City of Indianapolis/WaterFIRST AMENDMENT TO AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT ("Amendment") is made this 26th day
of September, 2002, by and between the Consolidated City of Indianapolis, an Indiana
municipality, by and through the Board of Directors of the Department of Waterworks of the
Consolidated City of Indianapolis acting as the authorized agent for Mayor Bart Peterson, the
City-County Council and itself (collectively, "Indianapolis"), and the City of Carmel, an Indiana
municipality, by and through its Board of Public Works and Safety acting as the authorized agent
for Mayor James Brainard, the Common Council and itself (collectively, "Cannel").
WITNESSETH:
WHEREAS, Indianapolis and Cannel entered into an Agreement (the "Agreement") on
March 15, 2002, pertaining to the prospective sale of Assets, as defined in the Agreement,
located in Clay Township, Hamilton County, which are now owned by the Department of
Waterworks;
WHEREAS, Paragraph 6 of the Agreement set forth a timetable for the issuance of the
Joint Report, as defined in the Agreement;
WHEREAS, the due to delays in retaining an independent, outside engineering finn, the
target dates in the timetable for the Joint Report have not been achieved, through no fault of
either party;
WHEREAS, Indianapolis and Cannel desire to amend the Agreement to allow for the
Joint Report timetable to be modified as set forth herein;
WHEREAS, Indianapolis and Carmel have selected Hazen and Sawyer, P.C., to prepare
the Joint Report, and Hazen and Sawyer has agreed to prepare the Joint Report; and
WHEREAS, Hazen and Sawyer have proposed a timetable for issuance of the Joint
Report that both Indianapolis and Carmel find fair and reasonable.
NOW, THEREFORE, Indianapolis and Carmel agree to amend the Agreement as set
forth below:
Joint Report Timetable. Paragraph 6 of the Agreement is hereby struck in its
entirety and replaced with the following:
Joint Report. The Parties agree to hire Hazen and Sawyer, P.C., an
uninterested, independent engineering firm that is not located in,
and has no offices in the State of Indiana, to issue a joint report to
resolve the issues set out below, with all costs to be split evenly
between Cannel and Indianapolis (the "Joint Report"). The Joint
Report shall be issued as set forth in the agreement among Hazen
and Sawyer, Cannel and Indianapolis.
The Parties acknowledge and agree that the Joint Report is being
conducted to permit a determination of the costs of the sale of the
Assets by Indianapolis to Carmel and to give effect to
Indianapolis's desire to not harm the Waterworks. The Joint
Report shall include, among other things, findings, including
specific actions, attendant costs and performance dates to resolve
the following:
The means of Indianapolis providing finished water to the
Remaining Customers and the costs that would not
otherwise be incurred if the Waterworks were kept
together; and
The means and cost of separating the Assets from the
Waterworks that would not otherwise be incurred if the
Waterworks were kept together.
Authority. Each party to this Amendment represents that it is duly authorized to
enter into this Amendment by its own resolution, by the mayor of its respective
municipality and by the council of its respective municipality.
No Other Changes. All other terms and conditions of the Agreement remain
unchanged.
IN WITNESS WHEREOF, Cannel and Indianapolis, as defined above, acting by and through
their respective designated agents, make this Amendment as of the date first above written.
CARMEL BOARD OF PUBLIC WORKS AND SAFETY
al
BOARD OF DIRECTORS OF THE DEPARTMENT OF WATERWORKS
OF THE CONSOLIDATED CITY OF INDIANAPOLIS
/John Mutz, Chairman 6fthe Boar
(J ,D, irectors of the Department of
Waterworks of the Consolidated
City of Indianapolis ("Board")
Signing on Behalf of the Board
Indicating Approval of
this Amendment by the Board
704810-533071/285257