Terms Flashcards

Question

BOND

Answer 1

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 the work. 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.

Answer 2

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)

Answer 3

there are several model codes, including Southern Standard Building Code (SSDSC), Uniform Building Code (UBC), Building Officials and Code Administrators (BOCA), the National Building Code (NBC), and the International Building Code (IBC) one of which is enacted in most jurisdictions. A code is not applicable in a certain jurisdiction or locality until it is enacted (legislated) into local law.

Answer 4

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

Answer 5

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

Answer 6

a caution; literally, “let him beware.”

Answer 7

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.

Answer 8

a document issued by the building inspector certifying that the structure con-forms to all relevant code sections and is, therefore, safe for use. An owner must obtain 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.

Answer 9

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.

Answer 10

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)

Answer 11

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.

Answer 12

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.

Answer 13

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.)

Answer 14

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. (See IMMUNITY)

Answer 15

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.

Answer 16

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 construc- tion of the project. However, a private owner is not legally bound to the competitive bidding process.

Answer 17

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)

Answer 18

the written instrument agreed upon by the people of the United States, or of a particular state, as the absolute rule of action and decisions for 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.

Answer 19

a process of profession-al 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 and the contractors without concern regarding conflict of interest on his part.

Answer 20

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)

Answer 21

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 work and, as a result, renders “continuous treatment” to the work, the contractor may extend the time for commencement of the statute.

Answer 22

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 of both 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)

Answer 23

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)

Answer 24

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.

Answer 25

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.

Answer 26

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.

Answer 27

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.

Answer 28

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.

Answer 29

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

Answer 30

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.

Answer 31

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.

Answer 32

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.

Answer 33

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

Answer 34

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

Answer 35

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.

Answer 36

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.

Answer 37

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

Answer 38

typically provides that in the event that the physical conditions at the site of the work vary materially from those represented or reason-able anticipated and in a manner which increases the time or cost of performance, the contractor is entitled to additional compensation or an extension of time.

Answer 39

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.

Answer 40

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.

Answer 41

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.

Answer 42

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.

Answer 43

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)

Answer 44

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.

Answer 45

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)

Answer 46

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.

Answer 47

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.

Answer 48

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 will refuse to exclude other remedies unless such a result is required by a consideration of the facts of the particular agreement.

Answer 49

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.

Answer 50

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

Answer 51

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

Answer 52

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.

Answer 53

a person holding the position of a trustee or character analogous to that of a trustee in respect to the trust and confidence involved and the scrupulous good faith and candor which are required. In the construction industry, the Landscape Architect and the owner are in a fiduciary relation-ship in respect to the contractor.

Answer 54

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

Answer 55

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)

Answer 56

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 is final. .

Answer 57

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 and subcontractors 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.

Answer 58

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.

Answer 59

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.

Answer 60

an intentional perversion of truth for the purpose of inducing another, in reliance upon it, to part with some valuable thing or to surrender a legal right; a false representation of a matter of fact, whether by words, by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he or she shall act upon it to his or her legal injury.

Answer 61

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.

Answer 62

the builder of the portion of the building which is considered the general portion or the Landscape Architectural portion. This terms sometimes is erroneously interchanged with the term “prime contractor.” (See PRIME CONTRACTOR)

Answer 63

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.

Answer 64

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

Answer 65

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

Answer 66

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

Answer 67

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

Answer 68

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.

Answer 69

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

Answer 70

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.

Answer 71

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)

Answer 72

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)

Answer 73

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.

Answer 74

the process by which one party seeks to protect itself from any claims by a plaintiff who has been injured or who has suffered loss. One method 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 or organization agrees to secure another against loss or damage from specified liability.

Answer 75

a prohibitive writ issued by a court of equity to a party defendant, forbidding the latter to do some act or to permit its servants or agent to do some act which it is threatening or attempting to commit, or restraining it in the continuance thereof, such as being unjust, inequitable, or injurious to the plaintiff. 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.

Answer 76

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

Terms Flashcards

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