Resolution 2018-24RESOLUTION NO. 2018-24(R)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
WYLIE, TEXAS, HEREBY AUTHORIZING THE CITY MANAGER
OF THE CITY OF WYLIE, TEXAS TO EXECUTE AN INTERLOCAL
AGREEMENT BETWEEN CVS PHARMACY, INC AND THE CITY
OF WYLIE
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WYLIE, TEXAS:
SECTION 1: The City Manager of the City of WYLIE, Texas, is hereby authorized to
execute, on behalf of the City Council of the City of WYLIE, Texas, an Interlocal Agreement
between CVS Pharmacy, Inc. and the City of Wylie for the construction of storm water
improvements.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 24th day of July, 2018.
ATTEST TO:
STEP ANIE STORM, City Secretary
Resolution No. 2018-24(R)
Interlocal Agreement between CVS Pharmacy, Inc and the City of Wylie
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EXHIBIT "A"
Interlocal Agreement
Resolution No. 2018-24(R)
Interlocal Agreement between CVS Pharmacy, Inc and the City of Wylie
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE
OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT
TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVERS' LICENSE NUMBER.
After Recording Return to:
City of Wylie
Attention: City Manager
300 Country Club Road
Wylie, Texas 75098
DEVELOPMENT AGREEMENT BETWEEN
CVS PHARMACY, INC AND THE CITY OF WYLIE, TEXAS
This DEVELOPMENT AGREEMENT ("Agreement") is made and entered into by and
between the CITY OF WYLIE, TEXAS, a home -rule municipality ("Wylie'), and CVS
PHARMACY, INC., a Rhode Island corporation ("Developer"). Wylie and Developer are each
referred to herein as a "party" or collectively as the "parties."
WHEREAS, Developer is the sole owner of that certain tract of land consisting of 1.896±
acres in the William Patterson Survey, Abstract No. 716, in the City of Wylie, Collin County,
Texas, as more particularly described in Exhibit A, attached hereto and incorporated herein for
all purposes ("Property'); and
WHEREAS, Developer has submitted an application for a building permit for the
development of a CVS Pharmacy in Wylie; and
WHEREAS, Developer and Wylie acknowledge and agree that impact fees are currently
assessed and owed or to be assessed and owed on the Property as prescribed in Ordinance Nos.
93-4, 97-4, 2001-19, 2001-42, 2001-56, 2006-25, 2006-47, 2007-34, 2012-18 and any other
amendments thereto, as they exist or may be amended (collectively, "Impact Fee Ordinance");
and
WHEREAS, notwithstanding the Construction Requirements (hereinafter defined) for the
size of on-site stormwater facilities to be constructed by Developer on the Property and across
the property to the west and immediately adjacent to the Property (the "Adjacent Property")
("Required Stormwater Improvements"), Developer agrees to construct on the Adjacent
Property, at its sole cost and expense but subject to the Cash Reimbursement (hereinafter
defined) and Impact Fee Credit (hereinafter defined) as set forth in this Agreement, oversized
stormwater facilities consisting of approximately 227 linear feet of an 8 -foot -by -4 -foot
reinforced box culvert, headwall, associated grading and erosion control, and all necessary
appurtenances thereto, as generally depicted and described on plan set (sheets C-9.2, C-10.1, C-
13.3, and TxDOT detail), attached hereto as Exhibit B and incorporated herein for all purposes
(collectively, the "Stormwater Improvements'), which will be public stormwater facilities and a
portion of which are necessary to serve the Property; and
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WHEREAS, Wylie has an easement on a portion of the Adjacent Property for the
construction, installation and use of the Stormwater Improvements which was recorded on
under Instrument No. in the Official Records of Collin County, Texas, a
file -marked copy of which is attached hereto as Exhibit D and incorporated herein for all
purposes (the "Easement"); and
WHEREAS, as consideration for Developer constructing the Stormwater Improvements,
Wylie agrees to reimburse Developer in an amount equal to the Wylie -approved difference
between the costs of constructing the Stormwater Improvements and the costs of constructing the
Required Stormwater Improvements, as provided herein and subject to the terms and condition
hereof.
NOW, THEREFORE, in consideration of the covenants and conditions contained in this
Agreement, Wylie and Developer agree as follows:
1. Incorporation of Recitals. The representations, covenants and recitations set forth in the
forth in the foregoing recitals of this Agreement are true and correct, are incorporated
into the body of this Agreement and are adopted as findings of Wylie and the authorized
representative of Developer.
2. Land Subject to Agreement. The land that is being developed for a CVS Pharmacy
store and which will use the Stormwater Improvements on a non-exclusive basis is the
Property. Developer represents and warrants that it is the sole owner of the Property.
3. Easement. Wylie warrants to Developer that the Easement has been recorded in the
Official Records of Collin County, Texas. Wylie warrants that Developer is authorized
to construct the Stormwater Improvements under the terms of the Easement.
4. Construction of the Stormwater Improvements.
(a) Developer shall construct the Stormwater Improvements, as more particularly
described and generally depicted in Exhibit B. Developer represents and warrants
that the estimated construction costs of the Required Stormwater Improvements
are Forty -One Thousand Four Hundred Forty Nine and 00/100s Dollars ($41,449)
("Estimated Required Stormwater Improvements Costs") and that the estimated
construction costs of the Stormwater Improvements are One Hundred Fifty Two
Thousand and 00/100s Dollars ($152,000) ("Estimated Stormwater Improvements
Costs"), as more particularly described in the estimated cost analysis set forth in
Exhibit C attached hereto and incorporated herein for all purposes ("Estimated
Cost Analysis"). Developer shall construct the Stormwater Improvements in
compliance with Approved Plans approved by Wylie, and in further compliance
with all Construction Requirements (hereinafter defined).
(b) Wylie agrees (i) to perform interim inspections of the ongoing construction of the
Stormwater Improvements on a regular and timely basis, in response to a call
from the Developer Contractor upon completion of each stage of installation of
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the Stormwater Improvements, Wylie agreeing that each phase of construction
builds on the prior installation, and (ii) to issue written interim acceptance of each
phase of installation of the Stormwater Improvements, provided that Wylie
determines that each such phase is entitled to acceptance under the terms of this
Agreement. Upon final completion of the Stormwater Improvements, Wylie will
perform a final inspection of the Stormwater Improvements and issue a final
written letter or certificate of acceptance upon which Developer may rely. Upon
said final acceptance, Developer will convey the Stormwater Improvements to
Wylie as provided herein (collectively, "Wylie's Final Acceptance"). Developer
must substantially complete the Stormwater Improvements in accordance with the
Approved Plans and obtain Wylie's Final Acceptance of the same as a condition
of Wylie's issuance of a certificate of occupancy of any building on the Property.
However, and notwithstanding any other provision in this Agreement to the
contrary, Wylie acknowledges that Developer's final payment of the Developer
Contractor and its subcontractors, and the accompanying receipt of executed lien
waivers and Evidence of Payments (as defined in Section 4(g) of this Agreement)
will occur at a date subsequent to the completion of the construction of the
Stormwater Improvements (due to the holding of retainage and the performance
and completion of punchlist items), and Wylie agrees that Wylie's Final
Acceptance (as defined in Section 4(b)) will depend only on substantial
completion of the Stormwater Improvements in accordance with the Approved
Plans, and will not depend on receipt of Evidence of Payments. To the extent any
punch list items exist as to the Stormwater Improvements and provided that the
store on the Property is othenvise eligible to receive a Temporary Certificate of
Occupancy, Wylie agrees to issue a Temporary Certificate of Occupancy and to
allow the store on the Property to open for business, with future completion of the
punchlist items and submittal of the Evidence of Payments being a separate
requirement for both the issuance of the final Certificate of Occupancy, and the
receipt of the Cash Reimbursement (hereinafter defined) and the Impact Fee
Credit (hereinafter defined).
(c) Bonds.
(i) Evidence of any bonds required by Section 212.073 of the Texas Local
Government Code, as amended, other applicable law or this Agreement
shall be provided by Developer to Wylie.
(ii) Prior to Wylie's Final Acceptance of the Stormwater Improvements,
Developer shall cause to be issued and delivered a payment bond and a
performance bond, each of which shall be in an amount equal to one
hundred percent (100%) of the amount of the actual cost of the
Stormwater Improvements to ensure Wylie is indemnified: (A) against any
claims for nonpayment of any part of the construction or work performed
in connection with the Stormwater Improvements; and (B) for the
completion of the Stormwater Improvements in accordance with this
Agreement. Prior to Wylie's Final Acceptance of the Stormwater
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Improvements, Developer shall cause to be delivered to Wylie a two (2)
year maintenance bond in an amount equal to one hundred percent (100%)
of the amount of the actual cost of the Stormwater Improvements to ensure
the repair or remedy of any maintenance issues Wylie may have regarding
the Stormwater Improvements after Wylie's issuance of Wylie's Final
Acceptance of the same.
(iii) The bonds required by this Section 4(c) must be: (A) good and sufficient
bonds; (B) in the amounts prescribed herein; (C) with a reputable and
solvent corporate surety and in favor of Wylie; and (D) in compliance with
any other Wylie requirements relating to such bonds.
(d) Prior to commencing any construction of the Stormwater Improvements,
Developer shall include the following provisions in any contract with any person
or entity hired by Developer to construct all or any portion of the Stormwater
Improvements (collectively, "Developer Contractor"):
(i) "All warranties provided to [Developer] for the Stormwater
Improvements shall inure to the benefit of the City of Wylie, Texas
for all purposes."
(ii) "[DEVELOPER CONTRACTOR] SHALL, FOR A PERIOD OF TWO (2)
YEARS FOLLOWING THE CITY OF WYLIE'S FINAL ACCEPTANCE
OF THE [THE STORMWATER IMPROVEMENTS], RELEASE, DEFEND,
INDEMNIFY AND HOLD HARMLESS CITY OF WYLIE FROM AND
AGAINST ALL CLAIMS OR CAUSES OF ACTION FOR INJURIES
(INCLUDING DEATH), PROPERTY DAMAGES (INCLUDING LOSS OF
USE) AND OTHER LOSSES, DEMANDS, SUITS, JUDGMENTS,
EXPENSES AND COSTS, INCLUDING BUT NOT LIMITED TO,
REASONABLE ATTORNEYS' FEES AND EXPENSES (INCLUDING
ATTORNEYS' FEES AND EXPENSES INCURRED IN ENFORCING THE
INDEMNITY), ARISING OUT OF, RELATED TO OR RESULTING FROM,
IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, ANY WORK
PERFORMED BY [DEVELOPER CONTRACTOR] ON THE [THE
STORMWATER IMPROVEMENTS], WHETHER SUCH ACTIONS OR
OMISSIONS WERE INTENTIONAL OR UNINTENTIONAL, AND THAT
THE INDEMNITY PROVIDED HEREIN IS NOT INTENDED TO AND
SHALL NOT, IN ANY WAY, CREATE ANY CAUSE OF ACTION FOR THE
BENEFIT OF THIRD PARTIES. THIS INDEMNIFICATION PROVISION
AND THE USE OF THE TERM "CLAIMS" IS ALSO SPECIFICALLY
INTENDED TO APPLY TO, BUT NOT LIMITED TO, ANY AND ALL
CLAIMS, WHETHER CIVIL OR CRIMINAL, BROUGHT AGAINST
WYLIE BY ANY GOVERNMENT AUTHORITY OR AGENCY RELATED
TO ANY PERSON PROVIDING SERVICES UNDER THIS AGREEMENT
THAT ARE BASED ON ANY FEDERAL IMMIGRATION LAW AND ANY
AND ALL CLAIMS, DEMANDS, DAMAGES, ACTIONS AND CAUSES OF
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ACTION OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN,
EXISTING OR CLAIMED TO EXIST, RELATING TO OR ARISING OUT
OF ANY EMPLOYMENT RELATIONSHIP BETWEEN DEVELOPER
CONTRACTOR AND ITS EMPLOYEES OR SUBCONTRACTORS AS A
RESULT OF THAT SUBCONTRACTOR'S OR EMPLOYEE'S
EMPLOYMENT OR SEPARATION FROM EMPLOYMENT WITH THE
DEVELOPER CONTRACTOR, INCLUDING BUT NOT LIMITED TO ANY
DISCRIMINATION CLAIM BASED ON SEX, SEXUAL ORIENTATION OR
PREFERENCE, RACE, RELIGION, COLOR, NATIONAL ORIGIN, AGE
OR DISABILITY UNDER FEDERAL, STATE OR LOCAL LAW, RULE OR
REGULATION, OR ANY CLAIM FOR WRONGFUL TERMINATION,
BACK PAY, FUTURE WAGE LOSS, OVERTIME PAY, EMPLOYEE
BENEFITS, INJURY SUBJECT TO RELIEF UNDER THE WORKERS'
COMPENSATION ACT OR WOULD BE SUBJECT TO RELIEF UNDER
ANY POLICY FOR WORKERS' COMPENSATION INSURANCE AND
ANY OTHER CLAIM, WHETHER IN TORT, CONTRACT OR
OTHERWISE. DEVELOPER CONTRACTOR IS EXPRESSLY REQUIRED
TO DEFEND WYLIE AGAINST ALL SUCH CLAIMS. THIS SECTION
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT."
(e) As an additional condition of Wylie issuing Wylie's Final Acceptance of the
Stormwater Improvements, Developer shall transfer and deliver to Wylie all
manufacturers' warranties, with Wylie being the beneficiary thereof, for all products,
materials and elements of the Stormwater Improvements. This Section 4(e) shall
survive the termination of this Agreement.
(f) The parties agree that the Stormwater Improvements shall be constructed and
completed in one phase. Upon Wylie's Final Acceptance of the Stormwater
Improvements, the Stormwater Improvements shall become the sole property of
Wylie.
(g) As conditions to Developer receiving the Cash Reimbursement (hereinafter
defined) as described in Section 5 below and/or the Impact Fee Credit (hereinafter
defined) as described in Section 6 below, Developer shall (i) obtain Wylie's Final
Acceptance of the Stormwater Improvements and (ii) tender to Wylie evidence, in
a form reasonably acceptable to Wylie, that all of the design and construction
costs of the Stormwater Improvements have been incurred and paid by Developer,
including but not limited to, affidavits of payment/affidavits as to debts and liens
and any other evidence reasonably required by Wylie ("Evidence of Payments").
The Evidence of Payments shall reflect Developer's final, actual cost to design
and construct the Stormwater Improvements ("Actual Stormwater Improvements
Costs"). Wylie acknowledges that the Evidence of Payments may occur
subsequent to Wylie's Final Acceptance of the Stormwater Improvements.
5. Cash Reimbursement. Provided that Developer fulfills all of its obligations under this
Agreement, including but not limited to, (i) Developer obtaining Wylie's Final
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Acceptance of the Stormwater Improvements; and (ii) Developer tendering to Wylie the
Evidence of Payments, Wylie shall participate in a portion of the Actual Stormwater
Improvements Costs by, in addition to applying the Impact Fee Credit (hereinafter
defined) as described in Section 6, reimbursing Developer in a cash amount equal to
Sixty -One Thousand Seven Hundred Thirty and 00/100s Dollars ($61,730) ("Cash
Reimbursement"), within thirty (30) days of Wylie's issuance of Wylie's Final
Acceptance of the Stormwater Improvements and Wylie's receipt of Developer's written
request for such payment together with payment delivery instructions.
6. Impact Fee Credit. Provided that Developer fulfills all of its obligations under this
Agreement, including but not limited to, (i) Developer obtaining Wylie's Final
Acceptance of the Stormwater Improvements; and (ii) Developer tendering to Wylie the
Evidence of Payments, Wylie shall participate in a portion of the Actual Stormwater
Improvements Costs, in addition to paying the Cash Reimbursement as described in
Section 5, by granting to Developer a credit against the roadway impact fees due and
payable on the Property under the Impact Fee Ordinance in an amount equal to Forty -
Eight Thousand Eight Hundred Twenty One and 00/100s Dollars ($48,821.00) ("Impact
Fee Credit"), representing the sum of the Wylie -approved difference between the amount
of the Estimated Required Stormwater Improvements Costs and the amount of the
Estimated Required Stormwater Improvements Costs, provided that among other
requirements for Wylie's Final Acceptance, the Actual Stormwater Improvements Costs,
as evidenced by the Evidence of Payments, are reviewed and approved by Wylie. Wylie
agrees to pay, and Developer agrees to accept, the Impact Fee Credit and the Cash
Reimbursement as Wylie's sole financial participation in the costs incurred by Developer
in connection with its obligations under this Agreement. The Impact Fee Credit shall not
be due to Developer until the impact fees for the Property are collected by Wylie, and the
Impact Fee Credit shall offset the total amount of roadway impact fees owed and assessed
on the Property. Notwithstanding anything to the contrary herein, Developer
acknowledges and agrees that the Impact Fee Credit: (i) shall be determined as described
above; (ii) is not transferrable to any other property, regardless of ownership of same; and
(iii) is subject to applicable provisions of the Impact Fee Ordinance.
7. Default.
(a) If Developer fails to comply with any provision of this Agreement, and such
failure is not cured within thirty (30) days after Wylie sends written notice of such
failure to Developer, then Wylie shall have the following remedies, in addition to
Wylie's other rights and remedies:
(i) to file this instrument in the Real Property Records of Collin County,
Texas as a lien or encumbrance on the Property;
(ii) to refuse to accept any portion of any public improvements on the
Adjacent Property, including but not limited to, any of the Stormwater
Improvements;
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(iii) to withhold the payment of any Cash Reimbursement to Developer
pursuant to Section 5 of this Agreement;
(iv) to withhold the payment of any Impact Fee Credit pursuant to Section 6 of
this Agreement;
(v) to refuse to issue a Certificate of Occupancy for the Property; and/or
(vi) to seek specific enforcement of this Agreement.
(b) If Wylie fails to comply with the terms and conditions of this Agreement and such
failure is not cured within thirty (30) days after Wylie receives written notice of
such failure from Developer, then Developer may seek specific enforcement of
this Agreement as its sole and exclusive remedy.
8. Limitation of Liability. Notwithstanding anything to the contrary herein, the parties
agree and acknowledge that Wylie shall not, under any circumstance, be required to
tender, or be liable to Developer for, any credit or reimbursement of, or payment of any
monies, with regard to the matters set forth herein, except as expressly provided in
Section 5 and Section 6 of this Agreement.
9. Covenant Running with the Land. This Agreement shall be a covenant running with
the land and Property and shall be binding upon Developer. The parties shall cause this
Agreement to be filed in the Real Property Records of Collin County, Texas. The parties
shall execute and record a release of this Agreement when its terms and conditions have
been fully performed.
10. Limitations of Agreement. The parties acknowledge that of the fees that are or may be
payable by Developer to Wylie for the development of the Property, this Agreement
addresses only the roadway impact fees prescribed by the Impact Fee Ordinance. Wylie
ordinances covering property taxes, utility rates, permit fees, inspection fees,
development fees, wastewater and water impact fees, water tap fees, pro -rata fees and the
like are not affected by this Agreement. Further, this Agreement does not waive or limit
any of the obligations of Developer to Wylie under any ordinance, whether now existing
or in the future arising.
11. Notices. Any notice provided or permitted to be given under this Agreement must be in
writing and may be served by depositing same in the United States Mail, addressed to the
Party to be notified, postage pre -paid and registered or certified with return receipt
requested; by facsimile; by electronic mail, with documentation evidencing the
addressee's receipt thereof; or by delivering the same in person to such Party a via hand -
delivery service, or any courier service that provides a return receipt showing the date of
actual delivery of same to the addressee thereof. Notice given in accordance herewith
shall be effective upon receipt at the address of the addressee. For purposes of
notification, the addresses of the parties shall be as follows:
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If to Wylie, addressed to it at:
City of Wylie
Attention: City Manager
300 Country Club Road
Wylie, Texas 75098
Telephone: (972) 516-6000
Facsimile: (972) 516-6026
Electronic Mail: mindy.mansongMlietexas.gov
with a copy to:
Abernathy, Roeder, Boyd & Hullett, P.C.
Attention: Ryan D. Pittman
1700 Redbud Blvd., Suite 300
McKinney, Texas 75069
Telephone: (214) 544-4000
Facsimile: (214) 544-4044
Email: rpittmangabernathy-law.com
If to Developer, addressed to it at:
CVS Pharmacy, Inc.
One CVS Drive
Woonsocket, RI 02895
Attention: Property Administration Store #10887
Facsimile: (401) 770-4695
With a copy to:
Orange Development LLC
Attention: Donn Fitzer
1200 Corporate Drive
Suite G-50
Birmingham, AL 35242
Telephone: (205) 408-3443 ext. 2
Email: dfizer@orangedevinc.com
12. Indemnity.
(a) DEVELOPER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS WYLIE
FROM AND AGAINST ALL DAMAGES, INJURIES (INCLUDING DEATH), CLAIMS,
PROPERTY DAMAGES (INCLUDING LOSS OF USE), LOSSES, DEMANDS, SUITS,
JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES AND
EXPENSES (INCLUDING ATTORNEY'S FEES AND EXPENSES INCURRED IN
ENFORCING THIS INDEMNITY) CAUSED, IN WHOLE OR IN PART, BY THE
NEGLIGENT, GROSSLY NEGLIGENT OR INTENTIONALLY WRONGFUL ACT OR
OMISSION OF DEVELOPER OR ITS CONTRACTORS, SUBCONTRACTORS,
EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ASSIGNEES, VENDORS,
GRANTEES, TRUSTEES, LICENSEES, INVITEES OR ANY OTHER THIRD PARTY FOR
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WHOM DEVELOPER IS LEGALLY RESPONSIBLE, IN ITS/THEIR PERFORMANCE OF
THIS AGREEMENT, REGARDLESS OF THE JOINT OR CONCURRENT NEGLIGENCE
OF WYLIE (HEREINAFTER "CLAIMS").
(b) IN ITS SOLE DISCRETION, WYLIE SHALL HAVE THE RIGHT TO REASONABLY
APPROVE DEFENSE COUNSEL TO BE RETAINED BY DEVELOPER IN FULFILLING ITS
OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY WYLIE, UNLESS SUCH
RIGHT IS EXPRESSLY WAIVED BY WYLIE IN WRITING. WYLIE RESERVES THE
RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER, WYLIE
IS UNDER NO OBLIGATION TO DO SO. ANY SUCH ACTION BY WYLIE IS NOT TO BE
CONSTRUED AS A WAIVER OF DEVELOPER'S OBLIGATION TO DEFEND WYLIE OR
AS A WAIVER OF DEVELOPER'S OBLIGATION TO INDEMNIFY WYLIE PURSUANT
TO THIS AGREEMENT. DEVELOPER PROMPTLY SHALL RETAIN WYLIE-
APPROVED DEFENSE COUNSEL FOLLOWING RECEIPT OF WYLIE's WRITTEN
NOTICE THAT WYLIE IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS
AGREEMENT, BUT IN NO EVENT IN LESS THAN TEN (10) BUSINESS DAYS
FOLLOWING RECEIPT OF SUCH WRITTEN NOTICE. IF DEVELOPER FAILS TO
RETAIN COUNSEI. WITHIN SUCH TIME PERIOD, WYLIE SHALL PROVIDE A SECOND
NOTICE TO DEVELOPER, AND IF DEVELOPER THEREAFTER FAILS TO RETAIN
DEFENSE COUNSEL WITHIN FIVE (5) DAYS FROM SAID SECOND NOTICE, WYLIE
SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF,
AND DEVELOPER SHALL BE LIABLE FOR ALL COSTS INCURRED BY WYLIE.
(C) THE RIGHTS AND OBLIGATIONS CREATED BY THIS SECTION SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT FOR A PERIOD OF FOUR (4) YEARS.
13. ACKNOWLEDGEMENT OF WYLIE'S COMPLIANCE WITH FEDERAL AND STATE
CONSTITUTIONS STATUES AND CASE LAW AND FEDERAL STATE AND LOCAL
ORDINANCES RULES AND REGULATIONS, DEVELOPER'S WAIVER AND RELEASE OF
CLAIMS FOR OBLIGATIONS IMPOSED BY THIS AGREEMENT.
(a) DEVELOPER ACKNOWLEDGES AND AGREES THAT:
(i) THE CONVEYANCES, DEDICATIONS, EASEMENTS AND/OR PAYMENT OF
MONEY REQUIRED BY THIS AGREEMENT TO BE PERFORMED BY
DEVELOPER, IN WHOLE OR IN PART, DO NOT CONSTITUTE A:
(A) TAKING UNDER THE TEXAS OR UNITED STATES CONSTITUTION;
(B) VIOLATION OF THE TEXAS WATER CODE, AS IT EXISTS OR MAY
BE AMENDED;
(C) NUISANCE; OR
(D) CLAIM FOR DAMAGES OR REIMBURSEMENT AGAINST WYLIE FOR
A VIOLATION OF ANY FEDERAL OR STATE CONSTITUTION,
STATUTE OR CASE LAW OR ANY FEDERAL, STATE OR LOCAL
ORDINANCE, RULE OR REGULATION.
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(11) THE AMOUNT OF DEVELOPER'S FINANCIAL OR INFRASTRUCTURE
CONTRIBUTION OR CONVEYANCE OF REAL PROPERTY OR INTERESTS
THEREIN (AFTER RECEIVING ALL CONTRACTUAL OFFSETS, CREDITS AND
REIMBURSEMENTS, IF ANY) AGREED TO IN THIS AGREEMENT IS ROUGHLY
PROPORTIONAL TO THE DEMAND THAT SUCH DEVELOPMENT PLACES ON
WYLIE'S INFRASTRUCTURE.
(111) DEVELOPER HEREBY RELEASES WYLIE FROM ANY OBLIGATION TO
PERFORM OR COMMISSION A TAKINGS IMPACT ASSESSMENT UNDER
CHAPTER 2007 OF THE TEXAS GOVERNMENT CODE, AS IT EXISTS OR
MAY BE AMENDED.
(iv) DEVELOPER HEREBY AGREES THAT THE VALUE OF CONVEYANCE OF THE
STORMWATER IMPROVEMENTS TO WYLIE PURSUANT TO THIS
AGREEMENT IS ROUGHLY PROPORTIONAL TO THE BENEFIT RECEIVED BY
DEVELOPER FOR THE USE OF SAID STORMWATER IMPROVEMENTS, AND
DEVELOPER HEREBY WAIVES ANY CLAIM THEREFORE THAT IT MAY
HAVE. DEVELOPER FURTHER ACKNOWLEDGES AND AGREES THAT ALL
PREREQUISITES TO SUCH A DETERMINATION OF ROUGH
PROPORTIONALITY HAVE BEEN MET, AND THAT ANY VALUE RECEIVED BY
WYLIE RELATIVE TO SAID CONVEYANCE IS RELATED BOTH IN NATURE
AND EXTENT, TO THE IMPACT OF THE DEVELOPMENT OF DEVELOPER'S
PROPERTY BY USE OF WYLIE'S INFRASTRUCTURE. DEVELOPER AND
WYLIE FURTHER AGREE TO WAIVE AND RELEASE ALL CLAIMS ONE MAY
HAVE AGAINST THE OTHER RELATED TO ANY AND ALL ROUGH
PROPORTIONALITY AND INDIVIDUAL DETERMINATION REQUIREMENTS
MANDATED BY THE UNITED STATES SUPREME COURT IN DOLAN V. CITY
OF TIGARD, 512 U.S. 374 (1994), AND ITS PROGENY, AS WELL AS ANY
OTHER REQUIREMENTS OF A NEXUS BETWEEN DEVELOPMENT
CONDITIONS AND THE PROJECTED IMPACT OF THE PUBLIC
INFRASTRUCTURE.
(V) DEVELOPER SHALL INDEMNIFY AND HOLD HARMLESS WYLIE FROM AND
AGAINST ANY CLAIMS AND SUITS OF DEVELOPER'S PARTNERS, OFFICERS,
DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS,
ASSIGNEES, VENDORS, GRANTEES OR TRUSTEES BROUGHT PURSUANT TO
THIS SECTION.
(b) DEVELOPER RELEASES WYLIE FROM ANY AND ALL CLAIMS OR CAUSES OF
ACTION BASED ON EXCESSIVE OR ILLEGAL EXACTIONS.
(C) DEVELOPER WAIVES ANY CLAIM FOR DAMAGES OR REIMBURSEMENT AGAINST
WYLIE FOR A VIOLATION OF ANY FEDERAL OR STATE CONSTITUTION, STATUTE
OR CASE LAW OR ANY FEDERAL, STATE OR LOCAL ORDINANCE, RULE OR
REGULATION.
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(d) THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
14. Vested Rights/Chapter 245 Waiver. The parties shall be subject to all ordinances of
Wylie, whether now existing or in the future arising. This Agreement shall confer no
vested rights on the Property, or any portion thereof, unless specifically enumerated
herein. In addition, nothing contained in this Agreement shall constitute a "permit" as
defined in Chapter 245 of the Texas Local Government Code, as amended, and nothing in
this Agreement provides Wylie with fair notice of any project of Developer.
DEVELOPER WAIVES ANY STATUTORY CLAIM UNDER CHAPTER 245 OF THE TEXAS
LOCAL GOVERNMENT CODE AS AMENDED UNDER THIS AGREEMENT. THIS SECTION
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
15. Condemnation Procedures/Rights Waiver. AS ADDITIONAL CONSIDERATION FOR THE
BENEFITS DEVELOPER IS RECEIVING UNDER THIS AGREEMENT DEVELOPER HEREBY
RELEASES CITY FROM AND AGAINST AND WAIVES ANY ALL RIGHTS TO OR CLAIM FOR
ANY RELIEF UNDER CHAPTER 2206 OF THE TEXAS GOVERNMENT CODE, AS AMENDED,
AND/OR CHAPTER 21 OF THE TEXAS PROPERTY CODE AS AMENDED ARISING OUT OF
ANY ACTS OR OMISSIONS UNDER THIS AGREEMENT.
16. Attorney's Fees. If either Party files any action or brings any proceeding against the
other arising from this Agreement, then as between Developer and Wylie, the prevailing
party shall be entitled to recover as an element of its costs of suit, and not as damages,
reasonable and necessary attorneys' fees and litigation expenses both at trial and on
appeal, subject to the limitations set forth in TEX. Loc. Gov'T CODE § 271.153, as it
exists or may be amended, if applicable.
17. Warranties/Representations. All warranties, representations and covenants made by
one party to the other in this Agreement or in any certificate or other instrument delivered
by one party to the other under this Agreement shall be considered to have been relied
upon by the other party and will survive the satisfaction of any fees under this
Agreement, regardless of any investigation made by either party.
18. Entire Agreement. This Agreement contains the entire agreement of the parties with
respect to the matters contained herein and may not be modified or terminated except
upon the provisions hereof or by the mutual written agreement of the parties.
19. Governing Law; Venue. The laws of the State of Texas shall govern the interpretation,
validity, performance and enforcement of this Agreement, without regard to conflict of
law principles. This Agreement is performable in Collin County, Texas, and the
exclusive venue for any action arising out of this Agreement shall be a court of
appropriate jurisdiction in Collin County, Texas.
20. Consideration. This Agreement is executed by the parties without coercion or duress
and for substantial consideration, the sufficiency of which is forever confessed.
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46653405v.2
21. Multiple Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all purposes. An electronic
mail or facsimile signature will also be deemed to constitute an original if properly
executed and delivered to the other party.
22. Authority to Execute. The individuals executing this Agreement on behalf of the
respective parties below represent to each other and to others that all appropriate and
necessary action has been taken to authorize the individual who is executing this
Agreement to do so for and on behalf of the party for which his or her signature appears,
that there are no other parties or entities required to execute this Agreement in order for
the same to be an authorized and binding agreement on the party for whom the individual
is signing this Agreement and that each individual affixing his or her signature hereto is
authorized to do so, and such authorization is valid and effective on the Effective Date
(hereinafter defined). The parties agree that the performance of the parties under this
Agreement is authorized by Section 212.072 of the Texas Local Government Code.
23. Savings; Severability. In the event that a term, condition or provision of this Agreement
is determined to be invalid, illegal, void, unenforceable or unlawful by a court of
competent jurisdiction, then that term, condition or provision shall be deleted and the
remainder of the Agreement shall remain in full force and effect as if such invalid, illegal,
void, unenforceable or unlawful provision had never been contained in this Agreement.
24. Representations. Each party represents that it has carefully read this Agreement, knows
the contents hereof, has consulted with an attorney of its choice regarding the meaning
and effect hereof and is signing the same solely of its own judgment.
25. No Third Party Beneficiaries. Nothing in this Agreement shall be construed to create
any right in any third party not a signatory to this Agreement, and the parties do not
intend to create any third party beneficiaries by entering into this Agreement.
26. Assimment/Binding Effect.
(a) This Agreement is assignable, in whole or in part, upon the following conditions,
all of which must be satisfied before any such assignment shall be valid and
enforceable:
(i) the assignment of the Agreement must be evidenced by a recordable
document ("Assignment"), the form of which must be approved in writing
by Wylie;
(ii) the Assignment must expressly contain, among any other reasonable
requirements and conditions of Wylie, an acknowledgment and agreement
that all obligations, covenants and conditions contained in this Agreement
will be assumed solely and completely by the assignee, and the contact
name, address, phone number, fax number and electronic mail address of
the assignee;
Development Agreement — CVS Pharmacy, Inc. Stormwater Improvements Page 12 of 23
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46653405v.2
(iii) Developer will file any approved, executed Assignment in the Real
Property Records of Collin County, Texas; and
(iv) Developer shall provide Wylie with a file -marked copy of the Assignment
within ten (10) days of filing the same, and until Wylie receives said file -
marked copy of the Assignment as provided herein, Wylie shall not, under
any circumstance, recognize said Assignment.
(b) This Agreement shall be binding upon and inure to the benefit of Wylie and
Developer.
27. Indemnification. The parties agree that the Indemnity provisions set forth in Section 12
and Section 13 herein are conspicuous, and the parties have read and understood the
same.
28. Construction and Bond Requirements. All construction described herein shall be
subject to and in compliance with all ordinances, rules, regulations and requirements of
Wylie, as they exist, may be amended or in the future arising (collectively,
"Regulations"), including, but not limited to, all Regulations applicable to Wylie's Final
Acceptance, and evidence of any bonds required by Section 212.073 of the Texas Local
Government Code, as amended, other applicable law or this Agreement shall be provided
by Developer to Wylie (collectively, "Construction Requirements").
29. Waiver. Waiver by either party of any breach of this Agreement, or the failure of either
party to enforce any of the provisions of this Agreement, at any time, shall not in any way
affect, limit or waive such party's right thereafter to enforce and compel strict
compliance.
30. Immunity. It is expressly understood and agreed that, in the execution and performance
of this Agreement, Wylie has not waived, nor shall be deemed hereby to have waived,
any defense or immunity, including governmental, sovereign and official immunity, that
would otherwise be available to it against claims arising in the exercise of governmental
powers and functions. By entering into this Agreement, the parties do not create any
obligations, express or implied, other than those set forth herein.
31. Reference to Developer. When referring to "Developer" herein, this Agreement shall
refer to and be binding upon Developer, its agents, representatives, contractors,
employees, successors, assignees (as authorized herein), vendors, grantees, trustees, legal
representatives and any other third parties for whom Developer is legally responsible.
32. Deference to Wylie. When referring to "Wylie" herein, this Agreement shall refer to and
be binding upon Wylie and Wylie's Council Members, agents, representatives,
employees and any other authorized third parties for whom Wylie is legally responsible.
Development Agreement — CVS Pharmacy, Inc. Stormwater Improvements Page 13 of 23
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46653405v.2
33. Miscellaneous Drafting Provisions. This Agreement shall be deemed drafted equally
by all parties hereto. The language of all parts of this Agreement shall be construed as a
whole according to its fair meaning, and any presumption or principle that the language
herein is to be construed against any party shall not apply. Headings in this Agreement
are for the convenience of the parties and are not intended to be used in construing this
document.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have executed this Agreement and caused this
Agreement to be effective when all the parties have signed it. The date this Agreement is signed
by the last party to sign it (as indicated by the date associated with that party's signature below)
will be deemed the effective date of this Agreement ("Effective Date").
CITY OF WYLIE, TEXAS,
a home -rule municipality
Date:
Attested to by:
Stephanie Storm, City Secretary
STATE OF TEXAS §
COUNTY OF COLLIN §
Mindy Manson, City Manager
BEFORE ME, the undersigned authority, on this day personally appeared Mindy
Manson, known to me to be one of the persons whose names are subscribed to the foregoing
instrument; she acknowledged to me that she is the City Manager and duly authorized
representative for the City of Wylie, Texas, and that she executed said instrument for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
.2018.
Notary Public, State of Texas
My Commission Expires:_
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46653405v.2
[SIGNATURE PAGE TO DEVELOPMENT AGREEMENT]
CVS PHARMACY, INC.,
a Rhode Island corporation
By:
Title:
Date:
Legal Approval:
STATE OF §
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared
known to me to be one of the persons whose names are subscribed to the
foregoing instrument; he/she acknowledged to me that he/she is the and duly
authorized representative of CVS Pharmacy, Inc., a Rhode Island corporation, and that he/she
executed said instrument for the purposes and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day
of 92018.
Notary Public, State of
My Commission Expires:
Development Agreement — CVS Pharmacy, Inc. Stormwater Improvements Page 15 of 23
2457747
Exhibit A
Legal Description of the Property
PROPERTY DESCRIPTION
STATE OF TEXAS §
COUNTY OF COLLIN
BEING a tract of lad situated in the WILLIAM PATTERSON SURVEY, ABSTRACT NO, 716. City or Wylie.
Collin County. Texas, and being a Portion oftwo (2) tracts of lad described in deal to Parker Country Chub. L.P..
a recorded in County Clerk's Instrument Nos. 200603140003345% and 20060314000334610. Official Public
Records, Collin County. and being more pt nicularly described as lollows:
BEGINNING at an shimiam Texas DeprrenMcot of Trahsportmion (TxDOT) monumem found for the Northerly
Southeast corner ore tract of lad described ht )udgenamt of court in Absence of Objection recorded in County
Clerks Innhunetet No. 201511 ! 7001447470, Official Public Racwds. Colin County. Taxa, said poet being at the
Northerly and of a corner clip at die intersection of the futwe Westerly runt -of -way of Country Chub Road (F.M.
13711), a variates width right-of-way, with the future Southerly right-of-way of Palter Road (F.M. 2514 a variable
writ rio-of way:
THENCE South 45 dog 06 min 57 Writ East, along said comer clip, a distaw of 47.97 fad to a V2 -inch urea rod
with rod plastic cat stamped "W.A.1." set for comer
THENCE South 00 deg 23 min S2 we East, along the future Westerly ri81N-of-way of said Country Chub Road an
described in Notice of Lis Pendens recorded in County Clat's insmanentt No. 201 So i 13000037290, Official Public
Records. Collin County, Texas, a distance of 391.50 feat to a 112 -inch iron rod with red plastic can stamped
"W.A.1 " set for tatter.
THENCE South U dog 44 min 09 see Wm departing the fiiurra Westerly right -d -way of said Country Club Rost
a distance of 192.29 Goat to a 54 -inch itvn rod with yellow tic cap found for comer on the Eat line of a tract of
bad described in deed to Thomas and Naomi Sessums as recot*d in Volume 4607, Pap 342. Official Public
Records, Collin County. Texas.
THENCE North 00 deg SS min 43 sec Wast, alone, the West loos of said Parker Country Club tram sand the Eu
litre of said Sessums tract. a distance of 430.16 to a point for comer on the fine Southerly right -a -way of said
Parker Road at its intersection with the East fate of said Sessums tract from which an aluminum! TxDOT raonuanetu
route! bass South 30 deg 20 min 36 we East. a distance of 0.49 feed
THENCE South 89 deg 48 min 44 sec Eat„ along the futwe South right-of-way of said Poker Road, a distance of
162.18 flea to the POINT OF BEGINNING.
CONTAINING within dim rhes and hounds 1.896 acres or 12.596 square Deet of land, more or less
Development Agreement — CVS Pharmacy, Inc. Stormwater Improvements Page 16 of 23
2457747
Development Agreement — CVS Pharmacy, Inc. Stormwater Improvements Page 17 of 23
2457747
Exhibit B
Stormwater Improvements
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2457747
Exhibit C
Estimated Cost Analysis
City of Wylie - Box Culvert Participation
Parker Country Club
Cost Estimate
July 17, 2018
184 LF 8'x4' RCB S 84,840.00
40 LF 24" RCP $ 2,960.00
Grading in Ditch areas $ 14,000.00
Difference between Old and New Detention Outfall
171 LF 18" RCP (New) S 10,431.00
42 LF 12" HDPE (Old) $ (1,680.00)
DELTA $ 8,751.00
TOTAL $ 110,551.00
Development Agreement — CVS Pharmacy, Inc. Stormwater Improvements Pa, -Ye 22 of 23
2457747
Exhibit D
Easement
Development Agreement — CVS Pharmacy, Inc. Stormwater Improvements Page 23 of 23
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