As spring is officially here, many associations are obtaining proposals from contractors for seasonal lawn care and other maintenance services. This article is intended to highlight certain contract terms and issues that boards should consider before signing a landscaping service contract. For more information on general contract terms we recommend for effective vendor contracts click here.

Proposal vs. Contract. Typically contractors provide associations a document titled “proposal” or “estimate”. If the proposal or estimate is signed by the Board (or its designated agent) it will most likely be considered a binding contract. Once signed, the terms and conditions contained in the proposal or estimate govern and control. Unfortunately, the terms and conditions contained in proposals are often buried or tacked on at the end and can be very limiting or even harmful to associations’ interests. After a board has reviewed the contractor’s proposal and decides it wants to move forward, a separate landscaping contract should be prepared. A separate contract may not be necessary every time (e.g., the association obtains a single service proposal for $300 in flower enhancements), but in the case of general landscaping services a separate contract is recommend. General landscaping contracts provide various services typically from April to November. As a result, the contract price can be considerable and the scope of services unclear.
Never feel rushed or pressured to sign a proposal (or estimate) –discussions about the services, costs, and contract terms should always occur before signing. Get specifics and make sure the document you are signing contains the full understanding of the parties – do not rely on oral representations or promises.

Scope of Services. A general landscaping contract may include such services as mowing, pruning, edging, tree-trimming, spring and fall clean ups, general trash pick-up, weed control, plant care, and enhancements (e.g., planting flowers). Some of these services may be included in a fixed monthly fee while others are additional services charged on an hourly basis (plus materials). It is important to review the services listed in the contract carefully and watch out for any incidentals, such as trip charges or overtime for holidays and weekends. Each service should identify the type of work to be performed, a description of what is included, and the cost (e.g., is it part of a fixed monthly fee or hourly?).

The contract should also identify the community areas that will be serviced. It is helpful to designate on a community map the areas included within the scope of services; especially, for larger communities. This map can then be attached as an exhibit to the contract. It is also helpful to schedule a time to walk the community with the landscaper and identify areas the association expects to be maintained for the proposed contract price. This allows both parties to address any unique or problem areas in the community as well as confirm the scope of services.

Frequency of Services. What you contract for is what you get. General lawn care and maintenance encompass a variety of services, but as discussed above, each service should be identified in the contract. In addition to describing the type of service, the frequency of each service should be identified. For instance, a proposal may include “weekly mowing”, but fail to state how many times per week- once a week, twice, as needed? Granted, the performance and frequency of services is subject to weather conditions, but the contract should still provide the estimated times each service will be performed. The contract should also address how weather delays will be handled, including possible fee reductions if the contractor is unable to perform agreed-upon services.

Performance of Services. Landscape contractors should agree to perform the services in a workmanlike manner to the standards typical in their industry. Payment for services should not be deemed an acceptance of services or a waiver of any claims against the contractor.

Supplies, Tools, etc. While there are certain services where it is important to know what supplies or tools are being used (e.g., what flowers are being planted.) the contract does not need to itemize all landscaping supplies and tools. Rather, the contract should state that the contractor is responsible for providing all necessary supplies and tools to perform the contracted services at no additional costs to the association except as expressly stated in the contract.

Weed control. The contract should specifically identify whether weed control is part of scope of services. If included, the contract should clarify what service and products are included as part of the weed control and when the weed control service will be performed. For instance, will a chemical product be used and if so which one? Will the workers remove weeds while preforming the other services, such as mowing or pruning, or are weed services scheduled separately? Is there a height minimum before weeds will be addressed?

Who Decides? If a contract provides discretionary language relating to the performance of certain services, a provision must be included indicating who decides whether or not the service will be performed and how often. For instance, a contract may state weed removal and pruning of bushes shall be performed on an “as needed basis”. Similarly, a contract may state fertilizer will be applied “up to three times” within the season. Also, a contract may state irrigation and sprinkler heads will be inspected “regularly”. In all three scenarios is it unclear who is calling the shots as to when such services are needed or when the services are needed, and how many times such services are needed. The contract should clarify who is making these determinations and procedures for notifying the other party.

Damage. In order to avoid future headaches, the contract should expressly state the contractor is responsible for any and all damage it causes in the performance of the landscaping services. The contractor should be responsible for repairing the damage promptly and any failure to repair will be considered a material breach of the contract.

Termination. No penalties or fees! Typically when an association is terminating the contract it is doing so because it is unhappy with the services being provided. Make sure the contract allows the association to terminate the contract without cause and without penalties or fees. That being said, absent a claim for breach of contract against the contractor, the contractor should be entitled to payment up through the date of termination for services performed.

Please do not hesitate to contact an Altitude Community Law attorney at 303.432.9999 if you have any additional questions concerning your landscape contract.

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