Wheat’s warrants new plant material for one year after installation; however, annual flowers, sod, seeded lawn and transplanted materials are not warranted. (Note: The warranty will not apply to materials which Client moves after installation.) The warranty does not apply to damage to plant material caused by man, animals, acts of God (including without limitation storms), diseases for which there is no cure, and improper watering. Wheat’s does not warranty boxwoods (buxus) that may be affected with any strain of boxwood blight. If more than 40% of a plant under warranty dies, Wheat’s will replace it with a plant similar in size and variety to the replaced plant when it was originally installed. There shall be only a one-time replacement, and replacement of the plant material shall be Client’s sole remedy for a breach of the warranty. Wheat’s shall not be obligated to replace plant material under warranty unless Client has paid all sums due under this Agreement and any Change Orders in full. Client further acknowledges that Wheat’s cannot guarantee the continued viability of plants installed in bioretention/storm water facilities or plants in pots.
After Wheat’s installs any new plant material, it will be the responsibility of Client to water the material properly and in accordance with the attached watering guidelines. By signing this Agreement, Client agrees to follow those guidelines. Following the guidelines is essential if the plant material is to live and thrive.
Wheat’s warrants new irrigation installations for one year after installation on all materials and workmanship (excluding damages due to neglect or abuse).
Wheat’s warrants new hardscape installations for one year after installation for settling, cracking, failure caused by material flaws and craftsmanship. This warranty does not apply to damage caused by man, excessive load pressure from vehicles, animals, acts of God (including without limitation storms).
If Wheat’s encounters a hidden condition, e.g., buried rock, construction debris, unsuitable soil which could not have been reasonably anticipated and which will affect Wheat’s undertaking of the Work, Client shall be made aware of any potential changes and a Change Order shall be submitted to Client for approval and signature. No additional work shall be undertaken until a Change Order is signed by the parties. Any changes, alterations, additions to or omissions from any drawings and specifications which may be required by any public body, utility or inspector shall constitute a change in the work and shall be treated as a Change Order.
It is the responsibility of Client to obtain any approvals of the Work required by a Homeowners’ Association. Wheat’s shall obtain any applicable building permits and inspections, the cost of which shall be billed to the Client in addition to the Total Contract Price with no added mark-up. Wheat’s shall provide the Client with copies of receipts for permitting and expeditor fees at the time of invoicing.
Time Frame For Job Completion
Approximate Start Date: 2-4 weeks from the ratified contract date
Approximate Completion Date: Contingent upon supplemental communication from Project/Account Manager
The Client understands and agrees that the start and completion dates are approximate and subject to delays caused by circumstances and conditions beyond Wheat’s control including, but not limited to, material shortages, strikes, fire, flood, inclement weather, governmental action, acts of war or terrorism and other acts of God or delays caused by Client and/or Client’s contractors. Further, scheduling of work shall be in the sole discretion of Wheat’s and unreasonable interference with scheduling by Client and/or Client’s subcontractors shall be a breach of contract by the Client and grounds for discontinuing work by Wheat’s. Client shall grant free access to work areas for workmen and vehicles and shall allow for storage of material and debris. Client agrees to remove or protect any personal property and that Wheat’s shall not be responsible for damage to such items. Client understands and agrees that he/she shall be responsible for all materials and supplies placed in or around the project by Wheat’s.
The Client agrees to pay Wheat’s in full for the above-referenced work, the furnishing of materials and any agreed upon Change Orders on the following Payment Terms
Payable on Completion (70%):
Total Contract Price:
Work will be billed upon completion of the work. Payment will be due within (15) days of the invoice. The Client shall pay the remainder due on the Total Contract Price within 15 days of the completion of work. Client acknowledges that Wheat’s reserves the right to stop work without recourse by Client in the event any invoice or request for payment remains unpaid 15 days after the invoice date. Client understands and agrees that Wheat’s has the right to terminate this Agreement without recourse by Client if any outstanding sums remain unpaid after 30 days. Unpaid invoices shall accrue interest at the rate of 24% per annum until paid in full. The Client agrees that, in the event it tenders a check which is returned for any reason, the Client shall pay to Wheat’s returned check fee of $50.00 in additional to any other remedies available to Wheat’s under law.
Incidental Trades and Change Orders
As part of the implementation of landscape installation projects, Wheat’s may require the use of electrical, plumbing, painters or other skilled trades. When such needs arise the services will be billed separately as a positive change order in addition to the price of the parent contract. The client will be invoiced the trade cost plus a twenty percent management fee. Additional change orders to the master agreement shall not impact the payment terms of the original signed agreement.
Right to Cancel Prior to Start Date
The Client has three (3) days from the date of ratification to cancel this Agreement by notifying Wheat’s in writing by midnight of the third business day.
Cancellation During Work
Either party may cancel this Contract upon seven (7) days’ written notice to the other party at the address noted above. Notice must be given by certified mail, return receipt requested. Upon cancellation of the Contract, Client shall pay to Wheat’s within fifteen (15) days of invoice all monies due for Work performed prior to the cancellation. Client shall pay Wheat’s for all materials Wheat’s has purchased prior to the cancellation, whether or not the Work has commenced. All such materials shall be the property of Wheat’s.
Acceptance of Work
All work done by Wheat’s is deemed to have been accepted by the Client as having been done in a workmanlike manner unless, within 30 days of the completion of the work, Client gives Wheat’s written notice of any alleged problems, defects or deficiencies with the work.
This Agreement constitutes the entire agreement between the parties and specifically supersedes all prior oral and written understandings and agreements relating to this subject matter. If any of the terms and conditions herein shall be deemed unenforceable by the court of competent jurisdiction, the remaining terms shall remain in full force and effect.
If any terms and conditions of this Agreement are deemed unenforceable by a court of competent jurisdiction, the remaining terms shall remain in full force and effect. This Agreement constitute the entire Agreement between the parties and supersedes any prior verbal or written understandings and agreements.
In the event of legal proceedings between the parties, Wheat’s shall have the right to an award of its costs and not less than 30% of the outstanding principal balance due in and for its attorney fees in any dispute for non-payment of its invoices. Interest shall continue to accrue at the rate of 24% per annum until the account is paid in full. In any other legal proceedings between the parties in which Wheat’s prevails or substantially prevails, Wheat’s shall be entitled to an award of its costs and reasonable attorney fees.
This Agreement constitutes the entire agreement between the parties relating to this Agreement and specifically supersedes all prior oral and written understandings and agreements relating to this subject matter. f any of the terms and conditions herein shall be deemed unenforceable by the court of competent jurisdiction, the remaining terms shall remain in full force and effect.
The parties agree that the laws of the Commonwealth of Virginia shall govern any such proceedings, choice of law principles notwithstanding and that the state courts of Fairfax County, Virginia shall be the sole venue for any legal proceedings. Client agrees to bring no legal action or make any claim against Wheat’s, its employees, agents, successors or assigns on any basis other than breach of contract. Client waives the right to any consequential, incidental damages or punitive damages. Client agrees to indemnify and hold Wheat’s harmless for any injury to person or damage to property arising out of any alleged defect(s) in the materials and/or workmanship. Client(s) jointly and severally waive all homestead rights.
THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED HEREON OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
It is Client’s responsibility to keep turf grass free of all debris and items not readily visible which might damage Wheat’s equipment and to notify Wheat’s of all items on Client’s property which may cause damage to Wheat’s equipment and/or which may be damaged by Wheat’s equipment. Wheat’s will not be responsible for any damage which may be caused if its weedeaters or other equipment hits rocks or other items in Client’s turf grass, e.g. irrigation heads or pipes, garden hoses, lighting wires, underground dog fences. Client understands and agrees that the Client is responsible for the safe keeping and maintenance of all plant material which Wheat’s places on the Client’s property. Wheat’s assumes no responsibility for the loss, damage or destruction of any plant material once Wheat’s delivers the materials to the Client’s property.
Wheat’s will call “Miss Utility” to have public underground utilities marked before Wheat’s begins any digging. Client will be responsible for marking any other underground items, such as underground dog fences, landscape lighting, irrigation lines and drainage lines.
It is possible that all or a portion or portions of Client’s property may be subject to restrictions which prohibit mowing lawns; clearing or grading; removing trees, shrubs or other plant materials; disturbing existing vegetation in any way; or constructing improvements of any kind, including without limitation walls, retaining walls, patios, sculptures or fountains. Such restrictions may derive from a
wide variety of sources, such as:
- Resource Protection Area (RPA) established under the Chesapeake Bay Preservation Act;
- conservation easement;
- a water quality maintenance area;
- a proffer made in connection with a rezoning;
- a development condition imposed in connection with the granting of a special exception, special permit, or variance;
- a restrictive covenant; or
- Home Owners’ Association rules.
This list is not intended to be exhaustive but rather simply to give examples of possible sources of such restrictions. Notwithstanding any other provision in this Agreement, Wheat’s is not responsible for researching and determining whether any such restrictions exist with regard to Client’s property and whether the Work would violate these restrictions or for obtaining a waiver or similar approval to proceed despite the restrictions. Client is encouraged to retain counsel or other appropriate consultant to determine whether such restrictions exist since violation of such restrictions may subject Client to civil and/or criminal liability. Client shall indemnify Wheat’s and hold it harmless against any damages or claims which may result from the violation of restrictions of the sort described in this provision by Wheat’s or any subcontractor of Wheat’s. It shall be the responsibility of Client to correct any damages resulting
from a violation of such restrictions.
Wheat’s will rely upon Client to identify Client’s property lines. It shall not be Wheat’s responsibility to confirm property lines.
I/we affirmatively represent that I/we have the funds available for the work to be performed by Wheat’s. Client agrees to provide Wheat’s with a current credit report dated within 30 days of the date of this Agreement at the time of the execution of this Agreement. Wheat’s shall have no obligation to execute this Agreement if the Client fails to provide a credit report and/or if, in Wheat’s sole and absolute discretion, Wheat’s deems Client not credit worthy. I/we have read the foregoing Agreement and I/we understand and agree to these terms.