HomeMy WebLinkAbout1983-030-02/01/1983-AUTHORIZING THE CITY MANAGER TO EXECUTE A MODIFICATION AGREEMENT TO THE MASTER AGREEMENT WITH ANHEUS RESOLUTION 83- 30
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CITY MANAGER TO EXECUTE
A MODIFICATION AGREEMENT TO THE MASTER
AGREEMENT WITH ANHEUSER-BUSCH, INC
WHEREAS, on December 31, 1982 the City Manager entered into a Master
Agreement on behalf of the City of Fort Collins with Anheuser-Busch, Inc
for the provision of a brewery in the City of Fort Collins, and
WHEREAS, further negotiations with Anheuser-Busch, Inc have made it
necessary to prepare a modification agreement, amending certain provisions
of the existing Master Agreement, and
WHEREAS, Council deems it to be in the best interest of the City of
Fort Collins to authorize the City Manager to execute a Modification
Agreement with Anheuser-Busch, Inc
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that the City Manager be, and he hereby is, authorized to execute
on behalf of the City of Fort Collins the Modification Agreement to the
Master Agreement Between the City of Fort Collins and Anheuser-BuscInc
ate February , 1983
Passed and adopted at a regular meeting of the City Council held this
1st day of February, A D 1983
mayor
ATTEST
MODIFICATION AGREEMENT
TO THE MASTER AGREEMENT
BETWEEN
THE CITY OF FORT COLLINS
AND
ANHEUSER-BUSCH, INCORPORATED
February 1, 1983
MODIFICATION AGREEMENT
THIS MODIFICATION AGREEMENT, made and entered into this
day of , 1983, by and between ANHEUSER-BUSCH,
INC , a Missouri Corporation having its principal place of
business in St Louis, Missouri (hereinafter called "Com-
pany" ) , and the CITY OF FORT COLLINS, a municipal corporation
duly organized and existing under the laws of the State of
Colorado (hereinafter called "City" ) ,
WITNESSETH
WHEREAS , the parties hereto on December 31 , 1982 ,
entered into a Master Agreement (hereinafter referred
to as "Master Agreement" ) , and
WHEREAS , said Master Agreement contains Article VII
entitled "Financing" and Article VIII entitled "General
Conditions" and
WHEREAS, the parties hereto desire to modify said
Articles by amending certain portions thereof and adding
thereto and
WHEREAS, the parties hereto agree that they will mutu-
ally benefit from the changes made to said Master Agreement
NOW, THEREFORE, for and in consideration of the promises
by the parties made herein and the benefits to be derived
therefrom, said Master Agreement dated December 31, 1982,
is hereby modified as follows
MODIFICATIONS TO ARTICLE VII
I Paragraph (b) of Section 1 of Article VII ( Capital
Investments ) is_hereby_deleted_in its entirety and the
following_Paragrap-h (b) is hereby substituted therefor
"b) Capital Investments - City and Company anticipate
that City will receive substantial tax revenues as a result
of the acquisition of the Site by Company and construction
by Company of the Plant and related facilities in City
Such revenues will enable City to construct the general
public improvements hereinbefore identified, all to the
benefit of City In the event that such improvements or
facilities described herein are constructed by City, City
shall finance such improvements or facilities through
bonds or other available methods of municipal financing
as hereinafter referred to Company recognizes the benefits
it will derive therefrom and its responsibility to bear
its fair share of the costs of constructing and financing
such facilities , and therefore agrees to pay to City a
Supplemental User Fee in accordance herewith in addition
to any and all other user fees as provided for in this
Agreement Such Supplemental User Fee shall be paid on
June 30th and December 31st of each applicable year, and
each such payment shall be equal to all of City' s debt
service payments made during the six (6) months immediately
preceding each such payment date (other than payments made
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from the proceeds of any financing) , to finance the costs of
the public improvements referred to in Paragraph l (a) above
W to the extent that such costs are incurred in accordance
with the provisions of this Agreement (including, without
limitation, the provisions of Article VIII, Paragraph 10(b)
of this Agreement) and, (ii) to the extent of the Company' s
share thereof , as shall be agreed by City and Company in
accordance with said Article VIII, Paragraph 10(b) less,
however, a sum equal to any monies received by City under
the Base Formula (as hereinafter defined) during the six
(6 ) months immediately preceding each such payment date,
and, in the event that the aggregate Base Formula receipts
in all periods prior to such six (6 ) month period shall
exceed the aggregate of such debt service payments in all
periods prior to each six (6) month period, then also less
such excess The Supplemental User Fee shall be paid by
Company in each year until Company' s share of debt service
requirements are satisfied on the securities issued to
finance the public improvements as are described in Paragraph
l (a) above "
II Section 2 of Article VII (Appropriations ) is hereby
deleted in its entirety_and the following Section 2 is
hereby substituted therefor
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"2 APPROPRIATIONS
Upon the execution of this Agreement by the parties,
City shall forthwith commence all activities to the end
that City may obtain funds necessary for all general public
improvements and water rights acquisition as are described
in this Agreement The parties agree that any provision
of this Agreement calling for City' s expenditure of funds
shall be effective only upon the appropriation of the funds
necessary thereto where such funds are subject to appropria-
tion under the laws governing the operation of City, and any
provision of this Agreement which purports to obligate
City' s Council to perform a specific legislative act shall
not be effective until such legislative act is performed
by the Council Upon such necessary appropriation or
legislative act, the provision( s) of this Agreement dependent
thereon shall be effective as if it had been effective
as of the date of execution of this Agreement In the
event that City' s Council fails to appropriate all necessary
monies to make effective every provision of this Agreement
dependent thereon within ninety ( 90 ) days of the date of
this Agreement, Company may terminate this Agreement in
its entirety at no cost to Company The foregoing shall
in no way limit the obligations of City hereunder to provide
the projects referred to herein once the required appropria-
tion of funds has been made "
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III Section 3 of Article VII ( Financing Structure) is
hereby deleted in its entirety and the following Section
3 is hereby substituted therefor
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3 FINANCING STRUCTURE
a) Line of Credit - It is anticipated that the initial
financing method to be utilized by City for the purpose
of making appropriations in accordance with Section 2 of
this Article will be a line of credit to be evidenced by
bond anticipation notes ( BAN ' s) In order to facilitate
such financing, it is anticipated that Company may provide
undertakings to the purchaser of the BAN ' s , pursuant to
which Company will provide additional assurances of payment
to said purchaser In order to enable Company to limit
the extent of its liability to such purchaser, it is agreed
that
(i) Prior to the delivery by Company to City
of the initial notice to proceed in accordance with
Article VIII , Paragraph 10 ( b) of this Agreement,
advances under the BAN ' s shall be obtained by City
in amounts sufficient to pay the customary and reason-
able costs of issuance of the BAN' s (including, but not
limited to, commitment fees, bond counsel fees, printing
and publication costs ) and any required payments of
accrued interest thereon, and no further advances shall
be made
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(11 ) Following the delivery by Company to City
of the initial notice to proceed in accordance with
Article VIII, Paragraph 10(b) of this Agreement further
advances will be requested by City under the BAN ' s
only ( 1 ) in accordance with the provision of sub-
Paragraph 3 ( a) ( i) above, and ( 2 ) to pay the costs
of acquisition and construction of projects hereunder
in accordance with the said notices to proceed and
other provisions of this Agreement
City agrees to maxe all requests for advances to the pur-
chasers of the Bond Anticipation Notes in written notice
which shall also state the purposes of such advances and
shall provide to Company copies of such requests at least
ten (10) business days prior to the date for such advances
Such notices to Company shall be sent in accordance with the
provisions of Article VIII, Paragraph 10(a)
b) Long Term Financing - Upon receipt of the initial
notice from Company to City to proceed with the several
projects to be undertaken by City as described in this
Agreement, City will promptly make its best efforts to
obtain long term financing for a term of not less than
fifteen (15 ) years to refinance the existing BAN' s and
to obtain such funds as may be required to complete all
of such several projects City agrees to inform Company
of its plans and expectations from time to time relating
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to such financing in accordance with Article VIII, Paragraph
10(b) of this Agreement
c) Terms of Financing - City shall make its best
efforts consistent with the Paragraph 3(b) above to issue
bonds to finance its respective obligations hereunder in
accordance with all applicable requirements of law and
consistent with City' s customary sound financial practices
in order to achieve the best terms therefor, including
the lowest net interest costs and prior redemption premiums
then obtainable Such financing will be structured in
a manner similar to City' s customary financing for similar
general public improvements , and shall be either general
obligations of the City or obligations payable from specified
revenues or funds received by City from the general public,
which revenues may include revenues to be received from
Company hereunder Company shall not be required to provide
any undertaking or direct assurances of payment to the
purchasers of any such long term bonds , except for its
obligations to make payments to City as provided herein
d) Financing Costs - It is recognized and agreed
to by Company that City shall pay out of the proceeds of
any financings obtained pursuant to Paragraph 3 (b) above
the customary and reasonable financing costs and expenses,
including, but not limited to, bond counsel fees, rating
service fees, underwriting charges and printing and publica-
tion costs
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e) Obligation to Act in Reasonable Manner - City
shall be obligated to act in good faith and in a reasonable
manner in the acquisition, construction, financing, operation
and maintenance of the facilities to be provided to Company
under this Agreement, and in the allocation of costs to
Company pursuant to this Agreement and to use its best
efforts to maintain the costs of the various phases of
the projects within the cost estimates and projections
to be made available to Company pursuant to Paragraph 10(b)
of Article VIII of this Agreement "
IV A new Section 6 is hereby added to Article VII to
read as follows
"6 CONSULTING EXPENSES
City and Company stipulate that preliminary to and
during the course of negotiations necessary to this Agree-
ment, City has incurred certain engineering expenses in the
use of outside consultants Upon the execution of this
Agreement, Company shall forthwith deposit with City an
amount equal to the actual costs in such respect that
City has incurred for such consulting expenses prior to
the date of this Agreement provided, however, that in
no event shall such deposit exceed the sum of Forty Thousand
Dollars ($40,000) Such deposits of funds hereunder shall be
refunded by City to Company upon, and only upon, Company' s
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certification to City that fifty percent (50%) of the con-
struction of the Plant has been completed "
MODIFICATIONS TO ARTICLE VIII
I Section 2 of Article VIII (Early Termination) is hereby
deleted in its entirety and the following Section 2 is hereby
substituted therefor
1.2 EARLY TERMINATION
a) Lapse - Notwithstanding the provisions of Section 1
of this Article, this Agreement shall terminate and be of no
further force or effect three (3) years from the date hereof
unless Company gives notice to City pursuant to any individ-
ual Section of this Agreement entitled 'Time of Performance"
in Articles II through VI hereof
b) At Company' s Option - At any time before or after
having given notice to City as mentioned in Paragraph 2 (a)
above, Company may terminate this Agreement at its sole
option upon written notice to City
c) Costs to Company - In the event that (1 ) this
Agreement lapses pursuant to Paragraph 2 ( a) above , or
( 2 ) Company terminates this Agreement in accordance with
Paragraph 2 (b) above before any notice as described in
Paragraph 2 ( a) above is given to City, Company shall pay
City for all of City' s costs for principal and interest
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for any funds obtained by City pursuant to Article VII ,
Paragraph 3(a) of this Agreement in the event that Company
terminates this Agreement in accordance with Paragraph 2 (b)
above after having given any notice to City as described in
Paragraph 2 (a) above, City shall prepay any indebtedness
which City shall have incurred pursuant to the terms of
Article VII and intended for Company ' s benefit with any
appropriated unexpended proceeds to the extent that such
proceeds allow Company shall reimburse City for all such
reasonable costs and expenses of City, including any costs of
City to terminate Company' s share of any pro3ect which may be
under design or construction, and also Company' s share of all
costs and expenses and debt service obligations (including
the principal balance of the remaining indebtedness) paid by
or accrued to City subsequent to the previous payment of
a Supplemental User Fee paid by Company, and for and through
(a) the date( s) City retires such indebtedness or, (b)
thirty (30) days from the termination date of this Agreement,
whichever shall occur first Such reimbursement shall be
made within thirty (30) days after the termination date of
this Agreement In the event that Company shall terminate
this Agreement in accordance with this Paragraph at any time
during which City remains under a continuing obligation to
make payment against any indebtedness pursuant to Article III
of this Agreement and not included under the provisions of
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Article VII of this Agreement, City shall repay all indebted-
ness incurred pursuant to such Article from any appropriated
unexpended financing proceeds to the extent that such pro-
ceeds allow and to the extent that such proceeds are not
committed to be expended for projects under contract to be
completed pursuant to this Agreement To the extent that
City has committed such proceeds and prepayment of such
indebtedness is inappropriate, Company shall continue, after
such termination, to make payment to City of Company' s share
of City' s indebtedness therefor Such continuing payments
shall be made to City in conjunction with the payment sche-
dule of City' s indebtedness and each such payment as may be
related to such improvements constructed shall be in an
amount based on the idle capacity as same may exist from time
to time, of such improvements , or any of them, as were
intended for Company' s benefit
d) Termination Caused by Breach - Company shall be
under no obligation to make any such payments subsequent to
the termination of this Agreement if termination by Company
results from a substantial breach by City of any material
term hereof provided, however, that prior to payment,
redemption or refunding in full of the BANs referred to in
Article VII , Paragraph 3 ( a) hereof, Company shall in all
events be required to continue making payment of Supplemental
User Fees pursuant to Article VII of this Agreement to the
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extent that such payments shall be payable to the holder or
holders of such BANS, as assignees of the right of City to
receive such payment The obligation of Company to continue
such payments shall not affect or limit Company' s right to
pursue any claim against City in respect of any default
hereunder
e) Continuation of Water Service - In the event of a
termination of this Agreement for any reason, Company or its
assignee shall continue to maintain its right to obtain
treated water from City at normal City rates and charges for
use upon the site in an amount equal to the waters provided
pursuant to Article III, Section 5 of this Agreement, upon
the condition that Company is not in default of any payment
to be made for City' s indebtedness to obtain the water rights
to serve Company according to the terms of this Agreement
f) Obligation to Mitigate Costs - In the event that
there should be a termination or modification of this
Agreement after City shall have incurred expenses or made
financial commitments in respect of any projects under
this Agreement, and if, under the terms of this Article,
Company shall have an obligation to reimburse City, directly
or indirectly, for such expenses or commitments , or to
make payments in respect of related debt service, City
shall cooperate with Company and make every reasonable
effort to minimize such obligations of Company, including,
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without limitation, the negotiation of cancellation of
uncompleted contracts, the retirement of obligations which
may have been issued to finance the work which will not be
completed and the reallocation of excess capacity to other
users "
II Section 10 of Article VIII (Notices) is hereby deleted
in its entirety and the_followin_Section 10 is hereby
substituted therefor
"10 NOTICES
a) General - Whenever notice is required or permitted
hereunder from one party to the other, the same shall be
in writing and shall be given effect by hand delivery,
or by mailing same by certified or registered mail , to
the party for whom it is intended Notices to City and
Company shall be addressed as follows
To City
City of Fort Collins
P 0 Box 580
Fort Collins, Colorado 80522
Attention Mr John E Arnold, City Manager
To Company
Anheuser-Busch, Incorporated
One Busch Place
St Louis, Missouri 63118
Attention Mr T R Montgomery, Vice
President-Operations
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Either party may at any time designate a different person
or address for the purposes of receiving notice by so
informing the other party in writing Notice by certified
or registered mail shall be deemed effective 3 days after
having been deposited in the United States mail
(b) Notices Pursuant to "Time of Performance" Sections
of Article II through Article VI of this Agreement - Notices
to the City which are to be given by the Company under
Articles II, III, IV, V, and VI of this Agreement in Sections
thereof entitled "Time of Performance" may specify that City
shall proceed to perform specific phases or items of the
project or projects referred to therein, and City shall not
be required or authorized to perform any greater portion of
such project or projects than shall be indicated in such
notices provided , however, that Company shall give its
successive notices to continue with a particular project in
such timely manner that the City may, after the initial
notice is given for any project, complete such project within
the time limit specified in the Sections and Articles re-
ferred to above Without limiting the foregoing, Company may
specify, as to any project, that ( i ) City shall proceed
to the preparation of initial and/or final architectural
and engineering plans and specifications , (ii) City shall
solicit bids for all or a portion of the project, including
financing, (iii ) City shall accept bids which have been
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received for all or any portion of the project, or, (iv) City
shall proceed to purchase specific equipment required for the
project For the purpose of assisting Company in maxing
determinations with respect to notices to be delivered under
this Paragraph 10(b) , City shall consult with Company and
make available to Company such information as Company may
reasonably request relating to the several projects includ-
ing, without limitation, its plans and specifications for the
projects, construction and acquisition schedules, budgets and
other cost information, bids, contracts and purchase orders,
and shall also inform Company from time to time of City' s
plans and expectations relating to the interim and permanent
financing for the several projects With respect to any
project requiring an allocation of costs hereunder, City and
Company shall reach agreement as to such allocation thereof
as between City and Company as soon as the plans and specifi-
cations for the project are completed to the extent required
for such determination "
The parties hereto approve, ratify and affirm the terms
of the Master Agreement dated December 31, 1982, except as
said Master Agreement is amended by this Modification Agree-
ment
IN WITNESS WHEREOF, the parties hereto have executed
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this foregoing Modification Agreement on the day and year
first above written
ANHEUSER-BUSCH, INCORPORATED
By
Vice President - Operations
ATTEST
Assistant Secretary
CITY OF FORT COLLINS
A Municipal Corporation
By
John E Arnold, City Manager
ATTEST
City Clerk
APPROVED AS TO FORM
City Attorney
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