Temporary Agreement Between the City of Dubuque and ITC Midwest, LLC to Operate an Electric Transmission System in the City of DubuqueCity of Dubuque
City Council Meeting
Consent Items # 013.
Copyrighted
March 18, 2024
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: BarryA. Lindahl, Senior Counsel recommending adoption of 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
September 15, 2024
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
Staff Memo
Staff Memo
Resolution
Resolutions
Agreement
Supporting Documentation
THE C
DUj!BaFE
Masterpiece on the Mississippi
BARRY A. LINDAHL, ESQ.
SENIOR COUNSEL
MEMO
To: Mayor Brad M. Cavanagh and
Members of the City Council
DATE: March 18, 2024
Dubuque
All•Merica Cif
M1.tiift'�Al.i A'A'.If-,v. AA-
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. 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 September 2024.
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
September 15, 2024.
BAL:JMM
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. Breffelder, City Clerk, 50 W. 13t' St., Dubuque, IA 52001, (563) 589-4100
RESOLUTION NO. 60-24
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 181h day of March, 2024.
Brad M. Cavanag Mayor
i
Attest:
Adrienne N. Breitfeider, 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 18th day of
March 2024, 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 September 15, 2024.
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.
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 ITC MIDWEST LLC, a Michigan limited liability
company
By: ITC Holdings Corp., its sole member
By: By:
Mi ael C. Van Mil igen Dusky Terry
City Manager Vice President ITC Holdings Corp, and
President, ITC Midwest
Attest:
Adrienne Breitfelder, City Clerk
INSURANCE SCHEDULE
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, 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. Vendor Service Agreement dated 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 1. 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
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 & EMPLOYERS LIABILITY
Page 2 of 4
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.
Schedule G Vendors April 2021
5
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
M
COMM 5RCIAL GMERAL LIABILITY
ECG 01 516 08 19
THIS FNnORSFMFNT CHANC%FR THE P0I IrY. PI FARF RFAn IT rARFFIA t Y
IOWA PRESERVATION ERVATION F GOVERNMENTAL
IMMUNITIES ENDORSEMENT
Th-s onuorscmentmod iFcs insurance provRied urbderitle following
COMMEIICIAL GENERAL LIABILITY COVERACt PART
SEMUN I —COVERAGES is amended by M addilian of the fdlawin#.
CCWERAGE—GOVERNMENTAL IMMUNITY
IEtsuring Agreoment
a_ W& %wil pay those sums that the insured becomes IegaHy obigated to pay as damages for claims not
subrjw to tho defense of governmental immunity under the Code of Iowa Section 670.4 as it new exists
Arwi no. it may W arcrmdi: A finm lima in time ClairnR fnr riamagrc nnr ciO4nrL.t m Cnriar of Ink&n Surtinn
67,DA shall be covered by Via terfris and condildv of this Policy,
b. The City of Nbuque. Icma shay M resp irkspile for assarting any defense nd ggvernmPntal immunity, and
mdy Liu 2i❑ at Any tirnu arW Al iall du axu upurk uur (nYE91y w! iK6 l uaqurtbSit.
c. We shall nol deny coverage under this Policy 9nd we 5hMr not deny srry of the rights and benefits
accruing to the City of fhbuaue. Iowa under this Policy for reasons of govemmental immurifty unless -and
unlil a coura of compeienl Juris&Ctinn has ruled in favor lof the defewke s) of gnvt'inmer7tal immunity
asserted by the Gity od Dubuque. lawn,
d. The above preservation of -governmental rmmunilies shall not otherwise change or alter the naverage
available under this Policy_
E4 7 all pro dG 18 1ZUPYr1.4113, EVr9resE RE!InE iiOnLe Cmnpdiiy, 2019 Page t of I
Includes capyrigMed material DI Insurance Servires Office, Inc,
,i5e-d with Its permission.
aMMY
7