Agreement between the City of Dubuque and ITC Midwest, LLC to Operate Electric Transmission System Copyrig hted
February 15, 2021
City of Dubuque Consent Items # 6.
City Council Meeting
ITEM TITLE: Agreement befinreen the City of Dubuque and ITC Midwest, LLC to
operate an Electric Transmission System in the City of Dubuque
SUM MARY: Senior Counsel recommending adoption of a resolution approving the
Agreement authorizing ITC Midwest, LLC to operate an electric
transmission system in the City of Dubuque until December 31, 2021.
RESOLUT ION Approving an Agreement between the City of Dubuque
and ITC Midwest, LLC to operate an Electric Transmission System in
the City of Dubuque
SUGGESTED Suggested Disposition: Receive and File;Adopt Resolution(s)
DISPOSITION:
ATTACHMENTS:
Description Type
Staff Memo Staff Memo
Resolution Resolutions
Agreement Supporting Documentation
THE CITY OF
DUB E MEMORANDUM
Masterpiece on the MlssissippT
BARRY LINDAHL
SENIOR COUNSEL
To: Mayor Roy D. Buol and
Members of the City Council
DATE: February 1, 2021
RE: Agreement Between the City of Dubuque and ITC Midwest, LLC To Operate
An Electric Transmission System in the City of Dubuque
ITC Midwest, LLC (ITC Midwest) is a wholly-owned subsidiary of ITC Holdings Corp.
From the website of ITC Holdings Corp.:
ITC Holdings Corp. invests in the electricity transmission grid to improve
reliability, expand access to markets, lower the costs of delivered energy
and allow new generating resources to interconnect to its transmission
systems. The largest independent electricity transmission company in the
country, ITC operates in Michigan's Lower Peninsula and portions of lowa,
Minnesota, Illinois, Missouri, Kansas, and Oklahoma. ITC also focuses on
new areas where significant transmission system improvements are
needed through ITC Grid Development and its subsidiaries.
ITC Midwest operates more than 6,600 circuit miles of transmission lines (voltage levels:
34.5 kV to 345 kV) in lowa, Minnesota, Illinois and Missouri. Headquartered in Cedar
Rapids, lowa, ITC Midwest maintains operating locations at Dubuque, lowa City and
Perry, lowa; and Albert Lea and Lakefield, Minnesota.
In 2007, ITC Holdings Corp. purchased the electric transmission system in the City of
Dubuque from Alliant Energy's Interstate Power & Light Company (IPL) and created ITC
Midwest. The City of Dubuque consented to the assignment of the IPL franchise for
electric transmission to ITC Midwest. However, when the City renewed the IPL franchise
in 2015, ITC Midwest's electric transmission system part of the franchise expired so it is
now necessary for ITC Midwest to enter into a new franchise agreement with the City.
ITC Midwest's transmission system is the large high voltage towers located through the
city. ITC Midwest transmits electricity from electric generation facilities to its eight
substations in the city. ITC Midwest provides all of the electricity which is transmitted into
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TE�EPHONE (563)583-4113/FAx (563)583-1040/Ennai� balesq@cityofdubuque.org
the City of Dubuque. IPL, the local distribution company, then distributes the electricity
from the substations to IPL's customers.
The franchise agreement will not be a part of the Cardinal-Hickory Creek Transmission
Line Project, an American Transmission Co., ITC Midwest LLC and Dairyland Power
Cooperative plan for a high-voltage transmission line connecting northeast lowa and
western Wisconsin.
ITC Midwest has 12 full-time employees in the City of Dubuque and in March 2008
purchased from the City 12.951 acres of real estate on Chavenelle Road and constructed
its 30,000 square foot office and warehouse.
While the City and ITC Midwest are negotiating the terms of the franchise agreement, it
is necessary for ITC Midwest to have authority to operate its transmission system. The
City and ITC Midwest entered into an Agreement which authorized ITC Midwest to
operate its system in the City of Dubuque until December 31, 2020, with the intent that
the City and ITC Midwest would have finalized the franchise by then.
ITC Midwest, in a January 14, 2021 letter to the City Manager, stated that it "has been
impeded from pursuing finalizing an agreement due to multiple regulatory and litigation
matters."
ITC Midwest has requested that the City approve a new Agreement, to expire December
31, 2021, to allow the City and ITC Midwest to finalize the franchise agreement.
Once the franchise agreement is finalized, it will be presented to the City Council for a
public hearing and approval.
I recommend that the City Council adopt the attached resolution approving the Agreement
authorizing ITC Midwest, LLC to operate an electric transmission system in the City of
Dubuque until December 31, 2021.
BAL:jmm
Attachment
cc: Michael C. Van Milligen, City Manager
Crenna Brumwell, City Attorney
Gus Psihoyos, City Engineer
Steve Brown, Project Manager
2
Prepared by Barry A Lindal Esq. 300 Main St Ste 330 Dubuque IA 52001-6944 (563) 583-4113
Return to Adrienne N. Breitfelder, City Clerk, 50 W. 13' St., Dubuque, IA 52001, (563) 589-4100
RESOLUTION NO. 33-21
APPROVING AN AGREEMENT BETWEEN THE CITY OF DUBUQUE AND ITC
MIDWEST, LLC TO OPERATE AN ELECTRIC TRANSMISSION SYSTEM IN THE CITY
OF DUBUQUE
Whereas, the City of Dubuque, Iowa (City) and ITC Midwest, LLC (ITC Midwest)
have tentatively entered into an Agreement for the operation of an electric transmission
system in the City of Dubuque until such time as City and ITC Midwest finalize a franchise
agreement to operate the system; and
Whereas, the City Council finds that it is in the best interests of the City of Dubuque
to approve the Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. The attached Agreement is hereby approved.
Section 2. The City Manager is authorized and directed to sign the Agreement on
behalf of the City of Dubuque.
Passed, approved and adopted this 15th day of February, 2021.
Roy D. Bu/layor
61
ATTEST:
Adrienne N. Breitfelder, City Clerk
AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
ITC MIDWEST LLC,
A WHOLLY OWNED SUBSIDIARY OF ITC HOLDINGS CORP.
This Agreement, dated for reference purposes the 29th day of January ,
2021, is made and entered into by and between the City of Dubuque, lowa (City) and ITC
Midwest LLC, a wholly owned subsidiary of ITC Holdings Corp. (the Company).
Whereas, the Company operates a system for the transmission of electric energy
in the City of Dubuque, lowa along, under and upon the streets, avenues, alleys and
public places in the City of Dubuque, Dubuque County, lowa (the Transmission System);
and
Whereas, City and the Company are negotiating a franchise agreement for the
Transmission System; and
Whereas, during the period of such negotiations, and in consideration for the City's
consent to the Company to operate the Transmission System, City and the Company
agree as follows:
Section 1. Term. This Agreement shall take effect upon execution by both parties and
shall continue in effect until December 31, 2021 unless otherwise agreed in writing by the
parties.
Section 2. Indemnification.
A. The Company shall indemnify, defend and hold City, its officers and
employees, harmless from and against any and all claims, demands, losses,
damages, cost and expenses (including, but not limited to, court costs, fines,
penalties and reasonable attorneys' fees, but excluding consequential or indirect
damages), judgments, liabilities and causes of action of any nature whatsoever
resulting from or relating to its negligent acts or omissions in the use or occupancy
of the streets, avenues, alleys and public places in the City arising in any manner
out of the negligent acts or omissions of its agents, employees, or contractors in
connection with same, or with respect to the violation of any laws, including without
limitation, any environmental laws. The Company shall indemnify and defend the
City for, from and against any and all mechanics' liens and other liens and
encumbrances filed by any person claiming by, through or under the Company and
against all costs, expenses, losses and liabilities (including reasonable attorneys'
fees) incurred by the City in connection with any such lien or encumbrance or any
action or proceeding brought thereon.
011821ba1
2
B.The Company shall maintain commercial general liability insurance
coverage, or its equivalent, throughout the term of this Agreement as described in
the attached Insurance Schedule, as such schedule may from time to time be
amended by the City. The Company's failure to meet the insurance requirements
shall not relieve the Company of its responsibilities under this Agreement. Upon
proof of financial responsibility to the reasonable satisfaction of the City, the
Company may be allowed to self-insure the coverages required. The Company
shall provide the City with certificates of insurance or letter of self-insurance,
subject to the approval of the City in its sole discretion, upon request.
C.The requirements of indemnification shall not be a wai ver of any right that
the City would have to assert defenses on its own behalf under state or federal
law. The Company's indemnification obligations under this Agreement shall
survive the expiration, cancellation, or termination of this Agreement in accordance
with applicable statutes of limitation in force within the state of Iowa.
Section 3. Compliance with City Ordinances. The Company shall at all times during
the term of this Agreement conform with, submit to, and carry out the provisions of any
and all valid ordinances existing or as hereafter lawfully enacted relating the City's
exercise of its police powers.
Section 4. Material Breach. City may terminate this Agreement if the Company shall
be materially in breach of its provisions. Upon the oc currence of a material breach, City
shall provide the Company with notification by certified mail specifying the alleged breach.
The Company shall have sixty (60) days to cure the breach, unless it notifies City, and
the parties agree upon a longer period for cure. If the breach is not cured within the cure
period, City may terminate this Agreement.
CITY OF DUBUQUE, IOWA ITC MIDWEST LLC, a Michigan limited liability
company
By: ITC Holdings Corp., its sole member
By: By:
Michael C. Van Milligen Dusky Terry
City Manager Vice President, and President, ITC Midwest
Attest:
Adrienne N. Breitfelder, City Clerk
INSURANCE SCHEDULE
3
City of Dubuque Insurance Requirements for Vendors(Suppliers,Service Providers)
INSURANCE SCHEDULE G
1. ITC Midwest LLC shall furnish a signed certificate of insurance to the City of Dubuque, lowa for
the coverage required in Exhibit I prior to the contract commencement. Each certificate shall be
prepared on the most current ACORD form approved by the lowa Insurance Division or an
equivalent. Each certificate shall include a statement under Description of Operations as to why
the certificate was issued. Eg: Project: ITC Midwest Franchise Agreement.
2. All policies of insurance required hereunder shall be with an insurer authorized to do business in
lowa and all insurers shall have a rating of A or better in the current A.M. BesYs Rating Guide.
3. Each certificate shall be furnished to the Finance Department of the City of Dubuque.
4. The service provider shall be required to carry the minimum coverage/limits, or greater if required
by law or other legal agreement, in Exhibit I. Failure to provide the required minimum coverage
shall not be deemed a waiver of such requirements by the City of Dubuque.
5. Failure to obtain or maintain the required insurance shall be considered a material breach of this
agreement.
6. All required endorsements shall be attached to certificate.
7. Whenever a specific ISO form is referenced the current edition of the form must be used unless
an equivalent form is approved by the Director of Finance and Budget.The service provider must
identify or list in writing all deviations and exclusions from the ISO form.
8. If vendor's limits of liability are higher than the required minimum limits then the vendor's limits
shall be this agreemenYs required limits.
9. Vendor shall require all subcontractors and sub-subcontractors to obtain and maintain during the
pertormance of work insurance for the coverages described in this Insurance Schedule and shall
obtain certificates of insurance from all such subcontractors and sub-subcontractors. Vendor
agrees that it shall be liable for the failure of a subcontractor and sub-subcontractor to obtain and
maintain such coverage.The City may request a copy of such certificates from the Vendor.
10. Vendor shall be responsible for deductibles/self-insured retention for payment of all policy
premiums and other costs associated with the insurance policies required below.
11. All certificates of insurance must include agents name, phone number, and email address.
12. The City of Dubuque reserves the right to require complete, certified copies of all required
insurance policies, including endorsements, required by this Schedule at any time.
13. The City of Dubuque reserves the right to modify these requirements, including limits, based on
changes in the risk or other special circumstances during the term of the agreement,subject to
mutual agreement of the parties.
Page 1 of 4 Schedule G Vendors September 2020
4
City of Dubuque Insurance Requirements for Vendors(Suppliers,Service Providers)
INSURANCE SCHEDULE G (continued)
EXHIBIT I
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products-Completed Operations Aggregate Limit $1,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit(any one occurrence) $50,000
Medical Payments $5,000
1) Coverage shall be written on an occurrence, not claims made,form.The general
liability coverage shall be written in accord with ISO form CG 00 01 or business
owners form BP 00 02. All deviations from the standard ISO commercial general
liability form CG 00 01, or Business owners form BP 00 02, shall be clearly
identified.
2) Include ISO endorsement form CG 25 04"Designated Location(s)General
Aggregate Limit."
3) Include endorsement indicating that coverage is primary and non-contributory.
4) Include Preservation of Governmental Immunities Endorsement(Sample
attached).
5) Include additional insured endorsement for:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions and/or authorities and
their board members, employees and volunteers. Use ISO form CG 20 10
(Ongoing operations)or its equivalent.
6) Policy shall include Waiver of Right to Recover from Others endorsement.
B) WORKERS'COMPENSATION 8�EMPLOYERS LIABILITY
Statutory Benefits covering all employees injured on the job by accident or disease as
prescribed by lowa Code Chapter 85.
Coverage A Statutory—State of lowa
Coverage B Employers Liability
Each Accident $100,000
Each Employee-Disease $100,000
Policy Limit-Disease $500,000
Policy shall include Waiver of Right to Recover from Others endorsement.
Coverage B limits shall be greater if required by the umbrella/excess insurer.
OR
If, by lowa Code Section 85.1A,the Vendor is not required to purchase Workers'
Compensation Insurance,the Contractor shall have a copy of the State's Nonelection of
Workers'Compensation or Employers'Liability Coverage form on file with the lowa
Workers'Compensation Insurance Commissioner, as required by lowa Code Section
87.22. Completed form must be attached.
Page 2 of 4 Schedule G Vendors September 2020
5
City of Dubuque Insurance Requirements for Vendors(Suppliers,Service Providers)
INSURANCE SCHEDULE G (continued)
C� POLLUTION LIABILITY
Coveragerequired: _Yes XNo
Pollution liability coverage shall be required if the lessee, contracting party, or permittee
has any pollution exposure for abatement of hazardous or contaminated materials
including, but not limited to, petroleum products,the removal of lead, asbestos,or PCBs.
Pollution product and completed operations coverage shall also be covered.
Each Occurrence $2,000,000
Policy Aggregate $4,000,000
1) Policy to include job site and transportation coverage.
2) Include additional insured for:
The City of Dubuque, including all its elected and appointed officials, all its
employees and volunteers, all its boards, commissions and/or authorities and
their board members, employees and volunteers. Use ISO form CG 20 10.
(Ongoing operations)or its equivalent and CG 20 37(competed operations).
3) Include Preservation of Governmental Immunities Endorsement.
4) Provide evidence of coverage for 5 years after completion of project.
D� PROFESSIONAL LIABILITY $1,000,000
Coveragerequired: _Yes XNo
If the required policy provides claims-made coverage:
1) The Retroactive Date must be shown and must be before the date of the
agreement.
2) Insurance must be maintained and evidence of insurance must be provided for at
least five(5)years after completion of the work or services.
3) If coverage is canceled or non-renewed and not replaced with another claims-
made policy form with a Retroactive Date prior to the date of the agreement,the
contractor must provide"extended reporting"coverage for a minimum of five(5)
years after completion of the work or services.
E) CYBER LIABILITYlBREACH $1,000,000
Coveragerequired: _Yes XNo
Coverage for First and Third Party liability including but not limited to lost data and
restoration, loss of income and cyber breach of information.
F) UMBRELLAlEXCESS $1,000,000
Coverage required: XYes _No
The General Liability, Automobile Liability and Workers Compensation Insurance
requirements may be satisfied with a combination of primary and Umbrella or Excess
Liability Insurance. If the Umbrella or Excess Insurance policy does not follow the form of
the primary policies, it shall include the same endorsements as required of the primary
policies including Waiver of Subrogation and Primary and Non-contributory in favor of the
City.
Page 3 of 4 Schedule G Vendors September 2020
6
COMMERCIAL GENERA��IABILITY
ECG 09 57fi a819
TH�S ENaDRSEMENT CHANGES THE PDLICY. PLEASE READ IT CAREFULLY.
��1NA PRESERVATi�N �F GQVERNMENTAL
iMIIAVNIT�ES END�RSEMENT
This endorsement mad�fies ir�sur-ar�ce provided under the follawing:
CDMMERCINL GENERAL LfA61L17Y C�VERAGE PAF2T
SECTIQN�—C�VERAGES�s amended t�y the additian af the fal�owing:
CDVERAGE—G�VERNMENTAL IMMUNiTY
1. Ins�ring Agreement
a. We r�vilf pay those surr�s that the insured becames legafly o�ligated to pay as damages for c�aims not
suhje�t to the defense afi g�vernmental immuniiy under the Cade of 1�wa Section fi74.4 as it naw exisis
and as it may be amended from tim� ta time_ Claims for damages nat subject to Code of�owa Sec#ion
67�.4 shafl be covered by t�e terms anr� eonditians nf this Policy.
b. The City af Dub�que, lawa shail be respansible far asserting any defense ot ga�ernmenta! immunify, and
may da sa at any time and shal]do so upon nur timely wriiten request.
c. We shall nat deny coWerage under this Policy and we shall nat deny any of the rig#�ts a�d benefits
accruing fa the City Qf�3ubuqsae. lowa �nder this f�aiicy for reasans of gQ�ernmenta! imrnunity unless and
u�til a �ourt af compe#ent jurisdiction Y�as ruled in fa�or nf the defense�s) of gavemmental immunity
asserted by the City af�ubUgue, lowa.
d. The abo�e preservatian of gn�err�mental imrn�r�ities shaA not ofherwise change or aEter the �overage
a�ai[abl�under this Policy_
ECG 01 51fi Q8 19 Capyrigt�t, E�e�est Rei�surance Campany, 20'k9 Page 1 a�9
Encludes copyrigf�ted rnaterial nf Insurar�ce 5ervices OfFice, Inc_,
used with its permission.
INSLiRE�CQPY