First Transit Mgmt Agree amendment (3)
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MEMORANDUM
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,
June 27, 2006
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: City of Dubuque Management Agreement with First Transit, Inc.
City Attorney Barry Lindahl is recommending approval of an amendment to the City of
Dubuque Management Agreement with First Transit, Inc. removing the requirement that
the Iowa Communities Assurance Pool name First Transit as an additional insured.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
flz A (/ /I, II _
~J [ iVl/ "tJL--
Mich'ael c. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
BAR R Y A. L I N D A
CITY ATTORNEY
'<
MEMO
To:
Michael C. Van Milligen
City Manager
DATE:
June 16, 2006
Re:
City of Dubuque Management Agreement with First Transit, Inc.
We had a potential issue regarding the City of Dubuque Management Agreement with
First Transit, Inc. Although the underwriters for our assurance pool, the Iowa
Communities Assurance Pool (ICAP), approved our agreement with First Transit, they
notified us that they would charge us an additional $140,000 premium to name First
Transit as an additional insured as required by Paragraph 18 of the Management
Agreement.
We can avoid that cost if the insurance provisions of the Management Agreement are
amended as set out in the attachment, removing the requirement that ICAP name First
Transit as an additional insured.
First Transit has agreed to the amendment for the following reason. We provided First
Transit with the indemnification provision First Transit requested in the Management
Agreement in Paragraph 17 and our ICAP agreement provides coverage for that
contractual liability for both auto and general liability. Under that contractual liability
coverage, ICAP would be obligated to defend and indemnify First Transit for claims
within the scope of the indemnification paragraph in the Management Agreement. The
net effect is, as a practical matter, the same as if First Transit was named as an
additional insured.
I recommend that the attached resolution and First Amendment to Management
Agreement be submitted to the City Council for consideration and approval.
Attachment
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.or9
RESOLUTION NO. 269-06
APPROVING THE FIRST AMENDMENT TO THE MANAGEMENT
AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND FIRST
TRANSIT, INC.
Whereas, the City of Dubuque, Iowa (City) and First Transit, Inc.
(First Transit) have entered into the Management Agreement Between the
City of Dubuque, Iowa and First Transit, Inc. (the Agreement) ; and
Whereas, City and First Transit now desire to amend the Agreement
as set forth in the attached First Amendment.
Now, therefore it is agreed by and between the parties as follows:
1. The First Amendment attached hereto is hereby approved.
2. The Mayor and City Clerk are authorized and directed to execute
the First Amendment on behalf of the City of Dubuque.
Passed, approved and adopted this 5th day of July, 2006.
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider, City Clerk
FIRST AMENDMENT
TO
MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
FIRST TRANSIT, INC.
This First Amendment to Management Agreement between the City of
Dubuque, Iowa and First Transit, Inc. is dated for reference purposes the _
day of , 2006.
Whereas, the City of Dubuque, Iowa (City) and First Transit, Inc. (First
Transit) have entered into Management Agreement between the City of
Dubuque, Iowa and First Transit (the Agreement); and
Whereas, City and First Transit now desire to amend the Agreement as
set forth here.
Now, therefore it is agreed by and between the parties as follows:
Par. 18 of the Agreement is amended to read as follows:
18. INSURANCE
A. In furtherance of its obligations under Section 17 above and not in
limitation thereof, the City shall furnish and maintain, at its sole cost
and expense, at all times during the term of this Agreement and
any renewal or extension thereof, (i) a standard policy of
automobile liability insurance having a combined single limit of not
less than $5,000,000 per occurrence, for the ownership,
maintenance, use or operation of the buses and other vehicles
used in connection with the management and operation of the
Transit System, other City operations or businesses, or in any way
associated with this contract, (ii) a standard policy of general
liability insurance having a combined single limit of not less than
$5,000,000 per occurrence and (iii) a standard policy of workers'
compensation insurance covering all employees utilized in the
operation of the Transit System in accordance with applicable law,
together with employer's liability coverage of not less than
$1,000,000 per employee per accident and $1,000,000 per
employee for disease. Each such policy (a) shall be written by an
insurer reasonably acceptable to FIRST TRANSIT, and (b) shall
provide that it cannot be cancelled or materially altered without
thirty (30) days prior written notice to FIRST TRANSIT. The City
shall provide FIRST TRANSIT with certificate evidencing
compliance with the provisions of this section 18 A.
B. The City shall indemnify, defend and hold FIRST TRANSIT, its
agents, servants and employees harmless from and against any
and all loss, liability, claims, damage, and expenses (including,
without limitation, attorneys fees), resulting from or arising out of
the City's failure to furnish and maintain the insurance policies
required by Subsection 18 A above in accordance with the terms
thereof. In the event of any such failure, FIRST TRANSIT may, at
its sole option, furnish such policy or policies without prejudice to
any other remedy FIRST TRANSIT may have. The cost and
expense of furnishing and maintaining such policy or policies shall
be deemed an operating expense of the Transit System and
reimbursable to FIRST TRANSIT.
FIRST TRANSIT shall during the term of this Agreement maintain
insurance as set forth in the attached Insurance Schedule.
CITY OF DUBUQUE, IOWA
FIRST TRANSIT, INC.
By:
Roy D. Buol, Mayor
By:
Title:
Attest:
Jeanne F. Schneider, City Clerk
Witness:
EFFECT OF AMENDMENT
18. INSURANCE
A. In furtherance of its obligations under Section 17-1-S(This is actually
a typo in the Aareement) above and not in limitation thereof, the
City shall furnish and maintain, at its sole cost and expense, at all
times during the term of this Agreement and any renewal or
extension thereof, (i) a standard policy of automobile liability
insurance having a combined single limit of not less than
$5,000,000- per- occurrence insuring FIRST TR/\NSIT, as it is
dofined abovo, for the ownership, maintenance, use or operation of
the buses and other vehicles used in connection with the
management and operation of the Transit System, other City
operations or businesses, or in any way associated with this
contract, (ii) a standard policy of general liability insurance having a
combined single limit of not less than $5,000,000 per occurrence
insuring FIRST TRJ\NSIT, its agents, servants and employees for
their aots and omissions in oOFlneotion with tho R'lanagement and
operation of the Transit System pursuant to this AgroeR'lent and (iii)
a standard policy of workers' compensation insurance covering all
employees utilized in the operation of the Transit System in
accordance with applicable law, together with employer's liability
coverage of not less than $1,000,000 per employee per accident
and $1,000,000 per employee for disease. Each such policy (a)
shall be written by an insurer reasonably acceptable to FIRST
TRANSIT, (b) shall, with the exoeption of the workers'
oompensation polioy, be endorsed to namo FIRST TRANSIT, as
defined aeove, as additieFlal insuroEls, (0) shall pro'/ido that the
ooverage afforded thereby is primary as to FIRST TRANSIT and
not exoess and (QG) shall provide that it cannot be cancelled or
materially altered without thirty (30) days prior written notice to
FIRST TRANSIT. The City shall provide FIRST TRANSIT with
certificate evidencing compliance with the provisions of this section
~+7 A. (Typo)
B. The City shall indemnify, defend and hold FIRST TRANSIT, its
agents, servants and employees harmless from and against any
and all loss, liability, claims, damage, and expenses (including,
without limitation, attorneys fees), resulting from or arising out of
the City's failure to furnish and maintain the insurance policies
required by Subsection 18 A above in accordance with the terms
thereof. In the event of any such failure, FIRST TRANSIT may, at
its sole option, furnish such policy or policies without prejudice to
any other remedy FIRST TRANSIT may have. The cost and
expense of furnishing and maintaining such policy or policies shall
be deemed an operating expense of the Transit System and
reimbursable to FIRST TRANSIT.
FIRST TRANSIT shall during the term of this Agreement maintain
insurance as set forth in the attached Insurance Schedule.
EFFECT OF AMENDMENT
18. INSURANCE
A. In furtherance of its obligations under Section 17-W(This is actually
a tyPO in the AQreementl above and not in limitation thereof, the
City shall furnish and maintain, at its sole cost and expense, at all
times during the term of this Agreement and any renewal or
extension thereof, (i) a standard policy of automobile liability
insurance having a combined single limit of not less than
$5,000,000- per- occurrence insuring FIRST TR/\NSIT, m; it is
defined above, for the ownership, maintenance, use or operation of
the buses and other vehicles used in connection with the
management and operation of the Transit System, other City
operations or businesses, or in any way associated with this
contract, (ii) a standard policy of general liability insurance having a
combined single limit of not less than $5,000,000 per occurrence
insuring FIRST TPJ\NSIT, its agents, servants and employees for
their acts and omissions in oonnection 'Nith the management and
operation of the Transit System pursuant to this /\!jreement and (iii)
a standard policy of workers' compensation insurance covering all
employees utilized in the operation of the Transit System in
accordance with applicable law, together with employer's liability
coverage of not less than $1,000,000 per employee per accident
and $1,000,000 per employee for disease. Each such policy (a)
shall be written by an insurer reasonably acceptable to FIRST
TRANSIT, (b) shall, with the exception of the workers'
compensation policy, be endorsed to name FIRST TRANSIT, as
defined above, as additional insur-ods, (c) sh::lll provide that the
co'/cr::lgc ::lff-orded thereby is primary as to FIRST TRJ\NSIT ::lnd
not excess and (!?El) shall provide that it cannot be cancelled or
materially altered without thirty (30) days prior written notice to
FIRST TRANSIT. The City shall provide FIRST TRANSIT with
certificate evidencing compliance with the provisions of this section
18.t7 A. (T vpo)
B. The City shall indemnify, defend and hold FIRST TRANSIT, its
agents, servants and employees harmless from and against any
and all loss, liability, claims, damage, and expenses (including,
without limitation, attorneys fees), resulting from or arising out of
the City's failure to furnish and maintain the insurance policies
required by Subsection 18 A above in accordance with the terms
thereof. In the event of any such failure, FIRST TRANSIT may, at
its sole option, furnish such policy or policies without prejudice to
any other remedy FIRST TRANSIT may have. The cost and
expense of furnishing and maintaining such policy or policies shall
be deemed an operating expense of the Transit System and
reimbursable to FIRST TRANSIT.
FIRST TRANSIT shall during the term of this Agreement maintain
insurance as set forth in the attached Insurance Schedule.
OFFICE OF THE CITY ATTORNEY
DUBUQUE, IOWA
MEMO
FROM:
Jeanne Schneider
City Clerk
TLracelYsstecklein ~
ega ecretary
To:
DATE:
June 26, 2006
RE:
First Transit, Inc. - First Amendment
Jeanne:
Attached is a copy of a letter that Barry received from Attorney Mike Petrucci, as well as
four (4) original amendments signed by Richard Dunning, First Transit's Senior Vice
President. I would appreciate it if you would please have the Mayor sign the four
attached original amendments at the July 5, 2006 City Council meeting and return one
signed original back to Barry. I will then make a copy for our files and forward the
original to Attorney Petrucci.
Thank you for your assistance with this matter.
Attachment
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 tsteckle@cityofdubuque.org
Michael C. Murray, Sr. Vice President & General Counsel
Michael L. Petrucci, Associate General Counsel
Daniel R. Beerck, Associate General Counsel
Brian K. Hamilton, Associate General Counsel, Real Estate
First ,.
FirstGroup America, Inc.
OFFICE OF GENERAL COUNSEL
Michael L Petrucci, Esq.
705 Central Avenue, Suite 300
Cincinnati, Ohio 45202
Tel 513-684-8740 (Direct)
Fax 513-684-1698
June 20, 2006
Barry Lindahl
City Attorney
300 Main Street, STE 330
Dubuque, IA 52001
Re: First Amendment to Management Agreement between
The City of Dubuque, Iowa and First Transit, Inc.
Dear Mr. Lindahl:
Enclosed please find four original Amendments executed by Richard Dunning in
connection to the above-referenced Agreement. Upon receipt, kindly execute same and
return an original copy to my attention for First Transit's files. In the meantime, if you
have any questions or comments, please do not hesitate to contact me.
Sincerely,
~8iiM/
Michael L. Petrucci
Associate General Counsel
Enclosure
MLP/mnl
FIRST AMENDMENT
TO
MANAGEMENT AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
FIRST TRANSIT, INC.
This First Amendment to Management Agreement between the City of
Dubuque, Iowa and First Transit, Inc. is dated for reference purposes the _
day of , 2006.
Whereas, the City of Dubuque, Iowa (City) and First Transit, Inc. (First
Transit) have entered into Management Agreement between the City of
Dubuque, Iowa and First Transit (the Agreement); and
Whereas, City and First Transit now desire to amend the Agreement as
set forth here.
Now, therefore it is agreed by and between the parties as follows:
Par. 18 of the Agreement is amended to read as follows:
18. INSURANCE
A. In furtherance of its obligations under Section 17 above and not in
limitation thereof, the City shall furnish and maintain, at its sole cost
and expense, at all times during the term of this Agreement and
any renewal or extension thereof, (i) a standard policy of
automobile liability insurance having a combined single limit of not
less than $5,000,000 per occurrence, for the ownership,
maintenance, use or operation of the buses and other vehicles
used in connection with the management and operation of the
Transit System, other City operations or businesses, or in any way
associated with this contract, (ii) a standard policy of general
liability insurance having a combined single limit of not less than
$5,000,000 per occurrence and (iii) a standard policy of workers'
compensation insurance covering all employees utilized in the
operation of the Transit System in accordance with applicable law,
together with employer's liability coverage of not less than
$1,000,000 per employee per accident and $1,000,000 per
employee for disease. Each such policy (a) shall be written by an
insurer reasonably acceptable to FIRST TRANSIT, and (b) shall
provide that it cannot be cancelled or materially altered without
thirty (30) days prior written notice to FIRST TRANSIT. The City
.
shall provide FIRST TRANSIT with certificate evidencing
compliance with the pruvisions of this section 18 A.
B. The City shall indemnify, defend and hold FIRST TRANSIT, its
agents, servants and employees harmless from and against any
and all loss, liability, claims, damage, and expenses (including,
without limitation, attorneys fees), resulting from or arising out of
the City's failure to furnish and maintain the insurance policies
required by Subsection 18 A above in accordance with the terms
thereof. In the event of any such failure, FIRST TRANSIT may, at
its sole option, furnish such policy or policies without prejudice to
any other remedy FIRST TRANSIT may have. The cost and
expense of furnishing and maintaining such policy or policies shall
be deemed an operating expense of the Transit System and
reimbursable to FIRST TRANSIT.
FIRST TRANSIT shall during the term of this Agreement maintain
insurance as set forth in the attached Insurance Schedule.
CITY OF DUBUQUE, IOWA
By:
Roy D. Buol, Mayor
FIRnA~SIT' INC.
BY\ L- ~
Title: Sr
Attest:
Jeanne F. Schneider, City Clerk
Witness:JJA/..tJUJ j at -.li;,m