2010R14 Sysco Development Agreement RESOLUTION NO. 10-R-14
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING AN ECONOMIC DEVELOPMENT
AGREEMENT; AUTHORIZING CERTAIN BENEFITS BY AND TO THE
CITY PURSUANT THERETO; AND OTHER MATTERS IN
CONNECTION THEREWITH
WHEREAS, the City Council has determined that it is in the best interest of the City of
Schertz to enter into a Development Agreement in connection with Project Mustang.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Development Agreement in substantially the form set forth on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
50305965.1
PASSED AND ADOPTED, this 23rd day of March, 2010.
CITY OF SC RTZ, TEXAS
Ma or
ATTEST:
y Secretary
(CITY SEAL)
50305965. I
EXHIBIT A
DEVELOPMENT AGREEMENT
50305965.1 A-1
FINAL
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (this "Agreement"), dated March 23, 2010 (the
"Effective Date"), is among the City of Schertz, Texas, a Texas home-rule city (the "City"), City
of Schertz Economic Development Corporation, a Texas non-profit corporation created by the
City (the "SEDC"), San Antonio One Limited Partnership, a Michigan limited partnership (the
"Partnership"), and Sysco San Antonio, Inc., a Delaware corporation ("Sysco") (the City, the
SEDC, the Partnership, and Sysco, each a "Party" and together the "Parties").
WITNESSETH:
WHEREAS, by Ordinance No. 09-T-02, the City has established a program (the "City
Program") under Chapter 380, Texas Local Government Code, as amended, to promote
economic development and to stimulate business and commercial activity in the City; and
WHEREAS, the SEDC has been established by the City to promote economic
development in the City by sponsoring and funding economic development projects; and
WHEREAS, the Partnership owns an approximately 139.456-acre tract of land within
the City between Schwab Road and Friesenhahn Road on the north frontage road of IH-35 (the
"Partnership Tract"), as more particularly described on Exhibit A; and
WHEREAS, Sysco will build a regional distribution center on an approximately 51.379-
acre tract of land which is a part of the Partnership Tract and which Sysco will purchase from the
Partnership at the location more particularly described on Exhibit B (the "Sysco Development
Site"); and
WHEREAS, the regional distribution center to be built by Sysco on the Sysco
Development Site will have the minimum building and supporting Sysco infrastructure
characteristics and operational and employment profile and will be implemented on the schedule
set forth on Exhibit C (the "Sysco Development");
WHEREAS, the Parties will cooperate in the construction of certain water and
wastewater, and stormwater utilities and roadways to serve the Sysco Development and the
Sysco Development Site (the "Sysco Infrastructure Project"), as more particularly described on
Exhibit D; and
WHEREAS, the Parties are entering into this Agreement for the purpose of setting forth
their respective obligations with respect to the Sysco Development and the Sysco Infrastructure
Project.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
set forth herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereby agree as follows:
Section 1. Agreed Actions.
(a) Sysco agrees to take the following actions:
(i) Sysco will promptly close its purchase of the Sysco Development Site,
including the right-of--way of Road C, as described in subsection (c) below, and, subject
to Section 8(fj commence construction of the Sysco Development facility and related
infrastructure on the Sysco Development Site with a goal of securing a certificate of
occupancy for such facility during or before August, 2011, and meeting full initial
operating capacity as described on Exhibit C on or before October 31, 2011 (the "Sysco
Final Completion Date").
(ii) Sysco will direct its engineers to work closely with the City Engineer to
achieve the cooperative design of the Sysco Infrastructure Project as set forth in Section 2
hereof.
(iii) Sysco will promptly provide all permanent and temporary construction
easements requested by the City on the Sysco Development Site (in forms and locations
reasonably acceptable to Sysco) to permit the City to complete its obligations described
in subsection (c) below.
(iv) Sysco will closely coordinate its construction activities relating to the
Sysco Development with all appropriate City departments.
(v) Sysco will dedicate Road C to the City as a public road when the City
notifies Sysco that the construction of Road C is complete.
(vi) Sysco agrees to pay the City for all costs of the Sysco Infrastructure
Project incurred consistent with the Final Construction Plans as defined below (excluding
the stormwater drainage elements thereof and the portion of the wastewater line for
which the Partnership is financially responsible pursuant to Section 1(b)(iv) below) in
excess of $1,400,000 upon the City's written request therefor when any such amounts are
due for payment or to reimburse the City for any such amounts previously paid by the
City.
(vii) Sysco specifically acknowledges and agrees to the terms of Sections 3
(Sysco Infrastructure Project Control), 8 (Termination), 9 (Incentive Recapture), and 10
(Confidentiality) of this Agreement.
(b) The Partnership agrees to take the following actions:
(i) The Partnership will promptly close its sale to Sysco of the Sysco
Development Site, including the right-of--way for Road C.
(ii) The Partnership will promptly provide all permanent and temporary
construction easements requested by the City on the Partnership Tract (in forms and
locations reasonably acceptable to the Partnership) to permit the City to complete its
obligations described in subsection (c) below.
(iii) The Partnership will contribute $25,000 to the City to be applied to costs
of construction of the Schwab Road water line, as described in subsection (c) below. It
will transfer such amount to the City upon the closing of the sale of the Sysco
50301044.9 2
Development Site by the Partnership to Sysco. Such amount shall be held in escrow by
the City for application to costs of construction of the Schwab Road water line.
(iv) The Partnership will pay or reimburse the City for the portion of the costs
of construction of the wastewater line as described an subsection 1(c)(iv) below that are
applicable to the portion of such wastewater line to be located upstream from Sysco's
point of entry therein.
(v) The Partnership will pay or reimburse the City for all costs of construction
of the stormwater facilities as described in subsection (c)(v) below. It will transfer the
bid amount for the stormwater facilities to the City prior to the City's commencement of
construction of the stormwater facilities, and such transfer shall be a precondition to the
City giving its contractor notice to proceed on such project. The Partnership will
reimburse the City for any additional amounts required in connection with change orders
approved by the Partnership, which approval shall not be unreasonably withheld.
(vi) The Partnership specifically acknowledges and agrees to the terms of
Sections 10 (Confidentiality) and 11 (Publicity) of this Agreement.
(c) The City will build or cause to be built the five elements of the Sysco
Infrastructure Project described on Exhibit D: Road A, Road C, the Schwab Road water line and
the spur water line, the wastewater line, and the stormwater facilities, all as described further
below.
(i) The City will complete the construction of Road A in accordance with the
Final Construction Plans (which will include design parameters to be provided by Sysco)
that will accommodate the truck traffic that Sysco has indicated will regularly access the
Sysco Development on Road A. The City will secure from Lack Properties, Inc. the
dedication to the City of the northern one-half of Road A. The southern one-half of Road
A will be dedicated to the City by plat by Sysco. Road A will be approximately 1,700
feet long and 64 feet wide, excluding the temporary turning circle at its western end.
Construction of Road A is preliminarily estimated by the City and Sysco to cost
$500,000. Upon completion of construction, the City will be responsible for continuing
maintenance of Road A as a public road in accordance with standard City maintenance
procedures. Subject to the Final Construction Plans being agreed to by May 12, 2010 and
Section 8(f), the City will commence construction of Road A no later than the date stated
in the bidding instructions.
(ii) Road C is a cul-de-sac roadway to be built on Sysco property (the right-of-
way for Road C to be conveyed to Sysco by the Partnership), and the City will complete
the construction of Road C in accordance with the Final Construction Plans (which will
include design parameters to be provided by Sysco) that will accommodate the traffic that
Sysco has indicated will regularly access the Sysco Development on Road C. Sysco and
the Partnership will provide the City upon its request and without cost all necessary
construction easements for the construction of Road C (in forms and locations reasonably
acceptable to Sysco and the Partnership, respectively). Road C will be approximately
750 feet long and 36 feet wide. Construction of Road C is preliminarily estimated by the
50301044.9 3
City and Sysco to cost $140,000. Upon completion of construction, Sysco will dedicate
Road C and the Road Cright-of--way to the City as a public road, and the City will
thereafter be responsible for continuing maintenance of Road C in accordance with
standard City maintenance procedures. Subject to the Final Construction Plans being
agreed to by May 12, 2010 and Section 8(f), the City will commence construction of
Road C no later than the date stated in the bidding instructions.
(iii) The water line shown on Exhibit D will consist of two parts:
(x) completion of a "looped" water line by extending the existing water line on the
western side of Schwab Road at its intersection with Road A approximately 2,500 feet
southward adjacent to Schwab Road to and under (by bore) Interstate 35 and connected to
an existing water line south of Interstate 35 (the "Schwab Road water line"); and (y) a
spur water line from the Schwab Road water line along a line just north of the southern
boundary of the Sysco Development Site (excluding Road Cright-of--way) approximately
1,000 feet to a point approximately 75 feet south of the point of connection to the Sysco
Development facility (the "spur water line"). The Schwab Road water line will be
constructed in easements provided to the City by Sysco and the Partnership as indicated
on Exhibit D; Sysco and the Partnership will provide the City at its request and without
cost a permanent 16-foot wide utility easement and a 20-foot wide temporary
construction easement (in forms and locations reasonably acceptable to Sysco and the
Partnership, respectively). The spur water line will be constructed in easements provided
to the City by Sysco and indicated in Exhibit D; Sysco will provide the City at its request
and without cost a permanent 16-foot wide utility easement and a 20-foot wide
temporary construction easement (in forms reasonably acceptable to Sysco) for such
purpose. Construction of the Schwab Road water line and the spur water line is
preliminarily estimated by the City and Sysco to cost $600,000. Upon completion of
construction, the City will own both water lines and will be responsible for the continuing
maintenance thereof. Subject to the Final Construction Plans being agreed to by May 12,
2010 and Section 8(fj, the City will commence construction of the water lines no later
than the date stated in the bidding instructions.
(iv) The wastewater line shown on Exhibit D will be approximately 1,400 feet
running south on the west side of Schwab Road from the intersection of Road A and
Schwab Road, constructed in easements provided to the City by Sysco and the
Partnership as indicated on Exhibit D; Sysco and the Partnership will provide the City at
its request and without cost a permanent 16-foot wide utility easement and a 20-foot
wide temporary construction easement (in forms and locations reasonably acceptable to
Sysco and the Partnership, respectively). Construction of the wastewater line is
preliminarily estimated by the City and Sysco to cost $100,000. Upon completion of
construction, the City will own the wastewater line and will be responsible for the
continuing maintenance thereof. Subject to the Final Construction Plans being agreed to
by May 12, 2010 and Section 8(f), the City will commence construction of the
wastewater line no later than the date stated in the bidding instructions.
(v) The stormwater facilities shown on Exhibit D will be constructed from the
intersection of Road C and Schwab Road approximately 500 feet north to existing
culverts under Schwab Road, in easements provided to the City by the Partnership as
50301044.9 4
indicated on Exhibit D; the Partnership will provide the City at its request and without
cost a permanent 20-foot wide utility easement and a 20-foot wide temporary
construction easement (in a form and location reasonably acceptable to the Partnership).
Construction of the stormwater facilities is preliminarily estimated by the City and Sysco
to cost $100,000. Upon completion of construction, the City will own the stormwater
facilities and will be responsible for the continuing maintenance thereof. Subject to the
Final Construction Plans being agreed to by May 12, 2010 and Section 8(f), the City will
commence construction of the stormwater facilities no later than the date stated in the
bidding instructions.
(vi) The City will construct or cause the construction of the Sysco
Infrastructure Project at its cost, subject to the payment obligations of Sysco, the
Partnership, and the SEDC in subsections (a)(vi), (b)(iii) and (b)(iv), and (d)(i),
respectively, and pursuant to the procedures described in Sections 2 and 3 hereof.
(vii) The City will take all reasonable means to expedite the City permitting,
inspection, and approval process for the construction aspects of the Sysco Development.
(viii) The City will permit future curb cuts on Road A in accordance with City
policy in effect from time to time and will permit curb cuts on Road C as set forth on
Exhibit D.
(ix) Subject to Section 8(f), if the City fails to timely satisfy its obligations
under Sections 2(c)(i), (ii), (iii), (iv), or (v) with respect to the commencement dates
described therein and/or the 50% City Completion Dates and/or the Final City
Completion Dates set forth in Exhibit E, Sysco may elect to (but not be obligated to)
undertake the City's obligations under such Sections, and Sysco shall be entitled to
recover the actual documented costs and expenses incurred in connection therewith from
the City. Such costs and expenses shall be due and payable to Sysco within thirty (30)
calendar days after delivery of written notice to the City of the amount thereof, together
with copies of all applicable invoices and/or bills evidencing same. In the event such
amounts are not paid within such thirty (30) day period, they shall accrue interest at the
maximum rate of interest allowable under the laws of the State of Texas (not to exceed
twelve percent 12% per annum). In the event Sysco elects to undertake the City's
obligations as set forth herein, the City, the SEDC, and the Partnership shall cooperate
with Sysco in good faith to enable Sysco to timely complete same.
(x) The City specifically acknowledges and agrees to the terms of Sections 10
and 11 of this Agreement.
(d) The SEDC agrees to take the following actions:
(i) The SEDC will, upon demand by the City (which the City may make at
any time following its acceptance of a bid or bids for construction of the Sysco
Infrastructure Project), transfer to the City the lesser of (x) the total bid amount, minus
$25,000, minus the cost of construction of the stormwater facilities, and minus the cost of
construction of the portion of the wastewater line for which the Partnership is financially
50301044.9 5
responsible pursuant to Section 1(b)(iv) or (y) $1,250,000, to be applied as determined by
the City to costs of construction of any or all of the Sysco Infrastructure Project.
(ii) The SEDC will assist Sysco in seeking tax abatement from Comal County,
Texas relating to the Sysco Development.
(iii) The SEDC specifically acknowledges the terms of Sections 10
(Confidentiality) and 11 (Publicity) of this Agreement.
Section 2. Sysco En ing Bering Project Design Coordination. Sysco's Engineers will
design the Sysco Infrastructure Project to City standards based on engineering parameters
approved by the City Engineer and Sysco to serve the Sysco Development. Sysco's Engineers
will modify their Sysco Infrastructure Project plans as required by the City Engineer and
approved by Sysco and, with respect to Road C, the wastewater line, and the stormwater
drainage facilities, the Partnership (the "Final Construction Plans"); provided, the Parties agree
that the Final Construction Plans, as agreed to on May 12, 2010, may be modified from time to
time thereafter by agreement of the City, Sysco, and (with respect to Road C, the wastewater
line, and the stormwater drainage facilities) the Partnership, and references in this Agreement to
the Final Construction Plans shall be to the Final Construction Plans in effect at the relevant
time. Sysco shall deliver to the City the initial construction plans for the Sysco Infrastructure
Project no later than May 3, 2010. The City Engineer will provide comments to such initial
construction plan to Sysco's Engineers in no more than three (3) business days after receipt of
the initial construction plans, and Sysco's Engineers will provide proposed Final Construction
Plans to the City in no more than two (2) business days thereafter. Sysco and the City shall use
commercially reasonable efforts in good faith to agree upon the Final Construction Plans no later
than May 12, 2010. The City and Sysco will each pay the fees, respectively, of the City
Engineer and Sysco's Engineers.
Section 3. Sysco Infrastructure Project Control.
(a) When the Final Construction Plans have been approved by the City, Sysco, and,
with respect to Road C, the wastewater line, and the stormwater drainage facilities, the
Partnership, the City Engineer in consultation with Sysco's Engineers will notify all Parties (on
or about May 14, 2010) and provide a revised estimate of the anticipated cost for the Sysco
Infrastructure Project (the "Preliminary Estimate of Construction Cost"). Upon agreement
between the City and Sysco as to the Preliminary Estimate of Construction Cost, work on the
Sysco Infrastructure Project shall be bid as a single construction project.
(b) Within ten (10) business days after the City and Sysco have agreed on the
Preliminary Estimate of Construction Cost, the City will solicit bids for construction of the Sysco
Infrastructure Project based upon the Final Construction Plans. The bidding instructions will
require that the bid cost of (i) Road A, (ii) the wastewater line, and (iii) the stormwater drainage
facilities which are a part of the Sysco Infrastructure Project must each be separately stated in the
bid. The bidding instructions will also set forth the required commencement date (which must be
acceptable to Sysco) for each of the five (5) elements of the Sysco Infrastructure Project and the
50% City Completion Date and the Final City Completion Date for each such element set forth
50301044.9 6
in Exhibit E. The City will require responses to its bid request to be submitted within thirty (30)
days of the date of solicitation.
(c) At bid opening, the City will promptly provide Sysco, the Partnership, and the
SEDC with the bid tabulations, and Sysco, the Partnership, and the SEDC shall provide to the
City their respective comments andlor recommendations by the close of business on the second
business day following their receipt of the bid tabulations. The City will schedule action on the
bid award by the City Council on the next following Tuesday for which bid award
recommendations may be provided by City staff to the City Council, which is the close of
business on the Wednesday preceding the applicable City Council meeting. The City will select
the lowest and best bid or bids (or may reject all bids) in its sole but reasonable discretion. If the
bids for one or more elements of the Sysco Infrastructure Project other than stormwater drainage
are rejected, the Parties agree that they will in good faith negotiate modifications to this
Agreement to permit re-solicitation of bids and to make appropriate related changes.
(d) Larry Dublin will serve as initial Construction Manager for the Sysco
Infrastructure Project. The City may change the Construction Manager from time to time upon
written notice to the other Parties.
(e) The Construction Manager will provide to all of the parties a schedule for
construction of the Sysco Infrastructure Project, with a goal of completing construction of the
Sysco Infrastructure Project in accordance with the 50% City Completion Dates and the Final
City Completion Dates set forth on Exhibit E.
(f) The Construction Manager will provide periodic updates on the status of the
Sysco Infrastructure Project construction (including, but not limited to, the status of same with
respect to the 50% City Completion Dates and the Final City Completion Dates as set forth on
Exhibit E) and will promptly notify all of the Parties of any changes in the construction schedule
and copies of any change orders. The Construction Manager will also provide periodic on-site
reviews of construction progress.
Section 4. Grants. The SEDC will investigate grants that may be available to pay or
reimburse portions of the costs of the Sysco Infrastructure Project and the Sysco Development
and provide notice thereof to all Parties.
Section 5. Future Connections. Requests in the future for connections to water lines
and wastewater lines, if any, on Sysco's property will include connections to main service lines
only (not lines connected to Sysco facilities) and will be coordinated with Sysco so as not to
interfere with the ownership, development, use, or operation of Sysco's property or the Sysco
Development.
Section 6. Cit~Pro~ram Determination. The City has determined, and hereby agrees
with all of the other Parties, that the intent and terms of this Agreement, and the obligations of
the City hereunder, are in accordance with and in furtherance of the City Program.
Section 7. Representations and Covenants.
(a) Sysco hereby represents and covenants as follows:
50301044.9 7
(i) Sysco is a duly authorized and existing corporation, created and operating
and in good standing under the laws of the State of Delaware and is authorized to transact
business in the State of Texas.
(ii) Sysco has taken all necessary corporate action to authorize its execution
and delivery of this Agreement and its performance of its obligations hereunder.
(iii) Sysco has available to it, without restriction, all funds required to be
expended by it under this Agreement.
(iv) Sysco will use its best efforts to complete all of its obligations under this
Agreement when and as required.
(v) Sysco has not entered into, and will not enter into, any agreement (written
or otherwise) with any person or entity that would prohibit or limit Sysco from
performing all of its obligations under this Agreement.
(vi) There is no litigation, claim, or proceeding pending of which Sysco has
received written notice, nor to the actual knowledge of Sysco is there any litigation,
claim, or proceeding threatened that would prohibit or limit Sysco from performing all of
its obligations under this Agreement.
(vii) Sysco will not dissolve or take any action in furtherance thereof so long as
it has not performed all of its obligations under this Agreement.
(viii) Sysco will not dispose of or transfer any of its assets to a person or entity
not a party to this Agreement if such disposition or transfer would materially and
adversely affect its ability to perform all of its obligations under this Agreement.
(ix) Sysco covenants and agrees to use its best efforts, subject to Section 8(f),
to complete the Sysco Development described on Exhibit C within the schedule set forth
on Exhibit C and thereafter to operate the Sysco Development during the term hereof in
accordance with the minimum parameters set forth in parts A and B on Exhibit C.
(x) Sysco agrees to allow inspection of the Sysco Development by the City
Manager or his designee. Such inspection shall be to determine if the terms and
conditions of this Agreement are being met and for the purpose of assuring compliance
with applicable City codes and ordinances. Inspections will be made only after giving
Sysco a minimum of three (3) business days prior written notice and will be conducted in
such a manner as to not unreasonably interfere with the operation of the Sysco
Development.
(xi) Sysco will promptly notify the City in writing if it has actual knowledge
that it is in default of any obligation under this Agreement.
(xii) Sysco agrees to certify annually in writing its compliance with the terms
of this Agreement, which shall specifically address compliance with parts A and B of
50301044.9 8
Exhibit C. Such certification shall be filed with the City by January 15th of each year,
commencing January 15, 2011 through January 15, 2021.
(b) The Partnership hereby represents and covenants as follows:
(i) The Partnership is a duly authorized and existing limited partnership,
created and operating under the laws of the State of Michigan and is authorized to
transact business in the State of Texas.
(ii) The Partnership has taken all necessary action to authorize its execution
and delivery of this Agreement and its performance of its obligations hereunder.
(iii) The Partnership will complete all of its obligations under this Agreement
when and as required.
(iv) The Partnership has not entered into, and will not enter into, any
agreement (written or otherwise) with any person or entity that would prohibit or limit the
Partnership from performing all of its obligations under this Agreement.
(v) There is no litigation, claim, or proceeding pending of which the
Partnership has received notice, nor to the knowledge of the Partnership is there any
litigation, claim, or proceeding threatened that would prohibit or limit the Partnership
from performing all of its obligations under this Agreement.
(vi) The Partnership will not dissolve or take any action in furtherance thereof
so long as it has not performed all of its obligations under this Agreement.
(vii) The Partnership will not dispose of or transfer any of its assets if such
. disposition or transfer would adversely affect its ability to perform all of its obligations
under this Agreement.
(c) The SEDC hereby represents and covenants as follows:
(i) The SEDC is a duly authorized and existing special purpose non-profit
corporation, created and operating and in good standing under the laws of the State of
Texas.
(ii) The SEDC has taken all necessary corporate action to authorize its
execution and delivery of this Agreement and its performance of its obligations
hereunder.
(iii) The SEDC has available to it, without restriction, all funds required to be
expended by it under this Agreement.
(iv) The SEDC will use its best efforts to complete all of its obligations under
this Agreement when and as required.
50301044.9 9
(v) The SEDC has not entered into, and will not enter into, any agreement
(written or otherwise) with any person or entity that would prohibit or limit SEDC from
performing all of its obligations under this Agreement.
(vi) There is no litigation, claim, or proceeding pending of which the SEDC
has received notice, nor to the knowledge of the SEDC is there any litigation, claim, or
proceeding threatened that would prohibit or limit the SEDC from performing all of its
obligations under this Agreement.
(vii) The SEDC will not dissolve or take any action in furtherance thereof so
long as it has not performed all of its obligations under this Agreement.
(viii) The SEDC will not dispose of or transfer any of its assets to a person or
entity not a party to this Agreement if such disposition or transfer would adversely affect
its ability to perform all of its obligations under this Agreement.
(d) The City hereby represents and covenants as follows:
(i) The City is a duly authorized and existing Texas municipal corporation
and home rule city, created and existing under the laws of the State of Texas.
(ii) The City has taken all necessary action to authorize its execution and
delivery of this Agreement and its performance of its obligations hereunder.
(iii) The City has appropriated or expects to appropriate when required all
funds required to be expended by it under this Agreement.
(iv) The City will use its best efforts, subject to Section 8(f), to complete all of
its obligations under this Agreement when and as required.
(v) The City has not entered into, and will not enter into, any agreement
(written or otherwise) with any person or entity that would prohibit or limit the City from
performing all of its obligations under this Agreement.
(vi) There is no litigation, claim, or proceeding pending of which the City has
received notice, nor to the knowledge of the City is there any litigation, claim, or
proceeding threatened that would prohibit or limit the City from performing all of its
obligations under this Agreement.
(vii) The City will not dissolve or take any action in furtherance thereof so long
as it has not performed all of its obligations under this Agreement.
(viii) The City will not dispose of or transfer any of its assets to a person or
entity not a party to this Agreement if such disposition or transfer would adversely affect
its ability to perform all of its obligations under this Agreement.
50301044.9 1 ~
Section 8. Defaults; Remedies; Termination; Force Majeure.
(a) If during the term of this Agreement Sysco shall not provide the agreed easements
to be provided by it under this Agreement or shall not timely build the Sysco Development or
should discontinue operations at the Sysco Development as described in parts A and E on
Exhibit C for a period of ninety (90) consecutive calendar days, then the City shall have the right
to terminate this Agreement in accordance with subsection (b) below.
(b) In the event the City determines that it has the right to terminate this Agreement
under the circumstances described in subsection (a) above, the City shall notify Sysco in writing
at the address set forth in Section 13 of this Agreement, and, if the defaults specified with
reasonable particularity in such notice (including but not limited to a reference to which
provision of Section 8(a) the City is relying upon) are not cured within sixty (60) days from the
date of such notice, the City may terminate this Agreement effective immediately, subject to the
City's rights under Section 9, upon written notice to Sysco, with a copy to the other Parties;
provided, however, that in the event such default(s) is susceptible of cure but is not cured within
such sixty (60) day period, so long as Sysco is diligently and continuously pursuing such cure,
the City shall permit Sysco an additional sixty (60) days to effectuate such cure.
(c) Upon termination of this Agreement under subsections (a) and (b) above, the City
shall have the rights set forth in Section 9(a) below.
(d) If the City or Sysco determines that the Partnership or the SEDC has defaulted in
its payment obligations or, in the case of the Partnership, has not provided the agreed easements
to be provided by it under this Agreement, the City and/or Sysco may seek specific performance
against the Partnership or the SEDC, as the case may be, or seek such other remedies as may be
available at law or equity.
(e) [Reserved].
(f) Notwithstanding anything to the contrary set forth herein, (i) the 50% City
Completion Dates and the Final City Completion Dates set forth on Exhibit E for all elements of
the Sysco Infrastructure Project shall be extended one day for each day that the City or its
contractor was prevented, delayed, or stopped from completing such elements due to war,
terrorism, strikes, weather, natural disaster, or acts of God ("Unavoidable Delays"), and (ii) the
Sysco Final Completion Date and all dates to complete the Sysco Development set forth on
Exhibit C shall be extended one day for each day that Sysco or its contractor was prevented,
delayed, or stopped from pursuing completion of Sysco's obligations with respect thereto due to
Unavoidable Delays and/or any delays caused by the City's failure to complete the Sysco
Infrastructure Project on or before the Final City Completion Dates set forth on Exhibit E as they
may be extended pursuant to subsection (f)(i) above; provided, however, that in order for the
City or Sysco to claim the existence of Unavoidable Delays hereunder, such Party shall be
required to provide written notice to the other Parry within the first three (3) business days of a
month with respect to any Unavoidable Delay claimed by it for the preceding month.
50301044.9 11
Section 9. Incentive Recapture.
(a) If this Agreement is terminated by the City pursuant to Section 8(a), Sysco shall,
within thirty (30) days after its receipt of notice of termination, pay the City the amount
determined below as liquidated damages:
of Total Expenditures under this
Agreement Terminated Agreement by the City and the SEDC
2011 100%
2012 100%
2013 90%
2014 80%
2015 70%
2016 60%
2017 50%
2018 40%
2019 30%
2020 20%
2021 10%
The City shall remit to the SEDC its prorata share of such payment.
(b) Sysco further certifies and agrees as follows:
(i) Sysco certifies that its operation within the City will not knowingly
employ an undocumented worker, as defined in Chapter 2264, Subchapter A, Texas
Government Code, as amended (the "Act"); and
(ii) pursuant to the Act, if Sysco is convicted of a violation under 8 U.S.C.
Section 1324a(f) with respect to its operations in the City, after receiving all or any
portion of the "public subsidy" (as defined in the Act) authorized by this Agreement,
Sysco shall (x) promptly give the City written notice of such violation, and (y) repay the
amount of the public subsidy with interest, at the rate of the prime rate of interest per
annum of the City's depository bank in effect on the date Sysco notifies the City of the
violation. Such repayment shall be made not later than the 120th day after the date
Sysco notifies the City of the violation.
Section 10. Confidentiality.
(a) Subject to subsections (c) and (d) below, each Party and its employees,
representatives, attorneys, and other consultants (collectively, the "representatives") shall keep
strictly confidential all information which another Party, its affiliates, or its representatives
furnish to it in connection with the evaluation of the subject matter of this Agreement, whether
furnished before or after the date of this Agreement, whether furnished orally or in writing or
gathered by inspection, and regardless of whether specifically identified as "confidential", and all
notes, analyses, compilations, studies, or other documents which contain or otherwise reflect
such information (collectively, the "Confidential Information"); however, each Party may
50301044.9 12
disclose the Confidential Information to its representatives who (i) need to know such
information for the purpose of evaluating the subject matter of this Agreement, (ii) have been
informed of the confidential nature of the Confidential Information, and (iii) have agreed in
writing to treat the Confidential Information confidentially, to use it only for the purpose
described in sub-paragraph (b) below. The term "Conf dential Information" shall not include
information about a Party which becomes generally available to the public other than as a result
of an improper disclosure by another Party, its affiliates, or its representatives.
(b) Each Party and its representatives shall use Confidential Information solely for
the purpose of evaluating the Sysco Development or the Sysco Infrastructure Project and
negotiating this Agreement and for no other purpose and shall not use Confidential Information
in any manner that is to the competitive disadvantage of or otherwise adverse or detrimental to
the Party furnishing such Confidential Information.
(c) Except as more specifically set forth in subsection (d) below, if any Party or its
representatives are requested or required (by oral questions, written interrogatories, requests for
information, or documents, subpoena, civil investigatory demand, or similar process) to disclose
any of the Confidential Information, it shall provide the other Parties with prompt notice of such
request or requirement so that the other Parties may seek an appropriate protective order or
selectively waive compliance with the provisions of this Section 10. Further, if, in the absence
of a protective order or the receipt of a waiver hereunder, any Party or any of its representatives
is nonetheless, in the opinion of its legal counsel, compelled to disclose any of the Confidential
Information to any tribunal or agency, or else stand liable in contempt or suffer other censure or
penalty, that Party or its representative may disclose such information to such tribunal or agency
without liability hereunder unless such disclosure to such tribunal or agency was caused by or
resulted from a previous disclosure by it or any of its representatives in breach of this
Agreement.
(d) Upon the receipt of a written request for any information or materials related to
Sysco, the Sysco Development, or the Sysco Infrastructure Project, the City or the SEDC, as
applicable, will notify Sysco within seventy-two (72) hours and provide Sysco with a copy of the
request. As a matter of policy, the City does not provide public records to any person except in
response to written request. If the City is not otherwise seeking an Open Records Opinion by the
Texas Attorney General in response to the request but reasonably believes that seeking such an
Opinion is permissible under the Texas Public Information Act, the City will also provide Sysco
with an estimate of the actual and reasonable anticipated costs associated with making a request
for an Open Records Opinion by the Texas Attorney General. If Sysco (i) pays the City the
quoted sum and (ii) provides the City with all information required by the City Attorney within
seventy-two (72) hours of receiving the estimate, the City will seek a Texas Attorney General
opinion protecting the materials from disclosure on the basis that the information requested is
excepted from disclosure pursuant to applicable Texas statute, rule, and or common law. During
the pendency of such Opinion request, the City will not disclose the information as to which the
Opinion is sought except pursuant to subparagraph (c). If the City Attorney concludes that there
is no legal basis to pursue such an Open Records Opinion as of the date of the request and that
the City must disclose the requested information, the City shall notify Sysco of the request and
will include a statement that the City Attorney has concluded that there is no legal basis to
50301044.9 13
pursue a request for an Open Records Opinion and that the City must disclose the requested
information and the grounds supporting such conclusion.
Section 11. Publicity. All press releases or other public communications of any sort
relating to this Agreement, the terms hereof, and the Sysco Development, and the method of the
release for publication thereof, will be coordinated by Sysco, with the approval of the City,
` which approval will not be unreasonably withheld or delayed.
Section 12. Representatives. Each Party will designate a representative for actions to
be taken by it hereunder and will notify all other Parties in writing of such designation and any
changes in such designations. Each Party's representative will be the contact person for such
Party to facilitate completion of its obligations under this Agreement. The initial designated
representatives of the Parties are Don Taylor or his further designee(s) for the City, George
Antuna or his designee for the SEDC, Chuck Forbes for the Partnership, and Dave Reichel or his
further designee(s) for Sysco.
Section 13. Notices. All notices and requests for information or action under this
Agreement shall be given in writing and delivered by personal delivery, electronic delivery,
registered mail, or overnight delivery service to the following addresses:
If to Sysco: Sysco San Antonio, Inc.
1390 Enclave Parkway
Houston, Texas 77077
Attention: Dave Reichel
Facsimile:(281) 584-4004
E-Mail: reichel.david@corp.sysco.com
With a copy to: Sysco San Antonio, Inc.
1390 Enclave Parkway
Houston, Texas 77077
Attention: Russell T. Libby
Facsimile: (281) 584-2510
E-Mail: libby.russell@corp. sysco. com
And a copy to: Arnall Golden Gregory LLP
171 17th Street, Suite 2100
Atlanta, Georgia 30363
Attention: Andrew D. Siegel
Facsimile: (404) 873-7017
E-Mail: andrew.siegel@agg.com
50301044.9 14
If to the Partnership: San Antonio One Limited Partnership
2111 Woodward Avenue, Suite 910
Detroit, Michigan 48201
Attention: Charles A. Forbes
Facsimile: (313) 965-6457
E-Mail: grave151 @aol.com
with a copy to: Baucum Steed Barker Attorneys
1100 NW Loop 410, No. 260
San Antonio, Texas 78213
Attention: Michael Baucum
Facsimile: (210) 349-3523
E-Mail: Baucum@baucumsteedlaw.com
If to the SEDC: Schertz Economic Development
Corporation
1400 Schertz Parkway
Schertz, Texas 78154
Attention: Director of Economic
Development
Facsimile: (210) 619-1079
E-Mail: gantuna@schertz.com
If to the City: City of Schertz, Texas
1400 Schertz Parkway
Schertz, Texas 78154
Attention: Don Taylor, City Manager
Facsimile: (210) 619-1050
E-Mail: detaylor@schertz.com
With a copy to: Michael Spain
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 78205
Facsimile: (210) 270-7205
E-Mail: mspain@fulbright.com
Section 14. No Partnership or Joint Venture. Nothing contained in this Agreement
shall be construed to create or imply a partnership or joint venture between or among the Parties.
Section 15. Other Agreements. Except as set forth on Exhibit F, this Agreement
supersedes all other agreements between or among the Parties as to the subject matter hereof.
Section 16. Amendments. This Agreement may not be amended except in writing and
signed or acknowledged by all Parties.
50301044.9 15
Section 17. Severability. If any provision of this Agreement is determined by a court
of competent jurisdiction to be unconstitutional, illegal, or otherwise unenforceable, and the
Parties agree that such determination does not cause the remainder if this Agreement to fail to
accomplish the goals of the Parties, the remainder of this Agreement shall continue in effect.
Section 18. Counterparts. This Agreement may be executed in multiple counterparts
but will be considered as a single instrument when it has been finally executed by all of the
Parties.
Section 19. Governing Law and Venue. This Agreement is governed by the laws of
the State of Texas, and the Parties agree that venue shall be in the courts of Comal County,
Texas.
Section 20. Term. This Agreement shall be effective on the Effective Date until the
earlier to occur of (a) December 31, 2021, or (b) this Agreement has been terminated pursuant to
Section 8; provided, if the City is successful in establishing a reimbursement program as
described in Section 5, this Agreement shall remain in effect as to such reimbursements for so
long as reimbursements could be received by the City and/or the SEDC.
[Remainder of
page intentionally left blank)
50301044.9 16
IN WITNESS WHEREOF, this Agreement is hereby approved by the Parties, as of the
Effective Date.
CITY OF SCHERTZ, TEXAS
B
Don Taylor, C' anager
SCHERTZ ECONOMIC DEVELOPMENT
CORPORATION
By: r~.~ ~ . -~c~J~-
Steve White, President
SAN ANTONIO ONE LIMITED
PARTNERSHIP
By:
Charles A. Forbes, General Partner
SYSCO SAN ANTONIO, INC.
By:
Russell T. Libby, Vice President
Exhibit A -Partnership Tract
Exhibit B -Sysco Development Site
Exhibit C -Sysco Development
Exhibit D -Sysco Infrastructure Project
Exhibit E -Sysco Infrastructure Project Anticipated Completion Schedule
Exhibit F -Other Agreements
50301044.8 S- I
IN WITNESS WHEREOF, this Agreement is hereby approved by the Parties, as of the
Effective Date.
CITY OF SCHERTZ, TEXAS
By:
Don Taylor, City Manager
SCHERTZ ECONOMIC DEVELOPMENT
CORPORATION
By:
Steve White, President
SAN ANTONIO ONE LIMITED
PARTNERSHIP
B :
y
Charles A. Forbes, General Partner
SYSCO SAN ANTONIO, INC.
By:
Russell T. Libby, Vice President
Exhibit A -Partnership Tract
Exhibit B -Sysco Development Site
Exhibit C -Sysco Development
Exhibit D -Sysco Infrastructure Project
Exhibit E -Sysco Infrastructure Project Anticipated Completion Schedule
Exhibit F -Other Agreements
50301044.8 S-1
1N WITNESS WHEREOF, this Agreement is hereby approved by the Parties, as of the
Effective Date.
CITY OF SCHERTZ, TEXAS
By:
Don Taylor, City Manager
SCHERTZ ECONOMIC DEVELOPMENT
CORPORATION
By:
Steve White, President
SAN ANTONIO ONE LIMITED
PARTNERSHIP
By:
Charles A. Forbes, General Partner
SYSCO SAN ANTONIO, INC.
gy; yG~~
Russell T. Libby, Vic President
Exhibit A -Partnership Tract
Exhibit B -Sysco Development Site
Exhibit C -Sysco Development
Exhibit D -.Sysco Infrastructure Project
Exhibit E -Sysco Infrastructure Project Anticipated Completion Schedule
Exhibit F -Other Agreements
i
• S-1
I
i
EXHIBIT A
Partnership Tract
Field notes and drawing showing the Partnership Tract is attached.
50301044.9 A-1
~~.r~~Pa~~a~e~s
E N G I N E E R I N G S O L U T I O N S
87.803 ACRES FN N0.50670-O1-2R
(3,829,703 SQ. FT.} MARCH 17, 2010
50870-01ex2R.pWG JAB N0. 50870-01.00
FIELD NOTE DESCRIPTION
87.803 ACRE TRACT OF LAND SITUATED IN THE CTTX OF SCHERTZ, COMAL
COUNTY, TEXAS, BEING A FORTION OF THAT REMAINING PORTION OF 89.353
ACRE TRACT CONVEXEA TO SAN ANTONIO ONE LTD. PARTNERSHIP BX DEED OF
RECORD IN VOLUME 803, PAGE 78i OF THE DEED RECORDS OF COMAL COUNTY,
TEXAS, AND A PORTION OF THAT REMAINING PORTION OF 101.250 ACRE
TRACT CONVEYED TO SAN ANTONIO ONE LTD. PARTNERSHIP BY DEED OF
RECORD IN VOLUME 803, PAGE 777 OF SAID DEED RECORDS OF COMAL
COUNTX, TEXAS; SAID 87.803 ACRES BEING MORE PARTICULARLX DESCRIBED
IN TWO (2} PARTS AS FOLLOWS WITH ALL BEARINGS BEING REFERENCED TO
THE NORTH AMERICAN DATUM OF 1983, TEXAS STATE PLANE COORDINATE
SYSTEM, SOUTH CENTRAL ZONE:
PART ONE: 87..077 ACRES
COMMENCING, AT A FOUND TxDOT CONCRETE MONUMENT LOCATED AT THE
INTERSECTION OF THE NORTHERLY RIGHT-OF-WAX LINE OF INTERSTATE
HIGHWAY 35 (R.O.W. VARIES) AND THE WESTERLY RIGHT-OF-WAY LINE OF
SCHWAS ROAD (86' R.O.W.);
TSL.NCE, S 15° 30' 00" W, ALONG THE NORTHERLY RIGHT-OF-WAY LINE OF
INTERSTATE HIGHWAY 35, A DISTANCE OF 9.61 FEET TO THE POINT OF
BEGINNING, OF THE HEREIN DESCRIBED TRACT;
TAENCB, ALONG THE NORTHERLY RIGHT-OF-WAY LINE OF INTERSTATE HIGHWAY
35, THE FOLLOWING COURSES:
S 15° 30' 00" W, A DISTANCE OF 81.72 FEET TO A SET ~ INCH IRON ROD
WITH BPI CAP;
S 59° 21' 39" W, A DISTANCE OF 197.43 FEET TO A FOUND TxDOT
CONCRETE MONUMENT;
I
S 50° i0' 35" W, A DISTANCE OF 101.47 FEET TO A FOUND TxDOT
CONCRETE MONUMENT;
S 53° 20' 51" W, A DISTANCE OF 656.78 FEET TO A FOUND TxDOT
CONCRETE MONUMENT; -
, . I
50301044.9 A-2
PAGE 2 OF 5
S 59° 21' 39" W, A DISTANCE OF 1551.77 FEET TO A SET ~ INCH IRON
ROD WITH BPI CAP MARKING THE SOUTHEASTERLY CORNER OF LOT 1, BLOCK
1, LACK'S SUBDIVISION, A SUBDIVISION OF RECORD IN DOC.
#200706013878 OF THE MAP RECORDS OF COMAL GOUNTY, TEXAS;
THENCE, LEAVING THE NORTHERLY RIGHT-OF-WAX LINE OF INTERSTATE
HIGHWAY 35, ALONG THE COMMON BOUNDARY LINE OF SAID 101.250 ACRE
TRACT AND SAID LOT 1, BLOCK 1, THE FOLLOWING COURSES:
N 30° 38' 21" W, A DISTANCE OF 150.45 FEET TO A SET INCH IRON ROD
WITH BPI CAP;
NORTHWESTERLY, ALONG THE ARC OF A CURVE TO THE RTGHT HAVING A
RADIUS OF 3390.00 FEET, A CENTRAL ANGLE OF 05° 23' 50", AN ARC
LENGTH OF 319.34 FEET ANA A CHORD BEARING: N 27° 56' 26" W, A
DISTANCE OF 319.22 FEET TO A SET ~ INCH IRON ROD;
S 59° 21' 39" W, A DISTANCE OF 713.18 FEET TO A FENCE POST AT THE
NORTHERNMOST CORNER OF THAT CERTAIN 2.38 AGRE TRACT OF LAND
CONVEYED Tp F,INDSI;Y WARD BY DOCUMENT #200406027589 OF SAID OFFICIAL
PUBLIC RECORDS, AND ALSO BEING IN THE EASTERLY LINE OF THE MYATT
LANDS RECORDED IN VOLUME 667, PAGE 212 OF THE OFFICIAL PUBLIC
RECORDS OF COMAL COUNTY;
'tFJENCLP, N 16° 43' S4" W, ALONG THE WESTERLY LINE OF SAID 101.250
AGRE TRACT, BEING THE EASTERLY LINES OF 5AID MYATT LANDS, THAT
CERTAIN 1.952 ACRE TRACT OF RECORD IN DOCUMENT #20016037925 OF SAID
OFFICIAL PUBLIC RECORDS AND THAT CERTAIN 1.005 ACRE TRACT OF RECORD
IN DOCUMENT #200106027531 OF SAID OFFICIAL PUBLIC RECORDS, A
DISTANCE OF 1394.79 FEET TO A FOUND INCH IRON ROD MARKING THE
NORTHEASTERLY CORNER OF SAID 1.005 ACRE TRACT, SAME BEING IN THE
SOUTHERLX LINE OF THAT CERTAIN 25.423 ACRE TRACT OF RECORD IN j
DOCUMENT #200106014677 OF SAID OFFICIAL PUBLIC RECORDS;
',HENCE, ALONG THE COMMON BOUNDARX LINES OF SAID 101.250 AGRE TRACT
AND SAID 25.423 ACRE TRACT, THE FOLLOWING COURSES:
N 60° 02' 31" E, A DISTANCE OF 728.59 FEET TO A FOUND NAIL;
N 29° 54' 29" W, A DISTANCE OF 221.27 FEET TO A FOUND INCH IRON
ROD WITH BPI GAP MARKING THE SOUTHWESTERLY CORNER OF LOT 1, BLOCK
2, LACK'S SUBDIVISION, A SUBDIVISION OF RECORD IN DOCUMENT
#200706013878 OF THE MAP RECORDS OF COMAL COUNTY, TEXAS;
TAENCE, N 58° 57' 34" E, ALONG A PORTION OF THE SOUTHERLY LINE OF
SAID LOT 1, BLOCK 2, A DISTANCE OF 553.59 FEET TO A FOUND ~ IRON
ROD WITH BPI CAP;
TSENCB, LEAVING THE SOUTHERLY LINE OF SAID LOT 1, BLOCK 2, INTO AND
ACROSS SAID 101.250 ACRE TRACT AND SAID 89.353 AGRE TRACT, THE
FOLLOWING COURSES:
50301044.9 A-3
PAGE 3 OF 5
S 31° 02' 26" E, A DISTANCE OF 1350.00 FEET TO A FOUND INCH IRON
ROD WITH $PI CAP;
N 58° 57' 34" E, A DISTANCE OF 833.91 FEET TO A FOUND INCH IRON
ROD WITH SPI CAP;
S 30° 18' 07" E, A DISTANCE OF 60.00 FEET TO A SET ;'i INCH IRON ROD
WITH BPI CAP;
N 58° 57' 34" E, .A DISTANCE OF 750.00 FEET TO A SET INCH IRON ROD
WITH BPI CAP LOCATED IN THE WESTERLY RIGHT-OF-WAX LINE OF SCHWAS
ROAD;
TSBNCE, S 30° 13' 49' E, ALONG THE WESTERLY RIGHT-OF-WAY LINE OF
SCHWAS ROAD, A DISTANCE OF 499.18 FEET TO THE PAINT OF BEGINNING,
CONTAINING AN AREA OF 81.077 ACRES (3,531,704 SQ. FT.) OF LAND,
MORE OR LESS.
PART TWO: 6.726 ACRES
SEGINPTING, AT A SET INCH IRON ROD LOCATED IN THE EASTERLY RIGHT-
OF-WAY LINE OF SCHWAS ROAD (86' R.O.W.), BEING THE SOUTHWESTERLY
CORNER OF THAT CERTAIN REMAINING PORTION OF SAID 89.353 ACRE TRACT;
THENCE, ALONG THE EASTERLY RIGHT-OF-WAX LINE OF SCHWAS ROAD, THE
FOLLOWING COURSES:
N 30° 13' 49" W, A DISTANCE OF 434.11 FEET TO A SET ~ INCH IRON ROD
WITH BPI CAP;
NORTHWESTERLY, ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A
RADIUS OF 1457.00 FEET, A-CENTRAL ANGLE OF 08° 11' 20", AN ARC
LENGTH OF 206.24 FEET AND A CHORD BEARING: N 26° OS' 09" W, A
DISTANCE OF 208.06 FEET TO A SET INCH IRON ROD;
N 22° 02' 29" W, A DISTANCE OF 210.03 FEET TO A SET INCH IRON ROD
WSTH SPI CAP;
NORTHWESTERLY, ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS
OF 1543.00 FEET, A CENTRAL ANGLE OF 08° 59' S7", AN ARC LENGTH OF k
242.35 FEET AND A CHORD BEARING: N 26° 32' 27" W, A DISTANCE OF
242.10 FEET TO A SET INCH IRON ROD WITH BPI CAP;
N 31° 02' 26" W, A DISTANCE 'OF 45.58 FEET TO A SET 3c INCH IRON ROD.
WITH BPI CAP; j
50301044.9 A-4
PAGE 4 OF 5
N 15° 32' 26" E, A DISTANCE OF 68.73 FEET TO A SET '~i INCH IRON ROD
WITH BPI CAP LOCATEA AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-
WAX LINE OF SCHWAS ROAD.AND THE SOUTHERLY RIGHT-OF-WAX LINE OF OLD
SCHWAB ROAD (R.O.W. VARIES);
TSI~TCS, ALONG THE SOUTHERLY AND WESTERLY RIGHT-OF-WAY LINES OF OLD
SCHWAB ROAD, THE FOLLOWING COURSES:
N 62° 07' 17" E, A DISTANCE OF 209.12 FEET TO A FOUND ~ INCH IRON
ROD;
N 64° 29' 43" E, A DISTANCE OF 33.31 FEET TO A FOUND TNCH IRON
ROD; ,
S 59° 29' 21" E, A DISTANCE OF 35.39 FEET TO A FOUND ~ INCH IRON
ROD; ,
S 40° 49' 50" E, A DISTANCE OF 58.12 FEET TO A FOUND ~ INCH IRON
ROD;
S 33° 31' 50" E, A DISTANCE OF 179.97 FEET TO A FOUND INCH IRON '
ROD;
S 12° 51' 03" E, A DISTANCE OF 67.67 FEET TO A FOUND INCH IRON
ROD;
S 11° 4'7' 21" E, A DISTANCE OF 875.90 FEET TO A SET INCH IRON ROD
WITH BPI CAP LOCATED IN THE IRREGULAR EASTERLX RIGHT-OF-WAY LINE OF
SCHWAS ROAD;
S 59° 46' 11" W, ALONG THE IRREGULAR EASTERLY RIGHT-OF-WAX LINE OF I
SCHWAS ROAD, A DISTANCE OF 89.37 FEET TO THE POINT Oi+' $Eif3INNING,
CONTAINING AN AREA OF 6.726 ACRES (293,001 SQ. FT.) OF LAND, MORE I
OR LESS.
PRELIMINARY '
TFUS I)OCUVIB~'f 5lfAI.L NOT 131; RECURD1aU YOR ANY PURP08P.
MAL B. LANE III ~
REGISTERED PROFESSIONAL LAND SURVEXOR
TEXAS REGISTRATION NO. 9690
BURR & PARTNERS, INC.
ENGINEERS AND SURVEXORS
922 I50M ROAD, SUITE #100
" SAN ANTONIO, TE}CAS 76216
i
50301044.9 A-5
Waop+~c
i.or T ~ Bl.orlc x
xACace BusD]vlsloN
Doa azoo7o6Dlas78
LAGKB
1"= I~
~ oa3
tr 51.379 ACRE ~4
oUTPARCEL ~ ty
w q i.
P oNE g ~
~p 81.077 ACRES ~
m
,
i"'~~
OINNERI
~ SAN ANTONIO ONE
o~
~g LTD. PARTNERSHIP
i
INTERSTATE HWY 36
(VARIABLE >tiiDiH R.O.W.)
0 300 600 900 1200
1 "=600'
a Bury-Partners SKETCH TO ACCOMPANY DfaSCf~IFTfON os:
sT:eo3 AatE'TRACt of uNO sIVATED aT THE an ov stNQ1TL coMU. SAN ANl'f'ON10
E N O I N E E s I N 0 6 0 L U T I O N 6 COUNI7 TEXAS, 8E7NO A PCNTION OF THAT REWdNNO PORTION CF B&333
e:s: r~ T+~. ACitE TRACT caNVEVeo To sAN AN7ONtO oNe LTD. PARTNERSNU' sY aEEO oP ONE 1Tp.
Bm A90va>o, II 70E16 RECQID ~ VQUYE BDy.'PAOE 7BI OP IHE OEm RECORDS OF COMM. COUNTY. .
TEXAS. AND A PORTk7N OF THAT REMAINING PCRTiON OF 101.230 ACRE TRACT PAFCENE'HSHIP ;
td. (><IO~SKi-Y04 la (E10~C630 CONVEYED TO SAN ANTgiN) ONE ITD, PARINE}i3l1' BY DEED aF RECORD Ui '
AOjtAp{wr0~ Lvo. mCq~get >Wb VOL.WIE 80.1, PAGE 777 OF SAID GEED REWADS OF COPAL CWNTT; TEXAS
DATE: o3/t7/TO DRAYM BY: MTH FlLE: H: \50870\OT\50870-OTex2R.DWG tTl Na 50670~oT-2R PROJECT No. 50641-07.00
I
i
50301044.9 A-6
EXHIBIT B
Sysco Development Site
Field notes and drawing showing the location of the Sysco Development Site is attached.
50301044.9 B' 1
~ fur ~~~.r~n~rs
~ ~
E N G I N E E R I N G S O L U T I O N S
51.379 ACRES FN N0. 50870-01-1R
(2,23$,053 SQ. FT.) MARCH 17, 2010
50870-O1ti3.dwg JOB NO. 50870-01
FIF3LD NOTE D85CRIPTION
51.379 ACRE TRACT OF LAND SITUATED IN THE CITY OF SCHERTZ, COMAL
COUNTY, TEXAS, BEING A PORTION OF THAT REMAINING PORTION OF 89.353
ACRE TRACT CONVEYED TO SAN ANTONIO ONE LTD. PARTNERSHIP BY DEED OF ,
RECORD TN VOLUME 803, PAGE 781 OF THE DEED RECORDS OF COMAL COUNTY,
TEXAS, AND A PORTION OF THAT REMAINING PORTION OF 101.254 ACRE
TRACT CONVEYED TO SAN ANTONIO ONE LTD. PARTNERSHIP BY DEED OF
RECORD IN VOLUME 803, PAGE 777 OF SAID DEED RECORDS OF COMAL
COUNTY, TEXAS; SAID 51.379 ACRES BEING MORE PARTICULARLX DESCRIBED
AS FOLLOWS WITH ALL BEARINGS BEING REFERENCED TO THE NORTH AMERICAN
DATUM OF 1983, TEXAS STATE PLANE COORDINATE SYSTEM, SOUTH CENTRAL
ZONE:
BEGINNING, AT A FOUND lfe INCH IRON ROD LOCATED TN THE WESTERLY'
RIGHT-OF-WAX LINE OF SCHWAS ROAD (86' R.O.W.), BEING THE
SOUTHEASTERLY CORNER OF LOT 1, BLOCK 2, LACK'S SUBDIVISION, A
SUBDIVISION OF RECORD IN DOCUMENT NO. 200706013878 OF THE MAP AND
PLAT RECORDS OF COMAL COUNTY, TEXAS, FROM WHICH A FOUND i/z INCH IRON
ROD LOCATED AT THE INTERSECTION OF THE WESTERLY RIGHT-OF-WAY LINE
OF SCHWAS ROAD AND THE SOUTHERLY RIGHT-OF-WAY LINE OF UNION PACIFIC
RAILROAD (R.O.W. VARIES) BEARS N 31° 02' 26" W, A DISTANCE OF ,
825.17 FEET;
THENCB, ALONG THE WESTERLY RIGHT-OF-WAY LINE OF SCHWAB ROAD, THE
FOLLOWING COURSES:
S 31° 02' 26" E, A DISTANCE OF 372.55 FEET TO A SET INCH IRON ROD
WITH BPT CAP;
SOUTHEASTERLY, ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A '
RADIUS OF 1457.00 FEET, A CENTRAL ANGLE OF 08° 59' 57", AN ARC
LENGTH OF 228.84 FEET AND A CHORD BEARING: S 26° 32' 27" E, A
DISTANCE OF 228.61 FEET TO A SET INCH IRON ROD WITH BPT CAP;
S 22° 02' 2'9" E, A DISTANCE OF 210.03 FEET TO A FOUND INCH IRON
ROD WITH BPI CAP;
SOUTHEASTERLY, ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS
OF 1543.00 FEET, A CENTRAL ANGLE OF 08° 11' 20", AN ARC LENGTH OF
220.53 FEET AND A CHORD BEARING: S 26° 08! 49" E, A DISTANCE OF
220.34 FEIaT TO A FOUND INCH IRON T20D;
50301044.9 B-2
S 30° 13' 49" E, A DISTANCE OF 382.60 FEET TO A SET ~ INCH IRON ROD
WITH BPI CAP FOR THE SOUTHEASTERLY CORNER HEREOF;
THENCE, LEAVING THE WESTERLY RIGHT-OF-WAY LINE OF SCHWAB ROAD, INTO
AND ACROSS SAID REMAINING PORTION OF 89.353 ACRE TRACT AND SAID
REMAINING PORTION OF 101.650 ACRE TRACT, THE FOLLOWING COURSES:
S 58° 57' 34" W, A DISTANCE OF 750.00 FEET TO A SET 1/ INCH IRON ROD
WITH BPI CAP;
N 30° 18' 07" W, A DISTANCE OF 60.00 FEET TO A SET '/z INCH IRON ROD
WITH BPI CAP;
5.58° 57` 34" W, A DISTANCE OF 833.91 FEET TO A SET INCH IRON ROD
WITH BPT CAP FOR THE SOUTHWESTERLY CORNER HEREOF;
N 31° 02' 26" W, A DISTANCE OF 1350.00 FEET TO SET INCH IRON ROD
WITH BPI CAP LOCATED TN THE SOUTHERLY LINE OF SAID LOT 1, BLOCK 2,
LACK`S SUBDIVISION;
THENCE, N 58° 57' 34" E, ALONG THE SOUTHERLY LINE OF SAID LOT 1,
BLOCK 2, FOR THE NORTHERLY LINE HEREOF, A DISTANCE OF 1658.17 FEET
TO THE POINT OF BEGINNING, CONTAINING AN AREA OF 51.379 ACRES
(2,238,053 SQ. FT.) OF LAND, MORE_OR LESS.
Note: A sketch of even date accompanies this Legal, Descrip>;ion. j
HAL B. LANE III
REGISTERED PROFESSIONAL LAND SURVEYOR
TEXAS REGISTRATION NO. 4690 i
BURY & PARTNERS, INC.
ENGINEERS AND SURVEXORS
. 922 ISOM ROAD, SUITE #100
SAN ANTONIO, TEXAS 78216,
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50301044.9 B-3
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50301044.9 B-4
EXHIBIT C
Sysco Development
A. Building and related Sysco infrastructure description:
Usable building space: approximately 635,000 square feet
Warehouse space: approximately 334,000 square feet
Loading space: approximately 108,000 square feet
Office space: approximately 74,000 square feet
Maintenance/utility space: approximately 25,000 square feet
Exterior truck handling and parking area: approximately 600,000 square feet
Non-truck parking spaces: 450
Total construction cost: approximately $55,000,000
Cost of personal property to be in building: approximately $10,000,000
Average value of inventory to be in building: approximately $25,000,000
B. Employee Details:
Projected full-time equivalent facility-based employees by full operations
(August 31, 2011): at least 600
Average annual payroll by full operations (August 31, 2011): approximately $50,000
Categories of facility-based employees by full operations (August 31, 2011):
Sales: approximately 40.23%
Delivery: approximately 29.05%
Warehouse: approximately 18.12%
Executive, Finance, Merchandising, and Administrative: approximately 10.67%
Building and Fork Lift Maintenance, Safety and IT: approximately 1.93%
Sysco will use reasonable efforts to recruit facility-based employees who are residents
of the City or otherwise residents of Guadalupe or Comas Counties.
C. Sysco Development Timetables:
Distribution Center site work to commence: July 30, 2010
Distribution Center certificate of occupancy target date: July 30, 2011
Distribution Center operations commence: August 31, 2011
Distribution Center full.initial operations: October 31, 2011
' Actual dates may vary based on processes required by the City with respect to the site plan, platting, and
permitting; dates noted assume no such undue delays.
50301044.9 C-1
EXHIBIT D
Sysco Infrastructure Project
Drawing showing the details of all elements of the Sysco Infrastructure Project,
including all required easements, is attached. An enlarged drawing is available on request.
50301044.9 D-1
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50301044.9 D-2
EXHIBIT E
Sysco Infrastructure Project Anticipated Completion Schedulefi
Schwab Road Water Line, Spur Water Line, Wastewater Line and Stormwater Facilities -Sysco
and the City hereby agree that, subject to Section 8(f), (A) the 50% City Completion Date for all
of these elements of the Sysco Infrastructure Project (whereby at least 50% of the installation of
all of these elements are to be completed) is 1, 2010 for the Schwab Road Waterline,
1, 2010 for the Spur Water Line, 1, 2010 for the Wastewater Line, and
1, 2010 for the Stormwater Facilities, and (B) the Final City Completion Date for all of
these elements of the Sysco Infrastructure Project (whereby 100% of the installation of all of
these elements are to be completed) is February 15, 2011. Notwithstanding the foregoing, the
50% City Completion Date and the Final City Completion Date for all of these elements of the
Sysco Infrastructure Project shall be extended one day for each day beyond May 12, 2010, that
the City has not received from Sysco the Final Construction Plans.
Road A and Road C -Sysco and the City hereby agree that, subject to Section 8(f), (A) the 50%
City Completion Date for both of these elements of the Sysco Infrastructure Project (whereby at
least 50% of the installation of both of these elements are to be completed) is 1, 2011
for Road A and 1, 2011 for Road C, and (B) the Final City Completion Date for both of
these elements of the Sysco Infrastructure Project (whereby 100% of the installation of both of
these elements are to be completed) is April 1, 2011. Notwithstanding the foregoing, the 50%
City Completion Date and the Final City Completion Date for both of these elements of the
Sysco Infrastructure Project shall be extended one day for each day beyond May 12, 2010, that
the City has not received from Sysco the Final Construction Plans.
t Sysco, Sysco's Engineers, the City, and the City Engineer shall agree in connection with approval of the Final
Construction Plans on what shall constitute 50% completion of these elements of the Project and the target dates for
attaining such 50% completion.
50301044.9 E-1
EXHIBIT F
Other Agreements
Purchase and Sale Agreement dated as of August 26, 2009 (as amended and assigned to
the Effective Date of this Development Agreement, the "Contract"), between San Antonio One
Limited Partnership and Sysco San Antonio, Inc. (as successor to the interest of Peter Mainguy),
with respect to certain real property located in Schertz, Texas, as more particularly described in
the Contract, together with all closing and other ancillary documents executed in connection with
the Contract.
50301044.9 F-1