Maintenance Contracts
Q. Our Board is not happy with the job being done by our current landscaper and we have been trying to work with him; so, we are getting ready to hire a new contractor for our Association. What guidelines should we follow to be sure that we are getting the most for the money we are going to spend since it is a major budget item?
A. First we will specifically address requirements for your landscaping contract. The specifications for getting bids and drafting your contract should include the following:
· Frequency of cuts – Do not use the term “as needed” it should be specific such as every 7 days from April 1 through November 30.
· Weeding – Address whether or not the beds are hand weeded, sprayed or both.
· Mulching – Address type and frequency.
· Clean up – This could mean blow off the walks or it could mean raking any loose debris – you should specify.
· Fertilizer and Weed treatment – Here you would specify the type and frequency with which both types of chemicals are applied.
There are other areas which may need to be addressed depending on the association and its landscaping needs. There are a number of sources for information including Virginia Nursery and Landscaping Association at
http://www.vnla.org/Landscape%20Specs/VNLAldsSpecs111101.pdf.
The guidelines on vendor contracts generally to be followed by your Association for every contractor, regardless of whether they are painters, landscapers or roofers are:
· The contractor must be a licensed business and, if required by the scope of the work being done, have a state contractor’s license.
· Every contract should require the contractor to provide liability insurance and workers' compensation insurance. The contractor should hold the Association harmless from claims or liability arising from the work being performed. The Board should require the contractor’s insurance agent to furnish a document detailing the amount and types of insurance. Also, the insurance should be in force for the term of the contract.
· The contractor should provide you with at least five references that you can call. Especially in the case of landscaping, be sure to also physically inspect the quality of the work.
· The contract should provide for a specific penalty for nonperformance.
· The contract must define the work in measurable terms. A description such as cut the grass is open to more interpretation than cut the lawn once a week to a height of two inches, trim the edges and remove the debris.
· If the contractor is using subcontractors, he needs to provide you proof of all the above and mechanics waivers showing the subcontractor has been paid.
Some other areas we feel need to be addressed in the contract include:
· Deadlines: The contract should include the project's starting and ending dates, as well as penalties for significantly missing either deadline. Often, the penalty for failing to finish on time is a monetary one. Depending on the project's size and expected time frame, the Board may set several deadlines during the project for the completion of certain phases. If the project involves the renovation of six buildings, for instance, the Board might set monthly deadlines for the completion of each building. Contractors sometimes insist on exception clauses for natural disasters or a materials shortage. This is a reasonable request. Still, the contract should include an absolute deadline regardless of excuses.
· Warranties: The Board should make sure it receives a written warranty for the quality of work, as well as for materials. Usually, manufacturers give an adequate materials’ warranty.
· Liability: The contractor should hold the Association harmless from claims made by other subcontractors on the job. Subcontractors can file mechanic's liens against the property if they are not paid completely.
· Cleanup: This is a frequently overlooked but important issue. The Board should make sure the contractor keeps the work site reasonably clean, removing debris and storing excess materials neatly. If the contractor fails to follow this requirement, the contract should allow the Association to charge cleanup costs.
· Performance Bond: These should be seriously considered for all large projects. Insurance companies issue these bonds, which guarantee that the work will be finished. The contract may also require a labor and material payment bond, which will insure payment to the suppliers and subcontractors. The bond will cost the contractor a premium and, as a result, could slightly raise the cost of the work.
· Attorneys Fees: Board members should require the contractor to pay attorney's fees if the Association sues the contractor for breach of the agreement or for a warranty claim.
· Price and payment: Naturally, the contract must clearly spell these out. Some contractors will expect a down payment and progress payments as work is completed.
Once last tip, do not sign the proposal form sent out by most contractors. These forms rarely contain the necessary language to protect the Association’s interests. The Board should have its attorney draft the contract, if possible, or at least review the one provided by the contractor.
Once you have selected a contractor it is important that its representatives meet with the Board so that there is a clear understanding about who will supervise the contractor. The Board should delegate authority to the manager or a committee to oversee the contractor and the contractor should be notified as to who his primary and secondary contacts are. Once this has been established, no one, including board members or home owners, should be allowed to provide direction to the contractor.
With a proper bidding process, good contract specifications and good supervision, the outcome will have a better chance of meeting the Association’s expectations.