Nicor Gas Company
Form 10-Q
Exhibit 10.2
INTERIM COOPERATIVE
AGREEMENT
This agreement
is made this 28 th day of October 1993 by and between
Commonwealth Edison Company (“Edison”), an Illinois
corporation, and Northern Illinois Gas Company
(“NI-Gas”), an Illinois corporation, (collectively,
“Utilities”) to provide an interim cooperative
arrangement for the Utilities to address certain issues at certain
former manufactured gas plant (“MGP”) sites in
Illinois.
WHEREAS,
without admitting any liability, Edison and NI-Gas currently
believe that certain actions should be taken with regard to
particular MGP sites; and
WHEREAS,
without admitting any liability, Edison and NI-Gas may agree in the
future that certain actions should be taken with regard to other
MGP sites; and
WHEREAS, Edison
and NI-Gas have determined that it is in the public interest and in
their mutual best interest to work together on an interim basis to
perform mutually acceptable actions with regard to certain MGP
sites; and
WHEREAS, Edison
and NI-Gas have determined that it is in their mutual best interest
to pursue negotiation, and binding arbitration to the extent set
forth in this Agreement, to attempt to resolve issues regarding
payment of the cost of performing actions at certain MGP
sites;
NOW THEREFORE,
based on the covenants and mutual promises contained herein, Edison
and NI-Gas agree as follows.
|
|
1.
|
Interim Cost
Allocation.
|
|
|
1.1
|
If either of
the Utilities believes that costs should be incurred at one or more
MGP sites listed on Attachment A (“Site List”), it
shall contact the other and the Utilities shall meet as soon as
reasonably possible to discuss whether they agree that costs should
be incurred and, if so, the nature of those costs. If the Utilities
reach agreement on those issues, each of the Utilities shall pay
50% of the agreed upon costs (“Interim Cost
Allocation”), subject to the final allocation of costs
between the Utilities pursuant to Sections 4, 5 and 6 of this
Agreement (“Final Cost Allocation”). If either of the
Utilities believes that an MGP site should be added to the Site
List, it shall contact the other and the Utilities shall meet as
soon as reasonably possible to discuss whether they agree that the
site should be added.
|
|
|
1.2
|
If, after
discussion, the Utilities do not agree that costs should be
incurred for a particular site listed on Attachment A, they may
pursue or continue to pursue any and all rights which they would
otherwise have under applicable law; provided, however, that
neither of the Utilities may commence litigation against the other
regarding any site on the Site List unless this Agreement has been
terminated in accordance with Section 14 or 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 (“Initial Litigation Notice”). The
Initial Litigation Notice shall specify the MGP site or sites that
would be the subject of the litigation, and the Utility sending
such notice may commence litigation on the ninetieth (90
th ) day after the date of the Initial Litigation Notice
(said 90 th day being hereinafter called the
“Litigation Date”). On the Litigation Date, the Utility
that received the Initial Litigation Notice may commence litigation
against the other Utility regarding any MGP site or sites on the
Site List, provided that within forty (40) days of the date of the
Initial Litigation Notice the Utility receiving such notice sent
the other Utility written notice (“Responsive Litigation
Notice”), by telecopy and U.S. main, of its intent to
commence litigation, including an identification of the site or
sites that would be the subject of the litigation to be initiated
by it. If a Utility commences litigation in accordance with this
Section 1 without terminating this Agreement in accordance with
Section 14, this Agreement shall be terminated with regard to the
site or sites subject to the litigation (“Termination of
Agreement for Litigated Sites”), and the provisions of
Section 14 (b) and (c) shall be applicable to such termination. A
Utility may not commence litigation in accordance with this Section
1 for a site for which any arbitration proceeding has begun under
this Agreement.
|
|
|
2.1
|
The Utilities
in the Interim and Final Cost Allocation under this Agreement shall
seek recovery from each other solely for Shared Costs, which shall
be defined as third party costs of investigation and/or remediation
of a particular MGP site (which investigation and/or remediation
has been agreed to by both Utilities in accordance with Section 1
of this Agreement) and any expenditures incurred by the
Coordinator/Utility for audits under Section 17(b) or in
prosecuting, defending, compromising, settling or paying suits or
claims pursuant to Section 2.4 of Attachment C. Examples of Shared
Costs are the costs of third party investigation and/or remediation
of an MGP site (which the Utilities have agreed to perform in
accordance with Section 1 of this Agreement) pursuant
to:
|
|
|
a)
|
a work plan
agreed upon by the Utilities in accordance with Attachment
C;
|
b)
a work plan ordered by a federal or
state regulatory agency;
|
|
c)
|
a work plan
ordered by a court with appropriate jurisdiction, involving
litigation with a third party.
|
|
|
2.2
|
Examples of
costs that are not Shared Costs under this Agreement
are:
|
|
|
a)
|
a
Utility’s payroll costs, overhead or internal or external
legal costs (except for external legal costs that the Defending
Utility may incur in accordance with Section 2.4 of Attachment
C);
|
|
|
b)
|
a
Utility’s ordinary costs of owning a particular former MGP
site (including, but not limited to, taxes, insurance, maintenance
and other similar costs);
|
|
|
c)
|
costs incurred
by a Utility in pursuit of recovery of insurance proceeds from
insurance carriers;
|
|
|
d)
|
costs of
prosecuting, defending, compromising or settling third party
litigation relating to an MGP site, except to the extent allowed by
Section 2.4 of Attachment C; and
|
|
|
e)
|
costs incurred
by either Utility prior to the date of this Agreement, unless the
Utilities have agreed pursuant to Section 3 to incur such
costs.
|
|
|
2.3
|
Nothing in this
Agreement shall limit the types of costs associated with MGP sites
that one Utility can recover from the other in
litigation.
|
|
|
3.
|
Costs
Currently Subject to Interim Cost Allocation.
|
|
|
3.1
|
Edison and
NI-Gas have incurred and/or agree to incur the following costs as
Shared Costs, subject to the terms of this Agreement, including,
but not limited to, the Final Cost Allocation procedures set forth
in Sections 4, 5 and 6 of this Agreement:
|
|
|
a)
|
the cost of any
settlement - acceptable to both Edison and NI-Gas -- and the cost
of any judgment entered against either or both Utilities in
Alcan-Toyo America, Inc. v. Northern Illinois Gas Co. , No.
92C 7142 (N.D. Ill. filed 10/27/92);
|
|
|
b)
|
the cost of air
monitoring - - and any other related activities acceptable to both
NI-Gas and Edison - - at the Oak Park site; and
|
|
|
c)
|
the cost of
response activities - - acceptable to both NI-Gas and Edison - - at
the Streator site.
|
|
|
3.2
|
The following
costs shall be subject to audit and final allocation as Shared
Costs in accordance with Sections 4, 5 and 6 of this
Agreement:
|
|
|
a)
|
with regard to
the Streator site, approximately $700,000 of costs that Edison has
incurred at the site prior to the date of this Agreement;
and
|
|
|
b)
|
with regard to
the Alcan site, approximately $45,000 of costs that NI-Gas has
incurred at the Alcan site prior to the date of this
Agreement.
|
|
|
4.
|
Final Cost
Allocation.
|
4.1
The final allocation of Shared
Costs shall be determined on a site-by-site basis through
negotiation or arbitration as set forth in this Agreement, although
the Utilities may, if they so agree, aggregate individual sites for
Final Cost Allocation. If a Utility, pursuant to the Interim Cost
Allocation, has paid a greater percentage of Shared Costs for an
MGP site or group of sites than is allocated to it by the Final
Cost Allocation, the other Utility shall pay it the difference
between the amount it actually paid pursuant to the Interim Cost
Allocation and the amount allocated to it by the Final Cost
Allocation. The time for Final Cost Allocation shall be determined
as follows:
|
|
a)
|
During the
twelve months following the completion of both a Phase I and a
Phase II investigation at a particular site, the Utilities shall
attempt to negotiate the final allocation of the Shared Costs
already incurred and the estimated future costs to be incurred in
any Phase III remediation. If the Utilities are unable to agree
within such twelve months, either Utility may seek binding
arbitration as provided for in Section 5 after the conclusion of
such twelve months; or
|
|
|
b)
|
If the
Utilities have completed a Phase I investigation, either Utility
may seek binding arbitration as provided for in Section 5 no
earlier than three years following the completion of the Phase I
investigation at a particular site; or
|
|
|
c)
|
If the
Utilities are unable to agree to continue to fund work at a
particular site on a 50/50 interim allocation basis at anytime
during Phase I, Phase II or Phase III, and for any reason
(including, but not limited to, an inability to agree on a
consultant or the type of remediation to be performed in Phase
III), either Utility may commence arbitration in accordance with
Section 5; but in no event prior to two years after the date of
this Agreement; or
|
|
|
d)
|
By Section 4.4
of Attachment C to this Agreement.
|
|
|
4.2
|
For purposes of
this Section, Phase I, Phase II and Phase III are defined as
follows:
|
|
|
a)
|
A Phase I
investigation is an investigation to collect data needed to
adequately characterize an MGP site for the purpose of developing
and evaluating effective response action alternatives. This
investigation may be conducted in one or more stages.
|
|
|
b)
|
A Phase II
investigation is the process of evaluating the data from the Phase
I investigation in order to select a response action. A Phase II
investigation is complete when the Utilities have agreed upon a
response action that will be implemented for MGP site.
|
|
|
c)
|
A Phase III
remediation is the implementation of a response action for a
site.
|
|
|
5.
|
Initiation
of Arbitration and Selection of Arbitrators.
|
|
|
5.1
|
Subject to
Section 4, one Utility shall initiate the arbitration
(“Initiating Utility”) by requesting the Center For
Public Resources, Inc. to send to it and the other Utility a list
of nine (9) potential arbitrators (“List of Potential
Arbitrators”). The initiating Utility shall inform the Center
for Public Resources, Inc. that:
|
|
|
a)
|
Before an
arbitrator is included on the List of Potential Arbitrators, the
Center for Public Resources, Inc. should confirm with the
arbitrator that he/she (i) is interested in performing the
arbitration and could do so in accordance with the schedule set
forth in this Agreement, and (ii) does not have any conflict of
interest that would interfere with impartial decision
making;
|
|
|
b)
|
Each potential
arbitrator must have legal training and experience in environmental
matters and contract dispute resolution; and
|
|
|
c)
|
The List of
Potential Arbitrators must be accompanied by a curriculum vitae for
each arbitrator.
|
|
|
5.2
|
Within thirty
(30) days of receipt of the List of Potential Arbitrators by both
Utilities, the Initiating Utility shall select an arbitrator from
it and mail to the other Utility notice of the selection. Within
forty-five (45) days of the receipt of the List of Potential
Arbitrators the other Utility shall select an arbitrator from it
and mail to the initiating Utility notice of the selection. Within
sixty (60) days of the receipt of the List of Potential
Arbitrators, the Utilities shall meet to select a third arbitrator
from the List of Potential Arbitrators. If the Utilities cannot
agree on a third arbitrator during their meeting, before concluding
such meeting they shall select an arbitrator by having each
Utility—beginning with the Initiating Utility—alternate
in deleting one name from the List of Potential Arbitrators until
only one name remains (other than the names of the two (2)
arbitrators previously selected by the Utilities). That name shall
be the third arbitrator. The date such arbitrator is selected shall
be the Commencement Date for purposes of arbitration.
|
|
|
5.3
|
Each party
shall pay the costs of the arbitrator it has selected and one-half
the costs of the third arbitrator together with its own costs of
arbitration. Such costs shall not be Shared Costs within the
meaning of Section 2.
|
|
|
6.
|
Arbitration
Procedure.
|
|
|
6.1
|
Within ten (10)
days of the Commencement Date, the Utilities shall provide the
arbitrators a copy of this Section 6 and a copy of all publicly
available documents or portions of such documents, including those
obtained from the U.S. Environmental Protection Agency or the
Illinois Environmental Protection Agency, which the Utilities
believe will provide the arbitrators with useful background
information about the site (or sites) that is the subject of the
arbitration. If the Utilities disagree regarding which documents
should be provided to the arbitrators, each Utility may provide
whatever documents it chooses.
|
|
|
6.2
|
Within thirty
(30) days (“Document Production Date”) of the
Commencement Date, each Utility shall submit to the other all
non-privileged documents that it has regarding the site (or sites)
that is the subject of the arbitration, as well as a
certification—from its Vice President with responsibility for
environmental affairs—stating that the Utility is providing
all such documents.
|
|
|
6.3
|
Within thirty
(30) days after the Document Production Date, the Utilities and the
arbitrators shall have a Scheduling Conference. At this conference,
the Utilities and the arbitrators shall:
|
|
|
a)
|
decide what, if
any, additional discovery shall be conducted and establish a
schedule for such discovery;
|
|
|
b)
|
schedule the
filing of written testimony by the Utilities, a hearing for
cross-examination, the filing of memoranda by the Utilities prior
to oral argument, the oral argument, the filing of a brief by each
Utility after the oral argument, and the provision to the Utilities
by the arbitrators of the Final Cost Allocation Report
(“FCAR”) which shall be binding on the Utilities;
and
|
|
|
c)
|
decide any
other issues that the Utilities and the arbitrators agree should be
decided during the Scheduling Conference to facilitate the
arbitration.
|
If the
Utilities disagree about any matter discussed during the Scheduling
Conference, the arbitrators shall resolve such matter. The
Utilities and the arbitrators shall take all steps reasonably
possible to ensure that the arbitration process will be
cost-effective, efficient and fair.
|
|
6.4
|
Notwithstanding
any other provision of this Agreement, no Utility shall be required
to disclose to the other Utility or to the arbitrators any
communications with, or work product of, its attorneys.
|
|
|
6.5
|
The arbitrators
may, in their sole discretion, communicate in writing with any
Utility to inquire about any gaps in the records, or to request
further information on any matter relevant to the development of an
allocation, and shall provide a copy of such inquiry to the other
Utility. Each Utility shall use its best efforts to comply in
writing with an inquiry by the arbitrators pursuant to this
paragraph and shall provide a copy of its response to the other
Utility.
|
|
|
6.6
|
The provisions
of this Agreement shall govern arbitration performed pursuant to
this Agreement; provided that the Center for Public
Resources’ Rules for Non-Administered arbitration of Business
Disputes (1990) (“CPR’s Rules”), shall govern the
procedural issues, if any, that are not addressed by this
Agreement, although CPR’s Rules shall not govern any action
that Edison or NI-Gas may have against CPR or any arbitrator in
connection with any arbitration performed under this Agreement. In
the event of any conflict between the provisions of this Agreement
and the procedural provisions of CPR’s Rules, this
Agreement’s provisions shall govern. CPR’s Rules are
set forth in Attachment B.
|
|
|
6.7
|
The arbitrators
shall be responsible for developing the Final Cost Allocation in
accordance with the procedures set forth in this Agreement. In
developing the Final Cost Allocation, the arbitrators shall
consider all documents, information and comments or other evidence
submitted to or solicited by the arbitrators pursuant to this
Agreement.
|
|
|
6.8
|
The parties
agree that notwithstanding the determination by the arbitrators in
accordance with this Agreement, neither party shall be allocated
less than 20% or more than 80% of the Shared Costs in the Final
Cost Allocation and the Final Cost Allocation Report. For
instance,
|
|
|
a)
|
a determination
by the arbitrators that one party should pay only 10% of the total
Shared Costs would mean that the party would be allocated 20% in
the Final Cost Allocation and FCAR, and the remaining party would
be allocated 80%; and
|
|
|
b)
|
a determination
that one party should be allocated 40% of the total Shared Costs
would mean that the party would pay 40% and the remaining party 60%
as the Final Costs Allocation. The arbitrators shall be informed
that in no event shall the Final Cost Allocation of FCAR assign to
either party less than 20% or more than 80% of the Shared
Costs.
|
|
|
6.9
|
The agreement
of a majority of the arbitrators shall be the judgment of the
arbitrators.
|
|
|
6.10
|
The FCAR
tendered by the arbitrators shall be final and binding. If one
Utility does not comply with the FCAR, the other Utility may have
judgment entered thereon and the FCAR shall be enforced in or by
any court having jurisdiction thereof. Such judgment shall be the
judgment refered to in Section 7.1 and 7.4.
|
|
|
6.11
|
The
arbitrators’ sole responsibility shall be to determine an
allocation of the Shared Cost for the site or sites subject to the
arbitration. After a Final Cost Allocation has been determined for
a site, that allocation shall binding upon the Utilities for all
past or future Shared Costs for that site (incurred after the date
of this Agreement or specified in Section 3) that the Utilities
agree to incur, and/or for which the Utilities are legally liable.
If one Utility decides that Shared Costs should be incurred at a
site for which a FCAR has been issued, but the other Utility
refuses to contribute to those costs, the former Utility may
commence litigation against the latter Utility to establish the
latter’s liability; provided, however, that if the latter
Utility is found liable, the Shared Costs will be allocated among
the Utilities pursuant to the FCAR. The arbitrators shall not have
the right to:
|
|
|
a)
|
enforce an
allocation;
|
|
|
b)
|
award damages
or punitive damages;
|
|
|
c)
|
grant
injunctive relief or specific performance; or
|
|
|
d)
|
require any
Utility to follow a specific work plan or course of remediation for
a particular site.
|
|
|
6.12
|
It is the hope
and intention of the parties that common questions of fact and law
will not need to be arbitrated at each site and that after one or
two arbitrations the parties will be able to stipulate as to such
common questions. Notwithstanding the foregoing, the doctrines of
collateral estoppel and res judicata shall not be applicable to any
arbitration.
|
|
|
7.1
|
The parties
agree that prejudgment interest shall be available to the Utility
which is finally determined to have paid as its Interim Cost
Allocation more than its proportionate share of the final allocated
Shared Costs. For example, if a Utility pay 50% of the interim
allocated costs and the final Shared Costs allocated to that
Utility represent 40% of that total, the Utility would be entitled
to interest on 10% of the interim allocated costs from the date of
payment of such costs.
|
|
|
7.2
|
Interest shall
be based on the U.S. Treasury rate for three year notes in effect
from time to time from the date of this Agreement, plus 50 basis
points.
|
|
|
7.3
|
Interest shall
not be paid on amounts already incurred prior to the date of this
Agreement by both parties as set forth in small subparagraphs a)
and b) of Section 3.2 of this Agreement.
|
|
|
7.4
|
The interest
rate set forth in Section 7.2 shall also apply as post judgment
until the judgment is paid.
|
|
|
8.
|
Performance
of Activities at a Site.
|
If the
Utilities decide to incur costs at a site pursuant to the terms of
this Agreement, they shall:
|
|
a)
|
select mutually
acceptable consultants for the performance of services agreed to by
the Utilities;
|
|
|
b)
|
decide whether
one Utility will act as the coordinator of agreed upon activities
involving the site (referred to as the Coordinator/Utility in
Attachment C) provided, however, that if a coordinator is selected,
both Utilities will participate in any significant decision making
as more fully set forth in Attachment C;
|
|
|
c)
|
exchange their
technical information regarding that site;
|
|
|
d)
|
cooperate
reasonably with each other regarding agreed upon activities
involving the site as more fully set forth in Attachment
C;
|
|
|
e)
|
each Utility
will sign as a cogenerator of any manifests needed involving the
removal of waste;
|
|
|
f)
|
cooperate
reasonably with each other in any proceedings (including prudence
reviews), regarding the recovery from ratepayer, insurance
carriers, or other third parties of costs incurred pursuant to this
Agreement, which cooperation shall include: (i) providing documents
and information regarding costs incurred and activities performed
under this Agreement; and (ii) allowing employees to testify
regarding such costs and activities; provided, however, that no
Utility shall be required to disclose work product of or
communications with the Utility’s legal counsel.
|
|
|
9.
|
Reservation
of Rights.
|
This Agreement
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, provided, however, that:
|
|
a)
|
except as
provided in Section 1 above, during the term of this Agreement,
neither of the Utilities may commence litigation against the other
regarding claims associated with manufactured gas plants that arise
from, or are related to, any of the sites on the Site List unless
suit is brought by a third party or government agency against a
Utility concerning a site on the Site List, in which case all
claims, cross claims or third-party claims may be brought by each
Utility against the other; provided, however, that to the maximum
extent possible the Utilities shall attempt to resolve their
differences under the terms of this Agreement;
|
|
|
b)
|
neither Edison
nor NI-Gas will assert in any proceeding any challenges to costs
that the Utilities agreed to incur after the date of this Agreement
or for costs identified under Section 3 of this Agreement,
including, but not limited to, challenges to the reasonableness of
the costs or assertions that the costs were not consistent with the
National Contingency Plan;
|
|
|
c)
|
during the term
of the Agreement, this Agreement tolls the statute of limitations
for any cause of action that Edison or NI-Gas may have against each
other regarding possible remediation arising from or relating to
any of the sites on the Site List.
|
|
|
10.
|
Settlement
Negotiations.
|
The Utilities
agree that all activities undertaken pursuant to this Agreement
constitute negotiations for the purpose of compromise and
settlement. Neither the fact of participation of either Utility in
the Agreement, nor any documents or other information generated by
either Utility or by the arbitrators pursuant to this Agreement,
may be introduced as evidence in any other proceeding, except in
proceedings regarding a request for regulatory approval of the
Agreement, or the recovery from ratepayers, insurance carriers or
other third parties (collectively, “Third Party
Proceeding”) of costs incurred pursuant to this Agreement and
except for those documents or such information which is in the
public domain or obtainable in accordance with the following
provisions of this section. The arbitrators shall be prohibited
from testifying on matters related to an MGP site subject to
arbitration under this Agreement or to this Agreement, in any
judicial or administrative proceeding, except for Third Party
Proceedings and except in proceedings to enforce the arbitration
judgment. No Utility may call as a witness, or seek discovery from,
the arbitrators, or any of the arbitrators’ partners, agents,
employees, or representatives, in any judicial or administrative
proceeding, except for Third Party Proceedings related to an MGP
site subject to arbitration under this Agreement, or to this
Agreement. Nothing in this Agreement shall be construed to prohibit
a Utility from using that Utility’s own documents, publicly
available documents or documents otherwise available to the Utility
other than from activities conducted under this Agreement, in any
judicial or administrative proceeding. Nothing in this Agreement
shall be construed to limit or otherwise affect the discovery
rights of any Utility to the Agreement against the other in any
other proceeding with respect to documents or information not
generated by the arbitrators.
|
|
a)
|
Except as
provided to the contrary in Section 10, each Utility agrees that
all documents and information marked confidential and received from
the other Utility or its counsel, pursuant to the Agreement, and
all reports and communications from the arbitrator, shall be held
in strict confidence by the receiving Utility.
|
|
|
b)
|
Each Utility
shall take all necessary and appropriate measures to ensure that
any person who is granted access to any documents or information
received pursuant to this Agreement is familiar with the
confidentiality terms of this Agreement and complies with the
confidentiality obligation.
|
|
|
c)
|
The
confidentiality obligations of the Utility shall remain in full
force and effect, without regard to whether a Utility terminates
the Agreement, or this Agreement results in a final allocation
among the parties. The provisions of this section shall not apply
to information which is now or hereafter becomes public knowledge
without violation of the Agreement, which is sought and obtained
from a Utility pursuant to applicable discovery procedures and not
otherwise protected from disclosure, which is available to a
Utility other than from activities conducted under this Agreement,
or which a Utility is required by law to disclose (provided that
the disclosing Utility notifies the other Utility of such
disclosure).
|
|
|
d)
|
The submission
of document or information to the arbitrators does not constitute a
waiver of any Utility’s right to argue that such documents or
information are not discoverable in another proceeding.
|
|
|
12.
|
Preservation
of Privilege.
|
Each Utility
agrees that the disclosure of any documents or information to the
arbitrators or to another Utility shall not be deemed a waiver of
the attorney-client privilege, work product, joint defense or
self-evaluation or any other privilege by the Utility providing the
documents or information.
The Utilities
may make provision for the addition of new parties after the
effective date of this Agreement. The Utilities may impose such
additional terms and conditions upon prospective new parties as may
be agreed to by the Utilities.
Either of the
Utilities may terminate this Agreement upon sixty (60) days written
notice to the other, provided that:
|
|
a)
|
any arbitration
proceeding begun prior to the termination of this Agreement shall
be concluded in accordance with this Agreement, notwithstanding the
intervening termination;
|
|
|
b)
|
any obligations
the Utilities have incurred to third parties (e.g., contractors,
government agencies) in accordance with this Agreement will not be
terminated, and such obligations will be fulfilled in accordance
with the terms of this Agreement, unless both Edison and NI-Gas
agree to such termination;
|
|
|
c)
|
The following
sections of this Agreement shall survive termination: Section 6.10,
6.11, 7, 8(f), 9, 10, 11, 12, 15, 17, 19 through 23, and Sections
2.5 and 4.5 of Attachment C.
|
Nothing herein
shall be deemed to create a partnership, joint venture or
principal/agent relationship between Edison and NI-Gas.
This Agreement
and Attachments hereto (which Attachments are part of this
Agreement) constitute the entire understanding of Edison and NI-Gas
with respect to the Agreement’s subject matter. No
modification may be made to this Agreement except one signed by
both Utilities which expressly states that it is a modification of
the Agreement.
|
|
a)
|
The
Non-Coordinator/Utility, upon written notice to Coordinator/Utility
thirty days in advance, shall have the right to audit the accounts
and records of Coordinator/Utility and/or its contractors relating
to the accounting hereunder for any calendar year, within the
twenty-four month period following the end of such calendar year.
Provided, however, that the Non-Coordinator/Utility must take
written exception to and make claim upon the Coordinator/Utility
for all discrepancies disclosed by said audit within said
twenty-four month period. Where there are two or more
Non-Coordinators/Utilities, the Non-Coordinators/Utilities shall
make every reasonable effort to conduct joint or simultaneous
audits in a manner which will result in a minimum of inconvenience
to the Coordinator/Utility.
|
|
|
b)
|
In the event
that the Coordinator/Utility is required by law or under the
Agreement to employ a public accounting firm to audit the records
of the activities for which the Utility is the Coordinator/Utility,
the cost thereof shall be a Shared Cost, and a copy of the audit
shall be furnished to each Utility.
|
|
|
c)
|
Except in the
event that an audit is conducted under subparagraph b above, the
cost shall be borne by the Non-Coordinator/Utility.
|
|
|
d)
|
If the
Coordinator/Utility is subject to an audit required by the Illinois
Commerce Commission, it shall notify the other Utility prior to the
commencement of such audit.
|
|
|
18.
|
Alternative
Dispute Resolution.
|
If the
Utilities cannot reach agreement on any issue arising in connection
with this Agreement, they will consider using alternative dispute
resolution- -including, but not limited to, mediation, arbitration,
or reliance upon the decision of a mutually acceptable
environmental consultant- -to resolve such dispute.
|
|
19.
|
Successors
and Assigns.
|
This Agreement
shall be binding upon the successors and assigns of the Utilities;
provided that no Utility can assign its rights under the Agreement
without the other Utility’s consent.
This Agreement shall be interpreted under the
laws of the State of Illinois.
If any
provision of this Agreement is deemed invalid or unenforceable, the
balance of this Agreement shall remain in full force and
effect.
|
|
22.
|
Effective
Date, Method of Execution.
|
The effective
date of this Agreement shall be October 28, 1993. 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 instrument.
Nothing in this
Agreement shall be construed to waive any rights, claims,
privileges, or defenses which any Utility shall have against any
other Utility or any other person or entity.
|
|
24.
|
Exchange of
Insurance Policies. If
one Utility learns of the existence of a general liability
insurance policy which it believes may provide coverage to the
other Utility with regard to an MGP Site, the former shall notify
the latter of such a policy.
|
The captions in
this Agreement are for convenience only and shall not affect the
construction or interpretation of any term or provision
hereof.
If the
Utilities incur Shared Costs that they agree that they need to
incur prior to the approval or disapproval of this 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 this 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.
IN WITNESS WHEREOF, each Utility designated
below enters into this Agreement. Each person signing this
Agreement represents and warrants that he or she has been duly
authorized to enter into this Agreement by the company or entity on
whose behalf it is indicated that the person is signing.
Dated
October 25, 1993
Party : Northern Illinois Gas
Company _
By: _/s/
RICHARD J. LANNON Richard J. Lannon, Vice
President
Designated
Representative for Receipt of Notice and Invoices
Name: David
L. Cyranoski, Secretery
Address:
1844 Ferry Road, Naperville, IL 60563-9600
Telephone
Number: (708) 983-8676
Facsimile
Machine Number: (708) 983-8966
Dated
10/28/93
Party: Commonwealth Edison
Company
By: /s/
ROBERT J. MANNING Robert J. Manning, Senior
Vice President
Designated
Representative for Receipt of Notice and Invoices
Name: Thomas
E. Hemminger
Address:
Commonwealth Edison Company, One First National Plaza, 35
th Floor, Chicago, Illinois 60603
Telephone
Number: (312) 394-4433
Facsimile
Machine Number: (312) 394-4466
|
1.
|
Aurora Gas
Light Company
|
|
|
|
River St. at
North Avenue Bridge
|
Aurora
|
|
|
|
|
|
2.
|
Belvidere Gas,
Light & Fuel
|
|
|
|
Locust
Street
|
Belvidere
|
|
|
|
|
|
3.
|
Chicago Heights
Gas Company
|
|
|
|
17
th & State Street
|
Chicago
Heights
|
|
|
|
|
|
4.
|
Cicero Gas
Company
|
|
|
|
Lombard &
Garfield
|
Oak
Park
|
|
|
|
|
|
5.
|
Coal Products
Manufacturing Company
|
|
|
|
North
Broadway
|
Lockport
|
|
|
|
|
|
6.
|
Freeport Gas,
Light & Coke Company
|
|
|
|
Liberty &
Jackson St.
|
Freeport
|
|
|
|
|
|
7.
|
Geneseo
Electric Light & Gas Company
|
|
|
|
Oakwood &
First St.
|
Geneseo
|
|
|
|
|
|
8.
|
Illinois
Northern Utility Company
|
|
|
|
Market & 14
th
|
DeKalb
|
|
|
|
|
|
9.
|
Illinois
Northern Utilities Company
|
|
|
|
227
Miller
|
Sterling
|
|
|
|
|
|
10.
|
Joliet Gaslight
Company, Station B
|
|
|
|
North Broadway
& Ingalls St.
|
Joliet
|
|
|
|
|
|
11.
|
Kankakee Gas
Company
|
|
|
|
Birch &
Harrison St.
|
|
|
|
|
|
|
12.
|
LaGrange Gas
Company
|
|
|
|
47
th & Bluff St.
|
|
|
|
|
|
|
13.
|
Lemont Gas,
Light Company
|
|
|
|
Main &
Lockport Rd.
|
|
|
|
|
|
|
14.
|
Lincoln Water,
Light & Gas Company
|
|
|
|
Sangamon &
Dacatur St.
|
|
|
|
|
|
|
15.
|
Lockport Gas
Company
|
|
|
|
17
th & I & M Canal
|
|
NOTE: Edison
and NI-Gas are not admitting liability at any of these sites, or
waiving any rights or defenses.
Former MGP/Site Address
(cont’d)
|
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
|
|
|
|
|
|
21.
|
Northwestern
Gas, Light & Coke Co./
|
|
|
|
Niles Center
Station
|
|
|
|
Oakton St.
& McCormick Blvd.
|
Skokie
|
|
|
|
|
|
22.
|
Ottawa Gas,
Light & Coke Company
|
|
|
|
Illinois &
Walker St.
|
Ottawa
|
|
|
|
|
|
23.
|
Pontiac Light
& Water Company
|
|
|
|
Vermillion
& Water St.
|
Pontiac
|
|
|
|
|
|
24.
|
Streator Gas,
Light & Coke Co.
|
|
|
|
Water St. &
Vermillion Rr.
|
Streator
|
NOTE: Edison
and NI-Gas are not admitting liability at any of these sites, or
waiving any rights or defenses.
TO DEVELOP ALTERNATIVES TO LITIGATION
RULES AND COMMENTARY FOR
NON-ADMINISTERED
ARBITRATION OF BUSINESS
DISPUTES
CENTER FOR PUBLIC RESOURCES,
INC.
366 Madison Avenue New York, N.Y.
10017 Tel (212) 949 6490 Fax (212) 949 8859
CPR COMMITTEE ON PRIVATE
ADJUDICATION
GERALD AKSEN,
CHAIRMAN
Reid & Priest
GEOFFRY D.C.
BEST
LeBoeuf, Lamb, Leiby &
MacRae
RICHARD
CHERNICK
Gibson, Dunn &
Crutcher
WINSLOW
CHRISTIAN
Senior Vice President and Director
of Litigation
Bank of America
MARTIN
GLENN
O’Melveny &
Myers
ROBERT
GORSKE
Vice President and General
Counsel
Wisconsin Electric Power
Company
JAMES P.
GROTON
Sutherland, Asbill &
Brennan
BERTHOLD H.
HOENIGER
Bailey, Marshall &
Hoeniger
STEPHEN D.
HOUCK
Donovan Leisure Newton &
Irvine
THE HONORABLE JOSEPH W.
MORRIS
Gable & Gotwals
MICHAEL J.
PLISHNER
McCutchen, Doyle, Brown &
Enersen
PROFESSOR MAURICE
ROSENBERG
Columbia Law School
JOHN M.
TOWNSEND
Hughes Hubbard & Reed
ROBERT VON
MEHREN
Debevoise & Plimpton
CLIFFORD L.
WHITEHILL
Vice President and General
Counsel
General Mills, Inc.
CPR
STAFF
PETER H.
KASKELL
Senior Vice President
TABLE OF
CONTENTS
INTRODUCTION
STANDARD
PROVISIONS
|
|
B.
|
Existing
Dispute Submission Agreement
|
THE
RULES
|
|
A.
|
General and
Introductory Rules
|
Rule
1.
Scope of Application
|
|
B.
|
Rules with
Respect to the Tribunal
|
Rule
5.
Selection of Arbitrators by the
Parties
Rule
6.
Selection of Arbitrators by
CPR
Rule
7.
Qualifications, Challenges and
Replacement of Arbitrators
Rule
8.
Challenges to the Jurisdiction of
the Panel
|
|
C.
|
Rules with
Respect to the Conduct of the Arbitral Proceedings
|
Rule
9.
General Provisions
Rule
11.
Evidence and Hearings
Rule
12.
Interim Measures of
Protection
Rule
14.
Failure to Comply with
Rules
Rule
17.
Settlement and Mediation
Rule
18.
Actions against CPR or
Arbitrators
CENTER FOR PUBLIC
RESOURCES
RULES FOR
NON-ADMINISTERED
ARBITRATION OF BUSINESS
DISPUTES
INTRODUCTION
These Rules for Non-Administered Arbitration of
Business Disputes (the “Rules”) have been developed by
a committee of leading arbitrators and practitioners convened by
the Center for Public Resources (“CPR”) and have been
adopted by CPR. CPR itself will not undertake to function as an
administrative body with respect to the Rules. Under the Rules,
CPR’s responsibilities are limited to acting as the
appointing authority in certain circumstances (see Rule 6) and
deciding challenges to an arbitrator (see Rule 7.7).
STANDARD
PROVISIONS
The Rules, which are intended in particular for
use in complex commercial arbitrations, may be adopted by parties
wishing to do so by using one of the following standard
provisions:
A. Pre-dispute
Clause
“Any
controversy or claim arising out of or relating to this contract,
or the breach, termination or validity thereof, shall be settled by
arbitration in accordance with the Center for Public Resources
Rules for Non-Administered Arbitration of Business Disputes, by (a
sole arbitrator) (three arbitrators, of whom each party shall
appoint one) (three arbitrators, none of whom shall be appointed by
either party). The arbitration shall be governed by the United
States Arbitration Act, 9 U.S.C. § 1-16, and judgment upon the
award rendered by the Arbitrator(s) may be entered by any court
having jurisdiction thereof.”
B. Existing Dispute
Submission Agreement
“We, the
undersigned parties, hereby agree to submit to arbitration in
accordance with the Center for Public Resources Rules for
Non-Administered Arbitration of Business Disputes (the
“Rules”) the following controversy:
[Describe briefly]
We further
agree that the above controversy shall be submitted to (a sole
arbitrator) (three arbitrators, of whom each party shall appoint
one) (three arbitrators, none of whom shall be appointed by either
party). We further agree that we shall faithfully observe this
agreement and the Rules and that we shall abide by and perform any
award rendered by the arbitrator(s). The arbitration shall be
governed by the United States Arbitration Act, 9 U.S.C. §
1-16, and judgment upon the award may be entered by any court
having jurisdiction thereof.”
The Rules are
designed to provide a procedural basis for the settling of
disputes. They are not intended to change substantive provisions of
applicable law. Therefore, it is recommended that parties consider
the inclusion in their agreement of specific clauses as to the
place of arbitration and as to the law governing the contract and
the arbitration.
RULES FOR
ARBITRATION
A.GENERAL AND
INTRODUCTORY RULES
Rule 1.
Scope of Application
1.1 Where the parties to a contract have provided
for arbitration under the Rules, they shall be deemed to have made
these Rules a part of their arbitration agreement, except to the
extent that they have agreed in writing, or on the record during
the course of the arbitral proceeding, to modify these Rules. These
Rules, and any amendment thereof adopted by CPR, shall apply in the
form obtaining at the time the arbitration is commenced.
1.2 These Rules shall govern the arbitration except
that where any of these Rules is in conflict with a mandatory
provision of applicable law, that provision of law shall
prevail.
Rule 2.
Notices
2.1 Notices shall be given in writing at the address
specified in writing by the recipient or, if no address has been
specified, to the then business or residence address of the
recipient. Notices may be given by mail, telex or facsimile
transmission. Notices shall be deemed to have been received on the
date of delivery.
2.2 Time periods specified by these Rules or
established by the Arbitral Tribunal (the “Tribunal”)
shall start to run on the day a notice is received, unless the
Tribunal shall specifically provide otherwise.
Rule 3.
Commencement of Arbitration
3.1 The party commencing arbitration (the
“Claimant”) shall address to the other party (the
“Respondent”) a notice of arbitration.
3.2 The arbitration shall be deemed commenced on the
date on which the notice of arbitration is received by the
Respondent.
3.3 The notice of arbitration shall include in the
text or in attachments thereto:
(a) The full names, descriptions and addresses of
the parties;
(b) A demand that the dispute be referred to
arbitration pursuant to the Rules;
(c) The verbatim text of the arbitration clause or
the separate arbitration agreement that is involved;
(d) A statement of the general nature of the
claimant’s claim;
(e) The relief or remedy sought; and
(f) The name and address of the arbitrator appointed
by the Claimant, unless the parties have agreed that neither shall
appoint an arbitrator.
3.4 Within twenty days after receipt of the notice
of arbitration, the Respondent shall deliver to the Claimant a
notice of defense. Failure to deliver a notice of defense shall not
delay the arbitration; in the event of such failure, all claims set
forth in the demand shall be deemed denied.
3.5 The notice of defense shall include:
(a) Any comment on items (a), (b), and (c) of the
notice of arbitration that the Respondent may deem
appropriate;
(b) A statement of the general nature of the
Respondent’s defense; and
(c) The name and address of the arbitrator appointed
by the Respondent, unless the parties have agreed that neither
shall appoint an arbitrator.
3.6 The Respondent may include in it’s notice
of defense any counterclaim within the scope of the arbitration
clause. If it does so, the counterclaim in the notice of defense
shall include items (a), (b), (c), (d) and (e) of Rule
3.3.
3.7 If a counterclaim is asserted, within twenty
days after receipt of the notice of defense, the Claimant shall
deliver to the Respondent a reply to counterclaim which shall have
the same elements as provided in Rule 3.5 for the notice of
defense.
3.8 Claims or counterclaims may be freely added or
amended prior to the establishment of the Tribunal and thereafter
with the consent of the Tribunal. Notices of defense or replies to
amended claims or counterclaims shall be delivered within twenty
days after the addition or amendment.
3.9 If a dispute is submitted to arbitration
pursuant to a submission agreement, Rule 3 shall apply to the
extent that it is not inconsistent with the submission
agreement.
Rule 4.
Representation
4.1 The parties may be represented or assisted by
persons of their choice.
4.2 Each party shall communicate the name, address
and function of such persons in writing to the other party and to
the Tribunal.
B. RULES WITH RESPECT TO THE
TRIBUNAL
Rule 5.
Selection of Arbitrators by the Parties
5.1 Unless the parties have agreed in writing on a
Tribunal consisting of a sole arbitrator or of three arbitrators
not appointed by the parties, the Tribunal shall consist of two
arbitrators appointed by the parties and a third arbitrator, who
shall chair the Tribunal, selected as provided in Rule
5.2.
5.2 As soon as possible after the appointment of two
party-appointed arbitrators and delivery of the notice of defense
provided for in Rule 3.4 and in any event within fifteen days
thereafter, the party-appointed arbitrators shall discuss potential
candidates for the third arbitrator and shall proceed to select the
third arbitrator. They shall attempt to make their selection within
twenty days of their initial discussion, but they may extend their
selection process until one or both of them have concluded, and
have so advised the appointing parties, that a deadlock has been
reached. In this event, the third arbitrator shall be selected as
provided in Rule 6.
Rule 6.
Selection of Arbitrator(s) by CPR
6.1 Whenever (i) a party has failed to appoint the
arbitrator to be appointed by it; (ii) the parties have failed to
appoint the arbitrators to be appointed by them acting jointly;
(iii) the party appointed arbitrators have failed to appoint the
third arbitrator; or (iv) the parties have provided that one or
more arbitrators shall be appointed by CPR, the arbitrator(s)
required to complete the Tribunal shall be selected as provided in
Rule 6, and either party may request CPR in writing, with copy to
the other party, to proceed pursuant to Rule 6.
6.2 The written request may be made as
follows:
(a) If a party has failed to appoint the arbitrator
to be appointed by it, or the parties have failed to appoint the
arbitrator(s) to be appointed by them through agreement, at any
time after such failure has occurred.
(b) If the party-appointed arbitrators have failed
to appoint the third arbitrator, as soon as the procedure
contemplated by Rule 5.2 has been completed.
(c) If the arbitrator(s) are to be appointed by CPR,
as soon as the arbitration has been commenced.
6.3 The written request shall include complete
copies of the notice of arbitration and the notice of defense or,
if the dispute is submitted under a submission agreement, a copy of
the agreement supplemented by the notice of arbitration and notice
of defense if they are not part of the agreement.
6.4 CPR shall then proceed as follows:
(a) Promptly following receipt by it of the request
provided for in Rule 6.3, CPR shall convene the parties in person
or by telephone one or more times to attempt to select the
arbitrator(s) by agreement of the parties.
(b) If the procedure provided for in (a) does not
result in the selection of the required number of arbitrators, CPR
shall submit to the parties a list of not less than five candidates
if one arbitrator remains to be selected, and of not less than
seven candidates if two or three arbitrators are to be selected.
Such list shall include a brief statement of each candidate’s
qualifications. Each party shall number the candidates in order of
preference, shall note any objection it may have to any candidate,
and shall deliver the list so marked to CPR. Any party failing
without good cause to return the candidate list so marked within
ten days after receipt shall be deemed to have assented to all
candidates listed thereon. CPR shall designate as arbitrator(s) the
nominee(s) willing to serve for whom the parties collectively have
indicated the highest preference and who does not appear to have a
conflict of interest. If a tie should result between two
candidates, CPR may designate either candidate. If this procedure
for any reason should fail to result in designation of the required
number of arbitrators, CPR shall appoint a person or persons whom
it deems qualified to fill any remaining vacancy.
Rule 7.
Qualifications, Challenges and Replacement of
Arbitrators
7.1 Each arbitrator shall be independent and
impartial.
7.2 By accepting appointment, each arbitrator shall
be deemed to be bound by these Rules and any modification agreed to
by the parties.
7.3 Each arbitrator shall promptly disclose in
writing to the Tribunal and the parties any circumstances that
might cause doubt regarding the arbitrator’s independence or
impartiality. Such circumstances include bias, interest in the
result of the arbitration, and past or present relations with a
party or its counsel.
7.4 Any arbitrator may be challenged if
circumstances exist or arise that give rise to justifiable doubt
regarding that arbitrator’s independence or impartiality,
provided , that a party may challenge an arbitrator whom it
has appointed only for reasons of which it becomes aware after the
appointment has been made.
7.5 A party may challenge an arbitrator only by a
notice in writing to the Tribunal, with copy to the other party,
given no later than fifteen days after (i) the parties have been
notified that the Tribunal has been constituted, or (ii) the
challenging party has become aware of the circumstances specified
in Rule 7.4, whichever shall last occur. The notice shall state the
reasons for the challenge with specificity.
7.6 When an arbitrator has been challenged by a
party, the other party may agree to the challenge or the arbitrator
may voluntarily withdraw. Neither of these actions implies
acceptance of the validity of the challenge.
7.7 If neither agreed disqualification nor voluntary
withdrawal occurs, the challenge shall be decided as
follows:
(a) By unanimous vote of the remaining members of
the Tribunal;
(b) If the Tribunal consists of a sole Arbitrator or
fails or refuses to decide the challenge, by the President of
CPR.
7.8 In the event of death, resignation or successful
challenge of an arbitrator, a substitute arbitrator shall be
selected pursuant to the procedure by which the arbitrator being
replaced was selected.
7.9 In the event that an arbitrator fails to act, or
in the event the Tribunal determines that an arbitrator is
de jure or de facto
prevented from duly performing the functions of an arbitrator, the
procedures provided in Rule 7.8 shall apply to the selection of a
replacement.
7.10 If the sole arbitrator or the chairman of the
Tribunal is replaced, the successor shall decide the extent to
which any hearings held previously shall be repeated. If any other
arbitrator is replaced, the Tribunal in its discretion may require
that some or all prior hearings be repeated.
Rule 8.
Challenges to the Jurisdiction of the Tribunal
8.1 The Tribunal shall have the power to hear and
determine challenges to its jurisdiction.
8.2 The Tribunal shall have the power to determine
the existence, validity or scope of the contract of which an
arbitration clause forms a part, and/or of the arbitration clause
itself. For t
