What is a Landscape Design Contract?
The landscape design agreement is a contract between you and your landscape designer or architect. The purpose of this agreement is to define the work and services and have both parties agree to the terms before the work begins on the landscaping project. Naturally this agreement should be in a written form for both parties to review. These are agreements to be entered into before work begins , not after. The agreement has sections that outline the scope of the work to be performed, the costs and the method of payment, and the time of performance. Paying attention to the details in these agreements is essential to a successful project. Of course, anything else that might be relevant can be added. It is best to address all contingencies early, before they become problems. This will save time, money and frustration.
Key Elements of a Landscape Design Contract
The foundation of any successful landscaping project is the landscape design agreement. It is the document that lays out the scope of the work to be performed, the interplay between the parties involved in the project and the schedule for performance. It also creates a means of ensuring that there are sufficient funds available to both parties to complete the project. The landscape design agreement should contain at least the following essential elements:
The Scope of Work
The landscape design agreement should contain the scope of the work (e.g., demolition, site preparation grading, installation of various materials and plantings, etc.) in sufficient detail to insure that no material aspect of the work is omitted. The specification should contain a list of the categories of items that are planned (such as trees, shrubs, perennials, plants in flats, annuals, sod, mulch, earth materials, raw and manufactured stone, boulders, etc.), the specifications and quantity of each item intended to be installed, including the sizes of any individual components and their intended locations. A sample of such a specification might include:
"6"- 3" to 4" caliper green/jujube or Dawn redwood trees (equal green/jujube), planted 10′ on center. 5"- Alaska cedar (or sub-alaskan cedar), planted 8′ on center. 18"-29" white pines, planted 5′ on center. 2"-3 ½" caliper red oak, planted 10′ on center. Planting depth of deciduous tree shall be approximately 6" above the highest level of backfill around the trunk butt end of the root ball. Landscaping fabric to be installed prior to backfilling, wrapping around the trunk of the tree and stapled into the ground with 6" staples. 3" to 4" caliper evergreen trees with 10" planting depth. Deer deterrent spray shall be applied to all trees less than 3" caliper height after the installation and in accordance with the manufacturer’s recommendations, and shall have a pleasant odor."
The Agreement should also contain a provision mandating the Developer/Client to make payments in accordance with the requirements set forth in the Agreement. Such provisions would ordinarily require a deposit which would be refundable only if the Landscape Architect/Contractor defaults thereunder. There should also be provisions for payments upon completion of materials and products ordered by the Developer/Client with respect to the Landscape Architect/Contractor’s proposed plan as well as upon completion of the Agreement. To the extent that the Landscape Architect/Contractor intends to use deposits for ordering such goods, and Developer/Client is agreeable to such an arrangement, it should be clearly set forth in the Agreement.
Modifying Your Landscape Design Contract
When it comes to landscape design agreements, the specifics of how the agreement is customized can vary from project to project. For example, with a large, complicated project that will take many months to complete, the landscape designer may choose to create one agreement covering all aspects of the design work to be completed. For a smaller scale project, the landscape designer may choose to create one agreement to cover the initial planning and design work and a separate agreement for implementing the design. Likewise, there may be aspects of certain projects, such as when the landscape designer will not be the contractor on the project, that call for more details or an additional development agreement to ensure the agreement will cover the scope of work required. Often there are multiple drafts of a landscape design agreement before both parties feel satisfied it will provide the needed protection.
Landscape Design Contract Mistakes
Common errors when drafting or reviewing landscape design agreements include:
(a) having too many vague and/or undefined sections;
(b) having an incomplete definition section;
(c) having too few terms in Attachment A;
(d) failing to set out all work to be done in Attachment A; and
(e) not clearly establishing the deadline for completion of the work.
Some of the common problems that relate to all of the items above are where the items in the agreement do not match the parties’ expectations:
(a) an item or items that are supposed to be work of the designer are in Attachment A and are shown as work of the installer;
(b) an item or items that are supposed to be work of the installer are in Attachment A and are shown as work of the designer;
(c) an item or items that are supposed to be work of the designer are not in Attachment A and are shown as work of the installer;
(d) an item or items that are supposed to be work of the installer are not in Attachment A and are shown as work of the designer;
(e) the work product does not match the scope of the work described in the contract;
(f) it is not clear if the work being done is to be paid for by the designer or installer; and
(g) the deadlines, payment schedule and progress payment schedule do not match between the contract and Attachment B.
Some of the common problems that relate to either the contract or Attachment B are the terms of the contract do not accurately describe the designer and/or the installer, and/or are titled/have provided for an incorrect scope of work. This is typically caused by having the designer/installer/purchaser create the entire contract and Attachment A, and then the landscape architect having almost no input.
Landscaping Design Contract Legalities
Government regulations affect virtually every aspect of landscape design and the regulations can vary by state and locality. The landscape designer should ensure his or her work complies with applicable building codes, zoning ordinances, the Americans with Disabilities Act, and local permitting regulations. Two important licenses for landscape designers are the landscape architect’s license (which some states require landscape designers to obtain) and a nursery dealer license (which some states require to be a nursery dealer to sell plants that you grow or propagate yourself). Other licenses that may apply individually to their areas of specialty (i.e. floating landscape designers may need a subcontractor’s license and a landscape-irrigation contractor may need a license that may include an exam is required and entails continuing education).
Additionally, intellectual property rights may be implicated. For example, copyrights are commonly implicated by landscape designers’ plans, plant designs, and certain other documents. Similarly, a trademark may be implicated by a design that incorporates a company’s name or logo. Some landscape designers may also patent a new type of plant.
Landscaping disputes arise before, during, and even after landscaping work . Common issues that arise in landscaping contracts include (1) timing: work is performed at the wrong time or in the wrong order; (2) quality: work is performed with substandard materials and/or workmanship; (3) scope: work is altered in scope; (4) damage: property is damaged during the work; and (5) defects occur: resulting in malfunctioning plant systems and/or plants that die. To minimize the potential for future dispute, a well-drafted landscaping contract will address as many possible issues and potential hiccups in the work process as possible. Standardizing the contract as much as possible is also helpful, but a standard contract should comply with and be tailored to the local laws and standards in the area worked.
Dispute resolution provisions in contracts can save both time and money (i.e. attorney fees, mediator or arbitrator fees, travel costs, etc.) over the lifecycle of the contract. A contract may require mediation, arbitration, or litigation. Mediation is non-binding, meaning if any party is not satisfied with the outcome, and arbitration is binding. Additionally, depending on the contract’s venue, a party may be able to remove the action from state court to federal court.
There are many other legal considerations that may affect the landscaping designer. An attorney with experience drafting and reviewing contracts for landscaping designers should be consulted when necessary.
Negotiating a Landscaping Design Contract
Successful landscaping design relies not only on clear and effective design but also on a contract that not only details the services to be provided by the landscape design firm but also protects the rights of both parties to the transaction. The following tips can assist you in successfully negotiating an agreement for landscaping design services.
Ask Questions: Make sure that you ask questions about the contract until you have a full understanding of what your rights and obligations are under the agreement that you are being asked to sign. Ask about any terms in the agreement that are unclear. Clarify all terms before you sign the contract.
Raise Concerns: If there are any concerns or changes that you have regarding the agreement, do not be afraid to bring them up with the landscape design firm. There is no reason that you should sign a contract without feeling that you have raised any necessary objections.
Clarify Budgets and Payment Schedules: It is essential that you determine the budget for the landscaping design project and when payment will be expected to be made for services rendered. In addition, if other construction or landscaping work will be done on property within the timeframe of the landscaping design project, you should clarify the relationship between that work and the work to get done by the landscape design firm.
Ask About Timeframes: Any landscaping design firm will have a time that it will be able to complete the work that is being done. You should discuss when the work will be finished and whether or not you will have the option of extending the timeframe for completion. You will want as much flexibility as possible within the timeframe of completion.
Know Your Rights to Compensation for Damages: Any good landscaping design firm will provide you with a warranty that promises that they will repair any damages caused to your property during the course of the work. Make sure that the landscaping design company provides this warranty and that it clearly states the damage that is not compensated by the landscaping design company.
When a Landscaping Designer Can Enforce a Landscaping Contract
If an agreement is to be enforced, the landscape designer must adhere to the specifications and scope of work as set forth in the contract. Depending on the details of the agreement, the landscape designer will be responsible for completing the work outlined in the contract within a specific timeframe. As a result, the landscape designer will need to manage their time accordingly to ensure that their obligations are fulfilled. Failure to do so can lead to a breach of contract.
Oral contracts or incomplete contracts that don’t address job details can lead to a dispute between the landscape designer and property owner regarding responsibility for a project . If there are any gaps or disagreements as to the contract’s specifications or terms, the landscape designer should be proactive with the client to prevent a conflict. Giving comprehensive information and materials to the client regarding the project can help ensure that everyone is on the same page.
Landscape designers are obligated to comply with the terms of a contract, and any amendments to that contract. Along with meeting the written scope of work in a timely manner, the landscape designer should also address any changes or updates to the project specifications with the client as well.