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Zoning & Subd. Ord. Update Consultant Agreement D~~~E ~Yk.~ MEMORANDUM March 28, 2005 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Consultant Agreement for Update of Zoning and Subdivision Ordinances Planning Services Manager Laura Carstens recommends City Council approval of the professional services agreement between the City of Dubuque and Lane Kendig, Inc. to prepare a comprehensive update of the City of Dubuque's Zoning and Subdivision Ordinances. The City Council approved the selection of Lane Kendig, Inc. as the consultant on February 21, 2005. I concur with the recommendation and respectfully request Mayor and City Council approval. d1lij ~~ /Jt lL, Mi ael C. Van Mllllgen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Laura Carstens, Planning Services Manager ,.." \ " \ '"0 __l "~' ~~ ~<k~ MEMORANDUM March 25, 2005 TO: FROM: Michael Van Milligen, City Manager Laura Carstens, Planning Services Manager ~ SUBJECT: Consultant Agreement for Update of Zoning and Subdivision Ordinances This memo transmits the professional services agreement between the City of Dubuque and Lane Kendig, Inc. to prepare a comprehensive update of the City of Dubuque's Zoning and Subdivision Ordinances, for City Council review and approval. On February 21, 2005, the City Council approved the selection of Lane Kendig, Inc. as the consultant for this project, and directed City staff to negotiate a contract not to exceed $130,000. Barry Lindahl, Corporation Counsel, has reviewed and approved the enclosed professional services agreement. The requested action is for the City Council to approve the agreement with Lane Kendig, Inc., and to authorize the Mayor to sign the agreement on behalf of the City. Enclosure cc Barry Lindahl, Corporation Counsel PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND LANE KENDIG, INC. This Agreement made this~day of;f~~ ,2005, by and between City of Dubuque, Iowa, acting by and through Terrance M. D~Mayor of the City of Dubuque, hereinafter referred to as "City," and Lane Kendig, inc., an Illinois Corporation, acting by and through Kimberley Mickelson, Principal, hereinafter referred to as "Consultant," do hereby make and enter into the following Agreement. ARTICLE I CONSULTANT 1.1 Consultant, as an independent contractor, covenants and agrees to perform the professional planning services related to the Dubuque Land Development Ordinance Revisions as described in Article II, Scope of Services. Such services shall be performed by Consultant in accordance with the terms of this Agreement and for the consideration stated. Consultant covenants and agrees to perform the services in a professional manner. Consultant shall complete the Scope of Services and shall submit reports to City as required. 1.2 Consultant shall provide its services under this Agreement with the same degree of care, skill and diligence as is ordinarily provided by a professional planner under similar circumstances for the preparation of a Land Development Ordinance Revisions and to which the Agreement applies. ARTICLE II SCOPE OF SERVICES 2.1 Consultant shall perform the professional planning services related to the development of the Dubuque Land Development Ordinance Revisions as set forth in Exhibit "A" - Scope of Services, which is attached and made a part of this Agreement. 2.2 Pursuant to this Agreement, City shall have the option to obtain the services of Consultant to perform Additional Services. Such Additional Services shall be described in a written Amendment to this Agreement, as agreed mutually by City and Consultant, including a description of the additional work, associated compensation, and time schedule as applicable. Matters which shall constitute Additional Services shall include, but are not limited to the following: (1) additional workshops or meetings other than the number identified in the Scope of Services; (2) requested additional trips other than the Contract for Planning Services City of Dubuque- Lane Kendig, inc. Page 1 number of trips identified in the Scope of Services and Project Schedule; (3) other work tasks or study activities not identified in the Scope of Services; (4) additional copies of deliverables including draft and final written reports and maps other than the number identified in the Scope of Services; (5) review and provision of recommendations relating to other planning or development related issues and matters other than those that are included in the Scope of Services; (6) incorporation of significant revisions into the draft or final plan document which have arisen since the plan, ordinance, document, maps or other materials delivered to City were originally prepared; and, (7) other related or unrelated professional planning services that may be required by City. ARTICLE III CONSULTANT PERSONNEL 3.1 Consultant represents that it has or will secure at its own expense, all personnel required in performing the services under this Agreement. Such personnel shall not be employees of or have any contractual relationship with City. 3.2 Consultant may contract with subconsultants for portions of the work or services under this Agreement with the prior written approval of City. At the time of the execution of this Agreement , no subconsultant work is anticipated. Any work or services subcontracted hereunder shall be specified by a written Agreement and shall be subject to the provisions of this Agreement. ARTICLE IV SUPPORT SERVICES 4.1 City agrees to provide Consultant with support services during the conduct of the services listed in Article II, Scope of Services. Support services shall include the services described in Exhibit "B" - Support Services, which is attached and made a part of this Agreement. 4.2 To the extent authorized by law, the readily available existing data and documentation obtained by City that are relevant to the accomplishment of the Scope of Services specified in Article II shall be made available by City for use by Consultant. 4.3 City shall consider and act on all documents and project work items submitted by Consultant that require review, comments or approval by City within a reasonable period of time so as to enable Consultant to complete the work on schedule as provided in Article V of this Agreement. 4.4 City agrees to provide Consultant with support services needed to organize, schedule, notify, provide meeting locations, conduct meetings, and prepare minutes of meetings including committees, workshops, public meetings, and public hearings as described in Contract for Planning Services City of Dubuque-Lane Kendig, inc. Page 2 Article II, Scope of Services. Consultant shall advise and coordinate with City to accomplish these support services. ARTICLE V TIME OF PERFORMANCE 5.1 Consultant shall commence services upon execution of this Agreement and receipt of written Notice to Proceed from City. 5.2 Consultant shall complete the services described in Article II, Scope of Services within fifteen (15) months from receipt of written Notice to Proceed from City, unless this Agreement is terminated, or unless the Scope of Services and Time of Performance are changed in accordance with Article X, Amendments or Termination. 5.3 The completion schedule set forth in Paragraph 5.2 may be subject to revision due to changes in the Scope of Services or events over which neither Consultant nor City has any control. Notification and justification for any such changes identified by Consultant or City must be made in writing and approved by both parties. The schedule of work shall be extended to include any such delays pursuant to Article X, Amendments or Termination. 5.4 This Agreement shall terminate upon City's final acceptance of the work completed by Consultant, unless otherwise terminated or modified as hereinafter provided. ARTICLE VI COMPENSATION TO CONSULTANT 6.1 City shall compensate Consultant for the professional services performed under this Agreement. For the Basic Services described in Exhibit "A" Scope of Services under Article II, Scope of Services, City shall pay to Consultant on a cost reimbursable basis in an amount not-to-exceed one hundred, thirty-thousand and zero dollars ($130,000.00). This total fee includes actual salary costs, overhead, direct expenses and profit. The maximum amount may be modified pursuant to Article X, Amendments or Termination, in the event of increased cost, a change in the Scope of Services, time of performance delays, or an increase or decrease in the complexity or character of the work. For Additional Services rendered under Article II, Section 2.2, City shall compensate Consultant as provided in the Amendment providing for the Additional Services. 6.2 Payment shall be made by City monthly upon receipt of a statement of Consultant's authorized cost of performing the required work. Each request for payment shall include a progress report stating the work completed during the billing period and to date. The itemized and certified billing statements shall show the total amount earned to the date of submission and the amount due and payable as of the date ofthe current statement. Each Contract for Planning Services City of Dubuque - Lane Kendig, inc. Page 3 invoice is due and payable by City within thirty (30) days following the date of receipt by City. 6.4 The terms of this Agreement are contingent upon sufficient appropnatIOns and authorization being made by City for the performance of this Agreement. If at any time during the period of performance under this Agreement, sufficient appropriations and authorization are not made by City, this Agreement shall terminate upon written notice by City to Consultant. City's decision as to whether sufficient appropriations are available shall be accepted by Consultant and shall be final. ARTICLE VII PRODUCT OF SERVICES. COPYRIGHT 7.1 Consultant and City mutually agree that reports, maps and materials prepared or developed under the terms of this Agreement shall be delivered to and become the property of City. Consultant shall have the right to retain copies and to utilize the product of services for marketing purposes, except for any confidential information, as defined in Article XI, hereof. 7.2 Consultant shall furnish City with the number of copies of reports as shown in Article II, Scope of Services. 7.3 Nothing produced in whole or in part by Consultant under this Agreement shall be the subject of an application for copyright by or for Consultant. Consultant shall use existing proprietary software as required. ARTICLE VIII PRIVATE INTERESTS OF PUBLIC OFFICIALS AND CONSULTANT 8.1 No employee, agent, or member of the local public body of City shall have any financial interest, direct or indirect, in this Agreement or the proceeds thereof, except as allowed in Section 3.1 of this Agreement. ARTICLE IX CERTIFICATIONS OF CONSULTANT 9.1 Consultant has not employed or retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement and has not paid or agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, or other consideration, contingent upon or resulting from the award or making of this Agreement. Contract for Planning Services City of Dubuque-Lane Kendig, inc. Page 4 9.2 Consultant presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services under this Agreement. ARTICLE X AMENDMENTS OR TERMINATION 10.1 This Agreement may not be altered, changed or amended except by instrument in writing executed by the parties hereto. 10.2 City may, from time to time, request changes in the Scope of Services and/or time of performance for the services of Consultant to be performed hereunder. Such changes, including any increase or decrease in the amount of Consultant's compensation, which are mutually agreed upon by and between City and Consultant, shall be by written amendment to this Agreement. 10.3 This Agreement may be terminated before the termination date stated in Article V, Time of Performance, by any of the following conditions: (a) Right of Either Partv to Terminate for Cause - This Agreement may be terminated by either of the parties hereto for failure of the other party to perform in a timely manner and proper manner its obligation under this Agreement. A signed, written notice of such termination shall be delivered to the other party personally or by registered or certified mail and such termination shall take effect twenty (20) days after receipt of the notice, provided that the failure to perform has not been remedied by that time. By such termination, neither party may nullify obligations already incurred for performance or failure to perform before the date of termination. (b) Right of City to Terminate for Convenience - This Agreement may also be terminated by City for any reason. A signed, written notice of such termination shall be delivered to Consultant personally or by registered or certified mail and such termination shall take effect seven (7) days after receipt of the notice by Consultant. 10.4 Upon receipt of a notice of termination under any ofthe conditions under Paragraph 10.3, Consultant shall, unless the notice otherwise directs, immediately discontinue all services in connection with the performance of this Agreement. Within thirty (30) days after receipt of the notice of termination, Consultant shall submit a statement, showing in detail the services performed under this Agreement prior to the effective date of termination. Data and study products prepared by Consultant under this Agreement shall be delivered to City if requested. 10.5 Upon termination as provided in in Paragraphs 10.3 and 10.4 , City shall promptly pay Consultant allowable costs incurred, less previous payments. City shall only be obligated to compensate Consultant in a just and equitable manner for those services performed Contract for Planning Services City of Dubuque - Lane Kendig, inc. Page 5 prior to the effective date of termination and upon Consultant submitting a statement of actual services performed and payment requested. 10.6 Notwithstanding the provisions of Section 10.5, Consultant shall not be relieved of liability to City for damages sustained by City by virtue of any negligent act or omission or any breach ofthe Agreement by Consultant. ARTICLE XI CONFIDENTIALITY 11.1 Any information determined to be confidential that is provided to or developed by Consultant in the performance of this Agreement shall be kept confidential and shall not be made available to any individual or organization by Consultant without the prior written approval of City. ARTICLE XII INSPECTION OF RECORDS 12.1 Consultant shall maintain accounts and records, including personnel, property and financial records, adequate to identify and account for all costs pertaining to this Agreement and such other records as may be deemed necessary by City to assure proper accounting for all project funds. Such records will be retained by Consultant for three years after the expiration of this Agreement. 12.2 Any time during normal business hours and as requested by City, Consultant shall make available to City for examination all of its project records with respect to all matters covered by this Agreement and shall allow City to review, examine, and make excerpts from such records and to make copies of all contracts, invoices, materials, payrolls, records of personnel conditions of employment, and other data relating to all matters covered by this Agreement. The financial records of Consultant are maintained in its corporate office located in Chicago, Illinois and copies shall be available to City or its authorized representatives upon request in a timely manner, for audit purposes. ARTICLE XIII INSURANCE AND INDEMNIFICATION 13.1 Insurance Consultant shall at all time during the term of the Agreement maintain insurance as set forth in the Insurance Schedule attached as Exhibit C. Contract for Planning Services City of Dubuque-Lane Kendig, inc. Page 6 13.2 Indemnification To the fullest extent permitted by law, the Consultant shall indemnify and hold harmless City from and against all claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Agreement, provided that such claim, damages, loss or expense is attributable to bodily injury, sickness, disease or death, or injury to or destruction of property including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of Consultant, Consultant's subcontractor, or anyone directly or indirectly employed by Consultant or Consultant's subcontractor or anyone for whose acts Consultant or Consultant's subcontractor may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. ARTICLE XIV MISCELLANEOUS PROVISIONS 14.1 Neither City nor Consultant shall be required to perform any term, condition, or covenant of this Agreement while such performance is delayed or prevented by acts of God, material or labor restriction by any governmental authority, terrorism, civil riot, floods, hurricanes, or other natural disasters, any other cause not within the control of City or Consultant that by the exercise of due diligence City or Consultant is unable, wholly or in part, to prevent or overcome and supersedes all prior agreements and understanding between City and Consultant concerning the subject matter of this Agreement. 14.2 This Agreement constitutes the entire agreement between City and Consultant. No agreements, amendments, modifications, implied or otherwise, shall be binding on any of the parties unless set forth in writing and signed by both parties. 14.3 City and Consultant agree that this Agreement shall be construed in accordance with the laws of the State of Iowa. Any legal dispute between the parties shall be resolved in the following manner: The parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement promptly by negotiation between senior executives or officers of the parties who have the authority to settle the controversy, subject to such approval as may be required by law. The disputing party shall give the other party written notice of the dispute. Within ten days after receipt of said notice, the receiving party shall submit to the other a written response. The notice and response shall include: (a) a statement of each party's position and a summary of the evidence and arguments supporting its position; and (b) the name and title of the executive or officer who will represent the party. The executives or officers shall meet at a mutually acceptable time and place within twenty days of the date Contract for Planning Services City of Dubuque - Lane Kendig, inc. Page 7 of the disputing party's notice and thereafter as often as they reasonably deem necessary to exchange relevant information and to attempt to resolve the dispute. If the controversy or claim has not been resolved within thirty days of the meeting of the senior executives, the parties shall endeavor to settle the dispute by non-binding mediation. If the matter has not been resolved by non-binding mediation within ninety days after the commencement of such procedure, either party may pursue such legal remedies as it deems appropriate. Venue for all actions brought pursuant to this Agreement shall be in Dubuque County, Iowa. 14.4 If one or more of the provisions of this Agreement, or the application of any provision to any party or circumstance, is held invalid, unenforceable, or illegal in any respect, the remainder of this Agreement and the application of the provision to other parties or circumstances shall remain valid and in full force and effect. 14.5 Any notice required to be given pursuant to the terms and provisions of this Agreement shall be in writing and shall be mailed by certified or registered mail addressed as set forth below or at such other address as may be specified by written notice: CITY: City Manager City Hall 13 th and Central Avenue Dubuque, Iowa 52001 CONSULTANT: Kimberley Mickelson, Principal 53 W. Jackson Blvd., Suite 1661 Chicago, IL 60604 14.6 The waiver by either party of a breach of any provision of this Agreement shall not constitute a waiver of any other or subsequent breach of this Agreement. 14.7 Consultant shall not assign any interest on this Agreement and shall not transfer any interest in the same, whether by assignment or novation, without the prior written consent of City. However, claims for payment by Consultant from City under this Agreement may be assigned as security to a bank, trust company, or other financial institution without such approval. Written notice of any such assignment or transfer shall be furnished promptly to City. 14.8 Successors and Assigns: City and Consultant each binds itself and its successors, executors, administrators and assigns to the other parties of this Agreement and to the successors, executors, administrators and assigns of such other parties, in respect to all covenants of this Agreement. Nothing herein shall be construed as creating any Contract for Planning Services City of Dubuque- Lane Kendig, inc. Page 8 personal liability on the part of any officer, board member, commissioner, employee or agent of any public body which is a party hereto. 14.9 Reports and Information: Consultant, at such times and in such forms as City may require, shall furnish City such periodic reports as it may request pertaining to the work or services undertaken pursuant to this Agreement, the cost and obligations incurred or to be in connection therewith, and any other matter covered by this Agreement. 14.10 Incorporation of Provisions Required by Law. Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein and this Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 14.11 Waiver. The failure on the part of any party herein at any time to require the performance by any other party of any portion of this Agreement shall not be deemed a waiver of, or in any way affect that party's rights to enforce such provision or any other provision. Any waiver by any party herein of any provision hereof shall not be taken or held to be a waiver of any other provision hereof or any other breach hereof. 14.12 Survival. Any and all representations and conditions made by Consultant under this Agreement are of the essence of this Agreement and shall survive the execution, delivery and termination of it, and all statements contained in any documents required by City, whether delivered at the time of the execution or at a later date, shall constitute representations hereunder. 14.13 Cumulative Remedies. In the event of default by any party herein, the other party shall have all rights and remedies afforded to it at law or in equity to recover damages and to interpret or enforce the terms of this Agreement. The exercise of anyone right or remedy shall be without prejudice to the enforcement of any other right or remedy allowed at law or in equity. 14.14 State or Federal Laws. This Agreement is to be performed in Dubuque, Iowa, and is subject to all applicable federal and state laws, statutes, codes, any and applicable permits, ordinances, rules, orders, and regulations of any local, state, or federal government authority having or asserting jurisdiction. 14.15 Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, age, sex, or national origin. Consultant shall, in all solicitations or advertisements for employees placed by or on behalf of it, state that it is an Equal Opportunity Employer. Contract for Planning Services City of Dubuque-Lane Kendig, inc. Page 9 ., \ , 14.16 Multiple Originals. Two (2) copies of this Agreement are executed and each shall be deemed an original. IN WITNESS HEREOF, the parties have executed this Agreement in duplicate originals in Dubuque, Iowa. Dated this 16th day of March, 2005. CITY OF DUBUQUE, IOWA By: /s/ Terrance M. Duggan, Mayor LANE KENDIG, INC. By: Kimberley Mickelson, Principal ATTEST: Jeanne F. Schneider, City Clerk Contract for Planning Services City of Dubuque- Lane Kendig, inc. Page 10 Exhibit A SCOPE OF SERVICES Consultant will perform the tasks outlined in the RFP dated November 18, 2004, "Comprehensive Update of Zoning Ordinance and Subdivision Ordinance" and Consultant's response dated December 22, 2004. Exact dates and deliverables may be modified from those documents following a "kick-off meeting" between Consultant and City, and periodically updated, each update of which shall be attached to this Agreement and become a part hereof for all purposes. Exhibit B SUPPORT SERVICES The City will make its Arc View GIS mapping and data analysis capabilities for the project. The City will also appoint staff resource persons in the Planning Services and Legal Departments, as well as members from other appropriate departments to serve as resource persons and a staff technical advisory committee. The City staff will coordinate and schedule meetings with the Technical Committee, Citizen Advisory Committee, and Sign Review Advisory Subcommittee, as well as the Zoning Advisory Commission, Zoning Board of Adjustment, and Long Range Planning Advisory Commission, ensuring that all meetings are properly noticed and posted, and materials distributed to the members before the meeting. City staff will be available for public meetings and regular meetings with the Consultant as determined necessary. Be responsible for scheduling and managing public hearings, interactions with public officials, and publication of hearing notices, as well as presentation of the final draft of the revised ordinances/code before the Zoning Advisory Commission and City Council. EXHIBIT C INSURANCE REQUIREMENTS FOR PROFESSIONAL SERVICES 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 of better in the current A.M. Best Rating Guide. 2. All policies of insurance shall be endorsed to provide a thirty (30) day advance notice of cancellation to the City of Dubuque if cancellation is prior to the expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. 3. l fhJ'GbDIG \ t-X..shall furnish a Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such Certificates shall include copies of the following endorsements: a) Thirty day notice of cancellation to the City of Dubuque. b) Commercial General Liability policy is primary and non-contributing. c) Commercial General Liability additional insured endorsement. d) Governmental Immunities Endorsement. e) Waiver of Recovery under workers compensation. Ws bDl6 I I r-!> <.... shall also be required to provide Certificates of Insurance of all subcontractors and all sub-sub contractors who perform work or services pursuant to the provisions of this contracJ. Said q~rtificates shall meet the same insurance requirements as required of lJ:rN~ ~Dl (", I NG. . 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. Contractor shall be required to carry the following minimum coverage/limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit Products-Completed Operations Aggregate Limit Personal and Advertising Injury Limit Each Occurrence Limit Fire Damage Limit (anyone occurrence) Medical Payments $2,000,000 $1,000,000 $1,000,000 $1,000,000 $ 50,000 $ 5,000 This coverage shall be written on an occurrence, not claims made, form per project. All deviations or exclusions from the standard ISO commercial general liability form CG 0001 or Businessowners BP 0002 shall be clearly identified. Page 1 of4 August 2003 Governmental Immunity endorsement identical or equivalent to form attached. An additional insured endorsement identical or equivalent to ISO Form CG 2026 and include as additional insureds: "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." b) WORKERS COMPENSATION & EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: $100,000 each accident $100,000 each employee-disease $500,000 policy limit-disease Policy shall include an endorsement waiving right of recovery against City of Dubuque. c) PROFESSIONAL LIABILITY: d) UMBRELLA/EXCESS LIABILITY $1,000,000 Coverage to be determined on a case-by-case basis by Finance Director. Page 2 of 4 August 2003 POLICY NUMBER COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULL Y. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person Or Organization: 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. (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you. Coovriaht. Insurance Services Office. Inc. 1994 CG 20 26 11 85 Page 3 of 4 August 2003 CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmentallmmunitv. 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 Coveraoe. 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 Coveraoe. 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 Chanoe in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. Page 4 of 4 August 2003