Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Dubuque Terminals, Inc. (Newt) Ice Harbor Lease 5 3 10
LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND DUBUQUE TERMINALS, INC. (The Ice Harbor Lease) This Lease Agreement (the Lease) dated for reference purposes this day of , 2010, between the City of Dubuque, Iowa, an Iowa municipal corporation (Lessor), and Dubuque Terminals, Inc., an Iowa corporation (Lessee). SECTION 1. DEMISE AND TERM. In consideration of the rents hereinafter reserved and the terms, covenants, conditions and agreements set forth in this Lease, Lessor hereby leases to Lessee the real property shown on Exhibit A (collectively the Demised Premises), to have and to hold for an initial term commencing as of the 1 day of March, 2010, and ending at midnight on the 30 day of June, 2014 (the Term), subject to all of the terms, covenants, conditions and agreements contained herein. Expiration of this lease after 4 years is contingent upon acquisition of the Dove Harbor Lease, as attached hereto. If the Dove Harbor Demised Premises are not available as required by the Dove Harbor Lease, at no fault of Lessee, the Term of this Ice Harbor Lease shall be extended to midnight on the 30 day of June, 2015 on the same terms and conditions herein. SECTION 2. RENT, TAXES, AND OTHER PAYMENTS. 2.1. Rent. (1) Parcel A. Lessee shall pay Lessor, in addition to taxes, fees, rates, charges, levies, assessments, and all other charges required to be paid under this Lease by Lessee, rent for Parcel A in the amount of $100,000.00 per year, in twelve equal monthly payments commencing on the 1 day of July, 2010 and on the first day of each month thereafter during the Term. (2) Parcel B. Lessee shall have the right to use the shoreline shown along Parcel B but only when the gates to the Ice Harbor are closed due to flooding and only for the purpose of docking vessels or barges. Lessee shall pay Lessor, rent for use of the Parcel B shoreline in the amount of $350.00 per day or any part of a day. 2.2 Taxes. Lessee shall pay all property taxes on the Leased Premises, including the land and any improvements thereon, due and payable during the Term of the Lease. SECTION 3. TITLE TO IMPROVEMENTS AND TRADE FIXTURES. 04261 Obal 3.1 Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean all of Lessee's personal property located on the Demised Premises used in Lessee's business. Title to Lessee's trade fixtures (the Trade Fixtures) is and shall be the sole and exclusive property of Lessee during the term of this Lease and shall remain the sole and exclusive property of Lessee after the expiration or termination of this Lease, for whatever reason. Lessor acknowledges and understands that it shall have no right, title or interest in or to Lessee's Trade Fixtures either during the term of this Lease, or thereafter (except as hereinafter provided). Lessor acknowledges and agrees that Lessee shall have the right to encumber, sell, or hypothecate Lessee's Trade Fixtures, to remove them from the Demised Premises, or to otherwise deal with all or any portion of such Lessee's Trade Fixtures, at Lessee's sole discretion. Upon ten (10) days' prior written notice to Lessor, Lessor shall execute and deliver to Lessee a certificate in recordable form prepared by Lessee stating that Lessor has no interest or right in or to Lessee's Trade Fixtures, as well as any other or further document which Lessee may reasonably request from Lessor. 3.2 Improvements. On delivery of possession of the Demised Premises to Lessee, Lessee shall not construct any improvements on the Demised Premises without the prior written consent of Lessor, in Lessor's sole discretion. Upon any termination of this Lease, by reason of any cause whatsoever, if any new Improvements or Improvements existing at the time of the execution of this Lease or any part thereof shall then be on the Demised Premises, all of Lessee's right, title, and interest therein shall cease and terminate, and title to the Improvements shall vest in Lessor, and the Improvements or the part thereof then within the Demised Premises shall be surrendered by Lessee to Lessor. No further deed or other instrument shall be necessary to confirm the vesting in Lessor of title to the Improvements. However, upon any termination of this Lease, Lessee, upon request of Lessor, shall execute, acknowledge and deliver to Lessor a quitclaim deed confirming that all of Lessee's right, title and interest in or to the Improvements has expired, and that title to the Improvements has vested in Lessor. Lessor reserves the right to require Lessee to remove some or all of the Improvements which Lessee shall accomplish within 30 days of the expiration of this Lease Agreement. SECTION 4. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST. 4.1 Lessee's Right to Encumber Leasehold Interest. Lessee may encumber by mortgage, deed of trust or other proper instrument, its leasehold interest and estate in the Demised Premises, together with all Improvements on the Demised Premises, as security for any indebtedness of Lessee, provided that no such encumbrance shall extend beyond the term of this Lease. Lessee shall provide prompt written notice to Lessor of any such encumbrance together with a copy of such encumbrance. In the event of any judicial or nonjudicial foreclosure under any mortgage, deed of trust or other similar instrument made by Lessee covering its leasehold interest in the Demised Premises, Lessor shall, upon such foreclosure or sale, recognize the purchaser thereunder as lessee under this Lease, provided such purchaser expressly agrees in 2 writing to be bound by the terms of this Lease. 4.2 Notice to Holder of Encumbrance; Right of Holder to Cure Lessee's Default. If Lessee shall encumber its leasehold interest and estate in the Demised Premises and if Lessee, or the holder of the indebtedness, its successors and /or assigns (the Holder) secured by the encumbrance shall give notice to Lessor within 30 days thereafter of the existence of the encumbrance and the address of the Holder, then Lessor shall mail or deliver to the Holder, at such address, a duplicate copy of all notices in writing which Lessor may, from time to time, give or serve on Lessee under and pursuant to the terms and provisions of this Lease. The copies shall be mailed or delivered to the Holder at, or near as possible to, the same time the notices are given to or served on Lessee. The Holder may, at its option, at any time before the rights of Lessee shall be terminated as provided in this Lease, pay any of the rents due under this Lease or pay any taxes and assessments, or do any other act or thing required of Lessee by the terms of this Lease, or do any act or thing that may be necessary and proper to be done in the observance of the covenants and conditions of this Lease or to prevent the termination of this Lease; provided, however, that the doing of any act or thing requiring possession of the Demised Premises shall be subject to the further rights of Holder as set forth in 16.2. All payments so made and all things so done and performed by the Holder shall be effective to prevent a foreclosure of the rights of Lessee thereunder as the same would have been if done and performed by Lessee. SECTION 5. TAXES. 5.1 Lessee agrees to pay as additional rent an amount equal to real estate taxes upon the real estate of the Demised Premises that become payable during the term hereof and which would become delinquent if not so paid during the term hereof. Lessee shall further provide to Lessor official receipts of the appropriate taxing authority or other evidence satisfactory to Lessor evidencing payment thereof. 5.2 During the term of this Lease, Lessee further agrees to pay all other taxes, fees, rates, charges, levies and assessments, general and special, of every name, nature and kind, whether now known to the law or hereafter created which may be taxed, charged, assessed, levied or imposed upon said real estate and which become payable during the term hereof and which would become delinquent if not so paid during the term hereof, any buildings or improvements thereon which may be taxed, charged, assessed, levied or imposed upon the leasehold estate hereby created and upon the reversionary estate in said real estate during the term hereof and which become payable during the term hereof and which would become delinquent if not so paid during the term hereof, and all such other taxes, fees, rates, charges, levies and assessments shall be paid by Lessee as they become due and before they become delinquent during the term hereof. 5.3 Lessee agrees to timely pay all taxes, fees, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving Lessee's rights of appeal) against its personal property on the premises, during the term of this Lease. 3 5.4 Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to Lessor hereunder. 5.5 Lessee shall at all times have the right to contest in good faith, in any proper proceedings, in the name of Lessor if necessary, the payment or satisfaction of any such taxes, fees, assessments, rates, charges or levies so agreed to be paid by Lessee, if the validity thereof, or the right to assess or levy the same against or collect the same from said Demised Premises or Improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not less than three (3) months prior to the date when the right to redeem therefrom expires, whichever will be the earlier, Lessee shall promptly pay and satisfy such disputed tax, fee, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith. SECTION 6. REPAIRS. 6.1 Lessee shall at all times during the term of this Lease, at Lessee's own costs and expense, keep the Demised Premises and the Improvements thereon, and all sidewalks, curbs, and all appurtenances to the Demised Premises, in good order, condition and repair, and in a safe, clean and neat condition, casualties and ordinary wear and tear excepted. Lessee shall keep the Demised Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Lease, whether or not such repair shall be interior or exterior, and whether or not such repair shall be of a structural nature. Upon reasonable notice to Lessee, Lessor may, at its discretion and at its cost, conduct an annual inspection of the Demised Premises to determine Lessee's compliance with this Section 6. 6.2 Lessor shall have the right to require Lessee upon written notice to repair or remove any structure on the Demised Premises which Lessor determines does not comply with the requirements of this Section, and Lessee shall repair or remove, as the notice may require, any such structure within ten days after receipt of such notice. 6.3 Lessor shall have no obligation to Lessee for any maintenance expense of any kind on the Demised Premises or elsewhere, including but not limited to dredging, public streets, private roads, or railroad tracks. 6.4 In addition to the Demised Premises, Lessee also owns or leases the property shown on Exhibit B (the Lessee Property). (1) Lessee shall: (a) Vacate the shoreline leasehold (adjacent to Parcel B), including removal of all equipment and materials, by June 30, 2010. (b) Vacate the inland leasehold, including removal of all equipment and materials from the storage yard, and welding shop, upon expiration of the 4 lease on August 31, 2012. (c) Remove 10 bulk liquid tanks on or before December 31, 2018. (2) Lessor agrees to make a five -year low interest loan to Lessee an amount not to exceed $50,000 to assist with the costs of such removal. SECTION 7. COMPLIANCE WITH LAW. 7.1 During the term of this Lease, Lessee shall comply with all local, state and federal laws applicable to Lessee's use of the Demised Premises, including but not limited to the Americans with Disabilities Act and the Smokefree Air Act, Iowa Code Section 142D.3. 7.2 Lessee shall not commit waste on the Demised Premises except as necessary for its business purposes including the removal or construction of any buildings and Improvements on the Demised Premises, and shall be liable for any damages to or destruction of any buildings or Improvements on the Demised Premises resulting from waste and shall be required to repair or rebuild such buildings or Improvements. Lessee shall not remove any Improvements on the Demised Premises without the prior written approval of Lessor. SECTION 8. ALTERATIONS. Lessee shall not, without Lessor's prior written consent, which consent shall not be unreasonably withheld, make any alteration, addition, or modification to any Improvement on the Demised Premises that exceeds Five Thousand Dollars ($5,000.00) in cost. Any alteration, addition, or modification of less than Five Thousand Dollars ($5,000.00) shall not require Lessor's consent. SECTION 9. USE OF DEMISED PREMISES. 9.1 Lessee shall not knowingly use or allow the Demised Premises or any buildings or Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful purpose or in violation of any certificate of occupancy. Lessee shall not suffer any act to be done or any condition to exist within the Demised Premises or in any Improvement thereon, or permit any article to be brought therein, which is dangerous, unless safeguarded as required by law, or which, in law, constitute a nuisance, public or private, or which may make void or voidable any insurance in force with respect thereto. 9.2 Any vessels or barges docked along Parcel B shall be no more than 2 vessels or barges deep, shall at all times be maintained in a good state of repair, and shall not be used for the storage of junk or salvage material. 9.3 Lessee hereby grants access to Lessor to the levee and floodwall at all times for Lessor's operations and maintenance of the levee and floodwall. Lessee acknowledges that there is a clear zone of 20' from the levee and floodwall that must be free from all 5 storage or construction, and Lessee agrees to comply with such free zone requirement at all times. SECTION 10. INSURANCE. 10.1 Lessee shall maintain during the term of this Lease insurance as set forth in the City's standard Insurance Schedule for Lessees of City Property, as such uniform, standardized schedule may from time to time be amended. The current Insurance Schedule is attached to this Lease Agreement as Insurance Schedule A. Lessor shall provide written notice of any amendment to the Insurance Schedule not less than sixty days prior to the effective date of such amendment. 10.2 Upon completion of construction of Improvements, Lessee shall maintain, or cause to be maintained, at its cost and expense (and from time to time at the request of City shall furnish proof of the payment of premiums on), property insurance against loss and /or damage to Improvements under an insurance policy written on the Special Perils Form in an amount not less than the full insurable replacement value of Improvements, but any such policy may have a deductible amount of not more than $50,000.00. No policy of insurance shall be so written that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of co- insurance provisions or otherwise, without the prior consent thereto in writing by City. The term "replacement value" shall mean the actual replacement cost of Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment, and shall be determined from time to time at the request of City, but not more frequently than once every three years, and paid for by Lessee. 10.3 All insurance required by this Section shall be taken out and maintained in responsible insurance companies selected by Lessee which are authorized under the laws of the State of Iowa to assume the risks covered thereby or Lessee may at its election self - insure itself pursuant to the aforementioned guidelines. Lessee shall deposit annually by not later than July 1 of each year with City a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this, each policy shall contain a provision that the insurer shall not cancel or modify it without giving written notice to Lessee and City at least thirty (30) days before the cancellation or modification becomes effective. Lessee shall furnish City evidence satisfactory to City that the policy has been renewed or replaced by another policy conforming to the provisions of this , or that there is no necessity therefor under the terms hereof. In lieu of separate policies, Lessee may maintain a single policy, or blanket or umbrella policies, or a combination thereof, which provide the total coverage required herein, in which event Lessee shall deposit with City a certificate or certificates of the respective insurers as to the amount of coverage in force upon Improvements, provided, however, the specific limit shall not be impaired. 10.4 Lessee agrees to notify City immediately in the case of damage exceeding $50,000.00 in amount to, or destruction of, Improvements or any portion thereof 6 resulting from fire or other casualty. Net proceeds of any such insurance (Net Proceeds), shall be paid directly to Lessee, and Lessee shall forthwith repair, reconstruct and restore the Improvements to substantially the same or an improved condition or value as they existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, Lessee shall apply the Net Proceeds of any insurance relating to such damage received by Lessee to the payment or reimbursement of the costs thereof, subject, however, to the terms of any mortgage encumbering title to the Property. 10.5 Lessee shall complete the repair, reconstruction and restoration of Improvements, whether or not the Net Proceeds of insurance received by Lessee for such purposes are sufficient. SECTION 11. LESSOR'S WARRANTIES AND REPRESENTATIONS. 11.1 Lessor's Representation of Good Title. Lessor covenants and warrants that Lessor is lawfully seized in possession of the Demised Premises, and that it has full right and authority to enter into this Lease for the full term hereof, and covenants and agrees that upon paying the rent provided for herein, and upon Lessee's performing the covenants and agreements of this Lease required to be performed by said Lessee, that it will have, hold and enjoy quiet possession of the Demised Premises. Lessor warrants to Lessee that the Demised Premises are properly zoned for the conduct of the operation of Lessee's business. 11.2 Lessor makes no representations or warranties as to the condition, including environmental condition, of the Demised Premises and Lessee accepts the Demised Premises as is. SECTION 12. LESSEE'S WARRANTIES AND REPRESENTATION. 12.1 Lessee Compliance With Law. Lessee shall comply with all applicable local, state and federal laws, rules, regulations and permits with regard to the Demised Premises and its use, occupancy and control of the Demised Premises. 12.2 Environmental Matters. (1) Lessee covenants and agrees that Lessor shall have no responsibility for or liability arising from any release of a Hazardous Substance which is caused by or results from Lessee, Lessee's use, occupancy or control of the Demised Premises, except for Lessor Hazardous Substances (any Hazardous Substance which leaches or migrates upon the Demised Premises from any property owned by Lessor). Notwithstanding any other provision of this Lease, Lessee shall not have any responsibility for any Hazardous Substance which leaches or migrates upon the Demised Premises from any adjacent property or any release of a Hazardous Substances which is caused by Lessor or which pre- exists the date of this Lease, except as follows: (a) Lessee shall be responsible for known pre- 7 existing releases for which Lessee fails to take due care and adequate precaution and /or for which Lessee's actions or inactions cause a worsening of the release, and (b) Lessee shall provide full cooperation, assistance, and access to Lessor or other parties investigating and /or responding to a threatened or actual release. (2) Lessee covenants and agrees to promptly notify Lessor of any release of Hazardous Substance in, on or about the Demised Premises of which Lessee suspects or has actual knowledge. (3) Lessee covenants and agrees to promptly take any and all necessary and appropriate response to fully address any release of Hazardous Substance for which Lessee is responsible under this Section 12.2(1) following advance notice to Lessor. Such response shall include, without limitation, notification to appropriate governmental authorities, as may be required by law. Lessee shall seek and obtain the concurrence of Lessor as to any such response. Lessee shall respond to such release to the full extent required by law In no event shall Lessee allow limitations or restrictions to be placed on the Demised Premises without the written consent of the Lessor. (4) Lessee covenants and agrees to not manufacture, treat or dispose of Hazardous Substances at the Demised Premises or allow the manufacture, treatment, or disposal of Hazardous Substances on the Demised Premises. Lessee shall use and store on the Demised Premises only those Hazardous Substances as are associated with its regular business activities, and then only as allowed by law. (5) For the purposes of this Lease, "Hazardous Substance" or "Hazardous Substances" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local government, the State of Iowa or the United States Government. It includes, without limitation, any material or substance that is (i) defined as a "hazardous substance" or "hazardous waste" under Chapter 455B, Iowa Code, (ii) petroleum and petroleum products, (iii) asbestos containing materials in any form or condition, (iv) designated as a "hazardous substance" pursuant to 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1321), (v) defined as a "hazardous waste" pursuant to § 1004of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.0 § 9601 et seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. § 6991 et seq.] The term "Hazardous Substance" shall not include any air emissions discharged into the atmosphere as allowed by a duly issued permit from the applicable governmental agency. SECTION 13. INDEMNIFICATION. 8 13.1 Indemnification of Lessee. To the extent allowed by law, Lessor will defend, indemnify and save harmless Lessee from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessee by reason of (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Demised Premises and resulting from any act or omission of Lessor, (b) any failure on the part of Lessor to perform or comply with any of the terms of this Lease and (c) any breach on the part of Lessor of any warranty or representation contained in Section 11. In case any action, suit or proceeding is brought against Lessee by reason of such occurrence, Lessor will, at Lessor expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by Lessee, which approval will not be unreasonably withheld. 13.2 Indemnification of Lessor. Lessee will defend, indemnify and save harmless Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any negligence of Lessee or anyone claiming by, through or under Lessee during the term of the Lease and (b) any failure on the part of Lessee to perform or comply in any material respect with any of the material terms of this Lease, and (c) any material breach on the part of Lessee of any warranty or representation contained in Section 12. In case any action, suit or proceeding is brought against Lessor by reason of such occurrence, Lessee will, at Lessee's expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by Lessor, which approval will not be unreasonably withheld. 13.3 Survival. The obligations and liabilities under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of the termination or expiration of the term of this Lease. SECTION 14. CONDEMNATION. 14.1 Entire Condemnation. If at any time during the term of this Lease all or substantially all of the Demised Premises or the Improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality or other public or private authority, then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. Substantially all of the Demised Premises and the Improvements thereon shall be deemed to have been taken if the remaining portion of the Demised Premises shall not be of sufficient size to permit Lessee, in Lessee's sole discretion, to operate its business thereon in a manner similar to that prior to such taking. 9 14.2 Allocation of Award. Any award for such taking of all or substantially all of the Demised Premises shall be paid to the parties hereto in accordance with the following: (1) To Lessor, the amount of the award attributable to the Demised Premises, determined as if this Lease was not in effect at the time of such award, excluding therefrom the amount of the award attributable to new Improvements constructed by Lessee but not Improvements existing at the commencement of the Term of this Lease, and all other sums not directly attributable to the value of the Land constituting the Demised Premises; (2) To Lessee, the entire award except that portion allocated to Lessor above. 14.3 Partial Condemnation. (1) If less than all or substantially all of the Demised Premises or the Improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality or other public or private authority, then Lessee, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If Lessee shall elect to maintain this Lease in full force and effect, the award for such partial condemnation shall be allocated as provided in 14.2, and Lessee shall proceed with reasonable diligence to carry out any necessary repair and restoration so that the remaining Improvements and appurtenances shall constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this Lease. In the event Lessee elects to continue this Lease in full force and effect after a partial condemnation, the Rent shall be reduced in proportion to the area of the Demised Premises taken. (2) Should Lessee elect to terminate this Lease upon a partial condemnation, Lessee shall provide Lessor with written notice of such election within thirty (30) days after the date of vesting of title for such taking. Lessee shall specify in such written notice the date on which this Lease shall terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such notice to Lessor (the Termination Date). In the event Lessee terminates this Lease, as provided for in this 13.3, Lessee shall be entitled to the entire award for such partial taking. 14.4 Temporary Taking. If the temporary use of the whole or any part of the Demised Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this Lease in the exercise of the power of eminent domain by any sovereign, municipality, or other authority, the term of this Lease shall not be reduced or affected in any way, and Lessee shall continue to pay in full the rent, additional rent and other sum or sums of money and charges herein reserved and provided to be paid by Lessee, and the entire award for such temporary taking shall be paid to Lessee. Lessee shall repair and restore any and all damage to the Demised Premises and the Improvements as soon as reasonably practicable after such 10 temporary taking. SECTION 15. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned by Lessee without the prior written consent of Lessor, which consent shall not be unreasonably withheld, provided said third party agrees to comply with the terms and conditions of this Lease. Lessee may sublet parts of the Demised Premises without the prior consent of Lessor provided Lessee's subtenants agree to comply with the applicable terms and conditions of this Lease, and provided further that Lessee shall remain responsible to Lessor for the terms and conditions of this Lease. SECTION 16. DEFAULT. 16.1 Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessor setting forth the nature of Lessee's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessee has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but in no event longer than ninety (90) days), then and in any such event, Lessor shall have the right at its option, on written notice to Lessee, to terminate this Lease. Lessor shall thereafter have the right to enter and take possession of the Demised Premises with process of law and to remove all personal property from the Demised Premises and all persons occupying the Demised Premises and to use all necessary force therefor and in all respects to take the actual, full and exclusive possession of the Demised Premises and every part of the Demised Premises as of Lessor's original estate, without incurring any liability to Lessee or to any persons occupying or using the Demised Premises for any damage caused or sustained by reason of such entry on the Demised Premises or the removal of persons or property from the Demised Premises. 16.2 Rights of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or neglects to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, the Holder of any indebtedness secured by an encumbrance on the leasehold estate under this Lease shall have thirty (30) days after receipt of written notice from Lessor setting forth the nature of Lessee's default and a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature thereof within such thirty (30) days and is diligently prosecuting such proceedings, but in no event longer than ninety (90) days, within which to endeavor to make good or remove the default or cause for termination of the Lease. All right of Lessor to terminate this Lease on the failure or neglect of Lessee to observe, keep and perform the covenants, terms and conditions of this Lease is, and shall continue to be, at all times prior to payment in full of the indebtedness to the Holder of Lessee, subject to and conditioned on Lessor's having first given the Holder written notice thereof and the Holder having failed to cause the default or cause for termination to be made good or removed within thirty (30) days after 11 receiving written notice of default or cause for termination or within a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature of foreclosure within such thirty (30) days and is diligently prosecuting such proceedings, but in no event longer than ninety (90) days. In the event that the Lease is terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the event the Holder has complied with the terms of this 16.2, then Lessor at Holder's option, shall enter into a new lease with Holder or the successful bidder at foreclosure on the same terms as this Lease, for the term then remaining, and specifically preserving all unexercised options. 16.3 Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessee setting forth the nature of Lessor's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessor has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but in no event longer than ninety (90) days), then and in any such event, Lessee shall have all rights available to it provided by law or equity. SECTION 17. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as a party shall fail or neglect to comply with and perform any term, covenant, condition or agreement to be complied with or performed by such party hereunder, then, following thirty (30) days' prior written notice to such defaulting party (or such additional time to cure as may be accorded Lessee pursuant to 16.1 above, but in no event longer than ninety (90) days), the other party, at such other party's option, in addition to all other remedies available to such other party, may perform or cause to be performed such work, labor, services, acts or things, and take such other steps, including entry onto the Demised Premises and the Improvements thereon, as such other party may deem advisable, to comply with and perform any such term, covenant, condition or agreement which is in default, in which event such defaulting party shall reimburse such other party upon demand, and from time to time, for all costs and expenses suffered or incurred by such other party in so complying with or performing such term, covenant, condition or agreement. The commencement of any work or the taking of any other steps or performance of any other act by such other party pursuant to the immediately preceding sentence shall not be deemed to obligate such other party to complete the curing of any term, covenant, condition or agreement which is in default. SECTION 18. QUIET ENJOYMENT. Lessor covenants that at all times during the term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment of the Demised Premises or any part thereof shall not be disturbed by any act of Lessor, or of anyone acting by, through or under Lessor. Notwithstanding the foregoing, Lessor shall have the right upon reasonably notice to Lessee to enter the Demised Premised at any time to determine whether Lessee is in compliance with the requirement of this Lease. 12 SECTION 19. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any time and from time to time during the term of this Lease, within ten (10) days after request by the other party hereto or by any lender having an interest in Lessee's leasehold estate, it will execute, acknowledge and deliver to the other party or to such lender or any prospective purchaser, assignee or any mortgagee designated by such other party, a certificate stating (a) that this Lease is unmodified and in force and effect (or if there have been modifications, that this Lease is in force and effect as modified, and identifying the modification agreements), (b) the date to which rent has been paid, (c) whether or not there is any existing default by Lessee in the payment of any rent or other sum of money hereunder, and whether or not there is any other existing default by either party hereto with respect to which a notice of default has been served, and, if there is any such default, specifying the nature and extent thereof; and (d) whether or not there are any setoffs, defenses or counterclaims against enforcement of the obligations to be performed hereunder existing in favor of the party executing such certificate. SECTION 20. WAIVER. No waiver by either party hereto of any breach by the other of any term, covenant, condition or agreement herein and no failure by any party to exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver or relinquishment for the future of any such term, covenant, condition or agreement or of any subsequent breach of any such term, covenant, condition or agreement, nor bar any right or remedy of the other party in respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor, operate as a waiver of the rights of Lessor to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or to invoke any other appropriate remedy which Lessor may select as herein or by law provided. SECTION 21. SURRENDER. Lessee shall, on the last day of the term of this Lease or upon any termination of this Lease, surrender and deliver up the Demised Premises, with the Improvements then located thereon into the possession and use of Lessor, without fraud or delay and in good order, condition and repair, reasonable wear and tear excepted, free and clear of all lettings and occupancies, free and clear of all liens and encumbrances other than those existing on the date of this Lease and those, if any, created by Lessor, without (except as otherwise provided herein) any payment or allowance whatever by Lessor on account of or for any buildings and Improvements erected or maintained on the Demised Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. Lessee's Trade Fixtures, personal property and other belongings of Lessee or of any sublessee or other occupant of space in the Demised Premises shall be and remain the property of Lessee, and Lessee shall have a reasonable time after the expiration of the term of this Lease (not to exceed thirty (30) days) to remove the same. SECTION 22. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Lease in a form suitable for recording setting forth the names of the parties hereto and the term of this Lease, identifying the Demised Premises, and also including such other clauses therein as 13 either party may desire, except the amounts of Basic Rent payable hereunder. SECTION 23. NOTICES. 23.1 All notices, demands or other writings in this Lease provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail, registered and postage prepaid, and by facsimile addressed as follows: TO LESSOR: TO LESSEE: City of Dubuque, Iowa City Manager City Hall 50 West 13 Street Dubuque IA 52001 Fax 319 589 -4149 Dubuque Terminals, Inc. Carter Newt 5 Jones Street Dubuque IA 52001 23.2 The address and /or fax number to which any notice, demand or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. SECTION 24. MISCELLANEOUS. 24.1 Time of the Essence. Time is of the essence of this Lease and all of its provisions. 24.2 Governing Law. It is agreed that this Lease shall be governed by, construed and enforced in accordance with the laws of the State of Iowa. 24.3 Paragraph Headings. The titles to the paragraphs of this Lease are solely for the convenience of the parties and shall not be used to explain, modify, simplify or aid in the interpretation of the provisions of this Lease. 24.4 Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. 24.5 Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of Lessor and Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include 14 successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. 24.6 Force Majeure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability of construction materials, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, explosions, hazardous conditions, fire, flood, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease (collectively Force Majeure), then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. SECTION 25. JOINT MARKETING. Lessor and Lessee agree to cooperate in the joint marketing of property owned by Lessor and Lessee in the South Port of Dubuque. Lessee further agrees to accept an offer received during the Term of this Lease to lease Lessee's Property (Exhibit B) after June 30, 2014 if the lease price is not less than $60,000 per acre per year which amount shall be increased beginning June 30, 2015 by (i) 3% and by 3% on June 30 of each year thereafter or (ii) the increase in the Cost of Living (COL) for each year, whichever is greater. COL Index means the Consumer Price Index for all items for All Urban Consumers —U.S. City Average, published by the U.S. Department of Labor, Bureau of Labor Statistics or the comparable index in the event the COL Index is replaced by the U.S. Department of Labor. SECTION 26. DISMISSAL OF LAWSUIT AND RELEASE. Lessee shall at the time of execution of this Lease deliver to Lessor a dismissal of the appeal in GARY NEWT and KAREN NEWT, NEWT MARINE, INC., DUBUQUE BARGE & FLEETING SERVICE, INC. d /b /a NEWT MARINE and DUBUQUE TERMINALS, INC. v. THE CITYOF DUBUQUE, IOWA, together with a release approved as to form by Lessor by the Plaintiffs in such action of all claims against the City of Dubuque, its officers and employees, arising out of the rezoning of Plaintiffs South Port properties and the expiration of Plaintiffs' leases of City property in the South Port. SECTION 27. DOVER HARBOR LEASE. This Lease shall be subject to and conditioned upon Lessor and Lessee entering into the Dove Harbor Lease attached hereto. SECTION 28. SALE OF PRODUCTS TO LESSOR. Lessee agrees that Lessor will not be charged more than Lessee's other customers for the same products provided by Lessee to its other customers. For purposes of this Section 28, Lessee shall make available to City upon request its books of record and account which show the price or fee charged to its customers. If Lessor discovers that a customer of Lessee is being charged a lower price or fee for the same product, Lessee shall reduce its price or fee to Lessor to the same price or fee being charged to such other customer and shall rebate 15 the difference charged to Lessor for such products together with a surcharge of 25% of the amount of such overcharge. SECTION 29. DISPUTE RESOLUTION. Lessor and Lessee agree that prior to the commencement of any judicial proceeding for any controversy arising out of or relating to the construction or interpretation of this Lease, the parties will engage in mediation in accordance with the Commercial Arbitration Rules of the U. S. Arbitration & Mediation, Midwest ( "USA &M ") or the American Arbitration Association ( "AAA "). The parties shall divide equally all costs of mediation which shall be paid immediately upon billing by the mediation service. LESSOR: LESSEE: CITY OF DUBUQUE, IOWA DUBUQUE TERMINALS, INC. By: B Roy D. Buol, Mayor Attest: By: Jeanne F. Schneider, City Clerk 16 Gary Ne , P ' - sident arter Newt EXHIBIT A LEASE PARCELS A AND B 17 1R EXHIBIT B THE LESSEE PROPERTY 19 _ yeti Legend t - Dubuque Terminals, Inc Lease Th \ ��. Land owned by Newt Newt-owned companies '+ at a 20 INSURANCE SCHEDULE 21 INSURANCE SCHEDULE A INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All Certificates of Insurance required hereunder shall provide a thirty (30) day notice of cancellation to the City of Dubuque, except for a ten (10) day notice for non- payment, if cancellation is prior to the expiration date. 3. shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates shall include copies of the following policy endorsements: a) Commercial General Liability policy is primary and non - contributing. b) Commercial General Liability additional insured endorsement. c) Governmental Immunity Endorsements. 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 6. shall be required to carry the following minimum coverage /limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products - Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence Limit $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included. All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Business Owners form BP 0002, shall be clearly identified. 1 of 2 January 2008 22 INSURANCE SCHEDULE A (Continued) INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement identical or equivalent to form attached. Additional Insured Requirement: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and /or authorities and their board members, employees and volunteers shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured — Designated Person or Organization," or it's equivalent. — See Specimen b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee — Disease $100,000 Policy Limit — Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIQUOR OR DRAM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. Completion Checklist ❑ Certificate of Liability Insurance (2 pages) ❑ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages) ❑ Additional Insured 20 26 07 04 ❑ Governmental Immunities Endorsement 2 of 2 January 2008 23 THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSUREO NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLCIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADD'L INSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DOIYY) POLICY EXPIRATION DATE IMMIDDIW) LIMITS A X GENERAL X LIABILITY COMMERCIAL GENERAL LIABILITY INSURER 8 EACH OCCURRENCE $ 1,000,000 DAMAGE TO RENTED PREMISES (Ea occurrence) E 50,000 INSURER E 1 CLAIMS MADE X OCCUR MED EXP (Arty one person) $ 5,000 PERSONAL 8 ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEML AGGREGATE LIMIT APPLIES PER. 7 POLICY I X ( JECOT 17 LOC PRODUCTS - COMP/OP AGG $ 1, 000,000 A AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS COMBINED SINGLE LIMB (Ea ecuderul $ 1,000,000 BODILY INJURY (Per person) $ HIRED AUTOS NON -OWNED AUTOS BODILY INJURY (Per accident) $ PROPERTY MAGE (Per eccidera) $ GARAGE ILlBILITY ANY AUTO AUTO ONLY . EA ACCIDE NT $ OTHER THAN EA ACC $ AUTO ONLY: N AGG $ EXCESS/UMBRELLA LIABILITY OCCUR CLAIMS MADE R DEDUCTIBLE RETENTION $ 0 EACH OCCURREN CE $ _ AGGREGATE $ $ $ $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTNE OFFICER/MEMBER EXCLUDED? H yak descnbo under SPECIAL PROVISIONS below g U x I TORY LIMBS I I ER E L. EACH ACCIDENT $ 100,000 E L DISEASE • EA EMPLOYEE $ 100,000 E.L. DISEASE • POLICY LIMIT $ 500,000 OTHER DESCRIPTION OF OPERATIONSILOCATIONSNEHICLES City of Dubuque is listed as an 0704 "Additional Insured- Designated non - contributing. Form CG 2504 0397 immunities endorsement is included. /EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL additional insured on PROVISIONS liability policies using or its equivalent. General general liability aggregate ISO endorsement form CG 2026 Liability policy is S general Person or Organisation" "Designated Locations" primary limit is included. Governmental ACOR CERTIFICATE OF LIABILITY INSURANCE DATE(MWDD/YYYY) 12/7/2007 PRODUCER (563) 123 - 4567 Insurance Agency 4 cy Street Address City FAX (563) 987 -6543 ST Zip Code THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Company Street City St Zip Code INSURER A IIISLTrafCe Company INSURER 8 INSURER C INSURER D INSURER E COVERAGES CERTIFICATE HOLDER City of Dubuque 50 West 13th Street Dubuque, IA 52001 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION GATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ACORD 26 (2001/08) INS025 (olosp6 AMS CANCELLATION VMP Mortgage Solutions. Inc (800)327-0545 24 ® ACORD CORPORATION 1988 Page 1 of 2 ACORD 25 (2001/08) INS025 mom os AMS IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. Page 2 oft 25 POLICY NUMBER: This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE A. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION I), which can be attributed only to operations at a single desig- nated "location" shown in the Schedule above: 1. A separate Designated Location General Aggregate Limit applies to each designated "location ", and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Location General Aggregate Limit is the most we will pay for the sum of all damages under COVERAGE A, except dam- ages because of "bodily injury" or "property damage" included in the "products - completed operations hazard ", and for medical expenses under COVERAGE C regardless of the num- ber of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits ". 3. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Designated Loca- tion General Aggregate Limit for that desig- nated "location ". Such payments shall not re- duce the General Aggregate Limit shown in 26 COMMERCIAL GENERAL LIABILITY CG 25 04 03 97 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED LOCATION(S) GENERAL AGGREGATE LIMIT Designated Location(s): (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) the Declarations nor shall they reduce any other Designated Location General Aggre- gate Limit for any other designated "location" shown in the Schedule above. 4. The limits shown in the Declarations for Each Occurrence, Fire Damage and Medical Ex- pense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Location General Aggregate Limit. B. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION I), which can- not be attributed only to operations at a single designated "location" shown in the Schedule above: 1. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products - Completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Desig- nated Location General Aggregate Limit. CG 25 04 03 97 Page 1 of 2 CG 25 04 03 97 C. When coverage for liability arising out of the "products - completed operations hazard" is pro- vided, any payments for damages because of "bodily injury" or "property damage" included in the "products - completed operations hazard" will reduce the Products - Completed Operations Ag- gregate Limit, and not reduce the General Ag- gregate Limit nor the Designated Location Gen- eral Aggregate Limit. D. For the purposes of this endorsement, the Defi- nitions Section is amended by the addition of the following definition: Copyright, Insurance Services Office, Inc., 1996 Page 2 of 2 CG 25 04 03 97 27 "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway, waterway or right -of -way of a railroad. E. The provisions of Limits Of Insurance (SECTION III) not otherwise modified by this endorsement shall continue to apply as stipulated. POLICY NUMBER: COMMERCIAL GENERAL LIABI ITY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and /or authorities and their board members, employees and volunteers. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section I1 — Who Is An Insured is amended to in- clude as an additional insured the person(s) or or- ganization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property dam- age" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: A. In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you. All terms and conditions of this policy apply unless modified by this endorsement. CG 20 26 07 04 Includes copyrighted material of Insurance Services Office, Inc. with permission. Page 1 of 1 © ISO Properties, Inc., 2004 28 CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN 1 of 1 January 2008 29