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
ACCELERATION COST granted.

act of a person to whom a thing is offered by another whereby

he receives the thing with the intention of retaining it, such
ACCEPTANCE intention being evidenced by a sufficient act. (See CONTRACT)

the execution of agreement to cancel or legal obligation in

return for something less than or different from the legal duty
ACCORD + SATISFACTION owed

an accident or event that is the result of natural causes without

human intervention, that could not have been prevented by
ACT OF GOD reasonable foresight

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

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,
ACTIVE INTERFERENCE or submissive.

consists of a direct order by the owner to hire additional works,

actual acceleration work overtime, or work extra shifts

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
ACTUAL DAMAGES – (ACTUAL at a future time. (Payments made for the actual losses that
LOSS/compensatory damages) have occurred)

one who is trained in the mathematics and statistics of

ACTUARY insurance and calculates premiums, reserves, and other values
ADDENDA 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.
addendum change that is made prior to a bid package being sent out

a party added to the coverage of an insurance policy with the

right of recovery but without the obligation to pay the
ADDITIONAL NAMED INSURED premium or meet the terms of the policy

Request included in the bidding documents that asks the

contractor to provide an additional cost to add or deducts
Add–Alternate or Deduct–Alternate components

ADJUSTER one who settles insurance claims

an insurance company licensed and authorized to do business

in a specific state and subject to regulation by the state
ADMITTED CARRIER insurance commission
a private reprimand issued by a jursidictional registration board
ADMONITION for violation of professsional conduct rules same as 'censure'
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
ADVERSARY can be considered a relationship of mistrust.
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
Advertisement For Bid for submission of bids, and awarding of the contract.
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
AFFIDAVIT officer (sworn statement of fact)
affirmation same as an oath without the spiritual implications
relationship where agent has authority to represent or act for
AGENCY another person, called a principal
AGENT A person authorized by another to act for him or her; one who
is employed to represent another in business and legal dealings
with third persons. In a typical agency 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.
the total amount payable under a policy regardless of the
AGGREGATE LIMIT number of claims – usually annual
Universally accepted document in the contraction industry that
AIA Document A201 – General outlines the legal definitions of the elements in the
Conditions of the Contract for construction process and the items that will be provided by the
Construction contractor
ALL RISK includes everything but specifically excluded risks
a statement in a claim or pleading asserting something
ALLEGATION expected to be substantiated or to be proven in court
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
ALLOWANCE from competitive bidding.
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

ALTERNATE/ Alternatives
ALTERNATIVE DISPUTE
RESOLUTION (ADR)
AMBIGUITY
package for pricing for a type of variance from the base bid)
(See OPTION)
settling dispute without resorting to litigation (arbitration,
mediation, out–of–court, etc)
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)
ASTM standards are widely used to define attributes for
American Society for Testing and construction materials and are the standards primarily used in
Materials specs.
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,
ANTICIPATORY BREACH – the owner will be held to have wrongfully defaulted the
(ANTICIPATORY REPUDIATION) contractor.
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
ANTITRUST LAWS treble damages. (See BID RIGGING)
state laws that invalidate contract clauses related to a party
ANTI–INDEMNIFICATION STATUTES being indemnified or held harmless for damages
an agency relationship created by an act of the parties and
APPARENT AGENCY deduced from proof of other facts. (See AGENCY)
approved equal the more acceptable 'equal' specification
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
ARBITRATION resolution is binding)
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
ARBITRATOR is not final and binding.
ASSIGNMENT a legal action which allows a person who is not party to a
contract to obtain the contract rights of a party who is. A
contractor, for example, may assign the rights contained in its
contract with the owner to a subcontractor. 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.
an agreement where a party becomes responsible for the risk
ASSUMPTION OF RISK involved
ASSURED one who has been insured by an insurance company
contractor required (in most construction contracts) to submit
AS–BUILT DRAWINGS a revised set of drawings noting any changes
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 (See LIEN)
occurs when a child wanders on to a construction site due to
attractive nuisance curiosity and the owner may be liable
method of identifying and verifying the firm's statement of
assets, liabilities, and capital, and the firm's financial
AUDIT transactions during a fiscal period
AVERAGE COLLECTION PERIOD accounts receivable divided by an average day's billings
an arbitrator's decision, as distinguished from a decision, order
AWARD or verdict in a court action
$ value of anticipated revenues from projects contracted but as
BACK LOG yet unearned
each item includes cost of materials + labor plus profit

anticipated costs for the various bid items are accurately

BALANCED BID reflected in the unit prices that are submitted
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,
BETTERMENT such as the widening of a street, etc.
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
BID contractual requirements in order. (See CONTRACT)
Bid Bond 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.

bid bond as liquidated damages
Typically 5–10%
owner will retain full amount of the bid bond when low bidder
does not sign the contract and provide the required additional
bonds
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,
BID DEPOSITORY suspension, or expulsion to members not abiding by the rules.
form prescribed by the bidding requirements to be completed,
BID FORM signed and submitted as the bidder's bid
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
BID REJECTION defamation of character on the part of the bidder.
– consists of an agreement created by mutual promises made
bilateral contract by contracting parties
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
Bill of Quantities claims
This type of cost is typically the second largest cost item and
Billables does not add to the cost of running a business
a temporary insurance agreement that obligates the several
parties of the contract if the loss insured against occurs before
BINDER the policy is written

BOARD OF CONTRACT APPEALS
BOILER PLATE
BOND
BONDING PRINCIPAL
BREACH OF DUTY or NEGLIGENCE
BREACH OF INSURANCE CONTRACT
BRIEF
broad form indemnification
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.
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.
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.
the party who has the primary obligation to perform uner the
bond contractor
failure to perform an obligation created by law or by contract
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
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
owner is held harmless against all losses caused by or
 contributed by the owner, architect or othersc
representative of the buyer of liability + other insurance who
deals with agents in arranging coverage required by the
BROKER customer
Brokerage all the work is subcontracted out
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
BUILDER CONTRACTOR)
form of property insurance that covers damage to property
BUILDERS' RISK INSURANCE under construction
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)
BUILDING CODE into local law.
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
BURDEN OF PROOF claim necessary in order to prevail in a claim
calender days every day that takes place
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

CAPACITY premiums a company can book
expenditure made for fixed (long term) assets such as land,
CAPITAL EXPENDITURE buildings, furnishings, and equipment
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
Capital Improvement Plan strategic plans and the entity's annual budget.
an insurance company formed by one or more entities to insure
CAPTIVE specific risks
 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
Cardinal changes perform
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.

CASE LAW Laws established by the outcome of former cases.

CASE OF ACTION facts sufficient to justify a court in rendering a judgement
company claims adjustor's estimate of the potential liability of
CASE RESERVES a claim subject to coverage by the policy
CAVEAT a caution; literally, “let him beware.”
caveat warning – buyer be aware
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
CERTIFICATE signed document establishing that a fact is true.
means by which a contractor can demonstrate to the owner
certificate of insurance that specific forms of insurance have been obtained
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.

CERTIFICATE OF OCCUPANCY Same as certificate of substantial completion

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
CERTIFICATE OF PAYMENT owner for payment to the contractor.
CERTIFICATE OF SUBSTANTIAL the document issued by the Landscape Architect when the
COMPLETION 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)
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
CHANGE contractor’s lack of agreement.
requires additional fees from the architect to prepare
CHANGE IN SERVICES additional drawings
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
CHANGE ORDER contract sum or imply an extension of the contract
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

CLAIM usually found in contract or by operation of law
a persons's claim to a property in lieu of absent payment or
claim of lien debt
permits the contractor to present disputes to the owner
without having to resort to litigation as a first step

claims clause – allows contractor to request additional compensation


CLAIMS–MADE POLICY
Closed Spec
COLLATERAL ESTOPPEL
COLLATERAL SOURCE RULE
COLLUSION
COMBINED RATIO
Commencement of Improvements
COMMERCIAL GENERAL LIABILITY
INSURANCE(CGLI)
COMMERCIAL IMPRACTICABILITY
Common Law
COMPARATIVE NEGLIGENCE
a policy that covers only those claims that are made against the
insured during the policy period
requires a specific item or system – ensures only products of a
particular type are used
a legal doctrine that bars further litigation of issues in a case
previously decided by other courts
rule that prevents a defendant from introducing into evidence
the fact that a plaintiff has received benefits from their injury
or from other sources
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.
the sum of the incurred loss and company expense divided by
the earned premium
The first actual construction on a site OR first delivery of
substantial materials
a broad form of liability insurance usually covering business
organizations to protect them from liabilitiy claims for injury
arising out of their operations
doctrine recognizes in some instances, contract performance
may become so costly that its impracticability makes it an
impossibility
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
the proportional sharing of liability between a plaintiff and
defendant for damages based on the percentage of negligence
of each
 repair or replacement of the loss caused by the wrong or injury
COMPENSATORY DAMAGES and nothing more.
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

Competitive Bid bidder
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
COMPETITIVE BIDDING the competitive bidding process.
Owner hires A/E.A/E designs and issue CD's.

Owner issues RFP from GC's (shortlist)

Competitive Sealed Proposal Owner awards to 'best value'

Comprehensive Planning or Master A term used by land use planners or planning commission to
Plan 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.
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
CONSEQUENTIAL DAMAGES such act.
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
CONSIDERATION contract. (See CONTRACT)
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
CONSTITUTION owner and Landscape Architect but not for the contractor.
CONSTRUCTION CHANGE (CCD) a written order generated by the designer directing a
DIRECTIVE 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
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

CONSTRUCTION CONTRACTS standard docs
construction drawings include detailed working drawings and specifications
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
CONSTRUCTION MANAGEMENT his part.
CONSTRUCTIVE 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)
does not result from a direct order but is construed as
acceleration because of the owners refusal to grant time
constructive acceleration extensions for an excusable delay
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.

Consumer Product Safety

Commision Significant for LA's in dealing with play structures and surfaces.
A provision in a contract the requires a certain act to be done
Contingency or a certain event to occur before the contract become binding
– 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
Contingent liability or wholly liable
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
CONTINUOUS TREATMENT extend the time for commencement of the statute.
CONTRACT a promissory agreement between two or more persons that
creates, modifies, or destroys a legal relation–ship. Several
essential elements must be present in order to render a
contract valid.

These elements include an offer, acceptance, and consideration

on the part of both parties, the capacity of both parties to
contract, a state of mind (mutuality of assent), and the
“meeting of minds.” 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)
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
CONTRACT "consideration" to be legally binding."
Modification to a construction design or contract which
provides for a change of contract provisions including
Contract Amendment additional work outside the scope of an original contract
Define the legal rights and obligations, or the rules by which
Contract Conditions each party (contractor and the owner) must comply.
Contract Documents 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
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
CONTRACT DUALITY the contract between the owner and the contractor.
Contract Form, Contract
Conditions, Technical Specifications
(CSI Format) What are the three main components of a bid document?
time, including authorized adjustments, allotted for substantial
CONTRACT TIME completion of work
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
CONTRACTOR project. (See SUBCONTRACTOR)
CONTRACTUAL DUTY – the obligation which arises from a contract or agreement.
(CONTRACTUAL OBLIGATION)

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.
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
CONTRIBUTION negligence.
the failure of the plaintiff to exercise ordinary care, thereby
CONTRIBUTORY NEGLIGENCE contributing to his or her own injury
legal entity created to act as an individual while protecting the
Corporations owners and stockholders of the firm
Cost Estimates and Bid Tabulations What each contractor bid for each item and overall cost
– owner is reimbursed for most of the direct expenditures
cost plus contract related to the project plus an allowance for overhead and profit
agreement under which the contractor is reimbursed for
stipulated direct + indirect costs of performance of the
COST PLUS FEE AGREEMENT agreement + in addition is paid a fee for services
provides payment for all labor and materials costs and adds an
cost plus fixed fee agreement amount on the contract to act as the profit for the design team
tries cases in mortgages, fraud, etc. administers justice granted
in the precepts of the conscience, not in any sanction of
COURT OF EQUITY positive law
COURT OF EQUITY 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.
An agreement, especially by lease, deed, or other legal
Covenant contract.
A system of law concerned with the punishment of those who
Criminal Law commit crimes.
schedule or diagram of events expected to occur and
CRITICAL PATH METHOD (CPM) operations to be performed in completing a given process
CURRENT RATIO current assets divided by current liabilities
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
CUSTOM clause deleting that requirement.
date which work is evaluated by the contractor for payment
should normally be not less than ten days prior to the payment
CUT–OFF DATE date
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
DAMAGES pertaining to damages which can–not be covered here.
Date of Agreement The date that a contract was actually awarded to a contractor
point at which the work or designated portion can be occupied
DATE OF SUBSTANTIAL or used as intended – usually the contractor makes this call, but
COMPLETION must be agreed upon inspection by architect
requires mechanics + laborers to recieve the prevailing wage as
DAVIS–BACON ACT determined by the secretary of labor
deed transfers ownership of property from one owner to another
an omission of that which ought to be done; a failure to
DEFAULT perform a legal duty.
the economic loss suffered as a result of extended time from
that of the original time stipulated in the contract writing.

DELAY DAMAGES This differs from property damage and personal damage.
DEMURRER 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.
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
DEPOSITION during a trial or arbitration proceeding
describes in a logical manner the materials needed and the
DESCRIPTIVE SPECS methods of their installation greatest degree of control
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

Design Build Method – popular in large industrial projects

used for consulting services between a landscape architect and
a client or between the LA and other consultants subconsultant
DESIGN SERVICES CONTRACT contracts should always reference the prime contract
particular kind or type of material is to be used, a particular
Design Specifications dimension is required, installation method given etc.
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
DESIGN–BUILD one organization.
a change made in the progress of a work from the original
DEVIATION terms, design, or method agreed upon.
typically provides that in the event that the physical conditions
at the site of the work vary materially from those represented
DIFFERING SITE CONDITIONS or reasonable anticipated and in a manner which increases the
CLAUSE – (“CHANGED time or cost of performance, the contractor is entitled to
CONDITIONS” CLAUSE) additional compensation or an extension of time.
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
DISCLAIMER published.
DISCLOSURE 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.
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
DISCOVERY things in his custody or power.
period of time allowed an insured to identify and report to the
DISCOVERY PERIOD carrier losses or claims
generally consists of 3 individuals who meet whenever one of
the contracting parties on a project desires a hearing on an
disputes review board issue of conflict
dividends money returned to clients with relatively low losses
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
DOCUMENT, DOCUMENTATION instruments used to prove the facts.
The architectural and structural plans of the building. locates
Drawings elements, shape, form + size, dimensioning + layout, details
degree of care that a person of ordinary prudence and
diligence would exercise under the same or similar
DUE CARE circumstancesnegligence is the failure of using this
DUE DATE FOR FINAL PAYMENT 30 days after substantial completion
duress threats forcing consent to an agreement
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

EASEMENT who holds the easement interest or easement rights.
method to designate certain rights of other parties to use a
portion of the project property for access utility construction +
EASEMENT OR COVENANT maintenance, or temporary construction
ECONOMIC LOSS 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)
the right of the federal government or a state to take
possession of private property and appropriate it for public use

eminent domain – also called condemnation

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

Employer – Independent
Contractor Relationship Usually involves people with special skills.
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
ENGINEER Architect as a consultant for the building enclosure.
Equal specification proprietary spec with the words 'or equal' afterwards
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
EQUITABLE DOCTRINE OF)
EQUITY value of the firm's assets in excess of its liabilties
ERRATUM correction of a printing typographical or editorial error
– 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
Estoppel involved
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
EXCLUSIVITY OF CONTRACT exclude other remedies unless such a result is required by a
PROVISIONS consideration of the facts of the particular agreement.
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'.
EXCULPATORY LANGUAGE indemnification clauses + disclaimer clauses are considered this
– when both parties to the agreement have fully performed
Executed contract their duties
Executory contract – when some portion of the agreement remains undone
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

Exoneration financial guarantee, specifically to ensure performance of work.
may be a person of science, one educated in the arts, or a
person possessing special or peculiar knowledge acquired from
EXPERT WITNESS practical experience.
estimate of the probability of loss from some hazard,
contingency, or circumstance to signify the estimate of an
EXPOSURE insurer's liability under a policy from any one loss or accident
an affirmation of fact or promise expressly made by the
warrantor any description of materials or equipment a sample
EXPRESS WARRANTY or model can create this
one party, typically the contractor, is asked to assume liability
expulpatory provision that would not otherwise be assumed
 When a prime or main contractor starts the construction work
Fast Track Construction BEFORE the plans and specifications are complete.
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
FAST TRACK METHOD contractor for additional work.
– the overlap of design and construction that can occur in
Fast– tracking design build projects
FEASOR one who commits or is guilty of a tort
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
FIDELITY BOND entity covered by the conditions of the bond
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
FIDUCIARY contractor.
an engineer assigned to a project during the construction phase
FIELD ENGINEER and located at the project on a full–time basis.
verifying limits of work, staking existing trees + other features,
verifying location of proposed elements critical to intent of
FIELD OBSERVATION design
FIELD ORDER 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)
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 Acceptance final payment to the contractor.
A stage of construction where the work is fully completed per
Final Completion the contract documents
A final site review of the project by the contractor, owner or
owner's authorized representative prior to issuing the final
Final Inspection certificate for payment.
The last payment from the owner to the contractor of the
entire unpaid balance of the contract sum as adjusted by any
Final Payment approved change orders.
FINALITY OF DECISION 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. .
compensations for professional services or construction
services on a lump–sum basis not effected by project scope or
FIXED FEE other variables except as designated
Type of bid contract where, once agreed to, is not subject to
Fixed Price Bid adjustment of price
same performance standards are required from owner to prime
FLOW DOWN CLAUSE as are prime to subcontractors
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

FLOW–DOWN CLAUSE established as a minimum require– ment for the subcontractor.
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

FOREIGN CORPORATION a construction contractor in that state.
FOUR–CORNER RULE 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.

FRAUD, FRAUDULENT
G702
GENERAL CONDITIONS
GENERAL CONTRACTOR
GENERAL DUTIES OF LANDSCAPE
ARCHITECT
General Overhead (GOA)
General Spec's
general warranty
Guaranteed Maximum Upset
In the construction industry, the contract documents, including
the drawings, specifications, general conditions, etc., form the
face value of the contract.
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.
Document that provides the first basis for the construction cost
control on a project
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.
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)
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
This type of cost includes rent, promotion, and office costs
stipulates ground rules for the work to be performed and
defines the scope of work to be performed within the
specification sections
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
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.
 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
GUARANTY payment or perform the obligation.
a contract provision where one party assumes certain legal
liabilities on behalf of the other partysynonymous with
HOLD HARMLESS AGREEMENT indemnification""
this heading is interchangeably used with the
HOLD–HARMLESS CLAUSE heading“Indemnification Clause.” (See INDEMNIFICATION)
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
IMMUNITY rendered in resolving the dispute
where the intention is not manifested by an explicit and direct
word but is gathered by implication or deduction from the
IMPLIED circumstances.
an agency relationship created by acts of the parties and
IMPLIED AGENCY deduced from proof of other facts. (See AGENCY)
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

IMPLIED CONTRACTUAL the limitations on recovery under the expressed provisions of
PROVISIONS the contract.
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 –
IMPLIED WARRANTY rather (See WARRANTY)

IMPOSSIBILITY OF PERFORMANCE
IMPRACTICABILITY, COMMERCIAL
IMPUTED KNOWLEDGE
IMPUTED NEGLIGENCE
INCORPORATED PAPERS
INDEMNIFICATION
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.
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)
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)
negligence not directly attributable to one person but that is of
a second person who is in privity with the first vicarious liability
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.
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.
principal (contractor) guarantees the surety that the surety will
incur no loss by reason of its providing the bond provides
INDEMNITY AGREEMENT 'leverage' over the principal
agent relationship where the owner is not responsible for the
independent contractor actions of the agent but only specifies a required result
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
INJUNCTION damages against the subcontractor.
writ from court of equity forbidding a defendant to do some act
which is unjust or injurius to the plaintiff estoppels are these
INJUNCTION types of procedures
Inspection for Disbursement of An independent vehicle for the disbursement and accounting of
Funds construction funds allowing construction obligations to be paid
(progress payments) when work is completed, inspected and
 approved.
the inspectors assigned to a project for the purpose of carrying
INSPECTION TEAM out the quality control plan.
Inspectiondisputesdelaysstop work What are the four main areas of field administration that are
orders required of most landscape architects?
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
INSURANCE occur in the future.
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
INTERFERENCE with the contract be intentional and not merely negligent.
joint negligence, the owner is held harmless when both parties
intermediate form indemnification are negligent
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
INVITATION TO BID request or solicitation for offers to contract.
multi–party litigation – must be agreed upon in writing by all
parties involved

– usually better for arbitration to be held separately to avoid

JOINDER unnecessary complexity + complications
uniting two or more elements into one two parties in an
JOINDER indemnification
The partnership of two different firms for the length of a
Joint Venture project or a set amount of time.
belonging to the office of a judge, as in a judicial authority, a
JUDICIAL court of justice, a judicial writ, or a judicial determination.
JUDICIARY 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.

protects workers, subcontractors and material suppliers
LABOR + MATERIALS PAYMENT assures they will get paid for work performed or materials
BOND supplied w/out this bond, owner must pay liens
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
Land Use managed woods.
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
Land Use Classifications potential or alternative uses of, land.
The proposed utilization of land, resulting from planning and
Land Use Plan zoning studies.
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

LANDSCAPE ARCHITECT
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.
plan + design of vegetation, circulation,

+ other features to fulfill aesthetic and functional

reqsformulate graphic

+ written criteria to govern construction processprepare,

review,

+ analyze masterplan

LANDSCAPE ARCHITECT SPECIFIC + site planprepare feasibility studies, probable construction

DUTIES costs, public hearing schedules, etc
hidden, concealed, dormant; does not appear upon the face of
LATENT a thing, as in a latent ambiguity.
 defect not discoverable by the exercise of ordinary skill and
LATENT DEFECT care
bound or obliged in law or equity; responsible or answerable to
LIABILITY make satisfaction, compensation, or restitution.
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,
Libel movies, or plays, is either a civil wrong or a criminal wrong
certificate or document which gives permission; a permission
by a competent authority to do some act which, without such
LICENSE authorization, would be illegal or would be a trespass or a tort.
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,
LIEN (mechanic's lien, construction or have it sold for payment of a claim (take your possesions).
lien) Latin ligamen, from ligare to bind""
Written document from a contractor to owner releasing said
Lien Waiver (Release) legal state
contractors negligence agreement, the owner is held harmless
for claims caused by operations or negligence of the contractor
limited form indemnification or subcontractor
–contributes cash or property to the business and shares in the
limited partner profits and losses–provides no service and holds no vote
max $ figure that the insurance company will pay – covered in
LIMITS OF LIABILITY the Contract Documents or by by law, whichever is greater
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
LIQUIDATED DAMAGES law.
Liquidated damages 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
A recorded legal document giving constructive notice that
Lis Pendens action affecting a particular party has been filed in court
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
litigation in a lawsuit
relationship between net earned premiums + net losses
LOSS RATIO incurred
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

Lot Coverage Limits use intensity.
A fixed dollar amount that is negotiated beforehand and is
usually paid out at different stages of the contract such as a
lump sum agreement percentage complete.
lump sum contract most simple and used contract in the construction industry
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

Maintenance Bond performance bond without additional charge
Refers to an erroneous professional action taken by a public
official. the doing of an act that is contrary to law or contractual
Malfeasance obligation
malpractice when providing a contractual service results in pain or suffering

MANDAMUS
MANDATE
MANDATORY CLAUSES –
(MANDATORY PROVISIONS)
Master–Servant Relationship
MATERIAL VARIANCE
to an individual. any failure in professional duty resulting in
injury
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)
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)
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.
Type of relationship where someone must act in good faith and
be obedient to another person. Personal interests are
secondary.
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

Material Warranty and Labor
Warranty
MECHANIC'S LIEN
MECHANIC’S LIEN
MEDIATION
MEETING OF MINDS
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.
What are the two types of general written warranties?
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.
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)
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
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)
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
MERCHANTABILITY warranted unless there is evidence to the contrary.
when acceptable activities are undertaken in inappropriate or
dangerous ways. Performing a legal action in an improper way
(See Reasonable Care)

misfeasance Amount of care expected from a reasonable person

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
MISREPRESENTATION uponin the performance of its work.
multiple proprietary spec models of more than one manufacturer are specified
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.

MUTUALITY OF ASSENT (See CONTRACT)
NAMED PERIL names specific risks and excludes all others
Negation Refers to the canceling of a prior action
NEGLIGENCE 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

Negotiation
NO DAMAGE FOR DELAY
Nonconforming Use
Nondiscretionary Standards
Notice of Award
Notice of Partial Completion
notice to owner/notice of intent to
lien
Notice to Proceed Date of
Commencement of Work?
Notice/Letter of Award
NOVATION
NULL AND VOID
breach of duty that will result in the injury to someone else.
legally protected interest is overtly invaded or violated in some
way
occurs before conflict becomes largerboth parties calmly
discuss an issue and listen carefully to eachother's comments
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
A use of land or bldng that was lawful until new zoning was
applied and is which is permitted to continue.
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)
A written communication from the owner to a contractor,
signaling that they have achieved the winning bid
Issued by a local building official when a portion of the project
meets all the building codes and is ready to be occupied
initial notification to owner of lien
Written notice by the owner telling the contractor when work
may begin per the contract
Written notice by the owner to the apparent successful bidder
which states the award date and when the contract will be
signed
contract termination new principals = same obligationsame
principals = new obligation
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.
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
NULLITY no legal force or effect.
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. (OCCUPATIONAL SAFETY O.S.H.A. has been used by the courts to establish a standard of
AND HEALTH ACT) care for the participants in the construction process.
a statement that the information to be provided is factual with
oath god as a witness
person for whose benefit the bond is written the owner a dual
OBLIGEE may include the general contractor
occupational safety and health act
(OSHA) federal act for responsibility in the work place
an insurance contract where coverage is provided for losses
stemming from an event when the insurance policy was in
OCCURANCE INSURANCE force even if the claim is not made for several years
OFFER 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)
Person who is tasked with witnessing the on–site construction
On–Site Inspector at all times
Open specification nonrestrictive in that they permit a wide variety of choices
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

OPTION ALTERNATE)
OWNER the party at the instance of which the project is undertaken and
the one which will take title to it when it is completed;
 the party in which is vested the ownership, dominion, or title to
property.

On a construction project, the owner typically contracts

independently with the Landscape Architect or engineer and
with the contractor.
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
PAROL EVIDENCE contract writing.
PAROL EVIDENCE RULE 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.
certifies that a portion of the total amount has been paid and
PARTIAL LIEN WAIVER so that money cannot be used as a lien against the property
lien rights for certain portion of the work that have been paid
partial release of lien are officially released
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
PARTIAL WAIVER OF LIEN cannot be used as a basis for a lien against the property.
voluntary approach to establishing teamwork among
contracting parties

Partnering – disputes resolved at the lowest managerial level

partnership 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
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
PATENT/LATENT TEST future damage emanating out of this danger.
PAYMENT BOND a legal instrument which provides a source of payment for
labor and materialmen should their employer fail to pay them
because of either default or bankruptcy. (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
Employee benefits are what kind of cost? This type of cost
Payroll Cost (DPE) represents the single largest cost to any billing
PENAL AMOUNT limits amount of the guarantee 100% of the contract sum
not in gov't projects awards contractor for early completion +
PENALTY BONUS CLAUSE penalizes for delayed completion
Percentage basis, fixed fee basis, What are the 3 standard basises for establishing fees in a
multiplier basis contract?
Performance and Design Spec instructed how to do task and how it should perform
PERFORMANCE BOND 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
used when intent is to replicate existing conditions remodeling,
restoration, phased construction results or performance of
finished product is specifiedcontractor selects materials +
PERFORMANCE SPECS installation methods
max % of premium income that can be expended by an
PERMISSIBLE LOSS RATIO insurance company to pay claims without the loss of profit
a person or organization which brings an action; the party
which complains or sues in a personal action and is so named
PLAINTIFF on the record.
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
Planned Unit Development often with greater protection of environmental features.
the amounts that an insurance company allocates for the
POLICY RESERVE fullfillment of its policy obligations – includes all future losses
one cannot pratice what is defined as the body of knowledge of
PRACTICE ACT landscape architecture without a valid license
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
PRECEDENT expressly decided are not precedent.
Notice to a property owner by subcontractor that states if bills
Preliminary Lien Notice Claim of are not paid that legal action will be taken Must be filled within
Lien 90 days of labor ending
premium payment or consideration for an insurance contract
Programming and market studies are usually performed in
Pre–Design Services what phase of the project?
the party signing a contract with another party to directly
perform the work required by that contract. (See CONTRACTOR
PRIME CONTRACTOR and SUBCONTRACTOR)
retroactive coverage for negligent acts occurring prior to a
claims made policy period as long as the claim was made during
PRIOR ACTS COVERAGE the policy period
PRIVITY relationship of a party which has any part or interest in any
action, matter, or thing.

PRODUCT DATA
Professional Liability Insurance
Project
DescriptionResponsibilitiesScope of
WorkFeesLiability Limitations and
Insurance RequirementsEffective
DateChangesTerminationJudicial
JurisdictionArbitrationClarifying Use
of DocumentsSignature
PROJECT MANAGEMENT
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)
illustrations, standard schedules, performance charts,
brochures, diagrams + other info furnished by the contractor
usually from catalogs to highlight materials to be used
Claims to protect against injury to persons or damage to
property in connection with one's business or premise.
What are the 12 main components of a contract?
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)
equitable doctrine holding the promisor bound to a promise if
injustice can be avoided only by enforcement of the promise
PROMISSORY holding a subcontractor to its bid also called an estoppel
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
PROMISSORY ESTOPPEL prime contractor.
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
PROPRIETARY SPECIFICATION alternativescan be incorporated in total or adapted + rewritten
a person who has a legal title or ownership. firms owned by an
PROPRIETORSHIP individual structure is whatever owner wants
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

PROTEST establishing a claim to retain a party’s contractual rights.
items found not to be in conformance to the drawings +
PUNCH LIST specifications. correction of minor deficiencies
PUNITIVE DAMAGES awarded by the courts in the amount of three times the actual
damage.
 Treble damages usually apply in antitrust actions.
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
PUNITIVE DAMAGES defendant, serving as deterant to others
PURE PREMIUM frequency x severity claims per unit exposure
policy in regard to assuring that quality will be achieved on a
QUALITY ASSURANCE program or project.
a plan to implement the policies stated in the quality assurance
QUALITY ASSURANCE PLAN statement of an organization.
Composed of project principles who meet of a frequent basis to
Quality Circle identify, discuss and solve productivity and quality problems
the implementation of the quality assurance plan, usually
QUALITY CONTROL during the construction phase.
the group of personnel assigned to implement quality control
QUALITY CONTROL GROUP during the construction phase.
an implementation plan for application of the quality assurance
QUALITY CONTROL PLAN policies during the construction phase.
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
QUASI–JUDICIAL IMMUNITY)
a written agreement of the seller not to contest ownership of a
QUIT CLAIM piece of real property
a deed in which the original owner will not contest the
quitclaim deed ownership of the property
reasonable care and skill or a considerations that the contractor should always have
general sense of responsibility foremost in their mind when committing to work.

The terminology involved with the traditional negligence and

 malpractice cases that relates to standards of practice
dumping soil on wetlands w/out a gov't permit destroying
REASONS FOR A THIRD PARTY private property such as a fence, structure or trees on an
CLAIM adjacent property
state's recognition of the validity of one's license in another
RECIPROCITY state
obtaining a thing by the judgment of a court as the result of an
action brought for that purpose; the amount finally collected or
RECOVERY the amount of judgment.
REDRESS receiving satisfaction for any injury sustained.
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,

REFERENCE SPECIFICATIONS etc

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
REGULATION be issued for their violation upon detection.
transferring insurance from one to another – each transaction
treated separately, both insurer + reinsurer can accept or reject

REINSURANCE AGREEMENTS – reinsurer accepts specific types of risk

REJECT ANY AND ALL BIDS 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.
RELEASE OF LIEN 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.
The decision of an appellate court to send a case back to a trial
court with instructions on how to correctly solve the case –
Remand often used with the term reversed"
– a legal term reflecting the redirection of a court case to a lower court for ruling."
one who stands in the place of another, usually as executor or
administrator but not as an agent; one who represents the
REPRESENTATIVE interests of another. (See AGENT)
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
Request for Information process, during a project or during construction.
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

Request for Proposals
Request for Qualifications
evaluation of the proposal and how creative it is and how
closely it meets the agency’s objectives.
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.
additional premium collected to offset unexpected claims

– is returnable to policy holder along with interest at a specified

RESERVE PREMIUM rate
RESPONSIVE BIDDER one who has the capability, in all respects, to fully perform the
contract requirements and the integrity and reliability to assure
good–faith performance. 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.
The act of prohibiting dramatic changes to a piece of property.
restrictive covenant (often used by homeowners' associations)
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

RETAINAGE subs etc
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
Right of Way belonging to another.
enables groups to purchase or provide liability insurance for
RISK RETENTION ACT individuals or groups with similar liability exposures
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
RISK–SHIFTING TECHNIQUES subcontractor only after he has been paid by the owner.
Types of clauses included in contracts that encourage the
contractor to complete the project in a timely manner and
Schedule Controls according to plans
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
SCOPE OF WORK includes milestone dates for each phase
SECURITY 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.
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
Setback protection.
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

SHOP DRAWINGS than the specs or drawings can provide.
A method of prequalifying a small number of firms with proven
Shortlist capabilities to execute a project.
A setback that restricts anyone from putting view obstructions
Sight Line Triangle at the height of drivers sight.
silent partner remains unknown to the public
defamatory, untrue words said aloud, and tending to prejudice
Slander another person in business, means of livelihood, or reputation.
SOVEREIGN IMMUNITY 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.
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
special waranty for anything incurred before their actual ownership
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

SPECIFICATION workmanship, and add clarity to the drawings
general recognition and conformity to established practice; a
type, model, or combination of elements accepted as correct or
STANDARD perfect.
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.

STANDARD OF PERFORMANCE – The standard of performance is established by the

(STANDARD OF CARE) professionals working in the same geographical area.
The common expectations for professionals with which they
Standards of Practice can reasonably be held accountable
term introduced by the A.I.A. in1963 to help minimize the
STATEMENT OF PROBABLE responsibility of guaranteeing the cost estimate. Prior to that
CONSTRUCTION COSTS time, “cost estimate” was used.
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
STATUTE beadhered to by all parties within that jurisdiction.
 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

STATUTE OF FRAUDS Commercial Code.
Statute of limitations 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.
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
STATUTE OF REPOSE from event in statute (date of substantial completion)
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
Statutory Law created by prior court decisions.
permits works or material suppliers to notify owners that a
stop notice general contractor has failed to pay them
court tries to interpret the provision, as much as it can within
reason, against the party that seeks protection under the
Strict interpretation provision
liability without faultneither negligence nor care neither good
STRICT LIABILITY nor bad faith,knowledge nor ignorance will save the defendant
SUBCONTRACTOR a party which takes over portions of a contract from the
principal (prime) contractor or another subcontractor;

a party which has entered into a contract, express or implied,

for the performance of an act with the party which has already
contracted for its performance.

Most 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.
Used to control the intensity of a proposed development by
limiting the site's size, location, proximity to other uses, density
Subdivision Regulations and coverage.
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
SUBMITTALS expressed design concept
subpoena court order for a witness to appear before the court
right to stand in the shoes" of another and to claim whatever
rights the original person had. insurance companies can seek
SUBROGATION recovery from the third party at fault"
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

SUBSTANTIAL COMPLETION may be occupied as intended
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

SUBSTANTIAL CONFORMITY material variance. (See MATERIAL VARIANCE)
SUBSTANTIAL PERFORMANCE exists where there has been no willful departure from the
terms of the contract and no omission in essential points;
where the contract has been honestly and faithfully performed

Substitution
Sub–consulting fees and travel
costs are what kinds of costs?
SUMMARY JUDGEMENT
SUNSET LAW
Superintendent
SUPPLEMENTAL CONDITIONS
Supplementary conditions
SURETY
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.
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
Direct Project Expenses
decision of a court w/out hearing evidence usually b/c the
pleadings show no issue of fact
periodic reviews to justify and validate licensure status that it is
necessary to protect the public health, safety and well fare
An administrative level person who supervises the work of the
on–site contractors
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.
more specific for the job being constructed
serve the function of amending and augmenting the general
conditions and thus tend to be more specific
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
 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
SURETY BOND performance of the contractor
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
SUSPENSION OF WORK CLAUSE contract.
SWEAT EQUITY 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.

TAFT–HARTLEY ACT LABOR– equalizes the legal responsibilities of labor organizations and
MANAGEMENT RELATIONS ACT employers
intended to provide the quality and performance capabilities of
technical specifications a material and any tests or inspections of the material.
TERMINATION to put an end to; to make to cease; to end.
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
TERMINATION FOR DEFAULT party.

THE AGREEMENT
The general specifications
the submittal procedure
The technical specifications
THIRD PARTY
THIRD PARTY LIABILITY
THIRD–PARTY BENEFICIARY
THIRD–PARTY LIABILITY
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
This type of specification is designed to instruct a contractor on
what is required during the project including where to deliver
and store materials
– 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
This type of specification provides details on the different items
that are going to be constructed and include Performance
specifications
a party which is not privy to a contract but which may be bound
or benefited through a written or implied legal relationship.
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
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.
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.
Allows the design team to get paid for all labor costs and other
time and materials payment costs to complete the work such as printing charges and
agreement postage.
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.

Time is of the Essence Most public projects employ this provision.

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

Tort Examples: negligence, liability, public safety and welfare

TORT FEASOR a wrongdoer; one who commits or is guilty of a tort.
Tort Law 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

Transfer of Development Rights
an action for compensation, usually in the form of unliquidated
damages.
A program or an agreement for relocation of residential
density, possibly including the right to transfer development
offsite to another property.
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
TREBLE DAMAGES trebled.
trust deed transfers the rights of a property to a trust
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

TURNKEY CONTRACT and Urban Development (HUD).
unit prices of the various bid items are altered so that they do
unbalanced bid not reflect the true cost of those items
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
UNCERTAINTY be extracted from it.
UNCONSTITUTIONAL 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.
process by which an insurance company determines whether
or not and on what basis it will accept an application for
UNDERWRITING insurance
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
UNIFIED BID presented.
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.

UNIFORM COMMERCIAL CODE model statute dealing with commercial transactions that does
(UCC) not normally apply to professional services
one sided contract in that only one of the contracting parties
makes a promise, the other party exchanges something other
than a promise

unilateral contract – most commonly some stated performance

Type of bid based on predetermined major items of work, the
Unit Price Bid items quantities, and the contractor's price per unit
Units of work completed,
incremental milestones, opinion, What are four main means of monitoring the completion
and cost ratio progress of a project?
UNJUST ENRICHMENT doctrine stating that persons shall not be allowed to profit or to
enrich themselves inequitably at another’s expense.

A typical example of this doctrine is when an owner withholds

payment to a contractor for work already performed, claiming
 that work is not acceptable.

The value of the performed work far exceeds that portion

which the owner considers unacceptable.
– a formal contract is made and there was no meeting of the
unreality of consent minds
Utilization Rate Measures the efficiency of an employee
specific procedure – critically analyze various aspects of
contract documents in relations to owners objectives

– determine if alternate methods or materials might be more

value engineering appropriate
Used to formally acknowledge and address lot sizes or shape
Variance Process variation in relation to other similarly designated lots.
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)
WAIVER waives the requirement of a signature.
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
WAIVER LIEN lien against the property is removed.
Waiver of Subrogation 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.
a promise that a proposition of fact is true. an aspect of a
WARRANTY contract is in fact as it was promised to be
WARRANTY OF SPECIFICATIONS the owner’s implied warranty, when providing the plans and
specifications, that the plans and specifications are possible to
perform, are adequate for their intended purpose, and are free
from defect.

Moreover, this warranty is not overcome by the usual

exculpatory clauses requiring bidders to visit the site, check the
plans, or generally inform themselves of the requirements of
the work.

What is a multiplier fee basis
usually based on?
Work Plan
WORKERS' COMPENSATION
writ of execution
ZONING
Zoning Ordinances
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.
direct salary and labor costs
A workplace strategy aimed at helping to solve problems and
boost employee drive and focus
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
A court order intended to satisfy a judgement in a civil case
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.
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.