Usage Agreement with Stone Cliff Winery_Amphitheater 2009-2012THE CITY OF Dubuque
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DUB E A°~'~'~~~
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Masterpiece on the Mississippi
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Usage Agreement with Stone Cliff Winery for Section of the Amphitheater
DATE: August 10, 2009
Bob Smith of Stone Cliff Winery has requested a usage agreement for a section of the
Amphitheater to have weekly outdoor movies and jam sessions.
This agreement has been in discussion for some time as staff resolved the issue of the
license to sell alcohol. Stone Cliff will license the area covered by this agreement but
will not sell alcohol during a rental of the entire amphitheater without the permission of
the renting party. If they are given permission, they will contribute 50% of the profit to
the charity.
The agreement is for $900 per year and has the following restrictions:
• All Stone Cliff events will be scheduled through the Leisure Services Department
and regularly held events (like the Irish Hooley) will have priority.
• Traffic in the non-licensed area cannot be restricted during Stone Cliff events.
• The type of fencing used for the usage area will be approved by the City.
• Events held at the Amphitheater cannot be required to allow Stone Cliff to sell
food or drinks in the usage area.
Leisure Services Manager Gil Spence recommends City Council approval of a Usage
Agreement with Stone Cliff Winery for a section of the Amphitheater.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Gil D. Spence, Leisure Services Manager
TO: Michael C. Van Milligen, City Manager
FROM: Gil D. Spence, Leisure Services Manager
SUBJECT: Usage Agreement with Stone Cliff Winery for Section of the Amphitheater
DATE: August 10, 2009
INTRODUCTION
The purpose of this memorandum is to request City Council approval of a usage
agreement with Stone Cliff Winery for a section of the Amphitheater.
DISCUSSION
Bob Smith of Stone Cliff Winery would like a usage agreement for a section of the
amphitheater to have weekly outdoor movies and jam sessions.
This agreement has been in discussion for some time as we resolved the issue of
license to sell alcohol. Stone Cliff will license the area covered by this agreement but
will not sell alcohol during a rental of the entire amphitheater without the permission of
the renting party. If they are given permission, they will contribute 50% of the profit to
the charity.
The agreement is for $900 per year and has the following restrictions:
• All Stone Cliff events will be scheduled through our office and regularly held events
(like the Irish Hooley) will have priority.
• Traffic in the non-licensed area cannot be restricted during Stone Cliff events.
• The type of fencing used for the usage area will be approved by the City.
• Events held at the Amphitheater cannot be required to allow Stone Cliff to sell food
or drinks in the usage area.
The goal of this agreement is to increase usage of the Amphitheater.
ACTION STEP
The action requested is for the City Council to approve the attached Usage Agreement
with Stone Cliff Winery for a section of the Amphitheater.
GDS:et
attachment
SECTION 1. LICENSED PREMISES AND TERM
ce5 7 1/4 ()
LICENSE AGREEMENT
BETWEEN BETWEEN
THE CITY OF DUBUQUE, IOWA
AND ,42/6c C?g>/
STONE CLIFF WINERY, INC.
THIS LICENSE AGREEMENT (the "AGREEMENT ") dated for reference
purposes the /7 day of , 2009, is made and entered into between
the City of Dubuque, Iowa, a municipal corporation (City) and Stone Cliff Winery, Inc.
an Iowa Corporation '(SCW).
1.1. In consideration of the fee hereinafter_ reserved and the •terms, covenants,
conditions and agreements set forth in this Agreement, City hereby permits SCW to use
the real property shown on Exhibit A, attached hereto, together with any and all
easements and appurtenances thereto and subject to any easements and restrictions
of record (the Licensed Premises "), for a term of three (3) years commencing on
.54077‘./ -, and 'le 'at /ICI 59 11,M.:_'0.11 l/13/ ,2012 =subleot to all of the
terms, covennts, conditions and agreements contained herein:'
1.2. Termination. Either party may terminate this Agreement for any reason with or
without cause upon thirty -days' written notice to the other party. Upon termination, City
shall have the right enter the Licensed Premises and to assume exclusive use and
control of the Licensed Premises. Upon termination of this Agreement, SCW agrees to
surrender possession of the Licensed Premises in its condition as when first permitted
use, or to restore the Licensed Premises to substantially the seine condition, ordinary
wear and tear excepted.
1.3. Condition of Property. City shall deliver the Licensed Premises in its "as is"
condition.
SECTION 2. FEE
2.1 SCW shall pay City a fee for the use of the Licensed Premises of Nine Hundred
Dollars ($900,00) pa year,; r . 1`,
SECTION 3. IMPROVEMENTS
3.1 SCW Improvements. SCW shall not construct any .improvements on the
Licensed Premises other than the placement of sleeves in the ground for fence posts to
be placed in. City at its option may require SCW to remove the sleeves from the
Licensed Premises at SCW's sole expense and SCW shall have ninety (90) days. after
the termination of this Agreement to complete such removal. If SCW fails to remove the
sleeves within such ninety day period, City may cause the sleeves to be removed and
SCW shall pay the costs of such removal within thirty (30) days of receipt of a
statement therefore from City.
072809ba1 ..1-
3.2. Signage. SCW shall not place any signage on the Licensed Premises without
the prior written approval of City's City Manager in the City Manager's sole discretion.
SECTION 4. TAXES AND UTILITIES
4.1. SCW agrees to pay to City any real estate taxes upon the Licensed Premises
that may be assessed against the Licensed Premises as a result of the use of the
Licensed Premises pursuant to this Agreement.
4.2. SCW agrees to timely pay all taxes, assessments or other public charges levied
or assessed by lawful authority (but reasonably preserving SCW's rights of appeal)
against its personal property on the premises, during the term of this Agreement.
4.3. SCW shall at all times have the right to contest in good faith, in any proper
proceedings, in the name of City if necessary, the payment or satisfaction of any such
taxes, assessments, rates, charges or levies so agreed to be paid by SCW, if the
validity thereof, or the right to assess or levy the same against or collect the same from
said Licensed 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, SCW 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.
4.4. SCW shall pay all utilities for the use of the Licensed Premises.
SECTION 5. REPAIRS /MAINTENANCE
5.1. SCW shall at all times during the term of this Agreement, at SCW's own costs
and expense, keep the Licensed Premises free of liter, in good order, condition and
repair, and shall be responsible for any damage done as of result of the use of the
Licensed Premises.
SECTION 6. COMPLIANCE WITH LAW
6.1. During the term of this Agreement, SCW shall comply with all applicable laws
applicable to SCW's use of the Licensed Premises, the breach of which might result in
any penalty on City or forfeiture of City's title to the Licensed Premises.
SECTION 7. USE OF LICENSED PREMISES
7.1. SCW agrees that during the term of this Agreement, the use of the Licensed
Premises shall be exclusively for outdoor entertainment events. Outdoor entertainment
includes, 'but is not limited to; music, movies, the serving of food and alcohol, cooking
and serving food, and placement of lawn furniture. SCW shall observe the following
conditions:
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1) All events shall be scheduled through City's Leisure Services Department; non-
SCW reservations shall take precedent over SCW events.
2) Traffic in or use of Alliant Amphitheater area not covered in this Agreement shall
not be restricted by or during SCW events or at any other time.
3) No fencing for the Licensed Premises shall be allowed unless with the approval
of City.
4) SCW shall not require any non-SWC event sponsor using the Alliant
Amphitheater to purchase food or drinks from SCW or in the Licensed Premises.
If a non-SCW event sponsor chooses to be the sole provider of food and drink
SCW shall cancel its liquor license for the period of such event.
SECTION 8. INSURANCE
8.1. SCW shall at all times during the term of this Agreement maintain insurance as
set forth in the City's standard Insurance Schedule for Lessors of City Property, as such
uniform, standardized schedule may from time to time be amended. The current
Insurance Schedule is attached to this Agreement.
8.2. SCW shall deliver to City promptly after the execution and delivery of this
Agreement the original or duplicate policies or certificates of insurers satisfactory to City
evidencing all the insurance which is then required to be maintained by SCW
hereunder, and SCW 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.
SECTION 9. INDEMNIFICATION
9.1. Indemnification of City. Except as otherwise provided herein, SCW shall
protect, indemnify, and save harmless City 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 City by reason of (a) any accident, injury to, or death of persons or
loss of or damage to property occurring on or about the Licensed Premises during the
term of this Agreement and resulting from any act or omission of SCW or anyone
claiming by, through, or under SCW during the term of the Agreement; and (b) any
failure on the part of SCW to perform or comply with any of the terms of this
Agreement. In case any action, suit, or proceeding is brought against City by reason of
such occurrence, SCW will, at SCW's expense, resist and defend such action, suit, or
proceeding, or cause the same to be resisted and defended by counsel approved by
City.
9.2. Indemnification of Citv. Except as otherwise provided herein, City shall protect,
indemnify, and save harmless SCW 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
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against SCW by reason of (a) any accident, injury to, or death of persons or loss of or
damage to property occurring on or about the Licensed Premises during the term of this
Agreement and resulting from any act or omission of City or anyone claiming by,
through, or under City during the term of the Agreement; and (b) any failure on the part
of City to perform or comply with any of the terms of this Agreement. In case any
action, suit, or proceeding is brought against SCW by reason of such occurrence, City
will, at City's expense, resist and defend such action, suit, or proceeding, or cause the
same to be resisted and defended by counsel approved by SCW.
SECTION 10. ASSIGNMENT AND SUBLETTING
10.1. SCW shall not assign or transfer this Agreement without the prior written consent
of City.
SECTION 11. NOTICES
11.1. All notices, demands, or other writings in this Agreement 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 CITY: City Manager
City of Dubuque, Iowa
50 West 13th Street
Dubuque, Iowa 52001
TO SCW: Stone Cliff Winery
600 Star Brewery Drive
Dubuque, IA 52001
11.2. 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.
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CITY OF DUBUQUE, IOWA
By: By:
Roy J. Buol, Mayor
Attest:
anne F. Schneider, City Clerk
F :1US ERSltstecklelLind ahllAgreements\ StoneCIIffLicenseAgreement _072809.docx
072809ba1 -5-
STONE CLIFF WINERY
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. AN Certfiicates of Insurance required hereunder shall provide a thirty (34) 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 Gity of
Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates
shall include cosies of the following policy endorsements:
a) Commercial General Liability policy is primary and non-contributing.
b) Commercial General Liability additions! 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 cant' the following minimum
coverageAimits or greater if required by law or other legal agreement:
a} COMMERCIAL GENERAL LIABILITY
General Aggregate limit $2,400,000
Products-Completed Operations Aggregate Limit $1,000,040
Personal and Advertising Injury limit $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Limit (any one occurrence) $ 50,040
Medical Payments $ 5,000
This coverage shat) 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.
Ali deviations or exclusions from the standard ISO commercial general liability form
CG 0401, or Business Owners form BP 0002, shall be clearly identified.
1 of 2
January 2008
-7-
INSURANCE SCNEOULE A (Continued)
INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY
PROPERTY OR VENDOR8 (SUPPLIERS, SERVICE PROVIDERS) TO THE
CITY OF DUBUQUE
Govemmerrtal Immunity Endorsement identical or equivalent to form attached.
Additional Insured Requirement:
The City of Dubuque, including all its e~cted and appointed officials, all its
employees and volunteers, all its boards, commissions andlor 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) WORK~„RS' COMPENSATION ~ EMPLOYERS LIABILITY
Statutory for Coverage A
Employers Liability:
Each Accident $100,000
Each Employee -Disease $100,000
Policy Limit -Disease $540.000
c) UMBRELLA EXCESS LIABILITY
LIQUOR OR DAM SHIP t.lA81LiTY
Coverage to be determined on a case by case basis by Finance Director.
Completion Checklist
^ Certificate of Liability Insurance (2 pages)
^ Designated Locafion(s) General Aggregate Limit CG 25 04 03 97 (2 pages)
^ Additional Insured 20 26 07 04
Governmental Immunities Endorsement
2 of 2
January 2008
-8-
~.~,. CERTIFICATE OF LIABIL ITY INSURANCE ~"'~q"'°'°""m
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Znsuranca Aq~acy
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HOLDER. t~RTIFICATE DOES NOT AMENO, EXTEND OR
ALTER THE COVEkA E AF Y
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THE POLIGE$ OF MiSUNANCE LISTED BELOW NAVE BEEN ISSUED TO THE INSURED NAf~D ABOVE FOR TlIE POLICY PERKx? U~ICATEO. NOTYNTHSTANDINGRNY
REQUIREMENT, TERM OR CONOfflON OF ANY CONFRACT OR OTFIER DOCUMENT WITH RESPECT TO WI#CN THIS CERT~IGITE MAY ~ ISSUED OR MAY PERTAIN.
THE lN.SURANGE AFFORDED BY THE POLICIES 0£SCRIBEO HERENI IS SUBJECT TO ALl THE TERMS. EXCLUSIONS AND GO-~ITIOFfS OF SLtCH POLICJES
AC,GREQATE LMftTS SHOWN MAY HAVE BEEN REDUCED BY PMD CLAIMS
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of~clsnlou oP oPERATIONSnnc~-T~o/ronrEN~cLes~suuslola Aooco sr enooRSeflfxnt~aAL PROVIsaMa
City of Dubugw is lisisd as an additionai lnsursd on Qanaral liability paliciss wing IBO anCosssasat lore CG 2026
0704 "Additionai Insured-DssiQnatsd Asrson or Oryac-ization" ar its aquivalsnt. Gsnsrai Liability policy is priaary i
noa-oa-tzibutinq. Dora CG 2501 0397 "O~slgrsatsd Locations gansral liability aggsaqata licit is inaludsd. Cawrrlrsntsl
i~amitiss sndosssasnt is inaludsd.
f;11OUL0 ANY Os flR Af10YE OE>iGl9~lp POLIt7ES ii[ CJIIICELLtD /MORE THE
City of Dnbtiqua ElClEtATgN DATE fl1EREOP, THE MSIMact ItgNItER rNLt. EMOEAVOR ro fIAIL
50 Mast 13th 8 tract 30 DAYS MnerTEN No71CE Yp THE ClRTtFIC11TE MOLDfT1 NI1MEC ro TNe LrrT, fiuT
Dubuque, Il- 52001 FAp.uRE ro oo So :VALE RfPpSE ao oELgATIDN OR lx1sll.rTY OF AMY 10110 uPaN tRE
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-9-
IMPORTANT
It ~e certi~ate holder is an ADOfT1ONAl INSURED, the pofrcy(ies) must be endorsed. A statement on this
ceRiflcats does not oor>Fer rigtNS to the certifcate holder in Neu of such endorsement(s).
If SUBROGATION IS WAIVED, subject !o the terms and conditions of the policy, certain policties may require an
endorsement. A staiement on this certifcste does rat conkr rights to the certificate voider in beu of sudr
endorsemer~(s).
DISCLAIMER
The CertidCate of Irrsuranca on the revere side of this form does not constitute s contract between the issuirp
usurer(s), authorised representathre or producer, and the certificate holder, nor does k atirm~ively or negatively
amend. extend or alter the cxrverage afforded by the Dom Nsted thereon.
sp~~'~'
~h~ule
Acaeo ss t~+~
INS02S ro+oer oe AMS np„ ~ a z
-10-
POLICY NUMBER:
COMMERCIAL GENERAL LIABILITY
CG 25ta4t1397
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY,
DESIGNATED LOCATION(S)
GENERAL AGGREGATE LIMIT
This endorsement modifies insurance provided under the folbwing:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
(N no entry appears above, information required to complete this endorsement will be shown in the Declaratbns
as applicable to his endorsement.)
A. For all sums which the insured becomes legally
obligated to pay as damages caused by "occur-
rences' under COVERAGE A (SECTION Ij, and
for all medical expenses caused by accidents
under COVERAGE C (SECTION 1), which can be
attributed only to operations at a single desig-
nated "location" shown in the Sdtedute above:
1. A separate Designated Location General
Aggregate Limit applies to each designated
"location', and that Irtnit is equal to ~e
amount of the General Aggregate Limit
shown in the Oedarations.
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 ar under COVERAGE C far medical
expenses shall reduce the Designated Loca•
lion General Aggregate Limit for that desig-
nated "location". Such payments shall not re-
duce the General Aggregate Limit shown in
the Declarations nor shall they reduce eny
other Designated Location General Aggre-
gate Limit for any other designated "location"
shown in the Schedub 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 die General Aggregate Limit
shown in the Declarations, such Nmits wilt be
subject !o the applicable Designated location
General Aggregate Lunit.
B. For ail sums which the insured becomes legally
obligated to pay as damages caused by "occur•
rences' under COVERAGE A (SECTION 1), and
for all medics! expenses caused by accidents
under COVERAGE C (SECTION q, 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 shalt reduce the amount available
under the General Aggregate Limit or the
Products-Completed Operations Aggregate
limit, whichever is applit~ble; and
2. Such payments shall not reduce any Desig-
nated Location General Aggregate limit.
CG 25 04 03 97
Page 1 of 2
-11-
CG 2S 04 03 ti7
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 operatbns 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 fdlowing definition:
"Location" means premises involving the same or
connecting bts, or premises whose connection is
interrupted only by a street, roadway, watennray
or right-of-way of a raitroad.
E. The provisions of Limits Of insurance (SECTION
ill) not otherwise modified by this endorsement
shall continue to apply as stipulated.
Copyright, Insurance Services Office, Inc., t996
Page 2 of 2
CG 25 t}4 03 >:7
-12-
POLICY NUMBER: COMMERCIAL GENEFiAI. LIABILITY
CG 2026 OT 04
THIS ENDORSEMENT CHANGES THE POLfCY. PLEASE REAO IT CAREFULLY.
ADDITIONAL INSURED - DESIGNATED
PERSON OR ORGANIZATION
This ~dorsement modifies insurance provided under the follov~nng:
COMMERCIAL GENERAL. LIABILITY COVERAGE PART
SCHEDULE
Name t'}/ Additional Insured Persons Or izati s
The City of Dubuque, including all its elected and appointed officials,
all its employees and volunteers, all its boards, commissions andlor
authorities and their board members, employees and volunteers.
Information re wired to com etc this Schedule if not shown above wi11 be shown in the Declarations.
Section It -Who Is An Insured is amended to in-
chide as an additional insured the persons} 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. to the performance of your ongoing operations; or
B. In connection with your premises owned by or
rented to you.
Ali terms and conditions of this policy apply unless modif~d by this endorsement.
CG ZO 26 OT 04 Includes copyrighted material of Insurance Services Office, Irtc with permission. Pay 1 of 1
® ISO Properties, Inc., 20x4
-13-
CITY OF DUBUQUE, Iowa
GOVERNMENTAL IMMUNITIES ENDORSEMENT
Nonwaiver of Governmental Immunfii. The insurance carrier expressly agrees and
states that the purchase of this policy and the inducting 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, laws under Code of Iowa Section 870.4
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 870.4 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 shah 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
shalt 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
1of1
January 2008
-14-
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