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HomeMy WebLinkAboutResolution 2014-020 N.C.S. 2/3/2014 Resolution No. 2014-020 N.C.S. of the City of Petaluma, California AUTHORIZING AN AGREEMENT WITH PETALUMA AMERICAN LITTLE LEAGUE FOR INSTALLATION OF LIGHTING IMPROVEMENTS ON ONE BASEBALL FIELD AT LUCCHESI PARK WHEREAS, Petaluma American Little League(PALL) is an organization supporting baseball for approximately 300 children annually ranging in age from 6 to 12 years old; and, WHEREAS, Lucchesi Park has been the home of PALL since 1961; and, WHEREAS, the City currently issues PALL permit(s) and may in the future issue use agreements to play baseball games at the three baseball fields located in Lucchesi Park; and, WHEREAS, PALL Volunteers have performed numerous improvement projects at Lucchesi Park and continue to perform annual, seasonal and daily field maintenance benefitting PALL programs and other Lucchesi Park users; and, WHEREAS, it benefits the City and PALL for PALL to install or have installed four field lights at the American Little League Major League Field located in Lucchesi Park; and, WHEREAS, PALL baseball game play will improve with the addition of field lights on the Major League Field; and, WHEREAS, Lucchesi Park is designed to be and is an active use community park featuring a lighted, multi-purpose all-weather field immediately adjacent to the Lucchesi Little League Fields and that is in use 350 days per year; and, WHEREAS, the Recreation, Music and Parks Commission considered the PALL proposal to install field lighting at a Regularly Scheduled meeting of the Commission, and provided special notice of said meeting to property owners and tenants within 500' of the project and has respectfully forwarded a recommendation to the City Council to approve the project; and, WHEREAS, Parks and Recreation staff, in conjunction with Planning and Attorney staff members have considered the project under CEQA and it can be seen from the facts in the staff report concerning the proposed lighting installation, which staff report is incorporated into and made a part of this resolution by reference, that installation and operation of the proposed lighting at the Major League Field will improve game times and make use of the Major League Field for PALL games more convenient, but will not increase lighting, noise, traffic or other impacts on Lucchesi Park or surrounding areas, and thus will result in negligible or no expansion in use of the ball fields at Lucchesi Park, and that accordingly the proposed lighting installation project at the Major League Field is categorically exempt from CEQA in accordance with Section 15301 of the CEQA Guidelines; and, Resolution No. 2014-020 N.C.S. Page I WHEREAS, PALL will be responsible for funding, supervising, and supplying the labor, equipment and materials to install field lights at the Major League Field located in Lucchesi Park in accordance with the Agreement which is attached to and made a part of this resolution as Exhibit A; and, WHEREAS, PALL will continue to use for PALL programs the ball fields at Lucchesi Park, including the Major League Field, subject to permits and/or use agreements providing for maintenance of the ball fields, times of use, and other particulars; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma, as follows: 1. The above recitals are declared to be true and correct and are hereby incorporated into this resolution as findings of the City Council. 2. The proposed installation of field lights at the Major League Field at Lucchesi Park is categorically exempt from CEQA pursuant to section 15301 of the CEQA Guidelines because the project involves minor alterations to existing public facilities and entails negligible or no expansion in use of the facilities. 3. The proposed agreement between the City and PALL governing installation of the proposed field lights at the Major League Field at Lucchesi Park which is attached to this resolution as Exhibit A is hereby approved, and the City Manager is authorized to sign the agreement on behalf of the City. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Approved as.to Council of the City of Petaluma at a Regular meeting on the 3M day of February, for 2014,by the following vote: City Attorney AYES: Albertson,Barrett, Mayor Class,Harris,Healy,Vice Mayor Kearney NOES: None ABSENT: Miller ABSTAIN: None Ott ' It ATTEST: t 1 / . City Clerk 'ayor Resolution No. 2014-020 N.C.S. Page 2 EXHIBIT A AGREEMENT This Agreement ("Agreement") is made and entered into the day of February, 2014, by and between the City of Petaluma, a California municipal corporation and charter city, hereinafter referred to as "City," and the Petaluma American Little League, herein after referred to as "PALL," a BACKGROUND 1. PALL has conducted baseball programs at Lucchesi Park in the City since 1961 and PALL volunteers have performed numerous improvement projects at Lucchesi Park and perform annual, seasonal and daily field maintenance at Lucchesi Park. 2. The City currently issues PALL permits and may in the future issue use agreements to PALL to conduct baseball game programs at the three baseball fields located in Lucchesi Park. 3. Lucchesi Park is designed to be and is an active use community park featuring lighted, multi-purpose all-weather fields in use 350 nights per year. 4. It benefits the City and PALL for PALL to install 4 (four) field lights ("Field Lights") at the American Little League Major Field ("Major League Field") depicted in Exhibit B and located in Lucchesi Park in accordance with this Agreement. 5. PALL supports baseball for children ranging in age from 6 to 12 years old. PALL leagues play baseball on three baseball fields in Lucchesi Park. PALL baseball game play will improve with the addition of field lights on the Major League Field in Lucchesi Park. 6. PALL will be responsible for funding, supervising, and supplying the labor, materials and equipment to install field light improvement (the "Improvements") on the Major League Field located in Lucchesi Park in accordance with this Agreement. 7. The City Council on the third day of February, 2014 by Resolution No. N.C.S. determined that installation of the Improvements is categorically exempt from the California Environmental Quality Act ("CEQA") as a minor alteration of existing public facilities with negligible or no expansion in use and authorized execution of this Agreement on behalf of the City in accordance with the City Charter, the City Municipal Code and/or other applicable law; NOW, THEREFORE, City and PALL, for the consideration hereinafter described, mutually agree as follows: Resolution No. 2014-020 N.C.S. Page 3 1. PROJECT DESCRIPTION PALL will install and/or have installed the Musco Light Structure Green lighting system described in Exhibit A which is attached to and made a part of this Agreement in accordance with all requirements of this Agreement. The Improvements will be installed on the Major League Field on or about the locations noted on Exhibit B, which is attached to and made a part of this Agreement. 2. PALL 's SCOPE OF WORK A. PALL will employ Mike Brown Electric Co. License4306767 or any other licensed electrical contractor reasonably acceptable to City for the electrical work necessary for proper installation of the Improvements so that the Improvements function as intended and in accordance with all applicable warranties. PALL will be solely responsible for compensating the electrical contractor and any other service providers performing work on the Improvements for compensation. B. PALL will provide all labor and equipment necessary to trench the area around where the Improvements are to be installed. PALL may use volunteer labor for such trenching. C. PALL will be responsible for the hole boring necessary for the base installation of the Improvements. PALL may use volunteer labor for hole boring. D. PALL will be solely responsible for the cost of the Musco Lighting system that is to be installed on the Major League Field as part of the Improvements. 3. CITY'S SCOPE OF WORK A. The City will authorize the upgrade of any electrical meters necessary for proper installation and operation of the Improvements prior to installation of the Improvements. B. The City will authorize PG&E and/or a qualified contractor to upgrade power service necessary for proper installation and operation of the Improvements prior to installation of the Improvements. C. The City will trim or remove any and all trees and other foliage impeding the Installation in accordance with applicable City policies. D. The City will provide normal landscaping maintenance at the Lucchesi ball fields, including the Major League Field. 4. OWNERSHIP OF IMPROVEMENTS AND COST OF MONTHLY UTILITY CHARGES Resolution No. 2014-020 N.C.S. Page 4 Once the City determines that the Improvements have been installed and are operating in accordance with this Agreement, the Improvements will become City-owned improvements and the City will pay the monthly lighting and utility bill for the Improvements and risk of loss of the Improvements will pass to the City. 5. USE OF THE IMPROVEMENTS PALL'S use of the Improvements will be subject to applicable permits and/or use agreements issued by the City. The City will issue PALL permits and/or use agreements for use of City facilities, including the Improvements, in accordance with applicable City regulations governing such permits and/or use agreements, and such permits and/or use agreements will not be unreasonably withheld. Such permits and/or use agreements will provide that PALL will adhere to Little League® regulations with respect to night games, and will not begin a new inning after 10:00 p.m., and will extinguish lights within 15 minutes of the end of the last game. 6. TERM The term of this Agreement ("Term") commences upon execution by authorized representatives of both parties and will expire upon the City determining that the improvements have been installed and are operating in accordance with this Agreement, unless terminated sooner in accordance with provision 20, except that provision 12 will survive the expiration or termination of this Agreement. 7. INDEPENDENT CONTRACTOR PALL and City agree that PALL, and any contractors or volunteers of PALL performing work on the Improvements are not employees or agents of the City. Persons employed or utilized by PALL for the Installation will not be employees or agents of the City. 8. PERSONS EMPLOYED BY PALL, BACKGROUND CHECKS Each person or entity engaged in the installation of the Improvements including, but not limited to, PALL's employees, volunteers, contractors, subcontractors, and subcontractor employees must be a United States citizen or have a legal right to work in the United States. All contractors must verify citizenship or legal right to work in the United States and retain an I-9 form for all persons or entities engaged in the installation and maintenance of the Field Lights. No person involved in the installation of the Improvements may have been convicted of a felony or a crime relating to theft, violence, sexual misconduct or a violation of the California Health and Safety Code. Any violation of this provision shall constitute a default subject to termination of this Agreement. 9. STANDARD OF PERFORMANCE Resolution No.2014-020 N.C.S. Page 5 A. PALL will install the Improvements and/or have them installed in the manner and according to the standards observed by a competent practitioner in the geographical area and will prepare all work products required by this Agreement in accordance with those standards. PALL will comply with all federal, state and local laws and regulations applicable to the installation of the Improvements. PALL'S failure to comply with any law(s) or regulation(s) applicable to the installation of the Improvements shall constitute a default subject to termination of this Agreement in accordance with section 20 of this Agreement. B. PALL shall assign only competent personnel to installation the Improvements pursuant to this agreement. 10. INSPECTION City may conduct periodic inspections of the PALL's installation efforts and of the Improvements to be installed. PALL will be responsible for any damage to Lucchesi Park or any other public or private property caused by PALL or PALL's officials, officers, employees, agents, volunteers or contractors during the installation of the Improvements, and shall repair or replace any such damage to Lucchesi Park or other public or private property to the reasonable satisfaction of, and at no cost to, the City until the City determines that the installation of the Improvements is complete in accordance with this Agreement. If the City finds that repairs or changes are required in connection with this Agreement, which, in the reasonable opinion of the City are rendered necessary as the result of damage resulting from the installation of the Improvements, then PALL shall, within five (5) days of receipt of notice from the City correct all defects therein, and make good on all damages. If PALL fails to correct any such damage at PALL's expense, the City may affect such repair as necessary, and require PALL to pay for the cost of such repair within 14 days of presentation of a demand for payment from City. The City may also treat any failure to pay any such amount on demand as a default subject to termination in accordance with section 18 of this Agreement. 11. OTHER GOVERNMENTAL REGULATIONS PALL shall ensure that the installation of the Improvements is performed in accordance with all applicable rules and regulations. 12, INDEMNITY A. To the maximum extent permitted by law, PALL shall, at its own expense, indemnify, defend with counsel acceptable to the City, (which acceptance will not be unreasonably withheld), and hold harmless City and its officers, officials, employees, agents and volunteers ("Indemnitees") from and against any and all liability, loss, damage, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties and fines, Resolution No. 2014-020.N.C.S. Page 6 expenses and costs (including, without limitation, claims expenses, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature, whether actual, alleged or threatened, arising out of or in connection with the installation of the Improvements, or the failure of PALL or any of its officials, officers, employees, agents, contractors or volunteers to comply with any of the terms of this Agreement, regardless of any fault or alleged fault of the Indemnitees. B. PALL's obligation to indemnify, defend and hold harmless under this provision shall not be excused because of PALL's inability to evaluate Liability, or because PALL evaluates Liability and determines that it or any of its contractors or volunteers is not or may not be liable. PALL must respond within 30 calendar days to any tender for defense and indemnity by the City, unless the time for responding is extended by an authorized representative of the City in writing. If PALL fails to accept tender of defense and indemnity within 30 calendar days, in addition to any other remedies authorized by law, so much of the money due or that may become due to PALL under this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the matter subject to tender, or until PALL accepts the tender, whichever occurs first. C. PALL waives any and all rights to express or implied indemnity against the Indemnitees concerning any Liability of PALL arising out of or in connection with the Installation or failure to comply with any of the terms of this Agreement . D. Notwithstanding the foregoing, to the extent this Agreement is a "construction contract" as defined by California Civil Code §2783, as may be amended from time to time, PALL's duty to indemnify under this provision shall not apply when to do so would be prohibited by California Civil Code §2782, as may be amended from time to time. E. Notwithstanding the foregoing, to the extent that the installation includes design professional services subject to Cal. Civil Code § 2782.8, as amended from time to time, PALL's duty to indemnify shall only be to the maximum extent permitted by Civil Code § 2782.8. 13. INSURANCE Attached to and made a part of this Agreement as Exhibit "C" are the Insurance Requirements that PALL must satisfy before commencing installation of the Improvements. Failure to maintain the kinds and amounts of insurance and/or to provide proof of insurance as required pursuant to Exhibit C and this provision shall constitute a default subject to termination in accordance with section 18 of this Agreement. 14. NON-DISCRIMINATION Resolution No.2014-020 N.C.S. Page 7 During the performance of this Agreement, PALL will not discriminate against any employee of PALL or applicant for employment.because of race, religion, creed, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation. PALL will take affirmative action to ensure that employees are treated during employment without regard to their race, religion, creed, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation. 15, AMERICANS WITH DISABILITIES ACT The installation of the Improvements must be performed in accordance with all applicable provisions of the Americans with Disabilities Act of 1990 ("ADA") and any other applicable state or federal law or regulation governing access of persons regarding the performance of the Services. Meetings, hearings, conferences, classes, and other activities carried out in the installation of the Improvements must occur in accessible locations, and auxiliary aides must be provided, upon request, to participants with disabilities. PALL must comply with any directives of the City as may be required for purposes of applicable accessibility requirements, and must notify the City as soon as possible concerning any aspect of the Improvements that PALL reasonably believes may require improvements to satisfy applicable access requirements. 16. LICENSES AND PERMITS A. BUSINESS LICENSE. To the extent the requirements of Chapter 11 of the Petaluma Municipal Code apply, PALL and any contractors subject to the requirements of Chapter 11 of the Petaluma Municipal Code must acquire at their sole expense a business license from the City in accordance with that chapter. Such licenses must be kept valid throughout the Agreement Term. B. OTHER LICENSES AND PERMITS. PALL represents and warrants to City that PALL and its employees, agents, volunteers and any contractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice in their respective professions. PALL expressly represents and warrants to City that PALL and its employees, agents, volunteers and any contractors shall, at their sole cost and expense, keep in effect at all times during the Installation any licenses, permits, and approvals that are legally required. 17. OWNERSHIP OF WORK PRODUCTS AND TREATMENT OF DOCUMENTS All plans, specifications, reports, designs and other documents prepared by PALL pursuant to this Agreement shall be and remain the property of the City. Except as may be otherwise required by law, PALL will disclose no data, plans, specifications, reports or other documents pertaining to the Installation without the prior written consent of the City. PALL shall fully cooperate with the City concerning fulfillment of any legal Resolution No. 2014-020 N.C.S. Page 8 obligations of the City concerning information prepared or maintained by PALL pursuant to this Agreement, including, but not limited to, obligations of the City pursuant to the California Public Records Act and other applicable law. 18. ALTERNATIVE DISPUTE RESOLUTION Should any dispute arise between the City and PALL that cannot be resolved through good faith negotiations, the parties may resolve the dispute through the use of any alternative dispute resolution process on which the parties may agree. 19. AMENDMENT This Agreement may be amended only by a written instrument executed by authorized representatives of both parties. 20. DEFAULT It shall constitute a default under this Agreement if any of the events described below occurs. However, a non-defaulting party may,( but need not), grant to the defaulting party a reasonable time within which to cure the default, and if so, must specify such time in a notice of default and opportunity to cure provided to the defaulting party. If the defaulting party, upon receipt of such notice and opportunity to cure, promptly commences and completes such cure within the time specified or any extension granted by the non-defaulting party to the reasonable satisfaction of the non-defaulting party, then such default will be deemed cured. A Either party liquidates its business, becomes insolvent, makes an assignment for the benefit of creditors or has filed against it a petition of bankruptcy, bill in equity, or other proceeding(s) for the appointment of a receive or other custodian for its property, or it proceedings for reorganization or composition with creditors under any law are instituted by or against PALL or if any levy or sale or execution of any kind is made upon or of the any property of PALL. B. Either party fails to perform any of its obligations in accordance with this Agreement 21. TERMINATION AND REMEDIES A. City may terminate this Agreement for convenience by giving at least 90 days' written notice to PALL specifying the termination effective date. Upon receipt of such notice, PALL shall cease the Installation. In case of such termination for convenience, City shall pay PALL for all monies PALL expended in accordance with this Agreement through the termination effective date. City may condition payment of such compensation upon PALL delivering to City any and all materials or property provided to or prepared by PALL, and any and all materials or property provided to or prepared by City for PALL, in connection with this Agreement. Resolution No.2014-020 N.C.S. Page 9 B. If PALL materially breaches any term of this Agreement, in addition to any other remedies the City may have at law or equity, the City may: 1. Terminate the Agreement by notice to PALL specifying the termination effective date; 2. Retain, and/or recover from PALL at no additionalcost to the City, the plans, specification, drawings, reports and other design documents and work products prepared by PALL, whether or not completed, and any and all materials or property provided to or prepared or installed by PALL or by any person or entity performing work installing the Improvements under PALL's supervision or direction, and any and all materials or property provided to or prepared by City for PALL, in connection with this Agreement; 3. At the City's sole expense the City may complete the unfinished Improvements or have the unfinished Improvements completed, and/or; C. If City is in breach of any provision of this Agreement, PALL shall have all rights and remedies afforded to it by this Agreement or law or equity. 22. BINDING EFFECT AND ASSIGNMENT PROHIBITION This Agreement is binding upon City, PALL, and their successors. No assignment or transfer in whole or in part of this Agreement shall be made without the prior written consent of the City. 23. REPRESENTATIVES A. City representative for purposes of this Agreement will be the City Manager or his or her designee. PALL's representative for purposes of this Agreement will be its President. The parties' designated representative will be the primary contact person regarding the performance of the Installation. PALL shall not substitute or replace primary representative without approval of the City. B. Notices: Any written notice to PALL shall be sent to: PALL President 229 Maria Drive Petaluma, CA 94954 Any written notice to City shall be sent to: Resolution No.2014-020 N.C.S. Page 10 City Clerk City of Petaluma 11 English Street Petaluma, California, 94952 24. INTEGRATION AND AMENDMENT This Agreement represents the entire and integrated agreement between City and PALL and supersedes all prior negotiations, representations or agreements, whether written or oral. If a discrepancy, disagreement, ambiguity, inconsistency or difference in interpretation of terms arises as to terms or provisions of this Agreement and any Exhibit(s) attached to this Agreement, this Agreement shall control and shall be deemed to reflect the intent of the Parties with respect to the subject matter hereof. 25. CONFLICT OF INTEREST PROHIBITION A. City and PALL will comply with the requirements of the City's Conflict of Interest Code adopted pursuant to the provisions of California Government Code Section 87300 and following, the Political Reform Act (California Government Code Section 81000 and following), the regulations promulgated by the Fair Political Practices Commission (Title 2, Section 18110 and following of the California Code of Regulations), California Government Code Section 1090 and following, and any other ethics laws applicable to the performance of the Services and/or this Agreement. Contractor may be required to file with the City Clerk a completed Form 700 before commencing performance of the Services unless the City Clerk determines that completion of a Form 700 is not required, pursuant to the City's Conflict of Interest Code. Form 700 forms are available from the City Clerk. B. PALL may not employ any City official, officer or employee in the performance of the Services in violation of any applicable rule or law, nor may any official, officer or employee of the City have any financial interest in this Agreement that would violate California Government Code Section 1090 and following. PALL warrants that it did not participate in any manner in the forming of this Agreement in violation of Government Code Section 1090. PALL understands that, if this Agreement is made in violation of Government Code Section 1090 and following, the entire Agreement is void. C. Any violation by the Contractor of the requirements of this section will constitute a default subject to termination pursuant to section 20 of this Agreement, and the City reserves all its rights and remedies at law and equity concerning any such violations. 26. APPLICABLE LAW AND VENUE Resolution No. 2014-020 N.C.S. Page 11 The laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and the interpretation of this Agreement. Any action or proceeding that is initiated or undertaken to enforce or interpret any provision, performance, obligation or covenant set forth in this Agreement shall be brought in a state court in Sonoma County. 27. RECOVERY OF ATTORNEY'S FEES If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret any term of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 28. SEVERABILITY If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged will remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 29. WAIVER. In the event of a breach or default under this Agreement by any party, the failure by the non-breaching or defaulting party to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision. 30. NO THIRD PARTY BENEFICIARIES, The Parties do not intend to create, and nothing in this Agreement shall be construed to create any benefit or right in any third party. 31. COUNTERPARTS. This Agreement may be executed by facsimile or in one or more counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument. IN WITNESS HEREOF, the parties have caused their authorized representative to execute this Agreement on this day of February , 2014. Resolution No.2014-020 N.C.S. Page t2 City PALL By: By: John C. Brown, City Manager Fred Hilliard, President ATTEST: BY: Thomas Perry, Vice President By: Eric Danly, City Attorney By: Claire Cooper, City Clerk BY: Robert Mota, Treasurer BY: Todd Bugbee, Secretary Exhibits: Exhibit A— Musco Lighting Improvements Exhibit B — Map of baseball fields at Lucchesi Park Exhibit C— Insurance requirements Resolution No. 2014-020 N.C.S. Page 13 INSURANCE REQUIREMENTS EXHIBIT B-1 Consultant's performance of the Services under this Agreement shall not commence until Consultant shall have obtained all insurance required under this paragraph and such insurance shall have been approved by the City Attorney as to form and the Risk Manager as to carrier and sufficiency. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Consultant shall procure and maintain for the duration of the contract all necessary insurance against claims now and in the future for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by the Consultant, the Consultant's agents, representatives, employees and subcontractors. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage: a. Personal injury; b. Contractual liability. 2. Insurance Services Office form covering Automobile Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Such other insurance coverages and limits as may be required by the City. B. Minimum Limits of insurance Consultant shall maintain limits no less than: 1. General Liability: $,1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate liability is used, either the general aggregate limit shall apply separately to this Agreement or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: Bodily Injury by Accident - $1,000,000 each accident. Bodily Injury by Disease -$1,000,000 policy limit. Bodily Injury by Disease - $1,000,000 each employee. 4. Such other insurance coverages and limits as may be required by the City. 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 the City, its officers, officials, employees, and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Resolution No.2014-020 N.C.S. Page 14 D. Other Insurance Provisions The required general liability and automobile policies are to contain, or be endorsed to contain the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as Additional Insureds as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased, hired or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents or volunteers. 2. For any claims related to this project,the Consultant's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. 4. The Consultant'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. 5. 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. 6. Consultant agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors, subcontractors or others involved in any way with the Services to do likewise. F. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. F. Verification of Coverage Consultant shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before the Services commence. Resolution No.2014-020 N.C.S. Page 15