HomeMy WebLinkAboutNiesen, Walter 2021-05-28 COU No. 2021-206
AGREEMENT FOR CATTLE GRAVING
This Agreement, made and entered into this day of 2021 ("Effective
Date"), by and between CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and
Walter Niesen, a Sole Proprietorship, hereinafter referred to as "Niesen".
RECITALS
This Agreement is predicated on the following facts:
a. City owns and maintains 285 acres ("Landfill Property") approximately 40 acres of which
was used as a solid waste landfill until 2001 ("the Landfill Footprint"). In order to control
grass and other vegetation within that property the City has determined to allow Niesen
to graze cattle on the landfill property, subject to the terms of this Agreement.
b. Niesen represents that it has the skills and experience to graze his cattle on the landfill
property in compliance with the terms of this Agreement.
C. City and Niesen agree upon the Scope-of-Work in Section 1.1, describing contract
provisions for the projection and setting forth the completion dates for the various
services to be provided pursuant to this Agreement.
TERMS OF AGREEMENT
1.0 DESCRIPTION OF PROJECT
1.1 The Scope of Work involves grazing cattle on the Ukiah Landfill Property. Niesen is
responsible for keeping the cattle confined to the Landfill Property and excluding them
from the Landfill Footprint. In furtherance thereof, Niesen shall the repair all fencing at its
expense. Grazing operations shall not occur on the Landfill Footprint and shall not
damage any existing infrastructure.
2.0 SCOPE OF SERVICES
2.1 As set forth in Section 1.1 of the Agreement
2.2. Additional Services. Additional services, if any, shall only proceed upon written
agreement between City and Niesen. The written Agreement shall be in the form of an
Amendment to this Agreement.
3.0 CONDUCT OF WORK
3.1 Time of Completion. Niesen shall commence performance of services as required upon
receipt of a Notice to Proceed from City and shall complete such services by
September 30, 2021 unless reasons can be made to extend the contract date. Niesen
shall complete the work to the City's reasonable satisfaction, even if contract disputes
arise or Niesen contends it is entitled to further compensation.
4.0 COMPENSATION FOR SERVICES
4.1 Basis for Compensation. Use of the Landfill Property shall be Niesen's sole
compensation from the City for the City's consent to grazing his cattle thereon.
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4.2 Changes. Should changes in compensation be required because of changes to the
Scope-of-Work of this Agreement, the parties shall agree in writing to any changes in
compensation. "Changes to the Scope-of-Work" means different activities than those
described in Section 1.1 of this Agreement and not additional time to complete those
activities than the parties anticipated on the date they entered this Agreement..
5.0 ASSURANCES OF NIESEN
5.1 Independent Contractor. Niesen is an independent contractor and is solely responsible
for its acts or omissions. Niesen (including its agents, servants, and employees) is not
the City's agent, employee, or representative for any purpose.
It is the express intention of the parties hereto that Niesen is an independent contractor
and not an employee, joint venturer, or partner of City for any purpose whatsoever. City
shall have no right to, and shall not control the manner or prescribe the method of
accomplishing those services contracted to and performed by Niesen under this
Agreement, and the general public and all governmental agencies regulating such
activity shall be so informed.
Those provisions of this Agreement that reserve ultimate authority in City have been
inserted solely to achieve compliance with federal and state laws, rules, regulations, and
interpretations thereof. No such provisions and no other provisions of this Agreement
shall be interpreted or construed as creating or establishing the relationship of employer
and employee between Niesen and City.
Niesen shall pay all estimated and actual federal and state income and self-employment
taxes that are due the state and federal government and shall furnish and pay worker's
compensation insurance, unemployment insurance and any other benefits required by
law for himself and his employees, if any. Niesen agrees to indemnify and hold City and
its officers, agents and employees harmless from and against any claims or demands by
federal, state or local government agencies for any such taxes or benefits due but not
paid by Niesen, including the legal costs associated with defending against any audit,
claim, demand or lawsuit.
Niesen warrants and represents that it is business independent of the City with a
substantial investment in its business and that it maintains its own business premises
and staff which it will use in performing under this Agreement.
6.0 INDEMNIFICATION
6.1 Insurance Liability. Without limiting Niesen's obligations arising under Paragraph 6.2
Niesen shall not begin work under this Agreement until it procures and maintains for the
full period of time allowed by law, surviving the termination of this Agreement insurance
against claims for injuries to persons or damages to property, which may arise from or in
connection with its performance under this Agreement.
A. Minimum Scope of Insurance
Coverage shall be at least as broad as:
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1. Insurance Services Office ("ISO) Commercial General Liability Coverage
Form No. CG 20 10 10 01 and Commercial General Liability Coverage —
Completed Operations Form No. CG 20 37 10 01.
2. ISO Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, Code 1
.,any auto" or Code 8, 9 if no owned autos and endorsement CA 0025.
3. Worker's Compensation Insurance as required by the Labor Code of the
State of California and Employers Liability Insurance.
B. Minimum Limits of Insurance
Niesen shall maintain limits no less than:
1. General Liability: $1,000,000 combined single limit per occurrence for
bodily injury, personal injury and property damage including operations,
products and completed operations. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, the
general aggregate limit shall apply separately to the work performed
under this Agreement, or the aggregate limit shall be twice the prescribed
per occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per accident for
bodily injury and property damage.
3. Worker's Compensation and Employers Liability: Worker's compensation
limits as required by the Labor Code of the State of California and
Employers Liability limits of$1,000,000 per accident.
C. Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by
the City. At the option of the City, either the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects to the City, its officers,
officials, employees and volunteers; or the Niesen shall procure a bond
guaranteeing payment of losses and related investigations, claim administration
and defense expenses.
D. Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
1. General Liability and Automobile Liability Coverages
a. The City, it officers, officials, employees and volunteers are to be
covered as additional insureds as respects; liability arising out of
activities performed by or on behalf of the Niesen, products and
completed operations of the Niesen, premises owned, occupied or
used by the Niesen, or automobiles owned, hired or borrowed by
the Niesen for the full period of time allowed by law, surviving the
termination of this Agreement. The coverage shall contain no
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special limitations on the scope-of-protection afforded to the City,
its officers, officials, employees or volunteers.
b. The Niesen's insurance coverage shall be primary insurance as
respects to the City, its officers, officials, employees and
volunteers. Any insurance or self-insurance maintained by the
City, its officers, officials, employees or volunteers shall be in
excess of the Niesen's insurance and shall not contribute with it.
C. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to the City, its officers, officials,
employees or volunteers.
d. The Niesen's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect
to the limits of the insurer's liability.
2. Worker's Compensation and Employers Liability Coverage
The insurer shall agree to waive all rights of subrogation against the City,
its officers, officials, employees and volunteers for losses arising from
Niesen's performance of the work, pursuant to this Agreement.
4. All Coverages
Each Insurance policy required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, canceled by either party,
reduced in coverage or in limits except after thirty (30) days prior written
notice by certified mail, return receipt requested, has been given to the
City.
E. Acceptability of Insurers
Insurance is to be placed with admitted California insurers with an A.M. Best's
rating of no less than A- for financial strength, AA for long-term credit rating and
AMB-1 for short-term credit rating.
F. Verification of Coverage
Niesen shall furnish the City with Certificates of Insurance and with original
Endorsements effecting coverage required by this Agreement. The Certificates
and Endorsements for each insurance policy are to be signed by a person
authorized by that insurer to bind coverage on its behalf. The Certificates and
Endorsements are to be on forms provided or approved by the City. Where by
statute, the City's Workers' Compensation - related forms cannot be used,
equivalent forms approved by the Insurance Commissioner are to be substituted.
All Certificates and Endorsements are to be received and approved by the City
before Niesen begins the work of this Agreement. The City reserves the right to
require complete, certified copies of all required insurance policies, at any time.
If Niesen fails to provide the coverages required herein, the City shall have the
right, but not the obligation, to purchase any or all of them. In that event, the cost
of insurance becomes part of the compensation due the contractor after notice to
Niesen that City has paid the premium.
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6.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition
thereto, Niesen agrees, for the full period of time allowed by law, surviving the
termination of this Agreement, to indemnify the City for any claim, cost or liability that
arises out of, or pertains to, or relates to any negligent act or omission or the willful
misconduct of Niesen in the performance of services under this contract by Niesen, but
this indemnity does not apply to liability for damages for death or bodily injury to
persons, injury to property, or other loss, arising from the sole negligence, willful
misconduct or defects in design by the City, or arising from the active negligence of the
City.
"Indemnify," as used herein includes the expenses of defending against a claim and the
payment of any settlement or judgment arising out of the claim. Defense costs include
all costs associated with defending the claim, including, but not limited to, the fees of
attorneys, investigators, Niesens, experts and expert witnesses, and litigation expenses.
References in this paragraph to City or Niesen, include their officers, employees, agents,
and subcontractors.
7.0 CONTRACT PROVISIONS
7.1 Governing Law. Niesen shall comply with the laws and regulations of the United States,
the State of California, and all local governments having jurisdiction over this Agreement.
The interpretation and enforcement of this Agreement shall be governed by California
law and any action arising under or in connection with this Agreement must be filed in a
Court of competent jurisdiction in Mendocino County.
7.2 Entire Agreement. This Agreement plus its Attachment(s) and executed Amendments
set forth the entire understanding between the parties.
7.3 Severability. If any term of this Agreement is held invalid by a court of competent
jurisdiction, the remainder of this Agreement shall remain in effect.
7.4 Modification. No modification of this Agreement is valid unless made with the agreement
of both parties in writing.
7.5 Assignment. Niesen's services are considered unique and personal. Niesen shall not
assign, transfer, or sub-contract its interest or obligation under all or any portion of this
Agreement without City's prior written consent.
7.6 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement
shall be a waiver of any other or subsequent breach of the same or any other covenant,
term or condition or a waiver of the covenant, term or condition itself.
7.8 Termination. This Agreement may be terminated at any time by the City or Niesen with
a written notice of termination. Niesen shall remove the cattle from the Landfill Property
with five (5) days after such notice is given.
7.9 Execution of Agreement. This Agreement may be executed in duplicate originals, each
bearing the original signature of the parties. Alternatively, this Agreement may be
executed and delivered by facsimile or other electronic transmission, and in more than
one counterpart, each of which shall be deemed an original, and all of which together
shall constitute one and the same instrument. When executed using either alternative,
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the executed agreement shall be deemed an original admissible as evidence in any
administrative or judicial proceeding to prove the terms and content of this Agreement.
8.0 NOTICES
Any notice given under this Agreement shall be in writing and deemed given when
personally delivered, including by email, or deposited in the mail (certified or registered)
addressed to the parties as follows:
CITY OF UKIAH WALTER NIESEN
DEPT. OF PUBLIC WORKS 2080 VALLEY ROAD
300 SEMINARY AVENUE WILLITS, CA 95490
UKIAH, CALIFORNIA 95482-5400
9.0 SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement the Effective Date:
NIESEN
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IRS IDN Number
CITY OF UKIAH
BY: 5�`S May 28, 2021
SAGE SANGIACOMO Date
CITY MANAGER
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Kristine Lawler(May 28,2021 09:04 PDT)
CITY CLERK Date
Sid Pro6A-(sAgreemem-Noti ember 20,2008
PAGE 6 OF 7
Niesen , Walter - Landfill Cattle Grazing
2021 - 106
Final Audit Report 2021-05-28
Created: 2021-05-28
By: Kristine Lawler(klawler@cityofukiah.com)
Status: Signed
Transaction ID: CBJCHBCAABAAfpHPbdAs7PwWIWzJxMW4ngSHntzWYL3P
"Niesen, Walter - Landfill Cattle Grazing 2021 -106" History
Document created by Kristine Lawler(klawler@cityofukiah.com)
2021-05-28-2:58:36 PM GMT-IP address: 12.12.163.2
Document emailed to Sage Sangiacomo (ssangiacomo@cityofukiah.com)for signature
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Signature Date:2021-05-28-3:38:13 PM GMT-Time Source:server-IP address:67.180.40.102
Document emailed to Kristine Lawler(lyricalwhims@gmail.com)for signature
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Document e-signed by Kristine Lawler(lyricalwhims@gmail.com)
Signature Date:2021-05-28-4:04:24 PM GMT-Time Source:server-IP address: 12.12.163.2
Agreement completed.
2021-05-28-4:04:24 PM GMT
0 Adoin Sign