2016-28RESOLUTION 2016 - 28
COUNCIL MEMBER WOLFF INTRODUCED THE FOLLOWING RESOLUTION:
WHEREAS the City of Blair, Nebraska, has been presented with the Fourth Amendment
to the Water Service Agreement with Cargill, Inc.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL
OF THE CITY OF BLAIR, NEBRASKA, that the Fourth Amendment to the Water Service
Agreement with Cargill, Inc. attached hereto, marked Exhibit "A" and by this reference made a
part of hereof as though fully set forth herein is hereby approved by the City of Blair, Nebraska.
BE IT FURTHER RESOLVED THAT THE MAYOR AND CITY CLERK OF THE
CITY OF BLAIR, NEBRASKA, are hereby authorized to execute and deliver, on behalf of the
City of Blair, Nebraska, any documents that may be necessary for approval of said agreement.
COUNCIL MEMBER WOLFF MOVED THAT THE RESOLUTION BE ADOPTED AS
READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER HANSEN.
UPON ROLL CALL, COUNCIL MEMBERS SHEPARD, STEWART, WILLIS, HANSEN,
JENSEN, HALL, WOLFF AND ANDERSEN VOTING "AYE", AND COUNCIL MEMBERS
NONE VOTING "NAY", THE MAYOR DECLARED THE FOREGOING RESOLUTION
PASSED AD ADOPTED THIS 22nd DAY OF NOVEMBER, 2016.
CITY OF BLAIR, NEBRASKA
B
JMZS E. REALPH, MAYOR
ATTEST:
r = V {
BRENDA R. WHEELER, CITY CLERK
(SEAL)
STATE OF NEBRASKA )
) :ss:
WASHINGTON COUNTY )
BRENDA R. WHEELER, hereby certifies that she is the duly appointed, qualified and acting
City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was
passed and adopted at a regular meeting of the Mayor and City Council of said City held on the
22nd day of November, 2016. f/
BRENDA R. WHEELER, CITY CLERK
DRAFT — September 9, 201.6
FOURTH AMENDMENT TO WATER SERVICE AGREEMENT
This FOURTH AMENDMENT TO WATER SERVICE AGREEMENT (this "Amendment'), dated as of the
Jt day of 0,, m to(+` , 2016 (the "Effective Date"), by and between the CITY OF BLAIR, NEBRASKA, a city of
the first class existing under and by virtue of the laws of the State of Nebraska (the "City"), whose address for purposes
of this Amendment is 218 South 161 Street, Blair, Nebraska 68008 (Attn: City Administrator), and CARGILL,
INCORPORATED, a Delaware corporation authorized to transact business in the State of Nebraska (the "Company"),
whose primary address is 15407 McGinty Road West, Wayzata, Minnesota, 55391, individually each a "Party",
collectively the "Parties";
WITNESSETH:
WHEREAS, the City and the Company are parties to that Water Service Agreement dated June 27, 2000 (the
"Water Service Agreement'), as supplemented by the Addendum to Water Service Agreement dated as of February 27,
2001 (the "First Addendum"), as amended by the First Amendment to Water Service Agreement dated as of March 9,
2007 (the "First Amendment"), as further amended by the Second Amendment to Water Service Agreement dated as
of September 1, 2012 (the "Second Amendment'), and as further amended by the Third Amendment to Water Service
Agreement dated as of March 6, 2013 (the "Third Amendment'); the Water Service Agreement as supplemented by
the First Addendum and as amended by the First Amendment, Second Amendment and Third Amendment is referred
to herein as the "Existing Agreement"; capitalized terms used in this Amendment and not otherwise defined herein
shall have the meanings given to such terms in the Existing Agreement; and
WHEREAS, the City issued its $5,550,000 Water System Revenue Bonds, Series 2016, on August 24, 2016
(collectively, the "2016 Bonds") for the purpose of redeeming bond anticipation notes issued by the City to finance the
2012 Improvements (as defined in the Second Amendment); and
WHEREAS, as contemplated in the Existing Agreement, the City and the Company desire to amend the
Existing Agreement to reflect payments sufficient to cover anticipated debt service on the Bonds and to provide
required debt service coverage following the issuance of the 2016 Bonds, and for such purposes desire to amend certain
provisions of the Existing Agreement and related Exhibit "C";
NOW THEREFORE, in consideration of the mutual covenants hereinafter made, City and Company hereby
agree as follows:
1. Representations and Warranties of City. The City represents and warrants to Company that the City
is a municipal corporation organized and in existence under the laws of the State of Nebraska, and is and has been duly
authorized to enter into this Amendment and to carry out its obligations under the Existing Agreement and this
Amendment (the Existing Agreement, as amended by this Amendment, is referred to herein as the "Agreement').
2. Representations and Warranties of Company. Company represents and warrants to the City as
follows,
a. Company is a corporation duly incorporated and in existence and good standing under the
laws of the State of Delaware, qualified to do business and in good standing in the State of Nebraska, and is
and has been duly authorized to enter into this Amendment and to carry out its obligations under the Existing
Agreement.
b. The execution of this Amendment and the consummation of the transactions contemplated
hereby and the fulfillment and compliance with the terms and conditions of the Agreement will not violate
any current provision of Company's Articles of Incorporation or Bylaws and will not conflict with or result in
the breach of any terms or provisions of any restriction, agreement or instrument to which it is presently a
party or by which it is bound, or constitute a default under any of the foregoing.
3. Amendments to Existing A eement.
a. Amendment and Restatement of Section 4 of Existing A ery ement. Prior to the Effective
Date, the obligations of the Company to make payments to the City shall be governed by Section 4 of the
Existing Agreement. From and after the Effective Date, Section 4 of the Existing Agreement shall be further
amended by amending and restating subparagraph 4.a. in its entirety as follows:
a. Minimum Papments. Company shall pay to the City, on the first day of each
calendar month beginning with the month of 6 me +o �2016, and continuing until the last day of
December 2036, minimum payments (each, a "Minimum Payment') in the amounts described on
Revised Exhibit "C" attached hereto for the periods described therein, which payments represent the
fixed monthly charge for any monthly water usage up to the Scheduled Usage per monthly billing
period (the "Base Monthly Water Quantity ). Company is not entitled to any rebate, credit or set-
off for the unused portion, if any, of the Base Monthly Water Quantity (i.e., the unused portion is
forfeited at the end of each monthly period). Additional Usage, if any, shall be billed pursuant to
Subparagraph 4(b) immediately below.
b. Replacement of Revised Exhibit "C". Revised Exhibit "C", attached to the Third
Amendment (Minimum Payments) is hereby replaced in its entirety with Revised.Exhibit "C" attached hereto.
4. Modification of Certain Definitions and Related Provisions. All references in the Existing
Agreement to: (a) the "Improvemena" shall mean and include the Improvements, as defined in the Existing
Agreement; and (b) the "Bonds" shall refer to all outstanding and future loans, bond anticipation notes, bonds and other
indebtedness issued to improve the Water System to provide service to the Company and Third Parties, and shall
include, without limitation, the Bonds (as defined in the Existing Agreement), any bond anticipation notes or other
indebtedness issued to pay costs of the Improvements, and any bonds, loans or other permanent financing issued to pay
such bond anticipation notes or other indebtedness. Notwithstanding the provisions of Section 7(b) of the Water
Service Agreement, the Defeasance Payment may exceed the sum of $11,500,000, but shall not exceed the sum
necessary to fully fimd a defeasance escrow for all Bonds issued to finance facilities to provide water service to the
Company and Third Parties as shown on Revised Exhibit "E" attached to this Amendment. Exhibit "E" attached to the
Second Amendment is hereby replaced in its entirety withRevised Exhibit "E". attached hereto.
5. Entire Agreement: Effect on Existing_ Agreement, Miscellaneous. The Agreement constitutes the
entire understanding and agreement of the parties as to the matters set forth in the Agreement. No alteration of or
amendment to the Agreement shall be effective unless made in writing and signed by the party or parties sought to be
charged or bound by the alteration or amendment. Except as specifically amended hereby, the Existing Agreement
shall remain in full force and effect and is hereby ratified and affirmed in all respects. This Amendment may be
executed in any one or number of counterparts, each of which shall be deemed an original and which together shall
constitute one and the same instrument.
[SIGNATURES APPEAR ON FOLLOWING PAGE(S)]
2
IN WITNESS WHEREOF, Company and City have executed this Amendment, effective as of the date first
above written.
CITY OF BLAIR, NEBRASKA
By
(SEAL) Name: ` r
Title; r—
ATTEST:
Title: i
(SEAL) MM NMY • Nt"O of Nebraska
DARLYS D. SYLV{S
My Comm. Ex ,. Jan, 3 2017
ATTEST:
Nain@.®
CARGILL, INCORPORATED
I3y: -
Ti tip
Applicable Period
April 1, 2014 to Effective Date of Fourth
Amendment
Effective Date of Fourth Amendment to
December 15, 2036
*Subject to adjustment as provided in Agreement
Revised Exhibit '!C!
G4Minimum Payments"
Base Monthly Water Quantity
(Cubic Feet per Monthly
Billing Period)
63,029,189
63,029,189**
Monthly Minimum Payment*
$538,900
$538,900**
**In addition to other adjustments as may be applicable from time to time under the terms of the Existing Agreement,
Base Monthly Water Quantity and the corresponding Minimum Monthly Payment will be to reflect an amount which,
under then current operating conditions, revenues and expenses of the Water System, will be sufficient to satisfy the
required Debt Service Coverage applicable to the Bonds through the final maturity of the Bonds. If requested by either
party, the City and the Company shall enter into an amendment to the Agreement setting forth the adjusted Base
Monthly Water Quantity and corresponding Minimum Monthly Payment; in the absence of such an amendment, the
City's billing statements shall govern absent manifest error.
Revised Exhibit "E"
City of Blair Debt for expansions providing capacity to Cargill
Finance Instrument
Finalto urity
OutstandingPrincipal
Date
Water Bonds 2010B
12/15/2030
6,500,000
Water Bonds 2010C
12/15/2017
770,000
Water Bonds 2012
06/15/2032
8,860,000
Water BAN 2013
12/1/2017
3,200,000
Water Bonds 2016
12/15/2036
5,550,000
DOCS/1701566.3