This document, together with the specific Quote, Proposal, Proposal Acceptance, or Invoice (“Contract Documents”), forms the complete agreement (“Agreement”) between the Client and Native Edge Associates Inc., doing business as Native Edge Landscapes (referred to herein as “the Contractor”). This Agreement replaces all prior discussions, representations, or agreements.

The Contractor is a Colorado-based landscape design-build and maintenance company, serving residential, commercial, and municipal clients, primarily in Boulder County and the City of Boulder.

 

1. SERVICES, RELATIONSHIP, AND SITE ACCESS
   • 1.1  Scope of Services
     The Contractor agrees to perform the landscape design, landscape maintenance, irrigation, or construction services (collectively, the “Services”) as detailed in the applicable Contract Documents.
   • 1.2 Independent Contractor Status
     The Contractor is and shall act in all respects as an independent contractor. The Contractor retains exclusive control over the manner and method of performing the Services, including the manner in which its subcontractors perform the Services. This Agreement does not authorize either Party to create any obligation on behalf of the other Party.
   • 1.3 Personnel and Subcontractors
     The Contractor will provide all necessary personnel, materials, tools, equipment, and vehicles. The Contractor may use subcontractors but remains fully responsible for their performance and compliance with this Agreement.
   • 1.4 Changes to Services (Change Orders)
     Any request by the Client to change the scope of the Services must be submitted in writing. All changes shall be documented in a signed Change Order agreed to by both Parties in writing before implementation. The Change Order will detail any necessary adjustments to the Services, Fees, or other terms.
   • 1.5 Client Site Responsibilities
     The Client is solely responsible for providing the Contractor and its subcontractors access to the service location(s) at all reasonable times and for providing a safe and suitable work environment.
     • 1.5.1 Boundaries: The Client must clearly mark the boundaries of each service location. Services performed beyond unmarked boundaries are not the liability of the Contractor.
     • 1.5.2 Concealed Conditions: The Client must provide written notice of any known concealed or subsurface conditions (e.g., utility facilities, bedrock, concrete, boulders) or environmental/geotechnical studies that may impact the Contractor’s work. The Client is solely responsible for all subsurface soil conditions unless otherwise agreed. Discovery of obstructions may require a Change Order for additional work and fees.
     • 1.5.3 Utility Notification: The Contractor will contact 811 (Utility Notification Center) prior to excavation as required by Colorado law and will rely on the markings provided. The Client warrants that no private utility lines, drain tiles, or subsurface features (e.g., septic systems, well lines, pet fencing) exist in the work area unless they have been clearly and accurately marked by the Client prior to the start of work. The Client shall bear all risk and liability for damage to any private, unmarked, or improperly marked subsurface conditions.
       • The Contractor shall exercise reasonable care to avoid damage to marked utilities and shall be responsible only for damage caused by its negligence to properly marked public utilities.
       • The Contractor is not liable for damages resulting from inaccurate or improper markings by the 811 Utility Notification Center or associated utility companies.
     • 1.5.4 Access Restriction: A $100 rescheduling fee may apply if Client restricts access during a scheduled service window. The Contractor may refuse to perform Services in an unsafe or unsuitable environment.

2. FEES, PAYMENT, AND FINANCIAL TERMS
   • 2.1 Fees and Invoicing
     The Client shall pay the Contractor all properly invoiced fees (the “Fees”) as set forth in the Contract Documents.  Services will be invoiced once a month, except Landscape Construction Contracts which will be invoiced on the 14^th and 28^th of each month.
   • 2.2 Payment Terms
     Unless otherwise agreed, the Client shall make full payment of all Fees within ten (10) days of the invoice date, in U.S. Dollars (Net 10-day terms).
     • 2.2.1 Late Payment: Any outstanding balance not paid when due will incur a delinquency charge of 1.75% per month or 21% per annum, not to exceed the maximum rate allowed by Colorado law.
     • 2.2.2 Collection Costs: The Client is responsible for all costs of collection of overdue amounts, including collection fees and reasonable attorney’s fees.
     • 2.2.3 No Withholding: The Client may not withhold payment due to any claim or dispute with the Contractor unless the claim relates to a material breach of this Agreement by the Contractor which has not been cured within 14 days of the Client providing written notice of such breach.
   • 2.3 Payment Methods and Surcharges
     The Contractor accepts cash, check, credit card, electronic funds transfers (EFT), and ACH transfers.
     • 2.3.1 In accordance with C.R.S. § 5-2-212, the Contractor may impose a processing surcharge (up to the merchant discount fee) on credit card payments to cover processing costs.
     • 2.3.2 No surcharge will be imposed on payments made by cash, check, debit card, electronic funds transfers (EFT), or ACH transfers.
   • 2.4 Suspension of Services
     The Contractor may suspend Services for non-payment upon written notice. If Services are suspended for more than thirty (30) days due to non-payment, the Contractor may terminate the Agreement.
   • 2.5 Pricing Adjustments (General)
     For all services, if the actual cost of materials, supplies, or fuel increases by 10% or more compared to the pricing at the time of the Contract Documents execution, the Contractor may adjust pricing or impose surcharges, limited to a maximum of 5% of the contract value within the contract term.
     2.6 Pricing Adjustments (Maintenance Contracts Only)
     The Contractor reserves the right to increase Fees at the start of each contract year with written notice to the Client.

3. WARRANTIES AND GUARANTEES
   • 3.1 Plant Warranty (Landscape Installation Only)
     The Contractor warrants all exterior landscape plants, trees, shrubs, perennials, and sod sold and installed by it to be sound and healthy at the time of installation and capable of living for one (1) year from the date of installation. The Contractor will replace the plant one time with a plant of the original size and variety, provided death occurs within the one-year period and the exclusions below do not apply. If the original plant is unavailable, the Contractor will provide an account credit equal to the wholesale cost or replace it with a similar plant at the Client’s direction.
   • 3.2 Hardscape Warranty (Landscape Construction Only)
     The Contractor warrants all hardscape materials and workmanship for two (2) years against defects. Additional manufacturer warranties may apply.
   • 3.3 Irrigation and Water Feature Warranty
     The Contractor warrants all new irrigation and water features for one (1) year against defects in materials and workmanship.
   • 3.4 General Warranty Exclusions
     The warranties in this Section are void and the Contractor shall not be liable for damage or failure resulting from:
     • Any lack of or improper maintenance by the Client (e.g., inadequate watering, failure to winterize, lack of weeding).
     • Applications of pesticides or fertilizer by parties other than the Contractor.
     • Losses due to Force Majeure events (defined in Section 6.2).
     • Losses due to vandalism, theft, animals, or negligence by others.
     • Installation of plants in above-ground pots or planters or in areas with restricted soil volumes.
     • Seed germination, annuals, or other plants with a life expectancy of less than one year.
     • Hardscape hairline cracks, natural variations in stone (fractures, color), staining or color variations in concrete products, or damage caused by the application of snow melt salts.
     • Freezing of un-winterized irrigation or water features (winterization is the Client’s responsibility).
     • Settling or heaving of soil due to drainage, subsurface soil conditions, foundation settling, expansive soil, and soil movement caused by freeze-thaw cycles.
     • Damage, failure, or defects arising from materials, plants, or equipment provided by the Client or a third party not contracted by the Contractor.
     • Shade Sails are excluded from all warranties due to high winds and snow loads common in the area.
     • Any claim under this warranty is immediately void if the associated invoice or the full contract value has not been paid in full by the Client.
   • 3.5 Waiver of Implied Warranties
     THE WARRANTIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WORKMANLIKE PERFORMANCE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.

4. CONTRACT TYPES AND TERMS
   • 4.1  Landscape Maintenance Contracts
     • 4.1.1 Term and Renewal: The initial term is typically one year, beginning January 1st. The Agreement automatically renews for successive one-year terms unless the Client provides written notice of non-renewal at least thirty (30) days before the end of the current term. The Contractor agrees to provide a courtesy reminder of the non-renewal deadline at least 60 days prior to the end of the current term, but failure to provide this reminder does not negate the Client’s obligation.
     • 4.1.2 Service Period: Services are performed all year, with the bulk being completed from April through November.
     • 4.1.3 Service Discretion and Delays: The Contractor will make the final determination of when Services are necessary. Services may be delayed due to inclement weather or safety concerns (e.g., untethered animals, unsanitary conditions, combative individuals).
     • 4.1.4 Additional Work (Time & Materials – T&M): Additional services, such as weed suppression (due to unusually high weed pressure) or repairs, may be performed on a Lump Sum or T&M basis.
       • T&M Approval Limits: The Contractor will perform T&M work immediately for:
         • Weed suppression/removal: up to $500.00 per month.
         • Irrigation/Repair: up to $750.00 per occurrence.
         • Approval is required for all amounts exceeding these limits.Emergency Repairs (T&M): Billed at a premium rate ($230.00 per hour, two-hour minimum) and are limited to work necessary to stabilize the system. Emergency repairs are defined as repairs required outside of normal business hours, on weekends, or on holidays.
   • 4.2 Landscape Construction Contracts (Lump Sum and T&M)
     • 4.2.1 Deposits (Installation):
       • A 10% Scheduling Deposit (of project estimate/value) is due upon contract acceptance (See Section 4.3 for terms regarding this deposit as liquidated damages.)
       • An additional 40% Construction Start Deposit is due when construction begins.
       • Deposits are applied to subsequent invoices.
     • 4.2.2 T&M Billing Details:
       • Labor & Equipment: Billed at the hourly rate as stated in the Contract. This rate includes labor, vehicle use, and smaller construction equipment. Smaller construction equipment includes equipment up to the size of a mini-excavator or skid steer.
       • Materials and Large Equipment Rental: Billed at cost plus a 25%
       • Invoices are issued every other week.
   • 4.3 Termination
     • 4.3.1 Termination by the Contractor: The Contractor may terminate the Agreement at any time for cause (including, but not limited to, non-payment, unsafe conditions, or lack of client cooperation) upon written notice. The Contractor reserves the right to terminate without cause upon thirty (30) days written notice. The Client will be invoiced on a prorate basis for services provided but not yet billed.
     • 4.3.2 Termination for Client Default: The Contractor may terminate the Agreement if the Client defaults on payments or other obligations (including failure to provide a suitable work environment). All completed services are immediately due and payable.
     • 4.3.3 Client Early Termination (Maintenance): The Client cannot unilaterally cancel or defer obligations. If the Client terminates a maintenance contract:
       • With thirty (30) days’ written notice: a $250 Early Termination Fee
       • Without thirty (30) days’ written notice: the Early Termination Fee is 10% of the remaining contract value.
     • 4.3.4 Construction Scheduling Deposit – Liquidated Damages: The 10% Scheduling Deposit required for all Landscape Construction Contracts is specifically intended to compensate the Contractor for unrecoverable damages incurred immediately upon contract acceptance, including, but not limited to, administrative effort, project planning, scheduling commitments, and pre-mobilization overhead.The Parties expressly agree that:
       • Actual damages in the event the Client cancels a Landscape Construction Contract prior to the Construction Start Deposit becoming due are difficult or impossible to estimate accurately.
       • The 10% Scheduling Deposit is a reasonable pre-estimate of such damages and shall be treated as liquidated damages and non-refundable.
       • The deposit amount is intended to compensate the Contractor’s loss and is not a penalty.
     • 4.3.5 Early Termination Fees (All Contracts): The Parties acknowledge that Early Termination Fees constitute reasonable liquidated damages, not a penalty, to compensate the Contractor for administrative work, schedule changes, and unrecoverable costs.
5. LIABILITY, INDEMNIFICATION, AND INSURANCE
   • 5.1 Limitation of Liability
     
     EXCEPT FOR CLAIMS ARISING FROM THE CONTRACTOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE CONTRACTOR IS NOT LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES (E.G., DELAY, LOST REVENUE, LOST PROFITS, LOSS OF GOODWILL), INCLUDING THOSE ARISING FROM THE NEGLIGENCE OF THE CONTRACTOR, REGARDLESS OF FORESEEABILITY.
     • 5.1.1 Aggregate Recovery Limit: The Client’s total recovery from the Contractor for any claim (other than those excluded by law) shall not exceed the total Fees paid over the prior 12-month period by the Client for the specific Services giving rise to the claim.  For Landscape Construction Contracts, the limit shall be the total Fees paid for the specific Project giving rise to the claim, or the Fees paid over the prior 12-month period, whichever is greater.
     • 5.1.2 Excluded Liabilities: The Contractor is not liable for damages or losses arising from:
       • Natural causes or Force Majeure events.
       • Unseen, unknown, or concealed conditions on the property not caused by the Contractor.
       • Services performed according to manufacturer directions or industry standards.
       • The Client’s failure to fulfill their obligations (e.g., proper maintenance).
     • 5.1.3 Damage Notification: The Client must notify the Contractor within three (3) business days of any damage allegedly resulting from the Services, or the claim is waived.
   • 5.2 Client Indemnification
     The Client agrees to indemnify and hold the Contractor harmless to the extent the losses, damages, or claims arise from:
     • • Limitations or restrictions the Client imposes on Services.
       • Site conditions (excluding those directly caused by the Contractor).
       • The Client’s own negligence, willful misconduct, or breach of this Agreement.
   • 5.3 Insurance
     The Contractor agrees to maintain all necessary forms of insurance, including coverage for Workman’s Compensation, bodily injury and death, and property damage, with limits not less than those specified by law.

6. GENERAL PROVISIONS
   • 6.1 Governing Law and Dispute Resolution
     This Agreement is governed by the laws of the State of Colorado. Any disputes arising under this Agreement shall be subject to mandatory non-binding mediation.Condition Precedent to Litigation: The Parties agree that, as a condition precedent to filing any lawsuit or initiating any formal legal action (other than seeking injunctive relief), the Parties must first attempt to resolve the dispute through non-binding mediation in Boulder County, Colorado. The mediation shall be conducted by a mutually agreed-upon mediator. The costs of mediation shall be shared equally by the Parties.If the dispute remains unresolved following mediation, either Party may then pursue remedies exclusively in the courts of Boulder County, Colorado. If either Party retains attorneys to enforce or defend any dispute under this Agreement, the prevailing party shall be entitled to recover their reasonable costs, including reasonable attorney’s fees.
   • 6.2 Force Majeure
     “Force Majeure” means any act, event, or condition beyond a Party’s reasonable control that significantly affects their ability to perform obligations and which they could not avoid (e.g., acts of God, epidemics, natural disasters, war, strikes, government actions, new laws).
     • Neither Party will be liable for damages if performance is delayed or prevented due to a Force Majeure event.
     • The affected Party must promptly notify the other and use commercially reasonable efforts to mitigate damages.
     • If a delay due to Force Majeure lasts more than sixty (60) days, the non-affected Party may terminate the Agreement.
   • 6.3 Entire Agreement and Survival
     This Agreement, including all Contract Documents, constitutes the entire agreement between the Parties. No waiver or modification of any provision is effective unless in writing and signed by both Parties. All terms and provisions that should logically continue after the Agreement ends (e.g., indemnification, limitation of liability) shall survive termination.
   • 6.4 Miscellaneous
     
     • 6.4.1 Assignment: The Client may not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Contractor.
     • 6.4.2 Severability: If any part of this Agreement is found to be invalid, it will not affect the enforceability of the remainder of the Agreement.
     • 6.4.3 Execution: The Agreement can be signed in multiple counterparts, and electronic signatures (like PDFs) are considered legally binding.
     • 6.4.4 Proposal Expiration: The specific Proposal or Quote is valid for 30 days from its date of issuance.
     • 6.4.5 Photos: The Client allows the Contractor to take photos of work (completed and in progress) for marketing and publication, provided the Client’s identity or property address is not revealed without written consent.