Contract and Legal Terms Flashcards
Contract
An agreement between two or more parties that stipulates the exchange of things of value between the parties in the contract.
Percentage of cost agreement
A contract where the fee for services is based on percent of construction costs.
Time and Materials Agreement
contractors will be reimbursed for the material costs, and they will also be paid a rate for the time they’re working on the job.
Flat Fee Agreement/Fixed Price
A contract where the fee is fixed in advance of beginning work. Payment linked to contract defined deliverables. Must have a well defined scope.
Time and Materials with Maximum not to Exceed
includes a cap that represents the maximum amount that can be charged by the contractor. Provides owners with more security. Removes potential for profit from design firms.
Cost Plus Fixed Fee
Hourly cost plus a negotiated flat fee. Uncommon.
Preamble
Lists date, parties of the contract, description of work or services, and compensation.
Basic Services
Services to be provided (ie Scope of Work)
Services
Spells out other services and anticipated compensation (use of subconsultants).
Owner’s Responsibility
Provision of necessary information (surveys, grading etc.) to successfully execute contract.
Reimbursable Expenses
Direct costs to the designer that will be documented and compensated. Travel, delivery, reproduction.
Method of Payment
How and when payments are to be made and products delivered.
Indemnity Clause
Client and consultant agree to hold each other harmless in the event of liability claims.
Conclusion
Termination Clauses, statements regarding ownerships of original drawings, limits of liability.
Successor and Assigns
Transferability of responsibility should one of the parties sell the business, property or die.
Signature Section
Where parties of the contract sign.
Contract Amendment
Additional service requests, contract modifications or amendments to professional services. Bases on the same terms as the original contract. Includes detailed description of additional work , scope, fee and schedule, date and both parties signatures.
Tort
A civil wrong for which a court will grant a remedy. Someone has suffered damage, and somebody else is at fault.
Independent of contract, does not break any laws.
Intentional Tort
Misrepresentation of facts, deceit -rare in the design field.
Unintentional Tort
Generally deal with issues of negligence. Considerable concern to the design field.
Negligence
Failure to exercise the care that a prudent person usually exercises.
Duty of Care
Doctrine of Respondent Superior -Employers are responsible for the acts of their employees while they are working within their employment duties.
Doctrine of Gratuitous Service - volunteer and free services carry same responsibility as paid services.
Breach of Duty
Affirmative Acts - giving incorrect advice or issuing drawings that result in damage.
Failure to Act (Errors and Omissions) - Failing to provide advice or mission of a drawing or spec that results in damage.
Causal Connection
To prove negligence, a connection between breach of duty and damage must be shown.
Compensatory Damages
Money awarded to a plaintiff to compensate for damages, injury, or another incurred loss. Medical bills, loss of wages, transportation etc.
Consequential Damages
Damages arising out of circumstances known or that should have been foreseen at the time of agreement.
Liquidated Damages
Damage agreed to in the contract in the event of a breach or default by one party. Late project delivery.
Injunctions
Order issued by a judge which prohibit a person from performing a specific activity.
Caveat Emptor
Buyer beware. the principle that the buyer alone is responsible for checking the quality and suitability of goods before a purchase is made.
Comparative Negligence
The legal doctrine that wrongdoers should pay damages proportional to their fault.
Exculpatory Clause
A provision in a contract that relieves a party of liability.
Indemnity
A promise to hold a person harmless from liability or loss.
Latent Defect
A construction defect that is not perceptible by ordinary observation.
Lis Pendens
Official notice to the public that a lawsuit involving a claim on a property has been filed.
Litigation
Resorting to the legal system or courts to resolve a dispute.
Arbitration
Settlement of a claim by an impartial panel of experts.
Liability Insurance
Protects the professional against large monetary claims due to claims of negligence.
Limitation of Liability
When a design professional acts in good faith on behalf of client such professional would establish a reasonable assumption of liability in proportion to their fee. Should be in contract.
Mediation
A meeting between two parties in a dispute facilitated by an impartial third party. Mediator tries to get parties to come to a mutual resolution but has no power to enforce.
General Liability Insurance
Basic commercial insurance limited to liability claims of bodily injury or property damage at business or customer’s location.
Professional Liability Insurance
Errors and Omissions Insurance - Protects against loss from alleged negligent acts. Might include loss of client data, claims of non-performance or negligence.
Worker’s Compensation Insurance
Required when a business has W2 employees. Medical and disability coverage for on the job injuries or work related illness.
Fidelity or Commercial Dishonesty Bond
Provides coverage when an employee steals money, equipment or other assets.
Employment Practices Liability Insurance
Cover allegations of discrimination, wrongful termination and sexual harassment of employees.
Force Majeure
unforeseeable circumstances that prevent someone from fulfilling a contract. (Acts of god)
Billing/Contract Milestone
As each phase of a project is completed the contracted amount can be billed to the client. Public projects use task numbers. Some firms use Schematic Design->Design Development->Construction Docs structure.
Percentage Complete/Percentage Billed
Percentage of work actually finished, percentage that has been billed.
Critical Path Analysis Model
- List of all activities required to complete project
- Calculate duration of each activity to completion
- Dependencies between activities.
Calculates longest path of planned activities to the end of the project and the earliest and latest that each activity can start and finish without making the project longer.
Lines of communication- Private Development
Owner ^ Developer ^ Prime Consultant ^ Subconsultant
Lines of communication- Public Client
City Council ^ City Project Manager ^ Prime Design Consultant ^ Subconsultants
Lines of communication- Design Build
Owner ^ General Contractor ^ Prime Design Consultant ^ Subconsultants (design)
Lines of communication- Private Residence
Owner
Designer/Builder
Types of reports on a project
Site Inventory Report -photos, measurements, site notes.
Code Analysis Report
Soil Test (performed by soil testing lab)
Geotechnical Report (performed by geotechnical engineer)
Pro Forma Report - financial feasibility study
Quality Assurance/Quality Control
- review submittal sets to ensure design has stayed consistent with what was approved.
- checklist for project managers
- CAD standards that govern graphics as well as file structure
- Contract other firms to provide an independent review (often for construction detailing, cost estimating and value engineering)
Cost Estimate - Allowance
cost measurement for items that are hard to predict like water features
Cost estimate - Contingency
margin of error that covers unanticipated costs. Contingency is high in early stages (20%) and gets smaller as design is refined.
Consensus Building Steps
- Participant identification and recruitment
- Design of process to be used
- Problem definition and analysis
- Identification and evaluation of alternative solutions
- Decision making
- Finalization and approval
- Implementation
Outcome facilitation
the process of helping groups or individuals to learn, find a solution or reach a consensus without imposing or dictating an outcome.
Project Goals/Objective requirements
Determine client and user goals
Establish performance criteria that can be evaluated and measured.
Conduct study of potential users (market Demand)
Evaluate impacts of the regulatory and legal environment
Review similar projects and precedents
Confirm direction with specialists where applicable
Perform needs analysis
Assess population/demographics
Market Context
Methods of defining the market
- Trend Analysis
- Competitor Analysis
- Opportunities and threats
- Organizational analysis
Design Suitability
- Site opportunities and constraints
- Is market demand for the program sufficient in the area under consideration
- Accessibility, visibility, circulation, ADA
- Market Context
- User behavior
Program Development and Refinement
- Proposed activities and elements
- Spatial requirements for program elements
- Adjacency relationships between activities and elements
- Connectivity and circulation
- Phasing of future development
Project Parameters
- Problem Statement: Describes issues to be solved
- Goals and Objectives: Describes general outcomes
- Purpose Statement: Describes purpose of the plan or project
- Needs Statement- Describes the needs of the community or client
- Expected Outcomes Statement: same as goals
Problem Definition Process
- Understanding client organization, users, interests
- Identify problem - identify desires and expectations, come up with a definition all stakeholders can agree on.
- Determine causes of the problem - investigate possible causes and symptoms
- Outline a strategy for solving problems - identify objectives that will solve the problems
- Summarize findings in a problem statement - list goals and objectives
- Client sign off- present results of investigation to client
Goals and Objectives
Goals are more general, Objectives are more specific
Goal: Pedestrian friendly corridor
Objective-Enhance pedestrian’s sense of safety
Objective-Create a more attractive pedestrian environment
Objective-Enhance pedestrian connections between neighborhood and river park
- Problem Statement – Describes issues to be solved
- Goals & Objectives – Describes general outcomes and specific means (see below)
- Purpose Statement – Describes purpose of the plan or project
- Needs Statement – Describes the needs of the community or individual client
- Expected Outcomes Statement – Same as goals
Information Providing Techniques
- Web Sites
- Briefings
- Exhibit boards
- Feature stories
- Mailings
- News Conference
- Newsletters
- Press kits/news release
- Public service announcements
- Social media campaign
Information Gathering Techniques
- Focus group
- Mail in response forms
- Online polls, surveys, questionnaires
Information Exchange techniques
- Advisory group/task force
- interviews
- Open houses
- Public hearings/meetings
- webinars
- workshops
- retreats
Prime Objectives of Outcome Facilitation
- Ensure critical information is shared with all stakeholders
- Information is presented in a timely manner
- Information and discussion is done in a context appropriate to group
- A definitive process is in place to convey, discuss and act on information
- A vision of the outcome is articulated
Meeting Steps
1 Clearly define purpose of meeting
2 Set goals that can be evaluated
3 Listen to each point of view
4 Use Nominal Group Technique to identify issues each participant views as important
5 Ask participants to prioritize issues of concern, identify areas of agreement
6 Identify through questioning what next steps are
Key Techniques for Outcome Facilitation
- Active listening
- Questioning/response processing
- Design gaming
- information transferal
- Conflict resolution
- Negotiation
Meeting Facilitation
- Clearly define purpose of meeting
- Set time and date of meeting
- Arrange venue and supporting material - easels, projectors
- Prepare agenda and schedule
5, Prepare supporting documentation - keep meeting on schedule and focused
- Make sure all parties have opportunity to participate, make sure nobody dominates
- Intervene when problems arise
Gantt Chart
Graph of tasks and timelines (bar diagrams)
PERT Chart
Diagram of milestones and timelines
Activity Nodes/Milestones - shown as circle with identifying number
Task/Activity Line - lines connecting each milestone, list task duration
Meeting Notes and Minutes
Abbreviated - records most important items, decisions made, next steps
Task-Oriented - Columns with tasks, who is responsible, status
Verbatim - Transcript of the meeting, use of recording device
In House Permit Reviews
- Review of plans by consultants to identify code compliance, needed upgrades or safety issues
- Review plans to identify technical or cost savings issues (Value Engineering, Constructability Review)
- Review of plans by agency for permitting
Value Engineering
Voluntary evaluation by an objective third party. To identify potential savings through design changes without drastically compromising quality and identify technical problems. During Design Development
Constructability Review
Contractor/construction manager identifies alternative ways of building a project or its components. To simplify construction, shorten construction time, cut costs or identify potential problems. When design documents are 60%-90% complete.
Invitation to Bid
Brief description of project and timetable for bid period. Outlines:
- where to obtain construction documents
- fees and documents to be submitted with bid..fees, bonding requirements, wage rate etc.
Instructions to Bidders
Detailed Requirements for Bidders
- bidder qualifications
- access to site before bid
- bid security requirements
- bonding requirements
- methods for awarding contract
- safety/health regulations
- instructions for filling out bid form
- guarantee requirements
Bid Form
Forms to be filled out and submitted by contractor
- base bid price
- bid alternates
- provisions for additional work
- signatures & certifications
Bid Bond
Assures that the Contractor will agree to the contract if their proposal is accepted
5% of contract amount
Agreement
Contract for the work
Performance Bond
Assures that contractor will complete work in conformance to contract requirements
Payment Bond
Assures that contractor will pay their subcontractors and materials suppliers. Assures owner will not be held responsible for contractor default
Certificate of Insurance
Certifies that contractor has adequate workers comp, general liability, owners protective liability and auto liability insurance
General Conditions
Detail the legal requirements of all parties to the contract (owner, designer, contractor)
Prevailing Wage Rates
Extensive list of trades and the prevailing union wage for each trade in the area where project is located.
Agreed Price
Adjustments in the contract price by agreement of contractor and owner
Allowance
Estimated cash amount allocated to items that have not yet been designed or detailed prior to bidding. a sum of money set aside by the owner to remove a particular portion of work from competitive bid-ding.
Alternates
Optional adjustments to the scope of work that are issues with the bid docs
Base Bid
The price proposed to complete the basic work of the project exclusive of alternates or extra work
Contract Documents
Construction drawings, technical specifications, general specifications, bidding forms and instructions
Contract Unit Price
A unit price stated on the bid Form by the contractor - amount that they will charge
Notice of Award
A document issued by the owner to the contractor - notice that bid has been awarded to them
Stipulated Unit Price
A unit price stated in the contract documents by the owner - amount that will be paid for that item
Surety Bond
Any type of bond issued by an insurance or bonding company which assumes financial liability in case of contractor breach of contract
Pre-Bid Conference
A meeting held at project site. Opportunity for contractor to walk the site and ask Designer questions. Sometimes required to submit a bid.
Reviewing Bids
- Designer to review each bid received and prepare bid tabulation listing all base bid prices, alternate prices & contract unit prices.
- Designer examines qualifications of 3 lowest bidders
- When bidders have been qualified, Designer makes recommendation to the owner as to which contractor should be hired
Duties & Responsibilities of Landscape Architect Under Contract
- Familiar will all contract documents
- Understands limits and tolerances of materials and workmanship
- Conducts pre-construction meeting
- pragmatic approach to construction problem solving
- actions oriented towards minimizing construction delays
- ensures compliance with contract documents during construction
- reviews schedule, work in progress or completed work
- authorizes payments to contractor
- keeps owner informed of project status
Change Order
Significant change to the contract documents that may change scope of work, time to complete work, or contract price
Changes Proposal Request
Document issued by designer to contractor asking for itemized proposal for changes in the contract sum and schedule for a project
Collateral Work
Work occurring on or adjacent to the project site which may require coordination with other entities
Construction Change Directive
Document with complete description of change in work
Contract Time Accounting
Regular tabulation by project designer recording number or working days remaining for project
Extra Work
Work not included in contract price, often arises due to discovery of unforeseen conditions
Field Order
minor change in work that does not effect price or schedule, ordered by the landscape architect, no written authorization needed
Final Completion/Acceptance
Owner’s acceptance of the project, final payment to the contractor
Force Account Work
Payment method used for extra work when contractor and owner cannot agree on a price
Liquidated Damages
monetary claim assessed against contractor by owner for each working day past completion dated for project
Mechanic Lien
Claims against contractor which are transferable to owner for services not paid for by the contractor
Notice to proceed
Issued by owner to contractor giving start of construction date, beginning of contract period
Payment Request
Formal request from contractor for payment for work completed
Progress Report
Report to the designer by contractor and to the owner by designer outlining current completion status of project
Project Deliverables
term used in project management to describe product or service produced intended to be delivered to customer
Retainage
Percentage of payments to contractor held in escrow by owner until final acceptance of project
Shop Drawings
detailed drawings provided by contractor or suppliers indicating placement, fabrication, finish etc of some item
Substantial Completion
stage in the progress of work when project or portion of is sufficiently completed - contractor no longer liable
Unilateral Change Order
change order issued when time does not permit prices/schedule changes to be negotiated. price/schedule estimated by owner
Warranty Review
define and limit responsibility of contractors for repairs of a project during and after construction - ex. inspection of plant materials 1 year after construction
Request for Information
submitted by general contractor to designer requesting clarification of drawing intent or specification
Preconstruction Meeting
Distribute list of team members and contact info
Discuss procedures for RFI, field orders, etc.
Discuss critical dates and coordination items
Review drawings, initial assessment of potential issues
Slump Test
determines suitability on concrete mix before it is poured and measures uniformity of batches.
cone is filled with concrete-cone is removed-slump is then measured- 2-4” typical, greater slump = greater water content and lower strength
Concrete Compression Test
tests compressive strength of concrete installation.
Cylinder test - performed 7 and 28 days after installation
Air Content Testing
in freeze-thaw cycle areas, too little air = spalling, too much = lower strength
Soil Compaction testing
proof rolling - observing heavy equipment driving over subgrade to see if it deflects. too much deflection = too soft soils
Standard Proctor and Modified Proctor -determine percentage of compaction subgrades and aggregate bases
Soil texture and nutrient testing
determines pH, fertilization needs, organic matter levels, salinity, porosity
Punch List
Designer visits site and creates list of corrections which must be completed before designer will authorize release of retainage.
As-Built Drawings
Record actual location and construction of site including any changes made.
Project Closeout
Happens when last invoice has been billed and paid for the firm and firm’s subconsultants
Tasks of closeout:
-update firm records and final cost data
-Archive drawing and records in proper order
-Save digital files in digital archives
Post-Occupancy Evaluation POE
evaluation of the built environment from the perspective of the people that use them
- Brief Indicative POEs which show major strengths and weaknesses
- Detailed Investigative POEs aimed at showing causes and effects of site environmental issues
- Diagnostic POEs oriented towards correlating environmental measures with subjective user responses
Objectives of Post-Occupancy Evaluation
Improve quality of design process for future projects
Reduce design and maintenance costs
Enhance user satisfaction, comfort and performance
Assess strengths/successes, failures/weakness
Assess payback from investments
Maintenance Plan
Development of maintenance schedule that specifies in detail the the frequency of maintenance activities necessary for the functioning of the site
Maintenance Manual
Document that includes schedules, descriptions of procedures, standards that must be met and appendix which includes warranties, original plant lists, as built irrigation drawings
Integrated Pest Management
- Set action thresholds - set point which pest control action must be taken
- Monitor and Identify Pests - identify pest so appropriate action can take place, removes possibility of pesticides being used when they are not needed
- Prevention - manage crop, lawn, or indoor space to prevent pest from becoming a threat, rotate crops, select pest resistant varieties, etc
- Control - Once action thresholds, monitoring and identification indicate pest control is required and preventative methods no longer effective, evaluate control methods for effectiveness and risk
RFP (Request for Proposals)
Prepared by an agency or client and made available to design professionals for their services. Describes the location and scope of work for the project.
RFQ (Request for Qualifications)
Prepared by an agency or client and made available to design professionals for their services. Generally issued to develop a list of consultants who are pre-qualified for project work for a fixed amount of time (one to three years is typical) – sometimes referred to as a bench.
Duties and Responsibilities of the Owner
- All claims by the Owner or Contractor should be submitted to the Landscape Architect for review and action.
- The Owner may require changes in work for cost control purposes.
- The Owner may hire an independent Construction Manager to take charge of administration of the project. Usually this manager will be on the construction site every work day.
- The Owner may empower the Landscape Architect to act in a defined capacity as his agent during construction.
- Makes payments to the Contractor for completed approved work.
- May issue stop work orders to the Contractor.
Duties and Responsibilities of the Contractor
- Construction Scheduling and timeliness of the work.
- Supervise the work of his employees, suppliers and sub-contractors.
- Supply all labor and materials necessary for construction of the project.
- Take responsibility for the quality of materials and installation.
- Supervise and assert control over the means, methods, techniques, sequence or procedures of construction.
- Control the coordination and performance of all trades.
- Comply with all laws, regulations and codes applicable to the work.
- Guarantee all work to be free of defects in materials and workmanship for a specified period, and provide replacement if necessary.
- Verify the location of utilities and existing site features to remain and assume responsibility for any damage to them caused by construction.
- Punch Lists
- Prepare Record Drawings.
Duties and Responsibilities of Regulatory Agencies
- Ensure the health, safety and welfare of the general public.
- Review construction for Code and Ordinance compliance.
- Building Inspectors
Recycling
- Reusable concrete forms
- Recycling packaging materials (paper, plastic, wood, etc.)
- Recycling waste metals such as form ties, waste sheet metal, etc.
- Recycling demolition materials (concrete, aggregate, steel)
- Chipping or repurposing mature trees that are removed from the site
Construction Site Best Management Practices
- Proper sequencing of trades and work
- Re-use of materials
- Control of construction site runoff, dust control
- Care in the use and disposal of liquids such as oils, paint, stains, acid, etc.
- Low emission and well maintained vehicles and heavy equipment
- Protection of existing soils, plants, buildings and hardscape to remain
Use of Green Materials and Methods
- Crushed recycled concrete for aggregate base material and drain rock
- Use of fly ash in concrete mixes
- Siding, roof and floor underlayment made from recycled wood products
- Use of materials that are low toxicity to use or produce
- Use of materials produced from sustainably managed renewable resources (FSC for lumber)
- Use of locally obtained or regionally manufactured materials and assemblies
- Designing for deconstruction and disassembly
- Use of recycled content materials
Sustainable Land Use Planning and Development Practices
• Re-use of previously developed land instead of urbanizing rural land
• Use integrated site development process
• Higher density development based on urban mass transit systems instead of auto-oriented suburbs
• Design for human health and well-being
• Plan for long term sustainable site maintenance
• Site planning in conjunction with:
Solar access considerations
Preservation of agriculturally productive soils
Minimization of hydrologic cycle and natural drainage system impacts
Non-motorized circulation systems
Minimizing vegetation removal
Minimizing earthwork
Use of low water use, low fertilizer use, or site adapted native plants for revegetation
Use of permeable paving materials
Management of stormwater impacts on-site
Design to reduce urban heat islands
ACCEPTANCE
act of a person to whom a thing is offered by another whereby he receives the thing with the intention of retaining it, such intention being evidenced by a sufficient act.
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
BID DEPOSITORY
a clearing house for subcontractors to submit their bids for a particular project and for prime con-tractors to receive bids from the various subcontractors.
Material Breach of Contract
A material breach occurs when one party receives significantly less benefit or a significantly different result than what was specified in a contract. Material breaches can include a failure to perform the obligations laid out within a contract or a failure to perform contracted obligations on time. When a material breach occurs, the other party may pursue damages related to the breach and both its direct and indirect consequences.
Proprietorships
Firms owned by an individual. No formal documents required to establish business. Can be discontinued at any time.
Partnership
An association of tow or more persons to carry on a business. Partners have joint control over firm and divide profits amongst the partners.
Can be formed by oral agreement but written is advised.
Each partner is an agent of the partnership
Limited Partner
Contributes cash or property to the business and shares in the profits and losses.
Provides no service and has not vote, essentially just for capital.
A way to raise capital for business without spreading to much managerial strength.
Silent partner
A partner in a firm that remains unknown to the public. Cannot be active in the management.
Dissolving a partnership
Death of partner constitutes automatic dissolution.
Bankruptcy
Mutual agreement among partners
Can be dissolved if one partner is judged to be insane
Can be dissolved if one partner decides to withdraw.
A court decree
Change in partnership will constitute dissolution of original partnership.
Expulsion of partner for just cause will terminate partnership.
Joint ventures
Combine efforts of two or more construction firms to build a project.
Increase bonding capacity
Increase capabilities - shared knowledge and expertise
Pool equipment and tools
Increase available capital to undertake project
Corporation
A legal entity created to act as an individual while protecting the owners in the firm.
Corporations authorized to do business, own and convey real property, enter into binding contracts, and incur debts in the name of the corporation.
Limits liability of owners.
Can be owned by a large number of people without jeopardizing business operations.
Formation of a corporation
Can be formed by a person or group of persons
Formation is more formal, governed by articles of incorporation and bylaws under which it is operated.
Builder’s Risk Insurance
Builder’s risk insurance helps protect construction projects from property damage due to:
Fire Lightning Hail Explosions Theft Vandalism Acts of God, like hurricanes
Misfeasance
occurs when a defendant acts in a manner that increases the injuries or damage suffered by the plaintiff.
Ramroth’s 5 phases of project management
Start planning Design Production Closeout
Contingency Plan
a plan designed to take a possible future event or circumstance into account.
Clerk of works
Verifies quantities of materials delivered to site, confirms that works is carried out properly, and that health and safety rules are being followed.
acceleration
Acceleration is the process of speeding up the work of a contractor so that a particular activity, or the project as a whole, can be completed before the date required under the contract.
schedule of values
Schedule of Values (SOV) is a breakdown of each billable item of work on the project, along with the subsequent dollar-value of that particular work task.
Architect’s suplemental instructions
An Architect’s Supplemental Instructions (ASI) are official instructions issued by an architect to legally change, revise, or provide the necessary interpretation for a minor design or construction change. An ASI is only issued when a change does not affect the contract sum or contract time. The purpose of an ASI is to provide legal clarity for minor changes to the work, such as modifying a paint color or the swing direction of a door.
Architect’s suplemental instructions
An Architect’s Supplemental Instructions (ASI) are official instructions issued by an architect to legally change, revise, or provide the necessary interpretation for a minor design or construction change. An ASI is only issued when a change does not affect the contract sum or contract time. The purpose of an ASI is to provide legal clarity for minor changes to the work, such as modifying a paint color or the swing direction of a door.
