Section 1 Vocabulary (Definition - Term) Flashcards
(29 cards)
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.
ARBITRATION
One who resolves disputes between two par-ties. 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.
ARBITRATOR
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 of an 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.
LANDSCAPE ARCHITECT
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.
ASSIGNMENT
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.
ATTACHMENT
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.
BETTERMENT
An offer to perform a contract for work and labor or for supplying materials at a specified price. In the construction industry, a bid is considered an offer by the contractor to the owner. A bid, as an offer, becomes a contract once the owner accepts the bidder’s offer with all other contractual requirements in order.
BID
A clearing house for subcontractors to submit their bids for a particular project and for prime con-tractors to receive bids from the various subcontractors. In California, a bid depository was found in violation of antitrust laws based on its rules for membership imposing fine, suspension, or expulsion to members not abiding by the rules.
BID DEPOSITORY
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.
BID REJECTION
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.
ACCELERATION COST
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.
ACCEPTANCE
Action by a party to a contract that causes the other party of the contract to not complete the work of the project on time or in the manner established by the contract writing. Positive action must be per-formed on the part of the interfering party as opposed to passive negligence, which is inactive, permissive, or sub-missive.
ACTIVE INTERFERENCE
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.
ACTUAL DAMAGES - (ACTUAL LOSS)
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.
ADDENDA
Parties to a contract are in an adversary or arms-length relationship to one another as a result of the commitment they have made to each other in the con-tract terms and conditions. This relationship is recognized by the courts and binds the two parties together in that relationship. In layman’s language, it can be considered a relationship of mistrust.
ADVERSARY
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 Landscape Architect is the agent to the owner in dealing with the third-party con-tractor. The Landscape Architect, in a typical contract, is the 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.
AGENT
A sum of money set aside by the owner to remove a particular portion of work from competitive bid-ding. This is typical of government-subsidized institutions with work that must be competitively bid and with projects in which certain portions of the work are proprietary and, therefore, must be removed from competitive bidding.
ALLOWANCE
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.
ALTERNATE
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.
AMBIGUITY
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.
ANTICIPATORY BREACH – (ANTICIPATORY REPUDIATION)
Federal and state statutes to protect trade and commerce from unlawful restraints and monopolies. In the construction industry, bid rigging is considered a violation of antitrust laws. Those found guilty of bid rigging are assessed treble damages
ANTITRUST LAWS
An agency relationship created by an act of the parties and deduced from proof of other facts
APPARENT AGENCY
An independent administration quasi-judicial board to decide all public con-tract 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.
BOARD OF CONTRACT APPEALS
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.
BOILER PLATE
