Temporary Agreement Between the City of Dubuque and ITC Midwest, LLC to Operate an Electronic Transmission SystemCity of Dubuque
City Council Meeting
Consent Items # 15.
Copyrighted
February 21, 2022
ITEM TITLE: Temporary Agreement Between the City of Dubuque and ITC Midwest,
LLC to Operate an Electric Transmission System in the City of Dubuque
SUMMARY: Senior Counsel recommending the City Council adopt a resolution
approving the temporary Agreement authorizing ITC Midwest, LLC to
operate an electric transmission system in the City of Dubuque until the
franchise agreement takes effect but no later than May 1, 2022.
RESOLUTION 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
Memo Staff Memo
Resolution Resolutions
Agreement Supporting Documentation
THE CITY OF
DUB E
Masterpiece on the Mississippi
BARRY A. LINDAHL, ESQ.
SENIOR COUNSEL
MEMO
To: Mayor Brad M. Cavanagh and
Members of the City Council
DATE: February 14, 2022
Dubuque
All-buica Cily
2007-2012.2013
2017*2019
RE: Temporary Agreement Between the City of Dubuque and ITC Midwest, LLC
to Operate an Electric Transmission System in the City of Dubuque
While the City and ITC Midwest, LLC are negotiating the terms of the franchise
agreement, it is necessary for ITC Midwest to have authority to operate its transmission
system. On December 21, 2021 the City Council approved an Agreement which
authorized ITC Midwest to operate its system in the City of Dubuque until March 1, 2022,
with the intent that the City and ITC Midwest would have finalized the franchise by then.
However, the City and ITC Midwest have not yet finalized the franchise agreement. It is
expected that the final franchise agreement will be submitted to the City Council for
approval in March 2022.
I recommend that the City Council adopt the attached resolution approving the temporary
Agreement authorizing ITC Midwest, LLC to operate an electric transmission system in
the City of Dubuque until the franchise agreement takes effect but no later than May 1,
2022.
BAL:JLM
Attachments
CC' Michael C. Van Milligen, City Manager
Crenna Brumwell, City Attorney
Gus Psihoyos, City Engineer
Steve Brown, Project Manager
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
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. 1311 St., Dubuque, IA 52001, (563) 589-4100
RESOLUTION NO. 57-22
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 21 st day of February, 2022.
Brad M. C2yenagh, Mayor
Attest:
Adrienne N. Breitfelder, City Clerk
AGREEMENT
BY AND 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 21 st day of
February , 2022, is made and entered into by and between the City of
Dubuque, Iowa (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 power
in the City of Dubuque, Iowa along, under and upon the streets, avenues, alleys and
public places in the City of Dubuque, Dubuque County, Iowa (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 a franchise agreement between the parties takes effect, but
no later than May 1, 2022.
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 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 City in connection with any such lien or encumbrance or any
action or proceeding brought thereon.
02142022bal
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 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 City, the Company may
be allowed to self -insure the coverages required. The Company shall provide City
with certificates of insurance or letter of self-insurance, subject to the approval of
City in its sole discretion, upon request.
C. The requirements of indemnification shall not be a waiver of any right that
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 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 occurrence 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
By:A,,-rJam�w A4-&n..
ichael C. Van Milligen
City Manager
Attest:
Adrienne N. Breitfelder, City Clerk
ITC MIDWEST LLC, a Michigan limited liability
company
By: ITC Holdings Corp., its sole member
By:
Dusky T rry
Vice President ITC Holdings Corp, and
President, ITC Midwest
INSURANCE SCHEDULE
City of Dubuque Insurance Requirements for Vendors (Suppliers, Service Providers)
INSURANCE SCHEDULE G
1. ITC Midwest LLC (Vendor) shall furnish a signed certificate of insurance to the City of Dubuque,
Iowa 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 Iowa Insurance Division or
an equivalent. Each certificate shall include a statement under Description of Operations as to
why the certificate was issued. ITC Midwest LLC Franchise Agreement.
2. All policies of insurance required hereunder shall be with an insurer authorized to do business in
Iowa and all insurers shall have a rating of A or better in the current A.M. Best's 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 agreement's required limits.
9. Vendor shall require all subcontractors and sub -subcontractors to obtain and maintain during the
performance 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 April 2021
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 & EMPLOYERS LIABILITY
Statutory Benefits covering all employees injured on the job by accident or disease as
prescribed by Iowa Code Chapter 85.
Coverage A Statutory —State of Iowa
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 Iowa Code Section 85.1 A, the Vendor is not required to purchase Workers'
Compensation Insurance, the Vendor shall have a copy of the State's Nonelection of
Workers' Compensation or Employers' Liability Coverage form on file with the Iowa
Workers' Compensation Insurance Commissioner, as required by Iowa Code Section
87.22. Completed form must be attached.
Page 2 of 4 Schedule G Vendors April 2021
City of Dubuque Insurance Requirements for Vendors (Suppliers, Service Providers)
INSURANCE SCHEDULE G (continued)
C) POLLUTION LIABILITY
Coverage required: _Yes X No
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
Coverage required: _Yes X No
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 LIABILITY/BREACH $1,000,000
Coverage required: _Yes X No
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) UMBRELLAIEXCESS $5,000,000
Page 3 of 4
Coverage required: X Yes _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.
Schedule G Vendors April 2021
0
COMMERCIAL GENERAL LIABILITY
ECG 01 516 US 19
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
IOWA PRESERVATION OF GOVERNMENTAL
IMMUNITIES ENDORSEMENT
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SECTION I — COVERAGES is amended by the addition of the following:
COVERAGE — GOVERNMENTAL IMMUNITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages for claims not
subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists
and as it may be amended from time to time. Claims for damages not subject to Code of Iowa Section
670.4 shall be covered by the terms and conditions of this Policy.
b. 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 our timely written request.
c. We shall not deny coverage under this Policy and we 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.
d. The above preservation of governmental immunities shall not otherwise change or alter the coverage
available under this Policy.
ECG 01 516 08 19 Copyright, Everest Reinsurance Company, 2019 Page 1 of 1
Includes copyrighted material of Insurance Services Office, Inc.,
used with its permission.