost is a factor in the selection of an alternate by the owner, whereas an option does not have cost as a factor and the choice is made by the contractor.

- consist of changes in structure of project, quality of material, inclusion of additional items, deletion of specified work items

- bidders are asked to state the changed amount due to the alternate

- gives owner more flexibility (a request made in the bid package for pricing for a type of variance from the base bid) (See OPTION)

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ALTERNATIVE DISPUTE RESOLUTION (ADR)

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settling dispute without resorting to litigation (arbitration, mediation, out-of-court, etc)

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AMBIGUITY

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doubtfulness; doubtfulness of meaning, duplicity, indistinctness, or uncertainty of meaning of an expression used in a written instrument. The courts, interpreting a writing, will permit parol evidence to clarify the writing if the writing is in fact ambiguous. However, the courts will not permit parol evidence if the writing is clear, even though it may be in error. (See PAROL EVIDENCE)

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American Society for Testing and Materials

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ASTM standards are widely used to define attributes for construction materials and are the standards primarily used in specs.

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ANTICIPATORY BREACH – (ANTICIPATORY REPUDIATION)

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established when a contractor makes a positive and unequivocal statement that it will not or cannot substantially perform the contract or when a contractor, by any voluntary affirmative act, renders substantial performance of its contract apparently impossible. Based on these two conditions, the owner may terminate the contract immediately or upon completion of a waiting period to determine the contractor’s performance according to the contract writing. In either case, the owner must establish that the con-tractor’s statement is positive and unequivocal. If the owner terminates the contractor for default after a statement which is ambiguous, the owner will be held to have wrongfully defaulted the contractor.

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ANTI-INDEMNIFICATION STATUTES

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state laws that invalidate contract clauses related to a party being indemnified or held harmless for damages

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ANTITRUST LAWS

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federal and state statutes to protect trade and commerce from unlawful restraints and monopolies. (prevents bid rigging) In the construction industry, bid rigging is considered a violation of antitrust laws. Those found guilty of bid rigging are assessed treble damages. (See BID RIGGING)

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APPARENT AGENCY

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

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approved equal

Back 36

the more acceptable 'equal' specification

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ARBITRATION

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the submission of a dispute to a third party (individual or panel), known as arbitrator(s), whose judgment is final and binding. Decisions at arbitration hearings, unlike those in judicial cases, do not establish precedents. (uses a third party to settle a dispute in which evidence is presented and the resolution is binding)

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ARBITRATOR

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one who resolves disputes between two par-ties/ an impartial person chosen by the parties to solve a dispute who is normally vested with the authority to make a binding decision. In a typical construction contract, the Landscape Architect is designated as an arbitrator in resolving the disputes between the owner and the contractor. Unlike formal arbitration (as established by the American Arbitration Association), an Landscape Architect acting as arbitrator in the construction process is the first level for resolving disputes, and its decision is not final and binding.

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AS-BUILT DRAWINGS

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contractor required (in most construction contracts) to submit a revised set of drawings noting any changes

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ASSIGNMENT

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

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ASSUMPTION OF RISK

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an agreement where a party becomes responsible for the risk involved

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ASSURED

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one who has been insured by an insurance company

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ATTACHMENT

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

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attractive nuisance

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occurs when a child wanders on to a construction site due to curiosity and the owner may be liable

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AUDIT

Back 45

method of identifying and verifying the firm's statement of assets, liabilities, and capital, and the firm's financial transactions during a fiscal period

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AVERAGE COLLECTION PERIOD

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accounts receivable divided by an average day's billings

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AWARD

Back 47

an arbitrator's decision, as distinguished from a decision, order or verdict in a court action

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BACK LOG

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$ value of anticipated revenues from projects contracted but as yet unearned

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BALANCED BID

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each item includes cost of materials + labor plus profit

anticipated costs for the various bid items are accurately reflected in the unit prices that are submitted

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BETTERMENT

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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. This term also applies to denote the additional value which an estate acquires in consequence of some public improvement, such as the widening of a street, etc.

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BID

Back 51

an offer to perform a contract for work and labor or for supplying materials at a specified price

An expression of plans and terms specific to the job at hand. In the construction industry, a bid is considered an offer by the contractor to the owner. A bid, as an offer, becomes a contract once the owner accepts the bidder’s offer with all other contractual requirements in order. (See CONTRACT)

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Bid Bond

Back 52

Submitted with the proposal. Guarantees that the bidder will enter into the contract if their proposal is accepted and will furnish payment and performance bonds.

a guarantee that the contractor will perform all required work per the bid documents if the bid proposal is accepted. This is 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.

Typically 5-10%

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bid bond as liquidated damages

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owner will retain full amount of the bid bond when low bidder does not sign the contract and provide the required additional bonds

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BID DEPOSITORY

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a clearing house for subcontractors (bidders) to submit their bids for a particular project and for prime contractors to receive bids from the various subcontractors.

In California, a bid depository was found in violation of antitrust laws based on its rules for membership imposing fine, suspension, or expulsion to members not abiding by the rules.

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BID FORM

Back 55

form prescribed by the bidding requirements to be completed, signed and submitted as the bidder's bid

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BID REJECTION

Back 56

the act of not allowing a bid to stand because of an impropriety in the process of submission or as a result of the owner’s arbitrary decision to reject the bid. The owner, in a typical contract, reserves the right to reject any and all bids. However, in rejecting a bid, an owner and its Landscape Architect run the risk of interfering with the bidder’s right to do work or of defamation of character on the part of the bidder.

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bilateral contract

Back 57

- consists of an agreement created by mutual promises made by contracting parties

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Bill of Quantities

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A list of materials, parts and labour (and their costs) that are included in the contract. The bill of quantities is helpful in valuing variations and assists in the preparation of progress claims

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Billables

Back 59

This type of cost is typically the second largest cost item and does not add to the cost of running a business

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BINDER

Back 60

a temporary insurance agreement that obligates the several parties of the contract if the loss insured against occurs before the policy is written

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BOARD OF CONTRACT APPEALS

Back 61

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

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BOILER PLATE

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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.

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BOND

Back 63

An agreement with legal force.

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. A bid bond is a form of security to insure that the bidder will enter into the contract if the award is made to it. A performance bond insures completion of the project by the con-tractor, guaranteeing that if the contractor defaults, the bonding company will step in and finish thework. A performance bond also is applicable between a prime contractor and its subcontractor, assuring the prime that the subcontractor will perform or pay. A payment bond (sometimes known as a labor and material payment bond) provides a source of payment for the contractors’ or subcontractors’ labor and materialmen.

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BONDING PRINCIPAL

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the party who has the primary obligation to perform uner the bond contractor

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BREACH OF DUTY or NEGLIGENCE

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failure to perform an obligation created by law or by contract

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BREACH OF INSURANCE CONTRACT

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failure to comply with the terms or conditions incorporated in an insurance policy, frequently resulting in a restriction of coverage or voiding the policy all together

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BRIEF

Back 67

written argument, prepared by a lawyer, setting forth the facts, legal points, + authorities to persuade a court about the merits or defenses to a claim

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broad form indemnification

Back 68

owner is held harmless against all losses caused by or contributed by the owner, architect or othersc

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BROKER

Back 69

representative of the buyer of liability + other insurance who deals with agents in arranging coverage required by the customer

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Brokerage

Back 70

all the work is subcontracted out

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BUILDER

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one whose occupation is the building or erection of structures, the controlling and directing of construction, or the remodeling and adapting to particular uses of buildings and other structures. The term “builder” is sometimes used interchangeably with the word “contractor.” (See CONTRACTOR)

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BUILDERS' RISK INSURANCE

Back 72

form of property insurance that covers damage to property under construction

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BUILDING CODE

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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 isenacted in most jurisdictions. A code is not applicable in a certain jurisdiction or locality until it is enacted (legislated) into local law.

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BURDEN OF PROOF

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the duty of a party to substantiate an allegation or issue in order to convince a trier of fact of the merits of the party's claim necessary in order to prevail in a claim

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calender days

Back 75

every day that takes place

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CAPACITY

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the attribute of persons which enables them to perform civil or juristic acts

necessary for parties entering into a contract. (See CONTRACT)

max amt. of insurance that a company can write or max net premiums a company can book

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CAPITAL EXPENDITURE

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expenditure made for fixed (long term) assets such as land, buildings, furnishings, and equipment

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Capital Improvement Plan

Back 78

A CIP, identifies capital projects and equipment purchases, provides a planning schedule and identifies options for financing the plan. Essentially, the plan provides a link between a municipality, school district, parks and recreation department and/or other local government entity and a comprehensive and strategic plans and the entity's annual budget.

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CAPTIVE

Back 79

an insurance company formed by one or more entities to insure specific risks

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Cardinal changes

Back 80

changes that are not within the general scope of the original contract and are not covered in typical changes clauses

- considered a breach of the contract to force a contractor to perform

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CASE LAW

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

Laws established by the outcome of former cases.

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CASE OF ACTION

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facts sufficient to justify a court in rendering a judgement

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CASE RESERVES

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company claims adjustor's estimate of the potential liability of a claim subject to coverage by the policy

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CAVEAT

Back 84

a caution; literally, “let him beware.”

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caveat

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warning - buyer be aware

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CERTIFICATE

Back 86

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.

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certificate of insurance

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means by which a contractor can demonstrate to the owner that specific forms of insurance have been obtained

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CERTIFICATE OF OCCUPANCY

Back 88

a document issued by the building inspector certifying that the structure conforms to all relevant code sections and is, therefore, safe for use. An owner must obtain a certificate of occupancy before he or she can use a building.

A new building cannot be considered complete until a certificate of occupancy has been issued. In some instances, a partial certificate of occupancy will be issued for portions of the building to be occupied.

Same as certificate of substantial completion

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CERTIFICATE OF PAYMENT

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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.

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CERTIFICATE OF SUBSTANTIAL COMPLETION

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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. (See SUBSTANTIAL COMPLETION)

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CHANGE

Back 91

a revision to the original contract documents.

A change differs from a modification in that the modification is agreed to by both parties of the contract; however, a change may be made unilaterally by the owner in spite of the contractor’s lack of agreement.

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CHANGE IN SERVICES

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requires additional fees from the architect to prepare additional drawings

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CHANGE ORDER

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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 in order to constitute a change order. If the price and/or time is not affected, then the change is a field order or minor change order and not a change order.

The change may be requested by the Landscape Architect, owner, or contractor. In project management, a change order is a component of the change management process whereby changes in the Scope of Work agreed to by the Owner, Contractor and Architect/Engineer are implemented. / changes occurring after construction contract has been signed / issued when changes to elements of the project design affect the contract sum or imply an extension of the contract

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CLAIM

Back 94

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. (NOTE: A letter is sufficient, in the eyes of some courts, to establish a claim.)

a demand for money, services or property based upon a right usually found in contract or by operation of law

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claim of lien

Back 95

a persons's claim to a property in lieu of absent payment or debt

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claims clause

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permits the contractor to present disputes to the owner without having to resort to litigation as a first step

- allows contractor to request additional compensation

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CLAIMS-MADE POLICY

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a policy that covers only those claims that are made against the insured during the policy period

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Closed Spec

Back 98

requires a specific item or system - ensures only products of a particular type are used

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COLLATERAL ESTOPPEL

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a legal doctrine that bars further litigation of issues in a case previously decided by other courts

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COLLATERAL SOURCE RULE

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rule that prevents a defendant from introducing into evidence the fact that a plaintiff has received benefits from their injury or from other sources

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COLLUSION

Back 101

conspiracy or concert of action between 2 or more persons for fradulent or deceitful purposes.

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.

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COMBINED RATIO

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the sum of the incurred loss and company expense divided by the earned premium

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Commencement of Improvements

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The first actual construction on a site OR first delivery of substantial materials

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COMMERCIAL GENERAL LIABILITY INSURANCE(CGLI)

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a broad form of liability insurance usually covering business organizations to protect them from liabilitiy claims for injury arising out of their operations

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COMMERCIAL IMPRACTICABILITY

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doctrine recognizes in some instances, contract performance may become so costly that its impracticability makes it an impossibility

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Common Law

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The part of English law that is derived from custom and judicial precedent rather than statutes. Often contrasted with statutory law.

the body of principles and rules of action that derive their authority solely from usages and customs or from the judgements of the courts

based on tradition or accepted practice over an extended course of time

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COMPARATIVE NEGLIGENCE

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the proportional sharing of liability between a plaintiff and defendant for damages based on the percentage of negligence of each

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COMPENSATORY DAMAGES

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repair or replacement of the loss caused by the wrong or injury and nothing more.

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Competitive Bid

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Also known as:

hard bid, sealed bid, public bid, lump sum bid.

Owner hires A/E.A/E designs and issue CD's.

Owner issues RFP from GC's (shortlist)Owner awards to lowest bidder

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COMPETITIVE BIDDING

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a process whereby sealed proposals are submitted to the owner for consideration. Competitive bidding is mandatory on public works projects.

A private owner may choose to use competitive bidding in securing the most economical contractor for the construction of the project. However, a private owner is not legally bound to the competitive bidding process.

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Competitive Sealed Proposal

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Owner hires A/E.A/E designs and issue CD's.

Owner issues RFP from GC's (shortlist)

Owner awards to 'best value'

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Comprehensive Planning or Master Plan

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A term used by land use planners or planning commission to describe a process that determines community goals and aspirations in terms of community development.

The outcome of comprehensive planning is the Comprehensive Plan which dictates public policy in terms of transportation, utilities, land use, recreation, and housing.

Comprehensive plans typically encompass large geographical areas, a broad range of topics, and cover a long-term time horizon.

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CONSEQUENTIAL DAMAGES

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the payment for losses caused by faulty work. 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.

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CONSIDERATION

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something of value. primary reason for someone to enter a contract. the inducement to a contract; the cause, motive, price, or impelling influence which induces a contracting party to enter into a contract; the reason or material cause of a contract. (See CONTRACT)

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CONSTITUTION

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the written instrument agreed upon by the people of the United States, or ofa particular state, as the absolute rule of action and decisions for all departments and officers of the government in respect to all the points covered by it.

This instrument must control until it is changed by the authorities which established it. Any act or ordinance of any government department or office opposed to it is null and void.

Several states have enacted statutes which have affected the construction industry and have been found unconstitutional or null and void in their application. One such statute is the statute of limitations which is applied for the protection of the owner and Landscape Architect but not for the contractor.

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CONSTRUCTION CHANGE DIRECTIVE

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(CCD) a written order generated by the designer directing a change in the project and stating a proposed basis for adjustment, if any, to the contract sum or contract time. w/out invalidating the contract, the owner may order changes consisting of additions, deletions or other revisions

- contract sum + time adjusted

- used when change order cannot be obtained due to limited time or disagreement Used when:

- changes needed but no time to prepare a change order proposal

- changes are necessary but the value can't be determined until a later date

- the owner gives permission for the contractor to proceed and determine cost/schedule impacts at a later date

Used in the absence of total agreement on the terms of the change order

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CONSTRUCTION CONTRACTS

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gov't agencies + construction institutions:

AGC - associated general contractors

AIA - american institute of architects

ASCE - american society of civil engineers all have these type of standard docs

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construction drawings

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include detailed working drawings and specifications

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CONSTRUCTION MANAGEMENT

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a process of professional management applied to a construction program from conception to completion for the purpose of controlling time, cost, and quality.

Ideally, the construction management organization links itself to the owner as an agent and thereby places itself in a fiduciary relationship with the owner.

In this relationship, the construction manager can properly represent the owner to both the design profession-al andthe contractors without concern regarding conflict of interest on his part.

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CONSTRUCTIVE

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that which has the character assigned to it in its own essential nature but acquires such character as a consequence of the way in which it is regarded by a rule or policy of law; hence, inferred, implied, or made out by legal interpretation.

The term “constructive” typically is used with other legal terms such as “acceleration,” indicating that in the absence of an acceleration clause, it is the actions of party that determine the validity of acceleration costs.

Another application is in the use of the term “constructive change,” indicating that although a change may not have been directed, it is implied by the act or omission of the parties involved. (See ACCELERATION and CHANGE)

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constructive acceleration

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does not result from a direct order but is construed as acceleration because of the owners refusal to grant time extensions for an excusable delay

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Consumer Product Safety Commision

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CPSC is required by the Consumer Product Safety Act to rely specifically upon voluntary consensus for its consumer product safety standards , rather than to promulgate its own standards.

Significant for LA's in dealing with play structures and surfaces.

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Contingency

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A provision in a contract the requires a certain act to be done or a certain event to occur before the contract become binding

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Contingent liability

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- under the rules of this, an injured third party is not or should not be affected by a contract between two other parties.

- it can sue the owner under the premise that the owner is jointly or wholly liable

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CONTINUOUS TREATMENT

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an uninterrupted, unbroken series of activities or events. This theory is sometimes employed in the determination of statute of limitation claims regarding the commencement of the time for the claim.

The statute of limitation typically starts to run upon completion of the project. However, if the contractor is required to repair defects in the workand, as a result, renders “continuous treatment” to the work, the contractor may extend the time for commencement of the statute.

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CONTRACT

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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.” In the construction industry, especially in public bidding, the bid proposal is considered an offer and the owner’s selection of the bid is the acceptance.

Consideration is the giving up of something on the part of both parties (the owner gives money while the contractor gives labor, material, etc., in the construction process). The capacity ofboth parties rep-resents their legal standing in relation to one another, namely as legally recognized principals of the organizations entering into the contract.

The state of mind (mutuality of assent) of the individuals must be such that they are free to enter into the contract or not to enter into the contract. If coercion is present, then the contract could be rendered null and void.

The meeting of the minds represents that which was intended by both parties at the time of the signing of the contract and that both parties were in harmony with each other’s intentions. (See BID)

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CONTRACT

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an agreement, written or oral, between two or more parites creating legal rights and duties that something shall, or shall not, be done.

The elements of a contract are "offer" and "acceptance" by "competent persons" having legal capacity who exchange "consideration" to create "mutuality of obligation."requires "consideration" to be legally binding.

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Contract Amendment

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Modification to a construction design or contract which provides for a change of contract provisions including additional work outside the scope of an original contract

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Contract Conditions

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Define the legal rights and obligations, or the rules by which each party (contractor and the owner) must comply.

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Contract Documents

Back 130

All documents which, when combined, form the basis of the contract, including all pre-tender, tender and contractual documentation.

Your quote can also form part of the contract documentation.

The contract documentation will give you sufficient information to be able to complete the building works and meet the service delivery requirements.Includes: Contract, Contract Conditions, Special Contract Conditions, Bill of Quantities, Drawings, Specifications

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CONTRACT DUALITY

Back 131

The obligation which arises from a contract or agreement.

In a typical contract agreement, the parties are required to fulfill the duties enumerated in the contract writing between the two parties, but also from the contract agreed to by other parties.

An example of this is the duty owed by the Landscape Architect to the contractor as a result of the requirements called out in the contract between the owner and the contractor.

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Contract Form, Contract Conditions, Technical Specifications (CSI Format)

Back 132

What are the three main components of a bid document?

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CONTRACT TIME

Back 133

time, including authorized adjustments, allotted for substantial completion of work

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CONTRACTOR

Back 134

anyone who contracts to provide the labor and services necessary to complete a project.

A contractor may be hired by the owner or by another contractor. When the contractor is hired directly by the owner, the contractor is classified as a prime contractor.

When a contractor is hired by another contractor, the contractor is classified as a subcontractor in relation to the project. (See SUBCONTRACTOR)

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CONTRACTUAL DUTY – (CONTRACTUAL OBLIGATION)

Back 135

the obligation which arises from a contract or agreement.

In a typical contract agreement, the parties are required to fulfill the duties enumerated in the contract writing between the two parties, but also from the contract agreed to by other parties.

An example of this is the duty owed by the Landscape Architect to the contractor as a result of the requirements called out in the contract between the owner and the contractor.

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CONTRIBUTION

Back 136

the sharing of a loss or payment among several debtors. The act of any one or several of a number of co-debtors in reimbursing one of their number which has paid the whole debt or suffered the whole liability, each to the extent of its proportionate share;

The right of one who has discharged a common liability to recover from another, who is also liable, the portion which he or she ought to pay or bear.

In many jurisdictions, the damages will be assessed to the parties held liable based on their contribution to the negligence.

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CONTRIBUTORY NEGLIGENCE

Back 137

the failure of the plaintiff to exercise ordinary care, thereby contributing to his or her own injury

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Corporations

Back 138

legal entity created to act as an individual while protecting the owners and stockholders of the firm

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Cost Estimates and Bid Tabulations

Back 139

What each contractor bid for each item and overall cost

Front 140

cost plus contract

Back 140

- owner is reimbursed for most of the direct expenditures related to the project plus an allowance for overhead and profit

Front 141

COST PLUS FEE AGREEMENT

Back 141

agreement under which the contractor is reimbursed for stipulated direct

+ indirect costs of performance of the agreement + in addition is paid a fee for services

Front 142

cost plus fixed fee agreement

Back 142

provides payment for all labor and materials costs and adds an amount on the contract to act as the profit for the design team

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COURT OF EQUITY

Back 143

tries cases in mortgages, fraud, etc. administers justice granted in the precepts of the conscience, not in any sanction of positive law

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COURT OF EQUITY

Back 144

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.

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Covenant

Back 145

An agreement, especially by lease, deed, or other legal contract.

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Criminal Law

Back 146

A system of law concerned with the punishment of those who commit crimes.

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CRITICAL PATH METHOD (CPM)

Back 147

schedule or diagram of events expected to occur and operations to be performed in completing a given process

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CURRENT RATIO

Back 148

current assets divided by current liabilities

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CUSTOM

Back 149

a usage or practice of the people which, by common adoption and acquiescence and by long and unvarying habit, has become compulsory and has acquired the force of a law with respect to the place or subject matter to which it relates.

On the technical side of the construction industry, this term can apply to techniques and methods of construction, such as the finishing of a concrete slab with a trowel. Administratively, it is the custom of an Landscape Architect to monitor the construction phase of the work, unless the writing contains a clause deleting that requirement.

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CUT-OFF DATE

Back 150

date which work is evaluated by the contractor for payment should normally be not less than ten days prior to the payment date

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DAMAGES

Back 151

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

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Date of Agreement

Back 152

The date that a contract was actually awarded to a contractor

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DATE OF SUBSTANTIAL COMPLETION

Back 153

point at which the work or designated portion can be occupied or used as intended - usually the contractor makes this call, but must be agreed upon inspection by architect

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DAVIS-BACON ACT

Back 154

requires mechanics + laborers to recieve the prevailing wage as determined by the secretary of labor

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deed

Back 155

transfers ownership of property from one owner to another

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DEFAULT

Back 156

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

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DELAY DAMAGES

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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.

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DEMURRER

Back 158

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

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DEPOSITION

Back 159

pre-trial testimony in the form of oral questions and answers, by a party or witness, that is taken under oath and may be used during a trial or arbitration proceeding

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DESCRIPTIVE SPECS

Back 160

describes in a logical manner the materials needed and the methods of their installation greatest degree of control

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Design Build Method

Back 161

Owner develops design criteria package.

Owner hires DB firm in two steps: RFQ then RFP, negotiated procurementMakes decision based on 'best value'DB designs and builds project

- also called turnkey construction

- single contract for both design and build

- utilizes construction firms experience in design

- similar to general contract, except contractor responsible for design as well

- popular in large industrial projects

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DESIGN SERVICES CONTRACT

Back 162

used for consulting services between a landscape architect and a client or between the LA and other consultants subconsultant contracts should always reference the prime contract

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Design Specifications

Back 163

particular kind or type of material is to be used, a particular dimension is required, installation method given etc.

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DESIGN-BUILD

Back 164

a method of organizing a building project in which a single entity undertakes the design and erection of the structure at a set fee negotiated in advance. Unlike the conventional construction contract whereby an owner hires both an Landscape Architect and a contractor separately, in the design-build contract, the owner negotiates only one con-tract with one organization.

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DEVIATION

Back 165

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

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DIFFERING SITE CONDITIONS CLAUSE – (“CHANGED CONDITIONS” CLAUSE)

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typically provides that in the event that the physical conditions at the site of the work vary materially from those represented or reasonable 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.

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Sub-consulting fees and travel costs are what kinds of costs?

Back 167

Direct Project Expenses

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What is a multiplier fee basis usually based on?

Back 168

direct salary and labor costs

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DISCLAIMER

Back 169

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

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DISCLOSURE

Back 170

to bring into view by uncovering, to lay bare, to reveal, to free from secrecy or ignorance, or to make known; revelation;

the impartation of that which is secret;

that which is disclosed or revealed.

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DISCOVERY

Back 171

the ascertainment of that which was previously unknown, the disclosure or coming to light of what was previously hidden, the acquisition of notice or knowledge of given acts or facts as in regard to the discovery of fraud affecting the running of the statute of limitations, or the granting of a new trial for newly discovered evidence;

disclosure of facts resting in the knowledge of the defendant or of deeds, writings, or other things in his custody or power.

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DISCOVERY PERIOD

Back 172

period of time allowed an insured to identify and report to the carrier losses or claims

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disputes review board

Back 173

generally consists of 3 individuals who meet whenever one of the contracting parties on a project desires a hearing on an issue of conflict

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dividends

Back 174

money returned to clients with relatively low losses

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DOCUMENT, DOCUMENTATION

Back 175

instruments which record, by means of letters, figures, or marks, matter which may be evidentially used;

the deeds, agreement, title papers, letters, receipts, and other written instruments used to prove the facts.

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Drawings

Back 176

The architectural and structural plans of the building. locates elements, shape, form + size, dimensioning + layout, details

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DUE CARE

Back 177

degree of care that a person of ordinary prudence and diligence would exercise under the same or similar circumstancesnegligence is the failure of using this

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DUE DATE FOR FINAL PAYMENT

Back 178

30 days after substantial completion

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duress

Back 179

threats forcing consent to an agreement

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EASEMENT

Back 180

the right of one or more parties to make lawful and beneficial use of the land of another, created by an expressed or implied agreement.

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

Uses can include access, utilities, or parking by another party who holds the easement interest or easement rights.

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EASEMENT OR COVENANT

Back 181

method to designate certain rights of other parties to use a portion of the project property for access utility construction + maintenance, or temporary construction

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ECONOMIC LOSS

Back 182

additional cost incurred by an individual other than property damage or personal injury. In the construction industry, an economic loss may be represented by a loss in profits or a loss due to a delay in the contractor’s schedule. (See DELAY DAMAGES)

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eminent domain

Back 183

the right of the federal government or a state to take possession of private property and appropriate it for public use

- also called condemnation

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Employer - Independent Contractor Relationship

Back 184

Type of relationship where someone has limited control of the overall conduct and performance of the people.

Usually involves people with special skills.

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ENGINEER

Back 185

a person with a particular expertise in a limited area of building design. An engineer typically may specialize in structural, mechanical, electrical, or plumbing design. It is the limitation of this specialty, which distinguishes an engineer from the Landscape Architect, who has general responsibility for the entire project.

Engineers ordinarily are hired as consultants to assist the Landscape Architect.

The con-tract between the Landscape Architect and the engineer usually reflects the same terms and conditions that exist in the contract between the owner and the Landscape Architect.

In some instances, such as an industrial project, the roles are reversed in that the owner hires the engineer as the prime designer, and the engineer, in turn, hires the Landscape Architect as a consultant for the building enclosure.

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Equal specification

Back 186

proprietary spec with the words 'or equal' afterwards

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EQUITABLE DOCTRINE

Back 187

just and conformable to the principles of justice and right; existing in equity;

available or sustainable only in equity or only upon the rules and principles of equity. (See EQUITY, COURT OF)

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EQUITY

Back 188

value of the firm's assets in excess of its liabilties

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ERRATUM

Back 189

correction of a printing typographical or editorial error

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Estoppel

Back 190

- contract becomes binding in spite of the fact that no formal agreement was made between parties concerned

- result of a court action asserting that an agreement or contract exists, based largely on the behaviour or actions of the parties involved

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EXCLUSIVITY OF CONTRACT PROVISIONS

Back 191

when a remedy for breech is included as a part of the contract, that remedy is considered exclusive of other remedies provided by law. Some courts do not recognize the exclusivity of a contract provision unless it is specifically stipulated that the remedy is exclusive. Courts typically will look at all of the facts and circumstances surrounding the agreement as a means of determining the intention of the parties and willrefuse to exclude other remedies unless such a result is required by a consideration of the facts of the particular agreement.

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EXCULPATORY LANGUAGE

Back 192

clause in which a party who may suffer a loss agrees not to institute legal action against the party who may cause the loss. The classic example is a patient who, upon entering the hospital, agrees not to institute any legal action against the hospital or any of the doctors in the event he suffers injury or death because of an act of the hospital or the doctors. In the jargon of the construction industry, indemnification clauses and disclaimer clauses are considered exculpatory language. when patient enters hospital and 'signs their life away'. indemnification clauses + disclaimer clauses are considered this

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Executed contract

Back 193

- when both parties to the agreement have fully performed their duties

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Executory contract

Back 194

- when some portion of the agreement remains undone

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Exoneration

Back 195

Process of releasing a surety bond which is a widely used form of financial guarantee made available by a bank.

A performance bond is a type of surety bond that offers a financial guarantee, specifically to ensure performance of work.

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EXPERT WITNESS

Back 196

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

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EXPOSURE

Back 197

estimate of the probability of loss from some hazard, contingency, or circumstance to signify the estimate of an insurer's liability under a policy from any one loss or accident

Front 198

EXPRESS WARRANTY

Back 198

an affirmation of fact or promise expressly made by the warrantor any description of materials or equipment a sample or model can create this

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expulpatory provision

Back 199

one party, typically the contractor, is asked to assume liability that would not otherwise be assumed

Front 200

Fast Track Construction

Back 200

When a prime or main contractor starts the construction work BEFORE the plans and specifications are complete.

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FAST TRACK METHOD

Back 201

a way of organizing a design pro-gram which allows the contractor to begin construction on earlier phases of the project before the plans are completed for the entire project.

Caution must be exercised in the signing of a contract using these fast-track methods because of the lack of information typically expressed in a conventional method of contract.

Many changes may result when going from phase to phase, and provisions must be included in the contract to compensate the contractor for additional work.

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Fast- tracking

Back 202

- the overlap of design and construction that can occur in design build projects

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FEASOR

Back 203

one who commits or is guilty of a tort

Front 204

FIDELITY BOND

Back 204

guarantees recovery of loss suffered by the owner through theft on the part of the contractor's employees.

surety bond that reimburses an obligee named in the bond for loss sustained by reason of dishonest acts of an individual or entity covered by the conditions of the bond

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FIDUCIARY

Back 205

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 andcandor which are required.

In the construction industry, the Landscape Architect and the owner are in a fiduciary relation-ship in respect to the contractor.

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FIELD ENGINEER

Back 206

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

Front 207

FIELD OBSERVATION

Back 207

verifying limits of work, staking existing trees + other features, verifying location of proposed elements critical to intent of design

Front 208

FIELD ORDER

Back 208

Written instructions for making a minor change in a contract not involving an adjustment to the contract amount or any change in the its completion time. 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.

A field order is issued when the modification will not affect the money and/or the time spent on the project. These factors distinguish a field order from a change order.

The change may be requested by the Landscape Architect, owner, or contractor. (Field orders sometimes are known as minor change orders.) (See CHANGE ORDER)

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Final Acceptance

Back 209

The action of the owner accepting the work from the contractor when the owner deems the work completed in accordance with the contract requirements.

Final acceptance is confirmed by the owner when making the final payment to the contractor.

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Final Completion

Back 210

A stage of construction where the work is fully completed per the contract documents

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Final Inspection

Back 211

A final site review of the project by the contractor, owner or owner's authorized representative prior to issuing the final certificate for payment.

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Final Payment

Back 212

The last payment from the owner to the contractor of the entire unpaid balance of the contract sum as adjusted by any approved change orders.

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FINALITY OF DECISION

Back 213

a contract provision or the procedure of a legally recognized process which states that the decision rendered in the settlement of a dispute is final.

Pursuant to such a provision, the courts will accord finality to that decision absent gross error for arbitrary and capricious action.

In the arbitration process, the decision rendered by the arbitrators isfinal. .

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FIXED FEE

Back 214

compensations for professional services or construction services on a lump-sum basis not effected by project scope or other variables except as designated

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Fixed Price Bid

Back 215

Type of bid contract where, once agreed to, is not subject to adjustment of price

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FLOW DOWN CLAUSE

Back 216

same performance standards are required from owner to prime as are prime to subcontractors

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FLOW-DOWN CLAUSE

Back 217

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.

Some contracts between contractors andsubcontractors require more of the subcontractor than is required of the prime contractor by the owner.

In a “flow-down” clause, the same requirements are established as a minimum require- ment for the subcontractor.

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FOREIGN CORPORATION

Back 218

an organization not incorporated in the state or jurisdiction in which it is performing work.

A contractor must meet the legal requirements of the state in which it is performing work.

These requirements may include incorporation and licensing as a construction contractor in that state.

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FOUR-CORNER RULE

Back 219

the face value of a contract. 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.

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FRAUD, FRAUDULENT

Back 220

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 andis intended to deceive another so that he or she shall act upon it to his or her legal injury.

Front 221

G702

Back 221

Document that provides the first basis for the construction cost control on a project

Front 222

GENERAL CONDITIONS

Back 222

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.

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GENERAL CONTRACTOR

Back 223

the builder of the portion of the building which is considered the general portion or the Landscape Architectural portion. not the prime contractor (See PRIME CONTRACTOR)

Front 224

GENERAL DUTIES OF LANDSCAPE ARCHITECT

Back 224

consultation, investigation, researchgeneral development of site plansstudies and specificationssupervision of development of landscapeplan, preserve, enhance, + arrange land formsproject manager coordinates time, $, people etc. review work

Front 225

General Overhead (GOA)

Back 225

This type of cost includes rent, promotion, and office costs

Front 226

General Spec's

Back 226

stipulates ground rules for the work to be performed and defines the scope of work to be performed within the specification sections

Front 227

general warranty

Back 227

a guarantee from the prior owner that the title is clean and that he will be held liable in the future if anyone comes forward and stakes a claim to the title of the property. 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

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Guaranteed Maximum Upset

Back 228

Billed hourly, is a form of fee arrangement used to ensure a client that the scope of the project will be billed at the actual number of hours, up to a maximum limit that the consultant will guarantee not to exceed.

Front 229

GUARANTY

Back 229

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.

Front 230

HOLD HARMLESS AGREEMENT

Back 230

a contract provision where one party assumes certain legal liabilities on behalf of the other partysynonymous with "indemnification"

Front 231

HOLD-HARMLESS CLAUSE

Back 231

this heading is interchangeably used with the heading

“Indemnification Clause.” (See INDEMNIFICATION)

Front 232

IMMUNITY

Back 232

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

Front 233

IMPLIED

Back 233

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

Front 234

IMPLIED AGENCY

Back 234

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

Front 235

IMPLIED CONTRACTUAL PROVISIONS

Back 235

provisions which do not appear in the written embodiment of the agreement, but which exist by implication.

These primarily include the implied duties to cooperate and to disclose, the implied warranty of specification suitability, and the implied covenant of good faith and fair dealing.

Recovery under these implied clauses may not be subject to the limitations on recovery under the expressed provisions of the contract.

Front 236

IMPLIED WARRANTY

Back 236

a promise established by implication or inference from the nature of the transaction or the situation or circumstances of the parties.

does not mean that the contractor guarantees that the completed project will be suitable for its intended purposes - rather (See WARRANTY)

Front 237

IMPOSSIBILITY OF PERFORMANCE

Back 237

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.

Front 238

IMPRACTICABILITY, COMMERCIAL

Back 238

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

Front 239

IMPUTED KNOWLEDGE

Back 239

knowledge of a fact which is attributed vicariously to another.

Knowledge is said to be imputed to a person when it is ascribed or charged to the person not because he or she is personally cognizant of the fact or responsible for it, but because another person, over whom the first person has control or for whose acts or knowledge he or she is responsible, is cognizant of it or responsible for it.

In an agency relationship, the principal has knowledge imputed to him or her when the agent receives or is made cognizant of that knowledge. (See AGENCY)

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IMPUTED NEGLIGENCE

Back 240

negligence not directly attributable to one person but that is of a second person who is in privity with the first vicarious liability

Front 241

INCORPORATED PAPERS

Back 241

a contract referring to another instrument that the two parties intend to make part of their understanding.

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.

Front 242

INDEMNIFICATION

Back 242

prevents contractor from sueing architect or owner in event of poor performance of work

- bodily, injury, sickness, disease, death, or other personal property (not the work itself)an agreement by one party to pay certain specified losses or damages incurred by another partysynonymous with 'hold harmless' contractural obligation by which one person agrees to secure another against loss or damage from specified liability.

One method of obtaining indemnification is to obtain a promise from the contractor that it will insure the owner, and in some cases the Landscape Architect, against any liens or suits by a third party not privy to the contract.

The courts generally enforce contractual indemnification provisions; but, they are hesitant to permit a party to use indemnification when that party has played a major role in causing the loss.

Indemnification is a contractual obligation by which one person ororganization agrees to secure another against loss or damage from specified liability.

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INDEMNITY AGREEMENT

Back 243

principal (contractor) guarantees the surety that the surety will incur no loss by reason of its providing the bond provides 'leverage' over the principal

Front 244

independent contractor

Back 244

agent relationship where the owner is not responsible for the actions of the agent but only specifies a required result

Front 245

INJUNCTION

Back 245

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 orattempting to commit, or restraining it in the continuance thereof, such as being unjust, inequitable, or injurious to the plaintiff. In the application of the equitable doctrine of promissory estoppel, one can only stop the subcontractor from withdrawing its bid. This is an injunctive procedure preventing the subcontractor from performing an act, but it cannot assess damages against the subcontractor.

Front 246

INJUNCTION

Back 246

writ from court of equity forbidding a defendant to do some act which is unjust or injurius to the plaintiff estoppels are these types of procedures

Front 247

Inspection for Disbursement of Funds

Back 247

An independent vehicle for the disbursement and accounting of construction funds allowing construction obligations to be paid (progress payments) when work is completed, inspected and approved.

Front 248

INSPECTION TEAM

Back 248

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

Front 249

Inspectiondisputesdelaysstop work orders

Back 249

What are the four main areas of field administration that are required of most landscape architects?

Front 250

INSURANCE

Back 250

a contract whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specifying perils. The party agreeing to make the compensation usually is called the insurer or underwriter; the other is the insured or assured; the agreed consideration is the premium; the written contract is the policy; the events insured against are risks or perils; and the subject, right, or interest to be protected is the insurable interest. Insurance is contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in the future.

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INTERFERENCE

Back 251

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

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intermediate form indemnification

Back 252

joint negligence, the owner is held harmless when both parties are negligent

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INVITATION TO BID

Back 253

a solicitation for competitive bids; an invitation to submit offers on behalf of contractors, which are then subject to acceptance by the procuring agency or owner to form the basis of the contract.

The invitation to bid competitively is not an offer on behalf of the procuring agency or owner to contract but is simply a request or solicitation for offers to contract.

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JOINDER

Back 254

multi-party litigation

- must be agreed upon in writing by all parties involved

- usually better for arbitration to be held separately to avoid unnecessary complexity + complications

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JOINDER

Back 255

uniting two or more elements into one two parties in an indemnification

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Joint Venture

Back 256

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

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JUDICIAL

Back 257

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

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JUDICIARY

Back 258

pertaining or relating to the courts of justice, to the judicial department of government, or to the administration of justice;

that branch of government invested with the judicial power;

the system of courts in a country.

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LABOR + MATERIALS PAYMENT BOND

Back 259

protects workers, subcontractors and material suppliers assures they will get paid for work performed or materials supplied w/out this bond, owner must pay liens

Front 260

Land Use

Back 260

Land use is the human use of land. Land use involves the management and modification of natural environment or wilderness into built environment such as settlements and semi-natural habitats such as arable fields, pastures, and managed woods.

Front 261

Land Use Classifications

Back 261

A classification providing information on land cover, and the types of human activity involved in land use.

It may also facilitate the assessment of environmental impacts on, and potential or alternative uses of, land.

Front 262

Land Use Plan

Back 262

The proposed utilization of land, resulting from planning and zoning studies.

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LANDSCAPE ARCHITECT

Back 263

the person or organization hired by the owner to design the project.

The Landscape Architect’s duties consist primarily of the production of the plans and specifications from which the building will be constructed.

The Landscape Architect may also preside at the bid opening, monitor the construction process to assure that the owner’s interests are protected, and approve payments to the contractor. Its relationship to the owner is that ofan independent contractor.

All Landscape Architects must be licensed by the states in which they practice. In addition to the contract with the owner, the Landscape Architect also will enter into contracts with consultants (structural, mechanical, electrical engineers,etc.) but will not execute a contract with the contractor.

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LANDSCAPE ARCHITECT SPECIFIC DUTIES

Back 264

plan

+ design of vegetation, circulation,

+ other features to fulfill aesthetic and functional reqsformulate graphic

+ written criteria to govern construction processprepare, review,

+ analyze masterplan

+ site planprepare feasibility studies, probable construction costs, public hearing schedules, etc

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LATENT

Back 265

hidden, concealed, dormant;

does not appear upon the face of a thing, as in a latent ambiguity.

Front 266

LATENT DEFECT

Back 266

defect not discoverable by the exercise of ordinary skill and care

Front 267

LIABILITY

Back 267

bound or obliged in law or equity;

responsible or answerable to make satisfaction, compensation, or restitution.

Front 268

Libel

Back 268

a written or printed defamation of someone else's character.

intentional publication or broadcast of a defamatory statement that exposes a person to contempt, disrespect, hatred, or ridicule. The defamation, whether expressed in print, writing, pictures, gestures, or signs via newspapers, radio, television, movies, or plays, is either a civil wrong or a criminal wrong

Front 269

LICENSE

Back 269

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

Front 270

LIEN (mechanic's lien, construction lien)

Back 270

a charge, security, or encumbrance upon property;

a claim or charge on property for payment of some debt, obligation, or duty. legal right of a party to control the property of another, or have it sold for payment of a claim (take your possesions). Latin ligamen, from ligare "to bind"

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Lien Waiver (Release)

Back 271

Written document from a contractor to owner releasing said legal state

Front 272

limited form indemnification

Back 272

contractors negligence agreement, the owner is held harmless for claims caused by operations or negligence of the contractor or subcontractor

Front 273

limited partner

Back 273

-contributes cash or property to the business and shares in the profits and losses

-provides no service and holds no vote

Front 274

LIMITS OF LIABILITY

Back 274

max $ figure that the insurance company will pay

- covered in the Contract Documents or by by law, whichever is greater

Front 275

LIQUIDATED DAMAGES

Back 275

a specific sum of money expressly stipulated by the parties to a bond or contract as the amount of damages to be recovered by either party for a breach of the agreement by the other. In the construction industry, it is an amount established in the contract writing to be withheld by the owner on a daily basis for every day past the stipulated completion date of the contract.

A “liquidated damages” clause is to fix the amount to be paid in lieu of performance. “Penalty” clauses, without some kind of balancing bonus, are rendered unenforceable in the courts of law.

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Liquidated damages

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An amount that is specified in the contract for any breach of contract including missing a deadline.

An estimated amount calculated as anticipated loss at a future time as opposed to actual damages.

an amount of monetary compensation that the contractor pre arranges to pay the owner for each day of completion delay

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Lis Pendens

Back 277

A recorded legal document giving constructive notice that action affecting a particular party has been filed in court

Front 278

litigation

Back 278

the settling of a dispute in court between two parties of a contract. when negotiations fail and there is no contractual guidance for dispute resolution, the parties will find themselves in a lawsuit

Front 279

LOSS RATIO

Back 279

relationship between net earned premiums + net losses incurred

Front 280

Lot Coverage Limits

Back 280

Used to control size of building or pavement coverage in relation to total site size.

The extent of the coverage (10% - 90%) is considered the land use intensity.

Front 281

lump sum agreement

Back 281

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

Front 282

lump sum contract

Back 282

most simple and used contract in the construction industry

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Maintenance Bond

Back 283

A maintenance bond is not technically insurance, but basically functions as an insurance policy on a construction project to make sure a contractor will either correct any defects that arise or that the owner is compensated for those defects.

Guarantees the plant maintenance will be conducted according to the contract only used when the maintenance period is to be lengthy. gaurantees that the contractor will rectify defects in workmanship or materials

- 1 year maintenance bond is normally included in the performance bond without additional charge

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Malfeasance

Back 284

Refers to an erroneous professional action taken by a public official. the doing of an act that is contrary to law or contractual obligation

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malpractice

Back 285

when providing a contractual service results in pain or suffering to an individual. any failure in professional duty resulting in injury

Front 286

MANDAMUS

Back 286

a writ issued from a court of superior jurisdiction and directed to a private or municipal corporation, or any of its offices, or to an executive, administrator, or judicial officer, commanding the performance of a particular act therein specified and belonging to its public, official, or ministerial duty or directing the restoration of the complainant to rights or privileges of which he or she has been illegally deprived;

a command from a higher court to a lower court to perform a particular act. In the construction industry, a writ is issued to the contracting officer conducting a bid opening session or the letting of contracts if the officer is not complying with the proper legal procedures.

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

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MANDATE

Back 287

a precept or order issued by superior court upon the decision of an appeal or writ of error which directs action to be taken or disposition to be made of case. In some state jurisdictions, the term “mandate” has been substituted for “mandamus” as the formal title of that writ. (See MANDAMUS)

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MANDATORY CLAUSES – (MANDATORY PROVISIONS)

Back 288

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.

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Master-Servant Relationship

Back 289

Type of relationship where someone must act in good faith and be obedient to another person. Personal interests are secondary.

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MATERIAL VARIANCE

Back 290

a deviation from that which was specified in the original contract documents.

In the bid process, a material variance from that which is required in the bid documents will be the basis for rejection of the bid.

The degree of variance in a bid process is determined by whether the bidder’s proposal gives it an advantage or benefit not enjoyed by the other bidders.

A mere irregularity in form which can be corrected upon the opening of the bid is not considered a material variance.

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Material Warranty and Labor Warranty

Back 291

What are the two types of general written warranties?

Front 292

MECHANIC’S LIEN

Back 292

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

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MECHANIC'S LIEN

Back 293

claim for securing the priority of payment of the price or value of the work performed and materials furnished in erecting a building or making improvements to the land.

Provides suppliers, laborers and landscape architects a method of forcing a an owner to pay up for goods that were provided but not paid for, even if the contractor has been paid.

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MEDIATION

Back 294

effort by an independent party to assist others in reaching the settlement of a controversy or claim the mediator advises + consults, cannot impose a settlement only guide the parties to achieve their own.

the act of settling a contract dispute or liability claim by hiring a third party mediator to get the parties to come to an agreement through negotiation

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MEETING OF MINDS

Back 295

the “meeting of minds” required to make a contract is not based on secret purposes or intentions on the part of one of the parties, which it has stored away and not brought to the attention of the other parties, but must be based on purpose and intention which has been made known or from which all of the circumstances should be known. (SeeCONTRACT)

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MERCHANTABILITY

Back 296

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

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misfeasance

Back 297

when acceptable activities are undertaken in inappropriate or dangerous ways. Performing a legal action in an improper way (See Reasonable Care)

Amount of care expected from a reasonable person

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MISREPRESENTATION

Back 298

any manifestation by words or other conduct of one person to another that, under the circumstances, amounts to an assertion not in accordance with thefacts.

A party may be guilty of misrepresentation if it has erred in giving professional opinions or in making representations as to existing facts or conditions which a third party has relied uponin the performance of its work.

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multiple proprietary spec

Back 299

models of more than one manufacturer are specified

Front 300

MUTUALITY OF ASSENT

Back 300

compliance, approval of some-thing done, or a declaration of willingness to do something in compliance with a request;

an acting by two parties to perform a duty toward each other. (See CONTRACT)

Front 301

NAMED PERIL

Back 301

names specific risks and excludes all others

Front 302

Negation

Back 302

Refers to the canceling of a prior action

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NEGLIGENCE

Back 303

failure to exercise the degree of care which a reasonable and prudent party would exercise under the same circumstances.

Negligence is committed when a contractual duty is breached.

A good example of negligence is where an Landscape Architect failed to indicate in the plans the existence of an electric power line which he or she knew to be in the area of construction. a breach of duty that will result in the injury to someone else.

legally protected interest is overtly invaded or violated in some way

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Negotiation

Back 304

occurs before conflict becomes largerboth parties calmly discuss an issue and listen carefully to eachother's comments

Front 305

NO DAMAGE FOR DELAY

Back 305

a clause contained in contracts which grants a party to the contract an extension of time but does not reimburse that party for any additional costs suffered during that time.

protects owner from paying any damages to contractor for delaying a project

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Nonconforming Use

Back 306

A use of land or bldng that was lawful until new zoning was applied and is which is permitted to continue.

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Nondiscretionary Standards

Back 307

Criteria which indicate a measurable numeric standard that must be met in order to get zoning approval.

(not an option to do this, ex. setbacks - anyone can measure distance to determine if bldng complies)

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Notice of Award

Back 308

A written communication from the owner to a contractor, signaling that they have achieved the winning bid

Front 309

Notice of Partial Completion

Back 309

Issued by a local building official when a portion of the project meets all the building codes and is ready to be occupied

Front 310

notice to owner/notice of intent to lien

Back 310

initial notification to owner of lien

Front 311

Notice to Proceed Date of Commencement of Work?

Back 311

Written notice by the owner telling the contractor when work may begin per the contract

Front 312

Notice/Letter of Award

Back 312

Written notice by the owner to the apparent successful bidder which states the award date and when the contract will be signed

Front 313

NOVATION

Back 313

contract termination new principals = same obligationsame principals = new obligation

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NULL AND VOID

Back 314

naught, of no validity or effect. When used in a contract or statute, it often is construed as meaning voidable.

A contract is rendered null and void when one of the essential elements that make up a contract is missing.

An example of this is that when an organization is not licensed to perform work in a particular state, that organization does not have the capacity to execute contracts in that state.

Such a contract can then be rendered null and void because of its deficiency regarding the capacity of one of the parties.

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NULLITY

Back 315

nothing;

an act or proceeding in a cause which the opposite party may treat as though it had not taken place or which has absolutely no legal force or effect.

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

Back 316

a federal act creating an agency responsible for safety and health in the work place. The agency has the authority to issue citations to violators of the federal regulations imposed by the agency.

There have been instances in the construction industry where O.S.H.A. has been used by the courts to establish a standard of care for the participants in the construction process.

Front 317

oath

Back 317

a statement that the information to be provided is factual with god as a witness

Front 318

OBLIGEE

Back 318

person for whose benefit the bond is written the owner a dual may include the general contractor

Front 319

occupational safety and health act (OSHA)

Back 319

federal act for responsibility in the work place

Front 320

OCCURANCE INSURANCE

Back 320

an insurance contract where coverage is provided for losses stemming from an event when the insurance policy was in force even if the claim is not made for several years

Front 321

OFFER

Back 321

an act on the part of one party whereby it gives to another the legal power of creating the obligation called contract; a proposal to do a thing; an element of a contract. It must be made by the party which is to make the promise, and it must be made to the party to which the promise is made.

It may be made either by word or by signs, either orally or in writing, and either personally or by a messenger;

but, in whatever way it is made, it is not an offer in law until it comes to the knowledge of the party to which it is made.

An offer must be so definite in its terms, or require such definite terms in acceptance, that the promises and performances to be rendered by each party are reasonably certain. (See CONTRACT)

Front 322

On-Site Inspector

Back 322

Person who is tasked with witnessing the on-site construction at all times

Front 323

Open specification

Back 323

nonrestrictive in that they permit a wide variety of choices

Front 324

OPTION

Back 324

a choice; the power or liberty of choosing; some-thing that is or can be chosen.

In the construction industry, an option is presented to the building contractor in the form of materials and/or methods which vary from the base requirements, which it may choose in order to meet other requirements of the contract.

An example would be to choose a method whichwould employ more minorities to meet the minority quota.

An option has no effect on the cost to the owner. (See ALTERNATE)

Front 325

OWNER

Back 325

the party at the instance of which the project is undertaken and the one which will take title to it when it is completed;

the party in which is vested the ownership, dominion, or title to property.

On a construction project, the owner typically contracts independently with the Landscape Architect or engineer and with the contractor.

Front 326

PAROL EVIDENCE

Back 326

oral or verbal evidence;

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

In a particular sense, and with reference to contracts, deeds, wills, and other writings, parol evidence is the same as extraneous evidence or evidence taken from outside of the contract writing.

Front 327

PAROL EVIDENCE RULE

Back 327

evidence taken from outside the contract writing usually oral or verbal contract cannot be modified or changed by this.

under this rule, when parties put their agreement in writing, all previous oral agreements merge in the writing and a contract, as written, can-not be modified or changed by parol evidence in the absence of a plea of mistake or fraud in the preparation of the writing.

But, this rule does not forbid a resort to parol evidence not inconsistent with the matters stated in the writing.

In common layman’s terms, parol evidence or extrinsic evidence is not permitted to be used a part of the contract writing once the contract is executed.

However, should the writing be ambiguous and in need of clarification, then the courts will permit parol evidence to be received concerning the contract writing.

In the construction industry, only the contract is executed, the bid proposal cannot be entered as evidence contrary to the contract writing unless the con-tract writing is ambiguous and the bid proposal is needed for clarification of the ambiguity.

Front 328

PARTIAL LIEN WAIVER

Back 328

certifies that a portion of the total amount has been paid and so that money cannot be used as a lien against the property

Front 329

partial release of lien

Back 329

lien rights for certain portion of the work that have been paid are officially released

Front 330

PARTIAL WAIVER OF LIEN

Back 330

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.

Front 331

Partnering

Back 331

voluntary approach to establishing teamwork among contracting parties

- disputes resolved at the lowest managerial level

Front 332

partnership

Back 332

association of two or more persons to carry on a business

- pays no income tax

- cannot own real property in its own name

- each partner assumes unlimited personal liabilty to third parties

Front 333

PATENT/LATENT TEST

Back 333

determines whether the danger which caused the damage was latent (hidden) and, there-fore, beyond the control of the observer and contractor is liable or patent (readily seen upon a reasonable inspection) and, therefore, within the control of the observer-owner is liable.

Application of this test to the construction industry is enforced when the building is turned over to the owner.

If the danger can be observed at the time of the acceptance of the building by the owner, but the owner does not make the contractor aware of the deficiency, then the owner will be held responsible for any future damage.

However, if the danger is latent and not observable by the owner, then the contractor will be held responsible for any future damage emanating out of this danger.

Front 334

PAYMENT BOND

Back 334

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

Guarantees that the contractor will pay all bills and obligation for labor and materials incurred under contract (usually at least 50% of contract amount).

Deposit or guaranty (usually 20 percent of the bid amount) submitted by a successful bidder as a surety that (upon contract completion) all sums owed by it to its employees, suppliers, subcontractors, and others creditors, will be paid on time and in full.

guarantees the contractor will pay for the labor, materials and equipment costs involved in the construction

Front 335

Payroll Cost (DPE)

Back 335

Employee benefits are what kind of cost? This type of cost represents the single largest cost to any billing

Front 336

PENAL AMOUNT

Back 336

limits amount of the guarantee 100% of the contract sum

Front 337

PENALTY BONUS CLAUSE

Back 337

not in gov't projects awards contractor for early completion + penalizes for delayed completion

Front 338

Percentage basis, fixed fee basis, multiplier basis

Back 338

What are the 3 standard basises for establishing fees in a contract?

Front 339

Performance and Design Spec

Back 339

instructed how to do task and how it should perform

Front 340

PERFORMANCE BOND

Back 340

written for 50% of the bid a legal instrument which assures that if the contractor defaults, the surety company will complete performance or pay damages to the extent of the bond. (See BOND)

guarantees the contractor will perform according to the plans and specifications An approved form of security (money) by the contractor guaranteeing to execute the work in accordance with plans and specs.

(bond - an agreement with legal force).

Usually issued for 50% of contract price.protects the owner from defective work by the contractor an assurance of the contractor's intention to complete their work.

if work is defective, surety company will find another contractor or pay owner 100% of the contract bid

Front 341

PERFORMANCE SPECS

Back 341

used when intent is to replicate existing conditions remodeling, restoration, phased construction results or performance of finished product is specifiedcontractor selects materials + installation methods

Front 342

PERMISSIBLE LOSS RATIO

Back 342

max % of premium income that can be expended by an insurance company to pay claims without the loss of profit

Front 343

PLAINTIFF

Back 343

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

Front 344

Planned Unit Development

Back 344

A PUD is a flexible zoning technique that allows developer much more creativity in how land is utilized w/o sacrificing public concerns for compatibility with adjacent uses of land and often with greater protection of environmental features.

Front 345

POLICY RESERVE

Back 345

the amounts that an insurance company allocates for the fullfillment of its policy obligations

- includes all future losses

Front 346

PRACTICE ACT

Back 346

one cannot pratice what is defined as the body of knowledge of landscape architecture without a valid license

Front 347

PRECEDENT

Back 347

an adjudged case or decision of a court of justice considered as furnishing an example or authority for an identical or similar case arising afterward or for a similar question of law.

It means that a principle of law actually presented to a court of authority for consideration and determination has, after due consideration, been declared to serve as a rule for future guidance in the same or analogous cases, but matters which merely lurk in the record and are not directly advanced or expressly decided are not precedent.

Front 348

Pre-Design Services

Back 348

Programming and market studies are usually performed in what phase of the project?

Front 349

Preliminary Lien Notice Claim of Lien

Back 349

Notice to a property owner by subcontractor that states if bills are not paid that legal action will be taken Must be filled within 90 days of labor ending

Front 350

premium

Back 350

payment or consideration for an insurance contract

Front 351

PRIME CONTRACTOR

Back 351

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

Front 352

PRIOR ACTS COVERAGE

Back 352

retroactive coverage for negligent acts occurring prior to a claims made policy period as long as the claim was made during the policy period

Front 353

PRIVITY

Back 353

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. in the 1800’s, many cases were settled when the plaintiff was denied access to the bench due to the no privity rule (no contract existed between the plaintiff and the defendant).

However, in recent decades the no privity rule has given way to the notion of third-party liability. (See THIRD-PARTY LIABILITY)

Front 354

PRODUCT DATA

Back 354

illustrations, standard schedules, performance charts, brochures, diagrams + other info furnished by the contractor usually from catalogs to highlight materials to be used

Front 355

Professional Liability Insurance

Back 355

Claims to protect against injury to persons or damage to property in connection with one's business or premise.

Front 356

Project DescriptionResponsibilitiesScope of WorkFeesLiability Limitations and Insurance RequirementsEffective DateChangesTerminationJudicial JurisdictionArbitrationClarifying Use of DocumentsSignature

Back 356

What are the 12 main components of a contract?

Front 357

PROJECT MANAGEMENT

Back 357

a system of organizing a construction project from conception to the completion of the project.

This system includes management of the preparation of the contract documents, the bid process, and the construction phase.

This term sometimes is interchange-ably used with the term “construction management” (See CONSTRUCTION MANAGEMENT)

Front 358

PROMISSORY

Back 358

equitable doctrine holding the promisor bound to a promise if injustice can be avoided only by enforcement of the promise holding a subcontractor to its bid also called an estoppel

Front 359

PROMISSORY ESTOPPEL

Back 359

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.

Front 360

PROPRIETARY SPECIFICATION

Back 360

calls for an item by brand name and adds the words 'or equal' or 'approved equal'. prepared by the manufacturer of the materials, supplies, + equipment to be used on a project states what is to be provided without any allowance for alternativescan be incorporated in total or adapted + rewritten

Front 361

PROPRIETORSHIP

Back 361

a person who has a legal title or ownership. firms owned by an individual structure is whatever owner wants

Front 362

PROTEST

Back 362

a formal declaration made by a party interested or concerned in some act about to be done, or already per-formed, whereby it expresses its dissent or disapproval or affirms the act against its will.

The object of such a declaration generally is to save some right which would be lost to the party if its implied assent could be made out or to exonerate itself from some responsibility which would attach to it otherwise.

In common jargon, a protest is considered the initial act in establishing a claim to retain a party’s contractual rights.

Front 363

PUNCH LIST

Back 363

items found not to be in conformance to the drawings + specifications. correction of minor deficiencies

Front 364

PUNITIVE DAMAGES

Back 364

awarded by the courts in the amount of three times the actual damage.

Treble damages usually apply in antitrust actions.

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PUNITIVE DAMAGES

Back 365

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

damages separately awarded in addition to compensatory - b/c of finding of malicious or wonton misconduct on the part of the defendant, serving as deterant to others

Front 366

PURE PREMIUM

Back 366

frequency x severity claims per unit exposure

Front 367

QUALITY ASSURANCE

Back 367

policy in regard to assuring that quality will be achieved on a program or project.

Front 368

QUALITY ASSURANCE PLAN

Back 368

a plan to implement the policies stated in the quality assurance statement of an organization.

Front 369

Quality Circle

Back 369

Composed of project principles who meet of a frequent basis to identify, discuss and solve productivity and quality problems

Front 370

QUALITY CONTROL

Back 370

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

Front 371

QUALITY CONTROL GROUP

Back 371

the group of personnel assigned to implement quality control during the construction phase.

Front 372

QUALITY CONTROL PLAN

Back 372

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

Front 373

QUASI-JUDICIAL

Back 373

a term applied to the action, discretion, etc., of public administrative officers who are required to investigate facts, to draw conclusions from them as a basis for their official action, and to exercise discretion of a judicial nature.

The actions of the O.S.H.A. administrators are quasi-judicial in character. When a design professional acts as an arbitrator in resolving disputes between the owner and the contractor, he or she is considered to be acting in a quasi- judicial role. It is in this role that the design professional is granted immunity. (See IMMUNITY)

Front 374

QUIT CLAIM

Back 374

a written agreement of the seller not to contest ownership of a piece of real property

Front 375

quitclaim deed

Back 375

a deed in which the original owner will not contest the ownership of the property

Front 376

reasonable care and skill or a general sense of responsibility

Back 376

considerations that the contractor should always have foremost in their mind when committing to work.

The terminology involved with the traditional negligence and malpractice cases that relates to standards of practice

Front 377

REASONS FOR A THIRD PARTY CLAIM

Back 377

dumping soil on wetlands w/out a gov't permit destroying private property such as a fence, structure or trees on an adjacent property

Front 378

RECIPROCITY

Back 378

state's recognition of the validity of one's license in another state

Front 379

RECOVERY

Back 379

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.

Front 380

REDRESS

Back 380

receiving satisfaction for any injury sustained.

Front 381

REFERENCE SPECIFICATIONS

Back 381

make items, establish tests, or formal procedures a part of the contract documents be reference. standardized specs by national testing laboritories:

UBC - uniform building code

ASTM - american society for testing materials

ANSI - american national standards institute

CSI - construction specification institute

AIA,

AGS,

etc

Front 382

REGULATION

Back 382

a rule or order prescribed for management or government; a regulating principle; a precept; rules of order prescribed by a superior or competent authority relating tothe actions of those under its control.

An example is the body of federal regulations instituted by O.S.H.A.

These regulations must be adhered to by those in the work-place, including the construction project site, or citations will be issued for their violation upon detection.

Front 383

REINSURANCE AGREEMENTS

Back 383

transferring insurance from one to another

- each transaction treated separately, both insurer + reinsurer can accept or reject

- reinsurer accepts specific types of risk

Front 384

REJECT ANY AND ALL BIDS

Back 384

a provision of most invitations to bid for both public and private works. In addition, most jurisdictions grant, by statute or ordinance, that same apparent right to all of its political subdivisions.

It is the right of the owner or contracting agency to reject any and all bids, generally for some reason. However, some jurisdictions grant outright authority toreject all bids without cause or for any cause it might deem satisfactory.

In some jurisdictions and with some government agencies, it must be shown that the rejection was not arbitrary and capricious. In other jurisdictions, the motive for rejection of all bids is immaterial. Yet, in other jurisdictions, there is the requirement that rejection of bids be predicated on good faith and be exercised promptly.

Note that the above deals with the affirmative act of rejection of all bids and not with the disqualification of bidders due to material variance in their submission or with the rejection of one bid.

In the rejection of a single bid (the lowest responsible and responsive bidder), other factors come into play.

In some jurisdictions, the rejected bidder was awarded costs of its bidding process, while in others, though the cost of bid preparation was denied, the contractor was awarded damages to recover reasonable profits, start-up costs, and postbid costs.

Front 385

RELEASE OF LIEN

Back 385

the relinquishment, concession, or giving up of the right to a lien by the party in which it exists or to which it accrues.

In the construction industry, it is a document releasing the signer’s (contractor and/or subcontractor) right to a mechanics’ lien on the project.

Front 386

Remand

Back 386

The decision of an appellate court to send a case back to a trial court with instructions on how to correctly solve the case

- often used with the term "reversed"

- a legal term reflecting the redirection of a court case to a lower court for ruling.

Front 387

REPRESENTATIVE

Back 387

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

Front 388

Request for Information

Back 388

An RFI is an interrogatory method that can be established by the project manager, a client or a consultant as a means of formally requesting information during a consultant selection process, during a project or during construction.

Front 389

Request for Proposals

Back 389

A RFP requests that consultants submit a “proposal” about how they would approach the work.

In evaluating an RFP, one of the evaluation criteria should be an evaluation of the proposal and how creative it is and how closely it meets the agency’s objectives.

Front 390

Request for Qualifications

Back 390

An RFQ generally requests only the qualifications of the personnel who would be assigned to perform the work, and does not ask for the consultant’s proposal or approach, nor does it ask about the consultant’s price for performing the work.

Front 391

RESERVE PREMIUM

Back 391

additional premium collected to offset unexpected claims

- is returnable to policy holder along with interest at a specified rate

Front 392

RESPONSIVE BIDDER

Back 392

one who has the capability, in all respects, to fully perform the contract requirements and the integrity and reliability to assure good-faith performance. one who has submitted a bid under a competitive sealed bid which conformed in all respects to the invitation for bids so that all bidders may stand on equal footing with respect to method and timeliness of sub-mission and as to the substance of any resulting contract.

One is responsive if one replies to the specific questions set forth. In the text of public works contracts, one must respond clearly and without qualification to all inquiries addressed to the invitation to bid.

Front 393

restrictive covenant

Back 393

The act of prohibiting dramatic changes to a piece of property. (often used by homeowners' associations)

Front 394

RETAINAGE

Back 394

an amount of $ estimated by a fixed % agreed to in the contract withheld by the owner to assure performance of the prime contractor a pre arranged contractual item that deals with contingent milestones or specific dates of deliveryusually 5-10%

Released at final acceptancethe prime then withholds from the subs etc

Front 395

Right of Way

Back 395

Origin carriageway, applies to the form of ownership of a street or road.

Specifically, it is the legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another.

Front 396

RISK RETENTION ACT

Back 396

enables groups to purchase or provide liability insurance for individuals or groups with similar liability exposures

Front 397

RISK-SHIFTING TECHNIQUES

Back 397

typical risk-shifting clauses include indemnification clauses, surety requirements (bid bond, performance bond, and payment bond), “no damage for delay” clauses, etc.

Another similar clause is the “condition precedent to payment” clause, which requires the prime contractor to pay his subcontractor only after he has been paid by the owner.

Front 398

Schedule Controls

Back 398

Types of clauses included in contracts that encourage the contractor to complete the project in a timely manner and according to plans

Front 399

SCOPE OF WORK

Back 399

outlines services provided by LA:

BASIC: project programming, SD-CD documentation, CA, includes deliverables of each phase

ADDITIONAL: post construction evaluation, display model marketing, market brochure, maintenance programming includes milestone dates for each phase

Front 400

SECURITY

Back 400

protection; assurance; indemnification; terms usually applied to an obligation, pledge, deposit, etc., given by a party to a contract to the other party.

The name some-times also is given to a party which becomes surety or guarantor for another.

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

Front 401

Setback

Back 401

In land use, a setback is the distance which a building or other structure is set back from any place which is deemed to need protection.

Front 402

SHOP DRAWINGS

Back 402

drawings, diagrams, schedules + other data, specifically prepared for work by the contractor or subcontractor, etc.

Address the need for more detail from a fabricator or supplier than the specs or drawings can provide.

Front 403

Shortlist

Back 403

A method of prequalifying a small number of firms with proven capabilities to execute a project.

Front 404

Sight Line Triangle

Back 404

A setback that restricts anyone from putting view obstructions at the height of drivers sight.

Front 405

silent partner

Back 405

remains unknown to the public

Front 406

Slander

Back 406

defamatory, untrue words said aloud, and tending to prejudice another person in business, means of livelihood, or reputation.

Front 407

SOVEREIGN IMMUNITY

Back 407

government entities cannot be sued without their consent. a concept adopted by the United States from the courts in England, precluding any legal action against public bodies for either breach of contract or for tort claims.

This doctrine is applicable at the federal, state, and local levels of government. However, over the last century, this doctrine has waned, especially in the area of tort claims. In most of the 50 states, sovereign immunity is no longer in effect, especially in the area of tort claims.

At the federal level, Congress consented to being sued for breach of contract in 1887 by the Tucker Act, and in the tort field, Congress passed the Federal Tort Claims Act in 1946, permitting lawsuits against the United States for certain types of legal wrongs.

Front 408

special waranty

Back 408

indicates that the prior owner will accept responsibility from the point in which he or she obtained the property moving forward.

similar to a general warranty, but deals with a more detailed/limited time frame, precluding the owner from liability for anything incurred before their actual ownership

Front 409

SPECIFICATION

Back 409

type/quality of materials, methods of installation, testing and inspection.

Set out the technical requirements of the work.

They describe the project and requirements for materials and workmanship, and add clarity to the drawings

Front 410

STANDARD

Back 410

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

Front 411

STANDARD OF PERFORMANCE – (STANDARD OF CARE)

Back 411

that standard which a professional (doctor, lawyer, Landscape Architect, engineer, etc.) must exercise to the degree of care and expertise which a reasonably competent professional of the same discipline would exercise under the circumstances.

The standard of performance is established by the professionals working in the same geographical area.

Front 412

Standards of Practice

Back 412

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

Front 413

STATEMENT OF PROBABLE CONSTRUCTION COSTS

Back 413

term introduced by the A.I.A. in1963 to help minimize the responsibility of guaranteeing the cost estimate. Prior to that time, “cost estimate” was used.

Front 414

STATUTE

Back 414

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 beadhered to by all parties within that jurisdiction.

Front 415

STATUTE OF FRAUDS

Back 415

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.

Front 416

Statute of limitations

Back 416

The accepted period of time for a claimant to begin legal proceedings regarding a contractual issue.

normally starts from date of injury.

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 agrant but are a limitation of legislative power.

Front 417

STATUTE OF REPOSE

Back 417

legal time limitation of the right to bring an action on a specified cause of action after which no suit can be maintained

A set of sets that defines the maximum time for filing claims against professionalssuit must be brought in period starting from event in statute (date of substantial completion)

Front 418

Statutory Law

Back 418

Term used to define written laws, usually enacted by a legislative body.

Statutory laws vary from regulatory or administrative laws that are passed by executive agencies, and common law, or the law created by prior court decisions.

Front 419

stop notice

Back 419

permits works or material suppliers to notify owners that a general contractor has failed to pay them

Front 420

Strict interpretation

Back 420

court tries to interpret the provision, as much as it can within reason, against the party that seeks protection under the provision

Front 421

STRICT LIABILITY

Back 421

liability without faultneither negligence nor care neither good nor bad faith,knowledge nor ignorance will save the defendant

Front 422

SUBCONTRACTOR

Back 422

a party which takes over portions of a contract from the principal (prime) contractor or another subcontractor;

a party which has entered into a contract, express or implied, for the performance of an act with the party which has already contracted for its performance.

Most subcontractor contracts hold the subcontractor to the same terms and conditions which are established in the prime contractor’s contract with the other parties.

Generally, subcontractors specialize in specific building trade, and, as specialists, most subcontractors are licensed by the state in which they operate.

The subcontractor’s relationship to the prime contractor is that of an independent contractor.

Front 423

Subdivision Regulations

Back 423

Used to control the intensity of a proposed development by limiting the site's size, location, proximity to other uses, density and coverage.

Front 424

SUBMITTALS

Back 424

items to be reviewed during CA:bonds, subcontractors materials + equipmentproduct data + samples, shop dwgs, material test results, warranties + equipment manuals, field measurement data, maintenance manuals. shop drawings, product data, and samples from the contractor to review for expressed design concept

Front 425

subpoena

Back 425

court order for a witness to appear before the court

Front 426

SUBROGATION

Back 426

right to "stand in the shoes" of another and to claim whatever rights the original person had. insurance companies can seek recovery from the third party at fault

Front 427

SUBSTANTIAL COMPLETION

Back 427

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.

when all construction is complete + ready for inspection work may be occupied as intended

Front 428

SUBSTANTIAL CONFORMITY

Back 428

where a party has complied with the requirements of a writing to the degree that it is essentially the same as that which is required.

Substantial conformity might be considered the opposite of material variance. (See MATERIAL VARIANCE)

Front 429

SUBSTANTIAL PERFORMANCE

Back 429

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

Front 430

Substitution

Back 430

Replacement item offered as an alternative to, and represented as being equivalent to, an originally specified item. the use of materials that are not specified as long as they are approved

Front 431

SUMMARY JUDGEMENT

Back 431

decision of a court w/out hearing evidence usually b/c the pleadings show no issue of fact

Front 432

SUNSET LAW

Back 432

periodic reviews to justify and validate licensure status that it is necessary to protect the public health, safety and well fare

Front 433

Superintendent

Back 433

An administrative level person who supervises the work of the on-site contractors

Front 434

SUPPLEMENTAL CONDITIONS

Back 434

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

Front 435

Supplementary conditions

Back 435

more specific for the job being constructed

serve the function of amending and augmenting the general conditions and thus tend to be more specific

Front 436

SURETY

Back 436

the bonding company

party that guarantees the performance of the principalbound to the principal's obligations if they fail to perform a party which undertakes to pay money in the event that its principal fails. (SeeBOND)

recommended to use corporate rather than individual, and in the state of the project

Front 437

SURETY BOND

Back 437

obligation by the (surety) to guarantee performance by another (principal) of a specified obligation for the benefit of a third party (obligee).

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

a means to protect the owner against incompetent, irresponsible, and financially troubled contractors assures owner that the surety company will guarantee the faithful performance of the contractor

Front 438

SUSPENSION OF WORK CLAUSE

Back 438

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 contractor, or if an equitable adjustment is provided for or excluded under any other provision of the contract.

Front 439

SWEAT EQUITY

Back 439

a term used to mean “mutual help” in certain federal agencies’ contracts.

The Department of Health and Urban Development (HUD) requires that the tenants of housing built by federal assistance programs, such as housing for the Indians on Indian reservations, contribute to the construction of the unit by giving of their manual labor.

This labor is known as mutual help or sweat equity.

Front 440

TAFT-HARTLEY ACT LABOR-MANAGEMENT RELATIONS ACT

Back 440

equalizes the legal responsibilities of labor organizations and employers

Front 441

technical specifications

Back 441

intended to provide the quality and performance capabilities of a material and any tests or inspections of the material.

Front 442

TERMINATION

Back 442

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

Front 443

TERMINATION FOR DEFAULT

Back 443

construction contracts generally contain specific provisions itemizing events of default.

However, even if not specifically itemized, delay in performance resulting in a failure to complete the contract in a timely fashion is universally recognized as a breach of contract.

Whether the breach for untimely performance justifies an owner in terminating the contract may depend upon whether “time is of the essence” for performance of the contract.

In federal construction contracts, time is of the essence, and if the contractor fails to perform by the date specified, the government may terminate the contract for default.

In private contracts, where time is of the essence, the owner has a common-law right to terminate if the contractor fails to perform within the time specified, unless the time for performance has been waived or extended by the acts of the party.

Front 444

THE AGREEMENT

Back 444

identifies parties, statement of work to be performed, statement of the contract sum, time of performance, signatures including:

1. construction dwgs

2. specifications

3. conditions

4. forms

5. addenda

6. modifications

7. bidding requirements

Front 445

The general specifications

Back 445

This type of specification is designed to instruct a contractor on what is required during the project including where to deliver and store materials

Front 446

the submittal procedure

Back 446

- GC reviews contract docs and prepares submittals list

- Supplier, GC, Subs prepares submittals

- GC reviews submittals and submits to owners rep.

- GC notified of acceptable submittal

- GC notifies appropriate parties of submittal approval

Front 447

The technical specifications

Back 447

This type of specification provides details on the different items that are going to be constructed and include Performance specifications

Front 448

THIRD PARTY

Back 448

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

Front 449

THIRD PARTY LIABILITY

Back 449

a party held liable to a third party by its negligent activities.

the third party may recover damages where the circumstances reveal the injurty was foreseeable

Front 450

THIRD-PARTY BENEFICIARY

Back 450

in order for a party not privy to a contract to maintain an action thereon as a third-party beneficiary, it must appear that the contract was made and intended for its benefit.

The benefit must be one that is not merely incidental but must be immediate in sucha sense as to indicate the assumption of a duty to make reparation if the benefit is lost.

Front 451

THIRD-PARTY LIABILITY

Back 451

a condition whereby a party to a contract may be held liable to a third party related to the contract by its negligent or fraudulent activity in performance of contract.

A third party may recover damages where the circumstances are such that the transaction, within the contract requirements, was intended to affect the plaintiff (third party) , and injury to the plaintiff was foreseeable.

Front 452

time and materials payment agreement

Back 452

Allows the design team to get paid for all labor costs and other costs to complete the work such as printing charges and postage.

Front 453

Time is of the Essence

Back 453

A provision in a construction contract by the owner that expresses that punctual completion is a vital part of the contract performance and delays are subject to damages to the injured party.

Most public projects employ this provision.

Front 454

TITLE ACT

Back 454

one may not use the title 'landscape architect' without a valid license

Front 455

Tort

Back 455

A civil or private wrong or injury involving the violation of an individual's private personal rights, causing injury to a person or to property.

Often results in a lawsuit. (not criminal)

Examples: negligence, liability, public safety and welfare

Front 456

TORT FEASOR

Back 456

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

Front 457

Tort Law

Back 457

The area of law that covers the majority of all civil lawsuits.

Essentially, every claim that arises in civil court with the exception of contractual disputes falls under tort law.

The concept of tort law is to redress a wrong done to a person, usually by awarding them monetary damages as compensation. serves to protect a person's interest in his or her bodily security, tangible property, financial resources, or reputation.

Interference with any one of these interests is redressable by an action for compensation, usually in the form of unliquidated damages.

Front 458

Transfer of Development Rights

Back 458

A program or an agreement for relocation of residential density, possibly including the right to transfer development offsite to another property.

Front 459

TREBLE DAMAGES

Back 459

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.

Front 460

trust deed

Back 460

transfers the rights of a property to a trust

Front 461

TURNKEY CONTRACT

Back 461

a method of organizing a building project in which a contractor and a designer agree to provide a finished building at an agreed-upon price.

Upon completion of the project, all the owner has to do is “turn the key” in the door.

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

Front 462

unbalanced bid

Back 462

unit prices of the various bid items are altered so that they do not reflect the true cost of those items

Front 463

UNCERTAINTY

Back 463

a state or quality of being unknown or vague; such vagueness, obscurity, or confusion in any writ-ten instrument, e.g., a contract, as to render it unintelligible to those who are called upon to execute or interpret it so that no definite meaning can be extracted from it.

Front 464

UNCONSTITUTIONAL

Back 464

that which is contrary to the constitution.

The term can be used in two different senses. The first is that legislation conflicts with some recognized general principle or conflicts with a generally accepted policy. The second is that the legislation conflicts with some provision of the written constitution which it is beyond the power of the legislature to change.

Front 465

UNDERWRITING

Back 465

process by which an insurance company determines whether or not and on what basis it will accept an application for insurance

Front 466

UNIFIED BID

Back 466

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

Front 467

UNIFORM COMMERCIAL CODE (UCC)

Back 467

a body of laws which governs the sale of goods in almost every state of the United States.

Application of the Uniform Commercial Code in the construction industry is rare except in the area of shipping, handling, and purchasing of materials for the project.

model statute dealing with commercial transactions that does not normally apply to professional services

Front 468

unilateral contract

Back 468

one sided contract in that only one of the contracting parties makes a promise, the other party exchanges something other than a promise

- most commonly some stated performance

Front 469

Unit Price Bid

Back 469

Type of bid based on predetermined major items of work, the items quantities, and the contractor's price per unit

Front 470

Units of work completed, incremental milestones, opinion, and cost ratio

Back 470

What are four main means of monitoring the completion progress of a project?

Front 471

UNJUST ENRICHMENT

Back 471

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.

Front 472

unreality of consent

Back 472

- a formal contract is made and there was no meeting of the minds

Front 473

Utilization Rate

Back 473

Measures the efficiency of an employee

Front 474

value engineering

Back 474

specific procedure

- critically analyze various aspects of contract documents in relations to owners objectives

- determine if alternate methods or materials might be more appropriate

Front 475

Variance Process

Back 475

Used to formally acknowledge and address lot sizes or shape variation in relation to other similarly designated lots.

Front 476

WAIVER

Back 476

the intentional or voluntary relinquishment of a known right.

Waiver is essentially unilateral, resulting as legal consequence from some act or conduct of parties against which it operates, and no act of the party in whose favor it is made is necessary to complete it.

In the construction industry, an owner may waiver his or her right to a signed change order for work incorporated into the project when the following conditions exist: the owner is aware of the change but does not object; the item is of such magnitude that the change could not be made without the owner’s knowledge; the changes are necessary but were not foreseen by the design professional; and some subsequent oral agreement (the Landscape Architect’s orally approved substitution and/or change with which the owner agreed) waives the requirement of a signature.

Front 477

WAIVER LIEN

Back 477

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.

Front 478

Waiver of Subrogation

Back 478

Reliquishment by an insured of the right of its insurance carrier to collect damages paid on behalf of the policy holder.

A right of subrogation allows an insurance carrier to stand in the place of its insured after satisfying a claim paid to or on behalf of the insured in accordance with the company’s duties under the insurance policy.

The insurance company may then pursue whatever claim its insured could assert against other parties for that same loss, even when the loss involves resolution of claims brought against the insured.

Because they cannot recover the money paid to or on behalf of their insureds when such waivers apply, insurance companies frequently charge an extra premium for an endorsement covering the insured for claims barred by such contractual provisions.

Parties to the contract avoid suing each other, and the insurance company bears the loss.

Front 479

WARRANTY

Back 479

a promise that a proposition of fact is true. an aspect of a contract is in fact as it was promised to be

Front 480

WARRANTY OF SPECIFICATIONS

Back 480

the owner’s implied warranty, when providing the plans and specifications, that the plans and specifications are possible to perform, are adequate for their intended purpose, and are free from defect.

Moreover, this warranty is not overcome by the usual exculpatory clauses requiring bidders to visit the site, check the plans, or generally inform themselves of the requirements of the work.

The implied warranty of specification suitability has been recognized in every American jurisdiction and applied with equal force to public and private contracts.

As with any contractual obligation, the warranty can be overcome by explicit contractual provisions that impose absolute liability for performance on the con-tract.

Front 481

Work Plan

Back 481

A workplace strategy aimed at helping to solve problems and boost employee drive and focus

Front 482

WORKERS' COMPENSATION

Back 482

insurance system where liability is imposed by statute on an employer who must provide benefits to employees or their dependents as a result of job-related injuries or death

Front 483

writ of execution

Back 483

A court order intended to satisfy a judgement in a civil case

Front 484

ZONING

Back 484

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.

Front 485

Zoning Ordinances

Back 485

Written regulations and laws that define how property in specific geographic zones can be used.
Specify whether zones can be used for residential or commercial purposes, and may also regulate lot size, placement, bulk (or density) and the height of structures.