AMENDMENT NO. 3 TO THE INTERIM COOPERATIVE AGREEMENT
Nicor
Gas
Company
Form
10-Q
Exhibit
10.5
AMENDMENT
NO. 3 TO THE INTERIM COOPERATIVE AGREEMENT
On
this
25th
day of
April 2001, Commonwealth Edison Company and Northern Illinois Gas Company
(individually or collectively “Utility(ies)”) hereby modify their Interim
Cooperative Agreement dated October 28, 1993 including amendments thereto
(“Agreement”), by entering into this Amendment No. 3 (“Amendment”) to the
Agreement:
WHEREAS,
each of the Utilities is named as a defendant in litigation currently pending
in
the Circuit Court of Xxxx County, Illinois, captioned Xxxxxxxx
v. Commonwealth Edison
Company, et al.,
Case Xx.
00 X 0000, filed April 20, 1999, and Xxxxxxxx
v. Commonwealth
Edison Company, et al.,
Case Xx.
00 X 00000, filed October 2, 2000, (individually or collectively the
“Action(s)”), alleging personal injury and/or property damage caused by
conditions existing or having existed at the former manufactured gas plant
site
bounded by Xxxxxx Street, Lombard Street, Harvard Avenue, and Garfield Avenue
in
Oak Park, Illinois, now known as Barrie Park;
WHEREAS,
the Barrie Park site is on the Site List, which is Attachment A to the Agreement
and is subject to the Agreement;
WHEREAS,
without admitting any liability, the Utilities have determined that it is in
their mutual best interests to delay commencement of litigation of claims which
either Utility may bring against the other Utility arising from the Actions,
including but not limited to claims for contribution and indemnity (“Potential
Utility Claims”), or to resolve such Potential Utility Claims;
NOW
THEREFORE, based on the covenants and mutual promises contained herein, it
is
hereby agreed by and between each Utility, pursuant to Section 16 of the
Agreement, that the Agreement is modified as follows:
1. Applicability.
This
Amendment applies to all Potential Utility Claims of either Utility which relate
to the Actions and which have not been time barred prior to the effective date
of this Amendment.
2. Shared
Costs
2.1. The
cost
of any settlement and the cost of any judgment entered against either or both
of
the Utilities in the Actions will be Shared Costs under the Agreement and will
be subject to all of the provisions of the Agreement, except as otherwise
provided in this Amendment.
2.2 Section
2.2 of the Agreement is amended by adding the following to the end of Section
2.2(d) prior to the semicolon: “or by Amendment No. 3.”
3. Preservation
of Potential Utility Claims
3.1 Neither
Utility shall commence litigation, whether by crossclaim or counterclaim in
either Action or in a separate civil action, against the other Utility regarding
Potential Utility Claims until and unless the Agreement is terminated pursuant
to Section 14 of the Agreement.
3.2 Any
statute of limitation or repose is tolled for Potential Utility Claims that
either Utility may have against the other Utility until the Agreement is
terminated pursuant to Section 14 of the Agreement.
3.3 Any
finding of fact, conclusion of law, determination of liability, including any
determination as to the relative fault or percent allocation of liability,
and/or judgment in either Action shall not have any effect, whether by res
judicata, collateral estoppel, or similar theories, in any proceeding between
the Utilities, including but not limited to, any arbitration under the Agreement
or in any litigation between the Utilities.
4. Settlement.
The
Utilities agree to cooperate in any efforts to settle the Actions. The Utilities
agree that they will not settle either Action without mutual agreement between
the Utilities unless the Agreement is terminated pursuant to Section 14 of
the
Agreement.
5. Reservation
of Rights.
This
Amendment shall not constitute nor be interpreted, construed, or used as
evidence of any admission of liability, law or fact, or a waiver of any right
or
defense.
6. Authorization.
Each of
the signatories represents that he or she is fully authorized to enter into
the
terms and conditions of, and to execute this Amendment on his/her own behalf
or
on behalf of their respective client.
7. Counterparts.
This
Amendment may be executed in counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument.
8. Effective
Date.
This
Amendment is effective as of April 20, 2001.
Dated: _________________ Party: ____Northern
Illinois Gas Company________
By: _______Russ
M. Strobel_______________________________________________
(Signature)
_____Russ
X. Xxxxxxx, Senior V.P. & General Counsel_____________________
(Name
and
Title)
Dated: ___4-26-01_______ Party: ___Commonwealth
Edison Company_______
By: ________Rebecca
J. Lauer_____________________________________________
(Signature)
______Rebecca
X. Xxxxx, Vice President and General Counsel_______________
(Name
and
Title)
