AMENDMENT NO. 2 TO THE INTERIM COOPERATIVE AGREEMENT
Nicor
Gas
Company
Form
10-Q
Exhibit
10.4
AMENDMENT
NO. 2 TO THE INTERIM COOPERATIVE AGREEMENT
Commonwealth
Edison Company (“Edison”), an Illinois corporation, and Nicor Gas (“Nicor”)
(formerly known as Northern Illinois Gas Company), an Illinois corporation,
(collectively, “Utilities”) hereby modify their Interim Cooperative Agreement of
October 28, 1993, as amended, (“Agreement”) by entering into this Amendment No.
2 (“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 ten (10) 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 Nicor agree that, pursuant to Section 16 of the Agreement, the Agreement
is
modified as follows.
1.
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The
Site list in Attachment A of the Agreement is amended to include
the
following MGP sites (collectively, the “Ten
Sites”):
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Xxxxx
1
(2nd
St.)
Dixon
II
(River & Perry)
DuQuoin
(Chestnut)
Elgin
TDC-570-0044
Kenilworth
Mendota
(Main St.)
Murphysboro
I (Walnut)
Murphysboro
II (Big Muddy)
Rockford
(Avon & Cedar)
Rockford
II (Mulberry)
The
Ten
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.
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Section
1.2 is amended as follows:
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a)
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In
the first sentence, delete “unless ninety (90) days before the Utility
intends to commence such litigation it sends the other Utility, by
telecopy and U.S. mail, written notice of such intent” and replace it with
“unless the Utility provides the other Utility at least 90 days prior
written notice, by telecopy and U.S. mail, of its intent to commence
such
litigation”;
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b)
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In
the second sentence, insert “or after” following
“on”;
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c)
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In
the third sentence, insert “or after” following
“On”.
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3.
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The
following is added as a new Section 2.2 and the current Section 2.2
and
2.3 are renumbered as 2.3 and 2.4,
respectively:
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a)
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The
Utilities, or the Coordinator/Utility in connection with its retention
of
consultants or contractors, from time to time may agree, or have
agreed,
to provide an indemnity and/or defense to a current owner, consultant,
or
other third-party involved with an MGP site listed on Attachment
A, or to
an agent under an agreement to execute manifests in accordance with
Section 8(e) below and Attachment D. The indemnification and /or
defense
obligations that the Utilities or the Coordinator/Utility are required
to
perform under any written agreement (including all reasonable attorney
and
consultant fees and expenses) shall be Shared Costs regardless of
whether
or when such indemnification or defense obligations arise, and regardless
of the extent (if any) to which such obligations are associated with
investigation or remediation of an MGP site. The indemnification
and
defense obligations specified in the preceding sentence are hereinafter
referred to as “Indemnification Obligations.” The Indemnification
Obligations may include, for example, an indemnity to the owner of
an MGP
site for property damage or personal injury caused during any
investigation or remediation, or for any additional investigation
or
remediation required by a governmental agency beyond that initially
performed by the Utilities. Each Utility shall pay 50% of the costs
of any
kind or nature whatsoever of performing any Indemnification Obligations,
subject to the final allocation of Shared Costs between the Utilities
pursuant to Sections 4, 5 and 6 of this Agreement. For example, if
one
Utility is allocated 60% of the Shared Costs for an MGP site, that
Utility
shall be allocated 60% of any Indemnification Obligations for that
site.
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 on the Site List, or the allocation of Shared
Costs for a site on the Site List, the Indemnification Obligations
for
such site shall be allocated pursuant to the allocation of Shared
Costs resulting from a final judgment in such litigation or settlement
or
such litigation. Any written agreement that creates any Indemnification
Obligations benefiting a third-party (other than a contractor or
consultant found to be mutually acceptable under Section 8(a) of
this
Agreement) that is entered into by either Utility after the date
of this
Second Amendment to the Agreement shall be executed by both
Utilities.
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b)
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As
part of the investigation and/or remediation strategy for an MGP
site on
the Site List, the Utilities may elect to purchase all or a portion
of the
site. Title to all sites purchased under this Section 2.2(b) shall
be held
in an Illinois land trust established with a mutually acceptable
land
trustee with the Utilities as sole beneficiaries. All costs and
liabilities of purchasing and owning the site shall be Shared Costs
including, but not limited to, the purchase price, closing costs
or fees,
taxes, insurance, maintenance, external legal fees and trustee fees
directly arising from the purchase or ongoing ownership of the
site.
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The
Utilities shall enter into a property management agreement that shall provide,
among other things, that one-half of any and all revenue (e.g. rental or lease
payments) derived from the ownership of any site purchased pursuant to this
Section 2.2(b) shall be distributed to each Utility on a monthly basis
(hereinafter referred to as “MGP Site Revenue”). For any site purchased pursuant
to this Section 2.2(b), all MGP Site Revenues distributed before the final
allocation of Shared Costs between the Utlities pursuant to Sections 4, 5,
and 6
of this Agreement shall be redistributed, and any future MGP Site Revenues
shall
be distributed, consistent with the final allocation. For example, if one
Utility is allocated 60% of the Shared Costs for a purchased former MGP site,
that Utility shall be allocated 60% of all past and future MGP Site Revenues.
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 on the Site List, or the allocation of Shared Costs for a site on the
Site
List, the MGP Site Revenue for such site shall be allocated pursuant to the
allocation of Shared Costs resulting from a final judgment in such litigation
or
settlement of such litigation.
4.
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The
current Section 2.2(b) as amended by Amendment No. 1 to the Interim
Cooperative Agreement (“Amendment No. 1”), which Section is renumbered as
Section 2.3(b), is amended by deleting the semi-colon and replacing
it
with “except as provided in Section
2.2;”.
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5.
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The
current Section 3.1(d) (iv) of the Agreement, as added by Amendment
No. 1,
is deleted and replaced with:
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(iv)
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any
costs of any kind or nature whatsoever that Edison and CIPS incur
at any
time, if approved by Nicor, to perform indemnification and/or defense
obligations under written agreements with the Mutual Life Insurance
Company of New York and/or Ares Realty Capital, Inc. concerning in
any way
whatsoever potential manufactured gas plant materials at the Southtowne
Shopping Center;
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(v)
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any
costs of any kind or nature whatsoever that Edison and CIPS incur
at any
time, if approved by Nicor, to perform indemnification and/or defense
obligations under written agreements with consultants, or the current
or
former owners of all or part of the DuQuoin MGP Site, or land adjacent
thereto, concerning in any way whatsoever manufactured gas plant
material;
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6.
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The
current Section 3.1(d) (v) of the Agreement, as added by Amendment
No. 1,
is renumbered as Section 3.1(d)
(vi).
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7.
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Section
3.1 of the Agreement, as amended by Amendment No. 1, is amended by:
(1)
deleting the period at the end of Section 3.1(d) and replacing it
with a
semi-colon and the word “and” and adding the following after Section
3.1(d):
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e.
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all
costs incurred for Kenilworth and Rockford (Avon and Cedar) since
December
1, 1997;
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f.
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all
costs incurred for Murphysboro II (Big Muddy) since December 1, 1997,
minus all amounts ultimately paid by
Ameren/CIPS.
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8.
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Section
6.8, as amended by Amendment No. 1, is amended to read, in pertinent
part,
as follows:
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;
provided, however, that such condition shall not apply to the Final Cost
Allocation for the Shared Costs for the Four Sites added by Amendment No. 1
and
then Ten Sites added in this Amendment No.2. The allocation of Shared Costs
for
each of the Four Sites and the Ten Sites may range from 0% to 100% for either
Utility.
9.
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The
beginning of the first line of Section 6.8 (a), as amended in Amendment
No. 1, shall be amended to read as follows: “Except with respect to the
Four and the Ten Sites.”
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10.
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The
fourth line of Section 6.8(b), as amended in Amendment No. 1, shall
be
amended to read, in pertinent part, as follows: “except with respect to
the Four Sites and the Ten Sites”.
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11.
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Section
8(e) is amended by deleting the current text and replacing it with:
each
Utility will cooperate, as provided in Attachment D, in the execution
of
any manifests needed involving the removal of
waste;
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12.
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Section
9 of the Agreement is amended by deleting the period at the end of
Section
9(c), replacing it with a semi-colon and then inserting the
following:
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d)
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neither
Edison nor Nicor will assert laches against the other in any proceeding
regarding possible remediation 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)
arising
from or relating to any of the sites on the Site List. 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.
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13.
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Section
8(f) is amended by deleting the period and replacing it with a semi-colon
and the following:
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g)
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designate
a Coordinator/Utility for each site or portion thereof purchased
in
accordance with Section 2.2(b), and it shall be the Coordinator/Utility’s
responsibility to actively manage the Utilities’ ownership interests,
subject to the direction of the Management Committee established
under
Attachment C.
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14.
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Section
26 of the Agreement, as amended by Amendment No. 1, is amended by
deleting
it and replacing it with the
following:
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26.
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Certain
costs.
If
the Utilities incur Shared Costs that they agree that they need to
incur
prior to the approval or disapproval of Amendment No. 1 or Amendment
No. 2
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
or Amendment No. 2 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.
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15.
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The
following Section 28 is added to the
Agreement:
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28.
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Terms.
Each defined term stated in a singular form shall include the plural
form
and each defined term stated in a plural form shall include the singular
form. The term “consultant” includes “contractor” and the term
“contractor” includes “consultant”.
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16.
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Section
5.2 of Attachment C is amended by inserting the following after the
second
sentence:
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Notwithstanding
any other provision of this Agreement, the Utilities recognize that it may
be
cost efficient and mutually beneficial for the Management Committee to approve
the purchase of certain equipment that can be used at more than one MGP
site.
17.
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Section
2.4 of Attachment C is amended by inserting the following sentence
after
the last sentence of the current Section
2.4:
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All
costs
that either Utility recovers from a third party, such as pursuant to an
indemnification claim against a consultant, in connection with any claims or
suits brought against either Utility arising out of operations hereunder shall
be distributed between the Utilities, on an interim and final basis, in the
same
manner that Shared Costs for that site are allocated between the Utilities
on an
interim and final basis, provided, however, that any recovery by either Utility
from an insurance policy of the cost of remediation shall not be considered
a
claim or suit arising from operations for purposes of this Section
2.4
18.
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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.
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19.
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As
hereinabove amended, the Agreement will remain in full force and
effect.
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IN
WITNESS WHEREOF, each Utility designated 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 indicted that the person is signing.
Dated:
March
6, 2000 Party:
Commonwealth
Edison Company
By:
/s/
XXXX X. O’TOOLE____________
(Signature)
Xxxx
X. X’Xxxxx Environmental
Services Manager
(Name
and
Title)
Dated:
February
23, 2000 Party:
Nicor
Gas
By:
___/s/
XXXXX X. XXXXXXX 2/23/00____________
(Signature)
Xxxxx
X. Xxxxxxx Vice
President______________
(Name
and
Title)
Attachment
D
Waste
Manifest Agency Agreement and Procedures
1. Pursuant
to Section 8(e) of the Agreement, as amended by Amendment No. 2 to the Interim
Agreement, each Utility has agreed to cooperate in the execution of any
manifests needed involving the removal of waste from any MGP site listed in
Attachment A.
2.
Each
Utility may elect to delegate authority on a site-by-site basis to a specific
individual(s) employed by either Utility (“Utility Agent”) to execute any
manifests needed involving the removal of waste from any MGP site subject to
the
Interim Agreement. The Utility Agent that executes any such manifests for a
particular site shall be employed by the Coordinator/Utility for the site.
Each
Utility also may agree to delegate agency authority to execute waste manifests
on a site-by-site basis to a specific individual(s) employed by the consultant
(“Consultant Agent”) previously found to be mutually acceptable pursuant to
Section 8(a) of the Interim Agreement for the particular site.
3. This
agency authority shall apply only to manufactured gas plant related wastes
removed from a site subject to the Agreement at which site the Utilities have
agreed to incur costs pursuant to Section 1.1 of the Agreement.
4. To
effectuate this agency authority for a particular MGP site, each Utility and,
as
appropriate, each approved contractor, shall execute a form substantially the
same in form and substance as Exhibit 1 (“Delegation Form”). A Delegation Form,
substantially the same in form and substance as Exhibit 1, shall be necessary
for each MGP site. Each Delegation Form shall include the
following:
a.
the
MGP site covered by the agency authority.
a.
the
dates upon which the agency authority commences and terminates;
b. the
specific names of the individual(s) who are authorized to execute manifests
on
behalf
of
the Utilities;
c.
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specific
directions that the agent execute the manifests as follows: “[insert name]
on behalf of Commonwealth Edison Company and Nicor
Gas”;
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d.
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specific
directions that any third-party agent ship wastes only to facilities
approved, in writing, by the Utilities and only by shipping companies
and
methods approved, in writing, by the Utilities;
and
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e.
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signatures
from personnel of both Utilities who are duly authorized to delegate
agency authority to execute waste
manifests.
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5. The
Coordinator/Utility shall be responsible for complying with any and all
exception, discrepancy, annual and other reporting obligations associated with
shipments covered by this agency agreement regardless of whether the manifests
for the site are executed by a Utility Agent or Consultant Agent. At the end
of
each calendar quarter of each year (i.e.,
March
31, June 30, September 30 and December 31), the Coordinator/Utility also shall
forward copies all manifests executed by the designated disposal facility and
returned to the Coordinator/Utility during that calendar quarter.