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Suit by Spahn and Rose
IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY SPAHN & ROSE LUMBER CO., ) Plaintiff, ) Case No. 01311 LACV`_. ) vs. ) ) CITY OF DUBUQUE, ) ORIGINAL NOTICE ) Defendant. ) To the Above -Named Defendant(s): You are notified that a petition has been filed in the office of the clerk of this court naming you as the defendant in this action. A copy of the petition (and any documents filed with it) is attached to this notice. The Petition was filed on the 2nd day of August, 2012. The attorney for the Plaintiff is Christopher C. Fry of O'Connor & Thomas, P.C., whose address is 700 Locust Street, Suite 200, Dubuque, Iowa 52001. The attorneys' phone number is 563/557 -8400; facsimile number 563/556 -1867. You must serve a motion or answer within 20 days after service of this original notice upon you and, within a reasonable time thereafter, file your motion or answer with the Clerk of Court for Dubuque County, at the county courthouse in Dubuque, Iowa. If you do not, judgment by default may be rendered against you for the relief demanded in the petition. If you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at 1- 563 -589 -4448. (If you are hearing impaired, call Relay Iowa TTY at 1- 800 - 735- 2942). (SEAL) Clerk of Court Dubuque County Courthouse 720 Central Ave Dubuque, Iowa 52001 IMPORTANT: YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. It you need assistance to participate in court due to a disability, call the disability coordinator at 319 -833 -3332. Persons who are hearing or s s bh` mpaired e coordinators call Relay Iowa Ti? (1.800. 735 - 2'942), provide legal advtos. IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY SPAHN & ROSE LUMBER CO., Plaintiff, vs. CITY OF DUBUQUE, Defendant. Case No. 01311 LACV PETITION AT LAW AND JURY DEMAND COMES NOW Plaintiff, Spahn & Rose Lumber Co., by and through its attorneys, O'Connor & Thomas, P.C., and for its cause of action against Defendant, City of Dubuque, states as follows: 1. Plaintiff Spahn & Rose Lumber Co. (hereafter "Spahn & Rose ") is an Iowa corporation with its principal place of business in Dubuque, Dubuque County, Iowa. 2. Defendant City of Dubuque (hereafter "the City ") is an Iowa municipal corporation located in Dubuque County, Iowa. 3. The City owns, maintains, and operates a sanitary sewer system for Dubuque, Iowa. 4. On or about July 8, 2011, Spahn & Rose and City entered into a lease agreement whereby the City leased approximately 15,000 square feet of warehouse space at 925 Kerper Boulevard, Dubuque, Iowa, to Spahn & Rose for the storage of building materials. A true and correct copy of the lease is attached hereto as Exhibit "A." 5. After entering into the lease, Spahn & Rose began storing its building materials Page 1 of 9 upon the premises at 925 Kerper Boulevard. 6. On or about October 4, 2011, the City was testing and inspecting sewer lines within the city in connection with its maintenance and operation of the sanitary sewer system. 7. At the time of the City's testing on October 4, 2011, a 30" underground sewer main carrying untreated sewage ran beneath the premises at 925 Kerper (hereafter the "30" sewer main "). 8. As of October 4, 2011, the 30" sewer main running beneath the premises at 925 Kerper was approximately 43 years old. 9. As of October 4, 2011, portions of the 30" sewer main were corroded or deteriorated. 10. During the testing process on October 4, 2011, the 30" sewer main failed and sustained breaks in two different places: below the leased premises at 925 Kerper and on property owned by Alliant Energy. 11. When the 30" sewer main failed on October 4, 2011, it released pressurized, untreated sewage into the ground beneath the leased premises at 925 Kerper. 12. The pressurized, untreated sewage released from the 30" sewer main shot through the ground, through the concrete slab floor of the premises at 925 Kerper, entered the portion of the premises leased by Spahn & Rose, and flooded the premises with untreated sewage. 13. The 30" sewer main failed due to its deteriorated condition. 14. Spahn & Rose's building materials at 925 Kerper were exposed to the untreated sewage released from the 30" sewer main. 15. Spann & Rose's building materials at 925 Kerper were damaged as a result of Page 2 of 9 their exposure to the untreated sewage released from the 30" main. 16. Following the 30" sewer main's failure, the City directed Spahn & Rose employees to assist in the removal of its building materials from 925 Kerper. 17. Spahn & Rose incurred labor and equipment costs in connection with the removal, and later restocking, of its building materials at 925 Kerper. COUNTI STRICT LIABILITY 18. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 as though fully set forth herein. 19. A municipality that accepts the advantages of burying a sewer main underground beyond any reasonable opportunity to inspect or repair it and intentionally leaves it in the ground until it breaks is strictly liable for the damages resulting from such practice pursuant to Lubin v. Iowa City, 131 N.W.2d 765 (Iowa 1964). 20. The burying of a sewer main underground, beyond any reasonable opportunity for inspection or repair, is an abnormally dangerous activity in that such activity involves a high degree of risk of some harm in the event the main is breached. 21. Spahn & Rose intends to rely in this count upon the doctrine of strict liability for escaping water or sewage as outlined in Lubin v. Iowa City, 131 N.W.2d 765 (Iowa 1964). 22. Spahn & Rose's building materials at 925 Kerper were damaged as a result of the 30" sewer main's failure and release of untreated sewage. 23. The 30" sewer main's failure and release of untreated sewage was the proximate cause of Spahn & Rose's damages. Page 3 of 9 24. By reason of the 30" sewer main's failure and release of untreated sewage, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. 25. The City is strictly liable for the failure of the 30" sewer main and the resulting damages to Spahn & Rose. COUNT II NEGLIGENCE 26. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 as though fully set forth herein. 27. The City was negligent in its operation and maintenance of the 30" sewer main in ways including, but not limited to, the following: a) in failing to maintain the 30" sewer main in reasonable manner; b) in failing to make repairs to the 30" sewer main as reasonably necessary to prevent breaks in the main; c) in failing to operate the 30" sewer main in a reasonable manner; d) in failing to regularly inspect the 30" sewer main for defects or deterioration; e) in failing to take reasonable measures to prevent the 30" sewer main from failing; f) in failing to remove blocking under the pipe after bedding the pipe; g) in constructing and installing the pipe in a defective manner; and Page 4 of 9 h) in committing such other acts or omissions as may be determined through discovery in this action. 28. As a direct and proximate result of the City's negligence, Spahn & Rose's building materials stored at 925 Kerper were damaged. 29. The City's negligence was a proximate cause of Spahn & Rose's damages. 30. By reason of the City's negligence, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. COUNT III RES IPSA LOQUITUR 31. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 and 26 through 30 above as though fully set forth herein. 32. During its normal operation, the 30" sewer main failed and released untreated sewage into the premises at 925 Kerper. 33. The City had exclusive control and management of the 30" sewer main running beneath the premises at 925 Kerper on October 4, 2011. 34. The failure of the 30" sewer main and its release of untreated sewage, together with the damages Spahn & Rose incurred as a result, are not typical in the regular course of operation of an underground sewer main. 35. Spahn & Rose would not have incurred such damages if City had taken reasonable and prudent care in operating and maintaining the 30" sewer main, and Spahn & Rose intends to Page 5 of 9 rely in this count on the doctrine of res ipsa loquitur. 36. As a direct and proximate result of the City's negligence, Spahn & Rose's building materials stored at 925 Kerper were damaged. 37. The City's negligence was a proximate cause of Spahn & Rose's damages. 38. By reason of the City's negligence, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. COUNT IV TRESPASS 39. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 above as though fully set forth herein. 40. The release of untreated sewage from the City's 30" sewer main into the leased premises at 925 Kerper constituted an unlawful trespass by the City. 41. The release of untreated sewage into the leased premises at 925 Kerper substantially interfered with Spahn & Rose's use and enjoyment of the property. 42. As a direct and proximate result of the City's release of untreated sewage into the leased premises at 925 Kerper, Spahn & Rose's building materials were damaged. 43. By reason of the City's unlawful trespass, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. Page 6 of 9 COUNT V NUISANCE 44. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 above as though fully set forth herein. 45. The release of untreated sewage from the City's 30" sewer main constituted a nuisance to Spahn & Rose in that such release caused contamination of and damage to Spahn & Rose's building materials stored at 925 Kerper. 46. The release of the untreated sewage is the proximate cause of damage to Spahn & Rose's building materials stored at 925 Kerper. 47. By reason of the nuisance, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. COUNT VI BREACH OF COVENANT OF QUIET ENJOYMENT 48. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 above as though fully set forth herein. 49. Under section 18 of the Lease Agreement attached hereto as Exhibit A, the City covenanted that "at all time 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." 50. Spann & Rose's quiet enjoyment of the leased premises at 925 Kerper was disturbed when untreated sewage from the City's 30" sewer main entered the leased premises on October 4, 2011. Page 7 of 9 51. The City breached its covenant of quiet enjoyment when untreated sewage from its sewer main entered the leased premises at 925 Kerper. 52. As a direct result of City's breach of its covenant of quiet enjoyment, Spahn & Rose's building materials at 925 Kerper were damaged. 53. The City's breach of its covenant of quiet enjoyment was a proximate cause of damage to Spahn & Rose. 54. By reason of the City's breach of covenant of quiet enjoyment, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. COUNT VII INDEMNIFICATION UNDER SECTION 13 OF LEASE AGREEMENT 55. Spahr & Rose re- pleads and re- alleges Paragraphs 1 through 17 and 48 through 54 above as though fully set forth herein. 56. Paragraph 13.1 of Section 13 of the lease agreement between the City and Spahn & Rose provides that: [T]o the extent allowed by law, Lessor will defend, indemnify and save hannless 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 resulting from any act or omission of Lessor, (b) any failure on the part of Lessor to perform or comply with any of the terms of this Lease, and (c) any breach on the part of Lessor of any warranty or representation contained in Section 11. 57. Spahn & Rose has incurred damages to building materials it kept at 925 Kerper Page 8 of 9 due to the City's acts and omissions and its breach of its covenant of quiet enjoyment. 58. Spahn & Rose is entitled to recover its damages, costs, and expenses, including reasonable attorneys' fees, from the City pursuant to Section 13.1 of the lease agreement. WHEREFORE, Plaintiff Spahn & Rose Lumber Company prays that this Court enter judgment in its favor and against Defendant City of Dubuque for compensatory damages in an amount to be proven at trial, court costs, and reasonable attorney fees, together with interest and such other and further relief, legal or equitable, as the Court deems just and appropriate under the circumstances. JURY DEMAND COMES NOW Plaintiff, Spahn & Rose, and hereby demands a trial by jury. SPAHN & ROSE LUMBER CO., Plaintiff By: C Chris pher C. Fry AT0002683 O'CONNOR & THOMAS, P.C. Roshek Building 700 Locust Street, Suite 200 Dubuque, IA 52001 -6874 Phone (563) 557 -8400 Fax (563) 556 -1867 cfrya, o cthomaslaw. com Attorneys for Plaintiffs Page 9 of 9 IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY SPAHN & ROSE LUMBER CO., ) ) Plaintiff, ) Case No. 01311 LACV 057680 vs. ) `. ) CITY OF DUBUQUE, ) ) Defendant. ) FIRST AMENDED PETITION AT LAW AND JURY DEMAND COMES NOW Plaintiff, Spahn & Rose Lumber Co., by and through its attorneys, O'Connor & Thomas, P.C., and for its First Amended Petition at Law stating causes of action against Defendant, City of Dubuque, states as follows: 1. Plaintiff Spahn & Rose Lumber Co. (hereafter "Spahn & Rose ") is an Iowa corporation with its principal place of business in Dubuque, Dubuque County, Iowa. 2. Defendant City of Dubuque (hereafter "the City ") is an Iowa municipal corporation located in Dubuque County, Iowa. 3. The City owns, maintains, and operates a sanitary sewer system for Dubuque, Iowa. 4. On or about July 8, 2011, Spahn & Rose and City entered into a lease agreement whereby the City leased approximately 15,000 square feet of warehouse space at 925 Kerper Boulevard, Dubuque, Iowa, to Spahn & Rose for the storage of building materials. A true and correct copy of the lease is attached hereto as Exhibit "A." 5. After entering into the lease, Spahn & Rose began storing its building materials Page 1 of 9 upon the premises at 925 Kerper Boulevard. 6. On or about October 4, 2011, the City was testing and inspecting sewer lines within the city in connection with its maintenance and operation of the sanitary sewer system. 7. At the time of the City's testing on October 4, 2011, a 30" underground sewer main carrying untreated sewage ran beneath the premises at 925 Kerper (hereafter the "30" sewer main "). 8. As of October 4, 2011, the 30" sewer main running beneath the premises at 925 Kerper was approximately 43 years old. 9. As of October 4, 2011, portions of the 30" sewer main were corroded or deteriorated. 10. During the testing process on October 4, 2011, the 30" sewer main failed and sustained breaks in two different places: below the leased premises at 925 Kerper and on property owned by Alliant Energy. 11. When the 30" sewer main failed on October 4, 2011, it released pressurized, untreated sewage into the ground beneath the leased premises at 925 Kerper. 12. The pressurized, untreated sewage released from the 30" sewer main shot through the ground, through the concrete slab floor of the premises at 925 Kerper, entered the portion of the premises leased by Spahr & Rose, and flooded the premises with untreated sewage. 13. The 30" sewer main failed due to its deteriorated condition. 14. Spahr & Rose's building materials at 925 Kerper were exposed to the untreated sewage released from the 30" sewer main. 15. Spahn & Rose's building materials at 925 Kerper were damaged as a result of Page 2 of 9 their exposure to the untreated sewage released from the 30" main. 16. Following the 30" sewer main's failure, the City directed Spahn & Rose employees to assist in the removal of its building materials from 925 Kerper. 17. Spahn & Rose incurred labor and equipment costs in connection with the removal, and later restocking, of its building materials at 925 Kerper. COUNT I STRICT LIABILITY 18. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 as though fully set forth herein. 19. A municipality that accepts the advantages of burying a sewer main underground beyond any reasonable opportunity to inspect or repair it and intentionally leaves it in the ground until it breaks is strictly liable for the damages resulting from such practice pursuant to Lubin v. Iowa City, 131 N.W.2d 765 (Iowa 1964). 20. The burying of a sewer main underground, beyond any reasonable opportunity for inspection or repair, is an abnormally dangerous activity in that such activity involves a high degree of risk of some harm in the event the main is breached. 21. Spahn & Rose intends to rely in this count upon the doctrine of strict liability for escaping water or sewage as outlined in Lubin v. Iowa City, 131 N.W.2d 765 (Iowa 1964). 22. Spahn & Rose's building materials at 925 Kerper were damaged as a result of the 30" sewer main's failure and release of untreated sewage. 23. The 30" sewer main's failure and release of untreated sewage was the proximate cause of Spahn & Rose's damages. Page 3 of 9 24. By reason of the 30" sewer main's failure and release of untreated sewage, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. 25. The City is strictly liable for the failure of the 30" sewer main and the resulting damages to Spahn & Rose. COUNT II NEGLIGENCE 26. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 as though fully set forth herein. 27. The City was negligent in its operation and maintenance of the 30" sewer main in ways including, but not limited to, the following: a) in failing to maintain the 30" sewer main in reasonable manner; b) in failing to make repairs to the 30" sewer main as reasonably necessary to prevent breaks in the main; c) in failing to operate the 30" sewer main in a reasonable manner; d) in failing to regularly inspect the 30" sewer main for defects or deterioration; e) in failing to take reasonable measures to prevent the 30" sewer main from failing; f) in failing to remove blocking under the pipe after bedding the pipe; g) in constructing and installing the pipe in a defective manner; and Page 4 of 9 h) in committing such other acts or omissions as may be deteimined through discovery in this action. 28. As a direct and proximate result of the City's negligence, Spahn & Rose's building materials stored at 925 Kerper were damaged. 29. The City's negligence was a proximate cause of Spahn & Rose's damages. 30. By reason of the City's negligence, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. COUNT III RES IPSA LOQUITUR 31. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 and 26 through 30 above as though fully set forth herein. 32. During its normal operation, the 30" sewer main failed and released untreated sewage into the premises at 925 Kerper. 33. The City had exclusive control and management of the 30" sewer main running beneath the premises at 925 Kerper on October 4, 2011. 34. The failure of the 30" sewer main and its release of untreated sewage, together with the damages Spahn & Rose incurred as a result, are not typical in the regular course of operation of an underground sewer main. 35. Spahn & Rose would not have incurred such damages if City had taken reasonable and prudent care in operating and maintaining the 30" sewer main, and Spahn & Rose intends to Page 5 of 9 rely in this count on the doctrine of res ipsa loquitur. 36. As a direct and proximate result of the City's negligence, Spahn & Rose's building materials stored at 925 Kerper were damaged. 37. The City's negligence was a proximate cause of Spahn & Rose's damages 38. By reason of the City's negligence, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. COUNT IV TRESPASS 39. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 above as though fully set forth herein. 40. The release of untreated sewage from the City's 30" sewer main into the leased premises at 925 Kerper constituted an unlawful trespass by the City. 41. The release of untreated sewage into the leased premises at 925 Kerper substantially interfered with Spahn & Rose's use and enjoyment of the property. 42. As a direct and proximate result of the City's release of untreated sewage into the leased premises at 925 Kerper, Spahn & Rose's building materials were damaged. 43. By reason of the City's unlawful trespass, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. Page 6 of 9 COUNT V NUISANCE 44. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 above as though fully set forth herein. 45. The release of untreated sewage from the City's 30" sewer main constituted a nuisance to Spahn & Rose in that such release caused contamination of and damage to Spahn & Rose's building materials stored at 925 Kerper. 46. The release of the untreated sewage is the proximate cause of damage to Spahn & Rose's building materials stored at 925 Kerper. 47. By reason of the nuisance, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. COUNT VI BREACH OF COVENANT OF QUIET ENJOYMENT 48. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 above as though fully set forth herein. 49. Under section 18 of the Lease Agreement attached hereto as Exhibit A, the City covenanted that "at all time during the teiui 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." 50. Spahn & Rose's quiet enjoyment of the leased premises at 925 Kerper was disturbed when untreated sewage from the City's 30" sewer main entered the leased premises on October 4, 2011. Page 7 of 9 51. The City breached its covenant of quiet enjoyment when untreated sewage from its sewer main entered the leased premises at 925 Kerper. 52. As a direct result of City's breach of its covenant of quiet enjoyment, Spahn & Rose's building materials at 925 Kerper were damaged. 53. The City's breach of its covenant of quiet enjoyment was a proximate cause of damage to Spahn & Rose. 54. By reason of the City's breach of covenant of quiet enjoyment, Spahn & Rose has incurred damages including, but not limited to, the loss in value of its building materials exposed to the untreated sewage, labor and equipment expenses to handle the damaged materials, and other incidental costs. COUNT VII INDEMNIFICATION UNDER SECTION 13 OF LEASE AGREEMENT 55. Spahn & Rose re- pleads and re- alleges Paragraphs 1 through 17 and 48 through 54 above as though fully set forth herein. 56. Paragraph 13.1 of Section 13 of the lease agreement between the City and Spahn & Rose provides that: [T]o the extent allowed by law, Lessor will defend, indemnify and save harmless Lessee from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessee by reason of (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Demised Premises resulting from any act or omission of Lessor, (b) any failure on the part of Lessor to perform or comply with any of the terms of this Lease, and (c) any breach on the part of Lessor of any warranty or representation contained in Section 11. 57. Spahn & Rose has incurred damages to building materials it kept at 925 Kerper Page 8 of 9 due to the City's acts and omissions and its breach of its covenant of quiet enjoyment. 58. Spahn & Rose is entitled to recover its damages, costs, and expenses, including reasonable attorneys' fees, from the City pursuant to Section 13.1 of the lease agreement. WHEREFORE, Plaintiff Spahn & Rose Lumber Company prays that this Court enter judgment in its favor and against Defendant City of Dubuque for compensatory damages in an amount to be proven at trial, court costs, and reasonable attorney fees, together with interest and such other and further relief, legal or equitable, as the Court deems just and appropriate under the circumstances. JURY DEMAND COMES NOW Plaintiff, Spahn & Rose, and hereby demands a trial by jury. SPAHN & ROSE LUMBER CO., Plaintiff By: 71-Th her C. Fry AT0 2683 O'CONNOR & THOMAS, P.C. Roshek Building 700 Locust Street, Suite 200 Dubuque, IA 52001 -6874 Phone (563) 557 -8400 Fax (563) 556 -1867 cfry@octhomaslaw.com Attorneys for Plaintiffs Page 9 of 9 Prepared by: Barry A. Lindahl, Esq. 330 Main Street, Suite 300 Dubuque IA 52001 563 583 -4113 LEASE AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA, AND SPAHN AND ROSE LUMBER COMPANY This Lease Agreement (the Lease), dated for reference purposes this ?' —' day of "J-b, l , 2011, is made and entered Into by and between the City of Dubuque, Iowa, an Iowa municipal corporation (Lessor), Spahn & Rose Lumber Company (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 known as 925 Kerper Boulevard, Dubuque, IA 52001 which is comprised of approximately 15,000 sq. ft of warehouse space as shown on Exhibit A, with access thereto as shown on Exhibit A, attached to and made a part of this Lease 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 an initial term commencing as of the 1st day of July, 2011 and ending at midnight on the 30th day of June, 2014 (the Initial Term), subject to all of the terms, covenants, conditions and agreements contained herein. Tenant shall have the right to terminate the Lease any time after July 1, 2013 by giving the Landlord not less than thirty (30) days written notice. SECTION 2. RENT, TAXES, AND OTHER PAYMENTS. Lessee shall pay Lessor, in addition to taxes, fees (including but not limited to storm water fees), rates, charges, levies, assessments, and all other charges required to be paid under this Lease by Lessee, rent in advance as follows commencing on the 1st day of July, 2011, and on the first day of each month thereafter during the Initial Term: Period Annual Rent Monthly Rent July 1, 2011 to June 30, 2012 $15,750.00 $1,312.50 July 1, 2012 to June 30, 2013 $31,500.00 $2,625.00 July 1, 2013 to June 30, 2014 $31,500.00 $2,625.00 Lessee shall also pay all utility charges for utilities serving the Demised Premises. SECTION 3. TITLE TO IMPROVEMENTS AND TRADE FIXTURES 3.1. Trade Fixtures. For the purposes of this Lease, "Trade Fixtures" shall mean the following personal property located on the Demised Premises used in Lessee's business: Industrial Racking 070711 bal Title to Lessee's trade fixtures (the Trade Fixtures) is and shall be the sole and exclusive property of Lessee during the term of this Lease and shall remain the sole and exclusive property of Lessee after the expiration or termination of this Lease, for whatever reason. Lessor acknowledges and understands that it shall have no right, title or interest in or to Lessee's Trade Fixtures either during the term of this Lease, or thereafter (except as hereinafter provided). Lessor acknowledges and agrees that Lessee shall have the right to encumber, sell, or hypothecate Lessee's Trade Fixtures, to remove them from the Demised Premises, or to otherwise deal with all or any portion of such Lessee's Trade Fixtures, at Lessee's sole discretion. Upon ten (10) days' prior written notice to Lessor, Lessor shall execute and deliver to Lessee a certificate in recordable form prepared by Lessee stating that Lessor has no interest or right in or to Lessee's Trade Fixtures, as well as any other or further document which Lessee may reasonably request from Lessor. 3.2. Improvements. Improvements on the Demised Premises as of the commencement date of this Lease are the Building. On delivery of possession of the Demised Premises to Lessee, Lessee shall not construct any improvements on the Demised Premises. SECTION 4. GATES. Lessor will keep the gates to the Demised Premises locked at all times and will provide Lessee with a key to the gates. SECTION 5. TAXES. 5.1. Lessee agrees to pay as additional rent the real estate taxes upon the real estate of the Leased Premises that become payable during the Term hereof and also real estate taxes for Lessee's occupancy that become payable after the termination of this Lease. Lessee shall further provide to Lessor official receipts of the appropriate taxing authority or other evidence satisfactory to Lessor evidencing payment thereof. Lessor agrees that its City Manager will recommend to the City Council in a Development Agreement upon terms acceptable to Lessor that to the extent permitted by law, Lessor will rebate Lessee's tax payments under this Section 5.1 as tax increment financing rebates. 5.2. During the term of this Lease, Lessee further agrees to reimburse Lessor all other taxes, fees (including but not limited to storm water fees), rates, charges, levies and assessments, general and special, of every name, nature and kind, whether now known to the law or hereafter created which may be taxed, charged, assessed, levied or imposed upon said real estate and which become payable during the term hereof and which would become delinquent if not so paid during the term hereof, any buildings or improvements thereon which may be taxed, charged, assessed, levied or imposed upon the leasehold estate hereby created and upon the reversionary estate in said real estate during the term hereof and which become payable during the term hereof and which would become delinquent if not so paid during the term hereof, and all such other taxes, 2 fees, rates, charges, levies and assessments shall be paid by Lessee as they become due and before they become delinquent during the term hereof. The foregoing notwithstanding, Lessee shall only be responsible for the payment of any assessments, general or specific, so long as such assessments are calculated over the longest period permitted by law, in which case Lessee shall be responsible for paying those payments falling due within the Term of the Lease. 5.3. Lessee agrees to timely pay all taxes, fees, assessments or other public charges levied or assessed by lawful authority (but reasonably preserving Lessee's rights of appeal) against its personal property on the premises, during the term of this Lease. 5.4. Nothing herein shall require Lessee to pay any of Lessor's income taxes, surtaxes, excess profit taxes or any taxes on the rents reserved to Lessor hereunder. 5.5. Lessee shall at all times have the right to contest in good faith, in any proper proceedings, in the name of Lessor If necessary, the payment or satisfaction of any such taxes, fees, assessments, rates, charges or levies so agreed to be paid by Lessee, If the validity thereof, or the right to assess or levy the same against or collect the same from said Demised Premises or Improvements, shall be disputed. Upon the conclusion of any such suit or proceedings, or not less than three (3) months prior to the date when the right to redeem therefrom expires, whichever will be the earlier, Lessee shall promptly pay and satisfy such disputed tax, fee, assessment or other charge as finally determined, together with all expenses, costs and attorneys' fees whatsoever Incurred In connection therewith. SECTION 6. REPAIRS. 6.1. Lessee shall at all times during the term of this Lease, keep the Demised Premises and the Improvements thereon, and all sidewalks, curbs, and all appurtenances to the Demised Premises, in good order, condition and repair, casualties and ordinary wear and tear excepted and to a condition satisfactory to Lessor. Lessee shall keep the Demised Premises in such condition as may be required by law and by the terms of the insurance policies furnished pursuant to this Lease, whether or not such repair shall be Interior or exterior, and whether or not such repair shall be of a structural nature. Notwithstanding the foregoing, Tenant's responsibility for the costs and expenses for normal maintenance, repairs and replacements shall be limited to $1,000 per occurrence. Upon reasonable notice to Lessee, Lessor may, at its discretion and at its cost, conduct an annual inspection of the Demised Premises to determine Lessee's compliance with this Section 6. 6.2. Lessor shall have no obligation to Lessee for any maintenance, repair or replacement expense on the Demised Premises which are less than $1,000 per occurrence. 6.3. Notwithstanding the foregoing, Lessee shall have no obligation for any maintenance, repair or replacement expense for the roof on the building on the 3 Demised Premises. SECTION 7. COMPLIANCE WITH LAW. 7.1. During the term of this Lease, Lessee shall comply with all local, state and federal laws applicable to Lessee's use of the Demised Premises, including but not limited to the Americans with Disabilities Act and the Smoke Free Air Act. 7.2. Lessee shall not commit waste on the Demised Premises except as necessary for its business purposes including the removal or construction of any buildings and Improvements on the Demised Premises, and shall be liable for any damages to or destruction of any buildings or Improvements on the Demised Premises resulting from waste and shall be required to repair or rebuild such buildings or Improvements. Lessee shall not remove any Improvements on the Demised Premises without the prior written approval of Lessor. SECTION 8. ALTERATIONS. Lessee shall not make any alteration, addition or modification to the Demised Premises or the Improvements thereon. SECTION 9. RESTRICTED USE OF DEMISED PREMISES. 9.1. Use of Premises. The Demised Premises shall be used only for the following purposes and absolutely no others: Transport and Storage of Building Materials Lessee shall not store any material which might dissolve, leach or migrate onto or Into the ground of the Demised Premises without proper containment. 9.2. Restrictions on Use. Notwithstanding any other provision of this Lease, Lessee agrees to the following restrictions on the use and enjoyment of the Demised Premises: a. Lessee shall not install or allow the installation of wells on the Demised Premises without the consent of Lessor, except as provided in 9.4 below. b. Lessee shall not allow any disturbance or excavation of the soil on the Demised Premises without the consent of Lessor, except as provided in Section 9.4 below. c. Lessee shall not allow public access to the Demised Premises. 9.3. Lessee shall not knowingly use or allow the Demised Premises or any buildings or Improvements thereon or any appurtenances thereto, to be used or occupied for any unlawful purpose or in violation of any certificate of occupancy. Lessee shall not suffer any act to be done or any condition to exist within the Demised Premises or in any Improvement thereon, or permit any article to be brought therein, which is dangerous, unless safeguarded as required by law, or which, in law, constitute a nuisance, public or 4 private, or which may make void or voidable any insurance In force with respect thereto. 9.4. Access. Notwithstanding any other provision of this Lease, Lessee agrees and hereby authorizes access to the Demised Premises by any authorized governmental body and those entities undertaking Investigations and /or response actions arising from the known environmental condition at or about the Demised Premises referred to herein as the "Peoples Natural Gas Site." At the date of execution of this Lease, those parties are: City of Dubuque, Iowa Department of Natural Resources, U.S. Environmental Protection Agency, MidAmerican Energy Company, and /or contractors and consultants for the above. Such Investigation and /or response actions may include, but are not limited to, the installation and monitoring of wells (some of which currently exist on the Demised Premises), the construction, installation, operation and monitoring of remedial technologies, equipment and buildings, the construction, installation, operation and monitoring of cut -off walls, and inspections by state and federal regulators. Lessee agrees not to interfere with such access and /or damage any wells, equipment, technologies, systems, buildings or other items related to the environmental investigation and response. SECTION 10. INSURANCE. 10.1. Lessee shall maintain during the term of this Lease insurance as set forth in the City's standard Insurance Schedule for Lessees of City Property, as such uniform, standardized schedule may from time to time be amended. The current Insurance Schedule is attached to this Lease Agreement as Insurance Schedule A. Lessor shall provide written notice of any amendment to the Insurance Schedule not less than sixty days prior to the effective date of such amendment. 10.2. Lessee agrees to notify City immediately in the case of damage exceeding $1,000.00. In amount to, or destruction of, Improvements or any portion thereof resulting from fire or other casualty. SECTION 11. LESSOR'S WARRANTIES AND REPRESENTATIONS 11.1. Lessor's Representation of Good Title. Lessor covenants and warrants that Lessor is lawfully seized in possession of the Demised Premises, and that it has full right and authority to enter into this Lease for the full term hereof, and covenants and agrees that upon paying the rent provided for herein, and upon Lessee's performing the covenants and agreements of this Lease required to be performed by said Lessee, that it will have, hold and enjoy quiet possession of the Demised Premises. Lessor warrants to Lessee that the Demised Premises are properly zoned for the conduct of the operation of Lessee's business. 11.2. Lessor's Representation as to Condition. Lessor makes no representations or warranties as to the condition, including environmental condition, of the Demised Premises and Lessee accepts the Demised Premises as is. 5 11.3. Lessor's Information as to Environmental Condition. For purposes of information only and not as a warranty or representation, Lessor has advised Lessee that the Demised Premises is included as part of a "site" known as the "Peoples Natural Gas Site" and is listed on the Iowa's Registry of Hazardous Waste or Hazardous Substance Disposal Sites and the National Priorities List under the federal Comprehensive Environmental Response, Compensation and Liability Act. As such, the site remains under active investigation and response by Lessor and others and there are restrictions on the use of the Demised Premises arising from such environmental condition. Landlord shall assume liability and shall Indemnify and hold Tenant harmless against all liability or expense arising from any condition which existed, whether known or unknown, at the time of execution of the lease which condition is not a result of actions of the Tenant or which condition arises after date of execution but which is not a result of actions of the Tenant. Lessee agrees that it has not relied upon Lessor for information regarding the environmental condition of the site, and has undertaken independent investigation thereof. SECTION 12. LESSEE'S WARRANTIES AND REPRESENTATION. 12.1. Lessee Compliance With Law. Lessee shall comply with all applicable local, state and federal laws, rules, regulations and permits with regard to the Demised Premises and its use, occupancy and control of the Demised Premises, including but not limited to the Americans with Disabilities Act and the Smoke Free Air Act. 12.2. Environmental Matters. (1) Lessee covenants and agrees that Lessor shall have no responsibility for or liability arising from any release of a Hazardous Substance which is caused by or results from Lessee, Lessee's use, occupancy or control of the Demised Premises, except for Lessor Hazardous Substances (any Hazardous Substance which leaches or migrates upon the Demised Premises from any property owned by Lessor). Notwithstanding any other provision of this Lease, Lessee shall not have any responsibility for any Hazardous Substance which leaches or migrates upon the Demised Premises from any adjacent property or any release of a Hazardous Substances which is caused by Lessor or which pre - exists the date of this Lease, except as follows: (a) Lessee shall be responsible for known pre- existing releases for which Lessee fails to take due care and adequate precaution and /or for which Lessee's actions or inactions cause a worsening of the release, and (b) Lessee shall provide full cooperation, assistance, and access to Lessor or other parties investigating and /or responding to a threatened or actual release. (2) Lessee covenants and agrees to promptly notify Lessor of any release of Hazardous Substance in, on or about the Demised Premises of which Lessee suspects or has actual knowledge. 6 (3) Lessee covenants and agrees to promptly take any and all necessary and appropriate response to fully address any release of Hazardous Substance for which Lessee is responsible under this Section 12.2(1) following advance notice to Lessor. Such response shall include, without limitation, notification to appropriate governmental authorities, as may be required by law. Lessee shall seek and obtain the concurrence of Lessor as to any such response. Lessee shall respond to such release to the full extent required by law in no event shall Lessee allow limitations or restrictions to be placed on the Demised Premises without the written consent of the Lessor. (4) Lessee covenants and agrees to not manufacture, treat or dispose of Hazardous Substances at the Demised Premises or allow the manufacture, treatment, or disposal of Hazardous Substances on the Demised Premises. Lessee shall use and store on the Demised Premises only those Hazardous Substances as are associated with its regular business activities, and then only as allowed by law. (5) For the purposes of this Lease, "Hazardous Substance" or "Hazardous Substances" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local government, the State of Iowa or the United States Government. It includes, without limitation, any material or substance that is (1) defined as a "hazardous substance" or "hazardous waste" under Chapter 455B, Iowa Code, (0) petroleum and petroleum products, (iii) asbestos containing materials in any form or condition, (iv) designated as a "hazardous substance" pursuant to 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1321), (v) defined as a "hazardous waste" pursuant to § 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq., (vi) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.0 § 9601 et seq., or (vii) defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. § 6991 et seq.] The term "Hazardous Substance" shall not Include any air emissions discharged Into the atmosphere as allowed by a duly issued permit from the applicable governmental agency. SECTION 13. INDEMNIFICATION. 13.1. Indemnification of Lessee. To the extent allowed by law, Lessor will defend, indemnify and save harmless Lessee from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessee by reason of (a) any accident, Injury to or death of persons or loss of or damage to property occurring on or about the Demised Premises and resulting from any act or omission of Lessor, (b) any failure on the part of Lessor to perform or comply with any of the terms of this Lease and (c) any breach on the part of Lessor of any warranty 7 or representation contained in Section 11. In case any action, suit or proceeding is brought against Lessee by reason of such occurrence, Lessor will, at Lessor expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by Lessee, which approval will not be unreasonably withheld. 13.2. Indemnification of Lessor. Lessee will defend, indemnify and save harmless Lessor from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against Lessor by reason of (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Demised Premises during the term of this Lease and resulting from any negligence of Lessee or anyone claiming by, .through or under Lessee during the term of the Lease and (b) any failure on the part of Lessee to perform or comply in any material respect with any of the material terms of this Lease, and (c) any material breach on the part of Lessee of any warranty or representation contained in Section 12. In case any action, suit or proceeding is brought against Lessor by reason of such occurrence, Lessee will, at Lessee's expense and discretion, either defend such action, suit or proceeding, or cause the same to be defended by counsel approved by Lessor, which approval will not be unreasonably withheld. 13.3. Survival. The obligations and liabilities under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of the termination or expiration of the term of this Lease. SECTION 14. CONDEMNATION. 14.1. Entire Condemnation. If at any time during the term of this Lease all or substantially all of the Demised Premises or the Improvements thereon shall be taken in the exercise of the power of eminent domain by any sovereign, municipality or other public or private authority, then this Lease shall terminate on the date of vesting of title in such taking and any prepaid rent shall be apportioned as of said date. Substantially all of the Demised Premises and the Improvements thereon shall be deemed to have been taken if the remaining portion of the Demised Premises shall not be of sufficient size to permit Lessee, in Lessee's sole discretion, to operate its business thereon in a manner similar to that prior to such taking. 14.2. Allocation of Award. Any award for such taking of all or substantially all of the Demised Premises shall be paid to the parties hereto in accordance with the following: (1) To Lessor, the amount of the award attributable to the Demised Premises, determined as if this Lease was not in effect at the time of such award, excluding therefrom the amount of the award attributable to new Improvements constructed by Lessee but not Improvements existing at the commencement of the Term of this Lease, and all other sums not directly attributable to the value of the Land constituting the Demised Premises; 8 (2) To Lessee, the entire award except that portion allocated to Lessor above. 14.3. Partial Condemnation. (1) If Tess than all or substantially all of the Demised Premises or the Improvements thereon shall be taken In the exercise of the power of eminent domain by any sovereign, municipality or other public or private authority, then Lessee, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If Lessee shall elect to maintain this Lease in full force and effect, the award for such partial condemnation shall be allocated as provided In 14.2, and Lessee shall proceed with reasonable diligence to carry out any necessary repair and restoration so that the remaining Improvements and appurtenances shall constitute a complete structural unit or units which can be operated on an economically feasible basis under the provisions of this Lease. In the event Lessee elects to continue this Lease In full force and effect after a partial condemnation, the Rent shall be reduced In proportion to the area of the Demised Premises taken. (2) Should Lessee elect to terminate this Lease upon a partial condemnation, Lessee shall provide Lessor with written notice of such election within thirty (30) days after the date of vesting of title for such taking. Lessee shall specify in such written notice the date on which this Lease shall terminate, which date shall be not less than 60 days nor more than 360 days after delivery of such notice to Lessor (the Termination Date). In the event Lessee terminates this Lease, as provided for in this 14.3, Lessor shall be entitled to the entire award for such partial taking. 14.4 Temporary Taking. If the temporary use of the whole or any part of the Demised Premises or the Improvements thereon or the appurtenances thereto shall be taken at any time during the term of this Lease in the exercise of the power of eminent domain by any sovereign, municipality, or other authority, then Lessee, at its option, may elect to continue this Lease in full force and effect or terminate this Lease. If Lessee elects to continue this Lease, 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. In the event Lessee terminates this Lease, Lessor shall be entitled to the entire award for such partial taking. SECTION 15. ASSIGNMENT AND SUBLETTING. This Lease may not be assigned by Lessee and the Demised Premises, in whole or in part, may not be sublet. 9 SECTION 16. DEFAULT. 16.1. Lessor's Rights in the Event of Lessee's Default. If Lessee shall fail or neglect to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessor setting forth the nature of Lessee's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessee has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but In no event longer than ninety (90) days), then and in any such event, Lessor shall have the right at its option, on written notice to Lessee, to terminate this Lease. Lessor shall thereafter have the right to enter and take possession of the Demised Premises with process of law and to remove all personal property from the Demised Premises and all persons occupying the Demised Premises and to use all necessary force therefor and in all respects to take the actual, full and exclusive possession of the Demised Premises and every part of the Demised Premises as of Lessor's original estate, without incurring any liability to Lessee or to any persons occupying or using the Demised Premises for any damage caused or sustained by reason of such entry on the Demised Premises or the removal of persons or property from the Demised Premises. Notwithstanding the foregoing, any violation by Lessee of Section 9 may result In immediate termination of this Lease. 16.2. Rights of Holder of Encumbrance in Event Lessee Defaults. If Lessee fails or neglects to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, the Holder of any indebtedness secured by an encumbrance on the leasehold estate under this Lease shall have thirty (30) days after receipt of written notice from Lessor setting forth the nature of Lessee's default and a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature thereof within such thirty (30) days and is diligently prosecuting such proceedings, but in no event longer than ninety (90) days, within which to endeavor to make good or remove the default or cause for termination of the Lease. All right of Lessor to terminate this Lease on the failure or neglect of Lessee to observe, keep and perform the covenants, terms and conditions of this Lease is, and shall continue to be, at all times prior to payment in full of the indebtedness to the Holder of Lessee, subject to and conditioned on Lessor's having first given the Holder written notice thereof and the Holder having failed to cause the default or cause for termination to be made good or removed within thirty (30) days after receiving written notice of default or cause for termination or within a reasonable time thereafter if it shall have commenced foreclosure or other appropriate proceedings in the nature of foreclosure within such thirty (30) days and is diligently prosecuting such proceedings, but in no event longer than ninety (90) days. In the event that the Lease is terminated due to the Lessee's bankruptcy, insolvency or other proceedings, and in the event the Holder has complied with the terms of this 16.2, then Lessor at Holder's option, shall enter into a new lease with Holder or the successful bidder at foreclosure on the same terms as this Lease, for the term then remaining, and specifically preserving all unexercised options. 10 16.3. Lessee's Rights in the Event of Lessor's Default. If Lessor shall fail or neglect to observe, keep or perform any of the covenants, terms or conditions contained in this Lease on its part to be observed, kept or performed, and the default shall continue for a period of thirty (30) days after written notice from Lessee setting forth the nature of Lessor's default (it being intended that in connection with a default not susceptible of being cured with diligence within thirty (30) days, the time within which Lessor has to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence, but in no event longer than ninety (90) days), then and in any such event, Lessee shall have all rights available to It provided by law or equity. SECTION 17. RIGHT TO CURE OTHER'S DEFAULTS. Whenever and as often as a party shall fail or neglect to comply with and perform any term, covenant, condition or agreement to be complied with or performed by such party hereunder, then, following thirty (30) days' prior written notice to such defaulting party (or such additional time to cure as may be accorded Lessee pursuant to 16.1 above, but in no event longer than ninety (90) days), the other party, at such other party's option, in addition to all other remedies available to such other party, may perform or cause to be performed such work, labor, services, acts or things, and take such other steps, including entry onto the Demised Premises and the Improvements thereon, as such other party may deem advisable, to comply with and perform any such term, covenant, condition or agreement which Is in default, in which event such defaulting party shall reimburse such other party upon demand, and from time to time, for all costs and expenses suffered or incurred by such other party In so complying with or performing such term, covenant, condition or agreement. The commencement of any work or the taking of any other steps or performance of any other act by such other party pursuant to the Immediately preceding sentence shall not be deemed to obligate such other party to complete the curing of any term, covenant, condition or agreement which Is in default. SECTION 18. QUIET ENJOYMENT. Except as otherwise provided herein, Lessor covenants that at all times during the term of this Lease, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment of the Demised Premises or any part thereof shall not be disturbed by any act of Lessor, or of anyone acting by, through or under Lessor. Notwithstanding the foregoing, Lessor shall have the right upon reasonably notice to Lessee to enter the Demised Premised at any time to determine whether Lessee is in compliance with the requirement of this Lease. SECTION 19. ESTOPPEL CERTIFICATES. Each party hereto agrees that at any time and from time to time during the term of this Lease, within ten (10) days after request by the other party hereto or by any lender having an interest in Lessee's leasehold estate, it will execute, acknowledge and deliver to the other party or to such lender or any prospective purchaser, assignee or any mortgagee designated by such other party, a certificate stating (a) that this Lease is unmodified and in force and effect (or if there have been modifications, that this Lease is in force and effect as modified, and identifying the modification agreements), (b) the date to which rent has been paid, (c) whether or not there is any existing default by Lessee in the payment of any rent or 11 other sum of money hereunder, and whether or not there is any other existing default by either party hereto with respect to which a notice of default has been served, and, if there is any such default, specifying the nature and extent thereof; and (d) whether or not there are any setoffs, defenses or counterclaims against enforcement of the obligations to be performed hereunder existing in favor of the party executing such certificate. SECTION 20. WAIVER. No waiver by either party hereto of any breach by the other of any term, covenant, condition or agreement herein and no failure by any party to exercise any right or remedy in respect of any breach hereunder, shall constitute a waiver or relinquishment for the future of any such term, covenant, condition or agreement or of any subsequent breach of any such term, covenant, condition or agreement, nor bar any right or remedy of the other party in respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof, by Lessor, operate as a waiver of the rights of Lessor to enforce the payment of any other rent then or thereafter in default, or to terminate this Lease, or to recover the Demised Premises, or to Invoke any other appropriate remedy which Lessor may select as herein or by law provided. SECTION 21. SURRENDER. Lessee shall, on the last day of the term of this Lease or upon any termination of this Lease, surrender and deliver up the Demised Premises, with the Improvements then located thereon into the possession and use of Lessor, without fraud or delay and in good order, condition and repair, reasonable wear and tear excepted, free and clear of all lettings and occupancies, free and clear of all liens and encumbrances other than those existing on the date of this Lease and those, if any, created by Lessor, without (except as otherwise provided herein) any payment or allowance whatever by Lessor on account of or for any buildings and Improvements erected or maintained on the Demised Premises at the time of the surrender, or for the contents thereof or appurtenances thereto. Lessee's Trade Fixtures, personal property and other belongings of Lessee or of any sublessee or other occupant of space In the Demised Premises shall be and remain the property of Lessee, and Lessee shall within thirty days after the expiration of the Term of this Lease remove the same, and in the event Lessee shall fail to do so, Lessor may cause the Trade Fixtures to be removed and Lessee agrees pay Lessor for the costs of removal within thirty (30) days of receipt of a statement therefore from Lessor. SECTION 22. MEMORANDUM OF LEASE. Each of the parties hereto will, promptly upon request of the other, execute a memorandum of this Lease in a form suitable for recording setting forth the names of the parties hereto and the term of this Lease, identifying the Demised Premises, and also including such other clauses therein as either party may desire, except the amounts of Basic Rent payable hereunder. SECTION 23. NOTICES. 23.1. All notices, demands or other writings in this Lease provided to be given or made or sent, or which may be given or made or sent, by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in 12 the United States mail, registered and postage prepaid, and by facsimile addressed as follows: TO LESSOR: City of Dubuque, Iowa City Manager City Hall 50 West 13th Street Dubuque IA 42001 Fax 319 589 -4149 TO LESSEE: Spahn and Rose Lumber Company Attn: John Hannan 2175 Southpark Court P.O. Box 149 Dubuque, IA 52004 -0149 Fax: (563) 582 -3606 23.2. The address and /or fax number to which any notice, demand or other writing may be given or made or sent to any party as above provided may be changed by written notice given by the party as above provided. SECTION 24. MISCELLANEOUS. 24.1. Time of the Essence. Time is of the essence of this Lease and all of its provisions. 24.2. Governing Law. It is agreed that this Lease shall be governed by, construed and enforced in accordance with the laws of the State of Iowa. 24.3. Paragraph Headings. The titles to the paragraphs of this Lease are solely for the convenience of the parties and shall not be used to explain, modify, simplify or aid in the interpretation of the provisions of this Lease. 24.4. Modification of Agreement. Any modification of this Lease or additional obligation assumed by either party in connection with this Lease shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party. 24.5. Parties Bound. This Lease shall be binding on and shall inure to the benefit of and shall apply to the respective successors and assigns of Lessor and Lessee. All references in this Lease to "Lessor" or "Lessee" shall be deemed to refer to and include successors and assigns of Lessor or Lessee without specific mention of such successors or assigns. 24.6. 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 13 strikes, lockouts, labor troubles, unavailability of construction materials, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, explosions, hazardous conditions, fire, flood, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease (collectively Force Majeure), then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. LESSOR: LESSEE: CITY OF DUBUQUE, IOWA SPAHN AND ROSE LUMBER COMPANY By: 77---,______, By: / 1/,. l- -.0" :, ; Michael C. Van Milligen John P. Hannan, President & CEO /. City Manager 14 EXHIBIT A 15 INSURANCE SCHEDULE A INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. 2. All Certificates of Insurance required hereunder shall provide a thirty (30) day notice of cancellation to the City of Dubuque, except for a ten (10) day notice for non- payment, if cancellation is prior to the expiration date. 3. shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such certificates shall include copies of the following policy endorsements: a) Commercial General Liability policy is primary and non - contributing, b) Commercial General Liability additional insured endorsement. c) Governmental Immunity Endorsements. 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque, Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement, 6. shall be required to carry the following minimum coverage /limits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products - Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence Limit $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments 5 5,000 This coverage shall be written on an occurrence, not a claims made form. Form CG 25 04 03 97 "Designated Location (s) General Aggregate Limit" shall be included. All deviations or exclusions from the standard ISO commercial general liability form CG 0001, or Business Owners form BP 0002, shall be clearly identified. 1 of 2 January 2008 17 INSURANCE SCHEDULE A (Continued) INSURANCE REQUIREMENTS FOR TENANTS AND LESSEES OF CITY PROPERTY OR VENDORS (SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE Governmental Immunity Endorsement Identical or equivalent to form attached. Additional Insured Requirement; The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers shall be named as an additional insured on General Liability Policies using ISO endorsement CG 20 26 0704 "Additional Insured — Designated Person or Organization," or it's equivalent. — See Specimen b) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident $100,000 Each Employee -- Disease $100,000 Policy Limit — Disease $500,000 c) UMBRELLA EXCESS LIABILITY LIQUOR OR DRAM SHOP LIABILITY Coverage to be determined on a case by case basis by Finance Director. Completion Checklist ❑ Certificate of Liability Insurance (2 pages) ❑ Designated Location(s) General Aggregate Limit CG 25 04 03 97 (2 pages) ❑ Additional Insured 20 26 07 04 ❑ Governmental Immunities Endorsement 2 of 2 January 2008 18 ACORD,,, CERTIFICATE OF LIABILITY INSURANCE PRODUCER (563)123 -4567 Insurance Agency Street Address City INSURED Company Street City FAX (563)987 -6543 ST Zip Cade COVERAGES St Zip Code DATE (M"'°°/YYY1') 12/7/2007 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURER Insurance Company „ INSURER e NAIC # INSURER C INSURER O INSURER E THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OP ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN 13 SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES 14 AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS uL1 CY gAnpry IIWO TYPE OF INSURANCE POLICY NUMBER POATE�IMM Dom( IPOL4 (EXPIA _NO G!! RAL LIABILITY X covaipacIAL GENERAL LIABILITY A I CLAIMS MACE a OCCUR GENL AGGREGATE tMTA(P�Pt' IPS PER POLICY V1 J I �E(SDl LOc UNITS EACH OCCURRENCE i 1,000,000 DAMAGE fO Jim ltf PREMISES (Fa am:mince/ 50,000 M1U XP (Any ono pencn) S 5, 000 PERBONAL S ADV INJURY S 1,000,000 _U4NL'RAL Ang0EDATE S 2,000,000 400111:TR • CDMP,0PAIN 3 1,000,000 AUTIDMOWLE MAMMY Jt ANY AUTO Alt OWNED AUTOS SCHEDULED AUTOS VIREO AUTOS NON•OWNED AUTOS OAPAGE LIABILITY ANY AUTO EXCESSIUMEIRELLA LIABILITY OCCUR 0 CLAS.15 MACE DEDUCTIBLE RETENTION 30 WORKERS COMPENSATION AND EMPLOYERS'uWSIUTY ANY PROPRIETOR/PARTNER/EXECUTNC OFFICEIL1.4E14BER EXCLUDE), I/ vol. &saber under IIPIC IAL PROVISIONS Wow OTHER DESCRIPTION OP OPERATIONSILOCATONSN4HICLE S/EACLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS City et Dubuque is listed as an additional insured on general liability pollaie• using ISO endorsement farm CG 2026 0704 "Additional Insured - Designated Person or Organization" or its equivalent. General Liability policy is primary non - contributing. Form CG 2504 0397 "Designated Locations" general liability aggregate limit ie included. Governmental immunities endorsement is Included. COMBINED SINGLE L7■IIT I A:rdienil 1,000,000 RDOIi,v IN:4Rv (Ps parnenj BODILYra4RY (Pa ace n ) 1 PROPERTY DAMAGE tPor accl1M) AUTO ONLY• EA ACCIDENT t OTHER THAN AUTO ONLY: EA ACC f AGO t EACHOCCURRENCE f AGGREGATE 3 gemultd EL EACH ACCI0ENT f 100,000 EL DISEASE •EAEUPLOYEE f 100,000 EL DISEASE • POLICY LAlIT f 500,000 CERTIFICATE HOLDER CANCELLATION City of Dubuque 50 West 13th Street Dubuque, IA 52001 ACORD 25(2001/08) INS025taioel.De AMS SHOULD ANY OF IRE ABOVE DESCRIBED POLICIES RE CANCELLED BEFORE THE EXPIRATION DATE THEREOF. THE ISSUIHO INSURER Wit ENDEAVOR TO MAIL 30 OATS WWTTE1I NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. SLIT FAILURE TO DO SO SHALL IMPOSE NO QEL10ATIQH OR LABILITY OP ANY tUNO UPON THE INSURER, ITS AGENTS CR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE VMP Maicoso Gldwiats. Inc (eCAISZT•0545 19 oAC0RD CORPORATION 1988 Pace t of 2 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in Ilea of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on This certificate does not confer rights to the certificate holder In lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the Issuing insurer(s), authorized representative or producer, and the certificate holder, nor does It affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORO 25 (2001/05) INS025(oice n AMS Prj4 2 POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CO 25 04 03 97 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED LOCATION(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following; COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Designated Location(s): (If no entry appears above, Information required to complete thls endorsement will be shown In as applicable to this endorsement.) A. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents under COVERAGE C (SECTION 1), which can be attributed only to operations at a single desig- nated "location" shown In the Schedule above; 1. A separate Designated Location General Aggregate Limit applies to each designated "location", and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Location General Aggregate Limit is the most we will pay for the sum of all damages under COVERAGE A, except dam- ages because of "bodily injury" or "property damage" Included in the "products-completed operations hazard ", and for medical expenses under COVERAGE C regardless of the num- ber of: a. Insureds; b, Claims made or "sults" brought; or c. Persons or organizations making claims or bringing "suits ". 3. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Designated Loca- tion General Aggregate Limit for that desig- nated "location'. Such payments shall not re- duce the General Aggregate Limit shown in CG 25 04 03 97 21 the Declarations the Declarations nor shall they reduce any other Designated Location General Aggre- gate Limit for any other designated "location" shown in the Schedule above. 4. The limits shown In the Declarations for Each Occurrence, Fire Damage and Medical Ex- pense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Location General Aggregate Limit. B. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences' under COVERAGE A (SECTION 1), and for all medical expenses caused by accidents under COVERAGE C (SECTION 1), which can- not be attributed only to operations at a single designated "location" shown in the Schedule above: 1, Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products - Completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Desig- nated Location General Aggregate Limit. Page 1 of 2 CG 25 04 03 97 C. When coverage for liability arising out of the 'products - completed operations hazard" is pro- vided, any payments for damages because of 'bodily injury" or "property damage" included In the "products - completed operations hazard' will reduce the Products - Completed Operations Ag- gregate Limit, and not reduce the General Ag- gregate Limit nor the Designated Location Gen- eral Aggregate Limit. D. For the purposes of this endorsement, the Defi- nitions Section is amended by the addition of the following definition: Page 2 of 2 "Location' means premises involving the same or connecting lots, or premises whose connection is Interrupted only by a street, roadway, waterway or right -of -way of a railroad. E. The provisions of Limits Of Insurance (SECTION III) not otherwise modified by this endorsement shall continue to apply as stipulated. Copyright, Insurance Services Office, Inc., 1996 22 CG 25 04 03 97 POLICY NUMBER: COMMERCIAL. GENERAL LIABILITY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -- DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(sL The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Information re uired to com • lete this Schedule if not shown above will be shown In the Declarations. Section I1 — Who Is An Insured is amended to In- clude as an additional Insured the person(s) or or- ganization(s) shown In the Schedule, but only with respect to liability for "bodily injury", "property dam- age" or "personal and advertising injury" caused. In whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: A. In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you. All terms and conditions of this policy apply unless modified by this endorsement. CG 20 26 07 04 Includes copyrighted material of Insurance Services Office, Inc. with permission, Page 1 of 1 ISO Properties, Inc.. 2004 23 CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of govemmental 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 - Denlal 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. SPECIME*i 1 of 1 January 2008 24 r CERTIFICATE OF LIABILITY INSURANCE OP ID: ) DATE (MMIDDIYYYYJ 06/28/11 THIS CERTIFICATE 13 ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: if the certificate harder Is an ADDITIONAL INSURED, the pollcy(les) must be endorsed. 11 SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER Cottingham & Butler, Inc. 800 Main Street Dubuque,' IA 52001 Jane L. Mueller INSURED 563-587-5000 NrAUT 563 -583- 7339Eo. Ertl; ADDRESS. CUSTTOMER ID re SPAROSI FAX (A1C, No): Spahn & Rose Lumber Company P. O. Box 149 Dubuque, IA 52004 COVERAGES CERTIFICATE N UM BER: REl ypel DUMBER: THIS I5 TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. NSR AODL SUBR TYPE OF INSURANCE PD IC NU BER POLICY EFF POLICY EX !Valli MIDD sue LIMITS INSURERjS) AFFORDING COVERAGE INSURERA Hartford Casualty Ins Co. NAIC II 29424 INSURER B :Westchester Fire Insurance Co. 21121 INSURER C INSURER D INSURER E : _INSURER F • A GENERAL LIABILITY COMMERCIAL C- ENERAL LIABILITY CLAIMS•NtADE D OCCUR GENT. AGGREGATE LIMIT APPLIES PER POLICY PRO• IFi -T Lal AUTOMOBILE LIABILITY X ANY AUTO ALL OVNNED AUTOS SCHEDULED AUTOS HIRED AUTOS NOrI- OWNED AUTOS UMBRELLA MB EXCESS LIAR EACH OCCURRENCE U#t1 kE,UkhNIkU PREMISES IEe occurrence% MED EXP (Any one porno I PERSONAL & ADV INJURY. GENERAL AGGREGATE PRODUCTS • COMP /OP AGO 83UENOB8021 04/01/11 04/01/12 COMBINED GIrIOLE LIMIT (Ea accident) BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE (Per accident) OCCUR. CLAIMS -MADE A DEDUCTIBLE REYEr•ITI)N :3 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOWPARTNERtExECUTIVE Y!N El OFFlCERUEMBER EXCLUDED' (Mandatary In NH) 11 yes. describe under DESCP,PT,nN OF ocEpeTtomsh=mw EACH OCCURRENCE AGGREGATE NIA 83W EOB8037 04/01/11 04/01/12 X I WC rrATU- I Ivrr7- TnP•r 1 IMIT4 Fa .3 3 S 3 .3 .3 :3 3 :3 8 3 3 3 :3 1,000,0 E.L EACH ACCIDENT E L. DISEASE - ER EMPLOYEE DESCRIPTION OF OPERATIONS I LOCATIONS 1 VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) CERTIFICATE HOLDER E L DISEASE - POLICY LIMIT .3 3 1,000,0 1,000,0 1,000,0 CIDUIA3 City of Dubuque 50 W 13th St Dubuque, IA 52001 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Sze, © 1988-2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ACORD 25 (2009/09) 5/27/2011 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. TH CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICII BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZE REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(los) must be endorsed. ff SUBROGATION I3 WAIVED, subject 1 the tornis and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to 11 certificate holder In Lieu of such endorsemen s PRODUCER Friedman Insurance, 880 Locust Street - P 0 Box 759 IA INSURED Inc. Suite 200 Spahn & Rose Lumber Co. P 0 Box 149 520047079..._ Dubuque IA 52004 -0149 COVERAGES CERTIFICATE NUMBER:11 -12NEW THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIO INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH TH CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED EY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMI EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. u ADIitSUBTF NUMBER ?o(.1 J .?� ^ I EACH OCCURRENCE $ 1, 000,. - DAMA0E'T0 RENTED ' -'- „ EMISES (Ea act unclog_ 1 500j Pg MED EXP (Any one pereenl.- $ ._ l e „PERSONAL a ADV INJURY_ _-1 11OQ0..' GENERAL AGGREGATE $ 1 , 000,' • PAODUCTS- COMP /OP AGG $ 1, R00,' Joni Talsma, CISR toast P -ENE (563) 556 -0272 ,m)1 (563)5B6 -4428 PRMii ER 000o41ss_ CUBYIIMERIDN.. --- INSURERISI AFFORDING COVERAGE image A:Cincinnati Insurance Companies__ INSURER6' INSURER*: INSURER O : REVISION NUMBER: �- NAM! 10677 A I GENERALLIAe1LITY X COMMERCIAL GENERAL. LIAEILITY .1 CLAIMS -MADE I X 1 OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY I PELT i-x7 LOC AUTOMOBILE LIABILITY itNY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS CVEL052437 1/1/2011 4/1/2012 LIMITS 1 COMBINED SINGLE LIMIT $ (El a cident) BODILY INJURY (Per persan) $ BODILY INJURY (Per accident) 1 PROPERTY RAMAGE (Per eceidenl) _ 1 1 X UMBRELLA LU1B • =Em ma DEDUCTIBLE RETENTION $ S OCCUR CLAIMS-MADE CPP1052437 1/1/2011 4/1/2012 WORKERS COMPENSATION AND EMPLOYERS' W E9LITY Y 1 N OFFII EXCLUDED/ PROPRIETOR/PARTNER/EXECUTIVE r---1 NIA (Mandatory in NH) . If yes, dew-NM under DESRIPTION OF 0 ° ERATIONS below EACH OCCURRENCE 1 24,000,4 AGGREGATE i 24,000,( 1 W'C STATU- OTH• LTORY LIMITS _- ,E.L_EACHACCIDENT,. E,L OISEASE - EA EMPLOYEE. %..- __—_,_ _,.,.. , . E.L DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS 1 LOCATIONS /VEHICLES (Attach ACORD 141, Additional Remarks Soh*dda, K mote *pane U ccHa rid) The City of Dubusto, including all its elected and appointed officials, all its employees and volunteers , all its boards, commissions and /or authorities and their board members, _ . loyees and volunteers are included as additional insureds on a primary and non- contributory basis as provided by endoreem*At CA227 (attached). Designated Location( provided in form GA101 (attached). Governmental Immunities endorsement is included. CERTIFICATE HOLDER The City of Dubuque 50 W. 13th St. Dubuque, IA 52001 ACORD 25 (2009109) CANCELLATION SHOULD ANY OF THE ABOVE! DESCRIBED POLICIES BE CANCELLED BEFOR THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED II ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTMNE T Hriedman, CPCU /Ter 1988- 2O09ACORDCORPORA7ION. All rights resenA IN5025(200909) The ACORD name and logo are registered marks of ACORD Coverage Part. Tha Insured must do nothing after a Toss to Impair our right. At our request, th.Insured will bring soar or transfer thou •hta to us and help its enforce those 7. Au, .:ioAddl Nod Relationship. a. Tha rot Is haraby :.. d to 0 ON K - IS AN INSURED: (1) Aany h on a or organization Be- low (harelnat rap erred too as rtddltlonai Insured) whom you era =. Irad to add as an addi- tional Insured undar Its Coven ape Part by reason of: (a) A written contact or agree - . l• or 111-0 • fa (b) An oral agrvamont or con - when a cerildcate of insurance showing that per- son or organization as an additional insured has been Issued. Is an tnsurad, (N) written or oral con or agraarnar t Is: 1) Currently in effect or rues efleectfve dur- ing they policy patiod; and 2) Ieaaouted prior to an "occurrence' or offense to which this insurance would apply; and (b) They are not s n <_ as an a ` _onal in- sured under any other ono. vision of, or endors Pelt ad to, this (2) Only eta wing , . on; or or are A $ u this en and Insuranco oovarags pro. vidad le such Mortal Ina: Is knifed as rovidad herein: (a) The manager or IerIIOr of a premises lea - • to you with w you h ag ; per 7,a,(1) • . to provide hhh insurance, to IIky aris- ing out of lire own maintenance or usa 01 that he:iudas copyrighted tai of Insurance 0207 - ices O1Aoa, Imo., wilt Ib - Iasion• reai In- s pad of a premises leaved to you, subject 9t, the following t,J oxoluslone: 1• Thlo insur dogs not up- OW to: 1) My "occurrence' which tikes place attar ywu avast, to to a tureen( In that promises. 2) Structural ;;bone. new construction or domolilan oparativno performed by or on be- half of such addhfonal Insured. (b) Any from which leas. equipment with whom you have ap 7a.(1)�abovve par provide In. suranaa, Such person(s) or organization(e) era ineu moiety with respect to their mal�nanco, out of or use by you of equ t w to by ( r �. However, Ns insurance does not apply to any *oc- currence" which p�,� after the equipment leas: expires, (o) Any poron or kale/rad to u van• doe with whom yaouuaphha p } � d par pravfda In- suranca, but only m y terry■ or a" arising out of "your p:_ cis" which are dletib _, or sold In the regular cause of the ven- dor's basin's*, subject t,0 lone: g ` ` nut ex- 1) The Ineuranoa adfotdad the vendor not o) ;9oipf�ayr��yInjury" ar for whbh the ven- dor Its obllg to PAY eason of the as- sumption at In a COI or • 10 0t 10 (3) My insurance providod to an additional insured desig- nated under Paragraph 7,a.(2) Sub • : •he (a), (b) Ling (t ) S, not (a ache imp Inlay" arkng 'bodly e" c and out of the sole negligence or willful misconduct of the ad- nal insured or their agents, 'ompioyees" or any other tapresentativa cf ttto nat insured • S. Pro men* IL The foi la hereby fo Ex" elusion 1. go to Pro of Para; 2.; Endue • CO E3, COV °" E A. IV • foe -� � L OEN. L I,UAEILIIY LIMNS la hereby amended u follow: Canaan S. •_ Ins °e iv arrsendsd 10 Inducts: (1) Whore required by a written . contract or agreement, this in- surance is primary and l or non. contributory as respects any other Insurance poky issued to tha additional !floured, and such other insurance policy shell ba excess and /or noncontributing, whichever applies, with this in- suranca.. (2) My Insurance provided b this endorsement shall bo ,. _ , to other ;neurones rue ;, , to the addIII:mad Insured ex0ept: (a) As otherwise p d In SE IV • r. ER. ILI Y In- el b. 'Or (b) For any other and col - insunsnce available to the ad i•na1 insured as an additional In < _K - •, by at. taohmant of ss t endorse- mant to f - r Insurance policy theft E# written on an excess r s. In • the i un- der this andoreement shall ease be moms. Oam to ® .v Equip. SIA 2270207 Includes Sere 1300ILY INJURY ANO PRO 0' E LIAAlL Ys Paragraphs (3) and (4) of this exclu- sion do not apply to bola or equip. meet loaned to you, provided trey are not being used to perform opera- tions at the Urns of loos. b. With respect to the Insurance pro- vided by this section of the endorse- mart, the following additional provt• sloes apply: (1) The Limits of Insurance shown fn the Oackeadane are re - • by the limit clesionnted in arty to Bo meat = Lion 9. Limits of f W- ear/snore, S. to B. . Eq `, ent of this an mart with respect to coverage my' .; by thls ert- emanm These Ikrdte are in- clusive of and not In Won to to limits being replaced, The Limits of Ineurtnca *flown In S shot B. Ll i of Insurance, S. Pr Carnage to rowed ent al this en- dorsement fix the most we will pay in any one 'occurrence" ra- gardtasa of then arch (a) Insets (b) brought or (o) mahir Pawn; d�s yto. bring ' sults'. (2) or "suits" cl (e) Our obi ..w , b pay anlysi an the amount of ages for - •; . u which In es of Ste ruble amount . .,.. _ton O. U11110 of lo �� sd - on of this endoree nsnt X The lim- its of Insurance wit not be reduced by the of such d is (b) 3 1LITY CON in the E as Sul, or the amount. had ma of Insurance Inc., with its pamti to each of 12 of 12 gate Limit of Insurance, Paragraph 2.b., or the Construction Project General Ag- gregate Limit of Insurance, Paragraph 2.c. a••lles. b. A separate Location General Aggregate Limit of Insurance, equal to the amount of the General Aggregate Limit shown In the Declarations, shall apply to each location owned by, or rented or leased to you and is the moot we will pay for the sum of; (1) Damages under COVERAGE A, ofc,, I �t -f� BODILY INJURY AND PROPERTY 'I7�V DAMAGE LIABILITY, except dam- ages because of "bodily injury" or "property damage" included In the "products- completed operations hazard "; and (2) Medical expenses under COVER- AGE C. MEDICAL PAYMENTS, 1,oceboi4" ‘*(ivo-t P6 60‘ which can be attributed to operations at only a single location owned by, or rented or leased to you. c. A separate Construction Project General Aggregate Limit of insurance, equal to the amount of the General Aggregate Limit shown in the Declarations, shall ap- ply to each construction project and is the most we will pay for the sum of: (1) Damages under COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY, except dam- ages because of "bodily injury" or "property damage" included In the "products - completed operations hazard "; and (2) Medical expenses under COVER- AGE C. MEDICAL PAYMENTS; which can be attributed only to ongoing operations and only at a single construc- tion project. d. Only for the purpose of determining which General Aggregate Limit of Insurance, 2.a., 2.b4, or 2.c„ applies: (1) Location means premises involving the same or connecting lots, or premises, whose connection is inter- rupted roadway, right -of- ay of a ail- road. (2) Construction project means a loca- tion you do not own, rent or lease where ongoing improvements, al- terations, Installation, demolition or maintenance work Is performed by you or an your behalf. All connected ongoing Improvements, alterations, installation, demolition or mainte- nance work performed by you or on your behalf at the same location for the same persons or organizations, no matter how often or under how many different contracts, will be deemed to be a single construction project, . The Products - Completed Operations Aggre- gate Limit is the most we will pay under COV- ERAGE A. BODILY INJURY AND PROP. ERTY DAMAGE LIABILITY for damages be- cause of "bodily Injury" and "property dam- age" included in the "products•compteted op- erations hazard ". 4, Subject to 2.a. above, the Personal and Ad- vertising Injury Limit the most we will pay under C is OVERAGE B. PERSONAL AND AD- VERTISING INJURY LIABILITY for the sum of all damages because of all "personal and ad- vertising injury" sustained by any one person or organization. 5. Subject to 2, or 3. above, whichever applles, the Each Occurrence Limit is the most we will pay for the sum of; a. Damages under COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LI- ABILITY; and b. Medical expenses under COVERAGE C. MEDICAL PAYMENTS; because of all "bodily injury" and "property damage" arising out of any one "occurrence ". 8, Subject to 5, above, the Damage to Premises Rented to You Limit is the most we will pay under COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY for dam- ages because of "property damage" to any one premises, white rented to you, or in the case of damage by fire or explosion, while rented to you or temporarily occupied by you with permission of the owner, 7. Subject to 5. above, the Medical Expense Limit is the most we will pay under COVER- AGE C. MEDICAL PAYMENTS for all medical expenses because of "bodily injury" sustained by any one person, The Limits of Insurance of this Coverage Part ap- ply separately to each "coverage term ". S €CTiON IV - COMMERCIAL GENERAL LI- ABILITY CONDITiONS 1. Bankruptcy Bankruptcy or Insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part, 2. Duties in the Event of Occurrence, Offense, Claim or Suit a. You must see to it that we are notified as soon as practicable of an "occurrence" or Includes copyrighted material of Insurance Services Office, Inc., with its permission, Page 13 of 22 CITY of DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Monwaiver of over entill Immunitty The insurance carrier expressly agrees and states that the purchase of this policy end 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, lows under Code of Iowa Section 670.4 as it is now exists and as it may be amended from tints to time. 2. Cleiltis Covoraae, 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 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.Oeniel 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 at Dubuque, Iowa. No Other Change in Poljcv. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN 1 of 1 23 January 2008