Section 1: Project & Construction Management
A contract is executed when...
both parties to the agreement have fully performed in accordance with the contract terms.
Liability
bound or obliged in law or equity; responsible or answerable to make satisfaction, compensation, or restitution.
4. Coordinating
coordinating the efforts of the design team so that interdisciplinary information flows smoothly and at the right time
The Architect's Supplemental Instruction form can be used to:
correct errors or inconsistencies in a contract after said contract has been signed
Submittals
the contractor must convey the quality of material and equipment information to the owner. Usually this is done through submission of the relevant information for the owner's approval. Once the owner has approved the submittal of an item, the contractor can requisition the item and incorporate it into the project.
100% complete?
the drawing has been checked for quality control and the QC comments have been corrected on the drawing.
Quality Control Group
the group of personnel assigned to implement quality control during the construction phase.
Ambiguity
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)
The landscape architect shall receive copies of all correspondence between consultants and the owner. (true or false)
false
Temporary certificate of occupancy
if a portion of the work is ready for occupation before the completion of the project as a whole, a temporary certification may be issued for the part of the work concerned.
Criminal Liability
if death results from the violation of a compulsory building regulation which expressly states that such a situation gives rise to a charge of manslaughter than an architect could be charged with criminal liability.
Spite fence
in some states, if a landowner maliciously erects a high fence which interferes with a neighbor's land (excessive shade or blocks view), the courts can order the fence be removed and allow the offended neighbor to claim damages.
The Principal
is liable for all contracts made by the agent while the agent is acting within the scope of the stated and granted authority. In a like manner, the third party who is signatory to an agreement made with an agent is held liable to the principal for the contract. It is imperative that the agent act within the scope of authority.
what is deduction?
is the inference that a conclusion necessarily follows from one or more general premises.
Equitable Doctrine
just and conformable to the principles of justice and right; existing in equity; available or sustainable only in equity or only upon the rules and principles of equity. (See EQUITY, COURT OF)
There can also be a time delay between tasks. This delay is called...
lag! IF task A takes 14 days to complete and task B can start once A is 50% complete then there is a lag time of 7 days.
What most strongly attracts people to urban plazas?
other people!
estoppel
the principle that precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination
Punitive Damages
relating to punishment; having the character of punishment or penalty; inflicting punishment or a penalty. (See DAMAGES)
Damages, Compensatory
repair or replacement of the loss caused by the wrong or injury and nothing more.
Americans with Disabilities Act (ADA)
- accessibility guidelines - establish requirements for public accommodations including governmental offices, private businesses, and public transportation facilities.
What are the two cost budgets that a PM must control?
- budget for doing the design work - budget for constructing the project as defined by the design an CDs
What are some words that should be avoided because they inherently increase risk by expanding the responsibility of the design firm...
- certify - ensure - guarantee - insure - maximize - optimize - supervise
How is time affected in a change?
- contractors will generally know about the potential time impact of a change, but determining this cost is wrought with uncertainty
What does it mean to be the lowest responsible bidder?
- it is not enough to just be the lowest bidder - you also must be qualified for the job
Standard Contracts and where to find them
- professional associations - the federal government - state agencies - large institutions and private sector organizations Use them!
Selection of Contractor: (2) Ways
1. Negotiated Contracts 2. Competitively Bid Contracts
arborist report would contain: (3) examples
1. health of existing trees on site 2. size and species of existing trees on site 3. recommendations for tree protection or preservation ***Note they would NOT have fertility of soil as it relates to existing trees on site (this would be done by an agronomist)
(2) Recommended Meetings between architect and owner at this stage (completion)
1. held after substantial completion to review the need for facility operation services 2. within one year of substantial completion to review the buildings performance
What makes a VALID contract (list 6 things)
1. offer 2. acceptance 3. meeting of the minds 4. consideration 5. lawful subject matter 6. competent parties
Within the field of project management, the five phases of a project are generally understood to be:
1. start 2. planning 3. design 4. production 5. closeout
When are value engineering reviews done?
1. the design phase: impartial view of a third party may prove beneficial 2. construction phase: this review is done by the contractor who has been awarded the construction contract (the benefit of a construction-phase value engineering review is that the contractor's expertise is utilized in the design phase)
What are the 6 project management goals:
1. to reach the end of the project 2. to reach the end on budget 3. to reach the end on time 4. to reach the end safely 5. to reach the end error-free 6. to reach the end meeting everyone's expectations Note: all 6 goals must be met for a project to be successful
Uses for As-Built drawings
As built drawings are a way of documenting any changes to the design that occurred during the course of construction due to such factors as owner-authorized changes to the design and errors in accounting for existing site conditions. -Used to compare final built conditions to those in the record drawings -Used to determine liability in construction-related litigation -Used by a future part>/ to make modifications, additions or alterations to a project site
If overruns are significant, affect more than one discipline, and could prove catastrophic, it may be necessary to...
take drastic measures and reduce the scope of work. Generally, this is a course of last resort. Few PMs can unilaterally reduce a project's scope of work. This requires buy-in by the client. Before discussing scope reduction with the owner, the PM should consult with the firm's upper management. Because this decision may have major consequences, upper management should have a hand in making it.
Start-to-start (SS)
tasks are interrelated and start at the same time
Suspension of work clauses
the suspension of work provision is the contractual equivalent of a breach of contract action for delays. Suspension clauses are seldom included in private contracts. Such clauses state that if prompt notice of suspension is not given, the suspension claim will not be valid. - in general conditions provisions in most owners contracts contain clauses that give them the ability to suspend work. - if there is a provision that does not permit the contractor to recover damages due to a suspension or delay then usually this will be reflected in an increased bid - sometimes suspension clauses grant powers to the contractor to suspend work (often in cases when the owner fails to make prompt payments)
Specifications: what is included
the term specifications is often used very broadly to include all the contract documents, with the exception of the drawings. This would include the following: - invitation to bid - instructions to bidders - general conditions - supplementary conditions - bid proposal form - bid bond form - contract bond form - list of prevailing wages (may be part of supplementary conditions) - technical specifications
Budget Evaluation Methods
Once the requirements of the project are identified, the architect is also responsible for preparing a preliminary estimate of the project's costs. - area and volume method - unit use method - in place unit method - quantity and cost method
Performance and Design Specification
there are specs in which the contractor is instructed how to do a task and then told to warrant that the results will be satisfactory. - the use of this type of spec should be avoided
Easements and Covenants
these are legally enforceable and attach certain conditions to the specified land
How do state agencies (and other owners) view bid bonds?
they can simply regard the bid bond as a security device for which the difference between the low bidder and the second low bidder is lost if there is a forfeiture on a bid bond.
How to determine critical management/maintenance areas?
Work with your client to determine the criticality level for each element. Levels of service for different areas will vary based on aesthetics, wildlife value, and budget.
Cost-Plus Contracts
a cost-plus contract is one in which the contractor is reimbursed for most of the direct expenditures associated with a particular project plus an allowance for overhead and profit. It is common for the allowance for overhead and profit to be based on percentage of the costs. If the allowance for overhead and profit is reasonable, the contractor is almost assured of not losing money.
Notice to Bidders
this may be included in the bidding documents, and informs prospective bidders of their opportunity to bid, and conditions and requirements involved
Turnkey Contract
a method of organizing a building project in which a contractor and a designer agree to provide a finished building at an agreed-upon price. Upon completion of the project, all the owner has to do is "turn the key" in the door. Most turnkey projects are built for the Department of Housing and Urban Development (HUD).
In order to expedite construction during assembly and execution of the contract documents, the owner may issue
a notice of award.
Once qualified bidders have been identified...
a package of information concerning the proposed project is issued.
Fraud or Bad Faith
a party cannot escape liability under no-damage-for-delays clause when the delay is caused by that party's intentionally false statements or acts. Of course, on public works projects this is against public policy.
Third Party
a party which is not privy to a contract but which may be bound or benefited through a written or implied legal relationship.
Payment Bonds
a payment bond gives protection to the owner if the subcontractors and suppliers are not paid by the prime contractor. Payment bonds prevent liens. The subcontractors are paid by the surety if the contractor fails to pay them. With the added assurance of being paid, the subcontractors are more inclined to bid and bid lower for their work.
Fiduciary
a person holding the position of a trustee or character analogous to that of a trustee in respect to the trust and confidence involved and the scrupulous good faith and candor which are required. In the construction industry, the Landscape Architect and the owner are in a fiduciary relation-ship in respect to the contractor.
Pre-hearing Procedures
a pre-hearing conference may be arranged at the parties request. The pre-hearing conference allows for an exchange of information, the stipulation of the uncontested facts, and the agreement of administrative details such as: - locale: mutually agreed upon but if cannot then AAA will decide - use of legal counsel: acceptable in many states but must give notice to AAA and other party - stenographic record: if one party requests a record of proceedings they must bear the cost - time and place: arbitrator decides time and place
Uncertainty
a state or quality of being unknown or vague; such vagueness, obscurity, or confusion in any writ-ten instrument, e.g., a contract, as to render it unintelligible to those who are called upon to execute or interpret it so that no definite meaning can be extracted from it.
Bridging
a variation of design-build wherein the owner hires an architect to prepare a preliminary building design and performance criteria. The concept and criteria information are then "bridged" to a design-build team that generates the construction contract documents and completes construction.
Fast Track Method
a way of organizing a design pro-gram which allows the contractor to begin construction on earlier phases of the project before the plans are completed for the entire project. Caution must be exercised in the signing of a contract using these fast-track methods because of the lack of information typically expressed in a conventional method of contract. Many changes may result when going from phase to phase, and provisions must be included in the contract to compensate the contractor for additional work.
What is the purpose of a project work plan?
to flesh out the scope of work as defined in the agreement to clarify it in enough detail so that a team of design professionals can effectively work on it. The project work plan also divides the project into logical task for performance and monitoring purposes. In addition, it establishes team member responsibilities, the project's reporting structure, and project-specific procedures, such as safety procedures, CAD and drafting standards and quality control procedures.
Implied Agency
an agency relationship created by acts of the parties and deduced from proof of other facts. (See AGENCY) AKA apparent agency
Estoppel, Promissory
an equitable doctrine which holds the promisor bound to a promise if injustice can be avoided only by enforcement of the promise. A typical application of this doctrine in the construction industry is holding a subcontractor to its bid submitted to the prime contractor.
Turnkey Contracts
usually relates to projects where a developer proposes and constructs an entire development (including the purchase of the site) and hands it over to the owner ready for immediate occupancy when complete. It has been used in dealings with local housing authorities.
1935 Miller Act
was enacted, stipulating that surety bonds are required of construction contracts on all federal and federally assisted projects.
Performance Specifications
with a performance specification, the results or the performance of the finished product, rather than the specific methods and materials used to construct the product, are specified. The product satisfies the spec as long as it does the job. - the spec can give suggested methods but they do not have to be accepted - if the architect on a project gives specific verbal directions on how a task is to be done, the specification becomes a design spec
Other names of Notice to bid:
- Advertisements - request for bids - invitation to bid
Once the contractual relationship has been established, certain obligations must be met by both parties...
- Owner's capability - Contractor's work schedule - List of subcontractors - schedule of values - Certification of insurance - permits
Extension of Time
- sometimes unforeseen or unavoidable occurrences delay the progress of the work through no fault of the contractor.
(3) Factors relating to the element of time of the construction process:
1. Acceleration 2. Stopping the work 3. Impossibility
BIDDING: selection of bidders (2 ways)
1. Open 2. Selective
Name (2) types of bonds:
1. bid bond 2. performance bond
Stop Notice
A Stop Notice is another mechanism for subcontractors in some states to seek payment for their work on construction projects. It can be used instead of, or in addition to, a Mechanics Lien. Note that public property is generally not subject to liens.
General Contract Method
A contract drawn up between the owner and the general contractor and the general contractor then has contracts with subcontractors.
tort
A tort is literally a "wrong" done by one individual (or corporation) to another for which a remedy (e.g. compensation, injunction, etc.) may be sought in the courts.
Practice acts accomplish what objectives:
Regulate the services that constitute "landscape architecture" and restrict the provision of those services to licensed landscape architects.
Trespass Violation
The act of knowingly entering another person's property without their permission
Arbitrator's decision
The arbitrator will close the proceedings and make a decision within the specified time. No communication between the arbitrator and the parties to the dispute should take place, except through AAA
Critical Path Method (CPM)
The critical path method (CPM) is a step-by-step project management technique for process planning that defines critical and non-critical tasks with the goal of preventing time-frame problems and process bottlenecks. ... Determine the expected completion or execution time for each task.
A project manager has determined that their design project is running well over budget. Which of the following would be the most likely cause of these significant cost overruns?
The project team may be performing work that is outside the scope of work accounted for in the in the budget
Quality Assurance Plan
a plan to implement the policies stated in the quality assurance statement of an organization.
Construction Management
a process of profession-al management applied to a construction program from conception to completion for the purpose of controlling time, cost, and quality. Ideally, the construction management organization links itself to the owner as an agent and thereby places itself in a fiduciary relationship with the owner. In this relationship, the construction manager can properly represent the owner to both the design profession-al and the contractors without concern regarding conflict of interest on his part.
Change
a revision to the original contract documents. A change differs from a modification in that the modification is agreed to by both parties of the contract; however, a change may be made unilaterally by the owner in spite of the contractor's lack of agreement.
As-built drawings can indicate which of the following?
a. Building location(s) and tunnels. c. Sewer and water main locations. d. Telephone, gaslines, electrical lines. and more!
An aerial topography map reveals the following information?
a. Slope (gradients). b. Vegetation. c. Drainage. d. Structures. e. Streams. f. Circulation.
Percentage of Estimate of Work
compensation is calculated as a percentage of the estimated or actual cost of the work
What does substantial completion mean legally?
defines the date from which the registration of liens is counted by lien statutes
Statutory employee
is a designation of employee that places them somewhere between regular employee and independent contractor.
Right-of-Way
is a tract of land, usually consisting of a series of connected parcels of property, that is used for the operation of a highway or public utility. Right of way can be owned by either public or private firms.
2. Transference
make some other party responsible for uncertainties or threats
Expert Witness
may be a person of science, one educated in the arts, or a person possessing special or peculiar knowledge acquired from practical experience.
Redress
receiving satisfaction for any injury sustained.
Finish-to-finish (IT)
tasks are interrelated and finish at the same time
Discovery Rule
the date of commencement is established at the time the plaintiff discovers, or should have discovered the fault.
Actual Damages
(ACTUAL LOSS) - damages resulting from real and substantial loss, as opposed to those which are merely theoretical, estimated, or anticipated. Actual damages represent the real and true value of the total loss suffered, as opposed to liquidated damages, which represent an estimated amount calculated as anticipated loss at a future time.
What are some examples of "excusable delays"?
- acts of god - labor strikes - flooding - embargos - epidemics - national emergencies - acts of a third party - riots - changes - unusually severe weather
Professional Liability
- also called E & O (errors and omissions) - note that joint ventures are not automatically covered by professional liability policies - even if not negligent, the architect must still finance the defense of claims - the architect is vicariously liable for the errors and omissions of employees: many professional liability insurance provide coverage against this contingency
How to best use email in communication?
- email is often written, hastily without much though going into message - messages can be misinterpreted - messages can go to junk email - it may be unclear who is expected to respond - make emails concise - confirm a recent discussion or decision - communicate simple, clear cut factual information that requires no feedback form receiver - transmit lengthy documents - no not use in leu of meetings/brainstorming - to not use to share important, complicated information that may require follow-up questions
Advantages of Fixed Price/ Stipulated Sum Contracts
- enabling the owner to know the final cost of construction at the outset - releasing the contractor from having to keep accurate time records for the owner's scrutiny
Modification (duty of LA)
- if the contract needs to be amended, the architect is empowered to make certain minor changes or issue (but not approve) Change Orders permitting new work to be undertaken
Ethical and professional behavior
- lead by example - golden rule - always behave professionally - AIA and NSPE both have codes of ethics and professional behavior an they expect their members to follow them - ASLA has a code of professional ethics and a code of environmental ethics
BONDS
- method to minimize risk and potential loss by the contractor
How much contingency to set aside?
- set aside some money as contingency and plan to complete the project tasks without spending the contingency - 10 percent is a very common percentage
What does the bidders package include?
- the invitation / advertisement to bid - drawings and specifications - the bid form - notice to bidders - instructions to bidders - proposed contract documents - bid security details (if required)
Project CADD and Drafting Standards
- the plan should identify the CADD procedures and drafting standards that are to be followed - some clients have their own standards
(2) Types of Partner
1. General Partner 2. Limited Partner
Viollet-le-Duc's description of the design process coincides withe the five basic steps in the process of designing any structure or building project. The steps are:
1. Identify the need 2. develop a detailed program statement for the project 3. explore alternatives that satisfy the program statement 4. execute the project based on the selected alternative that best satisfies the program statement 5. learn from the completed project: what went right and what went wrong?
What are (3) dispute resolution techniques commonly used in design contracts?
1. Partnering 2. Mediation 3. Arbitration
Fayol also claimed that the person responsible for management must perform five basic functions:
1. Planning 2. Organizing 3. Commanding 4. Coordinating 5. Controlling
What are (3) options of how a contractor can be paid for a change?
1. agreed lump sum 2. an agreed unit price 3. an actual field cost plus the outlined percentages for lump sum work
Time Contingency (in estimating timeline)
A time contingency implies that the timeline for the task was intentionally overestimated to account for overruns in the schedule. Thus, this would allow the project timeline to be reduced In the future with minimal impact.
When soliciting bids from contractors for the construction of a project, which list presents the correct chronological order of the following activities: - Notice of Award - Contract Signing - Addenda - Bid Tabulation
Addenda, Bid Tabulation, Notice of Award, Contract Signing
Agreement to Arbitrate
Agreement to arbitrate prior to a dispute occurring is the preferable method, and most building contracts provide for arbitration proceedings by stating that the parties agree to be bound by the decision of an arbitrator in the event of disagreement.
Notice to Owner
An official document that puts puts the property owner on notice that a lien can be filed if a particular party Is not paid
Modifications to contract
At any time during the contract period, the owner and contractor may mutually agree to change the intent or substance of the contract between them. As the contract is a voluntary agreement between the parties, any joint acquiescence as to its content is acceptable, but great care should be taken in modification of documents and the revised provisions for payment, work definition, etc.
The Project Manual
During the design development phase, a project manual should be drafted. This will contain the bidding requirements and the contract documents, including the technical specifications, but excluding the drawings.
Excusable Delays
Failure to perform by a specified date or within a reasonable time is often excused because the defaulting party may be contractually excused for the delays, and as a result, an extension of time is granted. A general rule is that the construction time is extended one day for each excused day of delay.
Floating and Bonus Zones
Floating zones are sometimes located within specified zones to provide a measure of flexibility in future development. Bonus zones allow possible dispensation from the requirements of the zoning ordinance, provided that certain extras or "bonuses" are built into the project for the benefit of the community. For example, a public plaza or shopping arcade.
What situation would a contractor use an unbalanced bid to take advantage of an owner's error in estimate?
For example, if a contractor thinks an owner underestimated the amount of excavated rock, the contractor could unbalance the bid and charge a higher unit price for excavated rock while lowering the others a bit to make up for it. However, there may be provisions in the contract to account for this or an owner could reject the bids on the grounds of it being irregular. - extreme unbalancing is considered unethical
Drawings vs. Specifications
Generally, information that relates to quantity and location should be in the drawings, while that pertaining to quality, method, and result should be in specifications
On a site observation, a designer should do which of the following to determine if an irrigation mainline is glued properly?
Have a pressure test completed at a specified limit for a specified timeprior to backfilling.
Example of contingent liability:
Here is a hypothetical case of contingent liability: Imagine that a big hotel chain has hired a contractor to build a hotel at a new location. ... The injured person will file an insurance claim in court against the construction company but the hotel chain may also be held liable for hiring the contractor.
Employer's liability insurance
If an employee decides to sue for negligence rather than apply for workers compensation benefits, the employer will be protected with employer's liability insurance.
Interpretations
If any of the bidders should discover errors or ambiguities in the documentation, they must inform the architect in writing at least seven days prior to the submission date. Any changes or addenda will then be issued by the architect to all bidders.
Breach of contract: An action for specific performance
If successful, the court orders the party in breach to fulfill his or her obligations under contract
Standard of Care
In all cases, it is the "reasonable standard of care" established by common law against which a defendant's performance is matched and judged. In the case of the architect, the standard is considered to be the average standard of skill and care of those of ordinary competence in the architectural profession.
Construction Contract Insurance
In most building contracts, both parties are required to insure against contingencies relating to personal injury and property damage resulting from operations on site and, optionally, project management protective liability
Refusal of Further Payment
In some cases, the contractor may be denied further payment. However, this should be handled carefully, as it may provide grounds for termination on the part of the contractor. Note: delay on the part of the contractor need not necessarily result in penalty if sufficient cause can be shown to substantiate a legitimate alteration to the contract documents.
Conservation of Historic Buildings and Landmarks
Increasingly, federal, state or local government authorities are taking steps to preserve historic districts, or individual historic buildings. Where this type of land use control exists, there are often provisions to alleviate the possible financial burden on the owner.
If an owner makes a change, how are the contract time and amount affected?
It depends, they may or may not be affected. In most instances, changes tend to increase the amount of compensation but do not generally include an extension in the time. Changes are often referred to as extras.
What is "total float"?
It is the number of days a activity can start or be delayed. If an activity has a total float of three days, once the activity has been delayed by three days, there is no more total float and this activity becomes critical.
General Liability Insurance
Liability insurance is a part of the general insurance system of risk financing to protect the purchaser (the "insured") from the risks of liabilities imposed by lawsuits and similar claims. It protects the insured in the event he or she is sued for claims that come within the coverage of the insurance policy.
Execute Records Retention Policy: PM
Managing records on a project is an essential activity that makes it possible to handle and use project documentation in the way that ensure smooth capturing of documents and papers by seniors, team members, and other stakeholders. Being a part of overall document management, records management allows a project manager to direct and control document flows throughout the project lifecycle, while ensuring that every single document or record serves the operational needs and helps teams capture and retrieve necessary information. It creates a framework for running project activities and procedures and paves the way for analysis, lessons learned, historical reviews, etc. Managing project records is an important responsibility of a project manager who must ensure that every document or file is properly designed, formatted, communicated, secured, stored, and archived. The manager should also keep the records up-to-date and relevant. If to look at records management at the highest level, you may see that it is similar to a process rather than a responsibility. So I regard it as a process which has certain inputs, consumes some resources, and generate definite outcomes. Here's the definition of project records management:
Milestone List
Milestones are tools used in project management to mark specific points along a project timeline. These points may signal anchors such as a project start and end date, a need for external review or input and budget checks, among others. In many instances, milestones do not impact project duration. Clients will most often use a milestone list schedule in their RFPs because they are the most simple and straightforward and concise way of conveying basic project schedule Information to potential consultants.
Are the punch list items the limit of the contractors responsibilities?
Not necessarily, failure to include any items on such punch list does not alter the responsibility of the contractor to complete all work in accordance with the contract documents.
A project manager is under pressure to meet an extremely demanding deadline within the next three weeks. Which of the following actions would best allow the project manager to ensure that this deadline is met?
Of the answers provided, asking members of the existing project team to work overtime to meet the demanding deadline would best allow the project manager to ensure that this deadline is met. While the other answers provided could increase efficiency, each would require team members to either learn new skills while also trying to meet this deadline (which would be extremely difficult given that the deadline is three weeks away), or would require additional oversight from office management. In both scenarios, productivity would, most likely, suffer.
If a landscape architect working for a city designs a flawed drainage system and if fails (due to the design)...who is liable?
Of the options provided, the most likely outcome would be that the city would be held liable for any damages related to the defective drainage system. This would occur because the landscape architect is an employee of the city and because design-related flaws were to contribute to property damage to these residences. If a contractor was involved in such a project. they would generally be held liable when construction-related flaws contributed to the failure of the drainage system. Although the area in question is prone to frequent flooding, this and the notion of'"acts of god"" would not negate any claims against the town because the damages were round to be design related.
Indemnity
One party may secure or "indemnify" another against liability for loss or damage resulting from certain circumstances (generally good practice to express events in written contract)
Design-Builder
One stop shop for design and construction. The design-builder may provide all services or may subcontract parts of design services or construction work. Contractors are held to a vendor's standard of care which differs from that of a professional. The vendor's standard is based on performance of the work specified in the contract documents. Architects in this arrangement may substantially increase their liability.
Identification of Other project-specific procedures and standards
Other procedures and standards should be addressed when developing the project work plan. These include such things as a project work safety plan, CADD and drafting standards, special project accounting and invoicing procedures, project filing standards, and standard formats for documenting telephone calls and project meetings.
Titles and Deeds
Ownership of land is expressed by title, which can be transferred from one party to another. Transfer of ownership is accomplished by deed
Monitoring Progress: Schedule of Values
Schedule of Values which allocates value to various amounts or portions of the work can be used to a lesser degree to establish how well the original estimates of cost allocation match up to actual certification
Negligence
Separate from any contractual obligations which may have been agreed upon, a duty or standard of care under the law of tort may exist. If a person fails in this duty, a negligence suit could succeed. So the architect could be liable for the consequences arising from negligent behavior even in the absence of a contractual relationship. The extent to which any party may be held liable to others in tort depends upon their specific duty or standard of care. In contractual situations, the obligations of both parties are usually clearly defined, but in tort it is often difficult to determine the extent or even the existence of a duty of care. However, some duties of care have been defined by case law and/or statute.
What to do about clients with multiple voices?
Some clients have project teams of their own. The teams usually include someone designated as the client's PM, user-group representatives, and client stakeholders- those with particular interests in the project. In addition, clients sometimes have their own in-house staff of professionals who often contribute to the design of projects. Professionals can include environmental compliance experts, safety offices, engineers, architects, interior designers, etc. - members have different interests, opinions, ideas, concerns that are in conflict - as a general rule it is wise to take direction only from the client's project manager
Dispute Resolution: (3) ways
Sometimes a third party is needed: 1. litigation 2. arbitration 3. mediation
Negotiated Contracts
The owner selects the contractor directly (reputation, recommendation, etc.) and they negotiate the agreement and payment.
Breach of contract: Rescission
This is a discretionary remedy, enabling the courts to cancel or annul the contract
Permits
Under the AIA General Conditions, the contractor is responsible for obtaining the building permit and certain other governmental requirements e.g. licenses
Limited Liability Companies (LLC)
While having many of the characteristics of companies, LLCs are taxed by the federal authorities as partnerships. State law varies, although typically architects in LLCs can limit their liabilities for acts or omissions not directly under their control. Unlike a corporation, LLCs are not taxed as a separate business entity. Instead, all profits and losses "pass through" the business to each member of the LLC. LLC members report profits and losses on their personal federal tax returns, just like the owners of a partnership.
Meeting Procedures
Whoever takes responsibility for chairing the meeting--and this role may be taken by the construction manager, the owner's representative, the contractor, or the architect-- should prepare and distribute the minutes of the previous meeting and notify parties of the next one.
Rule of Thumb 3:
Work expands so as to fill the time available for its completion
Caveat
a caution; literally, "let him beware."
Surety
a party which undertakes to pay money in the event that its principal fails. (See BOND)
Plantiff
a person or organization which brings an action; the party which complains or sues in a personal action and is so named on the record.
Warranty
a promise that a proposition of fact is true.
Once a contract is awarded, owners generally want the contractor to submit...
a schedule! - progress schedule or critical path schedule - acceptance by the owner of the contractor's schedule places an obligation on the contractor to comply with the schedule, and for the owner to also abide by the schedule, or the construction duration might be altered - the schedule should be submitted before the preconstruction conference
Surety Bond
a surety bond is essentially a guarantee provided by a firm that states that the contractor will fulfill the terms of the contract. If the contractor defaults on the contract, the surety will then be obligated to satisfy the terms of the contract. This type of surety arrangement is common in construction.
A functional diagram should show which of the following elements?
a. The major proposed spaces as simple bubbles. b. The relative distance or proximity of the function/spaces to one another. c. Circulation patterns. d. Barriers or screens.
Collision
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.
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. an objection that an opponent's point is irrelevant or invalid, while granting the factual basis of the point.
Foreign Corporation
an organization not incorporated in the state or jurisdiction in which it is performing work. A contractor must meet the legal requirements of the state in which it is performing work. These requirements may include incorporation and licensing as a construction contractor in that state.
Self-Performance Method (AKA force account work)
an owner may decide to self-perform some construction work or essentially do the work "in-house". There is no construction contract. The owner's own workers or employees are solely assigned the task of construction work. This method is criticized by contractors because the owner is frequently the lowest bidder and the contractor's claim they are at an unfair disadvantage.
Damages, Punitive
awarded by the courts in the amount of three times the actual damage. Treble damages usually apply in antitrust actions.
License
certificate or document which gives permission; a permission by a competent authority to do some act which, without such authorization, would be illegal or would be a trespass or a tort.
Addenda
changes made after the design is ostensibly complete, but prior to the receipt of bids. These changes are made in the estimating phase of a project. Changes made through addenda become part of the bids that are received and are therefore automatically included in the construction contract. Changes made after contract award must be negotiated apart from the contract.
What about winter!?
cold weather conditions are addressed in some contracts, often through the incorporation of a winter exclusion period or winter exception period. A winter exclusion period consists of a block of time in the winter months during which not contract time is consumed. - owners without winter exclusion tend to use working day schedules
1. Defining
defining the design project's scope of work, budget, and schedule-in effect, determining the project objectives
Consultants shall issue interpretations and clarifications directly to contractors for their portions of the work. (true or false)
false
5. Assumption
identify the uncertainties or threats and accept their potential impact on the project because the cost of prevention, mitigation, transference, and contingency planning are greater than their possible impact
Cardinal Changes
if the owner demands a change in the contract documents which goes beyond the intent of the original contract, this may be construed as a major change, or to use the federal procurement expression, a "cardinal change". Such a change may give the contractor sufficient justification to stop work and to claim damages for the owner's breach of contract. In a privately funded project, the contractor may wish to renegotiate payment for a new contract, whereas in publicly sponsored work, it may be necessary to re-advertise the project.
What information is needed to give a good construction estimate?
it varies but generally includes... - project's intended use - scope - functional space program - size - quality - geographic location - site conditions - construction bidding climate - schedule
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.
Scope Creep
small changes that add up to prove quite costly - death by a thousand cuts - if the PM believes that a client request is not within the scope of work, the PM should tell the client at the time the request is made or as soon as possible
Subcontractor's Payments
subcontractors have their contracts with the general contractor. Thus, progress payments are made to subcontractors if the subcontract stipulates them. In most contracts with subs, the sub receives payment from the GC when the GC gets paid by the owner.
When is a submittal required?
submittals are not generally required for materials that are specifically identified in the specifications. However, if one of several materials can satisfy a specification, or if an equal material is proposed by the contractor, submittals will be required. - eventually approval must be received on all items
Damages, Consequential
such damage, loss, or injury which does not flow directly from the act of the party but only from some of the consequences or results of such act.
what if a drawing is 0% complete
the drawing is not started
Contractual Duty (Contractual Obligation)
the obligation which arises from a contract or agreement. In a typical contract agreement, the parties are required to fulfill the duties enumerated in the contract writing between the two parties, but also from the contract agreed to by other parties. An example of this is the duty owed by the Landscape Architect to the contractor as a result of the requirements called out in the contract between the owner and the contractor.
Stipulated Sum
this is expressed in a finite, dollar amount
Cost-Plus a Fixed Fee
this type of arrangement removes the incentive for the contractor to increase costs in an attempt to increase the overhead and profit allowance.
Fixed Completion Date
this type of contract stipulates a date on which construction is to be completed but may have the shortcoming of an undefined start date.
Contingent Liability
under the rules of contingent liability, an injured third party (not an employed worker) is not or should not be affected by a contract between two other parties. On a construction site, an injured party can sue the owner under the premise that the owner is jointly or wholly liable.
what are some of the most important things to record on an as-built?
underground utilities or things not readily observable
What is the definition of a "regular" bid?
unfortunately there is no uniformly defined definition
Goal one: to reach the end of the project
- "the end" means finishing the project while meeting its unique set of objectives
(4) Ways to settle a claim:
- Settle by admitting responsibility and fulfill agreed compensation - Litigation (through civil court) - Arbitration - Mediation
When to Arbitrate:
- after attempting to resolve the dispute through mediation - by agreement after the dispute has arisen - by agreement before the dispute arises (i.e. as a condition of the contract) - by order of court (many states will enforce an agreement to arbitrate)
Announcement (bid)
- all bidding parties must be informed of the selection - the unsuccessful bidders are often given a list of the bid figures, and the bid deposits are returned once the documentation is received. - the successful bidder should be informed of the decision in a way which does not form a legally binding agreement prior to the signing of the contract documents - often the bids of the next two or three lowest bidders will be retained for a period as a contingency measure
Before final payment is made, the owner and architect should carefully check that:
- all required certificates of inspection, bonds, record drawings, and warranties have been delivered to the owner - key schedule has been delivered (if not already undertaken) - any instructions regarding operation of equipment have been supplied - all accounts have been adjusted (contract sums, deductions, change orders, deductions for uncorrected work) safety measures include: - ensuring that the owner is protected from all possible lien claims -requiring an affidavit that all wages, and bills for materials and equipment (or other debts connected with the work which might conceivably revert to the owner) are payed in full
Reverse Auction Bidding
- alternative bidding process - internet-based process - contractors are required to use a prescribed website to submit their bids. - this is an open website so all bids can be seen by other contractors - each contractor knows the amount they must bid to bid under the low bidder - some consider the process to be unethical, a method of bid shopping - it is hard to take into certain variables such as safety record, reliability, financial soundness, quality of past work and so on
A Generalist's experience, education, and attitude...
- an expert is a person who knows more and more about less and less - projects are multidisciplinary - a good PM is a generalist (which is the opposite of a narrowly focused expert) - creative problem solver - need a general grasp of the design process, the design business, and enough of an understanding about the construction industry to communicate effectively with the members of both the design and construction professions. - need to speak intelligently about planning, design, architecture, engineering and construction - also must know what one does not know - make adjustments in the work, based on the greater expertise of others
What constitutes a NOT regular bid?
- bid without bid security (bid bond, check or cash) - bid security that is too low - bids that fail to acknowledge an addendum - late bids - bids not dated - bids not with required copies - bids without a signature are often accepted because the intent was obvious ***the ultimate decision about the contract award lies with the owner. The owner invariably has the right to reject any and all bids while obligating the award (if made) to the lowest bidder.
What would a contractor be asked to submit in postqualification?
- experience on previous jobs - capital structure of the company - available personnel - machinery and equipment - licensing
Alternatives to the basic contracting methods: list (4)
- fast tracking - design-build work - turnkey contracts - bridging
When is the Cost-type contract useful?
- in negotiated contracts - where unknown conditions might be encountered - if new building methods or materials are being used - where final scheme designs are not fully completed
What if the contractor encounters differing site conditions...what do they do?
- it is important to follow the specific procedure in the contract provision - the contractor should give prompt notification to the owner's representative after the discover and that the conditions not be disturbed until the representative can observe them - the contractor does not need to claim breach of contract or failure of meeting of the minds, the contractor must make the case that the site conditions were not foreseeable and could not be reasonably known at the time of bidding. - note if there is NO provision for differing conditions in the contracts, the contractor may be assumed to be at risk and therefore have higher initial bids
Project Filing standards
- need to keep track of the paperwork - establish both the computer and hard-copy filing standards - large projects may require a project clerk to assist PM with filing and keeping track of documents - large firms have standardized filing systems
The Project Work Plan Document
- once the plan is figured out, it should be committed to paper
Pre-Design Checklist:
--Client Work Session = client vision and critical success factors = project dilemma = project thesis = client care plan -- Internal Project Strategic Kick-off Meeting = work plan/schedule = task breakdown and budget = quality management plan = deliverables plan = risk and change management plan --Coordination and Collaboration Process with Project team = communication plan = document distribution --Project Performance Metrics = metrics strategic kickoff (SKO) meeting = SMART goals --Inventory and Data Collection
Bid Opening
-If bids are opened in public, they are often read aloud, whereas if opened in private, the bidding information may be sent to all bidders at the owner's discretion - owners can reject any bids if they are too high or do not conform with stated requirements - the bidding documents do provide, that if a contractor is chosen it is on the basis of the lowest responsible bid. - decision is usually reached within 10 days of bid opening - In publicly bid work, the owner is often constrained by law to accept the lowest responsible bidder or may be held criminally liable - in privately bid work, the commitment is not as clear, although the rules of bidding should be adhered to - granting a contract to any other than the lowest bidder should only be made with very good reason to prevent suspicion of favoritism and ill feelings among contractors
Iteratively vs. linearly
-In general, an architect thinks iteratively, trying out design solutions over and over until the design is just the way the architect wants it. - an engineer tends to think linearly. the engineer wants to do something once and then move to the next task - PMs need to be able to think both ways
What are (2) Particular duties of care that are of concern to the architect: (think tort-negligence)
-Strict Liability -Vicarious Liability
Can an owner terminate a contractor based on a delay? Can a contractor terminate based on a delay?
-delays caused by the contractor may be of such magnitude as to give the owner just cause to terminate the contract (drastic) - Contractors do not have the same right for owner caused delays - the only time a contractor can terminate is when the owner delays in issuing a certificate of payment, or when there is a delay in making payments - most standard contracts contain provisions that provide for an extension of the contract time for owner-caused delays
Design Specifications
-design specs are also called material and workmanship specifications, method and materials specifications, and prescriptive specifications -a particular kind or type of material is to be used, a particular dimension is required, the installation instructions are given, and so forth -if the spec concerns a method it will state in detail exactly what the contractor must do to satisfy it
Extra Work vs. Additional Work
-extra work consists of work that is outside the entirely independent of the contract. Essentially, it is work that need not be performed in order to satisfy the terms of the original drawings and specifications - additional work consists of work that must be undertaken to meet the contract requirements and without which the work requested in the original contract could not be completed.
What might restrict a court in their jurisdiction?
-location and type of case involved - financial amount claimed
Suppliers
-material suppliers and manufacturers contract directly with the prime contractor - subcontractors and sub-subcontractors have no contractual relationship with either the owner or the architect -similar legal rights exist where nonpayment occurs, and appropriate bonds should be required from the contractor to give necessary protection -architects and owners have the same right to reasonably object to any suppliers
Bid Form
-should be sent to all bidders -contains all relevant information concerning the project. Each bidder will then return the document complete with the price of the work, or base bid, and any other figures which may be appropriate (e.g. alternate bid, substitutions, etc.)
Minor Changes
-when alterations to the contract are considered necessary, but are sufficiently small as not to change the contract time or the contract sum, the architect is empowered to order such alterations which are referred to as "minor changes". Both owner and contractor will be bound by such a written order.
Torts have which of the following characteristics?
.torts are a private or civil wrong or injury that occurs independent of a contract and are not criminal in nature. Because they do not involve contracts and are not explicitly criminal acts, torts are often settled through common law interpretation. Torts generally result from a specific action or failure to act and, in this sense, violate social norms. For a tort to occur, four general conditions must be met. One party (generally the defendant) must owe another party a duty (generally the plaintiff), there must be a breach of performance of that duty ( this is where the concept of "social norms" applies), someone must be harmed by this breach of performance and there must be a clear relationship between the harm suffered and the breach of performance.
Examples of Risk Management Techniques...
1. Assigning staff to project types with which they have prior experience 2. Keeping intact design teams that have proven to be productive and successful 3. Accepting projects from clients with outstanding professional reputations 4. Awarding bids to contractors with which the design office has prior (and positive) experience
Most major suits against architects are concerned with what (2) things?
1. Breach of contract 2. Negligence
(2) Types of civil law that are relevant to design practitioners:
1. Contract Law 2. Tort
(2) Variations of the Cost-type contract?
1. Cost plus award fee 2. Cost plus incentive fee
What are the 6 fundamental project management activities?
1. Defining 2. Planning 3. Directing 4. Coordinating 5. Monitoring 6. Learning
Selection of the Architect (3 Ways)
1. Directly: direct selection is a function of reputation, recommendation, previous contract, or chance. 2. Comparatively: this method is usually used by institutions, public agencies, etc. where a number of architects will be asked to submit their resumes for consideration by a board. (age and achievement of the firm, details of the practice, references, names of preferred consultants) Interviews may be part of this selection. 3. Competitively: competitions may be: a. selective, where a limited number of entrants will be invited to participate b. open, where anyone may enter Architects are advised only to enter competitions approved by the AIA.
Fayol (french industrialist) outlined 14 principles that he believed are essential to proper management. These are:
1. Division of work 2. Clear lines of authority 3. Discipline 4. Unity of command 5. Unity of direction 6. Subordination of individual interests 7. Remuneration (fair compensation for work performed) 8. Centralization 9. Scalar chain (hierarchical ladder) 10. Order 11. Equity 12. Stability of tenure 13. Initiative 14. Esprit de corps (sense of pride for the organization)
(2) Common building contract types
1. Fixed price/stipulated sum contracts 2. cost-type contracts
What questions should a project manager ask to help determine a project's objectives? (from Ramroth)
1. How much does it cost to do it? 2. What needs to be done? 3. When will it be done? 4. Who will do it
PMI organizes its management process procedures into five "project management process groups":
1. Initiating processes 2. planning processes 3. executing processes 4. monitoring and controlling processes 5. closing processes
(3) Good things to do at a weekly meeting (there are more!)
1. Meticulously record meeting minutes and issue those meeting minutes to all relevant parties 2. Send out the meeting agenda to all relevant parties the day prior to the meeting 3. Ensure that all items on the meeting's agenda are covered to some degree during the meeting
Time Based Compensation for Services include...
1. Multiple Direct Personnel Expense 2. Multiple of Direct Personnel Expense 3. Professional Fee Plus Expenses 4. Hourly Billing Rate
(3) Major types of corporations
1. Profit corporation 2. nonprofit corporation 3. professional corporations
8 Basic Risk Management Strategies for forming a contract:
1. Use standardized contract forms whenever possible 2. Understand the provisions of the contract 3. Avoid contract language that increases risk 4. Avoid unacceptable risks 5. Use fee types appropriate for services provided 6. Provide more comprehensive services 7. Identify excluded as well as included services 8. Specify how disputes will be resolved
If a project fails to match zoning requirements, what can you do? (4) things
1. Variance 2. Special use permit 3. Conditional permits 4. Rezoning
A cardinal change hinges on (2) issues...
1. a cardinal change is assumed if the essential identity of the project is altered (2 story building to 10 story building0 2. a cardinal change is one in which the method or manner of the anticipated performance is so drastically changed that essentially a new agreement is made Note: many small changes can cumulatively by considered a cardinal change
In PM parlance, defined chores are called "tasks". A task is an essential activity or increment of work. Every task requires three elements to fully define it...they are:
1. an objective 2. a duration 3. a level o effort
Taylor's assessment of how to have more efficient and productive work is summarized into four basic principles: (Taylor developed and defined work tasks)
1. base work methods on the scientific study of tasks 2. train workers to perform the tasks rather than hope they will "catch on" by themselves 3. Manage and monitor workers to make sure that the scientifically developed tasks are performed properly 4. spend as much time planning the work as performing the work
Steps for the PM in the design process:
1. complete and understandable program 2. well-defined concept 3. design development 4. contract documents Note: always need client buy-in
What are the 6 objectives of a project work plan?
1. definition of the project objectives 2. identification of the project team 3. breakdown of the project into task budgets 4. development of the project schedule 5. establishment of the project quality-control program 6. identification of other project-specific procedures and standards
Types of Building Codes: (3) types
1. specific regulations 2. functional requirements 3. performance standards Note: there are "The Model Codes" developed to assist local authorities in the development of building codes. Ex. The International Building Code
What constitutes a "differing site condition"? (2) general categories:
1. the actual conditions differ materially or are at variance with the conditions indicated in the contract documents 2. the actual conditions are of an unusual nature and differ materially or are at variance with what the contractor should have reasonably anticipated (basically not foreseeable based on examination of the contract documents and the site investigation)
bid bonds are a means of guaranteeing the owner that the bearer (generally a contractor) will enter into a contract and provide all required bonds should they be awarded the contract. What is the typical face value for a bid bond?
5% of the contract amount
How big is a project management budget generally?
8-15% rule of thumb percentage for other disciplines are harder to come by, because so many variable are involved in every project is a bit different
4 Basic Risk Management Strategies that are non-contract related:
9. Inform the client of potential risks 10. choose consultants carefully 11. Do no start production of contract documents until the design is well defined and approved by the client 12. Avoid running projects without budget and schedule contingencies
Zoning Appeals
A Board of Zoning Appeals is usually established in each locality and given the power to modify, revers, or uphold zoning decisions. Appeals boards are also usually empowered to grant variances and special use permits.
backcharge
A billing made to collect an expense incurred in a previous billing period. A back charge may be an adjustment due to an error, or it may be to collect an expense that was not billable until a later period due to timing issues.
Breach of contract
A breach occurs when a party to the contract does not fulfill obligations. If the breach "goes to the root" of the agreement, the contract is treated as discharged. Such breaches are referred to as "material" and the injured party may seek on of the following remedies: 1. Refusal 2. Rescission 3. An action for specific performance 4. An action for injunction 5. an action for damages 6. an action for a quantum meruit
Examples of financial guarantees
A financial guarantee Is a general category of financial form or mechanism that is issued by an entity other than a contractor and is meant to provide some means of financial assurance. Surety bonds. irrevocable letters of credit and cash deposits are all examples of financial guarantees.
Impossibility: claim for cause of delay
A further reason which may be claimed as the cause of delay, and possibly lead to the termination. If sufficient cause exists to prove that the work cannot be finished, the contractor may be excused from further performance, and might be able to recover damages from the owner. Impossibility is generally either: 1. actual 2. practical
Hold Harmless Clause
A hold harmless clause is a statement in a legal contract stating that an individual or organization is not liable for any injuries or damages caused to the individual signing the contract. ... This clause is also known as hold harmless provision.
Limited Liability Partnership
A limited liability partnership (LLP) is a partnership in which some or all partners (depending on the jurisdiction) have limited liabilities. It therefore exhibits elements of partnerships and corporations. In an LLP, each partner is not responsible or liable for another partner's misconduct or negligence.
Mechanic's Lien
A mechanic's lien is a type of legal claim that permits workers and materials suppliers to place a claim on property in the event that they are not paid. Prior to placing this lien, the party in question must file a notice to owner for the lien to be valid.
An agreement for professional services would be formed between which TWO of the following parties?
A professional services contract would be formed between an owner and a consultant. While a owner can enter into a contract with a contractor and a contractor and subcontractor can enter into an agreement with one another, neither one of these contracts would be considered a professional services agreement.
Expense Report
A report that tracks expenses incurred during the course of performing necessary job functions. Examples include charges for gas, meals, parking or lodging. If your employees spend a lot of money in cash, you need to make sure you have them list these expenditures on an expense report form.
Lien 2
A right to keep possession of property belonging to another person until a debt owed by that person is discharged.
Waiver
A waiver indicated the giving up by one party of rights which may prevail over the others. For example, in some instances, the acceptance of payment may constitute the waiver of certain claims against the payer.
Breach of contract: an action for injunction
An injunction is a legal means of preventing further action by the party in breach
"contingent liability" implies?
An injured third party is not affected by a contract between two parties
Assignment of Contracts
Assignment refers to transfer. In contracts, assignment occurs when one party to an agreement transfers the rights or obligations of the agreement to another party who was not originally involved in the agreement, but became involved only after the assignment was made. Normally it is possible to transfer such rights or obligations to another party. However, this may be expressly prohibited by the terms of the agreement.
Submission of Bids
Bids must be delivered in writing, contained in sealed, opaque envelopes prior to the time and date specified in the advertisement/invitation to bid. Oral bids are not acceptable. Any bids received after the specified time should be returned unopened.
Building Codes
Building codes vary in their scope but tend to concern health, safety, and welfare. Typical codes include sanitary provisions, fire protection, structural requirements, etc. to ensure the code provisions are complied with, building permits are required for all building work. Building are divided into use or occupancy groups according to their proposed purpose (assembly, business, residential, storage, etc.)
To determine the schedule status of a project, the project manager should...
Calculate the amount of work completed and compare it to the total work to be completed for the current project phase. The project manager would first need to calculate the amount of work completed and should then not only compare It to the total work to be completed, but compare it to the total work to be completed for the current project phase. This would allow the project manager to determine if the project is on schedule and also understand the degree to which the project Is deviating from the anticipated schedule.
A landscape architect would like to utilize a specific prefabricated bicycle enclosure for a project. The bicycle enclosure is available for purchase through a local manufacturer's product catalog. When drafting the specification for this specific product, what type of specification would the landscape architect be writing?
Closed Specification! Because the landscape architect wants to utilize a specific prefabricated product, they would be writing a closed specification. Whereas closed specifications require a specific item, open specifications are less restrictive and would permit the use of numerous similar products that the contractor could choose from, Design specifications address issues of workmanship, methods and materials (and could be used if the bicycle enclosure was to be fabricated by the contractor) and performance specifications address the technical performance of a finished product without addressing the Information covered in a design specification.
From a professional liability perspective, which is the most appropriate role for the landscape architect with regard to observing that a project is being built in general conformance with the construction documents and according to the design intent?
Construction review, which includes periodic site visits.
Contingency
Contingency, an amount of funds added to the base cost estimate to cover estimate uncertainty and risk exposure, is a topic of interest for both project managers and sponsors alike. Assessing time contingency is an important part of construction project scheduling because it helps generate a more reliable schedule. Traditionally, the assessment is made using expert judgment and inherently inserted to the estimated activity duration and/or comprehensively placed at the project level.
Insurance:
Contracts of insurance may be entered into by the architect, the contractor, the subcontractor, and the owner to protect their respective interests. (usually regarding property, safety, and optionally project management liability)
During the problem definition stage of a project, the landscape architect should accomplish which of the following?
Define the client and the user. Determine the type of solution expected. Note: the problem definition can vary throughout the project...
Budget Recovery Strategies: once a problem is identified, what must the PM do to correct it?
Depends on the problem and the PM must decide how to correct it
The primary goal of a post-construction evaluation is to:
Determine if the design as built meets the needs of the owner and site users
Rule of Thumb 13:
Do not let team members discuss scope with the client without the PM present - PMs from all sides must be there
Specifications
Drawings and specifications should be developed together to avoid omission or duplication of information.
The Landscape Architect's Duties: (3) Categories
During the design development phases, the architect is seen (by some courts of law) to fulfill the role of independent contractor, whereas during the construction stage, this role becomes that of a limited agent. The limits of this role are expressed within the owner-architect and owner-contractor agreements, and great care should be taken by the architect not to exceed or mishandle the powers necessary for the administration of the contract. Duties can be grouped into (3) loose categories: 1. Performance evaluation 2. Certification 3. Adjustment
Value Engineering
Employed In the design and construction industries to reduce project costs while (ostensibly) maintaining the quality and design intent of the project as originally designed.
Architect and Engineer Relationship
Engineers enter into a service agreement (contract) with the architect. Although they must perform to the standard expected of his or her profession, the architect is still vicariously liable for an engineer's negligent acts of omissions.
Errors & Omissions Insurance
Errors and omissions insurance (E&O) is a type of professional liability insurance that protects companies and their workers or individuals against claims made by clients for inadequate work or negligent actions.
Estoppel
Estoppel is a principle by which a contract becomes binding in spite of the fact that no formal agreement was made between the parties concerned. Estoppel is essentially the result of a court action asserting that an agreement or contract exists, when there is an implied agreement.
Implied Warranty
Every construction contract includes warranties. Some warranties are written into the contract expressly, while other warranties are implied by law. Whether the warranty is express or implied, each warranty can lead to liability for a party to the contract if the warranty is breached in some way.
Maintenance bond (warranty)
Guarantees that the contractor will rectify defects in workmanship or materials for a specified time after project completion.
A change order is conducted in which sequence?
Identification of work, approval by owner, procurement of materials.
Work Breakdown Structure
Identifying and defining all the necessary project tasks is a major step. But arranging them in a meaningful, structured way makes them into a useful tool. The common structure used to organize project tasks into a useful form is called the work breakdown structure (WBS).
Violations of Building Code
If at anytime during construction the inspector feels that the work is not sufficient to satisfy building code, the contractor will be required to amend the work before further certification. In certain instances, the building permit can be revoked and a Stop Work Order may be issued if the inspector considers the violation to be sufficiently serious.
During construction, a structure is damaged by fire. Which of the following forms of insurance would cover such damage?
If caused during construction, damage to a structure, whether caused by fire or some other means, is covered through builder's risk insurance. It should be noted that the general contractor - not the owner - is responsible for obtaining this insurance.
Variations
If changes are made to the contract requirements by the owner, the architect can issue a Change Order which may provide for extra payment to the contractor, as well as extra time for completion
What is a negative variance?
If the ACWP is greater than the BCWP then a project is running over budget, the difference would be a negative number, which is called a negative variance. This will attract accountants and upper management.
Changes: 4 Methods to Compensate
If the AIA contract is used, as long as changes required by the owner are within the general scope of the contract, the contractor will be required to undertake the work with or without the latter's consent. The contract time and the contract sum may be adjusted to compensate for the extra work. Payment for changed requirements could be: - by mutual agreement on a lump sum - by unit prices (either agreed upon, or previously stated in the contract documents) - by an agreed cost of the work plus a fixed or percentage fee - by determination of the architect
Field Change
If the change has no impact on the contract's duration or amount, it is common to refer to it as a field change. Field changes can often be authorized by personnel in the field without direct owner approval. Field changes are typically minor, but are required to facilitate the construction effort.
Implied Warranty
If the construction contract contains no express warranty provision of compliance with the drawings and specifications, such a warranty is automatically inferred or implied. An implied warranty does not mean that the contractor guarantees that the completed project will be suitable for its intended purpose. Of course, owners would like that interpretation and often make it the basis for a legal claim, but courts have rejected this positions. There are two major types in construction: (1) Implied Warranty of information provided to the contractor--the documents are sufficient to build the project (Spearin Doctrine) and (2) Implied Warranty of good workmanship if not express in the contract Note: if a sub fails to comply with the drawings and specs the express and implied warranty may be breached.
Rule of Thumb 4:
If the office is not busy, the project will go over budget - when things slow down, employees feel it and begin to milk their work to make it last
A landscape contractor needs to purchase 120 shrubs in five-gallon containers for use in a project. A retailer is selling these shrubs for $10/each, with all orders past 100 shrubs being discounted by 5%. What is the total purchase price of the shrubs before tax?
If the question were worded as "over'' (ie all orders over 100 shrubs ..), the discount would have applied to all 120 shrubs and $1,140 would have been the correct answer. But it said "past" so only materials over 100 are subject to the discount. Answer: $1,190
Rule of Thumb 2:
If the schedule slips, the project will go over budget
What if a contractor does not finish a project within the contract date?
If time is contractually of the essence, and if the contractor fails to perform within the contract time, the owner is entitled to damages. If no other provisions exist in the contract, the contractor is assumed to have breached the contract. This can lead to long and expensive court battles. This can be avoided through the inclusion of a liquidated damages provision in the contract. This is essentially an agreement, at the time of drawing up the contract, about the cost to the contractor for each day that the project extends beyond the contract time.
General Partnership
In a partnership, each partner is an agent of the partnership, each partner has the power to enter into the binding contracts in the name of the partnership and each partner has unlimited liability to creditors. Limitations can be placed on the powers of any partners in a partnership and may be used to regulate some aspect of the powers available to said partner. None of the above information should be confused with limited partners, a type of partnership that is distinct from a general partnership. A limited partner generally contributes some tangible asset to business partnership (such as cash or real estate) and shares in the profits and losses of the business. However, unlike in a general partnership, a limited partner provides no services, has no management role and their liability is limited (generally to no amount greater than the amount of the investment made in the firm)
Scope of Zoning Code
In addition to restricting use, the zoning regulation grew to cover matters such as: - Density - Light - Air - Space - Height of buildings - Bulk of buildings - Plot sizes - Aesthetic considerations
Liens
In cases where goods and/or services have been provided, the supplier may be able to secure a private mechanic's lien or "hold" upon the recipient's property to ensure payment of outstanding fees. The applicability of lien laws varies from state to state. A lien effectively encumbers the title of the property and may be released after satisfactory settlement of the debt. Some states allow the architect to impose a lien for design work and administering the contract, whereas other states only allow a lien for work done by the architect on site. A few states do not permit the architect any liens at all.
Strict Liability
In certain cases, liability may exist independently of wrongful intent or negligence. For example in the specifications of materials, where the architect may be held liable for requiring new products that subsequently fail.
Payment (duty of LA)
In certifying payment, the architect must be satisfied that the amount of payment represents the stated value of the work
Conditional Permits
In some cases, permission may be granted by the zoning authority contrary to the ordinance, provided that the applicant agrees to fulfill certain conditional requirements (i.e. noise control, provision of fences, etc.)
Vicarious Liability
In some circumstances, one party is responsible for the negligent acts of another without necessarily contributing to the negligence. A common example is the employer's responsibility for the acts of employees in the course of their work. A related example is the architect's liability for the defective work of consultants.
A project manager is managing a team of three entry-level landscape designers and one licensed landscape architect. The project manager has assigned a significant amount of basic and repetitive work to the licensed landscape architect, leaving the entry-level landscape architects with little work. What action should be taken?
In the above scenario, the project manager has allocated too much work to the landscape architect and given them a workload filled with basic tasks that would be better taken on by more junior members of the project team. Because of this, the project manager should reassign much or all of the basic and repetitive work to the entry level landscape designers to allow the licensed landscape architect to address more complex tasks.
Appeal Procedure
In the event that the appellant is unsuccessful in the appeal, there may be a further application to the regular courts in certain limited circumstances (e.g. if the zoning board acted beyond the scope of its authority)
What is an SKO meeting?
Internal Project Strategic Kick-off Meeting - should be held at the commencement of a ll projects, design phases, and major tasks - primary purpose is to inform all team members of the purpose and organization of effort - a separate "metrics SKO" should be convened early in the project to set measurement objectives that will guide the project
Eminent Domain
Is the right of the federal government or a state government or other public agency to take possession of private property and appropriate it for public sue. The property cannot be taken without due process of law where the landowner can make a case against seizure of the land. Also a landowner must receive fair compensation for the land seized.
Office organization strategies
It is advisable to record and maintain uniform procedures and techniques of office management: for example - standardized communication methods - standardized drawing conventions - explicit roles, duties, and responsibilities for all personnel - use of standardized forms for office administration -other standardized paperwork -produce "office Standards Manual"
When does the warranty period begin?
It is important that the contractor and the owner be aware of the timing of the warranty period, which is not always clear cut. The warranty period typically begins at substantial completion, but it could begin after final acceptance by the owner.
Generally, it is difficult and, therefore, expensive to finish up the last 10% of a design project. Prudent project managers plan their projects knowing that it will take about X% of the budget to finish the last 10% of the project...
It will take about 20% of the budget to finish the last 10% of the project
When a Landscape Architects provides direct and specific guidance to a contractor's worker, what can occur?
Landscape architects should always avoid communicating directly to the contractor's workers and never provide them with Instructions or guidance of any sort. Doing so can have numerous negative effects, including shifting liability for the work or any impacts to the construction schedule onto the landscape architect As a general rule. if a question arises on a construction site the contractor should Issue an RFI and allow the landscape architect to respond via the procedures outlined during the construction kickoff meeting.
Special Use Permit
Many localities make provision for the issuance of a special use permits in given circumstances, which may be expressed in specific or general terms by the zoning ordinance
Selection of the Mediator
Mediators in the construction industry are usually experienced professional, who are trained in dispute resolution. If they are part of a recognized organization specializing in resolving problems, such as AAA, they will be required to undertake regular training. - while parties choose anyone they wish to mediate their dispute- the process is entirely voluntary- if they use services of AAA, they will be sent list of qualified mediators. Either party may object until a suitable candidate is found.
Can a charrette take place over one day?
NO it usually takes place over several days
Occupier's Liability
Occupiers have a duty of care to all persons lawfully on their premise, and the duty varies according to the classification of the visitor: 1. Invitees 2. Licensees 3. Passers-by 4. Trespassers
On public projects, a bid from a contractor could be rejected because:
On private projects, an owner can reserve the right to reject any and all bids from contractors. Public projects have different requirements, and bids can only be rejected for specific reasons. For example, a bid could be rejected because bonding requirements are not met, because the bid was submitted late (no matter the reason) or because the bid form was altered by the contractor (no matter the reason). While public projects often · but not always ·award projects to the lowest bidder, a contractor's bid would not be rejected simply because it was not the lowest.
Who owns a designer's design?
On public works projects, the design invariably belongs to the owner, as dictated by state law. On private projects, design ownership is established by the contract between the owner and the designer. Usually architect's retain such ownership rights if the owner-designer contract does not address the issue.
Design Development Services
Once the schematic design has been approved by the owner, along with an updated budges, the architect should start preparing more detailed illustrations and data related to the proposed design. Consultants may be employed at this stage, providing integrated input into the design process. A further updated budget must also be submitted to the owner during this phase. Submittals to the owner could include: - site plan - floor plans - elevations - sections - schedules and notes - preliminary draft of the project manual - outline specifications - other data (electrical and mechanical systems)
Nuisance
Ownership of property generally entitles the owner to enjoy the land without interference by neighbors. Sometimes the activities of one party affect the enjoyment of the other to the extent that legal action might be taken to prevent further disturbance. An action for nuisance might be brought in respect of: - loud noises - antisocial activities (excessive vibration cause by pile driving) - pungent odors or smoke - unsightly appearance of neighbor property Note: Nuisance is classified as a tort
Partial release of a lien
Partial release of lien is a document from a subcontractor or supplier that informs the owner the extent to which payments have been made to them by the general contractor
Initiating Mediation
Parties can agree at any time to submit their differences to mediation, although some contracts, such as the AIA , now include mediation clause as a prerequisite to arbitration and litigation
What is the first and foremost requirement when soliciting bids for a public project?
Public projects have distinct criteria from private projects when listing bid advertisements. First and foremost of these requirements is that all bidders must be treated alike and evaluated with the same criteria. Although it could be considered acceptable in the context of a private project, the staff landscape architects would not be allowed to provide advance notification of the bid advertisement to well-regarded contractors.
Reference Specification
Reference specifications are found in the technical specifications and make items, established tests, or formal procedures a part of the contract documents by reference. It is common to have a specification that will establish the performance of a product as measured by a standard or accepted test procedure. this can be part of a design or performance specification. This type of spec is generally used to ensure that a product conforms to industry-accepted criteria. Such test procedures are established by national groups. - they not only specify quality but also set up a standard procedure by which the acceptability of the finished product can be determined
A landscape architect has received a site survey for a project from the prime consultant, but the survey is missing basic information. What should the landscape architect do?
Request that the prime consultant work with the surveyor to provide the missing information
Division 2 of the Construction Specifications Institute (CSI) addresses which of the following categories of specification?
Sitework Concrete is listed under Division 3, Masonry is listed under Division 4 and Finishes are addressed in Division 9.
If overruns are considerable and affect more than one discipline, it may be necessary to modify the work plan...
Sometimes it is possible to find a more effective or efficient way to perform the remainder of the work. IF so, budgets can be revised to compensate for overruns. The new work plan must be distributed to all team members. The PM needs new commitments form the team members to the new work plan and revised budget.
The Architect and Consultant Relationship
Specialists may be employed by either the architect or the owner to undertake the work. It is usual for the architect to form a contractual relationship with a consultant although, in some instances, it may be possible for the owner to contract directly with the specialist. Note that the architect is vicariously responsible for the errors and omissions of the consultants. Owner's recommendations may be considered but the final choice should remain with the architect. The architect can and should require all consultants to maintain errors and omissions insurance coverage. It is advisable for the consultant and architect to have a written contract. Sometimes it could be a joint venture or for a limited or clearly defined work a carefully drafted letter.
A landscape architect has been sued by a client and the case has been taken to court. During the trial, the landscape architect is found to be guilty of negligence and the client is awarded damages. The judge hearing the case would end the trial by issuing which of the following decisions?
Summary Judgement: The judge in this case would issue a summary judgement. "Abatement' refers to the authorization of the removal of an improvement not allowed by government codes, 'tort" is a private or civil wrong or injury and "arbitration" is the process of settling a dispute through a impartial third party whose judgement is final and binding.
Bonding Capacity (the three C's)
Sureties generally stipulate a maximum value of uncompleted work that a contractor can undertake at one time. This is referred to as the contractor's bonding capacity. This level or limit is based on the surety's appraisal of the contractor's abilities and resources. This assessment is based on the "3 c's" of underwriting: Character, capacity and capital - if a company wants to bid on a particular project that would cause the company to exceed its bonding capacity, the project is not generally worth pursuing.
Synergy
Synergy is the process phenomenon in which the cumulative effect of a group is more than the sum of its parts.
Technical Specification
Technical specifications address qualitative or aesthetic-oriented information that cannot be addressed or easily shown through the designer's drawings. Such information would include material finishes and the quality of workmanship expected to be executed. The specifications themselves are typically broken down into general information, product information and execution. General Information would include the basic scope of work, product information would describe the specific materials to be used and any manufacturing or fabrication processes to be used in producing them and execution would describe the actual means of preparing, installing or constructing the item in question, as well as any quality or performance requirements expected.
As-Built drawings are generally drafted by...
The Contractor!!! Generally speaking, the contractor is responsible for drafting as-built drawings. As-built drawings are a way of documenting any changes to the design that occurred during the course of construction due to such factors as owner-authorized changes to the design and errors in accounting for existing site conditions. In essence, they serve as a record of the design as it is built.
OSHA
The Occupational Safety and Health Administration was set up by an Act of 1970 which makes it illegal to work in an unsafe place. OSHA has the authority to enforce safety standards, and to impose high financial penalties for violation of safety regulations.
Royalty
The architect's compensation may be calculated as a share of the owner's income or profit generated by the built project. Note: compensation calculation methods may be used in differing situations or combined in the same project.
Attractive Nuisance Doctrine
The attractive nuisance doctrine applies to the law of torts, in the United States. It states that a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by an object on the land that is likely to attract children.
For a court to rule that the attractive nuisance doctrine applies to a case involving tort damages, which of the four following conditions must be established?
The attractive nuisance doctrine requires the trespasser to be a child, that the owner know that children may be likely to trespass onto their property, that there is the potential for injury to occur on their property, that the children (due to their age) be unaware of the risks present on the property in question and that the property owner could have reduced the risk to a potential child trespasser through measures not enacted. The attractive nuisance doctrine does not require that the child must be under the supervision of a parent or legal guardian at the time of the trespass, nor for the property owner must prove that the construction site was active at the time of the trespass.
Multiple Consultant's Billing
The bill of the consultants hired by the architect is multiplied by a factor that accounts for the latter's administrative costs, overhead, and profit.
How long does a Charrette last?
The charrette may last several days, depending on the size and complexity of the project. The design team produces drawings, sketches, and diagrams during short work sessions, followed by reviews with the client's various user groups and stakeholders to attain their feedback. On the final day of the Charrette, the design team makes a formal presentation to the client summarizing what was learned during the process. Various alternatives are presented for discussion. After the Charrette process produces a conceptual design that is so promising it becomes the basis for further development.
The contract documents comprise:
The contract documents comprise: - the owner-contractor agreement - the conditions of the contract (including any supplementary details or other conditions) - the drawings - the specifications - any addenda previously issued, or modification (ie written amendments to the contract, signed by both parties, e.g. change orders, written interpretations, or minor changes) - related documents and agreements - performance bond and labor and material payment bond - owner's insurance and contractor's insurance *when the documents are ready, they should be sent to the parties for signing with a cover letter
General conditions overview
The general conditions outline the rules under which a project will be built and contain "boilerplate" language that establishes the rights, authority and obligations of the contracting parties. Often this boilerplate language is taken from documents by the AIA (American Institute ofArchitects) and is done so because the language has been developed (and proven effective) through use in countless construction projects over the past several decades. An added benefit of such language is that most or all parties will already be familiar with the phrasing and clauses contain in these documents, thus enhancing trust and removing ambiguity from this portion of the contract documents.
General Partner
The general partner unless otherwise arranged in the partnership agreement, all partners are deemed to have equal rights and liabilities within the firm, and all profits of the firm are divided equally in the absence of an agree ration. All authorized acts of the partners bind the partnership. Sometimes a partnership may agree to take junior partners into the firm.
Schedule for a small to medium-sized project?
The landscape architect should use a Gantt chart to develop a project schedule for their project. A Gantt chart Is best used for small to medium-size projects with a limited number of deadlines, deliverables and subconsultants. Were the project to be more complex, It would be advisable for the landscape architect to consider creating a Critical Path Method (CPM) schedule. A milestone list is a very basic form of schedule - essentially a list of relevant dates and would be too simple for the project In question.
Design-Build Method
The owner has a single contract for both design and construction. It is possible for construction to begin before completion of design phase. This overlap is known as fast-tracking. This is a good approach when the project is large and technically complex. However, there are fewer checks and balances built into the process.
Professional Construction Management Method
The owner hires a firm with construction expertise to perform construction management services on the owner's behalf. The CM does not perform work with own forces. CM is not responsible for the means and methods of construction. The role of the CM is to ensure that the project is delivered to the owner according to the plans and specifications. This is advisable on large or complex projects when construction expertise is needed during the design phase. The CM approach also permits considerable flexibility for changing the project as the design evolves. The CM is an agent of the owner.
Payments on Cost-Plus Contracts
The payments made to the contractor are based on the actual expenditures made on a project by the contractor. As a general rule, the contractor is reimbursed for direct expenditures, plus an allowance for profit and overhead. Documents to support the various expenditures for reimbursement must accompany payment requests submitted. - materials - subcontractors - filed labor - owning and operating equipment - field overhead - transportation - small tools, fuel, utilities - consultants - surety bonds, insurance premiums, taxes, permits, vacation and sick leave allowance, travel to project, pension and retirement allowance Note: home office personnel is typically excluded from reimbursement. And the percentage fee for overhead and profit may vary depending on the nature of the expense.
What is a "dummie" definition of the project manager?
The person ultimately responsible for the successful completion of a project.
What is the difference between a managing a design project and managing a design office?
The primary goal of a project manager is to reach the end. A design firm's goal is to not end, but to keep going.
Which of the following items would a project manager need to track to properly account for relevant project-related expenditures within the office?
The project manager would need to track timesheets. expense reports and printing reimbursables. While change orders (for example) have cost implications, they are related to the construction budget and construction process and would not be considered an ln-office, project-related expense.
Project Schedule (general overview)
The project schedule is an essential part of the project work plan. It is used by the project manager, the project team, the client, and the design firm's management to monitor and assess the progress of the work. Three schedule formats are commonly used. - milestone list - bar chart (Gantt chart) - Critical Path Method (CPM)
Punch List
The purpose of a punch list is to document minor deficiencies in a construction project after substantial completion. A project is considered complete when all the punch list items have been resolved.
How much is the retainage (generally)?
The retainage amount is commonly 5 to 10 percent.
Once the punch list items have been corrected...
The retainage will be released to the contractor!
Project Completion (general overview)
The time for the completion of construction projects is usually stated in the contract. There is still some latitude, however, in determining what constitutes completion. Two terms are frequently used in defining completion. 1. Substantial Completion 2. Final Completion (absolute completion)
What is addressed in a WBS?
The work breakdown structure for a project generally outlines an overall work plan for the project, while including financial/budgetary information, feedback and monitoring information. Client experience would not be considered relevant to the creation of the WBS.
Warranties:
These are assurances given by parties in respect of their goods and/or services which usually last for a stated period of time and are legally enforceable.
Bonds
These fulfill a similar function to insurance: they enable an owner to claim relief from the surety who underwrites the contractor in the even of the latter's noncompliance with the contract requirements. Types of bond include performance bonds, bid bonds, and payment bonds.
Environmental Impact Statement
These have been developed in some areas as a means of protecting and improving the environment by requiring detailed accounts of probable environmental consequences of certain zoning decisions. The statements are concerned with issues such as: - pollution - natural resources - coastlines and scenic features
Liquidated Damages
These represent a formula specified by the contract documents which provides an agreed method of assessing damages, arising from the late completion (e.g. $X per day, to be paid by the contractor to the owner for every day by which the agreed completion date is exceeded)
PERT, WBS and CPM are examples of what?
They are methods of managing large and complicated projects by keeping track of . tasks, budgets and durations.
What is an RFP vs RFQ?
They are not at all the same things, and anybody who uses them as such is very sloppy. An RFQ only needs information about the firm as an organization and their past work, though they can have different extents of requirements An RFP targets information about how you would approach a specific project - financially, scheduling, and often a short response to a project brief.
Certificate of substantial completion vs. Certificate of Occupancy
They are very similar but the certificate of substantial completion will make specific mention of the punch list items to address
Constructive Acceleration
This is less clear in its definition, and may occur where the contractor has experienced delay, but has not been granted an extension of time. Consequently, the contractor must make up the lost time in order to finish by the agreed date, and effectively accelerate the pace of the work.
Green Belt/Open Space Zoning and Smart Growth
This type of zoning is gaining support in the US and it provides for the maintenance of open spaces, free form development and restricted to specific activities (i.e. recreation) In recent years, states have enacted smart growth legislation, which attempts to control suburban sprawl, enhance public transportation and encourage sustainable growth.
to be valid and enforceable a contract must:
To be valid and enforceable, a contract must (among other things) exist between two or more consenting parties, who are all of a sound mental state. While minors are restricted in some fashion from engaging in certain forms of contracts, minors are not prevented from entering into a contract per se. Similarly, while some contracts may require the signature of a witness or notary public, such a requirement is not a prerequisite for the formation of a valid and enforceable contract.
A project manager would hire an agronomist for which of the following tasks?
To prepare a soils report and assess the of soils on a project site
Occupier's Liability: Trespassers
Trespass may be defined as the unauthorized transgression of another person's land. Including the airspace above and the ground below. Trespassing is a tort. Even individuals who enter premises as trespassers are owed some duty of care, although this is reduced, particularly if the trespasser is intent on malicious damage. Attempts to physically abuse the intruder should be limited to personal protection. The duty to child trespassers is generally higher than to adults.
The surety must perform under the bond, but some defense is available to the surety...
Typical defenses include: - owner not making payment, even when the issuance of progress payment certification occurred - unjustified interference by the owner in the contractor's work - delayed approval of shop drawings - discovery of unforeseen subsurface conditions
Umbrella Insurance
Umbrella insurance refers to liability insurance that is in excess of specified other policies and also potentially primary insurance for losses not covered by the other policies.
Rezoning
When an owner cannot match either the zoning requirements, or the conditions for a variance or a special use permit, application may be made to have the area in question rezoned. This is a difficult procedure especially if, as is often the case, neighboring landowners would suffer hardship as a result.
Milestones that are most commonly used to identify the percentage completion of a construction document drawing set?
When describing the percentage completion of a construction document drawing set, the general convention Is to describe the drawings according to the following: 0%, 25%, 50%, 90%, 100%. While there is some variation in the practice (for instances, some offices Include 75% completion), this Is the generally accepted convention.
When setting up a WBS...
When setting up the work breakdown structure (WBS) for a project, the WBS should be made as simple and straightforward as possible to manage the project in question. Likewise, the WBS should relate to the contractual requirements specific to the project in question and be able to accurately track project financials. The WBS should NOT allow access to only the project manager, as various support staff may need to access the document for a number of reasons, including tracking project budgets and billing.
Which of the following actions would be considered MOST necessary to take before beginning to draft accurate plan drawings for a design project?
While all of the answers could be prudent courses of action depending upon the project requirements and any existing information that may already exist about the site, only "coordinate topographical survey and develop project base map" would be considered directly relevant to (and thus most necessary) the need to draft accurate plan drawings for a design project. While other types of surveys could theoretically be commissioned or coordinated, the need to develop a project base map makes this the best available answer.
A project manager would hire an arborist for which of the following tasks?
While an arborist would be involved with some aspect of the work described in each answer listed above, they would not make adjustments to the design per there recommendations in an arborist's report. This would be the responsibility of the landscape architect and/or design team. The arborist can provide guidance to the designer but should not be expected to implement any changes to the design that they suggest in their arborist report (ex.moving a proposed wall out of the critical root zone of a large, existing specimen tree).
Landscape architects can be licensed by states under title laws and/or practice acts. How do title laws and practice acts differ?
While the differences between these two terms can seem somewhat confusing, it is helpful to remember that both title laws and practice laws require landscape architects to be licensed to practice within a given state. States may have title and/or practice acts, so the terms are not mutually exclusive. Title laws only regulate the practice of landscape architecture insofar as they restrict the title of "landscape architect to those that have satisfied their requirements for licensure. This does not necessarily mean that a licensed landscape architect and a landscape designer cannot provide the same scope of services, and this is the goal of practice acts. Practice acts outline the services that constitute "landscape architecture" and restrict the provision of those services to licensed landscape architects.
Notice of Award
Written confirmation of an award of a contract by a customer (owner or principal) to a successful bidder, stating the amount of the award, the award date, and when the contract will be signed. It may also contain a notice to proceed, and it is sometimes also used in lieu of a purchase order to a vendor.
Are there provisions that allow a contractor to recover associated costs from suspensions?
YES! but they often do not permit the contractor to profit from any suspensions
Zoning
Zone: to mark off into zones; specific, to divide (a city) into areas determined by specific restriction on type of construction as in residential and business Zoning Permit: a permit issued by appropriate governmental authority authorizing land to be used for a specific purpose
Balanced Bid
a balanced bid is one in which the anticipated costs for the various bid items are accurately reflected in the unit prices that are submitted.
Bar Chart
a bar chart indicated the work, divided by trades or operations, against which a time scale can be set. The progress of the work can be plotted between the two.
Unbalanced Bid
a bid method used by some contractors in which the unit prices of the the various bid items are altered so that they do not reflect the true costs of those items. Contractors may use unbalancing to give them an advantage on some aspect of the project. It does not alter the total amount bid. It may be a accepted way of getting more cash early on. - sometimes a contractor may use an unbalanced bid if they think they can take advantage of an error in the owner's estimate.
Bilateral Contract
a bilateral contract consists of an agreement created by mutual promises made by the contracting parties. In this type of contract each party plays two roles of promisor and promisee. Most construction work is bilateral.
Uniform Commercial Code
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.
If a particular discipline is running over budget on planned work and the overrun is detected early...
a brief reminder to the discipline lead will usually solve the problem
Deviation
a change made in the progress of a work from the original terms, design, or method agreed upon.
implied contract
a contract in which the terms of the agreement are not clearly stated, but are established through inference and deduction.
Performance Bond
a performance bond ensures that all bids for labor and materials will not revert to the owner's in the event of nonpayment by the contractor Combination bonds are considered inadvisable by the AIA as they can cause legal complications in the event of a claim. The AIA recommends a two bond system.
Damages, Liquidated
a specific sum of money expressly stipulated by the parties to a bond or contract as the amount of damages to be recovered by either party for a breach of the agreement by the other. In the construction industry, it is an amount established in the contract writing to be withheld by the owner on a daily basis for every day past the stipulated completion date of the contract. A "liquidated damages" clause is to fix the amount to be paid in lieu of performance. "Penalty" clauses, without some kind of balancing bonus, are rendered unenforceable in the courts of law.
Express Warranty
a typical contract requires the GC to warranty workmanship and materials. Any materials or workmanship that fails to conform to the quality standards outlined in the Contract Documents shall be considered defective. All deficiencies will be promptly corrected or replaced by the contractor at no additional cost. - it is common for the contractor to be required to guarantee the sufficiency of the work for a state period of time. Note: the GC is also responsible for the performance of subcontractors and the materials and equipment provided by others.
To estimate the development time frame for design, approval and construction of a project, which of the following may a landscape architect typically do?
a. Review local planning requirements for site plan submissions. b. Contact town land use planners to verify process and deadlines for submittal. c. Visit the site to determine specific project constraints and existing conditions.
In claims based on negligence, what conditions must be proved by the plaintiff for the claim to be successful?
a. that a duty of care was owed by the defendant to the plaintiff at the time of the incident complained of b. that there was a breach of contract c. that the plaintiff suffered loss or damage as a result of the breach
Acceleration
acceleration can occur in two ways. 1. actual acceleration 2. constructive acceleration - an assertion of acceleration is clear if one party directs another party to accelerate - the contract may provide for acceleration pay - if there is no provision for payment, the contractor must protest when acceleration occurs
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. (See CONTRACT)
Active Interference
action by a party to a contract that causes the other party of the contract to not complete the work of the project on time or in the manner established by the contract writing. Positive action must be per-formed on the part of the interfering party as opposed to passive negligence, which is inactive, permissive, or sub-missive.
Procedure: contractor termination
after 7 days written notice to the owner and the architect, the contractor may terminate the contract and recover from the owner: - payment for all work executed to date - proven loss sustained in the expenditure for materials, equipment, tools, construction equipment, and machinery - reasonable profit - damages Note: termination is a drastic step!
Contract Documents: included in bid package
all documents intended for use in the proposed project should be sent to each bidder for examination, including the conditions and any other applicable addenda or Supplementary Conditions
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)
Alternates (bidding process)
an alternate bid may be required or accepted for a specific section of the work, and should be included in the calculation of the base bid. Should be used sparingly and not give any bidder preference over the others
Constructability Review
an assessment of the contract documents, prior to the bidding phase, to identify problem areas and suggest improvements. - skill level or availability of work force - availability of specified materials - limitations of equipment - anything! Constructability reviews should be conducted by the design team as the contract documents evolve. Specific construction expertise can be included in the review if a professional construction manager is used, or if the project is done under a design-build contract.
Field Engineer
an engineer assigned to a project during the construction phase and located at the project on a full-time basis.
Quality Control Plan
an implementation plan for application of the quality assurance policies during the construction phase.
Fraud, Fraudulant
an intentional perversion of truth for the purpose of inducing another, in reliance upon it, to part with some valuable thing or to surrender a legal right; a false representation of a matter of fact, whether by words, by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he or she shall act upon it to his or her legal injury.
Bid
an offer to perform a contract for work and labor or for supplying materials at a specified price. In the construction industry, a bid is considered an offer by the contractor to the owner. A bid, as an offer, becomes a contract once the owner accepts the bidder's offer with all other contractual requirements in order. (See CONTRACT)
Do owner's have the right to make unilateral changes?
an owner does NOT have an inherent or implied right to make unilateral changes to the contract. that right must be obtained contractually.
Misrepresentation
any manifestation by words or other conduct of one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. 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 upon in the performance of its work.
Corporations
are legal entities suited mostly to larger scale operations, and owned by (although distinct from) their shareholders. They can be characterized by: - perpetual existence of independent, individual shareholders - profit-sharing by shareholders - limitation of liability of shareholders to the extent of the value of their personal share obligations
Easements
are legal rights enjoyed by one party over the property of another. They are usually described in a deed or in a license, but some circumstances they can be implied by usage over a long period of time ( e.g five to thirty years continual use). Usually easements are in regard to Access, Light, and Views.
When does the contractual relationship between the architect and owner come to an end?
at the completion of the project, the contractual relationship ends. However, a period of continuing liability follows under the law of tort, during which time the architect may still be liable for negligent acts or omissions. The length of this continuing liability period is established by individual state law, and may vary considerably.
Standards
building codes are a tabulation of acceptable standards in building practice, and are developed by reference to organizations which test and give official approval to new building materials and techniques (the opinions are not binding upon local authorities but are generally accepted) - The American Society for Testing Materials (ASTM) - The National Fire Protection Association (NFPA) - The American National Standards Institute (ANSI) - United States Department of Commerce (USDC)
Cost plus incentive fee
by this system, the contracting parties negotiate a target cost and fee, a base and ceiling fee, and a fee adjustment formula to provide incentive for early and economic completion.
No-Damage-For-Delay clauses
clauses that are included in a contract which is intended to bar a contractor from claiming for delays. - these are very harsh on contractors
Mandatory Clauses (Mandatory Provisions)
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.
Design-Build Work
companies combine a package allowing the owner to contract with only one party to provide the complete building. It does deprive the owner of an expert agent to look out for his or her best interests throughout the project.
Damages
compensation for a loss or injury suffered; compensation which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his or her person, property, or rights, through the unlawful act, omission, or negligence of another. In the courts there are many divisions pertaining to damages which can-not be covered here.
Mutuality of Assent
compliance, approval of some-thing done, or a declaration of willingness to do something in compliance with a request; an acting by two parties to perform a duty toward each other. (See CONTRACT)
Termination for Default
construction contracts generally contain specific provisions itemizing events of default. However, even if not specifically itemized, delay in performance resulting in a failure to complete the contract in a timely fashion is universally recognized as a breach of contract. Whether the breach for untimely performance justifies an owner in terminating the contract may depend upon whether "time is of the essence" for performance of the contract. In federal construction contracts, time is of the essence, and if the contractor fails to perform by the date specified, the government may terminate the contract for default. In private contracts, where time is of the essence, the owner has a common-law right to terminate if the contractor fails to perform within the time specified, unless the time for performance has been waived or extended by the acts of the party.
Access to Work
contained within the provisions of the General Conditions are a number of clauses that enable the architect to undertake required duties. e.g. access to work in progress and construction site
Notice to Proceed obligates the owner to the....
contract! Only formalities remain in the contract formation after this notice is issued.
Builder's Risk Insurance
covers loss of damage to project being constructed and is generally acquired by the GC or the owner
Day Labor Agencies
day labor agencies are one source of workers that has emerged over the years that is being increasingly used by construction firms.
the acceptance must be...
definite, unqualified, and unconditional or it will constitute a counteroffer.
Delays not Contemplated
delays that are not contemplated by the contracting parties at the time of contract negotiation do not exempt the owner from liability. The most common delay of this type is the denial of access to the job site to the contractor.
How often is a contractor usually paid?
depends but in lump-sum and many other contracts it is often on a monthly basis
Rule of Thumb 8:
designers never stop designing on their own - there is never a perfect solution and a good designer can always think of another design that is better - a PM must make them quit
Actual Acceleration
direct order by the owner to hire additional workers, work overtime, or work extra shifts on the project
Other forms of change: (3) types
due to the unpredictable and complex nature of many projects, certain changes are sometimes necessary to provide for specific contingencies: - emergencies - concealed conditions - escalation and fluctuation of pricing
Contract Changes
during the construction phase, it may become necessary to amend the original contract documents with addition, alteration, or deletion as a result of: - unforeseen or unexpected events - new requirements - new circumstances invalidating parts of the contract documents Types of Changes: - a modification - a cardinal change - a constructive change - a change - a minor change - other
Once the Successful bidder is informed...
each party to the proposed building contract may provide further information and/or assurances to each other:
The primary purpose of requiring the submission of shop drawings is to
ensure that the product will meet requirements of contract documents.
Sovereign Immunity
essentially means that the government entity cannot be sued without its consent.
Immunity
exemption from performing duties which the law generally requires others to perform. (See CLOAK OF IMMUNITY).
The landscape architect shall provide insurance to cover professional services of consultants. (true or false)
false
Standard
general recognition and conformity to established practice; a type, model, or combination of elements accepted as correct or perfect.
What doesn't the warranty cover?
generally it excludes responsibility for design flaws, natural catastrophes, and mistakes of other prime contractors.
Do construction contracts give the contractor the right to terminate the contract?
generally no but few do give equal authority to the contractor. The ability of the contractor to terminate the contract is a powerful tool that provides some assurance that the owner will not interfere in the contractor's work effort.
Latent
hidden, concealed, dormant; does not appear upon the face of a thing, as in a latent ambiguity.
What does it mean to have high motivation to manage?
highly motivate managers tend to... - favorable attitude toward authority - desire to compete - desire to exercise power - desire for distinctive position - a sense of responsibility
Home Office Overhead
home office overhead includes the costs of operating and maintaining the home office. These costs include the salaries of company officers, estimators, accounting personnel, and secretarial personnel. Other expenses include: the rent, lease, mortgage payments, utility costs, cost of supplies, company vehicles, etc. - careful documentation of these costs can help allocate costs to projects but it can be difficult - one controversial method is the Eichleay formula
Request for Information (RFI)
if conflicting, ambiguous, or vague information is noted by the contractor, the contractor will want to obtain a quick clarification of the information. This is generally accomplished through a request for information, that outlines the question to be clarified by the architect
Plan Deposit
if the contractor decides to submit a bid on a project, a deposit will be paid to the architect/engineer or the contracting authority. A deposit is generally required to cover the costs of production, or guarantee the safe return of the bidding documents. The deposit may be partially or totally refundable. - some bid documents are already being made available electronically (generally no fee)
Costs
if the monies owing to the contractor exceed the cost of finishing the work (including additional fees of the architect), the contractor will be reimbursed the difference. However, if the cost of finishing is higher than the amount owed to the contractor, the contractor will be liable to pay the excess, the sum of which must be certified by the architect.
Emergencies: changes
if the safety of persons or property is threatened in any way, the contractor may act at his or her discretion to prevent loss or injury. The architect may then determine the effects of the emergency on the project and reflect them in a subsequent change order regarding contract time and contract sum.
Rejecting Work (duty of LA)
if the work does not conform with the contract documents it may be rejected by the architect
Rule of Thumb 6:
if you do not hear from a consultant, the consultant is not working on your project - do not assume no news is good news with consultants - when consultants are working on projects they have questions
Substantial Completion
implies something less than absolute or final completion. Typically determined by the owner's representative that a project is substantially complete when the owner can occupy it and use it for which it is intended. Project parts and systems are operable as required by the contract documents.
Consideration
in a broad sense, consideration is something of value. It is the primary reason or main cause for a person to enter a contract. It is something of value received by one of the parties in exchange for another item or action that is of value. It is not regarded as consideration unless it is so regarded by both parties. Both parties must obtain consideration or the contract is not valid.
Termination
in certain extreme circumstances of delay, there may be justification to terminate the contract between the owner and the contractor.
Expressed Warranty
in contract and sales, a promise created by the apt and explicit statements of the seller or person to be bound. (See WARRANTY)
General Procedure for Permits
in many communities the building department deals with the zoning requirements, although where size and complexity of a community warrant separate administration, zoning officers are sometimes appointed. - applications for zoning and building permits are made simultaneously. IF the applicant's request for a zoning permit is rejected, appeal procedures are generally available.
Single Contracts
in most construction projects, a prime contractor is responsible for the full extent of the construction involved. If the work requires more labor or skill than the prime contractor can supply, subcontractors will be hired, but will remain the responsibility of the prime contractor in matters of liability to the owner, payment, etc.
Third-Party Beneficiary
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 such a sense as to indicate the assumption of a duty to make reparation if the benefit is lost.
Bid Security
in order to ensure each bidder's commitment to their base bid, some form of security may be required by the owner, which should be submitted along with the returned bid form. Could take the form of cash, certified check, or a bid bond. -the bond could be expressed either in a lump sum or as a percentage of the base bid, although the former is usually preferred by bidders, as it does not reveal their bid before opening - the bond ensures that in the event of the successful bidder refusing to undertake the work for the bid specified, the whole part of the security may be forfeit.
The bidding phase!
in public works projects this procedure (the bidding procedure) is strictly outlined, while in the private sector the process is often varied. No laws govern the process by which private contracts are let. - the process of bidding is governed by law for public projects
Privity-(No Privity Rule)
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)
Escalation and Fluctuation: changes
inflation and price escalation may make the estimation of a stipulated sum price difficult, possibly causing the contractor to overbid to protect against financial loss by erosion of profit. It is possible to add to any contract a fluctuations clause in the event of sudden price variations.
Document, Documentation
instruments which record, by means of letters, figures, or marks, matter which may be evidentially used; the deeds, agreement, title papers, letters, receipts, and other written instruments used to prove the facts.
Lis pendens
is a written notice that a lawsuit has been filed concerning real estate. involving either the title to the property or a claimed ownership Interest in it.
Joint arrangement
is one in which the individuals are "joined", in a legal and liability sense, as one party in the action.
what is induction?
is the inference that a general conclusion can be drawn from one or more specific observations or facts.
Differing Site Conditions
is typically applied to subsurface conditions. On renovation projects, it may apply to existing conditions that are uncovered only after construction work commences - these are conditions that cannot be readily evaluated through a cursory visit - however this does not mean that the contractor is automatically entitled to additional funds if the conditions are not exactly as they are represented
Constructive Acceleration
it does not result from a direct order, but is construed as acceleration because of the owner's refusal to permit or grant time extensions for an excusable delay.
Multiple bid packages or phased approach
it is common for projects to be awarded to a single prime or general contractor that subcontracts all or major portions of the work to specialty contractors. The overall responsibility for project completion then rests with a single general contractor. This is a standard approach that has been implemented on many projects. Occasionally, an owner may decide to break up a project into multiple contracts that will be undertaken by several general contractors.
Planning a project is an....
iterative process! worked on in multiple attempts or passes, with each pass adding additional details - the design process is also iterative
During construction of a project, the responsibility for clarification of items in the plans and specifications regarding code compliances falls on the....
landscape architect
6. Learning
learning from the project- what went right, what went wrong, and how to improve performance on the next project.
Condemnation
means the same thing as eminent domain; that is, it is the exercise of eminent domain
Project Controller
more and more firms are using integrated software programs that combine time cards, payroll, business development, accounts payable and receivable, and project management - many programs require expertise - many firms provide periodic financial reports and/or have project-review requirements - the project controller's role is to keep the project manager out of financial reporting trouble with upper management and to help the project manager see potential financial problems coming along well enough in advance so the project manager has enough time to take corrective measures
How to start getting a Building Permit?
need a building permit application!
Is a subcontractor delay cause for a time extension?
no, not usually
Are contract extensions ever automatic?
no, they must be requested in the manner prescribed in the contract.
The Design firm is a business as well as design practice, is the customer always right?
no. Sometimes the news the client needs to hear is not good. The job of delivering the news is the responsibility of the PM - a client's needs and expectations are important - however many clients don't know exactly what they want or what is best for them - for a project to succeed, it must have a complete and understandable program
Subrogation
normally it is assumed that after a loss on an insured item, the insurance company pays the claim and the matter is settled, with a slight impact on insurance premiums. This is not entirely the case if the loss was caused by a third party. Under the rights of subrogation, the insurance company can seek recovery from the third party that was responsible for causing the loss. This does occur, the subcontractor could be sued through subrogation. For the insurance company, if it pays a claim it gains the insured's right to sue.
Nullity
nothing; an act or proceeding in a cause which the opposite party may treat as though it had not taken place or which has absolutely no legal force or effect.
Preconstruction Conference
nuances of the project, particularly those pertaining to the interrelationship of the contractor and the owner, must be addressed in the early stages of contracting. - topics discussed will vary from project to project - the initial intent is to identify key individuals who will be involved in the project - questions arise from the plans and specs, payment procedures, matters related to right of way, compliance with permits that have been issued, unusual conditions, erosion control requirements, pollution control, traffic control, unusual hazards, and so forth.
Recovery
obtaining a thing by the judgment of a court as the result of an action brought for that purpose; the amount finally collected or the amount of judgment.
Responsible 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.
Builder
one whose occupation is the building or erection of structures, the controlling and directing of construction, or the remodeling and adapting to particular uses of buildings and other structures. The term "builder" is sometimes used interchangeably with the word "contractor." (See CONTRACTOR)
Parol Evidence
oral or verbal evidence; that which is given by word of mouth; the ordinary kind of evidence given by witnesses in court. In a particular sense, and with reference to contracts, deeds, wills, and other writings, parol evidence is the same as extraneous evidence or evidence taken from outside of the contract writing.
What term do PMs use to describe projects they receive where the scope of work and design budget have been established by upper management?
over the transom
Fast Tracking
overlapping the design and construction work is known as "fast-tracking". (negotiated contracts)
Often there is a faster way than "finish-to-start" called...
parallel scheduling! tasks can run in parallel and tasks can have overlapping finish and start dates - the trick to improving schedule performance is to know which tasks can overlap, which ones can run in parallel, and which must finish before other tasks can start Note: some tasks cannot start without client approval and the client issuing the NTP for the next phase. The design firm may not get paid for work it was not authorized to do.
Adversary
parties to a contract are in an adversary or arms-length relationship to one another as a result of the commitment they have made to each other in the con-tract terms and conditions. This relationship is recognized by the courts and binds the two parties together in that relationship. In layman's language, it can be considered a relationship of mistrust.
What is Partnering?
partnering is a series of facilitator-lead team-building sessions that include the owner, contractor, and design professional. The first session takes pace before the project begins and subsequent sessions take place at regular intervals throughout the project. Partnering's intent is to define goals that are common to all parties, improve communication among the parties, and eliminate the "us-against-them" project mentality before it forms. - only works when key team members embrace the process
Identification of the Project Team
questions about what disciplines are needed: architecture, structural, mechanical, etc.? Who are the key individuals within each discipline who will do the work? Will al the disciplines and team members be in house or will outside consultants be needed to perform some of the work? Who is responsible for whom and what are they responsibilities of the various team members?
Damages, Actual
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.
What happens to the performance bond when there is a change order and/or change to the contract sum?
since bonds are written for a specified limit, it is important to recognize the impact of change orders that increase the contract sum. The surety generally must be informed about any changes of a stipulated magnitude for a bond to cover the work performed for a change order.
What immediately follows a Charrette?
site and/or facility tours. The design team meets with various client representatives throughout the day to discuss their project requirements, needs, and ideas for the project. At the end of the day, a group discussion takes place to talk about the project and the progress made during the day
Self-Insurance
some contractors recognize high cost of insurance and decide they will play the role themselves. This requires meeting standards and laws and proving stability of firm. It is possible to band together with other contractors to become self-insured as well.
A contract is executory when...
some portion of the agreement remains to be done. It may be on the part of one party or both.
25% complete?
the drawing has been started, plans, sections, elevations or details are still in progress
Rule of Thumb 12:
the first construction cost estimate is the one the client will remember
Rule of Thumb 1:
the last 10 percent of the project will take 20 percent of the budget
Square Footage
the overall square footage of the building is multiplied by an agreed pricing factor
Substantial Completion
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.
Is the design process and the project management process the same?
they are similar in some respects but they are NOT the same.
How long is a performance and payment bond valid?
they are valid for the life of a contract
Actual Impossibility
this arises when events occur which actually prevent performance from taking place (e.g. acts of God or determination by a government department)
Construction Management AT Risk (CM at Risk)
traditional CM approach has the CM as an agent of the owner but the new approach established the CM as an independent contractor. The CM is responsible to the owner to complete the project by the established substantial completion date and within the agreed budget. The CM must compensate the owner when the construction put in place does not satisfy the established standards of performance for the project.
As-Built vs. Record Set
until the project is complete, the contractor will essentially be working with two different sets of drawings. the as-built (shows what is actually in place) and the record set (which is the plans from which the bid was made)
Monitoring Progress: site visits
visits to the building site should be made at intervals appropriate to the stage of construction to familiarize the architect with the progress and quality of work. Observations made during these visits should be recorded and copies sent to the parties involved, who may include: the owner, consultants, field architect, construction manager - standardized formats for noting site visits are recommended for consistency
The bidding (estimating) period
what is often referred to as the bidding period is actually the estimating period, which culminates with the bid. The bidding period does not begin until the plans and the specifications are completed. It must be borne in mind that this estimating is done when contractors are busy with the actual construction of ongoing projects. IF little time is available to prepare the estimate and the resulting bid, the contractor may make costly errors. Contractors are aware of this fact and include a larger markup when the bidding time is short or limited. Owners are well advised to be cognizant of this result: more time devoted to estimating means lower prices to the owner, since less uncertainty will exist in the contractor's bid.
1. Definition of Project Objectives
what, when, when, who and how much? - what is to be done? - when is it to be done? - who is to do it? - How much will it cost to do it? outcomes can be measured. Project objectives and the goals of project management are measurable.
When does a working day schedule make sense?
when the site conditions are subject to delays caused by weather, differing site conditions, and the like.
Betterment
an improvement brought upon an estate (land and/or buildings) which enhances its value more that mere repairs. The improvement may either be temporary or permanent. This term also applies to denote the additional value which an estate acquires in consequence of some public improvement, such as the widening of a street, etc.
Exculpatory Language
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.
Case Law
the aggregate of reported cases forming a body of jurisprudence or the law of a particular subject as evidenced or formed by the adjudged cases; distinct from statutes and other sources of written law.
Capacity
the attribute of persons which enables them to perform civil or juristic acts; necessary for parties entering into a contract. (See CONTRACT)
Procedure: owner termination
- (under AIA) the owner must seek from the architect certification that sufficient cause exists to justify termination of contract -termination by owner, should be undertaken with assistance of legal counsel
Owner's Right to Stop the Work (2 circumstances)
- AIA general conditions gives the owner the right to stop the work: a. if the contractor fails to correct defective work b. if the contractor persistently fails to carry out the work in conformance with the contract documents
Instructions to Bidders
- AIA procedures outline certain rules for procedure. Procedural format after mailing in the necessary bid documents... - modification of bidding documents - submission of bids - bid opening - selection - announcement - contract award
Other Associations
- Associated architects or "loose groups" -professional associations and unincorporated associations -trade unions -governmental agencies (federal and state)
What do you need a Building Permit for?
- Construction - Demolition - Occupancy - Heating and cooling installation - moving of buildings - alterations exemptions are limited to minor alterations, no work of a structural nature is proposed and health, safety and welfare are not affected.
(3) Categories of Delays
- Delays caused by contractor or the contractor's agents - Delays caused by owners or the owner's agents - Delays caused by force majeure or acts of God
What are two common deal-breaker clauses that owners like to insert in contracts:
- Indemnity clauses: that require the design firm to indemnify (assure, underwrite, hold harmless) and defend the owner against all claims, not just those caused by the design firm's negligence - Guarantees, warranties, or certification clauses: that require the design firm to guarantee, warrant, or certify things and work that are beyond the firm's control Note: a PM does not usually have the authority to sign a contract but the PM must identify potential risks to the project that are so significant that they cannot be accepted.
Delegation of Technical Decisions is important because...
- PM makes decisions about project scope, budget and schedule - but technical decisions can and should be delegated. - also each discipline must know and be responsible for managing its budget
Ability to make decisions with incomplete information
- PMs rarely possess all the information required to make a decision based on deductive or inductive logic - they need to make thoughtful decisions arrived through the logic of abduction - decisions must be timely
Types of Engineers typical in architecture projects:
- Soils - Structural - Mechanical - Electrical - Acoustic - Highway - Civil - Drainage
Developing a team synergy requires:
- a clear defined project scope of work - clearly defined roles, responsibilities, and obligations for team members - a clearly defined work plan - delegation of technical decisions to the right team member (while the PM retains decision making responsibility regarding scope, budget, and schedule) - team buy-in to the work plan - a clear demarcation line between iterative design and linear production
Performance Evaluation: (3) categories
- a major part of an architect's work during the construction phase is ensuring that the work carried out conforms to the detail and quality required by the drawings and specifications - the architect cannot tell the contractor how to do his work but there are provisions that enable the architect to provide quality control measure on behalf of the owner. 1. Observation 2. Inspection 3. Approval
Cost-type Contracts: types of fees
- a percentage of the final construction cost - a fixed fee - an award fee
What is program validation?
- a program validation study evaluates the program document to determine if it is up-to-date and complete and addresses all factors that will bear on the design. In addition, it validates the defined project is constructable within the client's budget. - very important and crucial first step in many designs
Risk management procedures in taking on work include...
- accept only project types with which the firm has proven and positive track record - work only for past clients where the relationship was successful and avoid working with new clients - use the same design team(s) on all projects because the team has proven it can work together successfully Note: these strategies can lead to stilted practice. New and interesting challenges will present risks.
What are the disadvantages to the design-bid process ( design is complete before bidding, bidding is complete before construction)?
- accurate costs cannot be known until the design is completed - bids that exceeds the owner's budge cannot be readily accommodated without jeopardizing the project - the various parties tend to be adversarial under this process - errors or omissions in the design may lead to costly change orders and the opportunity for the contractor to bolster profits after contract award. Note : negotiated contracts often eliminate these disadvantages by compromising the advantages
A Landscape Architect might extend the contract time for delays caused by...
- act or neglect of the owner or architect (or employee of either) - act or neglect of a separate contractor (but not subcontractor) - changes ordered to the work - labor disputes - fire - unusual delay in transportation - adverse weather conditions (not reasonably anticipated) - unavoidable casualties - any cause beyond the contractor's control (or acts of God, including earthquake, landslide, hurricane, tornado, lightning, flood, etc.) - Delays authorized by the owner pending arbitrations - any other cause that the architect determines to be justifiable
Points to Remember: when getting insurance
- advice by the architect to the owner on matters of insurance should be avoided and may be specifically prohibited - many types of policy become voidable if the insured fails to follow instructions prohibiting admission of liability. - contracts of insurance are said to be of "the utmost good faith". this means that all material facts which might affect the insurer's willingness to accept the risk must be disclosed and failure to disclose may render the contract voidable. - insurers must be notified immediately of all events which may affect the policy (e.g. changes in personnel) - high proportions of claims generated by alleged errors in the design phase - there has been an expansion of liability and range of duties over time -sometimes there are never-ending liability but some states have put into place "long-stop" measures -the difference between warranty and satisfactory performance is becoming less apparent -annual premium has accounted for as much as 4% of the gross income of a practice, second only to payroll
Advising an owner on a contractor...what to keep in mind:
- any objection should be factual to avoid slander or collusion - technically there is nothing to stop an owner from rejecting the lowest bid and hiring a pre-selected contractor who was encouraged to go through the competitive bidding process merely to keep bid base down, however, architects should discourage owners of this practice. Apart from ethical implications of ignoring the established rules , some outraged low bidders have sought legal relief to prevent owners from proceeding with the project. - the architect has an administrative role during the bid process and advising the client on the outcome
Location of new addenda to a standard contract are usually...
- anything concerning the bidding phase and not affecting the construction phase should be included in the Instructions to Bidders - Matters going to the root of the contract (price, time, etc.) should be included in the owner-contractor agreement - legal matters which may vary according to location (indemnification, insurance, etc.) should be dealt with in the Supplementary Conditions - Matters of procedural or administrative nature (e.g. temporary structures, etc.) should be included in the General Requirements
What are the advantages of CPM schedules?
- are suitable for larger projects with numerous tasks - interdependencies among tasks are shown - tasks can have attributes: start and finish dates, durations, predecessors, and labor-hour budgets - once set up, the computer program determines the project's critical path - if tasks slip, their new end dates can be entered into the program and the program can recalculate the critical path and/or determine the project's new end date
Budget and Schedule Contingencies
- avoid running projects without budget and schedule contingencies - a rule of thumb is to set aside at least 10 percent of a project's budget as contingency - developing a schedule contingency is much more difficult. There are many unknowns. A PM must schedule a team work schedule as well as client input and reviews - a good approach is to add days to each phase of design work. The number depends on complexity, size and duration of project but 10 percent more days to each phase is a good start
What do surety companies look at during underwriting procedures?
- background - capabilities - financial responsibility - credit line - references - stockholders - resumes - key personnel - corporate tax return - experience - character - exposure - current jobs - backlog of work - prior experience - everything!
Weather and labor dispute extensions
- bad weather alone may not be sufficient to warrant extra time. It may be shown that the weather in question was far worse than the norm for that year - a claim for delay due to labor disputes may be disallowed if the dispute was in progress at the time of the contract formation.
Contractor Qualification
- bidders should be chose for their ability to undertake the project - it may be necessary to establish their suitability before bidding documents are issued Things Like: - history of the business - organization and scope of operations - past record of construction work (type of work, range of experience, etc.) - trade and bond references - bonding company - details of assets and liabilities
1. typical instructions relative to the procedure for writing and submitting the bid include the following issues:
- bids must be submitted on the form furnished - erasures must be initialed by the signer of the bid proposal - all items in the bid schedule must be priced - alternatives are not considered unless called for - discrepancies between the unit price and the extended amount (how handled) - are mailed bids accepted and considered - can bid modifications be made and how - the submission policy (sealed, marked, address, directed)
Office related insurance (public liability)
- building - building contents - documents - business interruption - criminal loss - motor vehicle
Selection of the Arbitrator
- by agreement of the parties before the dispute - by agreement of the parties during the dispute - by reference to the AAA The last option the AAA sends a list of potential arbitrators that both parties can accept or deny anyone on the list. Once an arbitrator is chosen that arbitrator needs to disclose potential conflicts of interest.
What is an act of God?
- can be defined in contracts but generally it is an earthquake, flood, cyclone, or other cataclysmic event of nature beyond the power of the contractor to foresee. -an instance of uncontrollable natural forces in operation (often used in insurance claims).
Project Objectives
- can vary considerably in number and kind from project to project - objectives are the project outcomes or results that must be achieved for the project to fulfill its specific intended purpose - objectives produce outcomes that are measurable and quantifiable - other objectives, however, are a bit more illusive, subjective, and difficult to quantify and measure - some objectives are process oriented ( clients require design firms to make presentations to corporate or community user groups and review boards or prepare submittals for and participate in value engineering sessions) - local planning and community organizations often add requirements that must be satisfied if the project is to be built
Modification of Bidding Documents: (2) forms
- certain adjustments or questions may be necessary prior to submission. These are usually in the form of: 1. Interpretations 2. Substitutions
the Charette process has the following characteristics:
- charrette is conducted on-site and lasts multiple days - the client and design team work collaboratively - teams are multidisciplinary so solutions are cross-functional and integrated - work sessions are short, frequently only a few hours at a time - each work session is followed by feedback discussions - some work sessions address problems holistically, while others concentrate on particularly troubling or important details - progress or outcome is documented and measured and produces a feasible or workable plan - prior to the charrette, the design team and the client researches and prepares - the charette usually begins with a kickoff meeting, attended by designers, clients key user group and stakeholders - can be lead by the PM, client, or Charrette facilitator
Who is the project QA/QC Manager?
- clients expect projects to be error-free - this is impossible but it is possible to establish procedures for quality control and assign someone to oversee the quality-control program
Good Communication Skills means...
- communicating effectively starts with being a good listener - a good conversation is not a debate, it is a mutually rewarding, constructive experience that leads to better project decision making - nods ang gestures - ask follow up questions - need to increase rapport and trust - for design professionals, sketches are a wonderful communication tool - words are important too and PMs need to be able to communicate ideas to clients and team members - oral communication is better when you look at the listener and attain eye contact - meetings are the most direct way for the PM to communicate and interact with the design team as a whole
What is on a Building Application?
- completed form includes a description of work, location, occupancy use, and other information required by individual departments - a plot survey showing proposed and existing buildings, distances to lot lines, and accurate boundary line information, etc. - building plans including drawings and specifications of sufficient size and detail to show the character and nature of the work (foundation plans, floor and roof plan showing existing exits) - additional details...structural, mechanical, electrical drawings, computations, stress programs, etc. structural calculations and provisions for fire resistance - the required fee
What is the wall chart?
- conference room with large board to hang sheets of paper is used - all key team members attend a work-planning session - the session is usually led by the PM or firm principal - before arriving, the key members should review the project scope of work - the board has grid lines - vertical gird lines represent blocks of time (weeks, months, years) - the horizontal lines are boundary lines for tasks or disciplines (architect, structural, mechanical, landscape, etc)-- listed along the left side of the grid - contractual major milestone dates are added as heavy vertical lines (make it so they are moveable) - using 3X5 cards with task written on them, the team works together to build the schedule - the projects critical path can be mapped with a red line through all the tasks with no float in them
What are the disadvantages of a lump sum contract?
- construction of the project is delayed while the plans are being completed - errors in the plans will be costly because they will result in extras - there is an incentive to complete the plans, there is also an incentive to get the construction effort under way as soon as possible. A compromise is needed as an early construction start may mean costly errors and omissions in the plans and specifications
Project Administration Services Include:
- consulting with the owner - researching design criteria - attending meetings - communicating - issuing progress reports - furnishing a project schedule - considering the value of design, material, and equipment alternatives and their impact on program, budget and aesthetics - explaining the design to the owner - submitting the design to the owner for evaluation - helping the owner file appropriate governmental documentation pertaining to the project
What is the "ripple effect" in terms of incurred costs to the contractor?
- cost impact of a change or delay on one work item is not limited to that item, but has an effect on various portions of the project EX. a two month delay - field administrative staff salaries - job site overhead - work overtime - unfamiliarity of the newer workers if additional workers have to be hired - worker crowding - may need to pay higher wages - equipment is idle during delay - prices for materials may have risen - some materials may have deteriorated during delay - additional sources of financing are delayed - etc.
Disadvantages of Arbitration:
- cost: aside from the expense of legal counsel, expert witness, etc. the arbitrator fees must be paid together with the cost of hiring the place of the hearing (court room and judge are no extra expense) - lack of legal expertise: the arbitrator is less will informed with regard to the law than a professional judge - no binding precedent: each case submitted to arbitration is decided upon its own merits, without necessarily any regard to previous cases. This can make it difficult for parties to ascertain the strength of their arguments.
How is a project budget set?
- could use square-footage costs for similar projects - reference books have date for historical costs - sometimes public referenda determine how much the public is willing to spend
What could a submittal include?
- cut sheets - working drawings - shop drawings - descriptive data - certificates - methods - calculations - material samples - test data - schedule progress photographs - procedural descriptions - manufacturer's instructions
How can an agency agreement be terminated?
- death of the principal or agent - destruction of the subject matter for which the agency was formed - occurrence of a specified event - fulfillment of the particular purpose of the agency - bankruptcy of the agent or principal - expiration of a time period set in the agency agreement - a development which makes the subject matter illegal - mutual consent of the principal and agent - unilateral termination by either party (this is valid since the agency is voluntary relationship and can be terminated by either party without breach of contract)
Patent Defects
- deficiencies that are clearly able to be observed or can be detected with a reasonably thorough investigation - some patent defects can be observed with quick scrutiny while others require measurements - once a project is accepted by the owner, the contractor does not have an obligation to fix patent defects - patent defects should be clearly noted on the final punch list - often of cosmetic nature but not always - there is generally no recourse once patent defects have been accepted
What kinds of "values" are taken into account in value engineering?
- delivered cost of a project - cost of maintaining completed project - the ease and duration of construction - probability of disputes or litigation - various other factors
Time and Materials (also called T&M) contracts
- design firm is paid for time and materials spent - paid for labor and its other direct costs (ODCs such as: printing, mailing, etc.) - hourly labor rates are negotiated in advance - labor rates can be fully loaded (they include all salary-related expenses, with overhead and profit built into hourly rate) - or could be an employee hourly rate multiplied by a figure that includes SRE's (salary related expenses) , overhead, and profit - sometimes contracts allow mark up of handling consultants - great for design firms because it is impossible to go over budget - However, unlike lump sum it is impossible to improve a project's percentage of profit - generally used when it is difficult or impossible to determine a scope of work in advance - invoices require backup, showing labor hours spent and direct costs - the client can challenge or outright deny labor hours - There is no way to make up for denied hours
Modification and Withdrawal of Bid
- despite recent advances, many unknowns are still unresolved until just before bid submittal, and human judgement remains a vital component in the process. - Once a bid is submitted, it is common to permit bidders to withdraw or modify their bids, provided that the request is made prior to bid opening - when estimating various components of a project, it is often necessary for the estimator to make assumptions about the proper interpretation of the contract documents. If the assumptions make significant impact on the final tabulation of the bid, it is prudent of the contractor to request an interpretation that is typically made by the designer in the form of an addendum.
Contractor should furnish these items within 7 days of the selection as assurance to the owner:
- details of the amount of work to be undertaken by the contractor's forces - names of proposed suppliers of material and equipment - a list of intended subcontractors for the architect's approval In addition the contractor may be asked for: - contractor's Qualification Statement (if appropriate and if not completed prior to selection) - proof of the responsibility and reliability of the work force - bonds, in accordance with the owner's requirements as expressed in the Instructions to Bidders
The best approach to designing to cost?
- develop a realistic construction cost budget from the outset - break down the construction cost budget into a budgetary cost model - lead, manage, and monitor the development of the project so that the design reflects the cost model
Benefits of Mediation
- disputing parties can create their own settlement - the mediator is a neutral third party and can therefore help both parties explore alternative solutions - mediation is very informal and can be arranged quickly - cost can be dramatically reduced in legal fees, time and expended energy - there is greater possibility of maintaining the working relationship between the parties - the free-form nature of the process allows for creative solutions to be explored
Request for Information (RFI) How to respond:
- documentation quality is sometimes quantified via RFI, as submitted by contractors and design consultants - the RFI procedure is used in the construction industry in cases where it is necessary to confirm the interpretation of a detail, specification or note on the construction drawings or to secure a documented directive or clarification from the architect or client that is needed to continue work - 60% of RFIs result from insufficient information - the remaining result from questionable, conflicting, or inaccurate information
Variations (in bidding process): (2) mechanisms
- documentation should be comprehensive and unambiguous but in some instances it may be necessary to provide some alternatives in the bidding process requirements 1. Alternates 2. Unit Price
What is the risk of a "completion date contract"?
- does not establish a starting date - generally not known prior to bid - duration of project can vary considerably - duration is not clearly defined
What are some disadvantages and types of projects that you would not use a cost-plus contract?
- does not lend itself to competitive bidding. This is used almost exclusively in the private sector - unlike other forms of contract, does not place the owner and the contractor in an adversarial relationship. However, this form mandates that the contractor be trustworthy - the owner has little idea of what the actual cost of the project will be. Also, the owner must maintain additional staff to monitor the progress of the contractor
Other legal provisions exist which can affect the relationship between neighbors and the liability for persons entering upon the land, these include:
- easements can be sought by a new owner in connection with the property of a neighbor (e.g. dig close to property for a foundation) - Spite fences - tree ordinances - Nuisance - Occupier's liability
Advantages of a Bar Chart Schedule
- easy to set up - intuitive to read and understand by clients and team members - suitable for small and medium-size projects - easy to update by hand or with a computerized schedule program
What happens after you file a building permit application?
- either the permit is issued or it is a written rejections with specific reasons why - if a permit is issued work must generally begin within a fixed period and be completed within the specified time - a notice signed by the building inspector confirming the issuance of a permit should be displayed on the construction site - the building inspector can enter the site at any reasonable time to check that the work is in compliance with the code. Required inspections are likely to be undertaken at important stages of construction and due notice to inspector before work begins (foundations, concrete slabs, roofing, electrical work, gas, plumbing, heating, plastering) - cost of tests by the building inspector are borne by the owner
Disadvantages of Fixed Price/ Stipulated Sum Contracts
- escalation or inflation of prices or unforeseen circumstances might affect the contractor's fixed profit margin - could mean a higher base bid to cover such contingencies and so the owner may pay more than is strictly necessary Note: that there are standard forms with clauses such as escalation clauses and concealed condition clauses
Client Work Session: potential discussion items
- everyone is there! client and representatives, principals, project manager, landscape architects, consultant team, advisors, etc - open brainstorming session with the primary objective to clearly determine and record client's objective and project requirements (goals, client vision, critical success factors) Discuss: Administration - team member roles and responsibilities - quality management strategies - change management - risk management - critical success factors - construction budget and design cost monitoring - processes for review and approval - deliverables by phase - design and construction schedule - project construction phasing - contractor implementation strategy - communicationplan - project close-out Discuss: Design - measurable project objectives - built character and material interests - issues of design precedent - economic issues - community issues - environmental issues - aesthetic/art issues - design program, with attributes Note: be prepared for this meeting with boards, and graphics, current understandings, typology, component options and associated costs, preliminary design principles and cost, etc.
Electronic Bidding
- expected to expand - proposals can be submitted electronically - the software for submitting bids electronically offers bidders opportunities that they did not enjoy with the traditional hand-delivered procedures. This is the ability to modify a bid after it has been submitted.
What actions by the contractor may be described in a termination for default provision?
- fails to work under the contract within the time specified - fails to perform work with sufficient workers and equipment and materials - performs work unsuitably or neglects - fails to resume work within reasonable notice of time - becomes insolvent or declares bankruptcy - makes an assignment for the benefit of creditors - allows any final judgement to stand against him or her unsatisfied for a period of 48 hours - is determined to be in violation of contract for labor, wages, hours, equal opportunity, character and classification of workers employed - any other cause whatsoever fails to carry on the work in an acceptable manner The owner will then give notice in writing to the contractor and to his or her surety of such delay, neglect or default, specifying the same. The contractor must act within specified days to remedy the problem or forfeit the option to call upon the surety to complete the work.
After final payment: Any work undertaken beyond this time forms the basis for additional compensation for the architect, and may include:
- furnishing a set of amended "as-built" drawings for the owner's records, which may be useful if further work or adaptation are anticipated - site visits and advice to the owner concerning work to be undertaken by the contractor during the 12-month warranty period - inspection of the project prior to the expiration of the warranty period, and compilation of a report listing necessary repairs or corrections. An inspection may be arranged by the architect to check the work when complete - maintenance advice or reports may be undertaken, possibly on the basis of an annual retainer - post-occupancy evaluations may be carried out once the building is in use to judge its success and general performance
What three types of information are provided in a technical specification?
- general information - product information - execution
What standard information will be included in a Technical Specification?
- general: stipulates ground rules for the work to be performed and defines the scope of work to be performed within the specification section - product of products: describe the product or products (materials, equipment, accessories, components, fixtures) and the development and manufacturing process to be used in producing them - Execution: describes the preparation, workmanship, installation, erection and application procedures to be employed along with quality requirements and performance criteria that must be satisfied
Do architects have the authority to issue a change order?
- generally NO unless there is specific authorization - on most building projects, the architect acts as the owner's representative, granting payment requests, rejecting inferior work by the contractor, interpretation of drawings, and in general enjoying a great deal of power. Contractors often assume erroneously that the architect has the power to issue a change.
What other factors will effect construction time used?
- geographic location - complexity of work - weather as a strong factor
What is found on a site survey?
- grades and lines of streets, alleys, pavement - adjoining property and structure - adjacent drainage - right of ways - restrictions, easements or encroachments - zoning - deed restrictions - boundaries and contours of the site - locations, dimensions and relevant data about existing buildings - trees and other improvements - utility services and lines (public and private) above and below grade
What type of costs are generally NOT reimbursable in a cost-plus contract?
- hand tools - insurance premiums - home office expenditures (unless directly allocated to the project) - interest on money borrowed by the contractor - contractor profit and overhead (salaries of home office personnel) - cost of rework due to defective workmanship
Must have qualities of a PM include...
- high motivation to manage - ethical and professional behavior - technical and legal competency - pragmatic decision-making skills - ability to make decisions with incomplete information - a generalist's experience, education, and attitude - good communication skills - ability to empower a design team
Main objectives of Preliminary Design Phase:
- identify comprehensive goals and parameters for the design, for example budget, schedule, process, requirements, and so on - define, test, and evaluate the client's site program - define narrative principles and metrics for the design - review and evaluate existing site and contextual conditions - prepare a design(s) that meets design, regulatory and client criteria - establish three dimensional design intent and character - evaluate alternatives and establish a preferred design direction
What if the contractor does not want to perform the cardinal change?
- if a change on a public project is considered to be cardinal, the contractor should immediately inform the owner in writing - if the owner insists that the contractor perform the work under the provisions of the change clause, the contractor should proceed under protest - if the contractor protests and then successfully has the change declared cardinal, damages may be claimed by the owner's breach of contract. Without protest the later claim will likely be denied.
Substitutions by contractors
- if a substitute is used, the substitution can be incorporated into the contract if it is accepted before the contract is signed - if it is accepted after the contract is signed, a change order can be issued - request substitutions up to a given time before the bid date
Who owns the float???
- if not in the contract, the contractor might assume that all float belongs to the contractor - the owner might assume that they have total ownership or joint ownership - some contracts stipulate that no one owns the float time Ex. if the owner issues a change order and the only activities affected are noncritical, the owner will regard the impact to be minor and only consume float time. Therefore the contractor is not entitled to extension. The contractor might have a completely different view. UH OH!
When a delay occurs, what can a contractor do?
- if owner-caused the contractor should keep up to date progress schedule that is approved by the owner, maintain diary of relevant facts of delay, give written notice to an owner that a delay has been incurred, request written notification from the owner that a time extension has been granted - contractor can make a claim for a monetary settlement or time extension or both - a delay cause by a sub will probably result in compensation only (the contractor can place a claim against the sub) - change order issued by the owner are the most common means by which compensation is coupled with a time extension
Claims for Extensions
- if the contractor feels there is an extension warranted, an application must be made in writing to the architect within twenty days of discovery of the event likely to cause delay. An indication of the probable effect of the delay upon the construction work should be included, and the contractor should be encouraged to make very reasonable effort to minimize the impact of the event on the general progress of the project. - granting of time extensions is not automatic - if there is sufficient cause to justify an extension, there may also be grounds for additional compensations
Termination by the owner
- if the contractor is adjudged bankrupt - if the contractor makes a general assignment for the benefit of his or her creditors - if a receiver is appointed on account of the insolvency - if the contractor persistently or repeatedly fails to supply properly skilled workers or proper materials (unless an extension has been granted) - if the contractor fails to make prompt payment to subcontractors and/or suppliers - if the contractor persistently disregards laws, rules, ordinances, regulations, or orders of a public authority - if the contractor is guilty of a substantial violation of one of the provisions of the contract documents
What to consider when using Lump Sum (aka fixed price) contracts
- if the design firm spends less than the sum, they automatically make extra profit - the opposite is also true - payment is linked to contract-defined deliverables (phases, reports, drawings, specs, cost estimates) - payment is often based on the percentage of the job that is complete - retainage is usually about 10% and is kept for security for the design firms performance over the life of a project or until a specific contract defined milestone - generally, invoices do not require backup that documents how labor hours were spent or material costs were incurred. Payment is based on clearly defined phases and deliverables.
Preparation of cost of a change...
- include in the proposed price the cost of labor, fringe benefits, payroll taxes, material, subcontractor expenses and markup, rental equipment, operating and maintenance costs for equipment, field overhead (stipulated percent), liability and compensation insurance, home office overhead (stipulated percent), social security and unemployment insurance - the price is quoted to the owner for review - if the owner finds the price and time acceptable, a formal change order will be issued - the contractor is then required to perform the work - note the GC will also require subcontractors impacted by the change to submit quotations
Commercial General Liability insurance
- includes premises/operations - Owners and contractor's protective - Completed operations and product - Contractual a broad form of liability insurance covering claims for bodily injury and property damage that combines, under one policy coverage for business liability exposures and new and unknown hazards that may develop.
A good WBS includes the following characteristics?
- it is developed iteratively, starting with the whole and getting more and more detailed with each subsequent pass. It is hierarchical, that is, component parts relate to each other in terms of importance - it has the right amount of detail, now more and certainly no less - tasks are defined by objective, duration, and level of effort. It is based on relevant past experience in both project management and design *WBS can take the form of lists or tree structures. the list format can often lead to overlisting. * if set up correctly the WBS is used to judge a project's performance, allowing the project manager to compare progress against budgets
How do you assess the amount of monetary compensation that is justified for an owner-caused delay?
- it is difficult to assess - the contractor may sustain added costs on work items that were not directly affected by the delay
What type of costs will be reimbursed in a cost-plus contract?
- it is imperative that the contract clarify which costs will be reimbursed. Generally, --labor (wages, employee benefits and contractor contributions to taxes, unemployment compensation and social security) --equipment --material --supervision expenditures --subcontractor costs (based on payments made directly to specialty contractors) -- site cleanup -- equipment rental -- temporary utilities --permit and land-use fees
Commitment from project team members is important...how do you get it?
- it is much easier to get buy-in to project budgets when the design team members are asked to participate in developing their budgets in the first place - make sure people commit to the budget!
CPM Scheduling Overview
- it uses relationship arrows showing dependencies among the tasks - depending on the configuration of the arrow, slack time in the schedule is shown graphically - highlights the path through the tasks where there is no float
Why would a private owner want a payment bond?
- keep a project clear of liens - never pay twice for work done - prices are lower (by subs and suppliers) if they are assured of being paid
If owners cause delays, claims can be made by contractor to compensate for:
- labor costs (including subcontractors costs, wages, overtime, insurance, etc.) - equipment costs - material costs (additional and escalation costs) - overhead (field and office) - insurance and bond costs - other loses (seasonal problems, congestion on site, etc.)
Matrix Organizations
- large design firms generally organize around some type of matrix structure - these organizations are called matrix structures because most staff members have different supervisors for different purposes - a member of a specific discipline has a discipline manager (sometimes called a department head) - depending on the number of projects the staff member is working on, he or she may have one, two, or even more project managers as project supervisors. The intent of the matrix is to give total project management authority to project managers while maintaining high levels of technical competency and quality control over the work product - numerous career path opportunities - referred to as "strong project management" or " full project management" organizations - matrix structures provide maximum information exchange, management coordination and resource sharing - the most common organization of the four in large multidisciplinary firms - PMs are accountable for the performance of projects and there is no confusion about who is responsible for project management - vertical reporting is functional while horizontal reporting is project-specific - vertical functional reporting is almost always considered more important than horizontal project reporting - functional reporting within matrix organization usually trumps project reporting. - generally, discipline members have more allegiance to their department heads than they do to PMs - department heads hire and fire staff - department heads are more stable and this increases the bond between them and their staff. Allegiance is good but can cause smokestack or silo thinking - silo thinking arises when a department head and his or her staff view their department as a little cottage industry, autonomous unto itself (can pit department heads and/or staff against project managers) - some multidisciplinary firms provide a supervisor for project managers (PMs have an advocate with equal footing with department heads who can speak collective needs and concerns of project managers) - an ad hoc project team is assembled for a specific project around a single leader, the PM (this is a strength and makes expertise and reorganization easy and flexible) - project teams vary but the firm's organization is stable
Arbitration
- less formal procedure than litigation - AIA says mediation before arbitration - informal private hearing in the presence of whoever the parties choose. If agreement is not possible, a designated third party may select the arbitrator. - the arbitrator is usually someone with specific knowledge and experience in the field (architect, engineer, professional in the field) who is a member of the American Arbitration Association
Milestone List Schedule
- like a short grocery list but a list of project milestones - Milestones are the due dates for critical or contract-defined significant activities - milestone lists are simple to read and understand - they can be constructed with a standard word-processing software - there is no graphic component - commonly used by clients in Request for Proposals (RFQs) because they quickly convey basic project schedule information - many small projects can be managed successfully with milestone schedules - small projects generally don't have the budget for a complex schedule - a 3-week project with a budget of 80 hours does not warrant spending 16 hours to develop the project schedule
Why use Wrap-Up Insurance
- lower total premiums due to volume - no gaps or duplications in coverage - simplicity of administration - easy settlements (no subrogation suits) - no disputes between insurance companies - unified project specific loss control and safety effort
Goal Four: the reach the end safely
- many design projects require field investigations - geotechnical investigations, surveys, hazardous-materials studies, field reconnaissance visits, and field measurements are required, and these involve performing work on project sites. - design can have a great impact on making facilities safer places to work. - design professionals have a responsibility to design facilities that meet certain legally specified code and life-safety requirements - sick buildings are buildings where occupants are exposed to various forms of airborne contaminants - all projects need to address safety, in terms of design team performing the work and in the design of the project itself - a plan is needed that establishes the safety procedures that are to be followed by team members during the design of the project - safety features that are to be designed into the project must be identified so that the completed facility will meet the objectives of being a safe place for its users.
Performance Metrics: does it work as intended?
- measurable - need to be detailed and rigorous coordination with collaborating consultants - metrics are discovery-oriented tool used to shape a collective point of view about what is pertinent to a project - they help project teams to develop more thorough design solutions by integrating strategies to address primary issues and measuring outcomes - they help clients understand how sustainable design will positively impact their project - sustainability metrics lead to a distilled and potent set of goals that are applied to design solutions - aligned project goals are a fundamental starting point for a collaborative design process. A process that centers on project performance uses metrics to assess design alternatives and outcomes at ANY stage of the design - the integration of environmental, economic, community and art metric comprehensively shape the project's outcome
Quality Control and Project Management Goals: the purpose of project quality control is to make sure the following goals are met:
- meet or exceeding the client requirements and expectations - preparing accurate documents (deliverables) - finishing the design on time and on budget - Designing a project that can be built on time and on budget
Quality control starts at the beginning of the project and is based on a quality work ethic and consistent following of tried-and-true proven quality control procedures. Quality means...
- meeting or exceeding the client's needs and expectations - producing deliverables that are as error-free as practically possible
Critical Path Method (CPM) Schedule
- more complicated projects require more complicated schedules - may be set up originally by hand on graph paper, but usually they are developed using one of many software computer programs. - it is a process flow diagram superimposed on a timeline - they are so named because they graphically show the flow of work through the schedule where there is no slack time or float. - any task along this path is deemed "critical" because if it takes longer to complete the task than was originally planned the overall project schedule in variably slips.
Latent Defects
- more problematic concerns for contractors - these are defects that cannot be readily observed through intensive inspection procedures - latent defects continue to be the responsibility of the contractors after the owner has begun occupancy - examples: bad flashing that could result in water intrusion, improper mechanical systems, soil subsidence, improper roofing, excessive voids, mold growth from moist materials, etc. - they tend to be related to water permeability of in-place materials and structural integrity of components
Goal Six: to reach the end meeting everyone's expectations
- most challenging of the goals and most subjective - most important of the six - clients, design firms, project managers, and design team members all have differing expectations - It is the PM's job to understand, respect and respond to various motivations of team members (professional needs of team members must be met) - perceived success of a project is often the most important factor (team spirit, unity, human relations skills, enthusiasm, participation, etc.)
Technical and legal competency
- most clients seeking design services look for project managers who are educated and experienced in the lead design discipline that most affects the design of their project - sometimes it does not matter whether the PM is an architect or engineer - most clients of multidisciplinary design projects require PMS to hold licenses (architect, engineer, LA) - generally to clients "licensed" means in the state where the project is built, not necessarily where it is designed.
Bar Chart (Gantt Schedule)
- most common graphic type schedule because it is easy to set up and understand - used for small to medium-size projects - superintendents of large construction projects often use simple bar chart schedules in conjunction with complex CPM schedules to manage their next three weeks of work
what is abduction?
- most commonly used decision making tool of logic - most decisions need to be made without complete information - abduction is creative educated guessing based on combining past experience with available information to form an inference that is likely, based on the available facts
Time extensions may be granted for a number of conditions....
- most contracts allow for time extensions - when the contractor is delayed for a reason that is not their fault, they should consider requesting an extension - delays caused by subs and suppliers are often not good enough reasons to request an extension - generally time extensions are granted when the delay is because of "unforeseeable causes beyond the control and without the fault or negligence of the contractor" and which the contractor is "unable to prevent".
Goal Three: to reach the end on time
- most of a design firm's expenditures are in employee salaries. Consequently, most design project costs are labor costs - a schedule is needed to properly execute all design projects - It is not possible to properly manage a longer, multitasked project with many design professionals without a schedule.
What if there is a long time between bid and award?
- most owners will state in the instructions to bidders how long the submitted bids will remain open - prudent bidders will anticipate the increase in costs due to delayed contract award and make a commensurate adjustment to the bid
What is a brown-bag review?
- much less formal approach - interested staff members at lunchtime review the project and staff inputs their reaction
What is included in the Notice to Bidders?
- nature or type of project - location of the project - type of contract for construction - bonding requirements - dates in which to perform work - terms of payment - estimated construction cost (some specifically exclude this) - time, manner, and place to submit bids - location to obtain bid documents - deposit required on bid documents - owner's right to reject any and all bids - requirements regarding wage rate
Mediation
- new alternative gaining popularity in the construction industry - despite their differences, litigation and arbitration use basically the same principle to resolve dispute (refer to a third party to review evidence and declare a winner) - in mediation process, disputing parties will engage the service of a third party, but the mediator will have NO authority to make a decision which is binding to the individuals involved - the mediators role is to enable the parties to voluntarily explore settlement options and jointly craft a resolution that resolves the dispute. - Mediators have no authority beyond their powers of persuasion and creative problem solving, and the process relies on the will of the disputing parties to resolve their differences without resorting to more formal options. - despite the lack of mediator authority it has proven to be very effective
Goal Five: to reach the end error-free
- no project is perfect - quality is extremely important to design professionals - quality control measures must be planned and managed
Quality-control Procedures
- nobody is perfect and it is difficult to check one's own work - a critical point in the design process is the transition from the iterative design phase to the linear production phase. At this juncture, it is wise to do a quality-control check of the design to confirm that it satisfied all the requirements of the client's design program and that no major objectives are missing - reviews are best conducted by a third-party reviewer - many firms have standardized quality-control checking procedures
What kinds of characteristics must a project manager have?
- not a dictator! - balanced composition of design, technical, organizational, financial, and leadership skills - must know how to communicate orally, in writing, and graphically - must know how to draw at least well enough to convey ideas diagrammatically - design professionals are visual people - the need to know what kind of decisions they must make and when to make them. And when to delegate decisions to other members of the design team - they must strive for perfection but know that nor project is perfect - teachers - cannot be troubled by little annoyances - look out for things that can go wrong - take calculated risks - have a plan B - big picture thinkers and be able to zoom in - thin iteratively when planning projects and linearly while executing them - be able to manage more than one project at a time - redirect attention quickly from project to project
Advantages of Cost-type contract:
- not needing a full set of documents before a price can be negotiated and work started, and enables the owner to bring the contractor into the process at an earlier stage
Interpretation (duty of LA)
- often the contract gives the architect authority to render interpretations of the intent of the contract documents in the event of the parties failing to agree. Helps to solve ambiguities and keep the project moving. - either the owner or the contractor can require the architect to interpret an aspect of the contract documents, and the architect should make the decision in writing within a reasonable time. - in the role of interpreter, the architect is expected to act as an arbitrator and "to secure faithful performance by both the owner and contractor" - the architect assume an unbiased position in this, a quasi-arbitral immunity is granted for any liability for the results of interpretation, rendered in good faith by the architect.
If the contractor fails to finish within the specified time, the contract is breached and several mechanisms may come into effect as a result such as: name (5)
- often time is a very important factor in the contract - provisions make it important for the contractor to complete the work in conformance with the contract documents, on or before the date of substantial completion stipulated in the contract - if the contractor fails to finish within the specified time , the contract is breached and several mechanisms may come into effect as a result such as: 1. liquidated damages 2. termination 3. refusal of further payment 4. variations 5. extension of time
Top-Down Budget
- on other occasions, the PM may be handed a budget for a project based on a design fee that has been determined (negotiated) by others in the firm.
How to begin setting up the project financials once the design budget is set.
- once the design budget is set, the fee must be broken down into work tasks and their budgets - once the discipline and task budgets have been determined, the breakdowns must be entered into the firm's project cost accounting system - most firms assign job numbers to project and have well-established computerized project accounting procedures
What is one common method for shortening schedules?
- one of the first places to look is overtime. Usually means work will take fewer days to complete (this will usually increase project cost) - constant overtime will result in a drop in efficiency and accuracy
Sole Proprietorships
- one person ventures - approximately half of the architectural firms in the US are sole proprietorships - can suffer from lack of project management due to the one person wearing so many hats
When might you need supplementary conditions to a standard contract
- owner's requirement - the nature of the project - local/state legal requirements - climatic or physical factors
General Conditions
- part of the project manual - often referred to as the boilerplate, augment the construction contract and outline the rules under which the project will be built. They establish the rights, authority and obligations of the contracting parties: the owner, the owner's representative, and the contractor -there are standardized general conditions (AIA)
Other Bonds: list
- payment bonds - license or permit bonds - lien and no-lien bonds - maintenance bond - release of retained percentage bond - statutory bond (check each state for requirements) - subcontract bond - termite bond - james bond
Payments on Unit Price Contracts
- payment is based on the unit prices as bid and the precise measurements of in-place field quantities - after the architect/engineer reviews the application and verifies the measurement of the quantities, a certificate of payment is issued to the owner. The owner is then expected to pay for those in-place items by the stipulated date. On some contracts, late payments to the contractor are subject to interest charges.
Payment (to subcontractors)
- payments to the subcontractor by the prime contractor are governed by the same requirements as the owner's payments to the contractor - the subcontractor may request information from the architect concerning the percentage of work completed or amounts certified, even though no contractual relationship exists between the parties - if a certificate of payment is withheld from the contractor through no fault of the subcontractor, the latter is nonetheless entitled to payment for work completed to date, and the contractor will be bound to pay it - In AIA contract, if the subcontractor is not paid and after du notice, the subcontractor can stop work until payment is made - In some cases payment made by the owner to the contractor may not reach the subcontractor (eg the contractor is bankrupt) In this case, it is possible for the subcontractor to successfully claim against the property through the imposition of a lien, causing the owner to pay twice for the same work. - to avoid such problems, payment bonds should be used to prevent undue hardship to the owner
Payments! (general overview)
- periodic payments are typical, generally made on a monthly basis - the right to periodic payments is granted contractually - it is a considerable burden for some contractors simply to finance the construction effort from one month to the next. Construction costs are very high.
How can a responsible bidder be assessed?
- postqualification - most public works owners require some form of qualification standards to be satisfied. The purpose is to eliminate incompetent, overextended, underfinanced, and inexperienced contractors from consideration. The endorsement of a contractor by a surety (bid bond, performance bond, etc.) is often deemed sufficient to satisfy prequalification criteria
Pragmatic Decision-Making Skills
- pragmatic means that the effectiveness of any project management decision will be determined by its outcome, that is, by how ell the decision worked - ethical behavior is pragmatic because it brings about results that are always defendable and justifiable - must use the most appropriate decision-making technique that is best suited to respond to the available information that bears on a decision
Division of specifications that is bidding and contract requirements includes...
- prebid information - instructions to bidders - information available to bidders - bid forms - supplement to bid forms - agreement forms - bonds and certificates - general conditions of the contract - supplementary conditions - drawing index - addenda and modifications
Client project budgets generally contain several component parts:
- project construction budget: the maximum amount the client wants (hopes) to spend to have the project built - project design budget: the max the client wants (hopes to spend on design and prep of construction documents - project administration budget: the amount the client has allotted for its own internal costs to manage the project - Construction support services budget: the amount the client has budgeted for construction inspection, testing, review of submittals, etc. - Total project budget: the sum of the above
Question a PM must ask, does the project work plan address the following...
- project objectives - project team organization - project budget - accounting information - project schedule - quality-control procedures - safety procedures - CADD standards - project filing system
Project management has a number of concepts or management tools. These include:
- project planning - breaking down the work into tasks - scheduling - budget - quality-control strategies - project objectives - project management goals
Project Work Safety Plan
- projects include field visits and various site investigations - the plan should address safety procedures - many clients need advance notice - some clients have special safety procedures - all info needs to be communicated to the design team - hazardous materials require warning
what are the (3) primary forms of business organization?
- proprietorship - partnership - corporation
The closeout procedure will also include such items as:
- providing the owner with the permanent keys for the locks - the warranty for the project - affidavits that that workers, subcontractors, and suppliers have been paid - lien releases - prevailing wage certificates - as-built drawings - a complete submittal file for the project
Competitively Bid Contracts
- public agencies often require this method which is best suited for projects of a straightforward, traditional nature, where no unforeseen problems are unlikely - need complete design documentation to enable accurate bidding
In a performance specification, what is used to describe the performance?
- quality - in-place operation conditions - finish - color - appearance - tolerance - clearance - noise level - since only the performance criteria must be met, the contractor is responsible for selecting the method and material. Note: an innovative contractor may be able to satisfy the spec more inexpensively than another contractor. This lower cost will be reflected in the contractor's bid. Innovation developed after bidding only increases the profit of the contractor.
What are some common items that can be negotiated within a design budget?
- reducing the number of design alternatives to be studied - reducing the number of submittals - reducing the number of meetings - reducing the scope of work - see if the client has the freedom to hire the geotechnical engineer and/or the surveyor directly
Concurrent planning
- same as running in parallel - some tasks are interrelated, requiring frequent coordination and/or input from each other - tasks such as these benefit from concurrent planning - each discipline must understand and respect the needs and concerns of the others. Because frequent feedback and communication may be needed, running the tasks concurrently (or parallel) makes sense - some tasks require input form other tasks but do not need it to be fully complete
Level of detail needed for a change order?
- same level of detail that was used in the original contract documents - similar to contracts and therefore must meet the same criteria as the original contract - the primary issue to be resolved is the amount that the contractor will be paid for the changed work
Why would a contractor want a time extension?
- save money by avoiding costly need to accelerate work - eliminate liquidated damages
Construction Manager
- scope of duties and operations carried out varies -Construction management services may be practiced by a number of parties. Some general contracting companies have entered the field, either in addition to or instead of normal construction work. Also architects, engineers, and others with expertise and experience in the construction industry have undertaken similar services. -often the contract is made directly with the owner and the construction manager acts as a go-between for all the parties involved in the building project and the owner. However it is possible for such a manager to be employed as a consultant by the architect, or a form a joint venture with the architect.
BEFORE looking at overtime, what else can you do to shorten a schedule?
- shorten task contingencies: contingency time is frequently built into many tasks. Often time is padded for more flexibility so talk to people and see if they can accommodate. - run task concurrently: can some tasks that are running sequentially be run at the same time? - Use more resources (mores staff): can the design firm commit more resources to the project and therefore complete some tasks more quickly. - Extend the due date: can the client grant a time extension? - Can client review periods be shortened?
When a directive for a change is given, what should the contractor consider?
- should I perform? - is this proper authorization? - is this within the scope of the contract? - is this directive in the proper form? - if I perform, will I get paid? Note: on major change orders, the surety should be kept informed. Minor changes need not be notified but changes that amount to more than 10% of the original contract amount may require prompt notification be given.
Drawings and Specifications sent to bidders...
- should be complete and unambiguous as possible - sent free of charge - number of sets varies (if the bidders need extra they may be provided at their expense) - to ensure return of the bidding documents by unsuccessful bidders, a deposit is usually required which is returned upon receipt of the outstanding documents
For work to be considered additional and for the contractor to be entitled to added compensation, the following criteria should be met. The change...
- should not have been anticipated - was not open to observation, and - could not be readily discovered until work under the contract was undertaken
The Hearing
- should only be held when all the requested documents have been exchanged - in the event of the refusal of one party to participate, or if there is an attempt to deliberately obstruct the proceedings, the arbitration may continue ex parte (i.e. on the proof of one party only). The party must be notified in writing of their right to attend and being absent is not reason enough for party fault.
To be a useful planning tool, the schedule needs to address the following:
- show all contractually required phases as major milestones. - show minor milestones to give the project mileposts- regular intervals of time where progress can be monitored - show all tasks required to complete the deliverables for the major milestones. Use a level of detail appropriate for the size and complexity of the project - make sure quality control/review is a budgeted task - show client review periods as tasks
How to select a project scheduling method?
- simple and complicated projects usually start with a milestone list schedule - like project planning, schedules are built iteratively. They start simply but are all encompassing. More detail is added to the framework - The scheduling info (task interdependence and deliverable milestone dates) drive the requirements and complexity of the schedule
Extension claims often arise from owner delay and decision, and may include:
- site not ready in time for contractor occupation - delays in progress payments - delays in issuing change orders - delays in approving submittals - errors in drawings and/or specifications - administrative delays (poor coordination of separate contractors, inspection delays, etc.)
Information Collection Methodologies
- site visit and physical review of existing sit and contextual conditions - photo documentation - surveying - topo analyses - GPS data - interviews - utility loactes - sketch observvations - records - audio/video - statistical analyses - noise, light, sun, wind, temp, rainfall, snowfall, percolation - understand regulatory government code
Things to keep in mind while choosing a fee type appropriate for services provided...
- some projects are better defined at the outset than others and it may be impossible to know in advance exactly how long it will take to complete
What if the contractor works on NON-working days?
- sometimes there are provisions for this - sometimes it is forbidden - sometimes a contractor need permission from the owner - sometimes Saturdays are consider make-up days - all of this should be addressed in the contract!
What are SMART goals?
- specific - measurable - action-oriented - realistic - time-oriented
Monitoring Progress: site visit notes
- stage of completion - temperature, weather - date - work in progress - persons present - conformance with schedule - any observations - items to verify - information or action required - photographic or video material may also provide a useful record
An empowering PM...
- stays in the middle, coaches and oversees the design, leads the team, and attends to their needs so that everyone has what they need to meet their obligations - the PM inquires, coaches, encourages, and assists - if there is a recurring problem that requires a heart-to-heart conversation, it must take place privately
Types of Delays: give some examples
- stikes - adverse weather - late decisions by owner - delays cause by other contractors - unforeseen changes that affect completion time - unavoidable casualties - restraint by a government or government agency - unsuspected subsurface conditions - discovery of an Indian artifact during excavation - discover of an endangered species on the construction site
Surety Underwriting
- surety companies assume a tremendous risk so as a result they make a thorough scrutiny and analysis of the contractor's operations and solvency. - the underwriting (rating of acceptability of risks being solicited) procedure is usually so carefully performed that many owners disregard the need for prequalifying bidders. - the underwriting is performed by a surety agent. Usually the surety is a firm with national standing.
for specifications to serve their purpose, it must satisfy some basic criteria, including...
- technical accuracy and adequacy - definite and clear stipulations - fair and equitable requirements - a format that is easy to use during bidding and construction - legal enforceability
Types of Consultants: typical in architecture projects
- technical knowledge (lighting, acoustics, landscaping) - knowledge of specific building types (hospitals, schools, theaters, etc.) - attributes relevant to a specific project (financial expertise, behavioral studies, etc.)
Within 7 days of written notice of termination to the contractor and surety, the owner may:
- terminate the contract with the contractor - take possession of the site - take possession of all materials, equipment, tools, construction equipment, and machinery on the site owned by the contractor - finish the work in the most expedient way Note: the contractor will not be entitled to any further payment of outstanding fees until the project is complete
Site Visits by the landscape architect should...
- the LA should visit the site at appropriate intervals to ensure that the work is compliant with the contract documents - frequency of visits depends on a number of factors ( type of project, site conditions, complexity and size of project, stage of construction reached, type of owner, knowledge of contractor, location of site from office, whether there is an on site architect or construction manager, whether additional fees are being charged for inspection, unforeseen events, specific events) -On arrival at the site, the architect should report to the contractor or the named superintendent and should communicate project matters solely with that person for the duration of the site visit. - a record should be kept of all visits, noting any observations, information supplied, and actions that should be taken
The importance of team buy-in to the work plan...
- the PM needs commitment from the design team that they accept the work plan, budget and schedule and that they will meet their various project obligations - buy-in is easier if key members have some say in the development of the project plan - a technique that has been successful for many decades is the wall chart
What are some guidelines to setting up meaningful work breakdown structures (WBS)
- the WBS should relate to the contract requirements and use similar terminology - the WBS should be hierarchical- budgets should roll up so that they cannot be counted twice - The WBS should be no more complicated than is absolutely necessary to manage the project - staff must intuitively understand the codes to which they are to charge their time Note: some firms include profit in their hourly rate but others do not and it is a separate line item
Does a Landscape Architect have the right to stop work?
- the architect does not have the power to stop work unless expressly authorized to do so by the owner in writing
What is the charette process?
- the charrette process is a tool used for developing the project program and for exploring alternative solutions with clients - Charrette is french for cart - intense creative and time-constrained workshop during which the PM and the design team work in concert with the client to resolve program an design problems
Which of the following signatures are needed to complete a change order?
- the contractor - the owner
Does the owner have to hire the company that it has a JOC with for all projects?
- the contractor may be guaranteed a minimum amount of work, and there may also be a maximum stipulation for expenditures made in one year - However the contractor is NOT assured every item of work and the owner can always award individual contracts to other firms - this gives strong incentive for the JOC to perform efficient high-quality work - there is very little risk for the owner in a JOC
Selection: of subcontractors by contractors
- the contractor may select suitable subcontractors, and cannot be forced by the owner to work with anyone to which reasonable objection can be made. - as soon as possible after the owner-contractor agreement is signed, the contractor should submit a list of proposed subcontractors and suppliers to the architect - the architect and/or the owner may reasonably object to any of the names on the list - objections must be made on the basis of actual accurate material to avoid potential claims of defamation - if the substitution is acceptable, the contract sum can be adjusted by Change Order to accommodate any financial inequalities caused by the change - architect and owner must be aware of any substitutions
Contractor's Work Schedule
- the contractor should provide for the architect's information an estimated schedule of progress in the form of a bar chart or critical path method
Additional safety measures may be taken by the owner depending on:
- the contractor's reputation - customs and practices of the area - state lien laws - owner requirements Note: if there are any exceptions to the normal procedures recommended by AIA related to final safeguards, payment or bond by the contractor can be used to discharge further responsibility
Cost Plus Fixed Fee contracts
- the design firm is paid for all costs, labor, and materials - the labor costs do not carry profit. Profit is negotiated fixed amount that does not vary with actual cost. - if for some reason it takes more hours and/or costs to accomplish the work, the firm will be paid for the labor and costs but the amount of profit will not be adjusted. - the profit is fixed - this has advantages for the owner and the designer - the designer has incentive to run the project effectively and efficiently because the percent of profit increases if fewer hours are spent - this is good for the owner because they wind up spending less money overall - if the project goes over budget, the firm loses profit as a percentage of the total costs
Design Studios
- the design studio is the most common organizational structure for small to medium-size single-discipline design firms - no set cutoff but once it reaches 40 to 50 people it tends to transform into a different organizational structure - generally they operate as autocracies, with power and authority vested in one individual - one person is in charge of virtually everything- and everyone who works there knows it - the principal is at the top and directs the organization - there may be one PA (project architect/engineer/planner) or none at all or many in larger studios - autocratic organizations foster the attitude that it is better to trust the perceived gut feeling of the principal over one's own judgement - PA tries to think like the principal but is unsure what the principal would do, decisions are postponed - below PAs on the design studio is the in-house staff who does day-today design and production work - there is a limit to how many clients and projects one principal can serve and manage - often limited career advancement opportunities for employees - PA must pick up whatever the principal does not want to do, does not have time to do, or falls through the cracks - however, a PA can only advise when it comes to decisions - sometimes PAs come to meetings or not so they may or may not have a full picture of what the client expects
Total Quality Management (TQM)
- the development of a quality-minded attitude towards everything one does- basically having a quality-work ethic is the lynchpin of TQM - quality-work culture can spread through an organization
Summary of basic code of ethics for project managers:
- the general public is the PM's ultimate client. Must hold health, safety and welfare in the highest regard - know their personal strengths and areas of competency. Know their firms' area of expertise and only provide services within their areas of expertise and competency - should always behave in a way that honors the dignity of the design professions - never allow themselves or their design firms to become entangled with other persons or businesses that are engaged in deceitful or fraudulent practices - as a licensed design professional, PMs should only stamp and sign drawings, specifications, reports, or other documents that were prepared under their direct supervision - frontline representative of their firms. As such they must act as faithful, trustworthy, and honest agents of their firm - constantly strive to improve their professional skills and better their profession - not accept commissions, monies, perks or favors from contractors or other parties that have dealings with mutual clients
Pre-bid site investigation
- the information to bidders generally contains info about the existing site (boring logs, soils test, etc.) - it is common to stipulate that the contractor make an independent site investigation - if the contractor does not visit, it is not likely that an adequate amount was included in the estimate for clearing the site - most contract documents contain provisions (general conditions) that the contractor make an independent site investigation
Why is a clear demarcation between iterative design and linear production important?
- the iterative approach gives way to a more linear, technical problem-solving approach - by the time the project is in the throes of CDS, the approach is linear - the PMs should shift their projects as quickly as possible from iterative to linear to increase the likelihood of success - when that line is, depends on the project - before the approach changes, all major parts of the project should be defined and they should meet the client's functional, technical, aesthetic , and financial objectives and expectations - it can be very expensive to make changes during the production of CDs - do not let production work get ahead of design work. period.
Stages of the Hearing:
- the oath of the arbitrator - recording of time, place, date of hearing, the parties present and statements of claim and response - the arbitrator may ask for statements from both sides outlining the issues involved in the dispute - the claimant will then present the claim, supported by proof in the form of testimony, exhibits, etc. - the claimant's witnesses will be examined, cross-examined - the respondent must then follow the same procedure for the defense and counterclaim Note: sometimes a inspection of property is required
What are the advantages to the design-bid process ( design is complete before bidding, bidding is complete before construction)?
- the owner benefits form the competitive market place - the owner has the appearance of being impartial - the process fully embraces the fundamentals of the free market system - it may be the only viable method available for some government agencies
Change Clauses commonly include the following elements...
- the owner has the right to make changes within the general scope of the contract - the contractor is obligated to perform the work necessitated by the change - the change must be in written form and must be signed - an adjustment to the contract price and/or contract duration will be assessed by some means, or can be predetermined
Disadvantage of Cost-type contract:
- the owner is uncertain of the final cost - no incentive to keep the cost down (by the contractor) - contractor is obligated to keep accurate records of the work for payment purposes - cost type contracts are prohibited in certain states for certain type of work
What if the price is deemed unacceptable?
- the owner may ask the GC to reconsider the price, possibly by providing details to show a justification for the amount of the impact being projected - if the price and/or schedule impact cannot be agreed upon, the owner may decide to cancel the prospects of the change OR - the owner may decide to issue a change order and have the price established, on a cost-reimbursable (cost-plus) basis - it is best to establish the way a contractor will be paid for a change ahead of time and clearly spelled out in the contract
When is a lump sum contract appropriate?
- the project and design will dictate if this option is viable - the plans must be fully completed so that the contractor can estimate quantities accurately - Owners with a limited budges prefer this form of contract because it is the only one that yields a fairly accurate indication of the final costs of a project. Unless changes are made in the project, the amount stated in the contract will be the amount actually paid by the owner.
Establishment of the Project Quality-Control Program
- the purpose is to establish quality control procedures for the project - address and satisfy all client objectives - PM goal is that all project deliverables are as error-free as possible. The project work plan should identify the project quality-control manager and explain the project quality-control procedures that are to be followed - the firm may have standard procedures, specialized procedures, or special to the client
Multiple Design Studio Organization
- the studio approach does not work well when numerous, larger, complex projects are happening at the same time - larger firms must provide career path opportunities for their employees - training employees is expensive and requires patience and valuable time from experienced staff - types of clients that larger firms seek out and attract are different (larger private corporations, publicly traded corporations, local, state and federal agencies) - these clients tend to want tighter control over the function, design, cost and schedule of their facility design projects (sometimes they have their own employee to be their project manager) - they are structured as a series of design studios - each studio has a studio team leader - in this organization each studio is more or less self-contained. each wit its own project and staff. - project management responsibilities are shared among the group leader and PAs and the responsibilities are often ambiguous
Contracts! Overall whats the deal?
- there are (3) basic types of contracts - the fundamental differences lie in the ways that payment for services are established - each has its own advantages - lump sum contract can be considered only if the scope and definition is clear as demonstrated in a complete design - unit price contracts are better suited than lump sum contracts when the actual quantities (earthwork) cannot be accurately estimated - cost-plus contracts can be utilized on any type of project, unless public policy forbids this type of contract - another element introduced in cost-plus to consider is the amount of trust or confidence that can be placed in the contractor
Subcontractors & Suppliers
- there are standard forms for subcontracts - responsibilities, liabilities, payment, relationship to parties - the subcontractor may in turn delegate the responsibility to other contractors who are know as sub-subcontractors. The same relationship is established as with the contractor and subcontractor, although the prime contractor still retains overall responsibility for all work undertaken on site.
Appeals to Building Permit
- there is a board of appeals which can uphold, reverse or modify an inspector's decision - if appellant is not content with the board's ruling, a court action could be considered if there are sufficient grounds
The decision to bid
- there is a great cost involved in preparing an estimate Various factors must be considered: - bonding capacity - location of the project - the owner - the owner's financial status - the architect/engineer - nature and size of the project - probable competitors - labor conditions and supply - availability of in-house staff - the company's need for work
Things to remember about the construction budget:
- there is one number all clients remember. It is the first construction cost they hear from the design professional - So it had better be a good number - best not to give the client a number if there is insufficient information - initial cost estimate must be based on sound information. - it may not be what the client wants to hear but the client needs to hear it - changes in scope can greatly affect construction costs
What happens when a contractor fails to complete their construction obligation?
- this can happen for a variety of reasons - These failures often result in bankruptcy - once the contractor has been declared bankrupt, the contractor has no further obligation to continue work under the original construction contract - No claims by the owner against the defaulting contractor are likely to be satisfied - however, surety is not released. it is for just this type of default that a performance bond is required by owners.
Adjustment (duty of LA)
- this category is often the least defined in the contract. - basically the powers connected with this category ensure that, in the event of confusion or disagreement between the owner and contractor, or in the event of unforeseen changes or conditions occurring, the architect can act to maintain the continued progress and quality of work. The architect's duties in this respect fall into two main categories: 1. Interpretation 2. Modification
What if the lowest bidder does not want to enter into an agreement with the owner?
- this is often the case when the bidder is "low" by a large margin, suggesting a bidding error - A bidding error does not automatically justify a contractor in refusing to enter into a binding contract - an error of judgement does not constitute valid grounds on which to withdraw a bid. To be released from the bid, the contractor must generally show that the error is one of fact, and it is a material error - the contractor must promptly communicate this to the owner in written form
Cost Plus Fixed Fee with a Guaranteed Maximum Price (GMP) contract
- this is the same as the previous except that the contract does have a guaranteed maximum - has all the advantages of the cost plus fixed fee contract, but it protects the owner from severe cost overruns
Monitoring Progress: the contractor's Work Schedule
- this schedule represents the contractor's intended plan of work established at the outset of the construction phase. Comparison between the projected progress and the actual advancement of the work provides a means of assessing the overall conformity of the project to the original timetable
Goal two: to reach the end on budget
- two equally important but different meanings for most design projects have both design budgets and construction budgets - the project is to succeed, the substation design and construction costs must stay within their respective budgets. - it has to be planned and controlled from the beginning of the design project
What to consider when determining the type of building contract to use:
- type of project - methods of construction - size and complexity of project - time constraints - finance available - degree of certainty of the owner's requirements - progress of the construction documents - probability of further changes - amount of information available at contract formation - availability/desirability of accurate cost prediction - expertise necessary/available - external factors and problems (site condition, labor available, etc.) - quality of work required (luxury, low cost)
Performance Metrics Documentation
- upon completion of inventory, data collection, and analysis, assembling this info into a format that easily conveys the findings is critical to telling the story of the project and framing the logic of the proposed design solution - client and stakeholder buy-in during the analysis phase ensures project goals are SMART and metrics that are identified are attainable -project performance matrix: a set of metrics inherently represents a sustainability framework. A matrix may be used to capture and track the designed implementation of the metrics themselves. This is sets up a system for establishing goals and remaining accountable to them - a performance matrix should be revisited and updated at various iterations and project cycles - baselines are used to deliberately interpret a site, its attributes, and its context through the lenses of sustainable design--environmental, economics, community and art. the existing conditions serve as a foundation for the development of SMART Goals - benchmarks are used to compare the metric goals and performance of the project to confirm the design theses and serve as communication tools for conveying aspects of the design
Owner assurance to the contractor
- upon request the owner will prove the contractor that sufficient financial arrangements have been made to undertake the project
Fish-bone Diagram
- useful tool for whale eating, that is, for planning a project - it is so-named because it resembles the skeleton of a fish - it is a graphic way of dividing a project, or problem into its cause-and-effect bites - using the fish-bone diagram in reverse, it can be used to plan a project by diagramming all the cause-and-effect tasks that are necessary to complete a project - shows tasks and illustrates their interdependencies and relationships to the whole project
Status of a contract
- valid - void-without any legal effect - voidable- valid until one of the parties repudiates - unenforceable- in the courts
The Process
- very informal - usually involves conference where everyone comes together to attempt resolution. - however, there may be some sharing of documentation and outlining of the relative positions (and desired outcomes) ahead of time to allow the mediator to become familiar with the details of the case
T&M with a Maximum-Not-to-Exceed contracts
- very popular variation - many owners prefer over T&M because there is little incentive for the design firm to be efficient - It is the same except the contract has a maximum dollar amount that cannot be exceeded unless there is a change in the scope of work - not great for design firms because there is no way to win (going over cuts into profits and running under adversely affects profitability)
Acceptance of final payment by contractor
- waives all rights to any further claims against the owner, with the exception of any claims made in writing at the time of the final application for payment. - at the completion of the construction work, the architect submits a final account to the owner for outstanding payments.
Change Orders
- whenever a change is issued by the owner, it is referred to as a change order - change and change order can be used interchangeably - a change order is a minicontract to perform a specific item of work. In reality, a change order is an adjustment made to the original contract, and as such it must satisfy all the prerequisites for a contract - the only thing that sets a change order apart from a typical contract is that the parties have already contractually agreed that the owner can make the changes, and that the contractor must perform the work called for in the change order
When to use negotiated contracts?
- where the contractor possesses skill or experience relevant to the project - where the quality and not economy is a major determinant - where an early completion of the project is desired - where details of the final scheme are incomplete - the owner does not need to wait until normal selection phase to begin construction and completed drawings and specs are not necessary for work to start. - often a cost plus fee contract is used - there is no competition so do not use if you need the lowest overall price
How to Control Client Changes?
- while the client has the right to make changes, the PM must tell the client if and how the changes will affect the project schedule, design cost, construction cost, or all three - many PMs will make minor changes without any mention of them being out of scope but too many small changes can add up and prove quite costly
Employee related insurance (public liability)
- workers compensation - disability - medical - retirement - death / dismemberment - group life
Once the contractor has been notified of the termination for default, is there still an opportunity to remedy the default.
- yes but the corrective action must take place in the prescribed time period (often 10 days)
What does it mean to be measurable performance metric?
-metrics are methods of measuring intent, or the results obtained from this intent - selected components of the schematic design documentation must be explicitly measurable, as they relate to accomplishing stated objectives or performance intentions - "measurable" suggests that stated metrics can be practicably quantified and evaluated as part of the design alternative selection process - environmental and economic performance are most readily measured, such as water conservation and associated operational cost savings, groundwater recharge and infrastructure savings, or quantity of re-used or recycled material - social and community development metrics are often less easily tangibly measured and, thus require careful consideration - a park design team interested in attracting a divers group of park users might define an age-and-ethnic-based recreation program to establish a wide community draw. That program could be informed by demographers, who might first determine population subgroups living around the park, then determine characteristics and interests of these subgroups. These data could be linked to the park program to determine underserved or neglected groups. The results of the exercise could be summarized and evaluated by quantifying projected park users and associated demographics.
When is a cost-plus contract usually used?
-these contracts are used when the actual costs of a project or portions of a project are difficult to estimate with accuracy. This may occur when the plans are not complete, or when the project cannot be accurately portrayed. It also may occur when a project is to be completed within a fairly short time period and the plans and specifications cannot be completed before construction starts. -another type of project is when the true nature of the project cannot be accurately described before construction begins. This may occur in remodeling or renovation projects that contain many unknowns. - if many changes are anticipated in the design of a project as construction is under way, a cost-plus contract is appropriate.
Partnership
-two or more individuals carry on a business as co-owners for profit -profits are shared in previously agreed proportions -allows architects to share expertise, capital, and other resources -each partner is responsible for all negligent acts and omissions of the firm jointly and severally, or in other words, whether personally negligent or not. -However, there is a such thing as a limited liability partnership -best to form partnership with a written agreement (can be conduct of the parties or oral as well)(2)
Specification percentages of completion:
0%- not started 50%- the specification section has been started and is somewhere in progress 90%- the specification is complete but not checked for quality control 100%- specification has been checked for quality control and the QC comments have been corrected in the specification Note: there is no 25% for specifications because it is hard to judge
Advantages to Critical Path Method
1. Can handle large, complex projects with numerous deadlines and tasks 2. Overlays tasks with project timelines 3. Shows the relationships between various tasks However, due to their relative complexity, CPM schedules must be generated on a computer and cannot be updated by hand (although it should be noted that iterations of a CPM schedule may be drafted by hand early in the life of a project).
What are the (2) types of milestones?
1. Contractual Milestones (Major Milestones): required by the agreement between the designer and the owner (major milestones) 2. Minor Milestones: additional milestones that the PM uses to plan, execute, and monitor the work of the design team Major Milestones are usually 15%, 50%, 90%, 100% or schematic design, design development, construction documents (these are the Y-axis and time is the X-axis)
Within the context of a design firm, effective project management and documentation has the capacity to:
1. Improve communication between the designer and the contractor 2. Improve the working relationship between the designer and the owner Within the context of a design firm, elective project management and documentation has the capacity to improve communication and the working relationship between all major parties - including the owner, designer and contractor. Given that the designer should not communicate directly with subcontractors, It ls unlikely that elective management and documentation would improve the working relationship between the general contractor and their subcontractors. And while it is plausible that sounds business practices could reduce a design firms exposure to lawsuits by reducing the number of errors in a construction document such measures would have no direct impact on reducing the likelihood of tort damages
What are (8) safeguards and remedies that allow for certain contingencies in the construction field?
1. Insurance 2. Bonds 3. Warranties 4. Retention 5. Indemnity 6. Waiver 7. Liquidated Damages 8 Liens
Administration considerations in an office include:
1. Insurance 2. Financial management 3. office organization 4. staff organization and selection
Preparing Maintenance and Operation Manual:
1. Inventory: A sustainable landscape maintenance plan (LMP) begins with a site inventory of those landscape features you will be maintaining. If you were not the designer or installer, the first step in determining a maintenance strategy for a built landscape is to compile information necessary for budgeting time and resources. 2. Site Assessment: As you work through the site, alone or with colleagues, use a simple and consistent evaluation method relating to the scope of work your client has requested, or better, the scope of work you feel is needed. Your clients will also have their own priorities, for example, including seasonally driven issues like snow removal, preparing for hurricane season, or the beginning of school. It is your job to reconcile what the site needs, based on your fact- finding and on-site assessment, and what the client asks of you. 3. Prioritization: Establish sustainability goals for each landscape element with input from the designer and client. Establish priorities according to the factors mentioned throughout this manual, creating worksheets particular to each site or area. 4. Regulatory Overview: Some state and local laws and regulations apply to any type of landscape maintenance, whether or not it relates to sustainable practices or BMP maintenance. Examples include local ordinances that regulate the times of day landscape work may occur or work that occurs within public rights of way. You are responsible for compliance with all regulations. 5. Project Approval Framework: Since this manual covers maintenance and not installation, most often your work will not involve permitting. However, certain changes or upgrades may trigger permit requirements and site inspections. Occasionally, you may also find it necessary to engage the support of allied professionals, such as surveyors, arborists, landscape architects, or others. In some cases, they will be responsible for obtaining permits, when needed.
(4) Examples of specific torts:
1. Negligence 2. Trespass 3. Nuisance 4. Defamation
Steps to begin building a project schedule...
1. No matter what the schedule or project size, start by identifying the major milestones. (specific date, working days, calendar days) 2. identify minor milestones. these are steps along the way (dates when tasks must be completed) to reach the major milestone dates on time. Example: if to complete a schematic design is a major milestone, minor milestones would be to perform a validation exercise, make a topo map, survey, geological report, etc. It is best to have minor milestones that are regularly spaced to keep the project at a good speed. 3. Add task bars. Remember that a task has an objective, duration, and a level of effort. Every task bar has a name designation, a start date, and a finish date. The task bars are laid out chronologically in relation to each other. The length of the bar between its start date and finish date graphically illustrates the task's duration.
Common Features of Zoning: (5) things
1. Nonconforming uses 2. floating and bonus zones 3. environmental impact statement 4. green belt/ open space zoning 5. conservation of historic buildings and landmarks
Procedure of Public Project Bidding: step 1
1. Notice must be given to interested and qualified members of the construction community in advance of the bidding. Notice of bids (advertisements) must be placed in newspapers, magazines, trade publications and the like. - the invitation for bids must be posted in public places and distributed to the local construction community - all bidders must be treated alike and be afforded an opportunity to bid under the same terms and conditions - pre-qualification may be required
Elements of a VALID contract include...(7) things
1. Offer and Acceptance: upon acceptance the contract goes into effect 2. Intention: intention must be shown by all parties to enter into a contract 3. Capacity: all parties must be legally capable of entering into a contract 4. Consent 5. Legality: a contract to commit a crime is not binding 6. Possibility: contracts for impossible tasks are unenforceable 7. Each party must contribute something in consideration of the other's promise. Consideration: - must be real - must be legal - need not necessarily be adequate - must be possible - must not be in the past - and must move from the promisee
How to form a contract? (5 ways)
1. Orally 2. Conduct: the actions of parties may be such as to imply a contractual relationship 3. Writing: some contracts must be in writing to be enforceable 4. Under Seal: 5. Evidenced in writing:
Highway property can be obtained from landowners in (4) ways:
1. Outright or direct purchase (mutual agreement) 2. eminent domain or condemnation proceedings 3. Prescription (hostile acquisition) 4. Dedication (mutual agreement) this is the granting by the owner of the use of private property for the public at large. If used for a given period (long) of time, the owner will not be able to deny continued use.
Name 5 Strategies for controlling risk in a project....
1. Prevention 2. Transference 3. Mitigation 4. Contingency planning 5. Assumption
(3) Types of Insurance related to construction process:
1. Professional Liability 2. Public Liability 3. Construction Contract
Two common strategies to attain early client buy-in:
1. Program validation: in which the design firm gets early confirmation that the client's program is complete, correct, and meets the clients needs 2. Charrette process: used to quickly explore alternatives conceptual solutions and obtain immediate client feedback to various alternatives
Scope of Services: What are (6) services a Landscape Architect can provide
1. Project Administration Services 2. Planning and Evaluation Services 3. Design Services 4. Construction Procurement Services 5. Contract Administration Services 6. Facility Operation Services
Outline of a Typical Project Work Plan Document
1. Project objectives 2. Project Team 3. Project task-budget information 4. Project Schedule information 5. Project quality-control procedures 6 Miscellaneous procedures Note: all these have bullets underneath (see page 107) -The order of the information contained in the project work plan document is not so important as making sure everything is included. - it should be distributed to all team members (accounting department and appropriate firm management personnel) - generally it is not necessary to give a copy to the client - often good to follow up with a team meeting to go over the work plan - things may change and items may be added to the scope - need to always update project work plan
What are some ways a Landscape Architect can reduce fees without losing quality or profitability on a project?
1. Reduce the scope of work 2. Reduce the number of client meetings 3. Reduce the number of design alternatives requested by the client 4. Reduce the number of submittals for client review When Clients request that a landscape architect reduce their design fees. It is generally prudent to reduce the scope of work required by the Client whether that take the form of reduced number of meetings, submittals or design alternatives requested by the Client This allows the design firm to expend fewer man hours on the project in proportion to the lower fee requested by the Client it would not be prudent for the landscape architect to reduce the design hours billing rate, as this would compromise the profitability of the firm.
Categories of Design Services:
1. Schematic Design 2. Design Development
Name (3) alternative construction procedures:
1. Single or separate contract system 2. Negotiated or competitively bid contracts 3. Types of building contracts
Forms of Ownership and Association
1. Sole Practitioner 2. Partnership 3. Corporation 4. Joint Venture 5. Other
What are the four major organizational structures for design firms?
1. Sole proprietorships 2. Design studios 3. Multiple design studio organizations 4. Matrix organization
What are the 5 typical project phases in terms of project management:
1. Start- the project begins 2. Planning- figuring out how to perform the work 3. Design- the project's overall design is worked out 4. Production- preparation of construction documents and/or other deliverables based on the overall design 5. Closeout- the project work is completed
What 2 timeframes are associated with latent defects?
1. Statute of Repose: generally a longer period, and it stipulates the time that the owner has to discover any latent defect after completion of the project (vary by state) 2. Statute of Limitations: time allotted to actually file a lawsuit after a latent defect has been discovered.
Indirectly Time Based Compensation for services...
1. Stipulated Sum 2. Percentage of the Estimate of the Work 3. Square Footage 4. Unit Cost 5. Royalty
Three parties in a Surety Bond Arrangement
1. Surety: the surety (the bond company) is obligated to perform or to pay a specified amount of money if the principal does not perform. The surety is the guarantor on the bond. 2. Principal: the principal debtor, or principal, is the party (general contractor) whose performance is promised or guaranteed 3. Obligee: the obligee is the party (owner) to whom the promise of the principal's performance is made. The obligee is the beneficiary of the bond.
Three primary roles undertaken by construction managers:
1. advisers provide expertise on constructability, cost control, and construction methods. Advisers do not have a monetary interest in the means and methods of construction. 2. Agents organize and coordinate the various subcontractors and construction trades. 3. Constructors play an advisory role during design and then shift to the role of contractor for the construction phase. This dual role holds the potential for conflict of interest, as advice provided during design may unduly influence the overall cost of the project and the constructor's profit. -architects involved in the construction management assume greater responsibility and authority during construction, but also face a correspondingly high level of liability.
Advantages of Arbitration: name (6)
1. privacy: trade secrets and reputations may be shielded form the public in a private arbitration. 2. convenience: can be held anywhere to suit parties. 3. speed: can be handled quickly without having to fit into court schedule 4. expense: money is saved in two ways: a. potentially lower cost of the hearing and b. the speedy resolution of the dispute 5. informality- courtroom procedures may be modified or dispensed with at the direction of the arbitrator. 6. expertise- difficult to construction-oriented problems may be more readily understood by an arbitrator experienced in the construction field than by professional judge.
Courts and the Arbitration
Although arbitrations are carried out largely independently of the court system, the courts may have statutory power to reject or vacate the arbitrator's award in the following circumstances: - if the arbitrator exceeds his or her authority - if there is evidence of corruption, fraud, or partiality - if the arbitrator refuses to hear evidence of either party - if the arbitrator agreement is improper
Model Land Development Codes
Although the Euclidean model was, and is, in common usage, cumulative zoning (i.e. allowing carefully regulated, multi-us districts) has gradually developed since the 1920s - substantial responsibility for administering the development scheme should lie with local authorities - state authorities should provide some input to avoid state problems resulting from purely local administration - less rigid approach to zoning - more stress on the environmental and aesthetic considerations of zoning
Cardinal Changes
Although the construction contract usually grants the owner the right to make changes to the contract, this is by now means an unlimited right. Changes made by the owner must be within the general scope of the original contract. Changes that are not within the general scope are known as cardinal changes, and these are not covered in typical change clauses. That is, cardinal changes are beyond the scope of the contract. - sometimes the definition is not clear
As a form of business organization, proprietorships have which of the following characteristics?
Among other things, proprietorships are owned by an individual, require no formal documents are required for its establishment and can be discontinued at will at any time. A partnership (another form of business organization) pays no income tax - its owners or employees must, but the partnership is exempt. "A legal entity created to act as an individual while protecting the owners in the firm" is the definition of a corporation and does not apply to a proprietorship.
Request for Proposals (RFP):
An RFP (Request for Proposals) is a request for firms to submit their proposal for a project. It is applicable for goods or services where a city or county is required to take competitive bids resulting in a final product/building. Check with your legal counsel for what is allowable in your area. The intent of an RFP is to allow you to select the most qualified company at the best price for your project. RFPs for services typically involve more than a price request including a company's history, capabilities, and financial information. This is an appropriate method to solicit construction services including general contractor, design-builder, and construction management at-risk. Frequently RFPs will include the phrase "best-lowest," which allows the owner to consider more than just the lowest price. When considering RFP/Bid response in a public setting, you must have a strong reason not to select the lowest bidder e.g. past performance problems, litigation, etc. You typically cannot decide to go with the second lowest proposal/bid because they're the local or some other reason. Check with your legal counsel for what is allowable in your area.
Request for Qualifications (RFQ):
An RFQ (Request for Qualifications) is a qualifications-based selection process. It is NOT a bid. It is a request for firms to submit their qualifications to be considered for a project. It is applicable for professional services (similar to legal services) where a city or county is not required to take competitive bids. In some states, it is not required for RFQs to be advertised. Check with your legal counsel for what is allowable in your area. The intent of an RFQ is to allow you to select who you feel is the most qualified for your project. You do have the opportunity to negotiate a fee with your final selection. If you cannot come to terms, you always have the option to go to your second or third choice. This is an appropriate method of soliciting for various professional services including architectural, engineering, and construction management agency.
Give some examples of who can act as an owner's agent for a private construction project...
Architectural design firm, landscape architect, friend of the owner, construction manager...Theoretically, any of the parties listed above could act as an owner's agent on a construction site for a private project. Such a relationship would be established through an agency agreement and subject to the consent of both parties. Failure for the owners agent to act judiciously and exercise sound Judgement may cause the agent to become liable to the owner for any damages caused through negligence or lack of diligence. Therefore, depending on their experience and background, it may be unwise for the owners friend to act as their agent on a construction site. Regardless of how Imprudent this may be, it is still legally possible and is a valid answer.
Drawing Schedule
At the beginning of the documentation phase, estimate the number and type of drawings necessary to complement the specifications, and prepare a drawing schedule. This will facilitate office programming and improve the production sequence.
Maintenance Schedule:
Before developing a landscape maintenance schedule, speak with your client or prospective client about their expectations, as well as the designer if it is someone besides you. Understand how a landscape is intended to perform seasonally, so that you can be the messenger back to the client and designer if actual conditions differ. Understand that designed landscapes require different levels of care depending on their stages of development, so schedule tasks accordingly, in addition to those regularly required tasks It can be tempting to prescribe a specific list of maintenance tasks and a fixed schedule to perform them, but in reality most maintenance tasks are performed on demand based on what the inspector/maintainer actually sees. The maintenance regime for an individual practice depends on the level of service or amenity, visibility, development intensity and owner preferences. Other factors, such as extreme rainfall events, hard winters and extended droughts, can strongly in influence maintenance needs from year to year.
Retention:
Before each progress payment is made during the construction phase, an agreed percentage will sometimes be retained by the owner to ensure the contractor's continued performance until the completion of the work, when the accumulated sum is released.
The basic role of bonds and surety companies?
Bonds are a guarantee against unqualified an unscrupulous contractors. Surety companies are used for weeding out unworthy and irresponsible bidders.
Critical Path Method
CPM analysis is a project planning device which aims to optimize time an operations on site. The system divides various activities which are sequenced in terms of their interrelationship. When the time factor is added, a path may be plotted which reveals the most efficient operational procedures which should be followed. The schedule can be monitored by regular assessment of actual achievement on site. This enables continued prioritizing and adjustment throughout the period, to enable maximum efficiency in allotting time for the various stages of the project.
Comprehensive liability insurance (CGL)
Comprehensive liability insurance (CGL) is a broad policy that protects the organization from liability claims related to products coverage, completed operations coverage premise and operations coverage, and independent contractors coverage. CGL does not cover vehicle liability. If a member of the public sustains an injury on a construction site, this will protect you from a lawsuit. Protects against third-party lawsuits, including damage to property and bodily harm.
Risk can be reduced by providing more (blank) services.
Comprehensive! fuller services often can provide better and more comprehensive quality and can better address the entire breadth of the project. Of particular help is providing the construction support services in addition to design services.
What document requires the landscape architect's signature to be valid?
Construction Document Set
what business organization are considered separate legal entities from their individuals?
Corporation! (note sole proprietorship, partnership and joint venture are NOT) while forming a corporation has other benefits, the ability for business owners to assign liability to the corporation instead of themselves is one of the primary attractions to forming this type of business
Arbitration Procedure
Either party to the AIA construction contract (not necessarily with the consent of the other party at the time of the dispute) may initiate arbitration proceedings by writing to the other party, with a copy to the architect, within the time allowed by the contract. This letter usually includes: - the reason for the dispute - the amount involved - the remedy sought It represents a Notice of Demand
An irrigation subcontractor is working on a large public works project and has not been paid for their services by the general contractor as stipulated In their contractual agreement with the government agency running the project. What action would the subcontractor most likely take?
File a "Stop Notice" Because the project In question is public in nature, the irrigation subcontractor would likely not be able to place a mechanic's lien (because public property is generally not subject to liens). Therefore, they would file a "stop notice", which would notify the government agency to stop all payments to the general contractor until the claimant (in this case, the irrigation subcontractor) has been paid.
Caucuses during mediation
Following any decision between the parties and the mediator, the groups will often move to separate rooms, and the mediator will caucus with each party separately, shuttling back and forth between them and potentially bringing them back together again, searching for a solution. During the caucuses, the mediator's role is to: - clarify each party's version of the facts - establish relative priorities and positions - question assumptions and loosen fixed stances - explore and possibly forward alternative solutions - seek trade-offs, face-saving strategies and win/win solutions - probe and challenge the validity of each position
Liquidated damages
For example, the contractor must by $1000 per day for each day the project extends beyond the limit. This amount is called liquidated damages and avoids legal entanglements later. - a predetermined sum is used in lieu of actual damages - liquidated damage amounts represent a reasonable reflection of the anticipated costs incurred by the owner for late project completion - a penalty is assumed to exist when the sum has been set at an amount that is sufficiently above anticipated costs. They provide incentive for a contractor to deliver the project within the contract duration. - however penalty provisions may be unenforceable without a bonus clause - liquidated damages are used when determining actual damages is complex and it avoids legal entanglements
Which of the following expenses would be considered "overhead" for a landscape architecture office?
General office supplies, leasing an office space, in-house printing and new telephones would all be examples of overhead. Overhead is typically understood to be the costs associated with operating and maintaining an office. So, although a design office may need to send payment to a subconsultant for services rendered, such a payment would not be considered overhead, but rather a project-related expense.
A landscape architect designs a large, publicly accessible green roof on top of a parking structure. Planting design, construction detailing (including specifications for the waterproofing membrane) and drainage are all included in the landscape architect's scope of work. Two years after installation, design related flaws to the waterproofing and drainage system cause extensive water damage to the parking structure and the property owner immediately seeks legal recourse. Which of the following outcomes would likely NOT be possible as a cause of these events?
Given that two years has passed from the time that the landscape architect's designs were constructed, it is unlikely that they would be protected from prosecution due to the statute of limitations expiring. Various sources indicate the most jurisdictions set the statute of limitations at anywhere between 6 and 10 years for design- and construction-related issues. Possible outcome: - they could pay damages - damages are awarded through arbitration - the LA is charged with negligence
A contractor determines that they underbid a project and, upon being awarded the construction contract, decides to forfeit their bid bond and withdraw from the project. Which of the following penalties could be applied?
If a contractor chooses to withdraw from a project after being awarded a contract, the most typical outcome is forfeiture of money in the amount of the difference between their bid and that of the next lowest bidder, up to the face value of the bid bond. In some instances, the contractor may have to forfeit the face value of the bid bond outright.
90% completion means...
If a drawing is described to be at 90% completion, this is generally understood to mean that the drawing is complete but has not been submitted for a quality-control checK.
Selective Bidding
If a limited number of bidders is preferred, an invitation to bid will be sent to a number of contractors. These will be singled out by reputation, recommendation, previous contact with either the owner or the architect, etc.
Strategy for Preparing Maintenance Plan:
If the site scale and complexity warrant it, break up your site into landscape management areas (LMAs). Record your site inventory within each LMA. You may number the LMAs, but it's also helpful to name them for clarity, for example, "slope above retaining wall," or "entry courtyard." Create a row for each landscape element as shown in Table 3. Insert a thumbnail photo of each element as an easy visual reference. For each element assign a priority, or criticality level on a scale of 1 to 4, in which 1 is most important and 4 is the least important, based on considerations such as: - visibility or proximity to an entry or gateway; - relative position in a stormwater management treatment sequence, or possible site damage if it failed; y habitat value; - aesthetic or historic value; and y client priorities, if any. Work with your client to determine the criticality level for each element. Levels of service for different areas will vary based on aesthetics, wildlife value, and budget. For each element, also assign an overall existing conditions value on a 1 to 4 scale, where 1 is good, 2 is fair, 3 is poor, and 4 is failing. (See Sections 19 and 20 for more information about rating individual BMPs.) For now, don't break each BMP into component parts with individual rankings for each component (inlet, vegetation, mulch, outfall, stand-up pipe, etc.) You will have space for more detail on the individual BMP worksheet. Total all the landscape elements across all the LMAs to determine how many BMP practices, turf, trees, and other hardscape elements you must address in your LMP as well as their current conditions. For any public safety issues, or issues outside your scope of expertise, determine which allied professional should be brought in. Your client may have a working relationship with this type of professional, but may be open to your suggestions. Evaluate any access issues as they affect maintenance. Assess any client priorities as mentioned in Section 1. Now you are ready to create your proposal with your own suggested schedule and specifications.
Joint Venture
If two or more organizations wish to combine forces for a specific project, they may engage in a joint venture. This is a type of partnership that is limited in duration of the the task. There are many advantages (shared resources, combined expertise, joint capital, fluidity of staff allocation)
Cover Sheet for your Maintenance/Management Plan:
If you are using an online app or project management software, your electronic site history will already have begun. If not, create a cover sheet for your project including: - project name; - client and contact information, including organization if any; - location, including county, local jurisdiction, watershed; - designer and installer names, dates of work, and contact information, including yourself; and - any applicable programmatic or regulatory items (GAR, NMP, Critical Area, etc.).
The Settlement
If, with the assistance of the mediator, a workable resolution is reached, it is usually committed to writing and signed by all parties as soon as possible. The agreement may also be put in the form of a consent award if the AAA is involved. The AAA will make necessary arrangements.
The Architect and Contractor Relationship
In conventional project delivery, there is no contractual relationship between the architect and the contractor, as the latter contracts directly with the owner. However, most building contracts contain provisions enabling the architect to undertake prescribed duties in the capacity of the owner's agent. Errors made by the architect which cause loss to the contractor could not result in an action under contract law, but could form the basis for a claim against the owner who remains responsible for the agent's authorized acts. This may in turn lead to an action by the owner against the architect for breach of contract between them. Alternatively, the contractor could sue the architect in tort, where no contractual relationship is necessary. The same situation arises between the architect and the subcontractors whos contracts are with the contractor, and also the suppliers who deal directly with the contractor or subcontractor.
Standard of Proof
In criminal proceedings it is very high "beyond a reasonable doubt" but in civil matters parties need only prove their allegations to the degree that the court will accept them on a "balance of probabilities"
Bid Bond:
In order to ensure that the selected bidder signs the contract and fulfills other preliminary requirements, a bid bond may be requested. This should cover not less than 10 percent of the bid amount, and would be used to pay the owner the difference between the two lowest bids if the successful bidder decides to back out. The penalty for this cannot exceed the bond amount, which should be expressed as a specific sum, not a percentage of the bid.
Indemnification
Indemnification is a means by which the principal is obligated to the surety for any debts it incurs as a result of a default by the principal. The surety can seek reimbursement form the contractor because the contractor indemnified the surety. If the surety pays for losses, subrogation rights also exist for the surety against other parties.
Insurance for the office
Insurance policies should be maintained to cover the office and its contents with respect to loss or damage, and also employee benefits (medical, vehicular insurance, and compulsory coverage under workers' compensation laws)
Are unsigned contracts enforceable?
Just because a contract of employment is unsigned - or even unwritten - does not mean that the terms of employment have not been agreed between the two parties. A contract usually starts - and is therefore enforceable - when an offer of employment is accepted.
The Limited Partner
Limited partners may invest capital in a firm and share profits, but they cannot be involved in the management of the business. Unlike general partners, their liability may be restricted to the extent of their investment. Limited partners are not common in architectural practices.
Multiple Direct Personnel Expense and Multiple OF Direct Personnel Expense
MDPE: the direct salaries of designated personnel are multiplied by a factor representing benefits, overhead, and profit M OF DPE: the salaries of designated personnel are multiplied by a factor representing overhead and profit.
Are Insurance and surety bonds the same?
NO! an insurance policy is a two-party instrument between the insurance company and the insured that protects the insured against a specified type of loss. In surety agreements, the contractor is not providing a guarantee for himself or herself, but for the owner. - also a insurance premium is based on actuarial rates but a surety premium is based on "presupposes no losses" and is generally structured as a set fee. They would no issue a surety bond if they anticipate a loss (similar to a bank loan)
Is Unit Price a type of financial guarantee?
NO. Unit price Is a contract-related term and is used by a contractor to account for any minor differences between the actual site conditions and the landscape architects plans.
Should a landscape architect meet all of the client's requests in a timely manner?
Not always...While a landscape architect should produce their deliverable in a timely manner, the client may make requests that are outside the scope or the existing contract or are illegal or inadvisable - for instance. removing a protected tree with no permit to save money or not installing the necessary site drainage. As such, a client should never assume that the landscape architect can or will follow ALL of their requests.
Libel vs. Slander
Of the other answers provided, only "libel" could potentially be confused with slander, in that libel is also a false, defamatory and damaging statement. However, whereas slander is spoken, libel is written or otherwise published.
Definition of Landscape Maintenance Plan (LMP)
One definition of a landscape maintenance plan (LMP) is "a written plan outlining the utilitarian, ecological, and aesthetic objectives for a specific landscape. The plan describes the specific practices and products that will be used to implement the landscape management plan, along with a schedule of annual maintenance practices.
Cost Estimating Maintenance and Management
Over time, the total cost of owning a sustainably designed and maintained landscape will be less than a traditional one. Certain inputs will always be lower, or will decrease over time. These include: - water; - fuel for mowers and staff time mowing; - pesticides; - fertilizers; - mulch; - annuals; and - replacement trees. Other costs will be higher: For design professionals, time and resources devoted to continuing education are part of business overhead and the same must be true on the maintenance side. Hourly pay rates and billing rates for more highly trained personnel must reflect this. In addition, it is necessary to build training and professional development time into overhead for crew leaders and staff. Two types of training are needed: 1 General company-wide sustainable practices having to do with proper use of equipment, turf management, mulching and recycling methods, etc. 2 Specific maintenance of BMPs (best management practices) such as rain gardens, permeable paving, green roofs, hand pruning, etc.
Taxation considerations
Partnerships are not taxed s distinct entities, and all partners pay individual tax upon their share of the partnership profits. Consequently, larger organizations may prefer to become incorporated in order to take advantage of tax concessions often available to corporations.
Performance Specifications
Performance specifications provide guidance related to the technical performance of a finished product (ex. '1he compressive strength of the concrete shall be 3,000 psi). It should be noted that this type of specification omits any information related to finish or general workmanship (which is covered In a design specification).
Relationship between architect and owner
Primarily contractual. The architect (the agent) acts as the representative of the owner (the principal), working solely in the latter's best interests. The agency authority of the architect is limited by the terms of the appointment. If the owner would like extend the powers of the architect beyond those specified in the signed contract, written authorization should be obtained by the architect carrying out such work. In an emergency, where the principal is not available, the agent is authorized to do anything which prevents loss to the principal.
Ordering a Change: what to do?
Prior to requiring a change, it is often advisable to establish the final cost of the work involved. If the owner decides to continue with the changed requirements, the architect will prepare and sign a Change Order and send it to the owner for signing before passing it on to the contractor.
Privity
Privity is a legal doctrine which recognizes that only a party to a contract may sue upon it. There are certain exceptions to this general rule, e.g. where an agency relationship exists, the principal is bound by contracts entered into by his or her agent with third parties.
Definition of Projects Records Management:
Project Records Management is a process of creating, directing and controlling document flows within a project, through using an administrative system, to provide effective development, versioning, filing, storing and retrieving of records, while ensuring that every record designed is utilized administratively and legally. The process creates a framework for managing the project activities and delivering necessary information to teams.
Put work plan, RFP, construction budget, and punch list in chronological order:
RFP, Work Plan, Construction Budget, Punch List While there is some ambiguity related to this question - what is the RFP for and who is issuing it- such problems arise on the real LARE exam and the test taker must be prepared for them. Without further knowledge, it makes sense to focus on the other available answers. Generally speaking, work plans for a project are addressed before the construction budget has been determined. Given this and the factor that most (but certainly not all) RFPs are issued toward the be ginning of a project, one should be able to determine that "RFP, Work Plan, Construction Budget, Punch List' presents the best available answer.
A landscape architect has commissioned a site survey for a project, but when the surveyor sends the requested drawings to the landscape architect, it is missing basic information that was omitted from the service contract. What should the landscape architect do?
Request that the surveyor include the missing information after signing a contract for additional services. Although the missing information is described as "basic", the surveyor would not be expected to have included this information in their drawings if it was missing from the service contract. As such, the landscape architect should request that the surveyor include the missing information after signing a contract for additional services.
Substitutions
Should any of the bidders wish to substitute materials or services otherwise than specified in the bidding documents, the architect must receive a request for approval in writing at least ten days prior to the submission date. If the architect decides that the submission is acceptable, all parties will be notified by addendum, although no addenda can be made within four days of the final receipt date except a notice cancelling or postponing the request for bids.
Letter of Intent
Should construction need to be started before the contract documents have been signed (eg where time is of the essence), a letter of intent may be sent by the owner, giving the contractor authority to proceed. Should be made clear that the letter will cease to have effect upon the signing of the actual contract. No subcontractors will be effected and not materials should be ordered that are not relevant to the specific work permitted.
Who applies for and obtains the bond?
The beneficiary of the surety agreement is the obligee, even though the person applying for and obtaining the bond is the principal (often the general contractor) Note: in the case of a subcontractor the general contractor is the obligee.
The clerk of works is generally responsible for which of the following tasks on a construction site?
The clerk of works is generally responsible for verifying quantities of material delivered to the site and confirms that work is carried out properly and that health and safety rules are being followed.
In situations where the owner-issued change order increases the scope of work but the construction schedule is not adjusted accordingly, what could be applied?
The concept or acceleration could be applied to the scenario described above. Acceleration occurs when the contractor must hire additional workers, work overtime or Incur other costs to meet a deadline. In this case, acceleration was caused by a direct order from the owner, however, if the contractor plans to seek compensation for this acceleration. such a claim must be communicated to the owner. Although "excusable delay" could be interpreted as being relevant to the above question, it is most often use to describe delays such as acts of God, emergencies and labor strikes, and, as such, Is not the most suitable or accurate answer.
A landscape architect has included extensive detailing for the fabrication of a custom steel bench to be used in a project. Regardless, certain aspects related to the fabrication of this bench are outside the landscape architect's expertise and they would like the contractor to resolve these items during construction while still maintaining a degree of control over the contractor's work. would request which of the following from the contractor to accomplish this?
The landscape architect would request that the contractor submit shop drawings of the custom steel bench for approval prior to fabrication. Shop drawings are used extensively in the construction industry to bridge the gap between the level of detail shown in the construction document set and that required for the fabrication of the actual object. For example, a landscape architect might omit the type and location of welds to be used on the custom steel bench, but would like to reserve the right to review these aspects of the bench's fabrication. Shop drawings allow for this while also giving the contractor the flexibility needed to accomplish their work efficiently and economically.
Cost-type Contracts
The owner reimburses the contractor for the actual cost of completing the work, together with a negotiated fee.
What about advertisements for bids in the private sector?
There are no well-defined rules concerning the letting of contracts in the private sector. However, most owners, particularly those who make regular us of construction services, follow procedures not unlike those used in public works. The process can be summarized as follows. 1. the owner may select a contractor by any means 2. public advertising is frequently used to obtain the advantages of open and free competition 3. the owner may elect to negotiate a contract with a particular contractor. This is the most common in residential construction and in industrial construction involving highly technical work. 4. select bidders list
The primary reason that a landscape architect should not give orders or direction directly to a contractor's workers is that:
There are numerous reasons why a landscape architect should not given orders or direction directly to a contractor's workers. It is possible that this could create a dynamic where the workers may begin to follow the landscape architect's direction instead of the plans, and there is always the risk that The workers could misinterpret the direction and execute the requested work improperly. However, the primary reason why this should not be done is that doing so places undue liability on the landscape architect and can make them responsible for any resulting cost overruns, which can be potentially devastating to smaller or less profitable design firms.
Breach of contract: An action for damages
This is the most common remedy for breach of contract. Damages can be - general: arising out of the breach - nominal: if breach is technical - punitive or exemplary: if the court considers the defendant's behavior particularly deplorable - liquidated: ascertained by an agreed method to assess damages (x$ per day) - unliquidated: unascertained, or determined after injury occurs
Notice to Proceed
This is written authorization from the owner to contractor establishing a date of commencement and completion of the building work. The Notice to Proceed is used if the work is started after (not before) the date of the signing of the contract.
1988 Federal Fair Housing Amendments Act
This legislation applies to certain types of privately owned multifamily housing. In ensured accessibility of public accommodation spaces and the adaptability of dwelling units. Specific requirements are enumerated in the Fair Housing Accessibility Guidelines adopted by the HUD (US Department of Housing and Urban Development)
Actual Acceleration
This may take place if the contractor is requested to complete the work before the date established in the contract documents. Actual acceleration is at the contractor's discretion and may provide the basis for increased costs.
Suspension of Construction- this may take place if...
This may take place: - if the contractor is not paid - if notices and/or information are delayed excessively - if change orders are delayed - if certificates are unreasonably withheld or delayed - if the construction documents ware defective constructive suspension allows the contractor to stop work and to claim extra compensation for the costs involved in the shut-down, delay, and recommencement. Some suspensions may eventually lead to the termination of the construction contract by either party.
When does an architect do inspections?
When the contractor has essentially completed the construction work, a formal request is made to the architect for an inspection. Conducting such an inspection is referred to as punch listing a project. A punch list is a list of items that must be corrected before the project is acceptable to the owner.
Completion
When the contractor is nearing completion of the work, a number of procedures are recommended to ensure smooth completion of contractual performance. These procedures are the same for full completion, and partial completion where a designated portion of the work may be ready for occupation.
Construction Documents
When the details of the project have been sufficiently determined and approved by the owner, the architect will undertake the CD set. - preparations of detailed working drawings and specifications sufficient for construction purposes - assistance to the owner in securing bidding information, forms, contracts, and conditions - any further changes in the projected construction cost - assistance to the owner in filing for government approvals
Brokerage
When the general contractor subcontracts all of the work on a project. Not regarded as beneficial to the owner because the bid will include profit for subcontractor and general contractor.
Certificate of Occupancy! (CO)
When the work is completed, a certificate of occupancy must usually be obtained before the building can be used. This certificate confirms that all the building regulations have been complied with, and must be available for inspection of the premises at all times.
Variations to Building Code
Where there are practical difficulties in carrying out the requirements of the building code, the inspector may, upon written request, vary or modify it as long as the spirit of the law is upheld.
Maintenance Specifications
Whether they originate with the client, designer, or contractor, specifications generally consist of "the written requirements for materials, equipment, systems, standards and workmanship... and performance of related services."
Within the context of a public works project, which of the following parties typically retains ownership of the design documents?
Within the context of a public works project, the owner (public agency) retains ownership of the design documents by default. Ownership of the design documents is often retained by the designer in the context of private projects, although such ownership must be established in the contract documents between the owner and the designer.
Workers' Compensation insurance
Workers' compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue their employer for the tort of negligence
Budgetary Cost Model
a budgetary cost model is a breakdown of the overall estimated construction costs into major building components, materials, and systems. It establishes cost targets for each major building component, providing a cost framework within which to develop the design. It is the baseline against which the design and selection of materials and systems can be evaluated for their cost appropriateness. - best to include contingency! - best to include contractor costs - remember to include escalation line item (inflation is an issue!)
What is a "calendar day"?
a calendar day represents every day that takes place, including weekends and holidays. There is no confusion with this definition. - when does the starting of calendar days begin? - Calendar days are preferred when time extensions, such as those resulting from adverse weather or owner-caused delays, are not generally anticipated
Lien
a charge, security, or encumbrance upon property; a claim or charge on property for payment of some debt, obligation, or duty.
Gantt Chart
a chart in which a series of horizontal lines shows the amount of work done or production completed in certain periods of time in relation to the amount planned for those periods.
The Bar Chart (Gantt Chart)
a chart or graph with the horizontal axis representing a timescale. The vertical axis lists the work tasks. Vars are used to represent the duration of the task plotted on the timescale.
Option
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 which would employ more minorities to meet the minority quota. An option has no effect on the cost to the owner. (See ALTERNATE)
Lien, Mechanic's
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)
No Damage For Delay
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.
Closed Specification
a closed specification requires a specific item or system. The purpose of this type of spec is to ensure that only products of a particular type are used. As a rule, this type of spec is more frequently found in the private sector because it is in principle not legal on public works projects. The reason for this is that a closed spec eliminates the chance for competition; that is, the express inclusion of one item implies the exclusion of all others. - closed specs give strong advantages to manufacturers who have their products specified. since there is no competition, the result of this type of spec is to drive up the cost of construction. - in public works, at least 3 manufacturer's models must be named to avoid designation of being closed
Sovereign Immunity
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.
Third-Party Liability
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.
express contract
a contract in which the terms of the agreement, whether verbal or written, are clear, concise, explicit, and definite.
When the owner is satisfied with a particular contractor...
a contract is issued! - after the contractor has returned the signed contract, the owner may notify the contractor to proceed with the work by issuing a notice to proceed. In some cases the notice to proceed may accompany the contract documents - notice of award and notice to proceed have the same effect - need to specify the terms under which the contract time will start - the contract start date is often stated specifically in the notice to proceed or may begin when the notice has been signed.
Discharging a contract
a contract may be discharged by: -performance: ie realization of the agreement within the terms of the contract -agreement by all parties to cease their contractual relationship -operation of law: e.g. contract is made for a limited period and that period expires - frustration of subsequent impossibility: performance of the contract may be possible at the outset, but layer frustrated by events (death, destruction)
Construction Duration
a contract may stipulate the actual number of working days that will be available for the contractor to complete the work. This is not without problems, as "working day" is not universally defined. Such contracts should carefully define this term. Some contracts us "Calendar Days" to measure the amount of time available to the contractor to complete the work. Other contracts may stipulate the date on which the construction is to be complete.
Insurance
a contract whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specifying perils. The party agreeing to make the compensation usually is called the insurer or underwriter; the other is the insured or assured; the agreed consideration is the premium; the written contract is the policy; the events insured against are risks or perils; and the subject, right, or interest to be protected is the insurable interest. Insurance is contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in the future.
Final Payment!
a contractor's final payment is directly linked to final completion or final acceptance of the project by the owner. This is a crucial step, because the contractor has little incentive to perform additional work if all payments have been made. Since final acceptance is so important, the owner must verify the adequacy of the work performed. This is accomplished by verifying the punch list items have been addressed. Once the items have been corrected, the owner is free to make final payment to the contractor and release the retainage.
Material Variance
a deviation from that which was specified in the original contract documents. In the bid process, a material variance from that which is required in the bid documents will be the basis for rejection of the bid. The degree of variance in a bid process is determined by whether the bidder's proposal gives it an advantage or benefit not enjoyed by the other bidders. A mere irregularity in form which can be corrected upon the opening of the bid is not considered a material variance.
Discipline Check
a discipline check and an interdisciplinary check are also required prior to every submittal. - the discipline check is conducted by someone with expertise in the particular discipline, usually not someone who is working on the project.
Field Order
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)
O.S.H.A. (Occupational and Safety Health Act)
a federal act creating an agency responsible for safety and health in the work place. The agency has the authority to issue citations to violators of the federal regulations imposed by the agency. There have been instances in the construction industry where O.S.H.A. has been used by the courts to establish a standard of care for the participants in the construction process.
What is the physical difference between substantial and final completion?
a few minor noted items must be corrected before the release of any of the retainage. These minor work items are typically documented by the owner's representative and distributed to the general contractor and the subcontractors. This documentation of minor deficiencies of the project is commonly called the punch list.
A landscape architect is the construction administrator for a project. They visit the site and write a summary of any discussions that were had and decisions that were made, as well as describe any difficulties in construction and any remedial measures that were made. Such a document would be called:
a field report!
Protest
a formal declaration made by a party interested or concerned in some act about to be done, or already per-formed, whereby it expresses its dissent or disapproval or affirms the act against its will. The object of such a declaration generally is to save some right which would be lost to the party if its implied assent could be made out or to exonerate itself from some responsibility which would attach to it otherwise. In common jargon, a protest is considered the initial act in establishing a claim to retain a party's contractual rights.
Performance Bond
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)
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)
Define a Contract
a legally binding agreement between two or more parties, by which rights are acquired by one or more to acts or forebearances on the part of the other or others.
Occupier's Liability: Licensees
a licensee is generally a person who comes onto the premise for personal reasons rather than for the purposes of the occupier, but with the occupier's consent. Social guests fall into this category. The occupier is obligated not to subject licensees to unreasonable risks, but this duty is reduced if licensees are in any way partially responsible for the injuries they sustain.
lien
a lien is a legal claim placed on property. It gives the party filing the lien the right to retain possession of the property until a debt payable is satisfied. New landowners usually hire a lawyer to make sure that the property they are buying does not have any liens.
Limitation of Liability
a limitation period is expressed in statute form in each state, after the expiration of which no legal action can be brought by an aggrieved person.
Zoning
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.
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.
Addenda
a perfect set of plans and specifications is never a realistic goal. A number of events can occur after the bid documents are in the hands of potential bidders that should be communicated to all bidders. - the change may be an owner change, designer change or clarification - Addenda are formal changes or clarifications issued by the owner or owner's representative to all identified bidders during the bidding period. - addenda are issued during the bidding or estimating period. However, addenda should not be issued up to the time for submitting bids. It is prudent not to issue any addenda in the days immediately before deadline.
Performance Bond
a performance bond assures that a financially responsible party will stand behind the prime contractor if he or she does not perform properly. These bonds usually state a specified dollar amount as a limit to the liability of the surety, more commonly referred to as the bond's penalty. This is not an absolute guarantee that the project will be built as specified for the contract price. The surety simply states that it will back the contractor to the limit of the face amount of the bond. Surety bonds must be in writing. Performance (and payment) bonds are required on public projects and are required by some private owners who want strong assurances that their projects will be built with minimum risk. In some cases, financial institutions, such as banks, also require performance bonds in order to protect their "investment". These bonds usually have a face value of 100% of the contract price.
Liquidated Damages
a pre-agreed formula that can be used as a basis of penalty against the contractor for late work. They are usually determined as a fixed sum per day, payable for every working day beyond the date of substantial completion. - the amount will depend on how critical prompt completion is to the owner - the requirement is generally expressed in the bidding documents, and may affect the contractor's bid. If very high penalty clauses are used, they are often supplemented with corresponding bonus clauses. The bonus is often expressed as the same amount as the penalty and is payable to the contractor for every day saved prior to the Substantial Completion date.
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)
Tort
a private or civil wrong or injury; a wrong independent of contract.
When might a municipality wish to use multiple contracts?
a project may not be huge by many standards, but the size might preclude many smaller, local contractors from the opportunity of participating in the project. In order to get participation the work packages may have to be smaller so smaller firms can assist.
The process of establishing a budget for design and production work is as much an art as science. What must be remembered?
a project's final design budget is generally a nuanced compromise based on combination of many factors, including an understanding of the - scope of work - experience with past projects - input from the team members - past experience of client - the market - design work has a market value
Progress of Appraisal (duty of LA): 4 mechanisms to monitor progress
a proportion of the architect's duties during the construction phase concerns checking of the work to ensure that it will be completed by the agreed date of completion. - several mechanisms may be used by the architect to monitor progress throughout the project: 1. site visits and reports 2. the contractor's work schedule 3. schedule of values 4. meetings
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 to reject 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.
Regulation
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 to the actions of those under its control. An example is the body of federal regulations instituted by O.S.H.A. These regulations must be adhered to by those in the work-place, including the construction project site, or citations will be issued for their violation upon detection.
Invitation to Bid
a solicitation for competitive bids; an invitation to submit offers on behalf of contractors, which are then subject to acceptance by the procuring agency or owner to form the basis of the contract. The invitation to bid competitively is not an offer on behalf of the procuring agency or owner to contract but is simply a request or solicitation for offers to contract.
Limitations, Statute of
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 a grant but are a limitation of legislative power.
Statute of Frauds
a statute that requires that no suit or action shall be maintained on certain classes of contracts or engagements unless there shall be a note or memorandum in writing and signed by the party to be charged or by its authorized agent. Its object is to close the door to the numerous frauds and perjuries. In essence, this statute declares that unless a contract is put in writing, it may not be substantiated as legally binding in a court of law. However, one should be aware of the fact that oral agreements are legally binding within certain parameters. These parameters are usually established by the Uniform Commercial Code.
Project Management
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)
tax liens
a tax lien is the right of the government to retain possession of property until the tax on it has been paid. If the the tax is not paid when the land is sold, the lien transfers with the land title to the new owner.
Quisi-Judicial
a term applied to the action, discretion, etc., of public administrative officers who are required to investigate facts, to draw conclusions from them as a basis for their official action, and to exercise discretion of a judicial nature. The actions of the O.S.H.A. administrators are quasi-judicial in character. When a design professional acts as an arbitrator in resolving disputes between the owner and the contractor, he or she is considered to be acting in a quasi- judicial role. It is in this role that the design professional is granted immunity. (See IMMUNITY)
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, con-tribute to the construction of the unit by giving of their manual labor. This labor is known as mutual help or sweat equity.
Boiler Plate
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.
Unilateral Contract
a unilateral contract is one-sided contract in that only one of the contracting parties make a promise, while the other party exchanges something other than a promise, most commonly some stated performance. These are not common in construction but do exist. For example, if a landscaping subcontractor says to the contractor, I will sell you 100 landscaping railroad ties for $6 each, if the contractor sends the sub a check for $600 for the ties, a contract was formed unilaterally. The contractor was in sole control over whether a contract would be formed.
Warranty
a warranty constitutes certification that an aspect of a contract is in fact as it was promised to be. Usually this certification stipulates the time period for which the warranty is valid. Such warranties are often required of manufacturers. On construction projects, the job specifications often require the warranty to be in writing. Note: owners prefer contractual warranties so they do not have to prove negligence. The contract may contain several distinct warranties each establishing different obligations and scope and effect.
Mandamus
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)
Certificate
a written assurance, or official representation, that some act has or has not been done, that some event occurred, or that some legal formality is being complied with; a written and signed document establishing that a fact is true.
Tort Feasor
a wrongdoer; one who commits or is guilty of a tort.
Retainage in a construction contract accomplishes which of the following?
a. It reduces the possibility of the contractor being compensated for more than the value of the work completed. b. It reduces the possibility of the contractor defaulting on the contract. c. It ensures that if the contractor fails to replace any dead plant materials, money will be available to complete the work with another contractor.
Planning for elderly communities includes which of the following basic issues dealing with declining mobility and perceptual losses?
a. Loss of orientation in large undifferentiated space. b. Difficulty in maintaining a conversation because of surrounding distractions. c. Benches that are situated too far apart for occupants to hear each other. d. Non-uniform surfaces that create uncomfortable circulation patterns.
A contractor has experienced significant delays to their construction schedule due to the owner not furnishing them with the necessary plans. The owner could be accused of:
active interference. In the situation described, it would be most accurate to describe the owner as actively interfering with the completion of the project as planned. If active interference can be proven, a contractor can potentially be released from responsibility for any damages related to delays or not meeting required deadlines. For example, active interference can prevent an owner from assessing liquidated damages against a contractor.
Active Interference
acts or omissions of the owner which actively interfere with work progress are often beyond the protection of a no-damage-for-delay clause. The courts have ruled that the existence of such a provision does not give the owner license to cause delays willfully. The term delay refers to situations in which the contract completion date is extended. The term interference relates to performance problems that result in increased costs, whether or not the completion date is changed.
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)
Notice of Termination from the Owner
after the receipt of Notice of Termination from the Owner, the contractor shall submit, within 60 days of the effective termination date, his or her claim for additional damages or costs, such as: - idle equipment time - mobilization efforts - bidding and project investigative costs - overhead expenses attributable to the project terminated - legal accounting charges involved in claim preparation - subcontractor costs not otherwise paid for - actual idle labor costs - guaranteed payments for private land usage Note: in no even will loss of anticipated profits be considered as part of any settlement and the contractor is not relieved of contractual responsibilities of work completed
Sole Practitioner
all liabilities and responsibilities are vested in a single person. Simplest business form. Appropriate organizational form for a small business with a predictable small-scale workload and a limited number of employees.
Supplementary Conditions
also known as special provisions or special conditions, supplementary conditions are more specific for the job being constructed. They serve the function of amending and augmenting the general conditions and thus tend to be more specific. Topics addressed include: - number of copies of the contract documents to be received by the contractor - type of surveying info to be provided - which materials the owner will provide - specific info about material substitutions - change in insurance requirements - requirements concerning the phasing of construction - examination of the site - start date for construction - requirements for project security - requirements for temporary facilities - specific procedures for submitting shop drawings - cost-reporting requirements - job schedule requirements - special cleaning requirements - traffic control requirements - discovery of artifacts of cultural or historical value
Statute
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 be adhered to by all parties within that jurisdiction.
Precedent
an adjudged case or decision of a court of justice considered as furnishing an example or authority for an identical or similar case arising afterward or for a similar question of law. It means that a principle of law actually presented to a court of authority for consideration and determination has, after due consideration, been declared to serve as a rule for future guidance in the same or analogous cases, but matters which merely lurk in the record and are not directly advanced or expressly decided are not precedent.
Retainage
an amount of money established by a fixed percentage agreed to in the contract writing that is with-held by one party of the contract from the other as a means of security and/or assurance of performance. In the construction industry, retainage is withheld by the owner against the prime contractor, and the prime contractor, in a similar manner, withholds from its subs. A typical percent-age in the construction industry is 10 percent of the amount paid on the progress payments until 50 percent of the work is completed. At that time, the owner may discontinue withholding the retainage.
Open Specification
are nonrestrictive in that they permit a wide variety of choices. Public projects should be bid under this type of spec, naming at least three manufacturers.
Constructive Changes
are referred to in federal procurement projects, and occur when the contractor is asked to undertake work: a. which is different from that required by the contract b. which speeds up the project c. which requires added expenditures as a result of incorrect specifications if forced to make a constructive change, the contractor may require the contract sum to be adjusted accordingly
Separate Contract Method (owner as general contractor)
arrangement by which the owner lets contracts directly to specialty contractors for various portions of work. The owner is responsible for coordination and assumes managerial functions ordinarily performed by a general contractor. The owner can have a separate contract to a firm to perform managerial functions as well. In this method the owner may save on the profit to the general contractor but assumes greater risk than general contract method.
Which of the following considerations would a landscape contractor be wholly responsible for in a typical residential project?
arranging site access
Can Bidders modify or withdraw their bids?
at any time prior to the bid opening, all bidders may withdraw or modify their bids. However, once the bids are opened, the bidders cannot make changes or withdraw from the process for a period stipulated in the bidding documents (e.g. thirty days). Once selected, the successful bidder must undertake the work for the agreed price, or risk forfeiture of the bid bond (if any). Exceptions to this are sometimes made if the bidder can prove substantial error in the bid calculation, in which case withdrawal might be appropriate, with award of the contract to the next lowest bidder. Alternatively, the contract may be rebid. Defaulting bidders should be disqualified from any further bidding on the same project, and no bid correction should be permitted, except for minor clerical errors and alterations.
Inspection by Landscape Architect
at certain stages during the construction process, the architect will appraise the work completed and issue a written judgement upon it. Appraisal is required for progress payments, substantial completion, and final inspection.
Certification (duty of LA)
at the stages in the construction process where inspections are carried out, it is often necessary to certify approval in writing. Such approval has the effect of releasing payment to the contractor, and should be undertaken with the greatest of care, and diligence.
A subcontractor has neglected to complete the installation of a drip irrigation system in a timely manner. As a result. the general contractor was forced to hire additional laborers to complete the work themselves . Which of the following actions could the general contractor take to recover their expenses from the subcontractor for any work related to the installation of the irrigation system?
backcharge the subcontractor
When are bar charts useful?
bar charts are useful production control and scheduling tools. They allow managers to visually sequence and study the duration of work tasks in relationship to time and to each other. In addition, project milestones can be shown so that a project's progress can be monitored, measured, and graphically compared to key target dates and milestones.
What is a baseline?
baselines are the "as-is" conditions of a site from which goals and measures will be based. Understanding the baseline conditions of the site is an important step in the process of defining metrics and goals. Baselines are used not only to set realistic goals and to measure the progress of the design, but also to deliberately interpret a site, its attributes, and its context through the lens of environmental, economic, community, and art categories.
Concealed Conditions: changes
because the unpredictable nature of subsurface conditions, some contracts provide remedies to equitably adjust the contract sum and time if conditions prove to be materially different than those anticipated.
Bottom-up Budgets
begin with budget numbers prepared by disciplines who will be performing the work. The disciplines generally express the work effort in hours, but dollars can be used. - consultant costs are calculated by asking for fee proposals from the consultants - a bit of messaging and negotiating with consultants might be necessary - the PM is responsible for the financial success of the project
Judicial
belonging to the office of a judge, as in a judicial authority, a court of justice, a judicial writ, or a judicial determination.
What are benchmarks?
benchmarks are industry best practices, regional standards, legally mandated requirements, and/or comparisons with similar projects. The LA metric's process involves the deliberate establishment and measurement of baselines, then setting of comprehensive goals and strategies to improve upon those baselines to meet or exceed regional benchmarks or best practices.
Certificate of Occupancy
big milestone and given after substantial completion.
Occupier's Liability: Passers-by
boundaries should be clearly demarcated, and activities on the property conducted so as to show reasonable care in avoiding injury to passers-by.
What is a contractor's liability if a design specifications results in an undesired result?
by using this type of spec, the owner warrants by implication that the specs will produce the desired results if they are followed by the contractor. Thus, the contractor is not liable if the desired end result is not obtained. The Spearin Doctrine stipulates that a contractor is not liable for performance when the specification has been followed.
Federal agencies tend to use...(blank days)...and why?
calendar day schedules; state highway agencies often, not exclusively, prefer to use working days schedules; and many private owner prefer either calendar day or fixed completion date contracts.
What if there is an emergency change that needs to be made?
changes might be made without formal change orders being issued. While this is not a suggested practice, circumstances might arise whereby the contracting parties agreed to a change with an understanding that this would be formalized at a later date.
"Suspension of Work" Clause
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 con-tractor, or if an equitable adjustment is provided for or excluded under any other provision of the contract.
Practical Impossibility
completion of the work is technically possible, but only at excessive cost due to subsequent events making the original contract sum inadequate. If it is unreasonable for the contractor to assume the higher costs, or where it would cause excessive difficulty, loss or possible damage, the parties may be released from their contractual obligations.
Post-Construction Evaluation
conducting a post-construction evaluation with park management and site users would offer the most specific and holistic feedback, as they could determine if there are any maintenance or safety issues with the play area in addition to learning how parents and administrators understand and experience the built work.
Extensions of Time
construction contracts try to control the contract time, which is usually closely regulated. This is evidenced by the common employment of liquidated damage provisions and penalty-bonus provisions and the practice of retaining a percentage of the money due the contractor. These provisions are not harsh compared with no-damage-for-delay provisions, in that they essentially dictate that the contractor is entitled to claim for extensions of the contract time for any delay beyond the contractor's control.
Impact of Delays (general overview)
construction delays generally adversely affect construction progress. Most disputes arise out of delays that are at least partially the fault of the owner. As has already been shown, such delays can be due to suspension of work, slow owner responses to contractor's questions, slow processing of shop drawings and other submittals, failure to provide timely access to the construction site, differing site conditions, change orders, and other actions by the owner. Most contracts provide additional contract time when the owner-caused delays occur. If the contract does not contain a no-damage-for delay provision, the contractor will also have a good chance to receive monetary compensation for owner-caused delays.
Certification of Insurance
contractor should file with the owner (or with the architect if requested by the owner) certificates of insurance before starting work
Acceleration Cost
cost incurred by a contractor when the project is interfered with by the owner, in such a way, that the contractor must employ more manpower or work more hours in order to complete the project on time. If the contractor contributes to the cause of its own delays, acceleration cost may not be granted.
Umbrella Excess Liability insurance
coverage extends the limits of liability coverage. Umbrella coverage is one of the better insurance buys. This is essentially a separate insurance policy that uses the limits of the basic liability policy as the deductible amount. Sufficiently high umbrella limits can eliminate, for all practical purposes, the question of adequacy of the amount of insurance carried.
Equipment Floater insurance
covers loss or damage to equipment and is acquired by equipment owner
Treble Damages
damages given by statute in certain cases, consisting of the single damages found by the jury tripled in amount. The usual practice is for the jury to find the amount of the damages and then for the court to order that amount to be trebled.
Force Majeure
delays caused by events that contractors could not foresee or prevent - acts of god - expropriation of facilities - changes in applicable laws - war - earthquake - change of government - rebellion - civil disturbance - sabotage - riots - floods - unusually severe weather - fires - explosions - strikes - etc. Note: in many contract agreements time extensions for these delays do not necessarily mean the contractor can recover monetary damages
Patent/Latent Test
determines whether the danger which caused the damage was latent (hidden) and, there-fore, beyond the control of the observer or patent (readily seen upon a reasonable inspection) and, therefore, within the control of the observer. Application of this test to the construction industry is enforced when the building is turned over to the owner. If the danger can be observed at the time of the acceptance of the building by the owner, but the owner does not make the contractor aware of the deficiency, then the owner will be held responsible for any future damage. However, if the danger is latent and not observable by the owner, then the contractor will be held responsible for any future damage emanating out of this danger.
3. Directing
directing the design team as it does the work so the project objectives will be met while staying within budget and on schedule
Zoning
division of real property into classifications. Each designated area will have a particular use of the property. Restrictions may be placed as well on minimum size of a lot, minimum distance a building can be from property boundary or street, the type of building, building height, number of stories, sizes of billboards, area of lot that can have a structure, density, etc.
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.
Efficiency vs effectiveness
effectiveness: knowing what to do and in what order. Doing things quickly, without a lot of false steps and rework efficiency: it is possible to efficiently do the wrong things
Staff Organization and Selection
establish office policy concerning employees. A "Personnel Policy Manual" is advised as a method of consolidating preferred practice both for existing members and prospective employees. It should include fundamental policies regarding employment procedures and staff benefits. For Example: - office hours, payment methods, overtime, lunch, coffee breaks, travel and expenses, responsibilities, salary review, parking spaces, client service expectations -benefits: pensions, profit-sharing, holidays, incentive pay, sick leave, professional activities, civil duties, dues to professional organization, promotional policy -hiring practices: methods of selection, moving expenses and transfers, termination of duty, layoffs, and resignations, leaves of absence
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 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. The contractor 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.
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.
Final Payment by the Owner
final payment by the owner of the balance of the contract sum, plus any remaining retainage, constitutes a waiver of all claims against the contractor except for: - unsettled liens - faulty or defective work appearing after substantial completion - failure of compliance with the contract documents - the terms of any special warranties that may have been provided
Actual Cost of Work Performed (ACWP)
firms invoice clients (usually monthly) based on the hours spent by the firm working on the client's project. In accounting parlance, the time spent working on a project is called the ACWP
In scheduling parlance, the first task in an FS (finish-to-start relationship) is called the (blank)...and the second task is called the (blank).
first: Predecessor second: Successor
Rule of Thumb 11:
five opinions are at least two opinions too many - two opinions are sometimes better than one, especially when the second one brings additional relevant and useful info to bear on a particular problem. Sometimes three opinions is better than two because the third can be a tie breaker. More than three is usually a formula for inaction.
In scheduling parlance, slack time is often called...
float! If any task along the critical path slips, the overall project schedule must, by definition, slip because there is no float in any of the tasks that occur along this path.
Project Closeout (general overview)
for any successful project, the contractor must show that the completed project meets the terms of the agreement between the owner and the contractor. This is demonstrated to the owner as a project nears completion and is commonly called project closeout. It is important for the contractor to be adequately prepared to turn the project over to the owner. Project closeout is primarily focused on ensuring the quality of the completed project. To some, project closeout simply means that the architect will walk through the project and ensure that all aspects of the project satisfy the contractual requirements; but project closeout is more than that.
Termination
for various reasons not all contracts are fully performed as intended. A contract can be terminated in a variety of ways (e.g by agreement) but there are provisions for unilateral termination of the contract by either side in specified circumstances
What is the Rice Doctrine?
for years the Rice Doctrine prevented contractors from successfully claiming for impact costs. However, this doctrine has been eroded over the years through a variety of court decisions and the modification of contract provisions that provide compensation for ripple effect or impact costs. The best chance of receiving compensation for justifiable ripple effects is through the maintenance of accurate and detailed records.
When is it too late for a contractor to make claims?
generally once final payment has been accepted, claims are no longer permitted
What is a project management goal?
goals are the purposes of project management. They are universal and do not change from project to project. Goals are the general results that the management process should accomplish for every project.
When the costs of changes are negotiated an owner should...
have knowledgable advisors or very trustworthy contractors to avoid undue charges for changes. The changes made by the owner will become a modification of the original contract.
Junior Partner
have less authority and control of the business, and take correspondingly lower responsibilities (usually restricted to personal acts and omissions) Profit-sharing will also be limited at this level.
Alternatives
ideally, on a lump sum contract the low bidder will be determined as the party submitting the lowest bid. The determination and selection of the lowest bidder are made more complex when the project includes alternates. Alternates can be viewed as modifications to the base bid. They may consist of changes in the structure of a project, changes in the quality of the material, the inclusion of additional items of work, the deletion of specified work items, and so on. Typically the bidders are expected to submit a base bid that represents a sum of money required to construct the project without regard to any alternates. The bidders are then asked to state the amount by which the base bid would be changed for each alternate. Note: alternatives should be avoided if possible
Rule of Thumb 7:
if a design project has no deadline, work will continue until one is set - design professionals need deadlines - do not wait to make a project schedule
Bonus Clause
if an owner has a penalty (more than reasonable damages) added to the daily rate to the contractor after completion, there must also be a provision for a bonus to the contractor for early completion EX. liquidated damages per day: $1500 liquidated damages plus penalty: $2500 bonus per day: $1000
Unified Bid
in a multiple prime construction contract, solicitation for bids is presented to the bidders in several separate prime contract packages. In a unified bid procedure, the bidders are permitted to bid on either one or as many of the bid packages as are presented.
Termination for Default
in a provision for default, the owner lists the conditions under which the owner will terminate the contract and make a claim against the contractor for damages. These provisions generally have serious consequences for the contractor. The contractor is liable for damages incurred by the owner through the contractor's defaults. In addition, the contractor's performance bond is at risk. Most owners include a termination for default provision in their contracts.
Separate Contracts
in some instances, contractors will be selected for specific and distinct divisions of the work (electrical, mechanical, etc.) there is no prime contractor as such because all contractors will have an equal relationship with the owner. This system has the advantage of reducing the prime contractor's extra charge for administration of the subcontractors and reduce the expense of double insurance. Coordination can be tricky with no hierarchy but a construction manager (can be an architect) could act as coordinator.
Tree ordinances
in some localities, where a view is blocked by excessive foliage from a neighbor's tree, a reasonable request can be made to remove the obstruction, with cost to be shared between the two parties. Tree commissions are sometimes set up to decide these matters in case of dispute.
Drawings vs. Specifications (who wins)
in the case of a conflict between the plans and specifications, the specifications will govern or the conflict will be resolved by the architect.
Lien, Partial Waiver of
in the construction industry, a document used to certify that a portion of the total amount due to a subcontractor has been paid and, there-fore, that that portion or amount of money cannot be used as a basis for a lien against the property.
If the survey information furnished by the architect is inaccurate, the landscape architect as subconsultant should
inform the architect and request that the architect provide an accurate survey.
Job Order Contracting (JOC)
initially developed for government agencies in the 1980s for renovation, repair and construction projects. When a facility owner has extensive facilities that require routine and unscheduled maintenance and repairs, JOC offers some strong advantages, as it essentially ensures an owner that a contractor will be "on call" for any task to be done. Some have referred to JOC as "blanket" contracts, as they are designed to cover any tasks that must be performed. JOC is generally done through multi-year contracts. Since a contractor is on board for virtually any task that comes along, there is a huge reduction in the time consumed in design work and procurement. Under JOC it is common for the contractor to have an ongoing presence in some of the owner's facilities. - this is also widely used in the private sector - at the outset prices are agreed upon for specific items or the hourly rates for certain personnel
Dividends
insurance companies measure their success by comparing their premiums receipts with their actual expenditures for administering insurance policies and settling claims. IF an insurance company has had a good year, it should have a large surplus of cash. To keep their clients, such companies frequently return portions of the surplus to clients with relatively low losses. These returns are called dividends.
Wrap-up Insurance
insurance coverage for a project that is provided by one insurance company. With wrap-up insurance, the owner traditionally would obtain the insurance coverage otherwise provided by the general contractor, subs, architect, engineers, and owner. All insurance is provided by a single insurance company. Also called Owner-controlled insurance. The owner provides insurance so the contractor bids without insurance.
Key-man insurance
insurance obtained on company principals. This type of policy insures a company against heavy losses that can result from the untimely death of a principal.
Loss Ratio
is a quotient which represents the level of success that the insured has had in minimizing losses. This ratio is simply the insurance company's costs for handling a company's claims divided by the total insurance premium paid by that company.
mechanic's lien
is a right created by law that permits workers and materials suppliers who provide improvements to real property, to place a claim that land if they are not paid. The purpose of the law is to permit claim or lien to be placed on premises when a benefit has been received by the owner and the value or condition of the property has been increased by labor and materials that have not been paid for.
Proprietary Specification
is a type of closed specification. It specifically states what is to be provided without any allowance for alternatives. This is a unique type of a design specification. It is common for a proprietary specification to prescribe the use of a particular model of a particular manufacturer.
What if the bidder makes a computational error? What happens to the bid bond?
it is not certain that the bond should be returned. That is usually the case, although some courts have ruled otherwise. Although the contractor may be relieved of obligation, some courts have ruled that the bond should be kept by the owner because the promise to enter into a contract was breached.
Quality Control Culture
it is not enough to rely on a typical quality check (QC) just before the work goes out the door - design firms must have quality become cultural - high-quality work cannot be achieved by edict - quality cannot be tagged on at the end - quality is achieved through leadership by example - quality is achieved by developing a firm-wide quality-control culture - the example must be the PM at a project level
3. Mitigation
lessen the impact of uncertainties or threats should they occur
Strict Liability
liability without fault. A case is one of strict liability where neither care nor negligence, neither good nor bad faith, and neither knowledge nor ignorance will save the defendant.
Prequalification
may be requirement imposed by owners on some projects. Bidding will be restricted to firms that have prequalified. Prequalification of bidders is not a common practice; however, it may be employed on both public and private projects. The prequalification process results in a select bidders list, or short list which identifies firms that have demonstrated to the owner that they have the necessary abilities to perform the required work. Note: it is the responsibility of the owner to prove that a contractor is not qualified (prequalification or postqualification)
When does a fixed completion date make sense?
may be specified when the owner needs a completed project by a specific date. The general preference of the owner is for this type of contract may also be a factor.
Site Meetings
meetings between parties representing different elements of the project could be necessary at intervals throughout the project - at regular intervals - at specific times during the construction process - when problems occur - when it seems necessary to provide an impetus Attendees might include: - architect - contractor - owner - construction manager - consultant - subcontractors - others (building inspector, etc.)
Practice Meetings
meetings between partners and / or employees
Monitoring Progress: meetings
meetings between various parties should be held periodically - practice meetings - construction meetings - site meetings
Mistakes in bids
mistakes in bids are often considered, at least by the party making the mistake, as grounds for nullifying a bid, since there is no meeting of the minds. The general rule is that mistakes of fact are grounds for relieving the bidder of any further obligations, while mistakes in judgement provide not basis for relief. - If a bidder can make their case, their bid bond will be released. Otherwise the owner may refuse to release the bid bond.
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.
5. Monitoring
monitoring the design team's work product and progress against the project objectives, budget, and schedule
Public Liability
most architects, whether or not insured under a professional liability policy, carry a comprehensive general liability policy to protect against claims involving injury to persons or damage to property in connection with the architect's business or premises. These often exclude the risks specifically covered by professional liability policies.
What is cause for suspension?
most contracts contain provisions granting the owner power to suspend work when the contractor is not in compliance with the contract. Another cause for suspending construction work relates to the discover of historical or archaeological artifacts. Other causes for suspending a contract may also be enumerated.
Owner's acceptance of work means..
most federal contract documents state that the government's inspection and acceptance of the finished work constitute waiver of claims against the contractor except those resulting from latent claims or fraud. - private work contracts often state that the owner's inspection and acceptance of work does not waive claims but courts are reluctant to enforce such provisions Note: acceptance does not relieve the contractor of responsibility for complying with the plans and specifications
Premises/Operations Liability insurance
most liability claims in the construction industry fall under the category of premises/operations. The premiums are levied on the basis of the amount spent on payroll. - liability under this coverage can come from two sources: operations and premises - operations coverage provides liability protection from injuries or property damage arising from business operations in progress
Do contractor's have to be licensed?
most states have statutes regarding licensing for contractors. The purpose of licensing is to ensure that the public is protected from unscrupulous contractors. This does not necessarily mean that contractors must be licensed in order to perform construction work, although some owners and most public agencies stipulate this as a specific requirement. Most licensing laws simply stipulate that an unlicensed contractor cannot use the court system as a means of redress for any construction-related disputes. This indicated to contractors that it behooves them to be licensed.
When is it best to use a fixed price/ stipulated sum contract?
most suited to building projects of a predictable nature, where a full set of construction documents is available. IN federal projects a fixed price-incentive firm method of contracting has been developed
Null and Void
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.
Contracts of Employment
need not be formulated in writing but a carefully drafted agreement covering relevant issues in the office manual. Should be drafted into a letter of appointment.
All-Inclusive Specification
occasionally a contractor will read a specification that leaves many questions unanswered. Various items may or may not be required, depending on the whim of the owner's representative. - phrases like "as directed by the architect" will be used. This saves a spec writer time but is bad for the contractor and may result in higher bids
Decision making techniques
often information is incomplete when making a decision. Pragmatic decision making involves using all three inference tools of logic - deduction - induction - abduction
Payments for Lump Sum Contracts
on a lump sum (or fixed price) contracts, the payment procedure is somewhat different. Since the contract already stipulates the amount, it is not necessary for the owner or architect to measure in-place quantities exactly. However, this does not mean that the contractor's payment requests do not need to be verified to some extent. The contractor submits a schedule of values or cost breakdown of all work items for which payment will be requested. The sum of all these items will be the contract amount.
What is the purpose of a warranty or guaranty?
once a construction project has been completed, the owner wants assurance that everything will function as intended. The contractor maintains some responsibility for the project after completion and this is provided by a warranty or guarantee.
Eichleay Formula
one approach by which unabsorbed home office overhead can be quantified. Not all owners accept this method and sometimes a modified version is used. The basic premise of the formula is that home office overhead is evenly distributed over all the company refenues.
What is an incentive/disincentive specification?
one in which an owner will accept material of differing quality, but this is done by paying less for work of lower quality and paying more for material of higher quality. - concrete, soil compaction, asphalt thickness, and more - the concept is that work need not be redone and this will save time. In addition, if quality is better than specified, the product life is often longer, so the owner actually acquires a product for which additional payment has been earned
What is the scheduling technique called "pass the baton)
one task ends before the next task begins. This technique of task scheduling is sometimes called "pass-the-baton" scheduling. - one task finishes its run and then its information (or deliverable) is passed to the next task - can also be called "finish-to-start" (FS) one task finishes before the next task starts
What is a "critical activity"?
one that must start as soon as its preceding activity has been completed, and it must be completed in the allotted time or the project will not be completed in the scheduled time.
Responsive Bidder
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.
Representative
one who stands in the place of another, usually as executor or administrator but not as an agent; one who represents the interests of another. (See AGENT)
Determining the percentage complete:
periodically the earned value of the work should be checked. This is the best way to determine where the project really stands. - the PM must look at the work product and judge its completion - there are various techniques to determine the percentage complete and they all employ abduction - the list of drawings and specifications can be used to monitor progress
4. Contingency planning
plan in advance for coping with uncertainties or threats should they happen
Reporting Services
plan service centers are another source of bidding information. These centers publish and distribute, on a regular basis, bulletins that describe all projects to be bid on in the near future in a locality. Two major questions can be answered by contractors here: 1. Should the general contractor bid on the project? 2. Which subcontractors and suppliers are bidding? - plan service centers are typically used for detailed estimating only by subcontractors and materials suppliers - Also helps contractors know the level of competition they are facing
2. Planning
planning the work so that the project scope of work, budget and schedule will be met
50% complete?
plans, sections, elevations, or details are drawn but not dimensioned or dimensions are missing. There are no notes or material call-outs or note/callouts are incomplete or missing
Quality Assurance
policy in regard to assuring that quality will be achieved on a program or project.
When to prepare for project closeout?
preparations for project closeout should begin at the start of construction and continue until the project is finally accepted by the owner. If is advisable for the contractor to perform self-inspections of the work, and that this be done throughout the construction phase. It is not wise to assume the architect will find all deficiencies.
Schedule of Values
prior to the first application for payment, the contractor must submit a Schedule of Values to the architect, together with any data supporting its accuracy that the architect may require. This then forms the basis for reviewing future applications for payment, and should indicate the sections of the contract sum provided for the various parts of work
Professional Corporations
professional corporations differ from the other corporations in that, although liability can be limited in certain contractual matters, the individual professional remains personally responsible for all negligent acts or omissions despite the incorporation.
When can one determine if a project was managed properly?
project management is an outcome oriented process. Whether the process was managed properly cannot be determined until afterward, by judging the results. Project management is a pragmatic process.
Operating and Maintenance Manuals
projects that include mechanical equipment usually include a contractual requirement for the contractor to provide operating and maintenance manuals for the equipment. - equipment for which such manuals are required should be clearly noted in the contract documents - because of the importance of this information, the owner may link payment to the receipt of the manuals
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.
Unit Prices (bidding process)
provide a means of measurement which can be included in the bid, indicating a price per unit for materials and/or services. It is useful in giving an idea of price calculation for unknown quantities or variable factors and, again, should be restricted in use if the overall budgetary figure needs to be controlled.
Instructions to Bidders
provides all relevant information concerning the detailed requirements involved in the bidding process, including: - definitions - bidding documents - consideration of bids - owner-contractor agreement - bidder's representations - bidding procedures - post-bid information - performance payment bonds
Comprehensive General Liability insurance
provides protection from third-party lawsuits, including property damage and bodily injury. Liability is an obligation imposed by law. It can be incurred from several type of incidents. - injury to nonworkers on site caused by commissions or omissions of the prime contractor - contingent or indirect liability (acts of parties such as subs for who the prime is responsible) - damage caused after a project is completed or accepted - damage caused by the contractor's mobile equipment - injury to employees (liability may result if benefits under workers compensation are not granted)
Termination (2 general varieties)
provisions for termination of construction, which are included in most contracts, typically occur in two varieties: 1. termination for default of the contractor and 2. termination for convenience of the owner
before beginning the project planning process, the project manager must...
read and understand the contract or agreement between the owner and the design professional. Often the agreement breaks down the project into parts or phases, with specific submission requirements (often called deliverables) - the project is first divided into its major phases - each phase is then further broken down into its major tasks - after that the major tasks are broken down into subtasks - planning starts with the all-inclusive big view and then focuses in on the project in more and more detail through a series of passes - remember, while planning and design work are done iteratively, project production and task work are done linearly, one bite at a time
1. Prevention
reduce the number of uncertainties and/or threats
Value Engineering
refers to a specific procedure that is carried out to critically analyze the various aspects of contract documents in relation to the owner's objectives, to determine if alternative methods or materials might be more appropriate. A value engineering review on a project may result in a variety of changes in the contract documents that may reduce costs, improve or maintain project quality, and/or decrease the duration of construction. Can save owner considerable money while no compromising the quality of the project.
Breach of contract: Refusal
refusal of further performance of the contract.
Privity
relationship of a party which has any part or interest in any action, matter, or thing. Privity of contract is that relationship that exists between two or more contracting parties. In a typical construction project, the contractual relationship between the participants is one of privity between the owner and the design professional and the owner and the contractor. However, there is no privity or contract between the design professional and the contractor.
Restrictive Covenants
restrain an owner from undertaking certain actions in relation to his or her land. They are usually established by a previous owner and they are often introduced in an effort to protect the character of a neighborhood, or to maintain property values. Restrictive covenants may bu used: - to prevent fence building - to assure minimum levels of aesthetic or architectural appearance - to prevent major alterations or change to existing buildings - to prevent tree-lopping
Risk in a project
risk is the term used to describe the amount of uncertainty and number of threats (elements that threaten the success of the project) that exist or potentially exist in a project - some risks can be eliminated by thoughtful problem solving, while others can be successfully managed so their impact on the project is kept at a minimum
what is included in the statement of program and performance metrics?
site design intent incorporates both qualitative and quantitative metrics to characterize the work scope. These correlate with metrics defined during Pre-Design in the metrics kick-off meeting. The LA should frame qualitative metrics for each space or component, and include characteristics such as intended mood, experiential and aesthetic qualities. Quantitative metrics should also be determined for each space, component or system and include attributes such as size, number or people accommodated, and infrastructure needs
On lump sum contracts, why would a contractor front-load the schedule of values?
some of the costs occur early in the project, insurance premiums, permits, bond premiums, early fees, mobilization, etc. For this reason, front-end loading is often permitted by owners.
Shop drawings used to show how a specific component will be fabricated and installed, are usually prepared by the
subcontractor or the material supplier.
What payments are left after substantial completion?
substantial completion is essentially the same as practical completion. At the time of substantial completion, the last periodic payment is made to the contractor. After the only funds remaining to be returned to the contractor are the amounts withheld by the owner as retainage. The retainage is released upon final completion.
Surety Bonds
surety bonds are a common precaution. A surety bond is basically an assurance by one party which provides that specified obligations of another will be met, despite unforeseen or undesirable events. In reality, the cost of bonds, although technically borne by the contractor, is transferred to the owner by inclusion in the bid.
Start-to-finish (SF)
tasks are interrelated and one task finished when the other one starts
Statement of Probable Construction Costs
term introduced by the A.I.A. in 1963 to help minimize the responsibility of guaranteeing the cost estimate. Prior to that time, "cost estimate" was used.
a good project manager has to know the job...in other words has to know the...
territory!
Standard of Performance (Standard of Care)
that standard which a professional (doctor, lawyer, Landscape Architect, engineer, etc.) must exercise to the degree of care and expertise which a reasonably competent professional of the same discipline would exercise under the circumstances. The standard of performance is established by the professionals working in the same geographical area.
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.
Meetings of Minds
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. (See CONTRACT)
A client has requested that a landscape architect commission a survey of their private property. What action should the LA take?
the LA would need to issue an RFP for the survey of the property to a limited number of surveyors. If the project were public in nature, such an RFP would need to be advertised to the general public. An RFQ is not the appropriate answer because issuing an RFQ would not provide the LA with the means to compare bids for the survey work (ie. proposed scope of work, total budget, retainer and general payment information, etc.)
A landscape architect is overseeing the construction of a private residential landscape. The owner has requested a change to the designs as shown in the construction documents and this change will increase the overall project budget, thus triggering the need for a change order. In the context of this project, which of the following parties has the ability to issue a change order?
the Landscape Architect! While the request for the change order originated with the owner and will be built by the contractor, only the landscape architect has the ability to issue a change order within the context of the project described.
Prior to every submittal, the deliverables should be reviewed for completeness and accuracy...who conducts this review?
the PM and the quality-control manager
Interference
the act of hampering, hindering, disturbing, intervening, interposing, or taking part in the concerns and affairs of others. In the construction industry, when a contractor has work interrupted by the acts of the Landscape Architect or owner, it may file suit on the grounds of interference. However, before liability will be assessed, most courts require that interference with the contract be intentional and not merely negligent.
Meeting Agenda
the agenda of a typical site meeting might be set out in the following way: the chair should... - call the meeting to order - take the names of those present - give the names of those sending apologies for their absence the rest of the meeting might include... - agreeing the minutes of the last meeting or dealing with any problems arising from them - the architect's report - the construction manager's report - the contractor's report - the consultants report - discussion of project progress - procedures and communications necessary (any actions required and by whom) - any other business - time and place of next meeting
Agent
the agent must display complete loyalty and good faith, obey instructions to the letter and not attempt to exceed the authority that has been granted. All information acquired through the course of the agency should be communicated to the principal. Agents include attorneys, brokers, auctioneer, and real estate agents.
How does a contractor apply to get paid monthly?
the application for payment is usually submitted at the end of the month or by the tenth of the month after. This application is reviewed by the owner's representative to determine whether the payment request bears a fair resemblance to the work actually performed.
Breach of Contract
the architect enters into a contractual relationship with the owner to perform specific services. An implied agreement is made by the architect to carry out the required work to the standards expected of the profession. Failure to meet these standards, which cause extra expense or delays for the owner, may result in a claim for damages against the architect on the grounds of breach of contract.
Approvals (duty of LA)
the architect may be called upon to make certain judgments on aspects of the work in the form of an approval or rejection. - tests and inspections - uncovering of work - approvals of samples and shop drawings - schedule of values - names of subcontractors - supporting data for payments
Reimbursable Expenses
the architect may charge for expenses directly incurred during the project including: - transportation connected with the project - fees paid for securing approvals - Reproductions, documents, postage, etc. - overtime, if approved in advance by the owner - Renderings, models, and mockups requested by the owner - professional liability insurance in excess of normal policy coverage, if required by owner
Schematic Design Services
the architect provides conceptual ideas for the project, illustrating the scale and relationships of the programmatic components. Materials may include: - site plan - preliminary building plans, sections and elevations - study models - perspective sketches - electronic models - preliminary advice on major building systems and materials - location of proposed project site - function and relationship of rooms and spaces (including their areas and heights) - overall appearance/character of the scheme
Merchantability
the article sold will be of the general kind described and reasonably fit for the general purpose for which it shall have been sold. Where the article sold is ordinarily used in only one way, its fitness for use in that particular way is impliedly warranted unless there is evidence to the contrary. The warranty of merchantability is implied, unless expressly disclaimed by name, or the sale is identified with the phrase "as is" or "with all faults." To be "merchantable", the goods must reasonably conform to an ordinary buyer's expectations, i.e., they are what they say they are.
Budgeted cost of work performed (BCWP)
the assumption is that the ACWP matches to BCWP but they are not always equal! Sometimes the ACWP is less but more often it is not.
The Award
the award should be made in accordance with relevant state law and will be sent to both parties simultaneously by the AAA. - in the event that one of the parties refuses to accept the arbitrator's decision, application may be made to the courts to enforce the award.
Who are the winners and losers of alternatives?
the awarding of contracts is made complex when alternates are included. For the owner, alternates pose a significant advantage, since their pricing can be used as a shopping list. Changes proposed after the contract award will typically be higher in cost, since competitive bidding will not be involved. Contractors, as a rule, do not see alternates as having strong advantages for them. The primary concern of contractors is that the owner might be able to manipulate the alternates that are accepted, so that the preferred contractor is awarded the contract. (owners are advised not to use alternates to avoid the appearance of favoritism)
The functional diagram is used to communicate
the best and most appropriate relationships between function and spaces. b. how users function on the site.
Bid Bond
the bid bond is issued to give assurances that the contractor will enter into a binding construction contract and will provide the required payment and performance bonds if the contract is awarded to him or her. IF the contractor fails to do this (sign the contract or furnish the required bonds), the bond stipulates that a responsible party (the surety) will pay the damages. - the bid bond can be viewed in more than one way. It can be a liquidation of damages (limitation of liability), a security device, or an unenforceable penalty.
The bid form
the bid documents usually include a bid form on which the bids are to be submitted. On the bid form itself, the following are common requirements: - price - time of completion (often given by the owner) - bid surety - agreement to provide contract surety - acknowledgment of having reviewed addenda - list of subcontractors used in the final bid - experience record, financial statement, plant and equipment inventory - statement regarding site examination - signature
Contractor Meetings
the contractor and the representatives may wish to meet with the subcontractors at intervals to discuss coordination of work on site. The architect or construction manager may be invited to attend where relevant.
What is the basis of payments throughout the project for a lump sum contract?
the contractor is asked to break down the project into a variety of work items and to allocate the appropriate payment to be made for each item. This payment schedule, or schedule of values, will become the basis for all payments throughout the project. Note: a form of unbalancing can also occur where the contractor manipulates cost distribution so that the owner pays more for early work items. This unbalancing places less risk on the owner that with unit price.
What obligations does a contractor have under an implied warranty?
the contractor is obligated only to provide the owner with a facility that complies with the plans and specifications. IF the facility does not perform properly after having been constructed according to the plans and specifications, the owner's grievance is with the designer. Thus a contractor who is involved in design work will warrant, pro rata, the sufficiency of the functioning final product. Thus, exposure to liability is increased when a contractor performs design work.
Termination by the Contractor
the contractor may also have the right to terminate the contract under the following circumstances: If the work is stopped for a period of thirty days due to: - order of the courts - public authority intervention - the result of an act of government (e.g. declaration of a national emergency, making material unavailable) - through no act of the contractor or his or her subcontractors agents - the architect has not issued a certificate for payment - the owner had not paid the amount certified
What if the contractor submits something that does not conform to the spec?
the contractor must be careful that all submitted items satisfy the specifications. If the contractor makes a submittal that does not conform to the specifications and does not identify the material as being in nonconformance, the owner's approval of the submittal does not release the contractor from liability for using that material. There are often provisions absolving owners of any liability in accepting submittals. watch out!
What if a contractor requests a time extension but is denied?
the contractor must proceed with the work under protest. This could be viewed by the contractor as constructive acceleration. If the court finds the delays excusable, the owner will be charged acceleration costs. - if acceleration claims are going to be made by the contractor, this must be formally communicated to the owner.
Do not start production of CDS until...
the design is well defined and approved by the client! - design is iterative and produces CDs is linear - the client must understand the design and approve it for production - best to get approval in writing - sometimes the owner is required to approve the design work and issue a notice to proceed
The marked-up deliverables are then given to the document's originator for review and concurrence. If concurrence is received,...
the documents are then corrected-changes, additions, and deletions are made. - Quality-control programs generally require the person making the change to acknowledge that the change has been made, for example by "yellowing out" the red marks once the corrections are made
Project CADD manager
the drawing files and procedures must be standardized. The CADD manager must set standards and make sure that all disciplines follow them - filename - layering conventions - pen color - line plotting - style - size of text - cross referencing standards - symbols - dimensioning standards - many other drawings standards Note: many clients have their own drafting standards that must be followed
90% complete?
the drawing is complete but has not been submitted for quality-control (QC) check
As-Built Drawings
the drawings in the bid documents generally represent a reasonable approximating of the final appearance of the project. However, not all information included in the original drawings will be accurate in describing all aspects of the project. - owner's often require the contractor to maintain an updated set of drawings that show the exact locations of all in-place items. These drawings are referred to as the "as-built drawings". - constant updating of even small changes is recommended because details are often lost due to failure of memory
Earned Value
the earned value is the amount of budget allotted to a particular task that has been accomplished and is, therefore, earned, regardless of the actual amount spent. --Example-- if the civil engineer has a budget of 100 hours for the 30 percent design phase. Suppose at the end of the 30 percent design phase the civil group has spent 120 hours. The PM looks at the work produced in 120 hours and determines that it is probably only 20% complete, not 30 as planned. Because 20 percent divided by 30 percent is 67%, the amount EARNED is 67 percent of 100 hours or 67 hours. The civil group took 120 hours to earn 67 hours.
Cost plus award fee
the fee is negotiated on a percentage of the agreed estimated final cost. Added to this will then be an award fee, which may be two or three times the base fee, and is paid by the owner upon previously established criteria.
When is a punch list developed?
the final punch list is normally developed on a joint job visit conducted by the contractor and the architect/engineer. Punch list items are often minor in nature. They can cause considerable delay in final payment if they are not corrected promptly. In addition to the punch list, the contractor may be required to demonstrate that the facility functions in a satisfactory manner.
Does a payment bond cover all sub and sub-sub contractors?
the general contractor payment bonds provide assurance of payment by the general contractor, but this assurance is limited to certain parties.
Project Management Institute (PMI)
the goal of the PMI was to research and collect the existent body of knowledge regarding project management and establish standardized procedures for managing projects across a broad spectrum of project types and industries.
Quality Control
the implementation of the quality assurance plan, usually during the construction phase.
Contract Intent
the intent of the contract is often a vague concept, but in general it is the presumption of what one party wanted to have done when entering the contract.
Waiver
the intentional or voluntary relinquishment of a known right. Waiver is essentially unilateral, resulting as legal consequence from some act or conduct of parties against which it operates, and no act of the party in whose favor it is made is necessary to complete it. In the construction industry, an owner may waiver his or her right to a signed change order for work incorporated into the project when the following conditions exist: the owner is aware of the change but does not object; the item is of such magnitude that the change could not be made without the owner's knowledge; the changes are necessary but were not foreseen by the design professional; and some subsequent oral agreement (the Landscape Architect's orally approved substitution and/or change with which the owner agreed) waives the requirement of a signature.
If the contractor makes a change to materials, whose responsibility is it to accept or deny the change?
the landscape architect
Limit of liability
the limit of liability is the face value of the bond. IN general, sureties assume that the cost to complete projects is less than the face value of the bond, and so the most common action by sureties in a default situation is to take over the responsibility for completing the troubled project. Also called bond's penalty
Contract award for a public project is awarded to...
the lowest responsible bidder submitting a regular bid.
Lump Sum Contracts
the lump sum contract is probably the most common type of contract used in the construction industry, particularly in building construction. Of the various forms of construction contracts, the lump sum, or fixed-price, contract is the simplest. The contract essentially states that the contractor will produce the project as designed for a stated specific sum.
How does a contractor get paid in a unit price contract?
the matter that must be resolved is the quantity of work that is actually performed. To determine this quantity, the contractor will measure the in-place quantities and request payments on the basis of that measure. - the owner may have to increase field staff to verify/double-check the contractor's stated in-place quantities
What happens at the conference during mediation?
the mediator outlines the procedure and basic ground rules involving: - presentation of each party's case - order of presentation - decorum - discussion of unresolved issues - use of caucuses - confidentiality --each party presents their case to enable the mediator to gather facts
Define a "task" in more detail
the objective must have a measurable outcome, a way of knowing whether it is completed or not. The duration is length of time budgeted to reach the objective. For most projects, time duration is measured in workdays or calendar days. The level of effort is generally measured in hours and is the number of labor hours budgeted to accomplish the objective. The level of effort can also be measured in labor dollars. An item of work that does not include all three elements is not a task. Without all three it could be considered an assignment or an activity. The PM must make sure all assignments and activities are given are made into tasks.
What are "working days"?
the owner generally will monitor and make determination of the amount of time to be charged against a contract. The contract provisions should clearly define working days and indicate how time will be charged. It is typical to define a working day as any day except Saturdays, Sundays, and holidays on which the contractor performs work or could have performed work. - sometimes Saturdays, Sundays and holidays are included as working days - generally weekly reports will be given to the contractor by the owner who has been monitoring the number of days worked and indicate the number of cumulative working days that have been charged
Disadvantage of unit price contract?
the owner is not certain of the actual cost of the project until it is complete
If payments by the contractor are still outstanding, what can the owner do?
the owner may require indemnification against third party claims. AS an added precaution, the consent of the contractor's surety should be obtained prior to final payment.
What is the most common approach to bidding in the private sector?
the owner selects a few prime contractors who are reputable and capable of doing a good job. This list of contractors is called a select bidders list. These contractors are asked to bid in a process called invitational bidding. This process has the advantage of the competitive market while restricting bids to a selected group of contractors.
Retainage overview
the owner typically holds back or retains a portion of the money earned by the contractor as an incentive for the contractor to complete the project properly and promptly. The retainage on a project may range from 5-20 percent (typically 5 to 10 percent), while the contractors net profit on the job is usually about 2 percent so the retainage is needed to realize profit on most jobs. Note: the final payment (last periodic payment) can be paid after substantial completion but not the retainage If the punch list is not complete the owner can use the retainage to complete the project (generally retainage amounts of 2 to 3 times the estimated cost of addressing the punch list are considered adequate)
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. 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.
Meeting of the Minds
the parties to a contract or agreement must have a meeting of the minds. This means essentially that the contracting parties agree on the basic meaning and legal implications of the contract. This is usually considered to be the underlying purpose of the contract. If a meeting of the minds is not achieved, the parties simply do not enter into a contract.
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.
Prime Contractor
the party signing a contract with another party to directly perform the work required by that contract. (See CONTRACTOR and SUBCONTRACTOR)
Premiums (insurance)
the payment or consideration for an insurance contract is called a premium. The premium guarantees that the insurance policy will be effective for a stated period of time.
Rule of Thumb 9:
the person who talks to the client and directs the work is the project manager - if the so called PM is talking to the client but someone else is directing the work and coordinating the disciplines, then the project has two PMs or else--there is no real PM - if duties are split then there is no clear PM
What is team synergy?
the phenomenon by which the combination of individuals with different skills, working together, with the freedom to express their ideas, produces results that are geometrically better than the sum of what they could achieve individually
What is offshoring
the practice of using service providers- individuals, branch offices, or other companies- located outside the US to produce some part of the project work product. Could be perspective renderings, computer animation, model making, specification writing, accounting, cost estimating , report production, marketing brochures, drafting - usually less expensive than US counterparts - they are also not necessarily less skilled
Unit Price Contract
the primary feature of unit price contracts is that the pricing for various units of work is determined before the start of construction - the contractor must be careful to include all anticipated costs into the bid items (overhead and profit) - these contracts are used when the project is fairly well-defined but the actual quantities may be difficult or impossible to estimate with accuracy until construction has begun - often earthwork is hard to estimate beforehand
The Project Manual
the project manual consists of the bidding documents, general conditions, supplementary provisions, and the technical specifications.
Phone conversations and memorandums
the project work plan should establish specific formats for documenting phone conversations and meetings. - many firms have standards
What is on a punch list:
the punch list contains details of all outstanding items that the contractor intends to complete or correct, and it is sent to the architect who may then make arrangements for inspection. An architect can amend the punch list and add items. If the architect feels that the work is not substantially complete, the contractor will be informed and the architect need not return until sufficient evidence suggests that the work has reach the required standard.
Development of Project Schedule (the general purpose)
the purpose of project scheduling is to determine how to perform the work so that it can be completed on time. It tells team members when information and deliverables are due throughout the course of the project. The project manager also uses the project schedule as a timeline benchmark, against which project progress can be compared to see if work is being accomplished at the pace it should be.
How to check the quality of work of the contractor?
the quality of work performed will be evaluated primarily through on-site inspections. The quality of the material incorporated in the project can be verified through a number of means. Independent tests can be made in the factories before shipment or after installation. In some cases materials can be readily identified by their trade names, with adequate information being provided in the standard manufacturer's literature.
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.
Who is on the review team?
the review team may include the project's quality-control manager, other PMs, and upper management. Reviewers ask questions and make suggestions.
Instructions to Bidders
the rules by which the project must be bid. These rules concern the bi itself and the project during construction. Rules include: 1. typical instructions relative to the procedure for writing and submitting the bid 2. the contractor may be required to submit an experienced record to demonstrate the capability to perform. This is used for postqualification 3. the instructions clearly list all documents that are part of the bid documents 4. the construction time period is carefully spelled out (start date, calendar or working days) 5. the instructions usually indicate who is responsible for the subsoil data, test borings, errors in the plans, and so on. Site visits by the bidders are usually required in the instructions. 6. the requirements of a bid guarantee are outlined 7. the insurance to be provided by the contractor is stipulated 8. the bonding requirements are given 9. conditions for handling bid irregularities are often stated 10. where and when to deliver the bids are stipulated 11. closed or public opening of the bids is indicated 12. a prebid conference may be described
Professional Fee Plus Expenses
the salaries, benefits, and overhead of personnel involved in the project represent the expense. The fee or profit may be agreed as a lump sum, a percentage or a multiplier
What needs to be verified for Lump Sum Payments?
the schedule of values will be examined for reasonableness, and the degree of front-end-loading will be noted. Once the negotiations have been completed, the schedule of values will become the basis on which payments are made to the contractor. Essentially, the only verification needed on each payment request is proof that work has been performed.
Sustainable Goal Setting
the setting of sustainable design goals is an iterative process that requires research into baseline and benchmarks in order to realistic about aspirations and outcomes. Goals established must be SMART and supported by strategies to achieve these goals
Arbitration
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.
Subrogation
the substitution of one person or group by another in respect of a debt or insurance claim, accompanied by the transfer of any associated rights and duties.
When a contractor defaults what does the surety do?
the surety is asked to step in for the contractor to complete the work or pay the owner to do it. 1. surety provides financial support to the defaulting contractor in order to expedite the completion of the project, with the surety to be reimbursed later (the most common option) 2. surety solicits bids or quotes from other contractors to complete the project 3. surety informs the owner to finish the project (this is not a common option)
Once the project manager has selected the project team...
the team and the relationships of the team members can be neatly summarized in a project organization chart. The project organization chart graphically shows the disciplines required to do the work and the reporting structure for the project. The chart can also show which disciplines are in-house and which are consultants. It should include the names and project titles of the key team members. It should always include the quality-assurance/quality-control manager (QA/QC manager), the project principal and the CADD manager
Technical Specifications
the technical specifications are needed to cover the qualitative items of a project. This is information that is not easily shown on the drawings, which are more quantitative in nature. The technical specs are written descriptions (as opposed to being drawn) of the quality of the various aspects of the construction project. Technical specs will generally follow a standard format. Note: specs are used to modify or clarify what is shown on the drawings.
Standard Specification
the term standard specification refers to an entire set of technical specifications that have been developed by an owner. Once developed, such specs can be used for many similar types of projects. It is common to have standard specifications in highway, bridge and utility construction. The standard specs will apply to the entire industry. They are often adopted by state agencies and are modified only to satisfy unique conditions. This saves time in spec writing and requires contractors with several projects with the sam owner to familiarize themselves with one set of specs.
When an owner terminates a contract for default, it is imperative that legitimate grounds for the termination are demonstrated or...
the termination will be ruled to be unsubstantiated, the termination will generally be considered to be for convenience. Stipulating that the contractor is entitled to payment for work performed.
Litigation
the third party could be a civil/court judge, if the normal court procedures are followed.
If one or more disciplines are doing work that was not originally planned because it was not part of the original scope of work...
the work must be stopped. It is very difficult to get paid for out-of-scope work after the fact. Performing out-of-scope work is often the cause of overruns. It is a good idea to set up separate WBS codes for out-of-scope work so it can be tracked independently of the original plan.
Rule of Thumb 14:
there is always a plan B even if no one has thought of it yet - if plan A is not working abandon it
Why shouldn't the team get too far ahead with the work?
there is always a possibility that the client can stop the work after each phase by not issuing a Notice to Proceed (NTP)
Or Approved Equal Substitution
these are open specifications in that they give all acceptable products an opportunity to be considered. The ideal form of this type of spec lists the brands and model numbers of various manufacturers followed by the words "or approved equal". This places the determination of the acceptability of a substitution directly with the architect or engineer. Note: in this case the architect is liable for any substitutions so proceed with caution! Often architects do not accept for this reason.
Occupier's Liability: Invitees
these are owed the highest duty of care by the occupier, who is responsible for those hazards known to exist, and those which could reasonably have been revealed. The category of invitees does not include social guests.
Termination for Convenience (by the owner)
these provisions, reserve the right to terminate the contract at any time, regardless of the percentage of completion of the project, if this is determined to be in the best interest of the owner. - some owners may limit termination to instance where court injunctions or national emergencies prevent the owner from completing the contract - typical termination for convenience clauses allow the contractor to recover costs incurred for work completed up to the point of termination. - it is also advisable for such clause to define costs for which the contractor can seek recovery
A good PM only holds team meeting when...
they have a purpose! He or she prepares for them in advance, decides what needs to be accomplished, what decisions need to be made. A good PM prepares an agenda for the meeting, distributes it prior to the meeting, and follow it during the meeting. A good PM starts meetings on time and ends them on time. One hour is a good length for a meeting. If a meeting drags on much longer than an hour, team members tend to get restless, drift off, and lost attention. If some team members are late for a meeting, the PM should start the meeting anyway. Before the meeting ends, a good PM summarizes what has been decided, what action items are to be taken, and who is responsible for them. A good PM documents the meeting and distributes meeting minutes shortly afterward to all attendees and others who may have an interest. A PM should document meetings and phone conversations. Keep good records and a history of decisions.
PMs must look at the project work on regular basis, and determine whether the hours spent were actually earned, if not...
they must take corrective action to the work plan as soon as possible - do not procrastinate or assume you can make up time later - only the PM knows the true status of the project - some firms have regular scheduled project reviews (once a month) - monthly reviews are a great way to catch any financial problems in their infancy so they can be fixed more easily
Acceleration
this can be defined in two ways: 1. actual acceleration 2. constructive acceleration
Breach of contract: An action for a quantum meruit
this is a claim for an amount equal to that which the plaintiff has earned in respect to the contract
PERT (Project Evaluation Review Technique)
this is a method of scheduling which establishes, in chart form, activities and operations anticipated in the project layout which can introduce a cost element into the programming. PERT has not been commonly adopted in the construction industry.
Or Equal Specification
this is essentially a modification of the proprietary specification in that it is a proprietary spec followed by the words "or equal". Or equal specs should be avoided by spec writers. The contractor could make a substitution claim that substitute is equal. Resolving conflict will be difficult.
Construction Change Directive
this is not a Change Order, but an authorization to the contractor to proceed with the work prior to the issuance of a Change Order (a way toe expedite the process if time is of the essence)
Multiple Proprietary Specifications
this may be an open or closed specification. It is a design specification as well. In a multiple proprietary specification the models of more than one manufacturer are specified. Note: three or more options is considered an open spec but it is still restrictive
Rule of Thumb 10:
this project is a "no camping" area - "campers" means those charging the job but not accomplishing anything - this is a person who is finished with their assignment but does not tell the supervisor so that additional work can be assigned and that person enjoys office life on the project's nickel - PM must know who is working and what they should be doing - monitor progress frequently
What if an owner forces a contractor to make a cardinal change?
this would be considered a breach of the contract - this is on the basis that the original contract is essentially supplanted by another contract, rather than being simply modified - the problem is that a contractor may not be able to enforce payment for performance on a cardinal change. The rationale is that since a cardinal change is not within the scope of the original contract, the change constitutes a new contract and should be awarded by competitive bidding.
Registered landscape architects shall limit their services to
those aspects of the profession for which they have expertise.
General Conditions
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.
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.
Lien, Waiver
to deny the right expressed in the lien. In the construction industry, it is a certificate issued upon completion of the work, signifying that all monies have been paid and that the right to lien against the property is removed.
Once the project is defined, the second task is...
to plan how to do the project. This requires developing a project work plan. A project work plan is a step-by-step method for accomplishing the work. A project work plan is the process of planning ahead, thinking about what the overall project objectives are, and then defining the incremental steps needed to accomplish them.
Termination
to put an end to; to make to cease; to end.
The landscape architect shall receive, review, approve, and pay consultants invoices. (true or false)
true!
Risk-Shifting Techniques
typical risk-shifting clauses include indemnification clauses, surety requirements (bid bond, performance bond, and payment bond), "no damage for delay" clauses, etc. Another similar clause is the "condition precedent to payment" clause, which requires the prime contractor to pay his subcontractor only after he has been paid by the owner.
Surveys
under AIA standard contract it is the owner's responsibility to provide all necessary descriptions of the site, and any further investigations which the architect considers appropriate. Note that it is the architects job to be assured of the accuracy of a survey.
Stopping the Work
under certain circumstances the work may be stopped, as opposed to delayed. This may be as a result of: - owner's instruction - circumstances forcing a construction suspension
Parol Evidence Rule
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.
What is the best way employ leverage to make the design team strong?
unleash it, thus empowering it to develop its own synergetic power. You can also harness the team and drive it forward but that is not the best way. - an empowered design team is stronger than the sum of its individual members
Independent Contractors
unlike agents, independent contractors are held solely accountable for their actions. It is typical for a general contractor to be an independent contractor. Similarly, subcontractors are generally also established contractually as being independent contractors. Under an independent contractor agreement, the liability for work performance lies with the independent contractor.
What if changes are made in a lump sum contract?
unlike cost-plus contracts, the cost of each change order must be negotiated (similar to separate contracts) between the owner and the contractor.
Delays of Unreasonable Duration
unreasonable delays may not be covered by no-damage-for-delay provisions. What constitutes an unreasonable delay? This question is answered by the courts. If the delay is excessive, the contractor may have legal grounds for termination or continue and simply be paid for costs incurred as a result of the delay.
Change Proposals
unresolved changes can be referred to as change proposals or modification proposals. A change order is a directive from the owner to execute the terms of a change proposal.
What about second and third lowest bidder?
unsuccessful bidders must be informed of the status of their bids, but the second and third low bidders may also be told that their bids will be considered valid until a formal construction contract has actually been signed.
Final Certificate
upon issuance of the final certificate, the contractor becomes entitled to payment for all outstanding sums. However, certain states' lien laws may make it desirable to withhold a percentage of the retainage for a period of time. If this is considered necessary, it should be stated in the bidding documents and in the owner-contractor agreement.
How does the accounting software work?
usually a firm's accounting software allows each project job number to associate additional hierarchical subordinate numbers or codes with it. These codes become the task codes that form the work breakdown structures (WBS) for the project. - a well-planned project WBS provides the work plan, accounting, feedback, and monitoring information that a project manager needs to run and manage the project
Accuracy of Bid Documents
usually assumptions are made in preparing the bid documents, and if an error is made in them, the contractor is expected to discover it prior to the bid date and allow for it in the bid. In particular, information about subsurface conditions is frequently a source of conflict. This includes information about soil borings, test piles, test pits, and so on, made by the owner for design purposes. - the owner is responsible for any errors in the bid documents but statements are often included which place direct responsibility for the information on the contractor. Usually in the specifications. - A site visit by the contractor is often required in the general conditions or instructions to bidders
Variances
variances may be granted to enable land to be used for a different purpose than the category stated in the zoning ordinance. Generally you must show that... - that exceptional circumstances exist - that strict application of the zoning ordinance would result in hardship - that the granting of the variance would not be detrimental to the public at large, or to those owning neighboring property *Other restrictions often apply to the granting of a variance
What types of losses does a performance bond protect?
virtually all types of losses.
Substantial Completion
when a project is at the state of substantial completion (i.e. when the owner can occupy or utilize the work for its intended purpose), a punch list is prepared.
Supplemental Conditions
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.
What about subcontractors? In terms of assurance of work
when considerable amounts of the work on a project are to be performed by subcontractors, the general contractor is placed in a position of risk if the subcontractor default on their work. To minimize this risk, the general contractor may require each major subcontractor to provide a surety bond.
Certificate of Substantial Completion
when the architect's inspection indicated that substantial completion has been reached, the Certificate of Substantial Completion will be issued. This is prepared by the architect and sent to the owner and contractor. This document is important and has an effect upon: - the contractor's warranty period - the architect's liability period (in some instances) - the responsibilities of the owner and the contractor in respect of site security, insurance, heat and utilities, damage to the work and maintenance The certificate will establish the date of substantial completion and indicate the time allowed to complete the outstanding work. Following receipt of the certificate, the contractor can apply for payment in the normal way. This payment should take into account the retainage agreed upon in the contract documents.
Final Completion
when the items on the punch list have been completed, the contractor should notify the architect in writing. The architect must then promptly inspect the work and, if it appears to be in conformance with the contract drawings and specifications, will issue a final certificate for payment, which is usually in the form of a letter.
Substantial Conformity
where a party has complied with the requirements of a writing to the degree that it is essentially the same as that which is required. Substantial conformity might be considered the opposite of material variance. (See MATERIAL VARIANCE)
Nonconforming Uses
where an existing use failed to conform with new zoning segregation policy, the tendency was to eliminate that use. This approach caused considerable problems, an now several areas allow nonconforming uses to continue if they were lawful and existing prior to the new zone being established. Conditions for nonconforming uses vary from one locality to the next.
Unit Cost
where appropriate, certain units, such as rooms are multiplied by an agreed pricing factor
Open Bidding
where the maximum number of bidders is considered desirable (usually for public work), an advertisement to bid will be published in trade or governmental publications or professional journals, inviting any interested contractors to participate in the process.
Cost plus a percentage of costs with a guaranteed maximum
whit this form of contract, the owner is assured that the total cost of a project will not exceed a stated amount.
Fixed Price/ Stipulated Sum Contracts
widely used in the construction industry. On party pays an acceptable sum for a specified amount of work to another party who agrees to undertake it. Often used for competitively bid work and some public bodies must use it by law.
Organization of the Technical Specifications
with the exception of the drawings, most of the contract documents will be in one binder, which is referred to as the specifications. In this binder, the technical specifications will be the last item and generally consist of more than half of the book - the organization of technical specifications, like that of drawings, follows the general order of the construction process - a format for organizing the specifications for building construction was developed by the Construction Specifications Institute (CSI)
Example of something that is professionally unethical...
withholding information when testifying as an expert witness in a court trial would be considered an ethical breach. Landscape architects can be asked to testify under oath in court trial; on matters within their area of expertise and withholding information in such situations Is illegal. Of the othar answers provided, only "allowing only a select group of contractors to bid on a private construction project could be construed as being unethical if the project were public and not private. such actions would be illegal and unethical. however, because the project Is private the owner has the ability to restrict bidding or reject bids as they see fit.
What can subcontractors do to get paid in a public project?
without a bond, subcontractors and suppliers would have to file a stop notice if they were not paid. A stop notice informs the owner that the subcontractors and suppliers have not been paid and that further payments are to be withheld by law from the contractor.
Notice of Demand
written reason for the dispute, amount involved, and remedy sought the two copies of the notice should be filed with the American Arbitration Association (AAA) within seven days of the notice, sending a copy of the answer to the originator of the proceedings. If the respondent chooses not to reply, there is nonetheless assumption that the claim is denied. - although arbitration proceedings are in progress, both parties are constrained by the contractor to meet all their contractual obligations unless otherwise agreed in writing, or unless the reason for the arbitration is the breakdown of the contract itself.
Rule of Thumb 5:
you are not Thomas Edison, so don't reinvent the wheel ( this is dumb) - stay with tried-and-proven building materials, systems, and methods - manufacturers honor warranties when their product is installed as intended - do not confuse creativity with risky experimentation
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)
Impractability, Commercial
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)
Building Code
there are several model codes, including Southern Standard Building Code (SSDSC), Uniform Building Code (UBC), Building Officials and Code Administrators (BOCA), the National Building Code (NBC), and the International Building Code (IBC) one of which is enacted in most jurisdictions. A code is not applicable in a certain jurisdiction or locality until it is enacted (legislated) into local law.
Apparent Agency
an agency relationship created by an act of the parties and deduced from proof of other facts. (See AGENCY)
Default
an omission of that which ought to be done; a failure to perform a legal duty.
Antitrust Laws
federal and state statutes to protect trade and commerce from unlawful restraints and monopolies. In the construction industry, bid rigging is considered a violation of antitrust laws. Those found guilty of bid rigging are assessed treble damages. (See BID RIGGING)
Competitive Bidding
a process whereby sealed proposals are submitted to the owner for consideration. Competitive bidding is mandatory on public works projects. A private owner may choose to use competitive bidding in securing the most economical contractor for the construc- tion of the project. However, a private owner is not legally bound to the competitive bidding process.
"Flow Down" Clause
in a contract between a subcontractor and a prime contractor, the performance of the sub-contractor will be tied to the prime contractor in the same manner as the prime's performance is tied to the owner. Some contracts between contractors and subcontractors require more of the subcontractor than is required of the prime contractor by the owner. In a "flow-down" clause, the same requirements are established as a minimum requirement for the subcontractor. A flow down clause is a contract provision by which the parties incorporate the terms of the general contract between the owner and the general contractor into the lower tier agreement. It may also be referred to as a pass-through or conduit clause. They are most common in construction contracts.
Arbitrator
one who resolves disputes between two par-ties. In a typical construction contract, the Landscape Architect is designated as an arbitrator in resolving the disputes between the owner and the contractor. Unlike formal arbitration (as established by the American Arbitration Association), an Landscape Architect acting as arbitrator in the construction process is the first level for resolving disputes, and its decision is not final and binding.
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. In California, a bid depository was found in violation of antitrust laws based on its rules for membership imposing fine, suspension, or expulsion to members not abiding by the rules.
Guaranty
a collateral agreement for performance of another undertaking; a promise to answer for payment of debt or performance of an obligation if the liable person fails to make payment or perform the obligation.
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 is final.
Claim
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.)
Change Order
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.
Certificate of Payment
a document issued by the Landscape Architect in which the Landscape Architect certifies that the contractor has adequately performed. The certificate is then presented to the owner for payment to the contractor.
Certificate of Occupancy
a document issued by the building inspector certifying that the structure con-forms to all relevant code sections and is, therefore, safe for use. An owner must obtain a certificate of occupancy before he or she can use a building. A new building cannot be considered complete until a certificate of occupancy has been issued. In some instances, a partial certificate of occupancy will be issued for portions of the building to be occupied.
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.
Injunction
a prohibitive writ issued by a court of equity to a party defendant, forbidding the latter to do some act or to permit its servants or agent to do some act which it is threatening or attempting to commit, or restraining it in the continuance thereof, such as being unjust, inequitable, or injurious to the plaintiff. In the application of the equitable doctrine of promissory estoppel, one can only stop the subcontractor from withdrawing its bid. This is an injunctive procedure preventing the subcontractor from performing an act, but it cannot assess damages against the subcontractor.
Implied Warranty
a promise established by implication or inference from the nature of the transaction or the situation or circumstances of the parties. (See WARRANTY)
Impossibility of Performance
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.
Allowance
a sum of money set aside by the owner to remove a particular portion of work from competitive bid-ding. This is typical of government-subsidized institutions with work that must be competitively bid and with projects in which certain portions of the work are proprietary and, therefore, must be removed from competitive bidding.
Bond
an instrument with a clause, with a sum fined as a penalty, binding the parties to pay the same, and with the condition that the payment of the penalty may be avoided by the performance of certain acts by some, one, or more of the parties; a certificate or evidence of a debt; a mere promise to perform or pay; a written obligation. In the construction industry, there are several types of bonds, including bid bonds, performance bonds, and payment bonds. A bid bond is a form of security to insure that the bidder will enter into the contract if the award is made to it. A performance bond insures completion of the project by the con-tractor, guaranteeing that if the contractor defaults, the bonding company will step in and finish the work. A performance bond also is applicable between a prime contractor and its subcontractor, assuring the prime that the subcontractor will perform or pay. A payment bond (sometimes known as a labor and material payment bond) provides a source of payment for the contractors' or subcontractors' labor and materialmen.
Continuos Treatment
an uninterrupted, unbroken series of activities or events. This theory is sometimes employed in the determination of statute of limitation claims regarding the commencement of the time for the claim. The statute of limitation typically starts to run upon completion of the project. However, if the contractor is required to repair defects in the work and, as a result, renders "continuous treatment" to the work, the contractor may extend the time for commencement of the statute.
Contractor
anyone who contracts to provide the labor and services necessary to complete a project. A contractor may be hired by the owner or by another contractor. When the contractor is hired directly by the owner, the contractor is classified as a prime contractor. When a contractor is hired by another contractor, the contractor is classified as a subcontractor in relation to the project. (See SUBCONTRACTOR)
Imputed Knowledge
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) In the law of agency, notice of facts brought to the attention of an agent (a person authorized by another, known as a principal, to act for him or her), within the scope of the agent's authority or employment, is usually imputed to his or her principal.
Immunity
legal status granted to a Landscape Architect in the quasi-judicial role as arbitrator in settling a dispute between the owner and the contractor. This cloak protects the Landscape Architect from liability by either party (owner or con-tractor) as a result of the decision rendered in resolving the dispute. (See IMMUNITY)
Implied Contractual Provisions
provisions which do not appear in the written embodiment of the agreement, but which exist by implication. These primarily include the implied duties to cooperate and to disclose, the implied warranty of specification suitability, and the implied covenant of good faith and fair dealing. Recovery under these implied clauses may not be subject to the limitations on recovery under the expressed provisions of the contract.
Landscape Architect
the person or organization hired by the owner to design the project. The Landscape Architect's duties consist primarily of the production of the plans and specifications from which the building will be constructed. The Landscape Architect may also preside at the bid opening, monitor the construction process to assure that the owner's interests are protected, and approve payments to the contractor. Its relationship to the owner is that of an independent contractor. All Landscape Architects must be licensed by the states in which they practice. In addition to the contract with the owner, the Landscape Architect also will enter into contracts with consultants (structural, mechanical, electrical engineers,etc.) but will not execute a contract with the contractor.
Indemnification
the process by which one party seeks to protect itself from any claims by a plaintiff who has been injured or who has suffered loss. One method of obtaining indemnification is to obtain a promise from the contractor that it will insure the owner, and in some cases the Landscape Architect, against any liens or suits by a third party not privy to the contract. The courts generally enforce contractual indemnification provisions; but, they are hesitant to permit a party to use indemnification when that party has played a major role in causing the loss. Indemnification is a contractual obligation by which one person or organization agrees to secure another against loss or damage from specified liability.
Alternate
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. (See OPTION)
Design-Build
a method of organizing a building project in which a single entity undertakes the design and erection of the structure at a set fee negotiated in advance. Unlike the conventional construction contract whereby an owner hires both an Landscape Architect and a contractor separately, in the design-build contract, the owner negotiates only one con-tract with one organization.
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 Landscape Architect is the agent to the owner in dealing with the third-party con-tractor. The Landscape Architect, in a typical contract, is the representative of the owner and not of the agent. In some contracts, the construction manager is an agent of the owner. An agency relationship is established in writing (express agency) with all three parties acknowledging the relationship. An agency relationship may also be established by acts and/or omissions of the parties (implied or apparent agency) which will bind the parties legally in the same manner as an expressed agency relationship.
Engineer
a person with a particular expertise in a limited area of building design. An engineer typically may specialize in structural, mechanical, electrical, or plumbing design. It is the limitation of this specialty, which distinguishes an engineer from the Landscape Architect, who has general responsibility for the entire project. Engineers ordinarily are hired as consultants to assist the Landscape Architect. The con-tract between the Landscape Architect and the engineer usually reflects the same terms and conditions that exist in the contract between the owner and the Landscape Architect. In some instances, such as an industrial project, the roles are reversed in that the owner hires the engineer as the prime designer, and the engineer, in turn, hires the Landscape Architect as a consultant for the building enclosure.
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 of both parties rep-resents their legal standing in relation to one another, namely as legally recognized principals of the organizations entering into the contract. The state of mind (mutuality of assent) of the individuals must be such that they are free to enter into the contract or not to enter into the contract. If coercion is present, then the contract could be rendered null and void. The meeting of the minds represents that which was intended by both parties at the time of the signing of the contract and that both parties were in harmony with each other's intentions. (See BID)
Custom
a usage or practice of the people which, by common adoption and acquiescence and by long and unvarying habit, has become compulsory and has acquired the force of a law with respect to the place or subject matter to which it relates. On the technical side of the construction industry, this term can apply to techniques and methods of construction, such as the finishing of a concrete slab with a trowel. Administratively, it is the custom of an Landscape Architect to monitor the construction phase of the work, unless the writing contains a clause deleting that requirement.
Board of Contract Appeals
an independent administration quasi-judicial board to decide all public con-tract disputes. Various states have created these boards to relieve the courts from the backlog of cases related to public contracts. Note that these boards hear only disputes related to public contracts and not to private contracts.
Equity, Court of
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.
Anticipatory Breach (Anticipatory Repudiation)
established when a contractor makes a positive and unequivocal statement that it will not or cannot substantially perform the contract or when a contractor, by any voluntary affirmative act, renders substantial performance of its contract apparently impossible. Based on these two conditions, the owner may terminate the contract immediately or upon completion of a waiting period to determine the contractor's performance according to the contract writing. In either case, the owner must establish that the con-tractor's statement is positive and unequivocal. If the owner terminates the contractor for default after a statement which is ambiguous, the owner will be held to have wrongfully defaulted the contractor.
Bid Rejection
the act of not allowing a bid to stand because of an impropriety in the process of submission or as a result of the owner's arbitrary decision to reject the bid. The owner, in a typical contract, reserves the right to reject any and all bids. However, in rejecting a bid, an owner and its Landscape Architect run the risk of interfering with the bidder's right to do work or of defamation of character on the part of the bidder.
Attachment
the act or process of taking, apprehending, or seizing person or property by virtue of a writ, summons, or other judicial order and bringing the same into the custody of the law; a remedy ancillary to an action by which the plaintiff is enabled to acquire a lien upon the property or effects of the defendant for satisfaction of judgment which the plaintiff may have obtained. (See LIEN)
Discovery
the ascertainment of that which was previously unknown, the disclosure or coming to light of what was previously hidden, the acquisition of notice or knowledge of given acts or facts as in regard to the discovery of fraud affecting the running of the statute of limitations, or the granting of a new trial for newly discovered evidence; disclosure of facts resting in the knowledge of the defendant or of deeds, writings, or other things in his custody or power.
General Contractor
the builder of the portion of the building which is considered the general portion or the Landscape Architectural portion. This terms sometimes is erroneously interchanged with the term "prime contractor." (See PRIME CONTRACTOR)
Disclaimer
the disavowal, denial, or renunciation of an interest, right, or property imputed to a person or alleged to be his; also the declaration, or the instrument, by which such disclaimer is published.
Certificate of Substantial Completion
the document issued by the Landscape Architect when the building, or a portion thereof, is complete to the degree that the owner can use the building, or a portion thereof, for its intended purpose. (See SUBSTANTIAL COMPLETION)
Damages, Delay
the economic loss suffered as a result of extended time from that of the original time stipulated in the contract writing. This differs from property damage and personal damage.
Four-Corner Rule
the face of a written instrument. That which is contained on the face of a deed, without any aid from the knowledge of the circumstances under which it is made, is said to be within its four corners. In the construction industry, the contract documents, including the drawings, specifications, general conditions, etc., form the face value of the contract. a rule holding that if a document (as a contract, deed, or will) appears on its face to be complete no outside evidence may be used to challenge it NOTE: The number of states that accept the four corners rule is in decline.
Consideration
the inducement to a contract; the cause, motive, price, or impelling influence which induces a contracting party to enter into a contract; the reason or material cause of a contract. (See CONTRACT)
Inspection Team
the inspectors assigned to a project for the purpose of carrying out the quality control plan.
Contribution
the sharing of a loss or payment among several debtors. The act of any one or several of a number of co-debtors in reimbursing one of their number which has paid the whole debt or suffered the whole liability, each to the extent of its proportionate share; The right of one who has discharged a common liability to recover from another, who is also liable, the portion which he or she ought to pay or bear. In many jurisdictions, the damages will be assessed to the parties held liable based on their contribution to the negligence.
Constitution
the written instrument agreed upon by the people of the United States, or of a particular state, as the absolute rule of action and decisions for all departments and officers of the government in respect to all the points covered by it. This instrument must control until it is changed by the authorities which established it. Any act or ordinance of any government department or office opposed to it is null and void. Several states have enacted statutes which have affected the construction industry and have been found unconstitutional or null and void in their application. One such statute is the statute of limitations which is applied for the protection of the owner and Landscape Architect but not for the contractor.
"Hold-Harmless" Clause
this heading is inter-changeably used with the heading "Indemnification Clause." (See INDEMNIFICATION)
"Differing Site Conditions" Clause ("Changed Conditions" Clause)
typically provides that in the event that the physical conditions at the site of the work vary materially from those represented or reason-able anticipated and in a manner which increases the time or cost of performance, the contractor is entitled to additional compensation or an extension of time.
Exclusivity of Contract Provisions
when a remedy for breech is included as a part of the contract, that remedy is considered exclusive of other remedies provided by law. Some courts do not recognize the exclusivity of a contract provision unless it is specifically stipulated that the remedy is exclusive. Courts typically will look at all of the facts and circumstances surrounding the agreement as a means of determining the intention of the parties and will refuse to exclude other remedies unless such a result is required by a consideration of the facts of the particular agreement.
Implied
where the intention is not manifested by an explicit and direct word but is gathered by implication or deduction from the circumstances.
Incorporated Papers
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.