1.) Parties: This Agreement is made by and between Apex Arbor Care LLC, referred to herein as “Contractor,” and the property owner(s) or property owner(s)’s agent(s), collectively referred to herein as “Owner.” Contractor and Owner shall be referred to herein as the “Parties.”
2.) Entire Agreement: This Agreement represents the entire and integrated agreement between the Parties and supersedes prior negotiations, representations or agreement, either written or oral. The Agreement may be amended or modified only by a written modification signed by both Parties. No presumption shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular Party or that Party’s counsel.
3.) Contract Documents: This Agreement consists of the Estimate, these Terms and Conditions, and any written modifications, signed by both Parties, issued after execution of this Agreement.
4.) Contract Sum: The Contract Sum is set forth in the Estimate, is the total amount payable by the Owner to the Contractor for the performance of the Work, as defined herein and includes all services necessary for the completion of the Work.
5.) Scope of Work: Contractor will complete the work described in the “Description of Work” section (the “Work”). No additional work or services is implied or intended.
- I. Deadwood Trimming: The removal of deadwood from a tree does not include the removal of very small branches or twigs.
- II. Stump Grinding: Stump grinding converts a stump into mulch, and is an optional service which is not included in the Work unless specified in the Agreement. Stump Grinding is scheduled 1-2 days after job completion. The Work does not include removing or spreading these resulting piles of mulch unless specified in the Agreement. Contractor will grind stumps to 6 inches below ground and approximately 6 inches out from the point where the trunk meets the ground level unless otherwise specified in the Agreement. Some roots will remain because they will be further than 6 inches below the ground or more than 6 inches out from the main stump. The scope of Work does not include re-grading the area around a stump unless specified in the Agreement.
- III. Crown Reduction: Crown reduction is a procedure which serves to lessen the risk of entire tree or stem failure by removing branches to lighten the tree and reduce the load on the tree’s support structure. Contractor shall perform crown reductions according to International Society of Arboriculture (ISA) standards makes no assurances and provides no warranty as to the future safety of a tree.
- IV. Cabling: The cabling of trees is intended to reduce the possibility that the tree fails at a weak union or uproots. Contractor provides no warranty as to the future performance of the cable and expressly disclaims any liability for property damage or personal injury which results from the failure of a cable or a cabled tree.
- V. Tree Removal: Tree removal is the removal of an entire tree from the property, including the operations necessary to safely lower tree sections to the ground, the use of cranes, track loaders, heavy trucks, and any other equipment deemed necessary by Contractor to effect the removal and disposal of the tree. The height of the remaining stump will be approximately the same or less than half of the stump’s diameter as measured by the where the roots meet the soil.
- VI. Inspection and Marking: Inspection and marking services consist of a visual inspection only from ground level of the trees located on the Owner’s property or portion thereof as represented by the Owner, and of the marking and identification of all such trees that from such eye level inspection (i) appear to be dead, (ii) have visual signs of disease and/or existing damage and are likely to be dead within the next twelve months, and/or (iii) are likely to be hazardous to the safety of persons on or around the property as a result of apparent existing disease or damage. Contractor is not responsible for and expressly disclaims that its inspection and marking services, if any, will include and/or that it will be responsible or liable for, any of the following: (a) any trees that have internal rotting, any disease that is internal (under the bark or part of the inner vascular portion of a tree), or any external disease that is not apparent to the naked eye from ground level; (b) any damage(s) or injuries or losses arising out of or from any storms or winds; (c) inspecting the depth or stability of any root systems or any damages, injuries or losses arising out of or from any trees that are felled or lost as a result, in whole or in part, of a diseased, weak or structurally insufficient root system; or, (d) identifying, marking or removing any or all dead, dying or damaged limbs on any trees.
- VII. Equipment: In order to complete the Work, Contractor will use its equipment and manpower on the Owner’s property and adjacent right-of-ways. Unless otherwise specified in the Agreement, the Owner also agrees to allow Contractor the use of non- public access, such as driveways, turfed areas, and parking areas for the placement and use of Contractor’s equipment. Owner agrees to defend and hold Contractor harmless for any damage that may result from the use of the Contractor’s equipment or manpower in the performance of the Work, including but not limited to: cracking, scraping or buckling of pavement surface, curbing, or gutters on any right-of-way, street, alley, sidewalk, driveway, parking area or path resulting from the placement of equipment necessary to complete the Work, damage to turf, ivy, ground cover, shrubs or other vegetation.
- VIII. Roof and Gutters: In the event that damage to gutters occur during a manual tree service without use of the crane, Contractor is held harmless if the tree is located within 5 feet of a structure, gutter or roof. In addition, if noticeable dead limbs are present within 5 feet of a structure, gutter, or roof contractor will not be held liable for damage as the fragility of the limb(s) is uncontrollable. Contractor will take all necessary and controllable precautions to avoid such damage, but will not be held liable should such damage occur.
- IX. Services of Subcontractors: Owner agrees to allow any and all Subcontractors hired by Contractor, including, but not limited to, crane rental companies and stump grinding companies, onto Owner’s property to perform the Work pursuant to the Contract.
- X. Water Damage: During the performance of the Work and when reasonably necessary, Contractor shall place a tarp on the roof in an effort to slow the entry of water into the property; however, Contractor does not guarantee or warrant that no water will enter the property. Therefore, Contractor shall have no liability for water damage that may occur to the property.
- XI. Roof Access: Owner agrees to allow Contractor roof access for the completion of the work.
- XII. Underground Utilities: During the course of the work Contractor will need to move about the property, any underground utilities may be damaged by the weight of the equipment. It is the responsibility of the Owner to make the Contractor aware of any utilities. Any unidentified utilities that are damaged will not be the responsibility of the Contractor. If an identified utility is damaged it will be repaired, but not replaced.
6.) Owner’s Representation and Warranties: Owner hereby represents and warrants to Contractor that Owner is either the sole owner of the property on which the Work is to be performed or has the express consent and authorization of such owner to have all of the Work performed, and that by performing the Work, Contractor will not be trespassing on the property of, or infringing on the rights of, any other person or entity. Owner agrees to and shall indemnify and hold harmless Contractor from and against all claims, causes of action, demands, damages, injuries, costs and expenses, including court costs and attorneys’ fees incurred by Contractor, arising out of or from or related to (i) any breach of any of Owner’s representations or warranties contained herein or (ii) any claims or causes of action asserted by a third party against Contractor that Contractor did not have the right or consent of such third party to perform any of the Work.
7.) Scheduling: Contractor will work with Owner to schedule a mutually acceptable date(s) for the performance of the Work. Once a date for the Work has been scheduled, Contractor must be notified of any requests for rescheduling or cancellation at least forty-eight (48) business hours in advance of scheduled appointments. Contractor reserves the right to delay performance of the Work; such right includes rescheduling for inclement weather and the expectation of inclement weather. Contractor will endeavor to give the Owner reasonable notice of delays and to reschedule the Work at a time mutually agreeable to the Parties. Contractor is not responsible for any monetary loss resulting from delays to the Work. The Owner should avoid parking vehicles in the vicinity of the Work. If any vehicle must be towed or otherwise removed to allow the Work to be completed, Contractor reserves the right to add such costs to the Contract Sum even if not agreed to in advance. Further, the Owner and all others under his/her control specifically assume all risk of personal injury if he/she chooses to stay onsite during the performance of the Work.
8.) Clean Up: Contractor will make reasonable efforts to clean up debris resulting from the Work. The Work does not include clean-up or removal of pre-existing debris unless specified in the Agreement. Contractor reserves the right to use its choice of equipment and methods standard to the industry to perform the Work. During the performance of the Work, dust and other debris will be blown off of hard surfaces into natural areas such as turf, mulched areas, etc. The Owner acknowledges that settling of debris on areas adjacent to the Work is a necessary and unavoidable consequence of the performance of the Work, and agrees to hold Contractor harmless for same.
9.) Payment: Payment is due upon receipt. Any payments due hereunder and unpaid after shall bear interest from the date payment is due at the rate of 1 ½ percent per month. In the event of non-payment by Owner, a “Mechanic’s Lien” will be placed on the property for the amount of the unpaid balance plus any applicable interest. Contractor will be entitled to interest and attorney’s fees and costs incurred in any litigation, mediation or arbitration necessitated by non-payment by the Owner.
10.) Limitation of Liability/Warranty: Contractor will perform the Work in a diligent and careful manner consistent with industry standards. Contractor will make reasonable effort to perform the work in a manner that does not result in property or other damage. The performance of tree removal work, however, is difficult and inherently dangerous, and damage can result even if the Work is performed with care and caution. Contractor shall be and remain liable for damages resulting from Contractor negligence in the performance of the Work, including damage to owners property, but excluding consequential damage such as lost profits, lost income, and lost productivity.
11.) Rescheduling or Cancellation of the Work: Either Contractor or the Owner may cancel the performance of the Work at any time before the Work begins, except that any cancellation on the part of the Owner must be submitted in writing to Contractor at least forty eight (48) business hours in advance of the scheduled performance of the Work. Should the Owner cancel any Work within forty eight (48) business hours or less of the scheduled commencement of the Work, the Owner shall pay a cancellation fee of five hundred dollars ($500.00) or ten percent (10.000%) of the total Contract Sum, whichever is greater, in addition to any services performed or costs borne related to preparation for the work. This money will be due immediately upon the Owner cancelling the work. For jobs that are rescheduled within this 48-hour time frame at the Owner’s request, an additional fee of $500.00 for each “crew/day” that is rescheduled will be added to the final invoice after the work is completed.
12.) Property Restoration: In the event that a damage must be repaired under this contract, the Contractor shall be liable to restore the property to its pre-existing condition only. The contractor shall exercise its discretion with regard to the method for returning the property to a pre-existing condition. Apex Arborcare LLC reserves the right to self-perform repair services or utilize its subcontractors. Any damage must be reported to Contractor in writing within three (48 hours) business days of the occurrence of the damage or Contractor’s liability shall be deemed waived.
13.) Dispute Resolution: Any claim, objection or dispute initiated by the Owner must be delivered to Contractor in writing within three (3) business days of the occurrence of the event giving rise to the claim, objection or dispute or shall be deemed waived. In the event of any dispute, claim or controversy among the parties arising out of or relating to this Agreement, the Parties shall endeavor to resolve their claims by mediation. Any claims not resolved in mediation shall be subject to binding arbitration in Orlando, FL, which, unless the Parties agree otherwise, shall be in accordance with the Commercial Rules of the American Arbitration Association then in effect. Any award entered into by the arbitrator shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, each party’s attorneys’ fees and costs), shall be borne by the unsuccessful party.
14.) Disclaimer: In no event shall Contractor be liable for any special, incidental, consequential or indirect damages (including any loss of profit or revenue) or exemplary or punitive damages arising out of or from the use, performance or furnishing of any of the Work, even if Owner or others shall have been advised of the possibility of such potential loss or damage.
15.) Expert Witness / Consultant Fees. Apex Arbor Care LLC agrees to perform consulting and/or expert witness services as requested by the Owner or the Owner’s representative(s) and in connection with such services agrees to perform such investigation, document review, studies and research, or courtroom attendance and testimony so as to be able to consult with Client and/or advise Client as an expert witness with respect to Consultant’s findings. The Owner agrees to pay Apex Arbor Care LLC at a rate of $150 per hour for consulting services and to reimburse all travel expenses, equipment and testing expenses, laboratory fees, and any other costs incurred by Apex Arbor Care LLC should the Owner or the Owner’s representative(s) cause a Apex Arbor Care LLC employee to perform consulting work, whether by subpoena or other written request to appear and perform such services. The Owner further agrees to pay (at the same rate of $150 per hour) for all time associated with complying with the Owner’s request for information, including travel time or time spent waiting in a courtroom, and that all time shall be calculated in half-hour increments.
16.) Governing Law: This Contract is governed by the laws of the State of Georgia, without regard to its conflicts of laws provisions.
17.) Personal Guarantee: The signatory to the Agreement agrees to pay and personally guarantee any outstanding balance of the Owner, regardless of the existence of or Contractor’s ability to file a claim of lien.
18.) Credit Card Processing Fee: If Owner wishes to pay the bill by credit card a 3% processing fee will be added to the contract price by the Contractor.
19.) Controlling Document: To the extent that Apex Arbor Care LLC. enters any other contract or agreement with the contracting party for this project containing different or conflicting terms, it is expressly agreed that the terms and conditions of this Agreement shall control. By signing below, the Owner acknowledges that he, she or it, as applicable, has received, read and understands the aforementioned Terms and Conditions and agrees that the Work will be performed by Contractor subject to these Terms and Conditions.
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