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Concession Agreement - Flora and Sutton Swimming Pool Copyright 2014 City of Dubuque Consent Items # 12. ITEM TITLE: Concession Agreement - Flora and Sutton Swimming Pool SUMMARY: City Manager recommending acceptance of the latest bid from Paul Connors to operate the pool concessions. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve ATTACHMENTS: Description Type ❑ Swimming Pool Concession Agreement-MVM Memo City Manager Memo ❑ Pool Concession Agreement Memo Staff Memo ❑ Connor Bid Offer 2015 Supporting Documentation ❑ Concession Bid Packet 2015 Supporting Documentation THE CITY OF Dubuque UBE I erica .i Masterpiece on the Mississippi 2007-2012-2013 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Pool Concessions Bid and Alternatives DATE: March 30, 2015 Leisure Services Manager Marie Ware is recommending acceptance of the latest bid from Paul Connors to operate the pool concessions. This would be for this next season, with the City purchasing the appropriate equipment over the next year to transition the concessions to a City-run operation in 2016. 1 concur with the recommendation and respectfully request Mayor and City Council approval. Micliael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Marie L. Ware, Leisure Services Manager Jennifer Larson, Budget Director THE CITY OF Dubuque UBDgkE ;��-Americ111 aC i I. Masterpiece on the Mississippi 2007-2012-2013 TO: Michael C. Van Milligan, City Manager FROM: Marie L. Ware, Leisure Services Manager SUBJECT: Pool Concessions Bid and Alternatives DATE: March 23, 2015 INTRODUCTION The purpose of this memo is to provide you with information related to the pool concessions contract, an update on the bid process, and to offer future alternatives. BACKGROUND In January, staff developed bid specs for concessionaires to provide concession service at both Flora and Sutton Pools over the next 3 years. On February 3rd, staff received one bid from Paul Connors (the person who has done the concessions for the last six years). This bid was for a minimum of$500 per pool or a 5% share of gross sales (whichever is higher). The last agreement was for a minimum of $6,000 or a 15% share of gross sales. The bid was rejected. Dan Kroger asked staff to re-bid the service and to reach out to as many other local food businesses (HyVee, Meyers Cox, etc.) in order to at least receive a second competitive bid. Staff did communicate with several corporate companies as well as a private individual who had expresses interest. The bid specs were re-posted as well as sent directly to these contacts. On the due date, staff again received only one bid from Paul Connors. This time, his bid was for $1000 minimum per pool or a 6% share of gross sales. DISCUSSION The latest bid of $1,000 minimum per pool equates to a 66% rate decrease compared to the last two (3-year contracts). There is also a quoted 9% decrease in potential gross revenue. Due to the low bid, staff has reached out to Mr. Connors to see if he would accept a 1- year contract. This action would provide staff with a year to develop a new strategy for the pool concessions. An alternate option would be to reject the bid and run the concessions in-house. There are two issues that would need to be addressed in order accomplish this task. The first would be the need to purchase equipment for both facilities. Currently, all equipment is 1 owned by Mr. Connors and would be removed if not under contract. Secondly, there would be the need to hire additional staff to fill the hours to properly operate such facilities. This new staffing would equate to roughly 2,600 in additional seasonal hours and $22,321 in payroll (assumes maximum amount of hours possible and 2 staff at each location). Along with the increase in payroll there would be an increase in product expenses. In regards to purchasing equipment, we would propose the total of$38,722 remaining in CIP#'s 3502369-73210 and 3502370-73210 which is left over from the Bunker Hill Roof Project. This would be more than enough funding to purchase equipment for both facilities. The advantage to operating such a facility in-house would be the potential revenue generation for the facility as well as the ability to monitor revenue and expenses. In the past, staff has relied on the reporting of the contractor. Since 2010, the gross sales reported have been near or over $50,000. An Improvement level package was also approved in FY17 budget process to install internet access at both pools. This access would allow for the proper POS (Point of Sale) systems to be purchased and installed at both pools as well. In order to operate for this initial upcoming season which begins in late May, cash registers could be used at both pools for the season. Staff could develop a detailed budget within the next 2 weeks as an estimate on what a full season could look like under the operation of the City. In summary, there are really three alternatives/choices for this upcoming season. 1 . Accept the latest bid for a 1-year term and re-bid in 2016. 2. Accept the latest bid for a 1-year term, purchase the proper equipment with the available CIP funds outlined earlier, and plan for a City run operation in 2016. 3. Reject the latest bid, set a new operating budget, buy the equipment, and begin a City run operation in May of 2015. RECOMMENDATION We recommend alternative #2 for the direction of the concessions operations at both pools. This alternative will provide staff with the proper equipment to run a quality operation while also allowing time for planning, budgeting, and installing the best infrastructure (computers, POS systems, City IT access, etc.). Prepared by: Dan Kroger, Recreation Division Manager CC: Jenny Larson, Budget Director Ken TeKippe, Finance Director 2 ORIGINAL CONCESSION PROPOSALS LEISURE SERVICES DEPARTMENT CITY OF DUBUQUE FLORA PARK SWIMMING POOL PROPOSAL BASE FEE OF DOLLARS PER YEAR OR PERCENT OF ANNUAL GROSS SALES, WHICHEVER AMOUNT IS GREATER. NICHOLAS J. SUTTON SWIMMING POOL PROPOSAL BASE FEE OF DOLLARS PER YEAR OR PERCENT OF ANNUAL GROSS SALES, WHICHEVER AMOUNT IS GREATER. @W@W@W@W@W@W@W@ PROPOSAL FOR BOTH POOLS vc✓ ' S FEE OF / DOLLARS PER YEAR OR FLORA: BASE 7� PERCENT OF ANNUAL SALES, WHICHEVER AMOUNT IS GREATER, ;zy/ SUTTON: BASE FEE OF J 00 DOLLARS PER YEAR OR PERCENT OF ANNUAL SALES, WHICHEVER AMOUNT IS GREATER, SIGNATURE FIRM ADDRESS s � TELEPHONE S 3 ` y 7- _5-2 G/ 3 FLORA PARK AND / OR NICHOLAS J. SUTTON SWIMMING POOL CONCESSION AGREEMENT PROPOSAL INFORMATION PACKET This packet includes the following: 1) A copy of the proposed concession agreement 2) Swimming pool concession history 3) Diagrams showing location and sizes of both concession areas — on site facility tour can be arranged 4) Proposal bid form 5) Related information as follows: Sealed bids will be received by the Leisure Services Department of the City of Dubuque, Iowa, at the office of the Leisure Services Manager, 2200 Bunker Hill Road, up to 10:00 a.m., on the 20th day of February, 2015, for the concession agreement at the Flora Park Swimming Pool and/or the Nicholas J. Sutton Swimming Pool. The agreement is described in detail in the proposed Concession Agreement. The extent of the contract includes, but is not limited to: • Rights to sell food and beverage items from the concession area of each pool. • The Agreement shall be for a three-season period, approximately May 1 , 2015 through September 1 , 2017. • Grantee will be responsible for providing a quality concession service during all open swimming times. • Grantee shall furnish all equipment, machines and supplies to operate the concession area. • Swimming pool policies do not allow carry-in food and beverage by pool patrons during open swim periods, but do allow patrons to leave pool facility and return at no charge. During evening pool rentals, users do have the right to bring in food and beverage. • Grantee shall maintain liability insurance, product liability insurance and workmen's compensation insurance as designated in the Agreement. • Bidders shall submit information concerning their experiences and ability to perform and execute the Agreement; please include references. • Bidders may bid on one or both of the pool concession operations using the attached form. • Bidders shall specify a fee and a percentage of gross sales with the larger of the two figures being paid to the City. 1 pool concession bid, page two The City of Dubuque reserves the right to reject any or all bids and to accept the bid which is deemed in the best interest of the City. All bids shall be opened publicly and read aloud in the office of the Leisure Services Manager at 10:00 a.m. on the 20th day of February, 2015. The bids shall be received by the City of Dubuque, and awarded at such subsequent time as may be determined. Awarding of the bid shall occur as soon as possible after the bid opening. I / � W Z4C 7iY.!_/ [ Marie L. Ware Leisure Services Manager MLW:et enclosures 2 CONCESSION PROPOSALS LEISURE SERVICES DEPARTMENT CITY OF DUBUQUE FLORA PARK SWIMMING POOL PROPOSAL BASE FEE OF DOLLARS PER YEAR OR PERCENT OF ANNUAL GROSS SALES, WHICHEVER AMOUNT IS GREATER. NICHOLAS J. SUTTON SWIMMING POOL PROPOSAL BASE FEE OF DOLLARS PER YEAR OR PERCENT OF ANNUAL GROSS SALES, WHICHEVER AMOUNT IS GREATER. @W@W@W@W@W@W@W@ PROPOSAL FOR BOTH POOLS FLORA: BASE FEE OF DOLLARS PER YEAR OR PERCENT OF ANNUAL SALES, WHICHEVER AMOUNT IS GREATER. SUTTON: BASE FEE OF DOLLARS PER YEAR OR PERCENT OF ANNUAL SALES, WHICHEVER AMOUNT IS GREATER. SIGNATURE FIRM ADDRESS TELEPHONE 3 LEISURE SERVICES DEPARTMENT revised 12-30-14 CITY OF DUBUQUE, IOWA SWIMMING POOL CONCESSION HISTORY TOTAL DAYS CONCESSIONDAYS ATTENDANCE OPEN GROSS SALES OPERATING $ PER CAPITA 2003 Sutton 35,015 84 $ 15,673 NA .45 Flora 79,921 94 $ 30,667 NA .38 2004 Sutton 32,034 77 NA NA NA Flora 57,788 90 NA NA NA 2005 Sutton 43,325 77 $ 23,749 NA .54 Flora 81 ,473 89 $ 32,978 NA .40 2006 Sutton 36,863 77 $ 22,767 74 .62 Flora 77,438 90 $ 42,446 82 .55 2007 Sutton 33,091 79 $ 19,128 69 .58 Flora 72,533 94 $ 39,018 86 .54 2008 Sutton 32,521 73 $ 19,563 70 .60 Flora 70,712 86 $ 39,801 84 .56 2009 Sutton 27,545 68 $ 13,712 58 .50 Flora 58,112 82 $ 26,414 67 .45 2010 Sutton 35,792 83 $ 18,815 70 .53 Flora 66,905 80 $ 32,206 71 .48 2011 Sutton 34,434 78 $ 15,498 66 .45 Flora 73,985 84 $ 35,380 74 .48 2012 Sutton 37,414 78 $ 15,698 72 .42 Flora 82,926 84 $ 45,537 82 .55 2013 Sutton 29,674 73 $ 11 ,018 61 .38 Flora 64,060 84 $ 35,022 48 .55 2014 Sutton 28,458 85 $ 15,300 80 .54 Flora 61 ,005 92 $ 34,452 88 .56 4 LEISURE SERVICES DEPARTMENT CITY OF DUBUQUE, IOWA SWIMMING POOL CONCESSIONS SUTTON Pa.k Swimming Pool ' P O O HISTORY OF PREVIOUS AGREEMENTS AWARDED 2012 - 2014 CONNOR FLORA 15% or $4,005 SUTTON 15% or $2,005 2009 - 2011 CONNOR FLORA 20.55% or $6,550 SUTTON 20.55% or $3,350 2006 — 2008 CONNOR FLORA 15% or $4,000 SUTTON 15% or $2,000 2003 — 2005 MCCLAIN FLORA 20% or $8,500 SUTTON 20% or $3,500 5 r " CONCESSION AGREEMENT FOR FLORA PARK and NICHOLAS J. SUTTON SWIMMING POOLS This Concession Agreement (the Agreement) is made and entered into this 30#1 day of April, 2015, by and between the City of Dubuque, Iowa, acting through the Park and Recreation Commission (City), whose address for the purpose of this Lease is 2200 Bunker Hill Road, Dubuque, Iowa, and, Choo Choo Charlie's — Paul Connor (Concessionaire), whose address for the purpose of this Agreement is 2613 Dodge Street, Dubuque, IA 52003; (563) 543-5201. WHEREAS, City is engaged in the operation and maintenance of the public facilities called the Flora Park Swimming Pool and the Nicholas J. Sutton Swimming Pool (the Pools) and City desires to engage a competent and qualified concessionaire to operate and manage the concession stand at the Pools; and WHEREAS, Concessionaire is desirous of procuring from City the privilege of operating and managing the concession stand and is qualified to provide the requisite services associated therewith; and WHEREAS, the public interest and welfare will be served and the Pools will be materially enhanced by a concession agreement with a reputable concessionaire who will provide certain services to the public patronizing the Pools. NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements hereinafter set forth, it is agreed by and between the parties as follows: SECTION 1. TERM. This Agreement for the privilege and obligation to operate the concession stands at the Pools shall be for the period from May 1, 2015, to midnight August 31, 2015 (one swimming season) (the Term). SECTION 2. CONCESSIONAIRE FEE. Concessionaire must pay to City, through the Leisure Services Department, a fee equal to $ 1,000 or 6% percent of Concessionaire's gross sales at Flora Park Swimming Pool and $ 1,000 or 6% percent of Concessionaire's gross sales at Nicholas J. Sutton Swimming Pool, excluding sales tax, whichever amounts are greater, for the Term. The fee shall be paid July 15, August 15 and September 15 of 2015. SECTION 3. FINANCIAL STATEMENTS. Concessionaire must not laterthan the 15th of July, August and September of 2015 provide to City's Leisure Services Manager a financial statement verifying all receipts from the operation of its business. In addition, Concessionaire must make available to the Leisure Services Manager all its records regarding the operation of the business when so requested by the Leisure Services Manager. 1 SECTION 4. LICENSES. Concessionaire must obtain all licenses, permits, and other documents necessary to operate a food and beverage business, at its sole expense, as required by all local, state and federal laws and regulations. SECTION 5. TERMINATION. This Agreement may be terminated at any time by City upon not less than five (5) days written notice to Concessionaire, and by Concessionaire upon seven (7) days written notice to City. Upon termination of this Agreement, Concessionaire must remove all its property and personnel from the concession stands. It is expressly understood and agreed that this Agreement is not a lease or a conveyance of realty, but merely a granting of the privilege of providing certain services forthe benefit and convenience of the public. The rights and obligations of the parties under this Agreement end upon the termination of this Agreement except that Concessionaire will be responsible for any damages or losses attributable to its acts or those of its employees while operating the concession stands. SECTION 6. ASSIGNMENT OF AGREEMENT. Concessionaire may not assign, sell, or in any way transfer its business or this Agreement without the prior written consent of the Leisure Services Manager. SECTION 7. PRODUCT SALES AND HOURS OF OPERATION. It is understood and agreed that the Concessionaire must handle a general line of soft drinks, food, and other items, such as are commonly found available at such concession stands. No alcoholic beverages, tobacco, or gum maybe sold. Concessionaire must comply with all local, state and federal laws and regulations pertaining to the sales of all products. Concessionaire must file with the Leisure Services Manager a price list prior to May 14th for all items sold at the concession stands. The prices will be in effect until the Leisure Services Manager is notified in writing that a price change is requested. In the event that the Concessionaire fails to submit a price list to the Leisure Services Manager prior to May 14th, the prices of the previous season will prevail until a new price list is approved. The concession stand must be open and available to the public during the hours as determined by the Leisure Services Manager, including during all regularly scheduled swimming times and special events, from approximately 1:00 to 5:00 p.m., and from 6:30 to 9:00 p.m. Closing may be not later than 15 minutes after the Pools close. The Concessionaire must enforce a "no carry-in" rule for the area. SECTION 8. MACHINERY AND EQUIPMENT. Concessionaire must provide and maintain all machinery and equipment necessary to operate its business at its sole expense. Structural changes to the concession stand for machinery or equipment require the prior written approval by the Leisure Services Manager and will be at Concessionaire's sole expense. When machinery or equipment is removed, the concession stand must be restored to its original condition, at Concessionaire's sole expense. SECTION 9. ELECTRICITY AND WATER. City will provide electricity and water to the concession stand for use by Concessionaire at City's sole expense. 2 SECTION 10. BUILDING MAINTENANCE. City will maintain the concession stands at its expense. However, Concessionaire will be responsible for all damage caused by its employees. Concessionaire may not alter the interior or exterior of the concession stand without the prior written consent of the Leisure Services Manager. SECTION 11. SIGNS. Concessionaire at its sole expense and after approval from the Leisure Services Manager may erect suitable signs to inform the public of the products available for sale, and the prices. No signs may be hung on the outside of the concession stand without the prior written approval of the Leisure Services Manager. SECTION 12. HOUSEKEEPING. Concessionaire is solely responsible for the maintenance of the concession stand and must keep the same in a clean and wholesome condition at all times. Concessionaire must keep all garbage and refuse generated by its business neatly contained. City is responsible for collecting refuse and recyclables from the pool facility, and Concessionaire must assist with recycling program. SECTION 13. PERSONNEL IN CONCESSION AREA. Only employees of Concessionaire or its authorized personnel are permitted in the concession stands. SECTION 14. REMOVAL OR ENCUMBRANCE OF CITY PROPERTY OR FUNDS. Concessionaire may not remove or encumber any property or equipment of City located in the concession stand, nor may Concessionaire dispose of or disburse any funds owed to City. SECTION 15. RIGHT OF ENTRY. City has the right to enter and examine the concession stands at any time. SECTION 16. INSURANCE. Concessionaire must at all times during the Term maintain such insurance as required by the attached Insurance Schedule. SECTION 17. INDEMNIFICATION. Concessionaire agrees to defend, indemnify and hold harmless the City, its officers, boards, commissions, agents, and employees from and against all claims by any person whatsoever occasioned by the use or operation of Concessionaire under this Agreement. SECTION 18. LIABILITY FOR CONCESSIONAIRE'S EQUIPMENT, SUPPLIES,AND OTHER PROPERTY. City is not responsible in any way for lost, stolen, or damaged equipment, supplies, or other property of Concessionaire. Concessionaire is solely responsible for all of its equipment and supplies. SECTION 19. EMPLOYEES. Concessionaire must supply at its sole expense a sufficient number of employees to adequately serve the public during its hours of operation. Concessionaire's employees must at all times reflect personal cleanliness. Unkempt and unclean employees will not be tolerated by City. Employees must wear distinctive shirts,jackets, or smocks whenever working. Concessionaire's on-site individual responsible for the concession operation must be at least seventeen years old. 3 SECTION 20. PERFORMANCE BOND. Concessionaire must on or before May 11 , 2015, execute to City a bond with good and sufficient security, said bond to be approved by City, in the sum of One Thousand Dollars ($1,000.00) conditioned upon the faithful performance and discharge of the obligations imposed by this Agreement from the date thereof and said bond must remain in full force and effect during the Term of the Agreement. Concessionaire must pay all premiums changeable for said bond and must keep the same in force and effect at all times throughout the Term of this Agreement and until removal of all its property from the concession stands. The performance bond shall contain a provision that it may not be terminated or otherwise allowed to expire prior to thirty(30)days'written notice to City. The bond must be in a form satisfactory to City and a duplicate copy, along with written evidence of payment of the required premium, must be filed with City during the term of this Agreement. SECTION 21. TOTAL OR PARTIAL DESTRUCTION OF CONCESSION BUILDING. In the event of fire or other disaster causing partial or total destruction of the concession stand, City at its option may proceed with rebuilding or repair of the stand. During the period of rebuilding, Concessionaire will have the option of continuing to operate its business from a temporary or mobile concession stand. SECTION 22. OFF SEASON. Only equipment related to the operation of the concession stand is allowed to remain in storage areas during non-operating months. This equipment must be unplugged and winterized. A clear path must be created in storage area for emergency situations. CITY OF DUBUQUE CONCESSIONAIRE By: _—_-_.__ (y: Michael C. Van Milligen �" aul H. Co no City Manager Choo Choo Charlie's Address S& 3 - s<` 3r Telephone 4 r 431 1 1 If _ Fl I',_, I o � •'�. ill I - _ r=--. ,�_ �•� Lam_ -- - �� I r C 2 I +I r I �f 1 'I .I� 1 �• �� I�� I I 1 I d f;Lei I-OP4 .F a I ��f—�'+ •:'rte.is?�v' I �-�� - . r' I�� r� � �•" - { `'.� � .�� {moi - `� ii7 m -14 { i ice- �. --I 4 ti i- n lei • r F �• �,�•�yi'�'a�J��rn Arrc' ��t - .ti. ?,w0 �i��' ..^�f= Sr'74}wri ,j I h`�`'t 4�` �: i�•`f•. Ma= Aif e:•7n� tY 1t=. %--KG' � � � � �� •. '_ „ � kyr L � i G-;4 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or vendors (suppliers , service Providers) , and Right of Way Permit Holders Insurance Schedule A 1. shall furnish a signed Certificate of Insurance (COI) to the City of Dubuque, Iowa for the coverage required in Exhibit I prior to contract or lease commencement. All lessees of City property and Right of Way Permit Holders shall submit an updated COI annually. Each Certificate shall be prepared on the most current ACORD form approved by the Department of Insurance or an equivalent. Each certificate shall include a statement under Description of Operations as to why issued. Eg: Project # or Lease of premises at or construction of or right of way permitted location and description 2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and all carriers shall have a rating of A or better in the current A.M. Best's Rating Guide. 3. Each Certificate shall be furnished to the contracting department of the City of Dubuque. 4. 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. 5. All required endorsements to various policies shall be attached to Certificate of insurance. 6. Whenever a specific ISO form is listed, an equivalent form may be substituted subject to the provider identifying and listing in writing all deviations and exclusions that differ from the ISO form. 7. Provider shall be required to carry the minimum coverage/limits, or greater if required by law or other legal agreement, in Exhibit I. 8. Whenever an ISO form is referenced the current edition of the form must be used. City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or vendors (suppliers , service Providers) , and Right of Way Permit Holders Insurance Schedule A (continued) Exhibit I 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 $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 a) Coverage shall be written on an occurrence, not claims made, form. All deviations from the standard ISO commercial general liability form CG 0001, or Business owners form BP 0002, shall be clearly identified. b) Include ISO endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit." C) Include endorsement indicating that coverage is primary and non- contributory. d) Include endorsement to preserve Governmental Immunity. (Sample attached). e) Include an endorsement that deletes any fellow employee exclusion. f) Include additional insured endorsement for: 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. Use ISO form CG 20 10. (Ongoing operations). g) If vendor utilizes Trikkes or Segways in the conduct of business, include an endorsement reflecting that these vehicles are not excluded from Commercial General Liability coverage. B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory benefits covering all employees injured on the job by accident or disease as prescribed by Iowa Code Chapter 85 as amended. Coverage A Statutory—State of Iowa Coverage B Employers Liability Each Accident $100,000 Each Employee-Disease$100,000 Policy Limit-Disease $500,000 Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque. City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or vendors (suppliers , service Providers) , and Right of Way Permit Holders Preservation of 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