AMENDMENT NO. 1 TO THE INTERIM COOPERATIVE AGREEMENT
Form
10-Q
Exhibit
10.12
AMENDMENT
NO. 1 TO THE INTERIM COOPERATIVE AGREEMENT
Commonwealth
Edison Company (“Edison”), an Illinois corporation, and Northern Illinois Gas
Company (“NI-Gas”), an Illinois corporation, (collectively, “Utilities”) hereby
modify their Interim Cooperative Agreement of October 28, 1993 (“Agreement”) by
entering into this Amendment No. 1 (“Amendment”) to the Agreement.
WHEREAS,
without admitting any liability, the Utilities entered into the Agreement to
provide an interim cooperative arrangement for the Utilities to address certain
issues at certain former manufactured gas plant (“MGP”) sites in
Illinois;
WHEREAS,
the Utilities have decided that four sites should be added to the list of MGP
sites on Attachment A to the Agreement (“Site List”);
WHEREAS,
the Utilities have decided that other amendments should be made to the
Agreement;
NOW
THEREFORE, based on the covenants and mutual promises contained herein, Edison
and NI-Gas agree that, pursuant to Section 16 of the Agreement, the Agreement
is
modified as follows.
1. The
Site
List in Attachment A of the Agreement is amended to include the following MGP
sites (collectively, “Four Sites”):
|
25.
|
MGP
Site on Coal Gas Road
|
DuQuoin,
Illinois (“DuQuoin MGP Site”)
|
26.
|
MGP
site on Bluff Street
|
Joliet,
Illinois (“Bluff Street MGP Site”)
|
27.
|
MGP
site on Center Street
|
Geneseo,
Illinois (“Geneseo I MGP Site”)
|
28.
|
MGP
site at Clinton and Xxxxxxx
|
Ottawa,
Illinois (“Ottawa II MGP Site”)
The
Four
Sites are subject to all of the terms of the Agreement, except as otherwise
provided in this Amendment. If there is any conflict between the terms of the
Agreement and the terms of this Amendment, the terms of this Amendment shall
govern.
2. By
way of
clarification, the Note on the bottom of each page of Attachment A to the
Agreement is deleted and is replaced by the following:
NOTE:
Edison and NI-Gas are not admitting liability at any of these sites or, except
as otherwise provided in the Agreement, waiving any rights or
defenses.
3. The
first
sentence of Section 2.1 is amended by deleting the period at the end of the
sentence and replacing it with:
and
any
other costs associated with investigation and/or remediation of a particular
MGP
site that the Utilities agree to incur as Shared Costs for that
site.
4. Section
2.2 (b) is amended by deleting the semi-colon and replacing it
with:
,
except
as other expressly agreed to by the Utilities with regard to a particular MGP
site.
5. The
title
of Section 3 of the Agreement is deleted and replaced with the
following:
|
3.
|
Previously
Agreed Upon Costs Subject to Interim or Final Cost
Allocation.
|
6. Section
3.1 of the Agreement is amended by: (i) deleting the period at the end of
Section 3.1(c) and replacing it with a semi-colon and the word “and”; and (ii)
adding the following after Section 3.1(c):
|
d)
|
the
portion of the costs for the DuQuoin MGP Site (“DuQuoin Response Costs”)
allocated to Edison during the arbitration of the allocation of the
DuQuoin Response Costs between Edison and Central Illinois Public
Service
Company (“CIPS”), pursuant to the Arbitration Agreement between Edison and
CIPS (effective January 5, 1995) (“ComEd/CIPS Agreement”), and that are
incurred after the Effective Date of Amendment No. 1 to the Interim
Cooperative Agreement, which DuQuoin Response Costs shall include:
(i) the
DuQuoin Response Costs that will be incurred to pay environmental
consultants and contractors to implement
remedial
|
and/or
removal action at the DuQuoin MGP Site that is acceptable to IEPA, Edison and
CIPS (“DuQuoin Remedial Action”); (ii) the oversight costs that will be paid to
IEPA in connection with the DuQuoin Remedial Action; (iii) any costs that CIPS
and Edison agree to incur, or for which Edison is legally liable, to have a
third party investigate and/or otherwise perform remedial or removal action
at
the Southtowne Shopping Center or any property that has been impacted by
manufactured gas plant operations at the DuQuoin MGP Site; (iv) any costs for
which CIPS and Edison may be liable under the terms of an indemnification
agreement that they may enter into with Mutual of New York regarding potential
manufactured gas plant materials at the Southtowne Shopping Center; and (v)
any
costs and liabilities incurred by CIPS and Edison to purchase and own portions
of the DuQuoin MGP Site to minimize the cost of remedial or removal action
at
the DuQuoin MGP Site (including, but not limited to, the amounts paid to the
sellers of portions of the DuQuoin MGP Site, taxes, insurance, maintenance
and
other similar costs of owning those portions; provide, however, that the total
amount paid by CIPS and Edison to
the
sellers of portions of the DuQuoin MGP Site shall not exceed
$160,000).
7. Section
3.2 of the Agreement is amended by: (i) inserting the phrase “Notwithstanding
the provisions of Section 1.1” at the beginning of the first sentence of Section
3.2; (ii) inserting the phrase “, but not interim,” between the words “final”
and “allocation” in the first line of Section 3.2; (iii) deleting the period at
the end of Section 3.2(b) and replacing it with a semi-colon and the work “and”;
and (iv) adding the following after Section 3.2(b):
c) the
portion of the DuQuoin Response Costs allocated to Edison pursuant to the
ComEd/CIPS Agreement for costs incurred by Edison and CIPS before the Effective
Date of Amendment No. 1 to the Interim Cooperative Agreement (which total
approximately $800,000) for payments to environmental consultants and
contractors, and payments of response and oversight costs to the Illinois
Environmental Protection Agency (“IEPA”); and
d) the
costs
for investigation of the Bluff Street MGP Site by third parties, and the IEPA
oversight costs for such investigation, that Edison incurred before the
Effective Date of Amendment No. 1 to the Interim Cooperative Agreement (which
costs total approximately $243,000).
8. Section
4.1 of the Agreement is amended by: (i) deleting the period at the end of
Section 4.1(d) and replacing it with the word “and”; and (ii) adding the
following after Section 4.1(d):
e) Notwithstanding
any other provision of this Section 4.1, the time for Final Cost Allocation
for
the Shared Costs for the DuQuoin MGP Site shall be as follows. During the twelve
(12) months following the second anniversary of the Effective Date of Amendment
No. 1 to the Interim Cooperative Agreement, the Utilities shall attempt to
negotiate the final allocation of the DuQuoin Response Costs. If the Utilities
are unable to agree with such twelve (12) months, either Utility may seek
binding arbitration as provided for in Section 5 of the Interim Cooperative
Agreement after the conclusion of such twelve (12) months.
9. The
period at the end of the first sentence in Section 6.8 is deleted and replaced
with the following:
;
provided, however, that such condition shall not apply to the Final Cost
Allocation for the Shared Costs for the Four Sites. The allocation of Shared
Costs for each of the Four Sites may range from 0% to 100% for either
Utility.
10. Section
6.8(a) of the Agreement shall be amended by inserting at the beginning of the
first line the phrase: “Except with respect to the Four Sites”.
11. The
fourth line of Section 6.8(b) shall be amended by inserting “except with respect
to the Four Sites” after the words “informed that.”
12. Section
7
of the Agreement shall be amended to include the following provision after
Section 7.4:
7.5
Notwithstanding any other provision of the Interim Cooperative Agreement,
prejudgment interest shall not be paid on Shared Costs for the DuQuoin MGP
Site
or the Bluff Street MGP Site that were incurred by ComEd prior to the Effective
Date of Amendment No. 1 to the Interim Cooperative Agreement.
13. Section
9(c) of the Agreement is amended by inserting the phrase “or investigation
(including a cause of action regarding the Utilities’ respective potential
liability for Shared Costs for a site or sites on the Site List or the
allocation of Shared Costs between the Utilities for a site or sites on the
Site
List)” between the words “remediation” and “arising”, and by adding the
following sentence after the phrase “the Site List” at the end of Section
9(c):
If,
in
accordance with the terms of this Agreement governing litigation between the
Utilities involving a site on the Site List, the Utilities litigate any issues
concerning their respective potential liability
for
Shared Costs for a site or sites on the Site List, or the allocation of Shared
Costs for a site or sites on the Site List, Edison and NI-Gas each agree to
waive any defense that they may have based on a statute of limitations
applicable to events before the Effective Date of this Agreement. This waiver
shall apply only to sites on the Site List for which the Utilities have agreed
to allocate Shared Costs within the meaning of Section 1.1 or Section 3 of
the
Agreement.
14. Section
23 of the Agreement is amended by inserting at the beginning of Section 23
the
following phrase: “Except as provided in Section 9,”.
15. Section
26 of the Agreement is amended by inserting the following after the first
sentence in Section 26:
If
the
Utilities incur Shared Costs that they agree that they need to incur prior
to
the approval or disapproval of Amendment No. 1 to the Interim Cooperative
Agreement by the Illinois Commerce Commission (to the extent such approval
is
required by Section 7-102 of the Public Utilities Act), the Utilities shall
act
in accordance with Amendment No. 1 to the Interim Cooperative Agreement with
regard to such Shared Costs, including, but not limited to, the condition that
each Utility will pay, on an interim basis, 50% of the costs that it agrees
to
incur for a site.
16. The
Agreement is amended by adding the following Section 27 after Section
26.
27. Coordinator
Utility for DuQuoin MGP Site and Bluff Street MGP Site.
27.1 Edison
will be the Coordinator/Utility for the DuQuoin MGP Site. To the extent
reasonably possible and consistent with the implementation of the DuQuoin
Remedial Action as soon as possible, Edison and NI-Gas will comply with the
requirements of Section 8(a) though (f) and Attachment C of the Interim
Cooperative Agreement in connection with DuQuoin Response Costs that are
incurred after the Effective Date of Amendment No. 1 to the Interim Cooperative
Agreement; provided, however, that NI-Gas agrees to the implementation of the
DuQuoin Remedial Action, and agrees to waive any requirements of Section 8(a)
through (f) and Attachment C of the Interim Cooperative Agreement with regard
to
the DuQuoin Remedial Action if compliance with such requirements would, in
Edison’s judgment, cause an unreasonable delay in the implementation of the
DuQuoin Remedial Action.
27.2 Edison
will be the Coordinator/Utility for the Bluff Street MGP Site.
17. The
effective date (“Effective Date”) of this Amendment shall be the date of the
last party to execute this Amendment. This Amendment may be executed in multiple
counterparts, each of
which
shall be deemed an original, but all of which together shall constitute one
and
the same instrument.
|
18.
|
As
hereinabove amended, the Agreement will remain in full force and
effect.
|
IN
WITNESS WHEREOF, each Utility designed below enters into this Amendment. Each
person signing this Amendment represents and warrants that he or she has been
duly authorized to enter into this Amendment by the company or entity on whose
behalf it is indicated that the person is signing.
Dated:__________________ Party:
Northern
Illinois Gas Company
By: /s/
XXXXXXX X. XXXXXX
Vice
President Administration
Dated:
June
20, 1996 Party:
Commonwealth
Edison Company
By: /s/
XXXX
X. X’XXXXX
Environmental
Services Manager
