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22-9-214. Unenforceable provisions in public construction agreements and public construction contracts — Definitions.
Arkansas Code — all titles (historical 2020) · legal_authorities
22-9-214. Unenforceable provisions in public construction agreements and public construction contracts — Definitions.
(a) As used in this section:
(1) “Construction” means any of the following services, functions, or combination of the following services or functions to construct a building, building site, or structure, or to construct a permanent improvement to a building, building site, or structure, including site work:
(A) Alteration;
(B) Design;
(C) Erection;
(D) Reconditioning;
(E) Renovation;
(F) Repair; or
(G) Replacement;
(2)(A) “Public construction agreement” means an agreement in which one (1) party is a public entity and the agreement is the bargain of the parties in fact as found in their language or inferred from other circumstances, including course of performance, course of dealing, or usage of trade as provided in § 4-1-303.
(B) “Public construction agreement” does not include an insurance contract, a construction bond, or a contract to defend a party against liability; and
(3)(A) “Public construction contract” means a contract in which one (1) party is a public entity and the contract is the total legal obligation that results from the parties' agreement under this section and as supplemented by any other applicable law.
(B) “Public construction contract” does not include an insurance contract, a construction bond, or a contract to defend a party against liability.
(b) A provision in a public construction agreement or public construction contract is void and unenforceable as against public policy if it requires an entity or that entity's insurer to indemnify, insure, defend, or hold harmless another entity against liability for damage arising out of the death of or bodily injury to a person or persons or damage to property,
Source: Arkansas Code — historical release 78 (November 6, 2020) · 22-9-214
Stored review status: Historical 2020-11-06 source release; later amendments not reconciled; machine-extracted, not independently legally reviewed; source heading status: text_in_historical_source. A text match is a research starting point; applicability is not established.
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Stable record: arkansas_code:legal_authorities:22-9-214
Source file: gov.ar.code.title.22.odt
Pages: Not recorded – Not recorded
Passage SHA-256: a1cc85f77c1f1a2921724d09ac9f7c623b92fd1b2f4838a1299a19137023a023
Source location: content.xml paragraph 6882
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22-9-214. Unenforceable provisions in public construction agreements and public construction contracts — Definitions.
(a) As used in this section:
(1) “Construction” means any of the following services, functions, or combination of the following services or functions to construct a building, building site, or structure, or to construct a permanent improvement to a building, building site, or structure, including site work:
(A) Alteration;
(B) Design;
(C) Erection;
(D) Reconditioning;
(E) Renovation;
(F) Repair; or
(G) Replacement;
(2)(A) “Public construction agreement” means an agreement in which one (1) party is a public entity and the agreement is the bargain of the parties in fact as found in their language or inferred from other circumstances, including course of performance, course of dealing, or usage of trade as provided in § 4-1-303.
(B) “Public construction agreement” does not include an insurance contract, a construction bond, or a contract to defend a party against liability; and
(3)(A) “Public construction contract” means a contract in which one (1) party is a public entity and the contract is the total legal obligation that results from the parties' agreement under this section and as supplemented by any other applicable law.
(B) “Public construction contract” does not include an insurance contract, a construction bond, or a contract to defend a party against liability.
(b) A provision in a public construction agreement or public construction contract is void and unenforceable as against public policy if it requires an entity or that entity's insurer to indemnify, insure, defend, or hold harmless another entity against liability for damage arising out of the death of or bodily injury to a person or persons or damage to property, which arises out of negligence or fault of the indemnitee, its agents, representatives, subcontractors, or suppliers.
(c) A provision, covenant, clause, or understanding in a public construction agreement or public construction contract that conflicts with the provisions and intent of this section or attempts to circumvent this section by making the public construction agreement or public construction contract subject to the laws of another state, or that requires any litigation, arbitration, or other dispute resolution proceeding arising from the construction agreement or construction contract to be conducted in another state, is void and unenforceable as against public policy.
(d) A clause described under subsections (b) and (c) of this section is severable from the public construction agreement or public construction contract and shall not cause the entire public construction agreement or public construction contract to become unenforceable.
(e) The provisions of this section do not affect any provision in a public construction contract or public construction agreement that requires an entity or that entity's insurer to indemnify another entity against liability for damage arising out of the death of or bodily injury to persons or damage to property, but such indemnification shall not exceed any amounts that are greater than that represented by the degree or percentage of negligence or fault attributable to the indemnitors, its agents, representatives, subcontractors, or suppliers.
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Arkansas Code — all titles (historical 2020) · legal_authorities
4-1-303. Course of performance — Course of dealing — Usage of trade.
(a) A “course of performance” is a sequence of conduct between the parties to a particular transaction that exists if:
(1) the agreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and
(2) the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it without objection.
(b) A “course of dealing” is a sequence of conduct concerning previous transactions between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.
(c) A “usage of trade” is any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage must be proved as facts. If it is established that such a usage is embodied in a trade code or similar record, the interpretation of the record is a question of law.
(d) A course of performance or course of dealing between the parties or usage of trade in the vocation or trade in which they are engaged or of which they are or should be aware is relevant in ascertaining the meaning of the parties' agreement, may give particular meaning to specific terms of the agreement, and may supplement or qualify the terms of the agreement. A usage of trade applicable in the place in which part of the performance under the agreement is to occur may be so utilized as to that part of the performance.
(e) Except as otherwise provided in subsection (f), the express terms of an agr
Source: Arkansas Code — historical release 78 (November 6, 2020) · 4-1-303
Stored review status: Historical 2020-11-06 source release; later amendments not reconciled; machine-extracted, not independently legally reviewed; source heading status: text_in_historical_source. The source passage cites 4-1-303. This identifies an authority to review, not proof of applicability.