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2022-31RESOLUTION 2022-31 COUNCIL MEMBER STEWART INTRODUCED THE FOLLOWING RESOLUTION: WHEREAS the City of Blair, Nebraska, has been presented with the Fifth 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 Fifth 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 STEWART MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER HAFER. UPON ROLL CALL, COUNCIL MEMBERS SHEPARD, STEWART, RUMP, WOLFF, SCHANK, HALL AND HAFER VOTING "AYE", AND COUNCIL MEMBERS NONE VOTING "NAY", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AD ADOPTED THIS 23" DAY OF AUGUST, 2022. CITY OF BLAIR, NEBRASKA 7� �- BY _ ` 1-ti[w1 IF." 17 aL4 a0Ar1Cyte]:7 ATTEST: 13!A HEELER, CITY CLERK /,4 °.ins/'Q .. RASKA ) =-.' ):ss: ON COUNTY ) BRENDA 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 23rd day of August, 2022. f, BRENDA WHEELER, CITY CLERK FIFTH AMENDMENT TO WATER SERVICE AGREEMENT This FIFTH AMENDMENT TO WATER SERVICE AGREEMENT (this "Amendment"), dated as of the ®, day of 14Lt 4 , 2022, by andbetween the CITY OF BLAIR, NEBRASKA, a city of the fust class existing under and by virtue of the laws of the State of Nebraska (the "City"), whose address for purposes of this Amendmentis 218 South 161h Street, Blair, Nebraska 68008 (Attn: City Administrator), and CARGILL, INCORPORATED, a Delaware corporation authorized to transactbusiness 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 "WaterServiceAgreement" ), as supplemented by the Addendum to Water Service Agreement dated as of Febntary 27, 2001 (the "FirstAddendum"), as amended by the First Amendment to Water Service Agreement dated as of March 9, 2007 (the "FirstAmendmentD°), as further amended by the SecondAmendmentto Water Service Agreement dated as of September 1, 2012 (the "Second Amendment"), as further amended by the Third Amendment to Water Service Agreement dated as of March 6, 2013 (the "Third Amendment'), and as further amended by the Fourth Amendment to Water Service Agreement dated as of November 11, 2016 (the "Fourth Amendment'); the Water Service Agreement as supplemented by the First Addendum and as amended by the First Amendment, Second Amendment, Third Amendment, and Fourth Amendment is referred to herein as the "Existing Agreement"; capitalized terms used in this Amendment and not otherwise defined herein shallhave the meanings given to such term s in the Existing Agreement; and WHEREAS, the City issued its $10,000,000 Water System Revenue Bond, Series 2021 (the "2021 Bond") for the purpose of installing a low river level intake for raw water supply on the Missouri River, completing a lime solids mitigation project, constructing a backwash filter to waste line from the Water Treatment Plant's backwash water recovery basin, and paying allrela ted work, land, testing, and engineering fees therewith (the "2021 Project"). 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 for such purposes desire to amend certainprovisions of the Existing Agreement, related Exhibit "C", and related Exhibit "E"; NOW THEREFORE, in consideration of the mutual covenants hereinafter made, City and Company hereby agree as fo Mows: 1. Representations and Warrandes of Citx. 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 a s 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 a nd in good sta nd ingin 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 compliancewith the terms and conditions of the Agreementwill 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 orprovisions of any restriction, agreement or instrument to which it is presently a party or bywhich it is bound, orconstitute a default underany of the foregoing. Amendments to Existing_Agreement. a. Amendment and Restatement of Section 4 of Exist 4- AAmement. Prior to May 1, 2022 (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 subparagraph4.a, in its entirety as follows: a. Minimum Payments, Company shall pay to the City, on the first day of each calendar month beginning with the month of October 2022, and continuing until the 15th day of September 2053, min imumpayments (each, a "Minimum Payment') in the amounts described on Revised Exhibit"C "attached heretofor theperlods described therein, which paymen is 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 arty rebate, credit orset- off for the unused portion, if any, of the Base Monthly Water Quantity (i.e., the unused portion is foifeited at the end of each monthly period), Additional Usage, if any, shall be billed pursuant to Subparagraph 4(b) immediatelybelow. b. Replacement of Revised Exhibit "C". Revised Exhibit "C" attached to the Fourth Amendment (Minimum Payments) is hereby replaced in its entirety with Revised Exhibit "C" attached hereto. 4. Modification of Certain Definitions andRelated Provisions. All references in the Existing Agreement to: (a) the "Improvements" shallmean and include the Improvements, as defined in the Existing Agreement, and the 2021 Project as described herein; and (b) the `Bonds" shall refer to all outstanding and future loans, bond anticipation notes, bonds and otherindebtedness issued to improve the Water System to provide service to the Company and Thud Parties, including the 2021 Bond, and shall include, without limitation, the Bonds (as defined in the ExistingAgreementl any bond anticipation notes orother indebtedness issued to pay costs of the Improvements and any bonds, loans or other perma nent financing issued to pay such bond a nticipation notes or other indebtedness. Notwitbsta nding the provisions of Section 7tb1 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 fund a defeasance escrowforall 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 Fourth Amendment is hereby replaced in its entirety with Revised Exhibit "E" attached hereto. 5. Amendment of Section 11 of ExistingAAereement. The first sentence of Section 11 of the Existing Agreement is hereby amended as follows: 11. ,Team and Termination, This Agreement shall be effective as of the date first above written and shall continue in effect untilthe 15"' day of September, 2053, at which time the City's obligation to provide water service under the tetwis oftheAgreement shall cease, 6. Entire Agreement: Effect on Existing�AUeement,- 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 orparties sought to be charged or bound by the a Iteration or amendment, Except asspecificafly amended hereby, the Existing Agreement shall remain in full force and effect and is hereby ratified and affirmed in all respects. This Amendment maybe executed in anyone or number of counterparts, each of which shall be deemed an original and which together shall constitute one and the some instrument. [SIGNATURES APPEAR ON FOLLOWING PAGE(S)] IN WITNESS WHEREOF, Company and City have executed this Amendment, effective as of the date first above written. G�TY of 9D'3,C) CITY OF BLAIR, NEBRASKA By: Name:_ Rf e.i�o4 r d. Title: M!N%4O2e1 Name; &cridw. WPWZ—V r Title: ave K (SEAL) ATTEST: Name: Title: CARGILL, INCORPORATED i Name: Title: 96Lw C Revised Exhibit°°C" "Minimum Payments" Base Monthly Water Ouantity (Cubic Feet per Monthly Applicable Period Billing Period) Monthly Minimum Payment* Effective Date to June 15, 2053 _63,029,189** $556,900.00** *Subject to adjustment as provided in Agreement * *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 f inalmaturity 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 correspondingMinimum Monthly Payment; in the absence of such an amendment, the City's billing statements shallgovern absent manifest error. Revised Exhibit "E" City of Blair Debt for expansions providing capacity to Cargill Finance Instrument Final Maturity OOu standinPrincipal (or Date Max imptuDrawable Amount attributable to Ca rei11) WaterBonds2010B 12/15/2030 $4,810,000.00 WaterBonds2012 06/15/2032 3,740,000.00 WaterBonds2016 12/15/2036 3,725,000.00 Water Bonds 2017 12/15/2036 3,260,000.00 WaterBond2021 06/15/2053 6,317,220.00*** * * *WaterBond 2021 is same as 2021 SRF loan between the City and the Nebraska Department of Environment and Energy and is made up of cost from new intake project,blow offpumps, and lime solids project. The final obligation under this contract will be adjusted to reflect the final loan principal amount with the Nebraska Department of Environmental& Energy with 77.5% of all outstanding principal, which is currently estimated at$6,317,220, being allocated to Cargill, under this exhibit and 22.5% of all outstanding principal being the responsibility of the City of Blau general ratepayers (all except Cargill Bio Campus) DOCS/2747196.7