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Slattery Center Lease_Montessor School, Flora ParkTO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Slattery Center Lease with Dubuque Montessori School DATE: July 14, 2009 Leisure Services Manager Gil Spence recommends the City Council set a public hearing for August 3, 2009, to consider leasing the Slattery Center in Flora Park to Dubuque Montessori School. I concur with the recommendation and respectfully request Mayor and City Council approval. Mi hael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gil D. Spence, Leisure Services Manager THE CITY OF Dubuque --^.., ~T T~ ~ AN-AmericaCillr ~,,,) Masterpiece on the Mississippi 2007 TO: Michael C. Van Milligen, City Manager FROM: Gil D. Spence, Leisure Services Manager SUBJECT: Slattery Center Lease with Dubuque Montessori School DATE: July 8, 2009 INTRODUCTION The purpose of this memorandum is to request that the City Council set a public hearing on August 3, 2009, to consider leasing the Slattery Center in Flora Park to Dubuque Montessori School. DISCUSSION Dubuque Montessori School has leased the Slattery Center in Flora Park since 1984. The first lease was for five years with afive-year renewal term. The lease was followed in 1994 with a fifteen year lease. Combined, we have had atwenty-five year relationship with the school that has worked very well for both parties. This lease changes in the following ways: • Base rent is calculated at $4.50 per square foot, paid for ten months ($10,065). • The school will pay ten months worth of property taxes ($2,398). • City staff will change light bulbs once per year. We have access to a lift that makes this task much easier for us to do rather than the school. City would pay all the utility costs for June and July. We now pay 50% of those costs. The City has use of the entire building for the months of June and July to conduct summer recreation programs. This is why we have agreed to pay two months of property taxes and all utility bills in June and July, and charge the school's rent based on ten months of building use. ACTION STEP The action requested is that the City Council adopt the attached resolution setting a public hearing on August 3, 2009, to consider leasing the Slattery Center to Dubuque Montessori School. GDS:jIr attachment Preparers Gil D. Spence Address: 2200 Bunker Hill Rd Phone: f563) 589-4263 RESOLUTION NO. 249-09 RESOLUTION OF INTENT TO DISPOSE OF AN INTEREST IN REAL PROPERTY BY LEASE WITH THE DUBUQUE MONTESSORI SCHOOL, INC. WHEREAS, the City of Dubuque, Iowa (City) is the owner of a part of the following Lots: Lot 1-1-1-2 and Lot 1-2-1-2 of Mineral Lot 399A; Lot 1-1-1-1-1-2 and Lot 2-1-W1/2 Lot 4-1-1-2 in J.P. Mettel's Subdivision, all in the City of Dubuque, Dubuque Co., Iowa (the Property); AND WHEREAS, the Dubuque Montessori School, Inc. (School), desires to lease the Property to operate a Preschool upon the terms set forth in a Lease now on file in the Office of the City Clerk at City Hall, Dubuque, Iowa, which Lease provides among other things for a term of twenty-five years; AND WHEREAS, the City Council has tentatively determined that it would be in the best interests of the City to enter into the Lease with School. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City of Dubuque intends to dispose of its interest in the Property as described in the Lease between City and School. Section 2. The City Clerk is hereby authorized and directed to cause this Resolution and a notice to be published as prescribed by Iowa Code Section 364.7 of a public hearing on the City's intent to dispose of the Property, to be held on the 3rd day of August, 2009, at 6:30 o'clock p.m. at the Historic Federal Building, 360 W. Sixth Street, Dubuque, Iowa. Passed, approved and adopted this 20tday of J u 1 y , 2009. f Roy D. Buol, Mayor 4 Attest: J anne F. Schneider, CMC, City Clerk PK ., LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND DUBUQUE MONTESSORI SCHOOL, INC. THIS LEASE AGREEMENT (the "Lease") dated for reference purposes the day of , 2009, between the City of Dubuque, Iowa, a municipal corporation (Lessor) and Dubuque Montessori School, Inc. an Iowa Corporation (Lessee). SECTION 1. DEMISE AND TERM 1.1. 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, attached hereto, located in the following described real property in Dubuque County, Iowa: A part of the following Lots: Lot 1-1-1-2 and Lot 1-2-1-2 of Mineral Lot 399A; Lot 1-1-1-1-1-2 and Lot 2-1-W1/2 Lot 4-1-1-2 in J.P. Mettel's Subdivision, all in the City of Dubuque, Dubuque Co., la. together with any and all easements and appurtenances thereto and subject to any easements and restrictions of record (the "Demised Premises"), to have and to hold for a term of twenty (20) years commencing on August 1, 2009 and terminating at 11:59 p.m. on July 31, 2029, subject to all of the terms, covenants, conditions and agreements contained herein. 1.2. Termination. In the event either party shall fail to keep, perform and observe in a timely and proper manner any of its covenants or obligations under this Lease Agreement and any such violation shall not be cured or remedied within thirty (30) days after the date the party receives written notice from the other party of such failure or violation (or, if not practicable to cure or remedy such failure or violation within such thirty-day period, within such longer period as shall be reasonable under the circumstances, and as shall be specified in such notice), then, in such event, the other party may, at its option, terminate this Lease Agreement, by written notice to the other. Upon termination, Lessor shall have the right to enter the Demised Premises and to assume exclusive use and control of the Demised Premises. Upon termination of this Lease Agreement, for any cause whatsoever, Lessee, at the option of Lessor, agrees to surrender possession of the Demised Premises in its condition as when first leased, or to restore the Demised Premises to substantially the same condition, ordinary wear and tear excepted. 070709ba1 _1_ 1.3. Closing Date. On the Closing Date, Lessor shall transfer possession of the Demised Premises pursuant to this Lease. 1.4. Condition of Property. Lessor shall deliver the Demised Premises in its "as is" condition. 1.5 Closing. The closing shall take place on or before August 1, 2009 (the Closing Date), or such other date as the parties may agree in writing. Exclusive possession of the Property shall be delivered to Lessee on the Closing Date in its current condition and in compliance with this Lease. Consummation of the closing shall be deemed an agreement of the parties to this Lease that the conditions of closing have been satisfied or waived. SECTION 2. RENT Lessee shall pay Lessor (in addition to taxes, assessments, and other charges required to be paid under this Lease by Lessee) rent for the Demised Premises of Ten Thousand Sixty-Five Dollars ($10,065.00) for the first year of this Lease (the "Base Rent"). Base rent is calculated for the ten month period that Lessee occupies the Leased Premises as follows: 2,684 square feet at $4.50 per square foot equals $12,078. $12,078/12 months equals $1,006.50/month. $1,006.50/month x 10 months equals $10,065. Base rent will be paid in 12 monthly installments, payable as follows: $838.75 on or before August 10, 2009, and $838.75 on or before the 10t" day of each month thereafter. The annual rental for each ear thereafter, in equal monthly installments, payable in advance, on or before the 10"day of each month, shall be adjusted as follows: First Year of Lease Term (2009-2010) $ 10,065.00 (the Base Rent) Second Year of Lease Term (2010-2011) $ 10,065.00 x COL June 1, 2010 COL June 1, 2009 Third Year of Lease Term (2011-2012) $ 10,1065.00 x COL June 1, 2011 COL June 1, 2009 Fourth Year of Lease Term (2012-2013) 070709ba1 -2- $ 10,065.00 x COL June 1, 2012 COL June 1, 2009 Fifth Year of Lease Term (2013-2014) $ 10,065.00 x COL June 1, 2013 COL June 1, 2009 Sixth Year of Lease Term (2014-2015) $ 10,065.00 x COL June 1, 2014 COL June 1, 2009 Seventh Year of Lease Term (2015-2016) $ 10,065.00 x COL June 1, 2015 COL June 1, 2009 Eighth Year of Lease Term (2016-2017) $ 10,065.00 x COL June 1, 2016 COL June 1, 2009 Ninth Year of Lease Term (2017-2018) $ 10,065.00 x COL June 1, 2017 COL June 1, 2009 Tenth Year of Lease Term (2018-2019) $ 10,065.00 x COL June 1, 2018 COL June 1, 2009 Eleventh Year of Lease Term (2019-2020) $ 10,065.00 x COL June 1, 2019 COL June 1, 2009 Twelfth Year of Lease Term (2020-2021) $ 10,065.00 x COL June 1, 2020 COL June 1, 2009 Thirteenth Year of Lease Term (2021-2022) $ 10,065.00 x COL June 1, 2021 070709ba1 _3_ COL June 1, 2009 Fourteenth Year of Lease Term (2022-2023) $ 10,065.00 x COL June 1, 2022 COL June 1, 2009 Fifteenth Year of Lease Term (2023-2024) $ 10,065.00 x COL June 1, 2023 COL June 1, 2009 Sixteenth Year of Lease Term (2024-2025) $ 10,065.00 x COL June 1, 2024 COL June 1, 2009 Seventeenth Year of Lease Term (2025-2026) $ 10,065.00 x COL June 1, 2025 COL June 1, 2009 Eighteenth Year of Lease Term (2026-2027) $ 10,065.00 x COL June 1, 2026 COL June 1, 2009 Nineteenth Year of Lease Term (2027-2028) $ 10,065.00 x COL June 1, 2027 COL June 1, 2009 Twentieth Year of Lease Term (2028-2029) $ 10,065.00 x COL June 1, 2028 COL June 1, 2009 COL is the Consumer Price Index for all items for Urban Wage Earners, published. by the United States Department of Labor. In no event, however, shall the rental for any year be less than the rent for the immediately preceding year. SECTION 3. TITLE TO IMPROVEMENTS AND TRADE FIXTURES 070709ba1 _4_ 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") are 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. Provided further, that upon ten (10) days' prior written notice to Lessor, Lessor shall prepare and deliver to Lessee a certificate in recordable form 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. 3.1 Lessee Improvements. All Lessee Improvements hereafter constructed on the Demised Premises are and shall be the property of Lessee during the term of this Lease and no longer. Upon any termination of this Lease, by reason of any cause whatsoever, if the Lessee Improvements 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 Lessee 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 Lessee 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 Lessee Improvements and that title to the Lessee Improvements has vested in Lessor. Notwithstanding the foregoing, Lessor at its option may require Lessee to remove the Lessee Improvements from the Demised Premises at Lessee's sole expense upon 120 days' written notice to Lessee, and Lessee shall have ninety (90) days after the termination of this Lease to complete such removal. If Lessee fails to remove the Lessee Improvements within such ninety day period, Lessor may cause the Lessee Improvements to be removed and Lessee shall pay the costs of such removal within thirty (30) days of receipt of a statement therefore from Lessor. 3.2. Signage. Lessee shall not place any signage on the Demised Premises without the prior written approval of Lessor's City Manager in the City Manager's sole discretion. SECTION 4. ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST 4.1. Lessee's right to encumber leasehold interest. Lessee shall not encumber by mortgage, deed of trust, or any other instrument, its leasehold interest and estate in the Demised Premises. 070709ba1 _5_ SECTION 5. TAXES AND UTILITIES 5.1. Lessee agrees to pay to Lessor monthly with the rent payment required by Section 2 an annual amount equal to ten-twelfths (10/12) of the real estate taxes upon the real estate of the Demised Premises that become payable 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. The Lessee further agrees to pay all other taxes, 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, 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 all such other taxes, rates, charges, levies and assessments shall be paid by Lessee as they become due and before they become delinquent. 5.3. Lessee agrees to timely pay all taxes, 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. 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, 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 will promptly pay and satisfy such disputed tax, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever incurred in connection therewith. 5.6. Lessee shall pay all utilities in connetion with the use of the property. SECTION 6. REPAIRS /MAINTENANCE Lessee shall at all times during the term of this Lease, at Lessee's own costs and expense, keep the interior of the Demised Premises and the Lessee Improvements thereon, and appurtenances to the Demised Premises, in good order, condition, and repair, casualties and ordinary wear and tear excepted. Upon reasonable notice to Lessee, Lessor may, at its discretion, conduct an annual inspection of the Demised Premises to determine Lessee's compliance with this Article VI. Lessor shall maintain 070709ba1 -(- Lessor's parking lots but shall have no obligation to plow snow in the parking lots. Snow plowing of the parking lots (upper and lower) shall be Lessee's responsibility at its expense if Lessee intends to use the parking lots. Lessee shall also remove snow and ice from steps and sidewalks leading to the building. The Lessor shall at all times during the term of this Lease, at Lessor's own cost and expense, keep the exterior of the Demised Premises in good order, condition and repair, including heating and air conditioning systems. The Lessor also agrees to change light bulbs once per year; bulbs supplied by Lessee. SECTION 7. COMPLIANCE WITH LAW 7.1. During the term of this Lease, Lessee shall comply with all applicable laws applicable to Lessee's use of the Demised Premises, the breach of which might result in any penalty on Lessor or forfeiture of Lessor's title to the Demised Premises. 7.2. Lessee shall not commit waste on the Demised Premises except as necessary for the removal or construction of any buildings and Lessee Improvements on the Demised Premises. SECTION 8. LEISURE SERVICES DEPARTMENT USE During the months of June, July and the first week of August, the entire Demised Premises, exclusive of storage rooms, office, kitchen and balcony (for storage), shall be available for use by Lessor all day, every day. In the event that Lessor does not require use of all available areas during such designated months, Lessee may utilize such areas with the written consent of Lessor. Lessor shall pay to Lessee for such usage one hundred percent (100%) of the electric bill during the time Lessor uses the Demised Premises. Lessor shall replace light bulbs one time per year. Lessee shall remove all equipment, supplies, and carpet from the Demises Premises upon request of Lessor's Leisure Services Manager. SECTION 9. USE OF DEMISED PREMISES Lessee agrees that during the term of this Lease, the use of the Demised Premises shall be exclusively for preschool activities consistent with the goals of Lessee, and for activities sponsored or cosponsored by Lessor's Leisure Services Department. Lessee shall not allow the Demised Premises to be used by any other individuals, groups, organizations or agencies without the prior written consent of Lessor's Park and Recreation Commission or Lessor's Leisure Services Manager. Lessee shall procure and maintain all necessary permits and licensing, as required by law, to operate a preschool. SECTION 10. INSURANCE 070709ba1 _']_ 10.1. Lessee shall at all times during the term of this Lease maintain insurance on the Demised Premises of the following character: (1) Insurance against loss or damage by fire and other risks and perils from time to time included under standard extended coverage endorsements in an amount equal to not less than ninety percent (90%) of the replacement value of the Demised Premises and the Lessee Improvements. (2) Insurance as set forth in the Lessor'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. 10.2. Such insurance shall be written by companies legally qualified to issue such insurance in the State of Iowa and such insurance shall name as the insured parties thereunder, Lessor, or its assigns, and Lessee, as their interests may appear. Lessor shall not be required to prosecute any claim against any insurer or to contest any settlement proposed by any insurer, provided that Lessee may, at its cost and expense, prosecute any such claim or contest any such settlement, and in such event Lessee may bring any such prosecution or contest in the name of Lessor, Lessee, or both, and Lessor shall cooperate with Lessee and will join therein at Lessee's written request upon receipt by Lessor of an indemnity from Lessee against all costs, liabilities, and expenses in connection with such cooperation, prosecution, or contest. 10.3. Lessee shall deliver to Lessor promptly after the execution and delivery of this Lease the original or duplicate policies or certificates of insurers satisfactory to Lessor evidencing all the insurance which is then required to be maintained by Lessee hereunder, and Lessee shall, within 30 days prior to the expiration of any such insurance, deliver other original or duplicate policies or other certificates of the insurers evidencing the renewal of such insurance. Should Lessee fail to effect, maintain, or renew any insurance provided for herein, or to pay the premium therefor, or to deliver to Lessor any of such policies or certificates, Lessor, at its option, but without obligation so to do, may procure such insurance, and any sums expended by it to procure such insurance shall be additional rent hereunder and shall be repaid by Lessee within 30 days following the date on which demand therefor shall be made by Lessor. Such insurance policy(ies) shall contain a provision that such policy(ies) shall not be canceled or reduced in scope without thirty (30) days prior written notice to Lessor. 10.4. Each party shall look first to any insurance in its favor before making any claim against the other party for recovery for loss or damage resulting from fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent permitted by law, Lessor and Lessee each hereby releases and waives all right of recovery against the other or anyone claiming through or under each of them by way of subrogation or otherwise. The foregoing release and waiver shall be in force only if both releasors' insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance, and also provided that such policies can be 070709ba1 _g_ obtained without additional premiums. Lessee acknowledges that Lessor will not carry insurance on Lessee's furniture and/or furnishings or any trade fixtures or equipment, improvements, or appurtenances removable by Lessee or Lessee's leasehold improvements and agrees that Lessor will not be obligated to repair any damage thereto or replace the same. 10.5. Lessee shall notify Lessor immediately in the case of damage exceeding $10,000.00 in amount to, or destruction of, any Lessee Improvements or any portion thereof resulting from fire or other casualty. Net proceeds of any such insurance (Net Proceeds), shall be paid directly to Lessee as its interests may appear, and Lessee shall forthwith repair, reconstruct and restore the Lessee 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 Demised Premises (as its interests may appear). Lessee shall complete the repair, reconstruction and restoration of the Lessee 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 its is lawfully seized in fee simple 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 covenants and agrees that Lessee shall have no responsibility for or liability arising from any Hazardous Substance which was in, on or about the Demised Premises prior to the commencement date of this Lease ("Prior Hazardous Substances") or which leach or migrate upon the Demised Premises from any property owned by Lessor or their affiliates ("Lessor Hazardous Substances"). 11.3. 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, (iv) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. §1321), (v) defined as a "hazardous waste pursuant to §1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a 070709ba1 _9_ "hazardous substance" pursuant to §101 of the Comprehensive Environmental Response, Compensation and Liability Act, U.S.C. §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. SECTION 12. INDEMNIFICATION 12.1. Indemnification of Lessor. Except as otherwise provided herein, Lessee shall protect, 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 act or omission 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 with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Lessor by reason of such occurrence, Lessee will, at Lessee's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessor. 12.2. Indemnification of Lessor. Except as otherwise provided herein, Lessor shall protect, 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 during the term of this Lease and resulting from any act or omission of Lessor or anyone claiming by, through, or under Lessor during the term of the Lease; and (b) any failure on the part of Lessor to perform or comply with any of the terms of this Lease. In case any action, suit, or proceeding is brought against Lessee by reason of such occurrence, Lessor will, at Lessor's expense, resist and defend such action, suit, or proceeding, or cause the same to be resisted and defended by counsel approved by Lessee. SECTION 13. CONDEMNATION 13.1. 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 to operate its business thereon in a manner similar to that prior to such taking. 070709ba1 -10- 13.2. 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 the improvements, 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, including but not limited to, the value of the improvements plus any other amount assessed for Lessee. 13.3. 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 entire award for such partial condemnation shall be paid over to Lessee, 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, there shall be no abatement in the Basic Rent Lessee is required to pay hereunder. (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 Section 13.3, Lessee shall be entitled to the entire award for such partial taking. 13.4. Temporary Taking. If the temporary use of the whole or any part of the Demised Premises or the Lessee 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 temporary taking. 070709ba1 -11- SECTION 14. ASSIGNMENT AND SUBLETTING Lessee shall not assign or transfer this Lease or sublease the whole or any part of the Demised Premises without the prior written consent of Lessor. SECTION 15. DEFAULT 15.1. 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), then and in any such event, Lessor shall have the right at its option, on written notice to Lessee, to terminate this Lease and all rights of Lessee under this Lease shall then cease. Lessor, without further notice to Lessee, shall have the right immediately to enter and take possession of the Demised Premises with or without 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. 15.2. 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, 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 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. 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 Section 15.2, then 070709ba1 -12- 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. 15.3 Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to observe, keep or perform any of the material 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 wtih 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 16. 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, upon thirty (30) days' prior written notice to such defaulting party, 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 Lessee 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 17. 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. SECTION 18. WAIVER No waiver by Lessor of any breach by Lessee of any term, covenant, condition, or agreement herein and no failure by Lessor 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 070709ba1 -13- term, covenant, condition, or agreement, nor bar any right or remedy of Lessor 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 19. SURRENDER Unless otherwise agreed, Lessee shall, on the last day of the term of this Lease or upon any termination of this Lease hereof, 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, 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. At Lessor's option, Lessee shall remove any or all of the Lessee Improvements located on the Demised Premises. Provided, however, that 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 to remove the same. SECTION 20. MEMORANDUM OF LEASE Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Lease in 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 either party may desire, except the amounts of Basic Rent payable hereunder. SECTION 21. NOTICES 21.1. 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 addressed as follows: TO LESSOR: City Manager City of Dubuque, Iowa 50 West 13th Street Dubuque, Iowa 52001 070709ba1 -14- TO LESSEE: Dubuque Montessori School, Inc. 2605 Pennsylvania Avenue Dubuque, IA 52001 21.2. The address 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 22. MISCELLANEOUS 22.1. Time of the Essence. Time is of the essence of this Lease and all of its provisions. 22.2. 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. 22.3. Attorney Fees. In the event that any action is filed in relation to this Lease, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 22.4. 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. 22.5. 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. 22.6. 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 successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. 22.7. Force Maieure. 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 or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, 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, 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. 070709ba1 -15- 22.8. Use of Tobacco Products. The use of tobacco products on the Demised Premises is prohibited and Lessee shall use its best efforts to enforce such prohibition. 22.9. Nondiscrimination. Lessee shall not discriminate against any person for employment or use of the Demised Premises or Improvements thereon because of race, religion, color, sex, sexual orientation, gender identity, national origin, age or disability. LESSOR: [SEAL] CITY OF DUBUQUE, IOWA Attest: Jeanne F. Schneider, City Clerk By: Roy D. Buol, Mayor LESSEE: DUBUQUE INC. By: MONTESSORI SCHOOL, 070709ba1 -16- INSURANCE SCHEDULE -17- ~~~~TI~I:L~~~!I~i~!Z~I>!~ 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. Alt insurers shall have a rating of A ar better in the current A.M. Best Rating Guide. 2. AN 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 belouv. Such certificates shall include conies of the following policy endorsements: a) Commercial General Liability policy is primary and rton-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 coverageAimits 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 31,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence limit 31,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 This coverage shall tae written an an occurrence, not a claims made form. Form CG 25 04 03 97 °Designated Location (s) General Aggregate Limit" shat) be included. Ali 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 -18- 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 Rolicy Limit -Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIC~UOR OR QFI~AM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. Completion Chec[xliat ^ 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 -19- ACOftD~, CERTIFICATE OF LIABIL rl~oucEre (563)123-t56? rAx (563) s67-653 Ina;uranco ~oY Stmt AddroslE ITY INSURANCE °""""'°°""""' 12 7 2ao~ TNNS CERTNflCJ1TE IS 8~1E0 As A NNATTE1t QF R8F0!lMATION ONIY AND CONFERS NO RKiHT'f tIFON T1E CERTE7CJITE tWEDEMI. THIS CER71F1CATE DOES NOT AA~IO, EXTENO OR L COVERA AF OW. Ci ST Li Dodo AFFOIIDMKi COPE GE NAIL N aaflRac alsuaER ~ Iaaluranao Co ~nY ~ a Stt`~!t fv511RER C Ci $t Z' Codo E CCR/ERAQE! THE POLICIES # M~INiANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE rOR TliE POLE:Y PER100 MIOK•ATED. NOTVNTHSTANOINGAHY REQUIREMENT, TERM OR CONDfT10N OF ANY CONTRACT OR OTHER DOCUMENT VNTH RESPECT TO WHICH THNi CERTIFfGTE itAY 6E I.SSVED OR MAY PERTAIN. THE EVSURANCE AFROROEQ 0Y THE POLICES DESCRIBED HEREM IS SUBJECT TO ALt THE TERMS. EXCLU$ION8 AND CONDIT-ONS OF SUCH POLICES AQGREQATE LENITB SHOWN MAY HAVE BEEN REDUCED BY PAN? CLAIMS E ~y TYNE Of /INMNNCE POLICY NUMOER DATA Tt ~ 6W[RIit.L41MLm OOWRRENGE f 1,000,DOD x co~aaRRCU+I GENERAL LiAa0.tTY I 'N. ,a,,,,. a 50, 000 11 x cLAMa BADE x~ DccuR MIED ExP om s S , 000 a ADV fvrlalY a i , 000 ,000 E TE s 2,000,060 GfN'L AtiGRE.GAIE LMT APPLESPER 7s ~ COMP f 1.000 , 000 x Loc A LARaItfTY COINED StkGLE LAIR f 1, 000 , 000 x ANY AUTO tEa acc~dr+i A ALl Q1MaE8 AUT08 aQOLLY Mv,M7Rt SCNE WLED AUTOS lFr Pia a IIIREDAUTOS aODllYafJURY a NON-ONMED AU705 ~ ~cpdMl PIIOPERTY DAMAGE (Pw ~cciaen) a 41IR/etE LIAONJTY AUTO ONLY - EA ACCIDENT f ANY AUTO OTHER TIiM+ f AurooNLY: AGG a Ex~cELA Iallaa.ITY s OCCUR ~ CLAaIS MADE AGGREGATE a f _- pE1klCTEliE f ~~ REtENT10« a0 a ~ VJORKEIFBCOMPEiNaAT10«Aab y~g TN x TORYiA OER ~ EalIOYERa' L1AlN.ITY ANY PROPRIETORMARi-tER/EXECUTArE ` E l EACH ACf.^10ENT _ '. a 100 r 000 OiFICEAAAE1~1ilEREXCLUOEDy ELDISE/LiE-EAEMPLOYEE a 100,000 ~eiu moans Oebw E L DISEASE - POLICY Lyar f SOD , 000 OTHER O~GIIPl10N Or OPEMTi011aILOCATIONENERK:LEEIEXCLYSIWI! AOOEO OY ENOOIgEIf ENTAPECMiL P110YIa1gNE City of Dubuque is listed as an additional insured on gac-aral liability policiaa wing ZEO andorauant foss CC 2026 0701 •J-dditional Inanrad-Daafgnatad awraon or Organication" or ita aquivalant, Grcsaral Liability polioy 1a pfriatary i nos-oontributiaq. loci CG 2501 03A'i "Designated Locations" gar>•ral stability aggrsqata licit is included. Cowrrr~antal iassalitica sndorsearet i• included. City of Dubuquo 50 ltoait 13th 8troot Dubuquai, IIII 52001 - _., _ .. ACORD 13 (1001/08) IN5018toloelos ANTS 5110U10 A«Y # THE AaONE DESCIplED POLK~a 6a CA«CELLlD atEPORE T/a1 axrrlATw« oAn TN~[Qi, TItl: asu«c avauRa~I WKL ENDEAVOa TO flAa 3a wxa MYAItTE« +IOTICE TO THE CERTIFICATE NDLDEII NAfIED To THE LEiT, slur iA~U11E Tp DO a0 aJIALL IYPOiE -IO OdL1DATq« OR tMdIUTY OF ANY rtslD U-O« THE VMP Mo~ype SdutfdN NG (BOQ}J37 (16t5 O ACORO CORPORATION 1868 -swld2 -ZQ- IMPORTANT If the oerti6c~te holder is an ADDITIONAL INSURED, the poNcy(iss) must be erxtorsed. A staterneM on Iles certifarte does not confer rights to the certificate holder in beu of such endorsement(s>. If SUBROGATION IS WANED, sut>iec:t to the terms and uondi6ons of the potrcy. certain podass msy require sn endarsemerrt. A statement on this certificate does nd confer rights to the certificate t-dder in qeu of such endorsement(s). DISCLAIMER Tha Cerfilicate of Msuranca on the reverse side of this form does not constitute a contract beNveen the issuing ~unar(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or rregativety amend, extend or alter the coverage af[orded fi'y the policies bated thereon. SP~~~ ~~~~,e .....,.~, «,M,,,®.r INti02t+ (o+oef o8 AtiA3 naps s ar 2 -21- POLICY NUMBER: coli~Ir+~ERCIAL GENERAI. uAlsamr CG 2S 04 03 97 THIS ENQORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED LOCATIONS GENERAL AGGREGATE LIM T This endorsement modifies insurance provided under the folbwing: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE (If no entry appears above, information required to complete this endorsement will be shown in the Oectarations as applicable to this endorsement.) A. Far ail 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 Sdyedub above: 1. A separate Designated Location Genera! Aggregate t.imit ap~bs to each designated `location`, and that limit is squat to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Location General Aggregate Limit is the most we w~l 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 Loco- lion General Aggregate Limit for that desig- nated "location". Such payments shalt not re- duce the General Aggregate Limit shown in the Decaratons 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 Decorations for Each Occurrence, Fire Damage and Medical Ex- pense rxmtinue to apply. However, instead of being subject to tl~e General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Location General Aggregate Lirnit. B, For all sums which the insured becomes legally obligated to pay as damages caused by "axur- rences' under COVERAGE A (SECTION I), and for elf 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 far damages or under COVERAGE C for medical expenses shah reduce the amount available under the General Aggregate Limit or the Products-Completed Operations Aggregate Limit, whichever is applicable: and 2. Such payments shag not reduce any Desig- nated Location General Aggregate Limit.. CG 25 04 t!3 97 Page 1 of 2 -22- cG ss a4 03 g7 C. When coverage for liability arising out of the "products-campteted operations hazard" is pro- vided, any payments for damages because of `bodily injury" or "property damage" included in the 'proc~cts-completed opera6a~s hazard' wit! reduce the Products-Completed Operations Ag- gregate limit, and not reduce the General Ag- gregate Limit nor the Designated Location Gen- eral Aggregate Umit. D. For the purposes of this er-dorsement, the Defi- nitions Secti~ is amended by the addition of the fvpowing definfion: `location" means premises involving the earns or conneccting bts, or premises whose connection is interrupted only by a street, roadway, waterway or right-of--way of a railroad. E. The provisions o/Limits Of insurance (SECTION Ill) net otherwise modfied by this endorsement shall continue to apply as stipulated. Copyright, insurance Services Otfice, Inc.. 1996 Page 2 of 2 CG 2504 03 97 -23- POLICY NUMBER: COMMERCIAL GENERAL LU4BlLITlf CG202a0704 THIS ENDaRSEMENT CHANGES THE POI.lCY. PLEASE READ !T CAREFULLY. aDDITIONAL INSURED -DESIGNATED PERSON OR ORGANIZATION This erx3orsement modifies insurance provided under the foUownng: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE tysme Of Additional The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, ap its boards, commissions and/or authorities and their board members, employees and volunteers. SQCtion II -Who Is An Insured is amended to in- clude as an additional insured tfie 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 behaff• A. in the performance of your ongoing operations; or B. An connection with your premises owned by or rented to you. All terms and conditions of this policy apply unless modified by this endorsement. CO 20 26 O7 t}4 Incl~ufes copyrighted material of lnsuranoe Services Office, Inc with permission. Pag• 1 of 1 ~ !SO Properties, Inc.. 2tH34 -24- CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT Nonwaiver of Governmental Immunity The insurance carrier expressly agrees and states that the purchase of this policy and the induding 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 shaft do so upon the timely written request of the insurance carrier. 4. Non-Denial of Coveras~e. 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 Polio The above preservation of governmental immunities shall not otherwise change or after the coverage available under the policy. SPECIMEN 1 of 1 January 2008 -25-