1.
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Definitions
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1.1. The following terms, as used anywhere in this Agreement, have the same meaning that they have in the ICA: “Shared Costs,”“Final Cost Allocation,”and “Coordinator/Utility.” |
2.
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Final
Cost Allocation
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2.1. Except as specified in
paragraph 2.3, with
respect to the Sites listed on Attachment A to this Agreement, the Final
Cost Allocation shall
be and shall result in Nicor being responsible for 51.73 percent, and
ComEd being responsible for 48.27 percent, of any and all past and future
Shared Costs.
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2.2. Except as specified in
paragraph 2.3, with
respect to the Sites listed on Attachment B to this Agreement, the Final Cost Allocation shall
be and shall result in Nicor being responsible for 0 percent, and ComEd
being responsible for 100 percent, of any and all past and future Shared
Costs. ComEd will become the Coordinator/Utility at
any and all Sites
listed on Attachment B other than the Site described on Attachment B as
“MGP Site at Clinton
and Jackson, Ottawa,
Illinois.”
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2.3. The parties recognize
that there may be Shared Costs that do not relate
exclusively either to the Sites listed on Attachment A or to the Sites
listed on Attachment B, but rather relate to the Utilities’MGP remediation program in general
(“Program
Costs”). Program Costs could
include, by way of example and without limitation, costs associated with
site prioritization,
costs associated with jointly owned equipment and costs associated with
producing documentation to provide general instructions to contractors
relating to the site
investigations and remediations. TheFinal Cost Allocation shall be and
shall result in Nicor
being responsible for 50 percent, and ComEd being responsible for 50
percent, of any and all past and future Program
Costs.
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2.4. On the date of ICC
approval of this Agreement, to the extent that either Utility has paid
more or less than the amounts determined by the percentages in
paragraphs 2.1 through 2.3 of this Agreement, appropriate credits and
debits, if required, will be made promptly to reflect the agreed upon
percentage of each Utility’s Final Cost Allocation, as
specified in paragraphs 2.1 through 2.3. These credits
and debits will be reflected in invoices for future remediation costs at
Sites listed on Attachment
A.
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3.
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ICC
Approval
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3.1. This
Agreement, including
the prudence and
reasonableness of the
Final Cost Allocations set forth in section 2 and the indemnities set forth in
section 5 below, is
subject to and contingent upon approval by the
ICC.
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3.2. The Utilities agree to
use their best efforts, and to act in good faith, promptly to seek and
obtain ICC approval of this Agreement, including the Final Cost Allocations and indemnities
set forth herein.
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3.3. In the event that the
ICC does not approve this Agreement, including the Final Cost Allocations and
indemnities set forth herein, this Agreement and the MOU shall
be void,but the ICA shall remain in full
force and
effect.
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3.4. In the event that the
ICC approves this Agreement, including the Final Cost Allocations and
indemnities set forth herein, (a) this Agreement shall supersede
the MOU, (b) this Agreement shall control in the event of any conflict
between this
Agreement and the MOUor any conflict between this
Agreement and the ICA, and (c) the date of such
approval shall be the Effective Date of this
Agreement.
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3.5. If, before the ICC
approvals
contemplated by this
Agreement become final and non-appealable, the Illinois General Assembly approves
a change in Illinois law such that either party reasonably anticipates
that it may be prevented by such change from obtaining, in whole or in
part, recovery from customers of Shared Costs, then either party so
potentially
affected by such
legislative action shall have the right to terminate the MOU and this
Agreement, by giving notice of such termination to the other party within
thirty (30) days of such change. In the event of such
termination, neither Utility shall have any continuing obligation under
either the MOU or this
Agreement.
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4.
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Pending
Arbitration
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4.1. Upon execution of this
Agreement, the Utilities will jointly request that the stay of Arbitration
be continued pending the ICC’s review and approval of this
Agreement, including the Final Cost Allocations and the
indemnities set forth
herein.
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4.2. If and when a final
Order of the ICC approving this Agreement, including the Final Cost Allocations and
indemnities set forth herein,becomes non-appealable, the
Utilities will request that the Arbitration be dismissed
with prejudice.
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4.3. In the event the ICC
does not approve
this Agreement,
including
the Final Cost
Allocations and indemnities set forth herein, or in the event of termination of
this Agreement as provided in paragraph 3.5, either Utility may reinstate
the Arbitration, in which case neither Utility will be deemed to have
waived any claim, right, or defense as a result of the MOU or this
Agreement, and neither the MOU nor this Agreement nor any communication or
document related to either will be
admissible in any way in any reinstated
Arbitration.
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5.
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Release
and Indemnity
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5.1. Effective upon a final
Order of the ICC approving this Agreement, including the Final Cost Allocations and
indemnities set forth herein, becoming non-appealable, each Utility releases the
other from all claims
for liability with respect to Shared Costs (other than as may arise out of
the agreed Final Cost Allocations described in section 2 and except as may be necessary to
effectuate the indemnities provided in paragraphs 5.2 and
5.3).
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5.2. Effective upon a final
Order of the ICC approving this Agreement, including the Final Cost Allocations and
indemnities set forth herein, becoming non-appealable,
each Utility hereby indemnifies and
agrees to defend and hold harmless the other against liability, including but not
limited to any liability arising out of or relating to remediation, to any
third party arising out of or relating to any of the Sites listed on
Attachment A, for
costs that are
recoverable through the indemnifying party’s rider
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described hereafter (as such rider(s) may be amended from time to time): ComEd’s Rider ECR (Ill. C. C. No. 4, sheet nos. 438 through 440.2, filed Aug. 11, 2006) or Nicor’s Rider 12 (Ill. C. C. No. 16, sheet nos. 68-70, filed Sept. 30, 2005). The indemnification provided in this paragraph 5.2 is limited to the amount necessary to allow the Utilities to share in such third-party liability in the same proportion as the Final Cost Allocations set out in paragraph 2.1. The indemnification provided in this paragraph is in addition to any other indemnification rights, common law or otherwise, that the parties may have. | |
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5.3. Effective upon a final
Order of the ICC approving this Agreement, including the Final Cost Allocations and
indemnities set forth
herein, becoming non-appealable,
ComEd hereby
indemnifies and agrees to defend and hold harmless Nicor against liability, including but not limited to any
liability arising out of or relating to remediation, to any third party
arising out of or relating to any of the Sites listed on Attachment B, for costs that are recoverable
through ComEd’s Rider ECR (Ill. C. C. No. 4,
sheet nos. 438 through 440.2, filed August 11, 2006), as such rider may be
amended from time to time. The indemnification
provided in this
paragraph is in addition to any other indemnification rights, common law
or otherwise, that the parties may
have.
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6.
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Entire
Agreement. This Agreement and the
Attachments to this Agreement (which are part of this Agreement)
constitute the entire understanding of the Utilities with
respect to this Agreement. No modification may be made to this
Agreement except one signed by both Utilities that expressly states that
it modifies this Agreement.
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7.
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Successors
and Assigns. This Agreement shall
be binding upon the
successors and assigns of the Utilities; provided that neither Utility can assign its rights
under this Agreement without the other Utility’s
consent.
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8.
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Applicable
Law. This
Agreement shall be interpreted under the laws of the State of
Illinois.
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9.
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Dispute
Resolution. The parties agree to attempt to
resolve any dispute arising out of or relating to this
Agreement or its breach through good faith
negotiation. If good faith negotiation fails to resolve the dispute,
then the parties agree to submit
the dispute to non-binding mediation and
acknowledge that the role of the mediator is not to render a decision, but
to assist the parties in reaching a mutually acceptable
resolution. No party shall be bound by anything said or done in
the course of mediation other than through an agreement in writing
executed by both
Utilities. If mediation fails to
settle the dispute, then the parties agree that the dispute
shall be settled by
arbitration under and in accordance with
the ICA.
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10.
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Nonwaiver. The
Utilities do not
admit liability at any of the Sites listed in Attachments A or
B. Except as otherwise provided in this Agreement, the
Utilities do not waive any rights or defenses, including rights to seek
recovery of any costs that are recoverable through their respective
environmental-cost-recovery riders, as described in paragraph
5.2.
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11.
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Method
of Execution. This Agreement 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
agreement.
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1.
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Aurora Gas Light Company, River
St. at North Avenue Bridge,
Aurora
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2.
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Belvidere Gas, Light & Fuel,
Locust Street, Belvidere
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3.
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Chicago Heights Gas Company, 17th & State
Street, Chicago Heights
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4.
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Cicero gas Company, Lombard &
Garfield, Oak Park
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5.
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Coal Products manufacturing
Company, North Broadway,
Lockport
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6.
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Freeport Gas, Light & Coke
Company, Liberty & Jackson St.,
Freeport
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7.
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Geneseo Electric Light &
Gas Company, Oakwood
& First St., Geneseo
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8.
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Illinois Northern Utility Company,
Market & 14th, DeKalb
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9.
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Illinois Northern Utilities
Company, 227 Miller, Sterling
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10. | Joliet Gaslight Company, Station B, North Broadway & Ingalls St., Joliet | |
11. | Kankakee Gas Company, Birch& Harrison St., Kankakee | |
12. | LaGrange Gas Company, 47th & Bluff St., LaGrange | |
13. | Lemont Gas, Light Company, Main & Lockport Rd., Lemont | |
14. | Lincoln Water, Light & Gas Company, Sangamon & Dacatur St., Lincoln | |
15. | Lockport Gas Company, 17th & I & M Canal, Lockport | |
16. | Mendota Gas Company, Fifth St. & Ninth Ave., Mendota | |
17. | Morris gas Company, Nettle & Jackson St., Morris | |
18. | Morrison Gas & Electric, Market & S. Orange, Morrison |
19. | Northwestern Gas, Light & Coke Company, 912 Clark St., Evanston | |
20. |
Northwestern Gas, Light & Coke
Company,
Maple & Vermont,
Blue Island
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21. |
Northwestern Gas, Light & Coke
Co./Niles Center Station, Oakton St. & McCormick Blvd.,
Skokie
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22. |
Ottawa Gas, Light & Coke
Company, Illinois & Walker St., Ottawa
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23. |
Pontiac Light & Water Company,
Vermillion & Water St., Pontiac
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24. |
Streator Gas, Light & Coke Co., Water
St. & Vermillion Rr.,
Streator
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1.
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MGP Site on Coal Gas Road,
DuQuoin, Illinois
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2.
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MGP Site on Bluff Street, Joliet,
Illinois
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3.
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MGP Site on Center Street,
Geneseo, Illinois
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4.
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MGP Site at Clinton and Jackson,
Ottawa, Illinois
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5.
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Dixon I (2nd
St.)
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6.
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Dixon II (River &
Perry)
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7.
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DuQuoin
(Chestnut)
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8.
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Elgin
TDC-570-0044
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9.
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Kenilworth
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10. | Mendota (Main St.) | |
11. | Murphysboro I (Walnut) | |
12. | Murphysboro II (Big Muddy) | |
13. | Rockford (Avon & Cedar) | |
14. | Rockford II (Mulberry) |