HomeMy WebLinkAboutC2008-358 - 1/29/2008 - ApprovedAGREEMENT TO GRANT BUSINESS INCENTIVES TO
SUSSER HOLDINGS CORPORATION,
FOR THE CREATION AND RETENTION OF JOBS
This Agreement to Grant Business Incentives for the Creation of Jobs ("Agreement") is
entered into by and between the Corpus Christi Business and Job Development
Corporation ("Corporation"), a Texas corporation organized under V.A.C.S. Art. 5190.6,
Sec. 4A, with mailing address of 1201 Leopard Street, Corpus Christi, Texas, 78401,
and Susser Holdings Corporation, ("Susser Holdings"), a Delaware corporation
authorized to do business in the State of Texas, with principal place of business at 4525
Ayers Street, Corpus Christi, Texas 78415.
I. BACKGROUND
1.1. Purpose of Agreement. Corporation is atax-supported non-profit corporation,
whose primary income is from sales tax collected within the City of Corpus Christi and
dedicated exclusively to economic development. This sales tax supporting Corporation
is authorized as a local option under Texas Revised Civil Statutes, Art. 5190.6, Sec. 4A.
Corporation exists for the primary purpose of developing, stabilizing, diversifying, and
expanding the Corpus Christi economy through the retention, expansion, and
recruitment of employment opportunities in order to benefit the citizens of Corpus Christi
and the surrounding areas.
1.2. Project. The project and performance requirement to be implemented by means
of this Agreement are generally described as follows:
The relocation of the corporate offices and retail support center of Susser
Holdings Corporation from 4433 Baldwin Boulevard, Corpus Christi, Texas, to
4525 Ayers, Corpus Christi, Nueces County, Texas (the "Project"), with the
construction, acquisition of new furniture, fixtures, and equipment for the Project
before the end of calendar year 2008, for total Susser Holdings capital
investment of at least Three Million Dollars ($3,000,000); the creation and
retention of at least forty-seven (47) full-time employment positions of which
approximately 8 - 10 full-time employment positions will be created as a result of
relocation of employees to Corpus Christi from San Angelo (these 47 full-time
employment positions represent $2,825,000 in an average annual salary of
$60,108 per job); and the retention and continuous employment of a minimum of
two hundred sixteen (216) full-time employment positions for a total of two
hundred sixty-three (283) full-time employment positions before the end of
calendar year 2012, with an annual gross payroll of $11,240,000 and an average
wage of $52,037 per position; and the continuing operation at 4525 Ayers as the
retail support center (the "Facility") in Corpus Christi, all in accordance with the
schedules contained herein. Hereinafter, any references to average annual
salary or payroll means average annual wage or salary as reflected by total W-2
compensation or compensation expense recognized by Susser Holdings,
pursuant to GAAP including FAS 123-R. The performance requirements shall be
continuously maintained during the entire term of this Agreement.
2008-358
01/29/08 Page 1 of 18
Res. 027566 ~onoaiszooa
Susser Holdings Corp.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants,
warranties, and agreements of the parties, it is agreed as follows:
II. ECONOMIC BENEFITS AND INCENTIVES AND PERFORMANCE
REQUIREMENTS
2.1. BY THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT
CORPORATION
1. Money Grant: Corporation will convey by grant to Susser Holdings a total of
Six Hundred Forty Thousand Dollars ($640,000) in five equal annual increments
of One Hundred Twenty-eight Thousand Dollars ($128,000) each, as set forth in
Schedule A, subject to the performance requirements of Susser Holdings and the
conditions precedent as set forth in Schedules A, B, and C and that Susser
Holdings has timely and fully complied with all applicable terms and conditions
contained in this Agreement. All Corporation payments are subject to the Susser
Holdings' successful completion of all of performance requirements outlined in
this Agreement.
2. Failure by Corporation to timely and fully comply with any performance
requirement shall be an act of default by Corporation giving Susser Holdings, as
its sole remedy, the right to the contracted amount to be conveyed and further
being limited to the terms and conditions contained in Article VII, paragraph 7.1,
hereof.
2.2. BY SUSSER HOLDINGS CORPORATION
1. Investment-Production Facility:
1. Susser Holdings agrees that it shall occupy the Facility for four years
beginning upon receipt of a Certificate of Occupancy. Susser Holdings, or
its subsidiaries, shall expend a minimum of Three Million Dollars
($3,000,000) for new construction, furniture, fixtures, and equipment at the
Facility, on or before December 31, 2008, as set forth in Schedule B
below.
2. Failure by Susser Holdings to timely and fully comply and to continue
to comply with any performance requirement of this Agreement shall be an
act of default.
2. Employment:
1. Susser Holdings, or its subsidiaries, agrees that it shall retain, create,
staff and maintain full-time corporate employment (as opposed to store
employees) for the Facility ar within Corpus Christi, Texas, as set forth in
Schedule C.
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2. The jobs shall be primarily engaged in serving a customer base outside
a 50-mile radius of the city of Corpus Christi.
3. Failure by Susser Holdings, or its subsidiaries, to timely and fully comply and
to continue to comply with any performance requirement of this Agreement shall
be an act of default.
III. REPORTING AND MONITORING
3.1. Reports and Monitoring: Susser Holdings agrees to the following reporting and
monitoring provisions, and failure to fully and timely comply with any one requirement
shall constitute an act of default.
1. Susser Holdings shall provide a yearly report certifying the status of
compliance though the life of this Agreement of newjobs created, new
investments and any other relevant information. Documentation for jobs may be
in the form of quarterly IRS 941 returns, Susser Holdings, or its subsidiaries,
employer Quarterly Reports, or employee rosters that show the hours worked
and the positions filled, and such other reports as may reasonably be required.
2. Susser Holdings, during normal working hours, at the Facility, shall allow
Corporation and its designee, Corpus Christi Regional Economic Development
Corporation, reasonable access to the Facility to allow Corporation to verify
construction progress.
3. Susser Holdings, during normal working hours, at the Facility, shall allow
Corporation and its designee, Corpus Christi Regional Economic Development
Corporation, reasonable access to Susser Holdings', or its subsidiaries,
employment records and books, to verify employment and all other relevant
records related to each of the other economic development considerations and
incentives, as stated in this Agreement, but the confidentiality of such records
and information shall be maintained by Corporation and its designee, Corpus
Christi Regional Economic Development Corporation, unless such records and
information shall be required by a court order, a lawfully issued subpoena, or at
the direction of the Office of the Texas Attorney General.
4. By January 31 of each year of this Agreement, Susser Holdings agrees to
provide Corporation with a sworn certificate by its corporate officer in charge of
personnel records certifying the following:
1. The number of full-time permanent corporate employees at the Facility,
or within Corpus Christi, Texas, as of December 31 of the previous
calendar year.
2. The number of full-time permanent jobs which were created during the
previous calendar year, with hourly wage.
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3. The cumulative salary and wage information for all corporate
employees at the Facility, or within Corpus Christi, Texas, during the
previous calendar year.
IV. COVENANTS, WARRANTIES, OBLIGATIONS AND DUTIES
4.1. Susser Holdings makes the following covenants and warranties to Corporation,
and agrees to timely and fully perform the following obligations and duties. Any false or
substantially misleading statement contained herein or failure to timely and fully perform
as required in this Agreement shall be an act of default by Susser Holdings. Failure to
comply with any one covenant or warranty shall constitute an act of default by Susser
Holdings.
1. Susser Holdings is a Delaware corporation authorized to do business in
Texas and has all corporate power and authority to carry on its business as
presently conducted in Corpus Christi, Texas.
2. The execution of this Agreement has been duly authorized by Susser
Holdings' governing body, and/or those managers having such authority pursuant
to Susser Holdings' current articles of incorporation, and the corporate officer
signing this Agreement is an officer of the corporation, empowered to execute
such Agreement and bind the corporation, said authorization, signing and binding
effect is not in contravention of any law, rule or regulation, or the provisions of
Susser Holdings' articles of incorporation, or of any agreement or instrument to
which Susser Holdings is a party or by which it may be bound, such authority to
be evidenced by a corporate resolution, attached hereto at the time of execution.
Susser Holdings has the authority to enter into and perform, and will perform, the
terms of this Agreement.
3. Susser Holdings has timely filed and will timely file all local, State, and
Federal tax reports and returns required by law to be filed and all taxes,
assessments, fees, and other governmental charges, including applicable ad
valorem and employment taxes, have been timely paid, and will be timely paid,
during the term of this Agreement.
4. No litigation or governmental proceeding is pending or, to the knowledge of
Susser Holdings or Susser Holdings' officers, threatened against or affecting
Susser Holdings that may result in any material adverse change in Susser
Holdings' business, properties, or operations. No consent, approval or
authorization of or registration or declaration within any governmental authority is
required in connection with the execution of this Agreement or the transactions
contemplated hereby.
5. No certificate, statement or information provided by Susser Holdings to
Corporation, the Corpus Christi Regional Economic Development Corporation, or
the City of Corpus Christi in connection with any transaction contemplated
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hereby, contains any untrue statements or fails to state any fact necessary to
keep the statements contained therein from being misleading.
6. To the best of its knowledge, Susser Holdings has acquired and maintained
all necessary rights, licenses, permits, and authority to carry on its business
operations in Corpus Christi, Texas, and will continue to use its best efforts to
maintain all necessary rights, licenses, permits and authority.
7. The funds herein granted shall be utilized solely for the purpose of offsetting
the cost of construction and purchasing and installing the furniture, equipment
and furnishings, and retaining, creating, staffing and maintaining the two hundred
sixty-three (263) full-time corporate employment positions at the Facility.
8. Susser Holdings shall maintain, during the time periods specified herein, its
employment and investment requirements.
9. Susser Holdings shall complete the project required by this Agreement and
shall provide and staff the required employment positions, investment, and other
economic development considerations described in this Agreement.
10. Susser Holdings shall timely and fully comply with all of the terms and
conditions of this Agreement.
11. Susser Holdings has received a copy of the Texas Development Corporation
Act of 1979, Art. 5190.6, Vernon's Texas Revised Civil Statutes, and
acknowledges that the funds granted in this Agreement must be utilized solely for
purposes authorized under State law and by the terms of this Agreement.
12. In the event it is determined by Corporation or City of Corpus Christi that
funds provided under this Agreement were not used in accordance with State
law, then Susser Holdings agrees to repay such funds to the Corporation within
30 days of written notice requesting reimbursement.
13. If an audit determines that the funds were not used for authorized purposes,
Susser Holdings agrees to reimburse Corporation for the sums of money spent
for purposes not authorized by law within 30 days written notice requesting
reimbursement.
14. There are no bankruptcy proceedings currently pending concerning Susser
Holdings, nor are any such proceedings contemplated by Susser Holdings, as of
the date of execution of this Agreement by Susser Holdings.
15. Susser Holdings will not discriminate nor permit discrimination against any
person or group of persons, with regard to employment and the provision of
services at, on, or in the Facility, on the grounds of race, religion, national origin,
marital status, sex, age, disability, or in any manner prohibited by the laws of the
United States or the State of Texas.
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16. Susser Holdings agrees to provide information, reports, or statements
respecting its business operations and financial condition as Corporation may
reasonably request from time to time.
17. Susser Holdings does not and will not knowingly employ an undocumented
worker.
4.2. All representations, warranties, covenants and agreements of the parties, as well
as any rights and benefits of the parties pertaining to the transaction contemplated
hereby, shall survive the original execution date of this Agreement.
V. SUSPENSIONS/TERMINATIONS
5.1. Corporation, under the following circumstances, and at its sole discretion, may
suspend its obligations under this Agreement or terminate this Agreement and
recapture from Susser Holdings any of the money grants paid by Corporation to Susser
Holdings representing the milestone(s) or performance requirement(s) or percentage of
the milestone(s) or performance requirement(s) not met, without liability to SUSSER
HOLDINGS, upon any one of the following events, which are an act of default.
1. The appointment of a receiver of Susser Holdings, or of all or any substantial
part of its property, and the failure of such receiver to be discharged within sixty
(60) days thereafter.
2. The adjudication of Susser Holdings as bankrupt.
3. The filing by Susser Holdings of a petition or an answer seeking bankruptcy,
receivership, reorganization, or admitting the material allegations of a petition
filed against it in any bankruptcy or reorganization proceeding.
4. The conviction of Susser Holdings of a violation of 8 U.S.C. Section 1324a(f)
VI. DEFAULT
6.1. Events of Default. Should Susser Holdings fail to timely, fully and completely
comply with any one or more of the requirements, obligations, duties, terms, conditions
or warranties of this Agreement such failure shall be an act of default by Susser
Holdings and, if not fully and completely cured and corrected or explained by Susser
Holdings within thirty (30) days after written notice to do so, Corporation may terminate
this Agreement and pursue all legal remedies as provided by law, provided however
that Susser Holdings' liability under this Agreement shall be limited to the return, within
thirty (30) days, by Susser Holdings to Corporation of the money grants previously paid
by Corporation to Susser Holdings, and if not returned within thirty (30) days, then
interest will commence to accrue at ten percent (10%) on all money paid to Susser
Holdings until fully repaid, plus reasonable attorney fees and cost of court to collect
such money, and the termination of all further obligations on behalf of Corporation under
this Agreement. Neither Corporation nor Susser Holdings shall be liable to any party for
any alleged consequential damages, including but not limited to loss of funds, loss of
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revenue, loss of financing, and/or any other damages that are classified as "special
damages." Additionally, the following events shall constitute a default of this
Agreement:
1. The Corporation or City determines that any representation or warranty on
behalf of Susser Holdings contained in this Agreement or in any financial
statement, certificate, report, or opinion submitted to the Corporation in
connection with this Agreement was intentionally incorrect or misleading in any
material respect when made;
2. Any material judgment is assessed against Susser Holdings or any
attachment or other levy against the property of Susser Holdings with respect to
a claim remains unpaid, undischarged, or not dismissed for a period of 30 days.
3. If taxes on the Facility become delinquent, and such taxes remain delinquent
after thirty (30) days notice of delinquency from the taxing authority responsible
for the collection of taxes or Susser Holdings fails to timely and properly follow
the legal procedures for protest or contest of such taxes.
4. Susser Holdings loses its right to occupy the Facility.
6.2. In the event of unforeseeable third party delays in the construction of the
Improvements or force majeure and upon a reasonable showing by Susser Holdings
that it has immediately and in good faith commenced and is diligently and continuously
pursuing the correction, removal or abatement of such delays by using its reasonable
efforts, Corporation may consent to and excuse such delays, which consent and excuse
shall not be unreasonably withheld. Failure by Susser Holdings to use its reasonable
efforts as required in this paragraph shall be an act of default. Force majeure means
severe weather such as hurricanes, tornadoes, flooding, wars, riots, and the
unavailability of necessary and essential equipment and supplies from all sources.
6.3. Any delay for any amount of time by Corporation in providing notice of default to
Susser Holdings shall in no event be deemed or constitute a waiver of such default by
Corporation of its rights and remedies available under this Agreement, or in law or
equity.
6.4. Any waiver granted by Corporation to Susser Holdings of any covenant or
condition, the breach of any covenant or condition of this Agreement, or of an act of
default shall not be deemed or constitute a waiver of any other existing or future breach
of a covenant or condition, or act of default by Susser Holdings or of a subsequent
breach of the same covenant or condition or act of default of the same act or event by
Susser Holdings.
6.5. No waiver of any covenant or condition, or the breach of any covenant or condition
of this Agreement, justifies or authorizes the nonobservance on any other occasion of
the covenant or condition or any other covenant or condition of this Agreement.
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6.6. Any waiver or indulgence of Susser Holdings's default may not be considered an
estoppel against the Corporation.
6.7. Failure of SUSSER HOLDINGS to meet a milestone or performance requirement
as set forth in the Schedules attached to this Agreement in any one year of this
Agreement does not preclude the Corporation from awarding the incentive or withheld
percentage thereof to Susser Holdings for accomplishment of the milestone or
performance requirement in a subsequent year, in addition to the milestones or
performance incentives for such subsequent year.
6.8. In the event that this Agreement is terminated by Corporation or Susser Holdings
commits an act of default that is not timely corrected and cured, Susser Holdings shall
immediately return to Corporation the money grants, previously paid by Corporation to
Susser Holdings and Corporation shall be relieved of any further obligations under this
Agreement.
6.9. In the event that Susser Holdings is convicted of a violation under 8 U.S.C. Section
1324a(f), Susser Holdings shall repay the amount of the incentives paid by the
Corporation, not later than the 120~h day after the date the Corporation notifies Susser
Holdings of the violation and if not repaid within one hundred twenty (120) days, then
interest will commence to accrue at the rate set forth above.
VII. CORPORATION'S LIABILITY LIMITATIONS
7.1. Payments: Susser Holdings specifically agrees that Corporation shall only be
liable to Susser Holdings for the actual amount of the money grants to be conveyed to
Susser Holdings and shall not be liable to Susser Holdings for any other actual or
consequential damages, direct or indirect, interest, attorney fees, or costs of court for
any act of default by Corporation under the terms of this Agreement. It is further
specifically agreed that Corporation shall only be required to pay the grant amounts
solely out of its sales tax revenue currently collected, allocated and budgeted and to be
allocated, budgeted and collected for Susser Holdings during the term of this
Agreement. Payment by Corporation is strictly limited to those funds so allocated,
budgeted and collected solely during the grant term of this Agreement, being the date of
last signature through December 31, 2013. Corporation shall use its best efforts to
anticipate economic conditions and to budget accordingly. However, it is further
understood and agreed that, should the actual total sales tax revenue collected for any
one year be less than the total amount of grants to be paid to all contracting parties with
Corporation for that year, then in that event, all contracting parties shall receive only
their pro rata share of the available sales tax revenue for that year, less Corporation's
customary and usual costs and expenses, as compared to each contracting parties'
grant amount for that year, and Corporation shall not be liable to Susser Holdings for
any such deficiency at that time or at any time in the future. In this event, Corporation
will provide all supporting documentation, as requested. Payments to be made to
Susser Holdings shall also require a written request from Susser Holdings to be
accompanied by all necessary supporting documentation. Corporation shall have forty-
five (45) days to make payment after receipt of such payment request. The payment
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request should be directed to the address provided for Corporation below. In the event
Corporation does not timely pay the full amount of the grant as specified herein, then
Susser Holdings will no longer be obligated to the terms of this Agreement.
VIII. NOTICE OF DEFAULT
8.1. Corporation shall give SUSSER HOLDINGS written notice of any act of default by
Susser Holdings, and Susser Holdings shall have thirty (30) days after receipt of the
notice to cure the default. Failure by Susser Holdings to timely and fully cure the act of
default shall permit Corporation, as the sole remedy, to pursue the collection of any
money grant previously paid by Corporation to Susser Holdings pursuant to this
Agreement.
8.2. Results of Uncured Default. After exhausting good faith attempts to address any
default during the Cure Period, and taking into account any extenuating circumstances
that might have occurred through no fault of Susser Holdings, as determined by the
Board of Directors of the Corporation, the following actions must be taken for any
default that remains uncured after the Cure Period:
1. Susser Holdings shall immediately repay all amounts paid by Corporation
under this Agreement with interest at the interest rate paid by the City on its most
recently issued general obligation bonds from date of expiration of Cure Period
until fully paid.
2. Susser Holdings shall pay Corporation reasonable attorney fees and costs of
court to collect amounts due to Corporation.
3. The Corporation shall have no further obligations to Susser Holdings under
this Agreement.
4. Neither the City nor the Corporation nor Susser Holdings may be held liable to
any other party of this Agreement for any consequential damages, including
special or indirect costs, loss or use or profits.
5. Upon repayment of the money grant previously paid to Susser Holdings by
Corporation, Susser Holdings shall no longer have any further obligations under this
Agreement.
8.3. Susser Holdings shall give Corporation written notice of any act of default by
Corporation, and Corporation shall have thirty (30) days after receipt of the notice to
cure the default. Failure by Corporation to timely and fully cure the act of default shall
permit Susser Holdings to pursue its legal remedies as provided in this Agreement.
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IX. DEFINITIONS
As used in this Agreement, the following words or phrases have the following meanings
9.1. Certificate of Occupancy means the final document issued by the City of
Corpus Christi, Texas, entitled "Certificate of Occupancy" indicating that all
building codes, regulations, and ordinances have been unconditionally, fully and
completely complied with in all respects, and specifically shall not include any
temporary or conditional document authorizing temporary or conditional
occupancy.
9.2. City of Corpus Christi or City means the governing municipal corporation,
the area that is within the city limits of the City of Corpus Christi, Texas.
9.3. Compliance means timely, fully and completely performing or meeting each
and every requirement, obligation, duty, condition, or warranty as stated in this
Agreement. Compliance means complete compliance and shall not mean
substantial compliance.
9.4. Act of Default means failure to timely and fully comply with one or more
requirements, obligations, duties, terms, conditions or warranties, as stated in
this Agreement. Corporation may, in its sole discretion, accept substantial
compliance in lieu of full compliance by waiving such act of default solely by an
instrument in writing.
9.5. FAS means Financial Accounting Standards.
9.6. Full-time Job or Full-time Equivalent Job (FTE) means a job requiring a
minimum of One Thousand Five Hundred Sixty (1,560) hours of work over a
twelve (12) month term or thirty (30) hours work per week, including allowance
for vacation and sick leave, with applicable company benefits and employed
exclusively and on-site in the city of Corpus Christi. Use of a staffing agency is
permitted provided all of the conditions here are met.
9.7. GAAP means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of the
date of determination, consistently applied.
9.8. Insolvent means failure to timely pay debts in the ordinary course of
business or cannot pay debts as they become due, or is insolvent within the
meaning of the federal bankruptcy law.
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9.9. Force Majeure means severe weather such as tornadoes or flooding,
named storms or hurricanes, wars, riots and the unavailability of necessary and
essential equipment and supplies from all sources.
X. GENERAL TERMS
10.1. Effective Date. The effective date of this Agreement ("Effective Date") is the
latest date that either party executes this Agreement.
10.2. Term. This Agreement shall expire on December 31, 2012; however, this does
not terminate the Corporation's obligation to pay any amounts due under Schedule A on
or before April 1, 2013.
10.3. Termination. This Agreement may be terminated by mutual agreement of the
parties or by either party, upon the failure of the other party to fulfill an obligation as set
forth herein. The termination of this Agreement shall extinguish all rights, duties,
obligations, and liabilities of the parties under this Agreement, except all rights, duties,
liabilities, and obligations accrued prior to such termination and any obligation of Susser
Holdings to repay monies to the Corporation shall survive termination.
10.4. Compliance with Laws. This Agreement is subject to all legal requirements in
the City Charter and Code of Ordinances of the City of Corpus Christi and all other
applicable county, state, and federal laws. Susser Holdings shall observe and obey all
applicable laws, ordinances, regulations, and rules of the Federal, State, County and
City governments, as may be amended or enacted. This Agreement shall be governed
by and construed in accordance with the laws and court decisions of the State of Texas.
10.5. Assignment. This Agreement shall be binding upon the parties hereto and their
successors and assigns. However, Susser Holdings may not assign all or any part of its
rights, privileges, or duties under this Agreement without the prior written approval of the
Corporation and City. Any attempted assignment without approval is void, and
constitutes a breach of this Agreement.
10.6. Buy Local Provision. Susser Holdings agrees to use its reasonable efforts to
give preference and priority to local manufacturers, suppliers, contractors, and labor,
except where not reasonably possible to do so without added expense, substantial
inconvenience, or sacrifice in operating efficiency. For the purposes of this section, the
term "local" as used to describe manufacturers, suppliers, contractors, and labor
includes firms, businesses, and persons who reside in or maintain an office within a 50-
mile radius of Nueces County.
10.7. Notices.
1. Any required written notices shall be sent mailed, certified mail, postage
prepaid, addressed as follows:
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SUSSER HOLDINGS:
Susser Holdings Corporation
c/o E. V. Bonner, Jr.
Executive Vice-President
P. O. Box 9036
Corpus Christi, Texas 78469
Corporation:
City of Corpus Christi
Business and Job Development Corporation
Attn: Executive Director
1201 Leopard Street
Corpus Christi, Texas 78401
2. A copy of all notices and correspondence must be sent to the City at the
following address:
City of Corpus Christi
Attn.: City Manager
P.O. Box 9277
Corpus Christi, Texas 78469-9277
3. Notice is effective upon deposit in the United States mail in the manner
provided above.
10.8. Incorporation of other documents.
1. The Corpus Christi Business & Job Development Corporation Guidelines &
Criteria for Granting Business Incentives ("Corporation Guidelines"), adopted
September 18, 2007, are incorporated into this Agreement.
2. Susser Holdings application submitted to the Corporation for business
incentives ("Application") is incorporated into this Agreement.
3. If there is any conflict in the terms of these documents, the following order
controls: (i) This Agreement, (ii) Corporation Guidelines, (iii) Application.
10.9. Amendments or Modifications. No amendments or modifications to this
Agreement may be made, nor any provision waived, unless in writing signed by a
person duly authorized to sign agreements on behalf of each party.
10.10. Relationship of Parties. In performing this Agreement, both the Corporation
and Susser Holdings will act in an individual capacity, and not as agents,
representatives, employees, employers, partners, joint-venturers, or associates of one
another. The employees or agents of either party may not be, nor be construed to be,
the employees or agents of the other party for any purpose.
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10.11. Captions. The captions in this Agreement are for convenience only and are not
a part of this Agreement. The captions do not in any way limit or amplify the terms and
provisions of this Agreement.
10.12. Severability.
1. If for any reason, any section, paragraph, subdivision, clause, provision,
phrase or word of this Agreement or the application of this Agreement to any
person or circumstance is, to any extent, held illegal, invalid, or unenforceable
under present or future law or by a final judgment of a court of competent
jurisdiction, then the remainder of this Agreement, or the application of the term
or provision to persons or circumstances other than those as to which it is held
illegal, invalid, or unenforceable, will not be affected by the law or judgment, for it
is the definite intent of the parties to this Agreement that every section,
paragraph, subdivision, clause, provision, phrase, or word of this Agreement be
given full force and effect for its purpose.
2. To the extent that any clause or provision is held illegal, invalid, or
unenforceable under present or future law effective during the term of this
Agreement, then the remainder of this Agreement is not affected by the law, and
in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or
provision, as similar in terms to the illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid, and enforceable, will be added
to this Agreement automatically.
10.13. Venue. Venue for any legal action related to this Agreement is in Nueces
County, Texas. Susser Holdings consents to, and waives any objections to, in
personum jurisdiction in Nueces County, Texas. This Agreement and the relationship
between Corporation and Susser Holdings shall be governed and interpreted under the
laws of the State of Texas without regard to any conflict of laws or provisions.
10.14. Sole Agreement. This Agreement constitutes the sole agreement between the
Corporation and Susser Holdings. Any prior agreements, promises, negotiations, or
representations, verbal or otherwise, not expressly stated in this Agreement, are of no
force and effect. Except as otherwise provided herein, this Agreement cannot be
modified or amended without a written agreement of the parties.
10.15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and constitute one and the
same instrument.
10.16. Representation. Corporation represents that no Corporation board member or
employee, City of Corpus Christi officer or employee, has been or will be compensated
in any manner with respect to directly or indirectly bringing the parties hereto together,
the negotiations, or the entering into of this Agreement. In no event will Susser
Holdings pay a fee to or in any manner compensate any Corporation board member or
employee, City of Corpus Christi officer or employee, in connection with the acceptance
Page 13 of 18
Susser Agreement -- 08152008
of this Agreement. A breach of this provision (10.16) shall result in automatic and
immediate termination of this Agreement, and shall be an act of default by Susser
Holdings.
10.17. Other Contracts. It is understood by Susser Holdings that Corporation has
heretofore entered, and may hereafter enter, into contracts with other companies or
persons upon terms and conditions different from the terms and conditions of this
Agreement, and Susser Holdings has no standing to object whatsoever to any such
contracts or require any modifications or changes to its Agreement due to such other
agreements.
10.18. Corporation, its officers and employees, and its agents or contractors retained to
perform economic development services for Corporation, shall treat as confidential the
financial statements of Susser Holdings and shall not release such information to the
public, unless required by law, Attorney General opinion, or court order. Corporation
shall immediately notify Susser Holdings upon receipt of any such of requests, affording
Susser Holdings the opportunity to participate in the request for an opinion from the
Texas Attorney General and any legal proceedings. Corporation shall immediately
notify Susser Holdings upon receipt of any opinion of the Texas Attorney General or
court orders to release such information.
10.19. All representations, warranties, covenants and agreements of the parties, as
well as any rights and benefits of the parties pertaining to the transaction contemplated
hereby, shall survive the original execution date of this Agreement.
EXECUTED on the date shown opposite the signature of each party
Page 14 of 18
Susser Agreement -- 08152008
Corpus Christi Business & Job Development Corporation
By:
Name:Eloy al zar
Title: Chairperson
Date: _~ ' ~-~"'" ~~
Attest
By:
Name:Armando Chapa
Title: Assistant Secretary
Susser Holdings Corporation
By: ~~°
Name: E. .Bonner, Jr.
Title: Executive Vice-President
Date: ~~ 9~F
Federal Taz ID No.
The State of Texas §
County of Nueces §
Ol-DB~a`~~5~
dY COUNCIL
Before me, ""ln it I'f • ~~"lA-W (Notary's name), on this day
AUTHORI2ta
personally appeared E. V. Bonner, Jr., Executive Vice-President of Susser Holdings
Corporation, known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he executed the same in the capacity stated
as the act of Susser Holdings Corporation, a Delaware corporation, for the purposes
and consideration expressed in the instrument.
Given under my hand and seal of office this the day of , 2008.
,,...~ LYNN M SHAW
~/~~4'O Notary PuMk
' l y~{ I' STATE OF TEXAS
\!naNt MY Comm. EW. 03-0&2010
t/I 1
t i Public, a of Texas
Page 15 of 18
Susser Agreement -- 08152008
SCHEDULE A
SUSSER HOLDINGS' SUSSER HOLDINGS' TIME OF CORPORATION'S
CONDITIONS PRECEDENT PERFORMANCE PERFORMANCE
AND PERFORMANCE REQUIREMENTS
REQUIREMENTS
Relocation of the corporate Proof of employment $128,000 payable on or before
offices and retail support center requirements December 31, April 1, 2009
to 4525 Ayers Street, Corpus 2008.
Christi, Texas, and the
construction, purchase of new Proof of capital investment of at
furniture, fixtures and equipment least $3,000,000 prior to
for the offices and retail support December 31, 2008.
center at a cost of $3,000,000;
creation and continued staffing
of a minimum of 27 full-time
employment positions, and the
retention and continued staffing
of 216 full-time employment
positions with an average
annual salary of $50,470 per
position or a cumulative annual
payroll at the facility of
$12,265,000.
Creation and continued staffing Proof of employment $128,000 payable on or before
of a minimum of 5 full-time requirements by December 31, April 1, 2010
employment positions, and the 2009.
retention and continued staffing
of 243 full-time employment
positions with an average
annual salary of $54,290 per
position or a cumulative annual
payroll at the facility of
$13,465,000.
Creation and continued staffing Proof of employment $128,000 payable on or before
of a minimum of 5 full-time requirements by December 31, April 1, 2011
employment positions, and the 2010
retention and continued staffing
of 248 full-time employment
positions with an average
annual salary of $54,000 per
position or a cumulative annual
payroll at the facility of
$13,665,000.
Creation and continued staffing Proof of employment $128,000 payable on or before
of a minimum of 5 full-time requirements by December 31, April 1, 2012
employment positions, and the 2011.
Page 16 of 18
Susser Agreement -- 08152008
SUSSER HOLDINGS'
CONDITIONS PRECEDENT
AND PERFORMANCE
REQUIREMENTS SUSSER HOLDINGS' TIME OF
PERFORMANCE CORPORATION'S
PERFORMANCE
REQUIREMENTS
retention and continued staffing 2011.
of 253 full-time employment
positions with an average
annual salary of $53,740 per
position or a cumulative annual
payroll at the facility of
$13,865,000
Creation and continued staffing Proof of employment $128,000 payable on or before
of a minimum of 5 full-time requirements by December 31, April 1, 2013
employment positions, and the 2012.
retention and continued staffing
of 258 full-time employment
positions with an average
annual salary of $53,480 per
position or a cumulative annual
payroll at the facility of
$14,065,000
SCHEDULE B
SUSSER HOLDINGS' PERFORMANCE
REQUIREMENTS SUSSER HOLDINGS' TIME OF
PERFORMANCE
Relocation of the corporate facilities to 4525 December 31, 2008.
Ayers Street, Corpus Christi, Texas, and the
construction, purchase of new furniture, fixtures
and equipment for the retail support center at a
cost of $3,000,000.
Continued occupation and full-time operations at. January 1, 2010 through December 31, 2012
Page 17 of 18
Susser Agreement -- 08152008
SCHEDULE C
SUSSER HOLDINGS' PERFORMANCE SUSSER HOLDINGS' TIME OF
REQUIREMENTS PERFORMANCE
Creation and continued staffing of a minimum of December 31, 2008
27 full-time employment positions, and the
retention and continued staffing of 216 full-time
employment positions with an average annual
salary of $50,470 per position or a cumulative
annual payroll at the facility of $12,265,000.
Creation and continued staffing of a minimum of 5 December 31, 2009
full-time employment positions, and the retention
and continued staffing of 243 full-time
employment positions with an average annual
salary of $54,290 per position or a cumulative
annual payroll at the facility of $13,465,000.
Creation and continued staffing of a minimum of 5 December 31, 2010
full-time employment positions, and the retention
and continued staffing of 248 full-time
employment positions with an average annual
salary of $54,000 per position or a cumulative
annual payroll at the facility of $13,665,000.
Creation and continued staffing of a minimum of 5 December 31, 2011
full-time employment positions, and the retention
and continued staffing of 253 full-time
employment positions with an average annual
salary of $53,740 per position or a cumulative
annual payroll at the facility of $13,865,000.
Creation and continued staffing of a minimum of 5 December 31, 2012
full-time employment positions, and the retention
and continued staffing of 258 full-time
employment positions with an average annual
salary of $53,480 per position or a cumulative
annual payroll at the facility of $14,065,000.
Page 18 of 18
Susser Agreement -- 08152008
M~~C~G3J
Holdings Corporario„
\/
R. Jay Reining
First Assistant City Attorney
City of Corpus Christi
P.O. Box 9277
Corpus Christi, TX 78469-9277
August 20, 2008
E. V. "Chip" Bonner, Jr. ~
Executive Vice President
and General Counsel
Tel: 361.693.3735
Fox: 361.693.3725
ebonner@susser.com
p~G2p08
F~~~p.0
OED
Re: Agreement to Grant Business Incentives to Susser Holdings Corporation
for the Creation of Jobs
Dear Jay:
Enclosed please find three executed originals of the above referenced
Agreement. Please note that I corrected the address of our principal place of business
in the first paragraph of the Agreement. Upon execution by the City, please return one
fully executed original Agreement to me for our file.
If you have any questions, please contact me.
Very truly yours,
E. V. Bonner, Jr.
EVBjr:lmhs
enclosures
Sfreef Address: 4525 Ayers Street, Corpus Christi, TX 78415 Moiling Address: P.O. Box 903+r6, CorpuspChristi, TX 78469-9036 www.susser.com
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