Anyone who’s ever seen the 1939 MGM classic Wizard of oz recalls the moment that Dorothy and her retinue unmask the great and power- ful Oz as nothing more than an old man behind a velvet curtain. Dorothy angrily berates the abashed Wizard, saying, “You’re a very bad man!”
“No,” the Wizard protests weakly, “I’m a very good man. I’m just a very bad Wizard.”
Most of the arborists we know – and we know a lot of them – love what they do, and they’re pretty good at it. Good arborists usually stay busy. With all of that work, it’s easy to let attention wander away from the parts of the practice that aren’t so interest- ing – paperwork, contracts and dealing with customer complaints and disappointments.
We have great respect for the work arborists do, and we never want you to have to admit that you’re a very good arborist, but a very bad manager. This book is our contribution to simplifying one part of your business that is more black and white than green – the contract that forms the framework of what you do. In this book, we explain the reasons for employing a carefully-drawn written agreement, describe the pitfalls of not maintaining sufficient independence as a contractor, and walk you through the agreement form step by step, pointing out not only what’s in the agreement but explaining why it’s in the agreement.
Why Do We Need a Contract Form?
Legendary clothing retailer Sy Syms used to advertise his off-price clothing stores with the tagline, “An educated consumer is our best customer.” Be- sides being catchy, the slogan espoused a truism for any business where specialists deal with consumers.
For an arborist, a well-written and signed contract with your client can be the cornerstone of a successful and claims-free project. Yet it is surprising how many arboriculture professionals continue to take on projects with as little as a verbal agreement and hearty handshake, or at most a sketchy hand- written proposal.
Arborists have given us many reasons over the years why they forgo the formality of a detailed written contract before providing their services. The excuses include
• that’s just not the way you conduct business in this neck of the woods. To ask for a written contract is insult- ing and tells your clients you don’t trust them.
• it’s only a small job. It’s hardly worth the time to write a detailed contract. A simple purchase order and invoice upon completion will do.
• time is of the essence. You’ll start the project now and work out the details later.
• none of your competitors demands lengthy written contracts. If you don’t make it equally quick and easy on your clients, you’ll lose business.
The assumption underlying this reasoning is that a detailed contract is unnecessary because, chances are, nothing will go seriously wrong with the project. And if something does go wrong, the parties will set things right with fraternal goodwill.
Mother Teresa was right that “hope is the energy that feeds the soul.” But Rudy Guiliani was just as right when he said “hope is not a strategy.” Sometimes an arborist and client can iron out problems on a project with a quick conversation and a handshake. But rarely does that happen when there is a lot of money at stake. All of a sud- den, the trusted clients aren’t quite so agree- able, and they don’t remember that verbal agreement quite the same way as you do.
Sure, maybe 19 times out of 20 you can get by with a handshake or a one-page propos- al initialed by the client. But on the 20th project, do you really want to give back money that should be yours or find yourself in court? Hope all you like that a job doesn’t go wrong. But the prudent arborist does everything reasonably possible to avoid it.
“A verbal agreement ain’t worth the paper it’s printed on,” movie mogul Louis B. Mayer famously said. Still, from a legal perspective, a verbal agreement in lieu of a written contract gen- erally is binding (with important exceptions). When you reach a verbal agreement with a client and start to perform services, you and the client are both acting as though a contract is in effect. But if there’s a dispute, you may quickly discover that you and your client have very different recollections of the terms of the agreement.
As an expert in your field, you may fall into the common trap of assuming that your client understands industry standards to a much greater extent than he or she does. You cut down the tree but left the stump? Your customer didn’t know that stump removal wasn’t part of the purchase price. You cabled a weak hawthorne, and then told the client that it was unstable and needed regular inspection? When the tree fell on a busload of Brownie scouts two years later, the homeowner had no recol- lection that it had been cabled or that you had recommended regular inspection.
A special problem for you as an arborist is that tree fail- ures years after the project is completed can come back to haunt you. When you and the homeowner are both defendants, the customer is going to recall knowing nothing bad about the tree, regardless of what you said.
Who determines what each party to the verbal contract really said and meant? That responsibility typically falls to a trier of fact – a judge, jury, or arbiter – who was not there to hear the verbal agreement. Thus, the fact-finder faces the difficult task of making a ruling based on differing testimony of the parties. And especially in a jury trial, the trier of fact likely does not fully understanding the types of services you render or the prevailing standard of care you must meet when delivering those services.
Finally, a number of state consumer-protection statutes require that certain types of home-improvement projects be gov- erned by written agreements. Arboriculture work can fall into that category. Your local attorney can tell you more about this. In one case, a Connecticut landscaper took on a simple lawn- mowing job pursuant to a handshake. The job kept getting en- larged, again orally, until it included landscaping and tree removal and trimming. When the work was done, the customer – who happened to be a rather slick lawyer – refused to pay because the Connecticut Home Improvement Act required that the contract be in writing. The landscaper won, but only after a lawsuit. How much in legal fees did he pay to collect a few thousand bucks?
A common thread running through many of the hundreds of cases litigated over the past century which involved fallen tree – especially where the results have been catastrophic – is that the property owner claimed to have had no idea that the tree was defective, a denial usually made despite the fact that the tree was giving off warning signs as vivid as a traffic light at midnight.
An easily understood contract documents your warnings and advice. You both understand your duties and rewards. A customer who sees in writing that some additional service is ad- visable, but may cost extra – such as future inspections – is more likely to contract with you for additional services. If, heaven forbid, you ever do get into a dispute, a detailed and clear con- tract is more likely to lead the customer’s lawyer to advise the client that a lawsuit is a bad idea. And, yes, lawyers do tell their clients that. Frequently. If you end up in court, a plain English contract often has a positive influence on a fact-finder, making the court more likely to rule in your favor.
Even where safety and liability aren’t factors, customers seem to respond favorably to explanations in everyday language. For all of these reasons, we consider the Arborist Proposal and Agreement as a teaching tool as well as an agreement. If you’re uncomfortable with legal documents that are easily read and un- derstood, you could ask your local lawyer to add some Latin and sprinkle in a few “hereafters” and “wherefores.” Lawyers like doing that.
Another important reason for a written agreement is to make certain that third parties (like the angry parents of those unfortunate Brownies on the bus) from getting the standing they need to sue you by claiming they are third-party beneficia- ries of your agreement with your customer. If your agreement is verbal, a third party may enjoy an advantage. Juries are often sympathetic to third parties, especially those with whom they can readily identify as “the little guy” – or maybe as “the cute freckle-faced 2nd grader with pigtails, and her arm in a sling because your customer’s tree fell on her bus.”
Only a few years ago, a state supreme court had to decide whether a woman hurt when a branch fell on her could sue the tree trimmer. The branch fell from a tree growing near a power company easement in which the tree trimmer had worked sev- eral years before. She alleged that the agreement between the power company and trimming service was intended to benefit her. She lost, but the tree trimming company litigated the case for six years and probably incurred over $100,000 in legal fees before it was vindicated. If the contract had only specifically disclaimed any intent to benefit a third party …
Or consider this bizarre scenario from an Ohio case where the tree trimmer was sued because the branch broke:
On March 1, 2007, a thunderstorm occurred in the area where Mat- thew Phillips and his parents, Martin and Paula Phillips lived… During the storm, a branch from a tree fell across an Ohio Power electrical distribu- tion line located behind the Phillips’ home. Severance of the line caused a power outage at the Phillips’ home. Matthew and his father attempted to power their home by means of a portable electric generator. In the process of trying to operate the portable generator, Matthew received an electrical shock …
The Phillips of course blamed the tree trimmer for all of the re- sulting mishap.
Others may sue you because a tree you cabled or braced collapsed. You may mistakenly wander over a property line and cut or trim a neighbor’s trees. Our contract warns the hom- eowner of danger trees and places the burden for identifying
property boundaries on the customer, perhaps relieving you from someday sharing the defendant’s table with your customer.
No one can guarantee that you won’t be sued, and – as Mr. Phillips showed us – plaintiffs can be creative. However, a careful, detailed contract lessens your risk.
short Is Not alWays so sWeet
Some arborists will grudgingly agree to use a purchase order, proposal or similar “short-form” contract, but they remain averse to long agreements that require more time to draft and review. There’s a reason “short-form” agreements are short: they are silent on a number of important issues. Once again, outside triers of fact may be asked to resolve disputes without the ben- efit of a comprehensive agreement.
Brevity may be the soul of wit, but it’s death on a con- tract. You can’t think of everything, but there always are enough contingencies needing to be covered that a simple proposal or bare-bones purchase order just isn’t sufficient.
true Value
The greatest value a comprehensive contract confers is forcing you and your customer to identify and discuss impor- tant issues before the job begins. The customer gains a better understanding of the scope of the work, the risks, the options, and the limitations of the services you provide. He or she also learns what you both can do to lower the likelihood of errors or omissions, and to establish a framework in which problems that do arise can be addressed in a manner that focuses on problem resolution rather than finger-pointing and disagreement.
The contract formation process gives you the opportunity to demonstrate your professionalism and encourage the commu- nication, coordination and cooperation required for a successful project.
Chapter 2
Declare Your Independence
the tortoIse aND the hare
Understanding the differences between an employee and an independent contractor is a necessity for hiring parties, wheth- er homeowners or commercial property owners. It’s equally im- portant for arborists, meaning this is not a good time for you to step out for a cappuccino and biscotti. Keep reading.
Remember the tortoise and the hare? After the race, that demented turtle really believed that he was the fastest animal in the forest. His delusion probably only lasted until a coyote
that was unconvinced by the tortoise’s claim caught the terrapin and had him for din- ner. The real moral to the tale: Saying it doesn’t make it so. Like the turtle in that fable, a lot of hiring par-
ties and working parties sign agreements every day that declare that the working parties are in- dependent contractors.1 Too many of those par-
ties – the hiring entities and the working parties alike – end up being devoured, either by rapacious plaintiffs or humorless tax
1. When we say “hiring parties,” we refer to the homeown- ers, commercial property managers, and assorted entities that hire ar- borists and others in the arboriculture industry to obtain tree-related services on their premises. A hiring party may be Harry and Harriet Homeowner; it may be the behemoth XYZ Mega Corporation. When we say “working parties,” we’re talking people in the business of pro- viding arboriculture goods and services, whether they do business as little “Joe Doaks, Arborist,” or multinational corporation Trans-Galac- tic Tree Service, Inc.
collectors. No doubt they find themselves wishing for dismem- berment by coyotes instead.
We can offer some guidance on the factors generally used to determine whether the relationship between a hiring party and working party is employer-employee or independent contractor. You should find the criteria helpful. But (and here’s our usual
disclaimer) always recall this: America is a great land like no other, one of 50 states, one federal district and a passel of ter- ritories. Each one of those subdivisions has its own statutory and common law, and each may approach the question of employee versus independent contractor in its own way. Therefore, what follows is general information only. Support your local lawyer! Spend a few dollars to be
sure that your agreement and business practices leave you as an employee where you want to be an employee, and independent contractor when that is what you intend.
Why shoulD you Care aBout thIs?
You work hard for your money. You should get to keep it. So you should always keep an eye on the extent of your busi- ness’s liability, and do everything reasonable to limit it.
A hiring party is generally not liable for actions of an in- dependent contractor, but is liable for actions of its own employ- ees. If a homeowner hires Topsy Tree Service, and Topsy mis- takenly cuts down the neighbor’s majestic elm, the homeowner is hardly ever liable. But if the homeowner’s regular part-time groundskeeper uses the homeowner’s chain saw to mistakenly cut down the same elm, the cost of the blunder will be paid by the homeowner.
“Well, that’s easy,” you may be thinking, a cafe mocha still on your mind. “If we just call everyone we hire independent
contractors, that should solve our problem. Now, how about a bagel and latte?”
An added benefit to your plan, you realize with satisfac- tion as you’re waiting for the barista, is that if all your workers are independent contractors, not only will you avoid the liability you’d otherwise face for employee screw-ups, but you won’t have to pay income tax or social security withholding on what an inde- pendent contractor gets paid, as well as avoid paying premiums for workers’ compensation insurance, for unemployment insur- ance, and for the other nickel-and-dime charges that come with managing a payroll. “In other words,” you say to yourself as you sniff at your steaming hazelnut macchiato, “it’s just a matter of changing the working party’s label, and I’ll save money and avoid liability. Sweet.”
Hold the double shot Americano. It’s not quite that easy. Your judge or IRS auditor may have been born at night, but cer- tainly not last night. Labeling an employee as an independent contractor is a scam as old as street-corner three-card monte. And just as honest. Remember the tortoise? Claiming he was the fastest animal in the woods didn’t make him so. It just turned a delusional reptile into a predator’s dinner.
Courts and government agencies scrutinize business re- lationships to be sure the working parties are independent con- tractors in fact, and not in name only. The cheaters get caught. More important, even upright and well-meaning hiring parties
– such as your clients – and honest working parties like you can accidentally become an entrée on a plaintiff’s platter.
FreD FlINtstoNe or B.a. BaraCas?
It seems straightforward enough: An independent con- tractor is a person or business performing specific services for another pursuant to an agreement. The hiring party has little or no right to control the independent contractor’s means of performing the services. The independent contractor generally
possesses special skill or experience in the work it is hired to perform, provides its own equipment, pays its own taxes, and has no right to participate in any employee benefits (such as re- tirement or health plans) that the hiring party may have. An independent contractor is not entitled to receive workers’ com- pensation under the hiring party’s policy if he or she is injured while performing services for the hiring party. An independent contractor usually provides the same or similar services to more than one hiring party at the same time or serially.
The status of employee versus independent contractor, you’d think, would be pretty cut-and-dried. Fred Flintstone at
the Bedrock quarry? Well, he used his em- ployer’s equipment, he did what he was told, he punched a time clock and worked there every day … clearly an employee. On the other extreme was the A-Team. The A-Team came to you, bringing their own weapons (and usually a homemade armored vehicle or two) and a helicop- ter. The Team came to do a single job,
Fred was an employee. and then left (usually just a step ahead of
the Army authorities). No question, the
A-Team guys were independent contractors. Very independent contractors.
The difference between B.A. Baracas and Fred Flintstone is significant and obvious. But that hardly prevents people from calling one the other when the mood strikes them. Some em- ployers think it’s crafty to label their employees as “independent contractors.” It’s irresistible: no tax withholding, no pesky em- ployer matching of social security payments, no unemployment insurance, and no time-and-a-half for overtime. The IRS fights a constant battle against this dodge, and even employs a test to determine whether your worker is a Fred or a B.A.
Hiring parties usually want to make independent contrac- tors out of employees in order to beat Uncle Sam out of tax rev- enues. There’s even a Latin term for that:
However, there are several legiti- mate reasons for you to carefully define the relationship between homeowner and arborist as an in- dependent contract, just as there are reasons besides taxation for an owner to want to be sure he or she’s dealing with an independent contractor and not an employee. Liability and worker’s compensa- tion are two of those.
Generally, a party is not liable for the acts of his or her independent contractor. The em- ployer is, however, in most cases responsible for the negligence of
These guys were definitely indepen- dent contractors.
his or her employee. What’s more, if an employee is injured on the job, his or her only recourse is to apply for worker’s compen- sation – there’s no lawsuit against the employer. An independent contractor, on the other hand, may sue the hiring party for neg- ligence. That’s a protection you just might want to keep in your back pocket in case you need it.
real lIFe examples
Here are a few real-life examples:
(1) you saID What?
Back in about 2005 or so, Mrs. Dugger hired a Kentucky Certified Master Logger, Tommy Thomas, to log her land. She signed a contract with him, which specified, among other things, that Thomas Squared was an independent contractor. Well, mas- ter logger or not, Tommy T. was not a master listener. Although Mrs. Dugger told him she didn’t own the land across the creek, and he should not log it, he clearcut it anyway.
Predictably, the woman who did own the real estate on the far side of the stream – a Mrs. Worley – sued, naming both
Tommy Thomas and Mrs. Dugger as defendants. Mrs. Dugger’s lawyer got her dismissed from the lawsuit because Kentucky law
– like that of virtually all states – held that an owner wasn’t liable for the errors of an independent contractor. And there was no question that Tommy Thomas was an independent contractor. The written agreement between the two of them was a great help in establishing this, as well as to prove that Mrs. Dugger had told her contractor where her property boundaries lay.
Mrs. Worley appealed. Unfortunately for her, the ap- peals court agreed with the trial judge, holding that Thomas’s master logger certification meant he should have known better. The contract was crucial in showing the court that the parties always contemplated Tommy T. would be an independent con- tractor, and he in fact did control the manner of the work and how it was accomplished. These factors – the right to control the manner of work and the right to determine the means by which results are accomplished – were considered determinative by the Court. 2
(2) DoING It oN the Cheap
Penny-pincher Bill Sulcer had a tenant named Quimby, a man who was neither the Mayor of Springfield nor an arborist. Instead, he was a long-haul trucker. The landlord ignored his ten- ant’s pleas to trim a dangerous tree, until the tree got in the way of the landlord’s plans. Suddenly, Sulcer approved the work, on the condition that tenant Quimby — who was a tree-trimming tyro — take the branches down for him. For free, of course.
For some unfathomable reason, Quimby agreed to do so. During the tree surgery, he dropped a limb, which in a freak ac- cident bounced and struck his high school senior daughter Leslie in the chest. She required emergency open-heart surgery but fortunately she survived to sue the landlord.
2. Worley v. Dugger, Not Reported in S.W.3d, 2007 WL 4373120 (Ky.App., Dec. 14, 2007), available on the Internet at https:// treeandneighborlawblog.files.wordpress.com/2013/11/dugger.pdf.
Sulcer contend- ed that he wasn’t at fault, because Quimby was really just an in- dependent contractor, and it was Leslie’s and Quimby’s fault that she stood too close to the tree while Quimby was cutting limbs.
The trial court agreed that Quimby was an independent contractor. After all, Sulcer knew Quimby didn’t have experience pruning trees but re- lied on the fact that
Quimby had cut limbs on the property before with no problems. Plus, other than selecting the limbs, Sulcer provided no other instruction, provided no equipment, and was not present at the time of the injury.
The Court of Appeals, however — offended, perhaps, that the landlord was getting off scot-free – looked at the issue differently. The question, the Court properly held, was what Sul- cer the landlord owed Leslie the tenant, not whether Leslie might be a volunteer worker for her volunteer worker dad, who may or may not have been an independent contractor. Clearly, the Court said, Sulcer had breached his duty to keep young Leslie safe from the perils of an unskilled tree-cutter.
The Court couldn’t help but notice the report of the ar- borist whom Leslie presented as an expert witness: he said a professional trimming job would have only cost tightwad Sulcer
$300 to $500. The Court didn’t say as much, but it was probably a bit disgusted that the landlord was willing to jeopardize the life and health of his tenants for a fraction of one month’s rent.
The moral to this case, perhaps, is – even if it is techni- cally legal – one ought not behave in a ethically repugnant way. When offended, court will often find an imaginative path to jus- tice. Had Leslie not been a tenant, penny-pinching Sulcer might have escaped liability altogether. But never bet against a court’s ability to rationalize the law until some rough approximation of equity is reached. 3
(3) GooD FeNCes maKe GooD NeIGhBors
A benefit of ensuring that the people hired to do tree work are independent contractors is that the homeowner gains some protection when the working party makes a hash of things.
The fencers working on the Wendylou Ranch crossed the line. Literally. As in ‘trespassed on the neighbors’ land’. The facts of the case strongly imply that there may have been a little history of neighbor animosity as well.
The little Schievink homestead (300 acres, but that’s little in Texas) was surrounded by the mega-hunt reserve Wendylou Ranch. Wendylou was having some fence put in, and hired Ru- dy’s Fencing to do the work. During the work, Rudy’s acciden- tally colored outside of the lines with its bulldozer by wandering onto Schievink land. It was a fairly minor mistake, which Rudy’s promptly corrected as soon as the mistake was discovered, and seemed to cause little damage.
It’s puzzling that the Schievinks sued at all. There must be a fascinating backstory. Maybe it was the Hatfields vs. Mc- Coys. Or David vs. Goliath. Or the Montagues vs. the Capulets. Whatever the history between the neighbors, the Schievinks raced to their lawyer’s office, bound and determined that they
3. Allen v. Sulcer, 255 S.W.3d 51 (Ct.App. Tenn. 2007), avail- able on the Internet at https://treeandneighborlawblog.files.wordpress. com/2013/11/sulcer.pdf.
were going to hang the trespass on Wendylou. This was despite the fact that Rudy’s, a company with 25 employees and 20 years in business, probably could have easily paid for the actual damage caused to the 15-foot wide, 1,600-foot long strip that had been accidentally bulldozed. The cost and aggravation of litigation hardly seems worth it for the Schievinks. Their lawyer, however, must have been pleased at the fees this kerfuffle generated.
To be sure, he fired both barrels at the mega-hunters. And missed. The Court found that Wendylou hadn’t been an aider or abettor of the trespass, because the Wendylou staff had been careful to identify the property lines, instructing Rudy’s to install the fence 15 feet inside the boundaries, and insisting on walking the boundary with Rudy’s site manager before each seg- ment of fence was installed, just to be sure everyone knew where the frontier on the frontier really was. It was mere happenstance that Rudy’s crew got ahead of schedule one day, and pressed on into new territory without alerting Wendylou’s manager that more boundary lines needed to be identified.
More important, the Court agreed with Wendylou that Rudy’s was an independent contractor. This was crucial, because while Wendylou would be responsible for the negligent acts of its employees, it was not responsible for its independent contrac- tor’s accidental trespass. The Court looked at five factors:
(1) the independent nature of Rudy’s business;
(2) Rudy’s obligation to furnish necessary tools, supplies, and material to perform the job;
(3) the right to control the progress of the work, except as to final results;
(4) the length of time for which Rudy’s was employed by Wendylou; and
(5) the method of payment, whether by time or by the job.
So what is the difference between this case and those situations where the owner has to pay when the hired bulldozer over-dozes? Primarily, it would seem to be the extra care that
Wendylou took to ensure that its contractor re- mained independent yet adequately directed.
Mistakes can and often do happen, but a careful property owner can minimize their im- pact. Usually, when an owner hires a guy with a ‘dozer, the transaction is much more casual. 4
(4) lara’s theme
Cue the balalaikas for Lara’s Theme, one of the most memorable leitmotifs in movie history. The victim was not the Lara Antipova character from Dr. ZhIVaGo, but rather a laborer named Jose Lara. Jose’s theme differed from the film’s syrupy ballad, but in its own way it was just as fictional as Boris Pas- ternik’s famous novel. Usually, a third party is trying to turn an independent contractor into an employee. Here, the indepen- dent contractor himself was claiming – after the fact – that he had really been an employee all along.
Jose Lara seemed to himself and his customers to be an independent contractor, right up until the day he fell off a res- taurant customer’s roof while trimming bushes. Only then, in a rewrite of history that would have made a Bolshevik blush, did
4. Schievink v. Wendylou Ranch, Inc., 227 S.W.3d 862 (Tex. App., 2007), available on the Internet at https://treeandneighborlaw- blog.files.wordpress.com/2013/11/wendylou.pdf.
Mr. Lara decide that perhaps he had been an employee all along, and thus should be entitled to receive workers’ comp payments for the rest of his natural life.
Workers’ compensation covers employees – but not in- dependent contractors – as an efficient and reasonable means of delivering benefits to workers injured on the job. It is intended to provide quick assistance to the injured and to free employers from costly and protracted litigation over claims. This is not to say that the system is intended to be an ATM for any worker with a claim. A hearing board seeks to protect the system from bogus claims, and the employer – who is likely to see the busi- ness’s workers comp insurance premium take off like a skyrock- et after a claim is paid – has a lively interest in keeping everyone honest.
Here, both the workers’ comp board and the restaurant cried foul. It seemed Lara was in the business of doing odd jobs, and that
the restaurant had hired him only one other time, months before, to trim the bushes and perform light maintenance. The restaurant was hardly Lara’s only cus-
tomer, and as always, Lara had arrived at the job with his own tools. While the owner had
told Lara what bushes should be trimmed, but he left it to Lara to determine how to do the job.
At first, the workers comp board rather inexplicably held that Lara had been the restaurant’s employee, but the restaurant asked for reconsideration. Usually, seeking reconsideration is an exercise in futility. Few things in the known universe are as im- movable as a judge who’s made up his or her mind. Asking a judge to rethink the matter and announce that he or she was wrong the first time around is like trying to teach a pig to sing – it wastes your time and ends up simply annoying the pig.
In this case, however, the board revisited the issue and held that Lara was indeed an independent contractor. Lara’s law- yer promptly sought judicial review. We say “his lawyer” instead of Jose Lara himself, because it isn’t at all clear the ingenuous
workman was on board. In fact, Lara candidly testified at the hearing that he had a number of customers, that no one at the diner told him how to do his job, and that he didn’t consider him- self an employee of the place. If Lara was ramrodding this claim, he surely did a poor job of it.
It seems no one other than Lara’s lawyer thought he was an employee of the restaurant, either. On review, the court con- sidered important the fact that no one directed Lara in how to trim or when to trim. He wasn’t being paid hourly, but rather by the job. Everything about Lara’s relationship with the restaurant said “independent contractor.”
The restaurant prevailed, but how much easier it would have been if the owner had signed a simple agreement with Lara before he fell from the roof. It may have saved a mountain of frivolous litigation. 5
(5) oDDjoB …
In the classic James Bond movie thriller, lovable villain Auric Goldfinger kept strong, silent Oddjob on hand to handle the occasional bit of mayhem he needed performed. Kansas gro- cer Jerald Walker – not an arch-criminal – liked to call on Gene Moser and Paul McCubbin when he had odd jobs to be done around the store. This duo, like minion Oddjob, were no strang- ers to mayhem. It’s just that they tended to inflict it on each other.
In the past, Jerald had hired Moser and his sidekick Mc- Cubbin to paint, repair doors, rake leaves or perform other me- nial tasks. Jerald would quote them a lowball price, they would accept, and hilarity ensued as they performed the job.
5 Lara v. Workers’ Compensation Appeals Board, 182 Cal. App.4th 393 (2010), available on the Internet at https://treeandneigh- borlawblog.files.wordpress.com/2013/11/lara.pdf.
There came a time when Jerald needed some trees trimmed. He called Gene and offered him $30.00 for the job. Gene, enticed by the offer but apparently daunted by the scope of work to be performed, recruited his swamper Paul to help. They agreed to split the fee 50-50. Unfortunately, the only thing that ended up being split was Paul’s noggin.
When Gene and Paul showed up to do the job, Jerald provided them with the equipment they needed. They had only trimmed a couple of branches, however, when a limb being cut by Gene fell and hit Paul.
Would Oddjob sue Gold- finger? Tonto file against the Lone Ranger? Sancho allege a tort against Don Quixote? We can only speculate … but we do know that Paul would sue Gene. And he did.
For good measure, Paul also went after Jerald Walker’s grocery. Paul applied for workers’ compen- sation because he alleged that he had been Jerald’s employee or – in the alternative (because you can do
things like that in a tort complaint)
– he argued that the tree trimming
Sancho never sued the Man of
La Mancha.
work was inherently dangerous. A job that’s “inherently danger- ous” is an exception to the general rule that a hiring party is not liable for acts of an independent contractor.
The Kansas Workers’ Compensation hearing officer ruled that Paul McCubbin was not an employee of the store. A trial court agreed with Workers’ Comp. For good measure, the court also held that tree trimming was not an inherently dangerous oc- cupation and threw out Paul’s case.
Paul McCubbin’s guardian – who was looking after his affairs because Paul’s head injuries were severe and permanent
– had more luck in the Court of Appeals. That panel of judges reinstated the case, ruling that material questions of fact had
been raised as to whether McCubbin was an employee and wheth- er the work he’d been hired to do was inherently dangerous.
Walker appealed. The Kansas Supreme Court held that nothing in the record supported finding McCubbin to be Jerald Walker’s employee. The fact that Walker provided the tools and pointed out the trees to be trimmed was not determinative, be- cause the price was based on the complete job. Walker had no control over when or how the job was done, or even over how McCubbin and Moser would split the payment for the work. Thus, McCubbin was the store’s independent contractor, and Walker’s workers comp policy wasn’t liable for the accident.
What’s more, the Court said, no work is “inherently dan- gerous” if it can be performed safely. Tree trimming can be done safely and without accident (although maybe not by McCubbin and Moser). Thus, the “inherently dangerous” exception to non- liability did not apply here. 6
(6) sNap, CraCKle & pop
Arboriculture professionals pride themselves at being ex- pert at what they do, which is – generally put – to manage trees. How the tree is to be treated depends on the arborist’s expert opinion of the condition of the tree, and the threat that the tree poses to persons or property. If the examination misses a defect or disease, and the tree ends up falling on that Brownie troop we mentioned in the last chapter, the unlucky arborist will have alot of explaining to do.
But there’s another risk that an expert faces. The client may not tell the expert everything relevant to the problem at hand. If the owner’s omissions result in a mishap to the expert’s employees or subcontractors, who’s at fault?
6 McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (S.Ct. Kan. 1994), available on the Internet at https://treeandneighborlaw- blog.files.wordpress.com/2013/11/mccubbin140810.pdf.
A 2014 case provides a sobering answer to that.7 Con- Agra Foods, Inc., had a problem with a wheat storage bin. Grain can be tricky stuff, generating a lot of dust and carbon monox- ide. Both of these like to explode with little provocation. When one of its grain bins started spontaneously heating up, ConAgra called in an West Side Salvage, an expert in “hot bins.”
West Side tried to salvage some of the wheat, but remov- al of the grain let more oxygen into the bin, and the instability increased. West Side’s supervisor called firefighters to stand by, but while he awaited their arrival, he sent some workers for one of West Side’s subcontractors into the bin to retrieve tools. While they were doing so, the grain dust exploded, injuring them.
Everyone knows that an owner is not responsible for the negligence of an independent contractor. Everyone also knows that the owner may be liable if it does not provide the indepen- dent contractor with a safe place to work. The district court found that ConAgra had failed to provide a safe workplace, and that West Side was negligent in sending the workers into the dangerously unstable grain bin. It smacked the companies joint- ly with $18 million in damages.
ConAgra appealed, arguing that it was not liable because West Side knew what it was getting into. West Side retorted that ConAgra failed to reveal material information to it about the unstable grain bin.
The Court of Appeals was bemused. Of course the work- place was unsafe: the whole point of hiring a “hot bin” expert was that the bin was dangerous. The Court held that where an owner hires an independent contractor to remedy a dangerous situation, the owner isn’t liable if the feared disaster came to pass. Such a policy would only discourage people with serious or dangerous problems from hiring experts to get them fixed.
7 Jentz v. ConAgra Foods, Inc., Case No. 13-1505 (7th Cir. September 9, 2014), available online at https://treeandneighborlawblog. files.wordpress.com/2014/12/jentz_v_conagra.pdf.
West Side admitted that ConAgra hadn’t provided false information or failed to answer questions West Side asked. The problem, West Side argued, was that ConAgra had other infor- mation about the dangerous grain bin – specifically, temperature readings from earlier in the month – that it failed to volunteer.
The Court rejected the claim. West Side was a self-pro- fessed expert in “hot bins.” ConAgra was not. An owner like ConAgra is entitled to assume that when an expert like West Side is hired, the expert will ask for all the information it deems important. The fact that ConAgra didn’t answer questions that were never asked did not make it liable.
The takeaway for arboriculture professionals: you’re ex- pert at what you do. Be certain to gather all of the information you need for the job. When the tree falls on that Brownie troop, you can’t hide behind the owner’s failure to give you information about the condition of the tree that you never asked for.
(7) a FINal WorD From your uNCle:
Uncle Sam has a lively interest in whether a taxpayer is an independent contractor or employee. Our friends at the Internal Revenue Service suggest that the following areas of inquiry are relevant to “the degree of control and independence” between the principal and the working party:
1. BehaVIoral: Does the company control or have the right to control how the worker does his or her job?
2. FINaNCIal: Are the business aspects of the worker’s job controlled by the paying party? This inquiry include questions like how the worker is paid, whether expenses are re- imbursed, or who provides tools and supplies.
3. type oF relatIoNshIp: Are there written contracts or employee type benefits (i.e. pension plans, insur- ance, or vacation pay)? Will the relationship continue and is the work being performed a key aspect of the business?
The IRS suggests that businesses must weigh all these factors when deter- mining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employ- ee, while other factors indicate that the worker is an independent contractor. The IRS says there is no “magic” or set number of factors that makes a worker an employ- ee or an independent contractor, and no one factor alone is enough to tip the scale in favor of one or the other determination. Also, factors which may be relevant in one situation may not be relevant in another.
This, of course, is the IRS’s nice way of saying that taxpayers are on their own, and woe betide the poor mutt who
gets it wrong. Additionally, meeting the IRS test – assuming that it’s even possible to know for certain that the test has been met
– only applies to taxes, not to trees. The wary arborist thus must keep his or her eye on state law as well as on Uncle Sam. 7
DeClaratIoN oF INDepeNDeNCe
Wrapping this up, then, an independent contractor per- forms services for another person pursuant to an agreement, and is not subject to the other’s right to control the manner and means of performing the services. The exact nature of the inde- pendent contractor’s relationship with the hiring party is impor- tant to determine, because
7 IRS Publication, INDepeNDeNt CoNtraCtor (selF-em- ployeD) or employee?, available on the Internet at http://www.irs.gov/ Businesses/Small-Businesses-%26-Self-Employed/Independent-Con- tractor-Self-Employed-or-Employee.
There are several factors to consider in deciding whether work- ers are employees or independent contractors. One of the most important considerations is the degree of control exercised by the hiring party over the performance of the workers. An em- ployer has the right to control an employee, dictating such mat- ters as hours worked, tools used, and the manner and means by which the job is to be done. If the hiring party has the right to supervise and control such details of the work performed, the hiring party is probably an employer and the worker is probably an employee. On the other hand, the absence of substantial su- pervision and control by the hiring party would suggest that the worker was an independent contractor and not an employee.
An independent contractor generally (but not necessarily) works for more than one hiring party at the same time or a series of hiring parties in succession. The A-Team, for example, came to the aid of a single downtrodden group at a time, but gener- ally only worked for that group for 48 minutes before moving on to the next episode. The A-team supplied its own weapons for every job, not to mention about 10,000 rounds of ammo, all of which the Team fired without ever really hitting any bad guys. Likewise, an independent contractor tree company brings its bucket trucks, saws, chippers and hand tools to the job site. And hopefully – like the A-Team – inflicts no casualties.
To help establish that a working party will be treated by the law as an independent contractor, the hiring party should ensure the working party carries its own insurance coverage and provides its own workers’ compensation or similar coverage.
Chapter 3 Nuts and Bolts
All that talk about the criteria for judging whether a working party’s an independent contractor is well and good, but no
one succeeds in the tree business by just talking about how to perform ser-
vices. It’s time to get into the nuts and bolts of preparing a contract that preserves your desired status, be it independent contractor or employee.
struCturING the INDepeNDeNt CoNtraCtor aGreemeNt
Remember what we said about Louis Mayer? If you want your contract to be worth the paper it’s written on, it had better be written on the paper it’s written on. What we mean is that your agreements with any hiring parties had better be in writing. Look how valuable Mrs. Dugger found her agreement with the geographically challenged master logger Tommy Thomas.
When an agreement is written, it allows the parties in- volved to recall what they had previously agreed upon, whether it was something they didn’t remember later or dissonance be- tween them on what they had agreed to. A written contract is important to both parties, and especially to the hiring party where independent contractor status is concerned. State and federal agencies generally place the burden on the employer to prove that the working party is what the hiring party says it is.
Thus, as we discussed in the last chapter, the hiring par- ty’s written agreement must contain language that reflects the parties’ intention that the working party be bound to the hiring party as an independent contractor.
What aN INDepeNDeNt CoNtraCtor aGreemeNt shoulD CoNtaIN
It’s pretty clear that both employees and independent con- tractors must have consent from the hiring party to begin work. A meeting of the minds between hiring party and working party is the sine qua non of a contract, whether for employment or for independent contractor services. However, an independent contractor needs only consent at the start of operations and then is free to act in any way it sees fit. An employee, on the other hand, requires continued consent to do work for the employer. This is an issue of independence versus control.
It is crucial to be certain that the independent contractor agreement grants the working party the freedom to make most of the necessary decisions without the hiring party’s consent. In determining whether the person providing the services is an em- ployee or independent contractor, all types of evidence of the de- gree of control or independence may be considered. Generally, an independent contractor will have control over its own sched- ule, performance, manner in which the work is accomplished, and hours worked. There’s nothing wrong, however, with a hir- ing party specifying that only certain trees will be trimmed or that some branches are not to be touched. Those kinds of limits are specified all the time. Likewise, there’s nothing wrong with the hiring party dictating that the work should be done only on Mondays and Thursdays, or not after 5 p.m. Such limitations, too, aren’t uncommon. But including such restrictions causes what the Army calls “mission creep.” Gradually, restrictions and specifications that on their own seem reasonable and limited can accrete until the work is so pervasively controlled by the hiring party that the working party has lost its independence. In pre- paring your agreements, always consider the aggregate effect the terms and conditions may have on your independence.
In the Wendylou case, for example, Rudy’s Fencing was told where not to install the fence, but not how to install it or where within the broad limits of the boundary strip to site it. Even in the McCubbin and Lara cases, the property owners only directed the workers to trim the bushes and trees, not how to trim them.
An employee must act on behalf of the employer, carry- ing out the employer’s business. In many cases, an employee is authorized to a limited degree to represent the employer, acting in the employer’s place. On the other hand, an independent con- tractor completes work for the hiring party, but generally does not represent the employer.
Although these differences be- tween employees and independent con- tractors may seem small, the duties em- ployees owe employers far exceed those of independent contractors. Employees have a duty to be loyal, to avoid conflicts of interest, and to not take advantage of their employee position for personal ben- efit. Although these obligations seem burdensome to an employee and benefi- cial to an employer, the coin has an ob- verse. Remember that once an employee
relationship is formed, the employer is bound by extensive state and Federal regulation as to hours, conditions of employment, pay and benefits. More important for our purposes, the em- ployer may be liable for the employee’s negligence.
To many, it may seem like the courts are splitting hairs. Even if this is so, it is important to know the differences be- tween the relationships in order to prepare for and deflect liabil- ity. Read each contract thoroughly and look for wording that would suggest control inconsistent with an independent contrac- tor relationship.
Free samples
If you’re like us, you may like to duck into Sam’s Club or Costco for the free food samples. And who can blame you? Right now, you may be thinking that it would be helpful if you could read a sample of an independent contract agreement that
applied the lessons we’ve gleaned from the cases and your good old Uncle Sam’s advice.
Like a concept car – the sample agree- ment is more for lookin’ than for drivin’.
Appendix A includes just such a sample. This is a bit like a concept car – something that’s interesting to contem- plate without ever necessarily being something you’ll really drive. You and your lawyer may find the concepts in this sample agreement useful to in- corporate into agreements you use. You can also access copies of the agreement in Appendix A on the CD enclosed with this
book, in PDF, Microsoft Word and RTF formats, to make it easy to incorporate the ideas in the forms into your documents.
Our primary admonition: if you use some or all of the sample, be sure to complete Exhibit A to the contract. If Ameri- cans were as casual about reproduction as they are about filling in the blanks on contract forms, the nation would be overrun with unplanned kids.
“Wait,” you say. “Unplanned births in this country amount to 40 percent of all kids born.” Right you are, and that’s our point. Americans are casual about reproduction, and contrac- tors are way too casual about the need to complete exhibits and appendices. If you’re signing a contract, be sure that the exhibits and appendices are complete and attached. They’re every bit as central to the contract as all of the “whereas” clauses, all of the numbered paragraphs, and all of the subsections.
the CoNtraCt Form
If you’re looking for something you can sink your chain- saw into, our sample form of a comprehensive arborist contract
is attached as Appendix B. This form is more than just concept: rather, this is an agreement that you may choose to use right out of the box (customized to your state’s requirements, of course). This contract form consists of a front page – on which you will identify the client, describe the project, state the cost, and specify a date of completion – and the Terms and Conditions. We also include a Change Order form for use when the job is expanded, changed or reduced.
You may place your logo, name and contact information on the first page. Also, you are undoubtedly a member of vari- ous trade and professional organizations. Listing those at the foot of the first page is just good salesmanship.
usING the Form
Spend some time preparing the form for its first usage, following this guide. Time spent on this end of the project will bring big returns later in trouble-free contract completion.
DesCrIptIoN oF WorK: Be reasonably specific, espe- cially as to the number of trees to be planted, trimmed or re- moved. Be specific as to the types of trees and plants to be planted, or – in the alternative – the area to be covered by the
flora being installed. If you have designs, attach them, noting in the Description of Work something like “see attached diagram, which is part of this agreement.”
You should not feel constrained by the space provided on the first page. You may note “continued on back of page” or “continued on attached pages.” Use additional copies of the form shown on the preceding page, if you like. If you attach ad- ditional pages or diagrams, have the customer sign and date the pages, as shown by the above illustration. Generally, the more detail, the better. Detail now avoids problems later.
terms aND CoNDItIoNs: Well before you present your proposal, you should read and become conversant with what’s in it. Pay particular attention to the following provisions of the Terms and Conditions in the aGreemeNt:
Scope of the Work: The Company will furnish all labor, tools, trans- portation, equipment and materials needed to complete the Work. The Company will perform the Work in accordance with the standards set by ANSI, professional organizations, other standards-setting organizations, and custom in the industry. If the Work must deviate from those standards because of the nature of the property or particular circumstances, you and the Company will make a note of that on a page attached to this Proposal and Agreement. If a need to deviate from the standards does not become apparent until after the Work is begun, the Company will tell you right away, and you and the Company will agree to the deviation in writing.
Cabling or Bracing: Cables or bracing are used in trees that are structurally unstable or are of a kind or condition that is prone to structural instability. Cables may be installed to reduce strain on major limbs caused by high winds or ice and snow weight. Bracing is used for support and to reduce twisting strain on a tree. Cabling and bracing reduce strain, limit movement of trees, and provide additional support. However, these systems do not provide primary structural support or make a tree safer. After installation, you will be responsible for maintaining the cabling or bracing by arranging periodic inspections by qualified persons, conducted to detect wear, corrosion, hardware degradation, or deterioration of the tree.
Tree Removal: Sometimes removal of a tree is necessary. A certified arborist will advise you in determining which trees may be a hazard. The Company will provide you with a written opinion on any tree that its certified arborist believes is a “danger tree” or “hazard tree” (terms with a particular meaning in the industry). However, the decision and duty to remove any tree belongs to you. Your obligation to remove or trim “danger trees” or “hazard trees” is often fixed by law, and you should consult with a legal professional about decisions you make on such trees. The Company cannot advise you on your legal obligations to oth- ers, and is not liable for any decision you may make to either retain or remove a tree from the property.
8 There is a second definition employed by utility companies, one which considers a “danger tree” or “hazard tree” to be any tree that could damage utilities infrastructure if it fell, regardless of how healthy that tree might be. That definition is a distinct minority view, and does not apply to non-utility situations. It need not concern the arborist using this Agreement.
General Fertilization: Tree fertilization is done with a slow- release liquid injected into the root area under pressure. The liquid is sometimes formulated with additives as necessary if signs of nutrient deficiencies are observed. Most trees should be fertilized once a year. Fertilization is generally performed between October and June. Granular fertilizer may be used over the root area of shrubs and trees without a grass ground cover. The Company will perform such fertilization if called for in the Work. The Company will provide you with a material safety data sheet – known as an “MSDS” – for all chemicals applied. It will be your responsibility to adhere to any safety precautions called for in safety material supplied by the Company.
Insect and Disease Control: Pesticides are used to control insects and prevent diseases. The chemicals are applied under the supervision of a licensed pest control applicator, following procedures dictated by the manufacturer of the pesticide, by industry standards, and applicable law. One or several applications may be necessary. The Company will apply pesticides if called for in the Work. The Company will provide you with an MSDS for all chemicals applied. It will be your responsibility to adhere to any safety precautions called for in safety material supplied by the Company.
Licenses & Certification: The Company is properly licensed and certified to do the Work, and it will use the services of a properly licensed and certified arborist.
Liability Insurance: The Company maintains workers compensation and liability insurance appropriate to the Work and at levels mandated by law and customary in the industry.
Property Boundaries: The proper identi- fication of the property boundaries – so that trees not belonging to you are not mistakenly removed or trimmed – is very important. Mistakes about bound- aries can lead to serious financial consequences for both you and the Company. You are responsible for providing the Company, prior to the commence- ment of the Work, with accurate and complete in- formation about the boundary lines of the property and any restrictions, easements, encumbrances or rights-of-way that affect or relate to the Property. The Company may ask you to mark boundaries on a map or satellite photo of the property. If asked, you will be responsible for providing such a map
or photo. Likewise, you are responsible for the accuracy of boundary markers, and if you have any doubt about the accuracy of the markers or boundary lines, you should hire a qualified surveyor or legal professional before the Company begins the Work. The Company cannot advise you about the location of boundaries or the legal effect of boundaries or markers.
Ownership: You are assuring the Company that all of the trees, plants, and property upon which the Work will be performed are owned by you, or that you have the authority to order the Work. If you have any doubts about encumbrances or restrictions on the Property, if you do not own the Property but instead are a tenant, life estate holder, licensee, trustee or land installment contract vendee, or if you are only one of several people owning the Property, you should consult a legal professional about your right to order the Work before the Company begins.
Permits: Governmental authorities – local, regional, state or Federal – may require permits for removal or trimming of trees or oth- er plants, application of pesticides or fertilizers, or other aspects of the Work. You agree to obtain and pay the cost of any necessary permits.
Underground Utilities: Sometimes it seems that underground wires, cables, pipes and other utility services are everywhere, and oc- casionally are where they are least expected. Many areas impose legal requirements on customers like you and contractors like the Company to identify the location of underground utilities, and give advance notice to or obtain permission from utilities or agencies before engaging in certain activities. Some of these activities may be included in the Work. Custom- ers may face substantial penalties and fines for the disruption of public utility services, even where the disruption is accidental. You agree to provide the Company with information regarding concealed utilities, and to fulfill any obligation of notification or permitting imposed by law on property owners or customers like you. The Company promises you that it will fulfill any similar requirements imposed on it by law. The Company will make every effort to protect the utilities, but it assumes no responsi- bility for underground utilities beyond that imposed on the Company by law.
Uncertainties: The Company will use its best efforts and do everything reasonably possible to preserve trees and plants, and will perform the Work in compliance with industry standards. However, trees, shrubs and plants are living things, and their continued life and health are subject to a myriad of factors. The Company cannot guarantee your plants’ continued vitality. At times trees fail for no explainable reason or for causes beyond the Company’s or your control. Tree ownership and stewardship requires that you assume the risks inherent with that owner- ship, and those include the risk that your trees may suffer from illness, damage from weather, infestation, and a host of other natural impedi- ments to health and life.
Other Work: The Company prides itself on the level of care and professionalism our employees bring to the work we do. From time to time during the performance of the Work, we may observe matters out- side of the description of the Work that we think ought to be performed nonetheless, and the Company may perform such additional minor work without charge. If the Company does perform additional services without charge, the additional services are to be considered to be a courtesy only and do not obligate the Company to provide such additional ser- vices in the future. You understand that the Company is not liable for failing to provide any service – even if its personnel notice the need for such service – that is not listed in the description of the Work.
Independent Contractor; Inherent Danger: You and the Com- pany agree that we are your independent contractor, and that the Com- pany is free to choose its own means and methods, and is responsible to you only for completing the Work with reasonable care and in accordance with this Agreement, with standards set by ANSI and other standard- setting organizations, and with custom in the industry. You agree that you do not seek to retain the right to control the mode and manner of doing the Work. Many of the activities of the Company undertaken during performance of the Work – including without limitation tree removal and tree trimming – is dangerous, and requires special equipment and training to be performed safely. The safety of bystanders and other persons not trained to perform these services, not wearing safety equipment, and not actively employed in the activities, cannot be guaranteed. The Company cannot permit you to assist its personnel in performance of the Work.
The Company’s Promise to Indemnify You: The Company in- demnifies you from any loss arising from Work that is not performed with reasonable care or in accordance with the standards set by ANSI, profes- sional organizations, other standards-setting organizations, and custom in the industry.
Your Promise to Indemnify the Company: You indemnify the Company and its employees from any loss or expense arising from Work that is performed with reasonable care or in accordance with the stan- dards set by ANSI, professional organizations, other standards-setting organizations, and custom in the industry. You indemnify the Company from any loss or expense arising from any charge of trespass or wrongful cutting resulting from alleged errors with respect to property boundaries that you have identified, or from allegations that you lack authority to di- rect the Company to do the Work performed. You indemnify the Compa- ny from any loss or expense arising from the presence of personnel other than Company personnel around the location at which the Work is being performed. Additionally, you indemnify the Company from any loss or expense arising from maintenance or removal of cabling and bracing of any tree, or from damage caused by a tree that has cabling or bracing installed or maintained by the Company.
Payments Covered: The losses or expenses covered by these indemnity clauses are intended to include all losses or expenses, including without limitation the payment of penalties, fines, forfeitures, restitution, judgments, compensatory and exemplary damages, awards, decrees, at- torney fees, court and expert costs and related costs and expenses in- curred from the earlier of (1) a time a written objection, notice of intent to sue, or other written demand is received; or (2) a time from when a complaint is filed with a court or agency of government.
Arbitration: You and the Company agree that all claims or dis- putes that may arise under the Proposal and Agreement will be settled by binding arbitration in [fill in nearby city and state where such arbitra- tions are done]. An award of arbitration may be confirmed in a court of competent jurisdiction.
Beneficiaries: This Proposal and Agreement is intended to benefit you and the Company only. No other person is intended to be a beneficiary of any express or implied warranties or representations we are making in this document.
BarCK lIKe a DoG: It may not be spelled correctly, but BARCK is a useful mnemonic device. When you’re contracting with the customer, remem- ber the following checklist:
lanks – Be sure to fill in all of the blanks on the con- tract sheets. Legendary Ohio State Univer- sity football coach Woody Hayes famously said that three things can happen when you pass, and two of them are bad. There’s no difference when you fail to fill in a blank. An empty blank may cause the provision containing it to be ignored by a court. Or it may render the contract term ambiguous. If you’re very lucky, it may not come back to bite you. But luck is for rabbits – it’s not a legal strategy.
ppreciate – Understand what all the contract requires you to do, and be sure you do it. You prom- ised to deliver MSDS sheets covering the fertilizer? You promised to maintain ap- propriate insurance on your crew? You promised to perform according to prevail- ing standards in the business? You had bet- ter know what all of those promises mean, and have a procedure in place to keep them. Besides the obvious – it doesn’t speak well of you not to do what you promise – your failure to adhere to the terms of the agree- ment may give your customer an excuse for not sticking to his or her promises, either.
eview – Review the agreement with your customer. You should ensure that you both understand what you have agreed to do and what the customer has agreed to do. Too often, we treat terms and conditions like the tiny print on the back of a car rental form, something to be ignored until it’s way too late. If your customer wants a change in the language, don’t flatly refuse it, or say that the form can’t be changed. Of course it can. Make your own judgment whether the customer wants a modification you can live with, or whether there’s a middle ground. Consult with your lawyer. Besides the obvious fact that this is a fair way to reach agreements that both sides understand and fully per- form, your willingness to negotiate changes may someday convince a court that these are terms you didn’t force on the customer. When contracts are one-sided – that is, dic- tated by one of the parties and presented as a “take-it-or-leave-it” deal – courts often level the playing field by strictly construing the terms of the agreement against the par- ty who dictated it. You don’t want that.
hanges – Stay on top of change orders. Like the road to perdition, the road to disaster is often paved with good intentions. The first few big changes may be well documented, but then a few small ones slip through because you and the crew are busy. Pretty soon, the contract to trim a couple of oaks has become one to terraform the back forty … and nothing has been written down, least of all the adjusted price. And that careful contract work you did at the outset of the job ends up gaining you nothing.
eep – Keep your original signed agreements and change orders in a safe and well-organized place. It wouldn’t hurt to scan all docu- ments into your computer system, and for that matter, to use cloud storage or have a secure off-site copy. Cases have been lost when the plaintiff hasn’t been able to pro- duce a signed document. Copies may do in a pinch – consult your local attorney on evidence rules in your state – but fighting an evidence battle just complicates matters if you’re in court. In litigation, as in life, it’s never a good idea to dig up more snakes than you can kill.
a FINal CautIoN:
No single publication on contracts can hope to capture all of the different statutes, rules, ordinances and common law affecting how an ar- borist in your neck of the woods should do busi- ness. That’s why relying on the advice of your lo- cal lawyer is such a good idea.
You should take this publication and the forms we’ve provided to your local attorney, so that the best ideas contained here can be melded with the ideas of someone skilled in the laws of the state and locality in which you’re located.
On the following pages, you’ll find a sample inde- pendent contractor agreement. The prudent arborist
– and you’re obviously one of those, because you’ve read this far – will use this agreement as a springboard for appropriate clauses in your own agreements, after consultation with your local attorney.
INDEPENDENT CONTRACTOR AGREEMENT
THIS AGREEMENT is entered into between
, (hereinafter “Company”) and
(hereinafter “Contractor”) as of the date set forth below.
WHEREAS, Company and Independent Contractor de- sire hereby to enter into a Contract and Agreement whereby Independent Contractor will render certain work, services, labor or materials to and for the benefit of Company in ex- change for valuable consideration;
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and suf- ficiency of which is hereby acknowledged, Company and In- dependent Contractor, intending to be legally bound hereby, agree as follows:
1. Independent Contractor agrees to render and provide work, services, labor and any materials unless other- wise specified, in accordance with the specifications attached hereto as Exhibit A and incorporated herein by reference.
2. Company agrees to pay Independent Contractor upon completion of the work described in Exhibit A, unless otherwise agreed, either a flat rate as specified in said exhib- it, or – if not specified therein – an hourly rate of Dollars ($ ). Any related expenses beyond those speci- fied in Exhibit A for which Independent Contractor seeks re- imbursement must be approved prior to the expense being incurred, unless otherwise agreed in writing.
3. Compensation paid pursuant to this Agree- ment shall not be subject to any withholding of income taxes and other employment taxes. Independent Contractor war- rants that it is not subject to any order of backup withhold- ing for any Federal, state or local taxes. Independent Con- tractor shall be solely responsible for reporting and paying
any such taxes. Company is not obligated by law, custom or any agreement to provide Independent Contractor with any insurance, participation in profit-sharing plans, Section 125 plans, or other fringe benefits that Company may now or in the future offer to its own employees. Independent Contractor warrants that at all times relevant to this Agree- ment, it will carry liability, medical and other insurance of the types and coverage amounts customary for the type of work contemplated by this Agreement. At the request of the Company, Independent Contractor will provide evidence that it has such insurance in force.
4. Independent Contractor is, and will continue to be, an independent contractor, and is not to be considered in any way subject to control by Company except as specified in this Agreement. Independent Contractor is not an agent or employee of Company. Company has no right to and shall not require Independent Contractor to devote any particu- lar time or hours to Company’s business, shall not confine Independent Contractor’s activities to any particular type of customer or any particular territory, and shall not restrain Independent Contractor from engaging in any other type of business.
5. Independent Contractor acknowledges that time is of the essence in the performance of this contract, and covenants and agrees that all work, services, labor or mate- rials shall be completed or provided in a timely manner. If Independent Contractor fails to complete or provide all work, services, labor or materials in timely manner as provided for in Exhibit A, Company shall have the right to procure the services of one or more other parties to complete or provide such work, services, or materials, and Company shall have the right to set off and deduct the cost and charges of such other contractors from the amounts due Independent Con- tractor hereunder.
6. Independent Contractor shall have no author- ity to bind or otherwise obligate Company in any manner beyond the terms of this Agreement, nor shall Independent Contractor represent to anyone that it has a right to do so.
7. Independent Contractor shall not assign any of its rights under this Agreement or delegate the performance of any of its duties hereunder without the prior written con- sent of the Company.
8. Independent Contractor shall provide all of its own tools and equipment in the performance of its duty un- less otherwise agreed by the parties. Notwithstanding this, Company agrees to pay any agreed-upon expenses incurred by Independent Contractor on behalf of Company.
9. Independent Contractor hereby does for itself, and its heirs, executors, administrators, officers, employees, subcontractors, successors and assigns, agrees and cove- nants to indemnify, and to save and hold harmless Company and its heirs, executors, administrators, agents, employees, successors and assigns from all claims, demands, actions, causes of action, suits at law or in equity, damages, costs, expenses and losses of any kind or nature whatsoever, which may hereafter arise out of or from the work, services, labor or materials to be rendered or provided by Independent Con- tractor pursuant to this Agreement.
10. Independent Contractor further warrants and agrees to render and provide said work, services, labor or provision of materials in accordance with the specifications attached hereto as Exhibit A. In addition, Independent Con- tractor warrants and agrees to render and provide said work, services, labor or materials in a workmanlike manner, to keep all property of Company and any of Company’s customers free and clear of all liens and encumbrances, and to provide Company with proof of the same, if requested. Furthermore Independent Contractor agrees to indemnify Company and Company’s customers from all liens and encumbrances aris- ing out of Independent Contractor’s work or conduct.
11. Independent Contractor agrees that at all times during the term of this Agreement and thereafter, it will hold in strictest confidence all trade secrets of which Independent Contractor becomes aware during the term of this Agree- ment.
12. The provisions of this Agreement shall be bind- ing upon and inure to the benefit of the successors and as- signs of the parties. Any provision hereof which imposes upon Independent Contractor or Company an obligation af- ter termination or expiration of this Agreement shall survive termination or expiration hereof and be binding upon Inde- pendent Contractor or Company.
13. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Company and Independent Contractor.
14. This Agreement shall be governed by and shall be construed in accordance with the laws of the State of [fill in state], and venue for the enforcement of this Agreement shall be in [fill in the county and state, probably your home county, unless your lawyer advises otherwise].
15. This Agreement constitutes the entire agree- ment between the parties pertaining to its subject matter and supersedes all prior or contemporaneous agreements, representations and understandings of the parties. No sup- plement, modification or amendment of this Agreement shall be binding unless executed in writing by all parties.
16. If any provision of this Agreement shall for any reason be held invalid, illegal or unenforceable in any re- spect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable pro- visions had never been contained herein.
17. In the event of a default under this Agreement, the defaulting party shall reimburse the non-defaulting party for all costs and expenses reasonably incurred by the non- defaulting party in connection with the default, including without limitation, court costs and attorney’s fees at the trial level and on appeal.
18. Notices given pursuant to the provision of this Agreement shall be in writing and delivered personally or sent by certified mail, return receipt requested, to the address of the party to be notified as indicated under the signature line below or at such changed address as such party may subse- quently give by written notice.
IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have executed two or more coun- terparts of this Agreement, each of which shall be deemed to be an original, but which taken together shall constitute one and the same instrument.
Executed by the parties on this day of
, 20 , at ,
.
COMPANY
, 20
By [SEAL]
Title: Company Information:
Name: Address:
Phone: Facsimile: E-mail: TIN (EIN):
INDEPENDENT CONTRACTOR
, 20
By [SEAL]
Title:
Contractor Information:
Name: Address:
Phone: Facsimile: E-mail: TIN (EIN):
EXHIBIT A
On the following pages, you’ll find a sample Ar- borist Proposal and Agreement. A prudent arborist
– like you – will study the document, and then take it to your local attorney. Spend some time and money with your lawyer adapting it for your particular needs and for the peculiarities of your state and county. A small investment now may prevent a major expendi- ture later.
Be aware that legal requirements in your state may mandate that special language be included or cer- tain sizes and styles of typeface be employed. The sample Agreement does not account for any particu- lars of state law. You should check with your attor- ney about any such legal requirements, and modify the Agreement appropriately.
WE CAN’T STRESS THAT ENOUGH. CONSULT WITH YOUR ATTORNEY.
ARBORIST PROPOSAL AND AGREEMENT
Tree an d Lan d sca pe Com pan y, LLC
123 Mai n St r eet Anytown, USA
Ph one (555 ) 555 – 5555
Facs i mile (555 ) 555-5556
Email: [Insert general e-mail address here] Website: [Insert company website address here]
Customer Name an d Addr e ss:
Date of Pro po sal :
Description of wor k:
Job to be com pleted by:
Pri ce (not inclu ding taxes ):
This proposal is considered withdrawn if the Customer has not accepted within days of the date shown on this page.
The customer’s signature constitutes acceptance of the prices, specifications and conditions set out on this page and in the attached agreement, and authorizes Tree and Landscape Company, LLC, to perform the work. Payment shall be made as set out in the attached agreement. The above price does not include applicable taxes.
CUSTOMER :
Date: , 20
[THE ATTACHED TERMS AND CONDITIONS ARE AN INTEGRAL PART OF THIS DOCUMENT]
li censedArborists and Pesticide Applicators• Capital City Landscape Association• State Arborists Society • International Association of Arborists
TERMS AND CONDITIONS
This portion of the Proposal and Agreement is more than just the “fine print.” These are the terms and conditions that will control the performance of Tree and Landscape Company, LLC (referred to as “the Company”) on the project described on the first page, and what you, our valued customer, will do in return. It’s important that you read, study and understand the Terms and Conditions before signing the Pro- posal and Agreement, because the you and the Company are agreeing to everything set out here.
This is a Contract: When you sign this Proposal and Agree- ment on the first page and initial the pages of Terms and Conditions, you are accepting the Company’s offer to perform the work described on the first page in exchange for the payment set out on that page. A contract will have been formed be- tween us.
Shorthand: In these Terms and Conditions, we use the word “Work” as shorthand for the work described on page 1 of this Proposal and Agreement. We use the word “Company” as shorthand for [Insert your company name here], and we use the words “you” or “Customer” as shorthand for [Insert your cus- tomer’s name here]. We use the word “Property” as shorthand for the real estate location belonging to you – or over which you have au- thority – where the Work will be per- formed.
I. THE WORK
Scope of the Work: The Company will furnish all labor, tools, transportation, equipment and materials needed to complete the Work. The Company will per-
form the Work in accordance with the standards set by the Ameri- can National Standards Institute (“ANSI”), by other professional and standards-setting organizations, and by the custom in the arboricul- ture industry. If the Work must de- viate from those standards because of the nature of the property or par- ticular circumstances, you and the Company will make a note of that on a page attached to this Proposal and Agreement. If a need to devi- ate from the standards does not be- come apparent until after the Work is begun, the Company will tell you right away, and you and the Com- pany will agree to the deviation in writing.
Pruning: Pruning will be supervised by a certified arborist who, through training and expe- rience, is familiar with the use of equipment and type of work to be performed on the property. Trees and shrubs will be pruned to pro- mote structural strength, enhance natural form, and maintain space limitations by removing weakened, diseased or dead branches. When pruning and removals are complet- ed, brush, wood chips, wood, and other debris will be removed from the property unless you request otherwise.
Cabling or Bracing: Ca- bles or bracing are used in trees that are structurally unstable or are of a kind or condition that is prone to structural instability. Cables may be installed to reduce strain on major limbs caused by high winds or ice and snow weight. Bracing is used for support and to reduce twisting strain on a tree. Cabling and bracing reduce strain, limit movement of trees, and sometimes
provide primary structural support or make a tree safer. After instal- lation, you will be responsible for maintaining the cabling or bracing by arranging periodic inspections by qualified persons, conducted to detect wear, corrosion, hardware degradation, or deterioration of the tree.
Tree Removal: Sometimes removal of a tree is necessary. A certified arborist will advise you in determining which trees may be a hazard. The Company will provide you with a written opinion on any tree that its certified arborist be- lieves is a “danger tree” or “hazard tree” (terms with a particular mean- ing in the industry). However, the decision and duty to remove any tree belongs to you. Your obligation to remove or trim “danger trees” or “hazard trees” is often fixed by law, and you should consult with a legal professional about decisions you make on such trees. The Company cannot advise you on your legal ob- ligations to others, and is not liable for any decision you may make to either retain or remove a tree from the property.
Cuttings: If you request it, wood of sufficient diameter from trees that have been cut down or trimmed will be cut into 18 – 24” lengths and left at the trimming or removal site. If you wish to have the wood moved to another loca- tion in the yard, removed from the property, or split into firewood, the Company may provide this service for an additional charge if person- nel, equipment and the time needed to complete the Work permits.
Grinding of Stumps: The Company may provide stump grind- ing for an additional charge if per- sonnel, equipment and the time
mits. If the Company is provid- ing this service, you understand that stump grinding is not nor- mally completed on the same day the tree is cut down, and requires adequate access for the machinery and personnel. Stumps are nor- mally ground to 8 – 10” below the grade level, unless otherwise speci- fied. Deeper grinding is essential for replanting close to the original site, and must be specified when ar- ranging for stump grinding. Stump chips are left on the property, and are raked into a pile by the original stump. Topsoil and seeding is not included in stump removal service. However, the Company may pro- vide these services for an additional charge if personnel, equipment and the time needed to complete the Work permits.
Surface Roots: Roots nor- mally grow from 4 – 8” below the surface, and – given time – may become exposed as they increase in diameter or because of erosion. Exposed roots are known as “sur- face roots.” Surface roots are not removed as a part of stump removal service, although the Company may provide this service for an addition- al charge if personnel, equipment and the time needed to complete the Work permits.
Staking: Young trees are staked to support and protect them until they are able to stand without support. You are responsible for in- specting staked trees once every 60 days to prevent girdling or chafing of trunks or branches. Stakes should not remain on trees for more than one year. The Company will provide staking services if it is called for in the Work.
General Fertilization: Tree fertilization is usually done with a slow-release liquid injected into the root area under pressure. The liq- uid is sometimes formulated with additives as necessary if signs of nutrient deficiencies are observed. Most trees should be fertilized once a year. Fertilization is generally per- formed between October and June. Granular fertilizer may be used over the root area of shrubs and trees without a grass ground cover. The Company will perform such fertil- ization if called for in the Work. The Company will provide you with a material safety data sheet – known as an “MSDS” – for all chemicals ap- plied. It will be your responsibility to adhere to any safety precautions called for in safety material supplied by the Company.
Insect and Disease Con- trol: Pesticides are used to control insects and prevent diseases. The chemicals are applied under the su- pervision of a licensed pest control applicator, following procedures di- rected by the manufacturer of the pesticide, by industry standards, and applicable law. One or several applications may be necessary. The Company will apply pesticides if called for in the Work. The Com- pany will provide you with an MSDS for all chemicals applied. It is your responsibility to adhere to any safe- ty precautions called for in safety material supplied by the Company.
Check and Cut Girdling Roots: Girdling roots wrap around the base of the tree trunk and can restrict a tree’s vascular tissues from functioning properly. The Company will inspect the area at the base of the tree, if called for by the Work, by using appropriate tools. If any gird- ing roots are found, they will be cut but may not be removed.
Aeration: The Company may provide aeration or vertical mulching services, if such is called for by the Work. Holes will be made with appropriate tools to relieve soil compaction. Holes may be back- filled with compost, gravel, or an- other appropriate substance.
II. RESPONSIBILITIES OF THE PARTIES
Licenses & Certification: The Company is properly licensed and certified to do the Work, and it will use the services of a properly li- censed and certified arborist.
Liability Insurance: The Company maintains workers com- pensation and liability insurance appropriate to the Work and at lev- els mandated by law and customary in the industry.
Property Boundaries: The proper identification of the prop- erty boundaries – so that trees not belonging to the Customer are not mistakenly removed or trimmed – is very important. Mistakes about boundaries can lead to serious fi- nancial consequences for both you and the Company. You are respon- sible for providing the Company, prior to the commencement of the Work, with accurate and complete information about the boundary lines of the property and any re- strictions, easements, encumbranc- es or rights-of-way that affect or re- late to the Property. The Company may ask you to mark boundaries on a map or satellite photo of the property. If asked, you will be re- sponsible for providing such a map or photo. Likewise, you are respon- sible for the accuracy of boundary markers, and if you have any doubt about the accuracy of the markers or boundary lines, you should hire
a qualified surveyor or legal pro- fessional before the Company be- gins the Work. The Company can- not advise you about the location of boundaries or the legal effect of boundaries or markers.
Ownership: You are as- suring the Company that all of the trees, plants, and property upon which the Work will be performed are owned by you, or that you have the authority to order the Work. If you have any doubts about encum- brances or restrictions on the Prop- erty, if you do not own the Property but instead are a tenant, life estate holder, licensee, trustee or land in- stallment contract vendee, or if you are only one of several people own- ing the Property, you should con- sult a legal professional about your right to order the Work before the Company begins.
Permits: Governmental authorities – local, regional, state or Federal – may require permits for re- moval or trimming of trees or other plants, for application of pesticides or fertilizers, or for other aspects of the Work. You agree to obtain and pay the cost of any necessary per- mits.
Underground Utilities: Sometimes it seems that under- ground wires, cables, pipes and other utility services are every- where, and occasionally are where they are least expected. Many areas impose legal requirements on cus- tomers like you and contractors like the Company to identify the location of underground utilities, and give advance notice to or obtain permis- sion from utilities or agencies before engaging in certain activities. Some of these activities may be included in the Work. Customers may face
substantial penalties and fines for the disruption of public utility ser- vices, even where the disruption is accidental. You agree to provide the Company with information regard- ing concealed utilities, and to fulfill any obligation of notification or per- mitting imposed by law on property owners or customers like you. The Company promises you that it will fulfill any similar requirements im- posed on it by law. The Company will make every effort to protect the utilities, but it assumes no respon- sibility for underground utilities be- yond that imposed on the Company by law.
Uncertainties: The Com- pany will use its best efforts and do everything reasonably possible to preserve trees and plants, and will perform the Work in compliance with industry standards. However, trees, shrubs and plants are liv- ing things, and their continued life and health are subject to a myriad of factors. The Company cannot guarantee your plants’ continued vitality. At times trees fail for no explainable reason or for causes beyond the Company’s or your con- trol. Tree ownership and steward- ship requires that you assume the risks inherent with that ownership, and those include the risk that your trees may suffer from illness, dam- age from weather, infestation, and a host of other natural impediments to health and life.
Other Work: The Com- pany prides itself on the level of care and professionalism our employees bring to the work we do. From time to time during the performance of the Work, we may observe mat- ters outside of the description of the Work that we think ought to be performed nonetheless, and the
Company may perform such addi- tional minor work without charge. If the Company does perform ad- ditional services without charge, the additional services are to be considered to be a courtesy only and do not obligate the Company to provide such additional services in the future. You understand that the Company is not liable for failing to provide any service – even if its personnel notice the need for such service – that is not listed in the de- scription of the Work.
Independent Contractor; Inherent Danger: You and the Company agree that we are your independent contractor, and that the Company is free to choose its own means and methods, and is responsible to you only for com- pleting the Work with reasonable care and in accordance with this Agreement, with standards set by ANSI and other standard-setting organizations, and with custom in the industry. You agree that you do not seek to retain the right to con- trol the mode and manner of doing the Work. Many of the activities of the Company undertaken during performance of the Work – includ- ing without limitation tree removal and tree trimming – is dangerous, and requires special equipment and training to be performed safely. The safety of bystanders and other per- sons not trained to perform these services, not wearing safety equip- ment, and not actively employed in the activities, cannot be guaranteed. The Company cannot permit you to assist its personnel in performance of the Work.
The Company’s Promise to Indemnify You: The Company indemnifies you from any loss aris- ing from Work that is not performed
with reasonable care or in accor- dance with standards set by ANSI and other standard-setting organi- zations, and with custom in the in- dustry.
Your Promise to Indem- nify the Company: You indem- nify the Company and its employ- ees from any loss or expense arising from Work that is performed with reasonable care or in accordance with the Agreement, with standards set by ANSI and other standard-set- ting organizations, and with custom in the industry. You indemnify the Company from any loss or expense arising from any charge of trespass or wrongful cutting resulting from alleged errors with respect to prop- erty boundaries that you have iden- tified, or from allegations that you lack authority to direct the Compa- ny to do the Work performed. You indemnify the Company from any loss or expense arising from the presence of personnel other than Company personnel around the location at which the Work is be- ing performed. Additionally, you indemnify the Company from any loss or expense arising from main- tenance or removal of cabling and bracing of any tree, or from damage caused by a tree that has cabling or bracing installed or maintained by the Company.
Unavoidable Delays: The Company will use its best efforts to complete the Work as scheduled. However, the nature of the Work makes it very susceptible to delay due to weather, regulation, and nat- ural disasters or emergencies that endanger the Company’s person- nel in tree removal and trimming, or makes completion of the Work in a timely manner infeasible. The safety of the Company’s personnel
and of persons and property around the Work is paramount. Also, the nature of the industry is such that the Company may be called upon to respond to emergencies occasioned by the weather or other disasters for the good of the community or when requested by government. Emer- gency work must have priority over the Work. Delays in completion because of any of these matters or safety concerns will not constitute a breach of the Proposal and Agree- ment by the Company.
Your Delay: If you de- lay in signing the Proposal and Agreement and returning it to the Company past the expiration date on the first page, the Company may decline to accept the Proposal and Agreement. If the Company does accept it out of time, you under- stand that the Company may pro- pose a new completion date, which you may either accept or reject. If you reject the revised date, the Pro- posal and Agreement will be void.
Cancelation of Work: If you wish to cancel the work, you must do so in writing, and the Com- pany must receive your written no- tice by email, mail, or facsimile be- fore midnight of the third business day after the date of signing this Proposal and Agreement.
IV. TERMS OF PAYMENT Invoices and Terms: The
Company will provide you with one
or more written invoices during the Work or on completion. The full amount owed is due and payable upon receipt. Invoices that are not paid within thirty (30) days will be considered past due and a service charge of 2% per month will be add- ed to past due account balances. Any account not paid within thirty
(30) days may be turned over for collection, and appropriate reports may be made to credit agencies. If the Company uses outside agents to collect the account, you are respon- sible for all costs associated with the collection, including without limita- tion surcharges by the agency, at- torney fees, expert and court costs.
Taxes: The Company will collect all applicable Federal, state or local taxes to be paid on the Work. All work is subject to tax in the state and county in which the work was performed (if any is as- sessed). If you claim a tax exemp- tion, you must submit appropriate documentation to the Company pri- or to commencement of the Work.
V. MISCELLANEOUS TERMS Arbitration: You and
the Company agree that all claims or disputes that may arise under the Proposal and Agreement will be settled by binding arbitration in [insert location here]. An award of arbitration may be confirmed in a court of competent jurisdiction.
Notices: If it becomes nec- essary for us to give notice or make demand on each other, we agree that the notices or demands (1) shall be in writing, and (2) shall be sent to the parties at their respective ad- dresses set out on the first page.
Entire Agreement; Modi- fication: You and the Company intend that the Proposal and Agree- ment constitute the entire agree- ment between us. We have no other oral or written agreements or un- derstandings that aren’t set out in this document. In the event that we decide to amend our agreements, or agree to any change orders in the
Work described on the first page, we will make those amendments or change orders in writing, and we will both sign the written change orders or amendments. No changes or amendments that aren’t written down and signed by both of us will bind us or have any effect.
Beneficiaries: This Pro- posal and Agreement is intended to benefit you and the Company only. No other person is intended to be a beneficiary of any express or im- plied warranties or representations we are making in this document.
Customer Initials
ARBORIST PROPOSAL AND AGREEMENT CHANGE ORDER
Tree a nd La n d sca pe Com pa n y, LLC
123 Mai n St r eet Anytown, USA
Phone (555 ) 555-5555
Facsimile (555) 555-5556
Email: [Insert general e-mail address here] Website: [Insert company website address here]
Cu stomer Na m e:
Ch an ge O r d e r No.
Date of Ch a n ge Ord e r:
Description of ch a n ged wor k:
Ch an ge in co m pl et ion da te :
Ad diti on a l Pric e (not inclu ding tax es):
This Change Order modifies the agreement between the parties only to the extent of the changes described on this form. The customer ‘s signature constitutes acceptance of the prices, specifications and conditions set out on this Change Order. This Change Order is governed by the Terms and Conditions set out in the Arborist Proposal and Agreement between the parties .
CUSTO ME R:
Date: 20
LicensedArborists and Pesticide Applicators• Capital City Landscape Association • State Arborists Society• International Association of Arborists
Do Your Contracts BARCK like a dog?
As an accomplished arborist, you have enough to do manag- ing your practice and keeping up with developments in your chosen field. You know as much about legal aspects of contracting with your customers – and the complexities of maintaining your status as an independent contractor – as lawyers know about phytopathol- ogy and parasitism. And that’s not very much.
Contract Basics for Arborists highlights legal issues of con- tracting with customers that every arborist should know, avoiding jargon and irrelevant legal minutiae. Was Fred Flintstone an em- ployee or independent contractor? How about the A-Team? Why should you r contract “BARCK” like a dog? You’ll find the answers here.
Being able to identify an Emerald Ash Borer doesn’t make your attorney an arborist, just as understanding what kinds of con- tract terms can jeopardize your standing as an independent con- tractor won’t make you a lawyer. But a lawyer who knows an Ash Borer from a ladybug has a better idea when to call you for help. Likewise, appreciating some of the problems described in this book will alert you to problems that can be avoided easily, and when it may be time to talk to your attorney.
Contract Basics for Arborists includes several contract forms tailored to professional arborists that you may adapt for use in your business.
Tree and Neighbor Law For Homeowners and Professionals 