HomeMy WebLinkAboutContract 57490 05/03/2022
CSC No.57490
11:58 am
DESIGN PROCUREMENT AGREEMENT
FOR
CHISHOLM TRAIL RANCH OFF-SITE SEWER
This Design Procurement Agreement ("Agreement") is entered into by and between the
City of Fort Worth, a home-rule municipal corporation of the State of Texas ("City"), acting by
and through, its duly authorized Assistant City Manager, and Meritage Homes of Texas, LLC,
an Arizona limited liability company ("Developer"), acting by and through its duly authorized
representative. City and Developer are referred to herein individually as a party and collectively
as the parties.
Recitals
WHEREAS, City and Developer each desire to make public infrastructure improvements
in the form of a gravity sewer main in the City of Fort Worth, Texas ("Project"), as further
described in Exhibit"A"which is attached hereto and incorporated herein by reference; and
WHEREAS,City and Developer desire to enter into this Agreement in order to accomplish
the goals of the parties; and
WHEREAS, Developer has determined that Goodwin and Marshall, Inc. ("Design
Consultant") should design the Project based on demonstrated competence and qualification to
perform the Design Consultant services for a fair and reasonable price; and
WHEREAS, City staff have reviewed the scope, fee and schedule for the design of the
Project and find them to be fair and reasonable; and
WHEREAS, Developer will initially fund the costs of Design Consultant and City will
reimburse Developer for 76% of the design costs in an amount not to exceed $200,856.60; and
WHEREAS, City and Developer intend to execute a Community Facilities Agreement, or
other similar agreement, that provides for the Developer to construct the Project and seek
reimbursement from the City for the City's share of the construction costs and eligible construction
expenses as agreed by the parties; and
WHEREAS, Walton Development & Management, TX, LLC is obligated to provide
adequate sewer capacity to meet the sanitary sewer service needs of a 62 acre Unserved Tract in
Fort Worth Public Improvement District Number 17 — Rock Creek Ranch ("Rock Creek Capital
PID") as described in the engineer's letter dated December 18, 2020, which is included in the
continuing disclosure report for the issuance of the bonds for the Rock Creek Capital PID
("Engineer's Letter"); and
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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Meritage Homes of Texas,LLC
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WHEREAS, Developer has submitted engineering studies modelling sewer needs within
the sub-basins depicted in Exhibit"A"based on the Developer's development plans,which studies
have been reviewed and accepted by the Water Department("Sewer Studies"); and
WHEREAS, the Unserved Tract identified in the Engineer's Letter is designated as sub-
basin 3 (SB 3) in the Sewer Studies; and
WHEREAS, based on the Sewer Studies, construction of the sanitary sewer main that is
the subject of this Agreement will provide adequate capacity to meet the sanitary sewer service
needs of SB 3/the Unserved Tract; and
WHEREAS, based on the foregoing, construction of the sanitary sewer main that is the
subject of this Agreement will satisfy the obligation of Walton Development&Management,TX,
LLC to provide sanitary sewer service for the Unserved Tract but will not satisfy any other
obligation with respect to the Engineer's Letter or Rock Creek Capital PID; and
WHEREAS, Developer shall not earn a fee based upon the City's portion of the design
fees paid to Design Consultant;
NOW, THEREFORE, for and in consideration of the above recitals and the mutual
covenants and agreements herein contained,the City and Developer agree as follows:
SECTION 1
GENERAL REQUIREMENTS
1.1 City and Developer agree that recitals stated above are true and correct and incorporated
into the Agreement by reference.
1.2 The Project will generally consist of certain public infrastructure in the form of a public
gravity sewer main as further described in Exhibit "A" to serve the basins identified in
Exhibit"A".
1.3 Developer will retain the Design Consultant for the Project pursuant to a written agreement
to which the City consents, a copy of which is attached hereto as Exhibit "B" and
incorporated herein by reference.
1.4 Upon completion of design and construction of the Project, the property owner of each
basin in Table I shall be entitled to the flows outlined in the following Table 1:
Table 1 -Allowable Flow per Basin
Basin Average Peak Flow
Flow GP GP
SB2 103.78 382.97
SB3 54.69 211.34
SB6 24.06 97.45
Design Procurement Agreement for Chisholm Trail Ranch Off-site Sewer Page 2 of 18
Meritage Homes of Texas,LLC
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SB 8 76.08 286.81
SB 9 66.84 254.66
SB 10 39.62 156.10
City will review future sewer studies and loadings to ensure the proper allocation is given
as outlined Table 1. Allocation will stay with the land in the event of a property transfer
unless a separate written agreement involving the City is made. Basins in Table 1 will not
be subject to per acre or other capital recovery charges related to the sewer main. Any
additional flow beyond the flow requested by the above basins will be subject to future pro
rata charges and available solely at the discretion of the City. On the basins not shown in
Table 1,the City may assess a pro rata charge reimbursable solely to the City and consistent
with City ordinance.
1.5 City agrees to pay Developer for 76.0% of the actual cost for the design and construction
phase services of the Design Consultant for the Project("City's Share"), in a total amount
not to exceed $200,856.60 as more specifically detailed in the Level of Effort in Exhibit
"C"which is attached hereto and incorporated herein by reference. The 76.0%City,24.0%
Developer cost share was determined in accordance with the chart in Exhibit "A". The
flows in the chart are minimum requirements and the lengths are a good faith estimate both
parties have agreed to. The design of the Project includes, as appropriate, the preparation
of engineering drawings, studies, renderings, contract specifications, estimates, and other
documents necessary to construct the improvements contemplated by this Agreement
("Construction Documents"). Developer shall pay all invoices received by Developer from
Design Consultant for the design of the Project. City will pay to Developer the City's
Share of the design cost for the Project within 30 days after: (1)the construction plans are
approved by the City Plan Commission or the Engineering Manager of the Infrastructure
Plan Review Center ("IPRC"); (2) Developer delivers an invoice from Developer to the
City for the City's Share of the design cost; and (3) Developer delivers to the City a copy
of the invoice from the Design Consultant to Developer for the design of the Project.
Developer shall use the City's BIM 360 software to deliver all payment request and
supporting documents to the City. Developer must register as a vendor of the City in order
for City to pay Developer the City's Share of the design costs. City shall have the ultimate
right to approve or disapprove the Construction Documents, such approval not to be
unreasonably withheld, delayed, or conditioned.
1.6 The IPRC Engineering Fees for the design of the Project shall be calculated based on the
number of sheets submitted to the City for review in accordance with the City Code. City
intends to reimburse Developer for 10% of the IPRC Engineering Fees based on the
determination that the City's participation in the design of the Project is causing an increase
in the number of sheets equal to 10% of the total number of sheets required for the design
of the Project. City will seek approval from the City Council of an appropriation ordinance
for the City's share of the IPRC Engineering Fees, and, if approved, will include such
reimbursement in the community facilities agreement that City and Developer intend to
execute.
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1.7 Provided the City has reimbursed Developer for all submitted invoices that collectively do
not exceed the cap amount on the City's Share contemplated in Section 1.5, City shall own
the plans and other documents and work product Design Consultant creates for the design
of the Project. In the event this Agreement is terminated, City shall have the right to enter
into an agreement with Design Consultant to complete the design of the Project. Developer
shall include the City's ownership right in the plans for the Project and the City's right to
enter into an agreement with Design Consultant to complete the design of the Project if this
Agreement is terminated in Developer's agreement with Design Consultant
1.8 The parties intend to execute a Community Facilities Agreement("CFA")for construction
of the Project, as a single project, after approval of the CFA and appropriation of funds by
the City Council. The parties intend for the City to pay 76% of the construction costs and
the Developer to pay 24.0% of the construction costs under the CFA. Developer will be
responsible for paying the CFA application fee associated with the Project. Developer
intends to publicly bid the project. The parties intend for construction of the Project to be
completed within 12 months of the initial preconstruction meeting between representatives
of the City, Developer and the Developer's contractor.
1.9 The CFA will establish each party's responsibility for soft costs,including but not limited
to, material testing costs, administrative material testing fees, construction inspection
service fees, water lab testing fees, public bidding advertisement costs, franchise utility
relocations, and easements. Developer will be responsible for obtaining and paying for all
permits, including but not limited to TXDOT permits and railroad crossing permits.
1.10 Developer's on-site subdivision construction plans that will be served by the Project may
be filed with IPRC for review at the same time or after, but not before, the construction
plans for the Project are filed with 1PRC for review. The community facilities agreement
for the on-site construction plans that will be served by the Project may not be executed
until after the CFA for the Project is executed. Off-site infrastructure for the project must
have a final acceptance by the City, as evidenced by the execution of a green sheet,before
any on-site infrastructure will be accepted by the City.
SECTION 2
TERNIINATION
2.1 Termination. This Agreement may be terminated by either party upon delivery of written
notice to the other party of such intent to terminate; provided, however, the City may not
terminate this Agreement in bad faith for the purpose of avoiding its reimbursement
obligation set forth in Section 1.3 above. City reasons for terminating the contract include,
but are not limited to, excessive time taken to adequately advance the project towards
completion or irreconcilable differences of design or construction issues. If the City
terminates this Agreement after the design work for the Project has commenced, then the
City shall reimburse Developer for the City's Share of the design costs incurred or paid as
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of the date of such termination, such reimbursement to be made within thirty (30) days of
the City's receipt of an invoice evidencing such costs.
2.2 Fiscal Funding Out. Notwithstanding anything to the contrary, if, for any reason, at any
time during the term of the Agreement, the Fort Worth City Council fails to appropriate
funds sufficient for the City to fulfill its obligations under this Agreement, the City may
terminate the portion of the Agreement regarding such obligations to be effective on the
later of: (i) delivery by the City to Developer of written notice of the City's intention to
terminate or (ii) the last date for which funding has been appropriated by the Fort Worth
City Council for the purposes set forth in this Agreement;provided,however,the City shall
reimburse Developer for the City's Share of the design costs incurred or paid by Developer
as of the date of such termination, such reimbursement to be made within thirty (30) days
of the City's receipt of an invoice evidencing such costs.
SECTION 3
FORCE MAJEURE
3.1 If either party is unable, either in whole or part, to fulfill its obligations under this
Agreement(other than payment obligations) due to acts of God; strikes, lockouts, or other
industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots;
epidemics;public health crises; earthquakes; fires; floods;restraints or prohibitions by any
court, board, department, commission, or agency of the United States or of any state;
declaration of a state of disaster or of emergency by the federal, state, county, or City
government in accordance with applicable law; issuance of a Level Orange or Level Red
Alert by the United States Department of Homeland Security; any arrests and restraints;
civil disturbances; or explosions; or some other reason beyond the party's reasonable
control (collectively, "Force Majeure Event"), the obligations so affected by such Force
Majeure Event will be suspended only during the continuance of such event; provided,
however, that any payment obligations of either party under this Agreement shall not be
excused or delayed by any Force Majeure Event.
SECTION 4
LIABILITY AND INDEMNIFICATION
4.1 DEVELOPER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL
PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY,
INCLUDING DEATH, TO ANYAND ALL PERSONS, OFANYKIND OR CHARACTER,
WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT
ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF
DEVELOPER,ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES.
4.2 DEVELOPER AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS
OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES HARMLESS AGAINST ANY
AND ALL CLAIMS,LA WSUITS,ACTIONS, COSTS,AND EXPENSES OF ANY KIND,
INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS
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(INCLUDING ALLEGED DAMAGE OR LOSS TO DEVELOPER'S BUSINESS AND
ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY (INCLUDING
DEATH) THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY (I)
DEVELOPER'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT OR (II) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF DEVELOPER, ITS OFFICERS, AGENTS, ASSOCIATES,
EMPLOYEES, CONTRACTORS(OTHER THAN THE CITI), OR SUBCONTRACTORS
RELATED TO THE PERFORMANCE OF THIS AGREEMENT,EXCEPT THAT THE
INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANY
LIABILITY RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR
SEPARATE CONTRACTORS. NOTHING HEREIN SHALL BE CONSTRUED AS A
WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS PROVIDED BY THE
LA WS OF TEXAS.
4.3 Developer shall require all of its subcontractors to include in their subcontracts a release and
indemnity in favor of the city in substantially the same form as above. This section shall
survive the expiration or termination of this Agreement.
4.4 Developer's agreement with the Design Consultant shall include a release and indemnity in
favor of City in substantially the following form:
"DESIGN CONSULTANT SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND
THE CITY OF FORT WORTH AGAINST LIABILITY FOR ANY DAMAGE CAUSED
BY OR RESULTING FROM AN ACT OF NEGLIGENCE, INTENTIONAL TORT,
INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A
SUBCONTRACTOR OR SUPPLIER COMMITTED BY DESIGN CONSULTANT OR
DESIGN CONSULTANT'S AGENT, CONSULTANT UNDER CONTRACT, OR
ANOTHER ENTITY OVER WHICH THE DESIGN CONSULTANT EXERCISES
CONTROL."
SECTION 5
INSURANCE
5.1 Developer shall maintain the insurance requirements set forth in Exhibit "D", which is
attached hereto and incorporated herein for all purposes.
5.2 Developer shall require in its contract with Design Consultant that City is listed as an
additional insured on Design Consultant's insurance policy.
SECTION 6
NONDISCRINIINATION
6.1 Developer shall not engage in any unlawful discrimination based on race, creed, color,
national origin, sex, age, religion, disability, marital status, citizenship status, sexual
orientation or any other prohibited criteria in performing the services under this Agreement.
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SECTION 7
VENUE AND CHOICE OF LAW
7.1 Developer and City agree that this Agreement shall be construed in accordance with the
laws of the State of Texas. If any action,whether real or asserted, at law or in equity, arises
on the basis of any provision of this Agreement, venue for such action shall lie in state
courts located in Tarrant County,Texas or the United States District Court for the Northern
District of Texas—Fort Worth Division.
SECTION 8
THIRD-PARTY RIGHTS AND ASSIGNMENTS
8.1 The provisions and conditions of this Agreement are solely for the benefit of the City and
Developer, and any lawful assign or successor of Developer, and are not intended to create
any rights, contractual or otherwise,to any other person or entity.
8.2 Developer agrees that it will not subcontract or assign all or any part of its rights,privileges
or duties hereunder without the prior written consent of the City, and any attempted
subcontract or assignment of same without such prior consent of the City shall be void.
SECTION 9
BINDING COVENANTS
9.1 Subject to the limitations contained herein,the covenants,conditions and agreements made
and entered into by the parties hereunder are declared to be for the benefit of and binding
on their respective successors,representatives and permitted assigns, if any.
SECTION 10
INDEPENDENT CONTRACTOR
10.1 Developer shall perform all work and services hereunder as an independent contractor, and
not as an officer, agent, servant or employee of the City. Developer shall have exclusive
control of, and the exclusive right to control the details of the work performed hereunder,
and all persons performing same, and shall be solely responsible for the acts and omissions
of its officers, agents, employees and subconsultants (or subcontractors). Nothing herein
shall be construed as creating a partnership or joint venture between the City and
Developer, its officers, agents, employees and subconsultants (or subcontractors), and
doctrine of respondent superior has no application as between the City and Developer.
SECTION 11
AMENDMENTS, CAPTIONS,AND INTERPRETATION
11.1 Except as otherwise provided in this Agreement, the terms and provisions of this
Agreement may not be modified or amended except upon the written consent of both the
City and Developer.
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11.2 Captions and headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
11.3 In the event of any dispute over the meaning or application of any provision of this
Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more
strongly for, or against, any party,regardless of the actual drafter of this Agreement.
SECTION 12
GOVERNMENTAL POWERS AND IMMUNITIES
12.1 It is understood that by execution of this Agreement,the City does not waive or surrender
any of its governmental powers or immunities.
SECTION 13
AUTHORIZATION AND COUNTERPARTS
13.1 By executing this Agreement on behalf of Developer,the person signing below affirms that
he or she is authorized to execute this Agreement and that all representations made herein
with regard to the signer's identity, address, and legal status are true and correct.
13.2 This Agreement may be executed in several counterparts,each of which will be deemed an
original,but all of which together will constitute one and the same instrument.
SECTION 14
SEVERABILITY AND NO WAIVER
14.1 It is agreed that in the event any covenant, condition or provision herein contained is held
to be invalid by any court of competent jurisdiction, the invalidity of such covenant,
condition or provision shall in no way affect any other covenant, condition or provision,
and does not materially prejudice either Developer or City in connection with the rights
and obligations contained in the valid covenants, conditions or provisions of this
Agreement.
14.2 The failure of either party to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted hereunder shall not constitute a waiver of that
party's right to insist upon appropriate performance or to assert any such right on any future
occasion.
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SECTION 15
COMPLIANCE WITH LAWS
15.1 This Agreement is subject to all applicable federal, state and local laws, ordinances, rules
and regulations, including, but not limited to, all provisions of the City's Charter and
ordinances, as amended.
15.2 If City notifies Developer or any of its officers, agents, employees, contractors,
subcontractors,licensees,volunteers, or invitees of any violation of such laws, ordinances,
rules or regulations, Developer shall immediately desist from and correct the violation.
SECTION 16
NOTICES
16.1 Notices to be provided hereunder shall be sufficient if forwarded to the other party by hand-
delivery or via U.S. Postal Service certified mail, postage prepaid, or by electronic mail, to
the address of the other party shown below:
To the City: To Developer:
Fort Worth Water Department Meritage Homes of Texas, LLC
Attn: Chris Harder Attn: David Aughinbaugh
200 Texas Street 8840 Cypress Waters Blvd., Ste. 100
Fort Worth, Texas 76102 Dallas, TX 75019
Email: Matt.Kusnir(a fortworthtexas.g_ov Email:
david.aughinbaugh@meritagehomes.com
with copies to: with copies to:
City Attorney's Office Meritage Homes Corporation
City of Fort Worth Attn: Ryan Hamilton
200 Texas Street E. Raintree Dr., Ste .300
Fort Worth, Texas, 76102 Scottsdale,AZ 85260
Email:
ryan.hamilton@meritageshomes.com
And
City Manager's Office
City of Fort Worth
200 Texas Street
Fort Worth, Texas 76102
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SECTION 17
HEADINGS
17.1 The headings contained herein are for the convenience in reference and are not intended to
define or limit the scope of any provision of this Agreement.
SECTION 18
RIGHT TO AUDIT
18.1 Developer agrees that the City shall, until the expiration of three (3) years after final
payment under this Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Developer involving transactions
relating to this Agreement. Developer agrees that the City shall have access during normal
working hours to all necessary Developer facilities and shall be provided adequate and
appropriate workspace in order to conduct audits in compliance with the provisions of this
section. The City shall give Developer reasonable advance notice of intended audits.
18.2 Developer shall include in its contract with Design Consultant a right, until the expiration
of three (3)years after final payment under this Agreement,to have access to and the right
to examine any directly pertinent books, documents, papers and records of Design
Consultant involving transactions relating to this Agreement and the agreement between
Developer and Design Consultant. Design Consultant must agree that the City shall have
access during normal working hours to all necessary Design Consultant facilities and shall
be provided adequate and appropriate work space in order to conduct audits in compliance
with the provisions of this section. City shall give Design Consultant reasonable advance
notice of intended audits.
SECTION 19
PROHIBITION ON BOYCOTTING ISRAEL
19.1 Developer acknowledges that in accordance with Chapter 2270 of the Texas Government
Code, the City is prohibited from entering into a contract with a company for goods or
services unless the contract contains a written verification from the company that it: (1)
does not boycott Israel; and(2)will not boycott Israel during the term of the contract. The
terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in
Section 808.001 of the Texas Government Code. By signing this contract, Developer
certifies that Developer's signature provides written verification to the City that
Developer: (1) does not boycott Israel; and(2) will not boycott Israel during the term of
the contract.
SECTION 20.
PROHIBITION ON BOYCOTTING ENERGY COMPANIES
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20.1 Developer acknowledges that in accordance with Chapter 2274 of the Texas Government
Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2, the City is prohibited from
entering into a contract for goods or services that has a value of$100,000 or more that is
to be paid wholly or partly from public funds of the City with a company with 10 or more
full-time employees unless the contract contains a written verification from the company
that it: (1) does not boycott energy companies; and (2)will not boycott energy companies
during the term of the contract. The terms"boycott energy company"and"company"have
the meanings ascribed to those terms by Chapter 2274 of the Texas Government Code, as
added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter 2274 of the
Government Code is applicable to this Agreement, by signing this Agreement, Developer
certifies that Developer's signature provides written verification to the City that Developer:
(1) does not boycott energy companies; and (2) will not boycott energy companies during
the term of this Agreement.
SECTION 21.
PROHIBITION ON DISCRIMINATION AGAINST FIREARM AND AMMUNITION
INDUSTRIES
21.1 Developer acknowledges that except as otherwise provided by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is
prohibited from entering into a contract for goods or services that has a value of$1005000
or more that is to be paid wholly or partly from public funds of the City with a company
with 10 or more full-time employees unless the contract contains a written verification
from the company that it: (1) does not have a practice, policy, guidance, or directive that
discriminates against a firearm entity or firearm trade association; and (2) will not
discriminate during the term of the contract against a firearm entity or firearm trade
association. The terms "discriminate," "firearm entity" and "firearm trade association"
have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code,
as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter 2274 of
the Government Code is applicable to this Agreement, by signing this Agreement,
Developer certifies that Developer's signature provides written verification to the City that
Developer: (1) does not have a practice, policy, guidance, or directive that discriminates
against a firearm entity or firearm trade association; and(2)will not discriminate against a
firearm entity or firearm trade association during the term of this Agreement.
SECTION 22
SOLE AGREEMENT
22.1 This Agreement, including any exhibits attached hereto and any documents incorporated
herein, contains the entire understanding and agreement between the City and Developer,
and any lawful assign and successor of Developer, as to the matters contained herein. Any
prior or contemporaneous oral or written agreement is hereby declared null and void to the
extent in conflict with any provision of this Agreement.
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Meritage Homes of Texas,LLC
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IN WITNESS THEREOF, the parties have made and executed this Agreement in multiple
originals to be effective on the date signed by the City's Assistant City Manager.
CITY OF FORT WORTH: DEVELOPER:
Meritage Homes of Texas,LLC,
an Arizona limited liability company
Dana Burghdoff(Al5r 27,20 19:06 CDT)
David A�gh(Apr 27,2022 10:27 CDT)
Dana Burghdoff David Aughinbaugh
Assistant City Manager Division Vice President
Apr 27,2022 Apr 27,2022
Date: Date:
RECOMMENDED BY:
Chris Harder(Apr 27,2022 13:06 CDT)
Christopher Harder, P.E.
Water Department Director
APPROVED AS TO FORM AND
LEGALITY:
4K2,-- Contract Compliance Manager:
Richard A.McCracken(Apr 27,2022 15:40 CDT) By signing,I acknowledge that I am the person
responsible for the monitoring and administration
Richard A. McCracken of this contract,including ensuring all performance
Sr. Assistant City Attorney and reporting requirements.
J ylorGun an,P.E.(AIKA7,202211:54 CDT)
ATTEST:
Taylor Gunderman,P.E.
Engineering Manager
:te S.Goodall(May 2,2022 13: DT)
gdp4UR��
Jannette S. Goodall oaf FORT�a�
,�O°°°°°°°°°°� a AGREEMENT AUTHORIZATION:
City Secretary ��o° °°O d
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Date: May 2,2022 �vo "I
d M&C: 22-0175
dp� °°°°°°°°°°°°°°�,�� Date approved: 3/8/22 OFFICIAL RECORD
*x#L* Form 1295: 2022-847201 CITY SECRETARY
FT. WORTH, TX
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Meritage Homes of Texas,LLC
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EXHIBIT A TO DESIGN PROCUREMENT AGREEMENT
Total Population Average Flow Peaking Peak Flaw Oultimate -
Begin DP End DP Sub-BasFns Served Basin Size(Ac.) Served (gpm) Factor {gpm) (MGD) Length lft) _
DPI DP2 SBl&partial of 5132 18&21 4435 307.95 3.29 1014.05 1.460 2122
DP2 DP3 S61&S62 199.21 4435 307.95 3.29 IC14.05 1.460 798
DP3 DP4 SB1,5B2&SB4 237.16 5315 359.14 3.22 1198.72 1.712 939
DP4 DP5 561,5B256E SB4&
I 327.16 6450 447.99 3.14 1406.73 2.026 263E
1
DP5 DP6 SB3,5B2,583,564, 462.96 8399 583.22 3.03 17%.90 2.544 172D -
S06,SB7&SB8 =
581,562,583,5134, r
DP6 DP8 S86,S67,588,S69, 896.69 13985 955.11 2.81 2695.79 3.868 1860 4
5B15&SB16
DP8 DP9 S13
1.11,SB15&S816 979.73 15393 1059.84 2.77 2932.50 4.223 1526
DP9 DP10 SBI-15 2064,59 30199 2088.06 2.47 5166.70 7.440 6260
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Design Procurement Agreement for Chisholm Trail Ranch Off-site Sewer Page 13 of 18
Meritage Homes of Texas,LLC
4893-1089-8178,v.2
Begin Developer City Avg Developer Citylength x
DP End DP Avg Flow Flow Length x Flow length x flow
now
DPI DP2 101.35 204.17 648,315 215,074 433,242
DP2 DP3 101.35 204.17 243,806 80,881 162,925
DP3 DP4 101.35 265.35 344,339 95,172 249,168
DP4 DP5
180.10 265.35 1,175,119 475,115 700,004
DP5 DP6
256.18 324.60 998,950 440,631 558,319
DP6 DP8
323.02 629.66 1,771,992 600,819 1,171,173
DP8 DP9 362.64 694.77 1,613,608 553,387 1,060,221
DP9 DP10 362.64 1722.99 13,056,059 2,270,119 10,785,940
TOTAL: 19,852,188 4,731,196 15,120,992
Weighted: 24.0% 76.0%
Design Procurement Agreement for Chisholm Trail Ranch Off-site Sewer Page 14 of 18
Meritage Homes of Texas,LLC
4893-1089-8178,v.2
EXHIBIT B TO DESIGN PROCUREMENT AGREEMENTDESIGN CONSULTANT
AGREEMENT
(See attached)
Design Procurement Agreement for Chisholm Trail Ranch Off-site Sever Page 15 of 18
Meritage Homes of Texas,LLC
4893-1089-8178,v.2
DocuSign Envelope ID:5D5A8ED1-D903-4915-B48D-80BACA3E1 COC
MERITAGE HOMES OF TEXAS,LLC
DALLAS/FORT WORTH DIVISION
8840 CYPRESS WATERS BLVD., SUITE 100
DALLAS,TEXAS 75019
(972) 580-6300(phone)
(972) 580-6397(fax)
MASTER PROFESSIONAL SERVICES AGREEMENT
For(General Type of Services): Engineering Services
"Consultant": Goodwin and Marshall,Inc.
Type of Entity: Corporation Federal Tax I.D.No.: 75-2195306
Consultant License No.: Engineering:F-2944;Surveying: 1002170
Business Address: 2405 Mustang Drive,Grapevine,TX 76051
Business Phone: (817)329-4373 Facsimile No.:
E-mail Address: Eric Loshelder: eloshelder@gmcivil.com
THIS MASTER PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is entered into as of the 6t'day of July, 2021,
(the"Effective Date"),by and between Consultant and Meritage Homes of Texas,LLC—Dallas/Fort Worth Division("Meritage"). In
the event the above-named Consultant is a subsidiary or affiliate of a parent company, the above-named Consultant acknowledges that it is
entering into, and has the authority to enter into, this Agreement on its own behalf and on behalf of its parent company and, therefore, all
references herein to Consultant shall be deemed to refer to the above-named Consultant and its parent company. The terms and conditions of
this Agreement shall apply to all Services(as defined in Section 1.2 below)provided by Consultant pursuant to one or more"Authorization
Agreements"that may hereafter be entered into between Meritage and Consultant pursuant to this Agreement, and this Agreement shall be
deemed to include the applicable Authorization Agreement(s)(if any)duly executed and delivered by Meritage. The form of Authorization
Agreement that must be used pursuant to this Agreement is attached hereto as Exhibit A,and such Authorization Agreement contains,among
other things, a description of the Basic Services to be performed by Consultant,the time periods for performance of the Basic Services, and
Consultant's compensation for performing the Basic Services. Unless and until an Authorization Agreement is executed and delivered by
Meritage,Consultant is not authorized or obligated to perform any work or services,and Meritage has no obligation to make any payments to
Consultant for any work or services performed for which an Authorization Agreement has not been executed and delivered by Meritage.
This Agreement does not constitute(and shall not be construed as)a commitment by or obligation of Meritage or any affiliate of Meritage to
execute or provide any Authorization Agreement to Consultant, and Meritage and any affiliate of Meritage may, at their sole option, retain
others to provide services similar to, or the same as,the Services to be provided by Consultant pursuant to an Authorization Agreement, if
any,in addition to or in place of Consultant.
1. Professional Services.
1.1 Basic Services. Consultant shall furnish all services, materials, labor and personnel reasonably prudent or necessary to
perform and complete all services described in Schedule 1 to each Authorization Agreement executed by the parties from time to time,
together with those services that are reasonably inferable from or incidental to such services, and such other services referenced as "Basic
Services" in this Agreement (collectively, the "Basic Services"). The Basic Services shall be performed in accordance with the
"Performance Schedule"(if any) set forth in Schedule 1 to each applicable Authorization Agreement. In the event that all or any portion
of Consultant's proposal or form agreement is attached to any Authorization Agreement, the parties acknowledge and agree that
such item is attached thereto solely to set forth the scope of the Basic Services,the Performance Schedule and/or a completion date
for the Basic Services, and no other terms,provisions or conditions of such attached proposal or Consultant's form agreement shall
have any force or effect whatsoever.
1.2 Additional Services. Meritage may request that certain additional services be performed by Consultant that are not
included in the Basic Services originally set forth in an Authorization Agreement("Additional Services"). Basic Services and Additional
Services performed under this Agreement shall be referred to collectively as the "Services." Consultant shall only provide Additional
Services if authorized in writing in advance by Meritage pursuant to an "Additional Services Order" (each in the form attached to the
applicable Authorization Agreement as Schedule 3) executed by Meritage and Consultant in writing prior to Consultant commencing any
Additional Services. All Additional Services shall be subject to the terms and conditions of this Agreement. Whenever Additional Services
are to be provided by Consultant,Consultant shall first notify Meritage in writing:(a)that such services requested by Meritage are Additional
Services and not part of the Basic Services, and (b)of Consultant's estimate of the cost and time frame to accomplish such Additional
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Services. If requested by Meritage, Consultant shall submit along with the description of Additional Services a maximum not-to-exceed
price for such Additional Services. Notwithstanding the foregoing,Meritage shall not pay for any Additional Services if such services were
required due to the fault or neglect of Consultant, Consultant's failure to adhere to the Performance Schedule or Consultant's failure to
otherwise perform its obligations in accordance with the terms of this Agreement. CONSULTANT ACKNOWLEDGES THAT IT SHALL
NOT BE ENTITLED TO RECEIVE COMPENSATION FOR ANY ADDITIONAL SERVICES IF SUCH SERVICES WERE NOT
PREVIOUSLY APPROVED BY MERITAGE PURSUANT TO AN ADDITIONAL SERVICES ORDER EXECUTED BY MERITAGE
WITH RESPECT TO SUCH ADDITIONAL SERVICES. In the event that all or any portion of Consultant's proposal or form
agreement is attached to an Additional Services Order,the parties acknowledge and agree that such item is attached thereto solely to
set forth the scope of the Additional Services,the compensation to be paid and/or expenses to be reimbursed to Consultant for the
Additional Services,the Performance Schedule and/or a completion date for the Additional Services,and no other terms,provisions
or conditions of such proposal or Consultant's form agreement shall have any force or effect whatsoever.
1.3 Subconsultants. Consultant shall not enter into any agreements with consultants or subconsultants for the performance
of any part of the Services(`Subconsultants")unless Meritage has provided its prior written consent,which consent Meritage may withhold
in Meritage's sole discretion. Consultant shall not delegate any Services to any Subconsultant to whom Meritage objects for any reason. All
agreements for the engagement of Subconsultants shall: (i) be in writing; (ii) require Subconsultants to perform their work to the same
standards set forth in this Agreement; (iii)impose upon Subconsultants the same duties as Consultant has to Meritage under this Agreement;
(iv)at Meritage's option,be assumable by Meritage(without the prior consent of such Subconsultant and without any liability of Meritage to
perform Consultant's obligations that accrued prior to such assumption) at termination of this Agreement for any reason other than a
monetary default by Meritage; (v) include insurance requirements and dispute resolution provisions the same as those contained in this
Agreement; (vi) provide that Meritage shall be the owner of all plans and other documents prepared by Subconsultants; (vii) provide that
such agreements shall be terminable by Consultant (or Meritage if assumed thereby) at any time; and (viii) require Subconsultants to
indemnify, defend, hold harmless, protect and reimburse Meritage to the same extent Consultant has so agreed in this Agreement. There
shall be no surcharge on Subconsultant's fees if Consultant elects to use Subconsultants. Nothing contained in this Agreement shall create
any contractual relationship between Meritage and any Subconsultant.
1.4 Coordination and Oversight. Notwithstanding Section 1.3, or any other provision in this Agreement to the contrary,
Consultant shall be responsible for the Services, whether performed by Consultant or any Subconsultant. Consultant acknowledges that
Meritage may also contract with various other professionals or consultants ("Meritage's Consultants") with respect to services similar or
complementary to the Services. Consultant acknowledges that the development of the Work Product (as defined in Section 9 below)may
require very close coordination among various consultants. Consequently,Consultant shall coordinate the Services with and cooperate with
each of Meritage's Consultants in order to achieve the design and development of a fully integrated and complete Work Product. Consultant
shall immediately notify Meritage and all of Meritage's Consultants(whose contact information Meritage provides to Consultant)in writing
of any changes, revisions, occurrences and conditions that might affect their work or drawings and/or their services, and Consultant shall
immediately provide Meritage with copies of all such correspondence.
1.5 Independent Contractor Relationship. This Agreement constitutes an agreement for the performance of Services by
Consultant as an independent contractor and not as an employee of or partner with Meritage or any affiliate of Meritage. Nothing contained
in this Agreement shall be deemed to create a relationship between Meritage(or any affiliate of Meritage)and Consultant, except that of an
independent contractor.
1.6 Taxes. Consultant shall pay all taxes imposed by any federal, state or local taxing authority on: (a) all fees, costs and
other compensation paid by Meritage to Consultant pursuant to this Agreement; and (b) all payroll and compensation sums paid by
Consultant to Consultant's employees and all other taxes,fees and charges levied against Consultant on account of this Agreement.
2. Compensation.
2.1 Payment of Consultant's Compensation. Meritage shall compensate Consultant for the performance of: (a) those
Services satisfactorily performed pursuant to an Authorization Agreement; and(b)where applicable, any Additional Services satisfactorily
performed pursuant to an Additional Services Order. Payment shall be made in the manner and in the amounts described on Schedule 2 to
the applicable Authorization Agreement(titled"Compensation").
2.2 Reimbursable Expenses. Meritage shall reimburse Consultant for expenses actually incurred, without mark-up or
administrative charges,if,and only if,any such expenses are specifically listed as Reimbursable Expenses in Section I of Schedule 2 attached
to the applicable Authorization Agreement (`Reimbursable Expenses"). As a cost savings measure, Meritage requires that all plans,
specifications,reports, studies and other Work Product(as defined in Section 9 below)be provided by Consultant to Meritage electronically
to allow Meritage to print such items without the assistance of reproduction companies. Accordingly, Meritage will not typically pay or
reimburse Consultant for such prints and to be eligible for inclusion as Reimbursable Expenses,all prints must be pre-approved in writing by
Meritage and printed by Consultant at its own premises or at reproduction company(ies)pre-approved in writing by Meritage.
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2.3 Payment.
a. As a condition of payment to Consultant by Meritage,Consultant must comply with the following requirements
as well as those set forth in Schedule 2 to the applicable Authorization Agreement: (i)all deficiencies in the Services or the Work Product,as
determined by Meritage or the applicable reviewing jurisdictional agency(ies), must be fully corrected by Consultant; and (ii)Consultant
must provide Meritage with evidence that Consultant has obtained and currently maintains all insurance coverages required in Section 7
below. Consultant also agrees to provide such invoices,lien releases and other documentation as may be reasonably required by Meritage or
its lenders, investors, land bankers, other finance sources, partners, affiliates or other persons with an interest in the Work Product, as
designated by Meritage. In the event that any preliminary lien notices are filed or recorded by Consultant with respect to the Services in
accordance with applicable Laws,such notices shall reflect the owner and project information(if any)identified by Meritage in the applicable
Authorization Agreement or Additional Services Order,and Consultant shall provide a copy of such information to each of its Subconsultants
of every tier who may have lien rights under applicable Laws in connection with the Services provided pursuant to such Authorization
Agreement or Additional Services Order.
b. Meritage may refuse to approve all or any portion of Consultant's Applications for Payment (as defined in
Schedule 2 to the applicable Authorization Agreement) and Meritage shall have the right to withhold payment for all or that portion of any
Application for Payment that is disapproved if: (i)Consultant fails to submit with any Application for Payment all appropriate back-up,
including any required lien releases and waivers; (ii)Meritage has disapproved all or a portion of the Services for which Consultant is
requesting payment; (iii)third party claims have been threatened or made, or third party liens have been threatened or recorded,with regard
to the Services; or(iv)Consultant has committed any other breach or default under this Agreement and has not cured such breach or default
as provided in Section 5 below.
C. Consultant agrees that any payment by Meritage shall not be deemed approval of any Work Product or Services
performed by Consultant, or relieve Consultant of its responsibility for defective or non-conforming Work Product or Services, or of
Consultant's obligations under the insurance and indemnification provisions of this Agreement.
3. Standards of Consultant Performance.
3.1 Skill. Consultant represents and covenants that Consultant and its Subconsultants performing any portion of the Services
have, and will continue to have at all times during the performance of the Services, the skill and professional competence, expertise,
qualifications, appropriate licenses and experience and the financial solvency and resources to undertake and professionally carry out the
Services. Meritage has relied upon this representation, without independent investigation, as a material inducement to enter into this
Agreement. The standard of care for all Services performed and Work Product furnished by Consultant or its Subconsultants shall be the
care and skill ordinarily used by experienced members of Consultant's profession practicing under similar circumstances at the same time
and in the same region. In recognition that Consultant is being retained for its represented expertise with respect to the Services, Meritage
and Consultant acknowledge and agree that,notwithstanding anything in this Agreement to the contrary,in no event shall any Indemnitee(as
defined in Section 8.4 below) be liable or bear any responsibility for, and Consultant shall be solely liable and responsible for, and shall
indemnify,protect,defend and hold harmless each Indemnitee for,from and against(subject,however,to the specific limitations set forth on
Exhibit B,if any)any fault alleged against an Indemnitee by reason of or arising out of any of the following: (i)Meritage's decision to retain
Consultant to perform the Services and/or any decision of Consultant to retain any Subconsultants; (ii) any failure of an Indemnitee to
supervise, manage and/or direct Consultant or any other person for whom Consultant may be liable; (iii) any failure of an Indemnitee to
identify,at any time,defects,errors or omissions in the Services,Consultant's Work Product and/or the Work Product of any other person for
whom Consultant may be liable; and(iv) any Claims (as defined in Section 8.4 below)by any employee or past employee of Consultant or
any Subconsultant arising out of or related to unpaid wages and benefits and/or other employment-related issues. Consultant's duty to defend
the Indemnitees is entirely separate from, independent of and freestanding from Consultant's duty to indemnify Indemnitees for Claims;
items(i)through(iv)above.For the avoidance of doubt,Consultant shall have no duty to defend the Indemnitees with regard to Professional
Liability Claims(as defined in Section 8.4).
3.2 Quality. Consultant shall be responsible for the technical accuracy of the Work Product and the Services. Neither
Meritage nor any affiliate of Meritage shall be responsible for discovering deficiencies in the Work Product or Services. Consultant shall
correct any deficiencies in the Work Product or the Services without additional compensation, except to the extent that such corrections are
directly attributable to deficiencies in information provided by Meritage.
3.3 Performance Schedule and Extensions of Time. At all times during the term of this Agreement,Consultant shall employ
sufficient personnel to complete all Services in accordance with the Performance Schedule (if any) set forth or referenced in Schedule 1 to
any applicable Authorization Agreement and/or set forth or referenced in any Additional Services Order. If applicable, the Performance
Schedule will include allowances for periods of time needed for Meritage's review and approval of submissions and for required review and
approval of any necessary governmental authorities. Consultant agrees to perform all Services in conformance with any applicable
Performance Schedule. Notwithstanding the foregoing, but subject to Meritage's reasonable written approval, the time frames set forth in
any Performance Schedule shall be extended for any unanticipated delay beyond the reasonable control of Consultant provided: (a)the delay
impacts the Performance Schedule; and (b) Consultant notifies Meritage in writing within seven (7) days of the commencement of such
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delay;otherwise such claim for delay shall be deemed to have been waived by Consultant. An extension of time is Consultant's sole remedy
for delays. In no event shall Consultant be entitled to payment for overtime work requiring higher than normal regular rates.
4. Compliance with Laws,Ordinances,Regulations and Instructions.
4.1 Compliance. Consultant shall perform all Services in full accordance with all applicable federal, state and local laws,
ordinances and/or regulations in effect on the date each applicable Authorization Agreement is executed (collectively "Laws"). If,
subsequent to the date any Authorization Agreement is executed, there occurs any change to any Laws that (i) was not known to or
reasonably foreseeable by Consultant and (ii) consequently requires Consultant to perform Additional Services, then Consultant will be
reasonably compensated for the performance of such Additional Services in accordance with an Additional Services Order if and to the extent
executed between Meritage and Consultant. Consultant also shall review and comply with any and all manufacturer instructions and
standards applicable to any manufactured products that may be used, designated for use or included in improvements related to Consultant's
Services or the Work Product.
4.2 Notice and Opportunity to Repair Actions. Consultant agrees to fully cooperate with Meritage in connection with any
matters relating to any claim or action brought by a purchaser of improvements constructed by Meritage to which the"notice and opportunity
to repair" statute(s)identified on Exhibit B (if any)applies(a"Notice and Opportunity to Repair Action"),including,without limitation,
(i)providing to Meritage prior to completion of the Services all documents prepared as part of the Services, and(ii) at Meritage's request,
participating in any Notice and Opportunity to Repair Action and/or in any mediation, arbitration or other dispute resolution proceeding
involving improvements constructed by Meritage to which any portion of the Services relates.
4.3 License/Permit. Consultant represents and covenants that Consultant, Subconsultants and any personnel performing
Services are properly licensed and in good standing and will remain properly licensed and in good standing under all applicable Laws at all
times during the performance of Services.
5. Default of Consultant. Each of the following shall constitute a default by Consultant: (i)the failure of Consultant to fully,properly or
timely perform the Services in accordance with this Agreement or otherwise comply with any covenant, condition or provision in this
Agreement; (ii)the making by Consultant of any general assignment or general arrangement for the benefit of creditors;(iii)the filing by or
against Consultant of a proceeding under state or federal insolvency and/or bankruptcy laws (unless in the case of a petition filed against
Consultant,the same is dismissed within forty-five(45)days);and/or(iv)Consultant ceases doing business. In the event of a default under
items(ii),(iii)or(iv)above,or if Consultant fails to commence the cure of a default under item(i)above within ten(10)Business Days after
receipt of written notice thereof by Meritage,as applicable,and to diligently pursue such cure to completion in a timely manner(but not later
than thirty(30)Business Days after receipt of such notice),Meritage,as applicable,in addition to all other rights and remedies it may have at
law or in equity,may pursue one or more of the following remedies, all of which shall be cumulative: (a)terminate this Agreement and/or
any or all Authorization Agreement(s); (b)commence an action for damages arising out of such breach; (c)withhold amounts otherwise due
Consultant by Meritage (or an affiliate of Meritage) and/or offset its damages against the payment of any monies due Consultant until the
default and breach by Consultant have been cured; and/or (d)pay, withhold and/or offset against monies due Consultant all sums due any
persons,firms or other entities as a result of such default or breach. In the event there are not sufficient monies then due Consultant against
which to offset such sums,then interest shall accrue on the deficiency at the rate of eighteen percent(18%)per annum,or the maximum rate
allowable by law, whichever is less, until such deficiency is paid in full. `Business Day" means a day that is not a Saturday, a Sunday, a
legal holiday observed in the State of Arizona,or a legal holiday observed in the state where the Project is located.
6. Termination of Agreement. Meritage shall have the right, in its sole discretion, and with or without cause,to terminate this Agreement
and/or any or all Authorization Agreement(s),and Meritage shall have the right,in its sole discretion,and with or without cause,to terminate
the applicable Authorization Agreement(s), at any time, which termination shall be effective immediately upon delivery by Meritage or
Meritage,as applicable,of a written termination notice or on such other later date as may be specified in any such notice of termination(the
"Effective Termination Date"). Consultant shall have the right to terminate this Agreement and/or any or all Authorization Agreement(s)in
the event of a material breach of Meritage's obligations under this Agreement or the applicable Authorization Agreement if Consultant delivers to
Meritage written notice of the material breach and Meritage fails to commence the cure of such material breach within ten(10)Business Days
after receipt of written notice thereof by Meritage and diligently pursue such cure to completion in a timely manner(but not later than thirty
(30)Business Days after receipt of such notice). If this Agreement or any Authorization Agreement is terminated for any reason, Consultant
shall deliver to Meritage all Work Product within five(5)Business Days following the Effective Termination Date.
6.1 Termination for Convenience. Upon termination of this Agreement and/or any or all Authorization Agreement(s) by
Meritage for reasons other than default or breach by Consultant, Meritage shall pay Consultant for all Services satisfactorily performed by
Consultant under the applicable terminated Authorization Agreement(s) through the Effective Termination Date. Such payment shall be
calculated as: (i)compensation at agreed rates, but pro-rated for only such portions of the Services as were actually and satisfactorily
performed and completed through the Effective Termination Date; plus (ii)the amount of all proper and approved but unreimbursed
Reimbursable Expenses actually incurred by Consultant through the Effective Termination Date; less(iii)any amounts withheld or offset as
authorized pursuant to this Agreement. In no event shall Meritage or any affiliate of Meritage be responsible for Consultant's lost profits or
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consequential or other damages. Unless otherwise instructed in writing by Meritage,Consultant shall continue all Services in progress until
the Effective Termination Date.
6.2 Termination for Cause. If Meritage elects to terminate this Agreement for cause, then upon Meritage's providing
Consultant with notice of such termination, Consultant shall immediately cease all Services in progress and shall not undertake to perform
any further Services under this Agreement and/or the applicable Authorization Agreement(s), as applicable. If the cost of completing such
Services(including but not limited to managerial and administrative expenses incurred as a result of such default)shall exceed the amount of
unpaid monies that would have been due and payable to Consultant by Meritage had Consultant fully and timely performed the remainder of
its Services under any applicable Authorization Agreement, such excess shall be immediately due and payable from Consultant to Meritage
upon Consultant's receipt of written notification thereof, and interest shall accrue on such excess at the rate of eighteen percent(18%)per
annum, or the maximum rate allowable by law, whichever is less, until such excess is paid in full. Meritage's exercise of the option to
substitute another person or entity to furnish the Services shall not relieve Consultant of any liability for Services performed prior to
termination or any other obligations hereunder that survive termination. Upon the occurrence of any event of default, Consultant shall have
no right to receive any amounts for Services and/or Reimbursable Expenses until all Services under the applicable terminated Authorization
Agreement(s)have been fully and properly completed and all damages to Meritage and its affiliates, if any,have been ascertained and fully
paid. Thereafter, any amounts due and payable to Consultant under this Agreement shall be calculated as provided in Section 6.1 above and
paid in accordance with Section 2 above.
6.3 Suspension of Services. Upon oral or written notification from Meritage to Consultant to suspend any portion of the
Services, Consultant shall immediately suspend work on any designated portion of the Services and deliver to Meritage all Work Product.
Consultant shall be compensated for all Services performed to Meritage's satisfaction prior to such suspension. Upon notification by
Meritage that the suspension order has been lifted or rescinded, Consultant shall immediately continue performing the Services. If the
Services are suspended for a period of more than ninety(90)consecutive days,then Consultant may be excused from further performance of
the Services under the applicable Authorization Agreement(s)by giving written notice to Meritage prior to Meritage issuing a written order to
resume the Services(provided that,to the extent applicable, Consultant shall cooperate with and provide information to the person or entity
thereafter selected to replace Consultant with respect to the Services if and when Meritage elects to resume the Services).
7. Insurance. Consultant represents and covenants to Meritage that Consultant is,as of the date of this Agreement,in compliance with,and
shall at all times hereafter fully comply with the insurance requirements set forth on Exhibit C (subject,however,to the specific limitations
set forth on Exhibit B,if any). Meritage's failure to enforce any of the insurance provisions set forth on Exhibit C shall not act as a waiver of
or estoppel to assert Consultant's obligation to procure and maintain the required insurance coverages in accordance with the insurance
requirements set forth on Exhibit C.
8. INDEMNIFICATION.
8.1 CONSULTANT INDEMNITY - PROFESSIONAL LIABILITY CLAIMS. IN
ADDITION TO ANY OTHER OBLIGATION IN THIS AGREEMENT, TO THE FULLEST EXTENT
PERMITTED BY LAW AND SUBJECT TO THE SPECIFIC LIMITATIONS SET FORTH ON
EXHIBIT B (IF ANY), CONSULTANT SHALL INDEMNIFY AND HOLD HARMLESS EACH
INDEMNITEE (AS DEFINED IN SECTION 8.4 BELOW) FOR, FROM AND AGAINST ANY AND
ALL PROFESSIONAL LIABILITY CLAIMS (AS DEFINED IN SECTION 8.4 BELOW),
REGARDLESS OF WHETHER OR NOT THE PROFESSIONAL LIABILITY CLAIM IS CAUSED IN
PART BY AN INDEMNITEE; PROVIDED, HOWEVER, THAT CONSULTANT SHALL NOT BE
REQUIRED TO INDEMNIFY AN INDEMNITEE FOR, AND SOLELY TO THE EXTENT OF, A
NON-INDEMNIFIED MATTER (AS DEFINED IN SECTION 8.4 BELOW). THE PARTIES
ACKNOWLEDGE AND AGREE THAT THE EXISTENCE OF A NON-INDEMNIFIED MATTER
SHALL IN NO EVENT RELIEVE CONSULTANT OF ITS INDEMNITY AND OTHER
OBLIGATIONS HEREUNDER FOR, OR WITH RESPECT TO, ANY OTHER PORTION OF A
PROFESSIONAL LIABILITY CLAIM THAT IS NOT A NON-INDEMNIFIED MATTER.
I ACKNOWLEDGE I HAVE READ, UNDERSTOOD AND AGREE TO THE
FOREGOING DEFENSE AND INDEMNFICATION OBLIGATIONS. I FURTHER
ACKNOWLEDGE AND AGREE THAT I HAVE HAD THE OPPORTUNITY TO CONSULT
COUNSEL ON THIS SPECIFIC PROVISION.
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DS
INITIALS: DATE: 7/7/2021
8.2 Consultant Indemnity and Duty to Defend- Other Claims. In addition to any other obligation
in this Agreement, to the fullest extent permitted by law and subject to the specific limitations set forth on
Exhibit B (if any), Consultant shall indemnify, defend and hold harmless each Indemnitee for, from and against
any and all Claims (as defined in Section 8.44 below), regardless of whether or not the Claim is caused in part
by an Indemnitee; provided, however, that Consultant shall not be required to indemnify an Indemnitee for, and
solely to the extent of, a Non-Indemnified Matter. The parties acknowledge and agree that the existence of a
Non-Indemnified Matter shall in no event relieve Consultant of its indemnity, defense and other obligations
hereunder for, or with respect to, any other portion of a Claim that is not a Non-Indemnified Matter.
Consultant's duty to defend the Indemnitees is entirely separate from, independent of and freestanding from
Consultant's duty to indemnify Indemnitees for Claims. Notwithstanding Consultant's duty to defend as set
forth in this Section 8.12, Consultant acknowledges and agrees that Meritage is entitled to defend any and all
Claims with counsel and experts of Meritage's choice.
8.3 Indemnity and Defense Not Limited. Nothing in this Agreement shall be construed to negate,
abridge or otherwise reduce: (a) any other obligation or liability of Consultant for breaching any of its
agreements, covenants, representations or obligations under this Agreement and/or any Authorization
Agreement; or (b) any other right or obligation of indemnity that otherwise exists in favor of Meritage or any
Indemnitees. Further, payments by Consultant to any Indemnitee(s) in connection with this Section 8 shall be
in addition to any and all other legal remedies available to the Indemnitees and shall not be considered the
exclusive remedy of any of the Indemnitees. Consultant's obligations under this Section 8 shall apply without
regard to the particular allegations or theories of recovery asserted or omitted by any third party, including,
without limitation, Claims based on duties, obligations or liabilities imposed on the Indemnitees by law, and
Claims based on theories of peculiar risks or non-delegable duty arising from conditions of the workplace, and
shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits
payable under any workers' compensation acts, disability benefits acts or other employee benefits acts. Payment
by any Indemnitee is not a condition precedent to enforcing such Indemnitee's rights to indemnification and
defense under this Agreement.
Indemnification and Defense Limitations (Sections 3.1 and 8.4): If an arbitrator, court or
tribunal of competent jurisdiction refuses to enforce Consultant's obligations under Sections 3.1 and 8.4 of the
Agreement because the scope of such obligations are deemed unreasonable or to be in violation of applicable
law or public policy, it is expressly understood and agreed that such obligations will not be void for the purpose
of such proceedings and the scope of Consultant's obligations will be reduced to the extent necessary to permit
the enforcement of such obligations.
8.4 Definitions. For purposes of this Section 8, the following capitalized terms shall have the
following meanings:
(a) "Professional Liability Claim" means (i) any action, administrative action, legal
proceeding, claim, demand, obligation and cause of action of every kind and character made or asserted against
an Indemnitee, whether based on tort, contract or equitable principles, and whether asserted by one or more
owners of any Unit, any applicable associations or any other person or entity; and (ii) any damage, loss,
liability, lien, judgment, cost and expense (including, without limitation, attorney fees and costs, investigative
and expert witness fees and costs and other litigation, mediation, arbitration or judicial reference expenses)
suffered or incurred by an Indemnitee; which are in any way occurring, incident to, or arising from or in
connection with negligent acts, errors or omissions in the performance or nonperformance of the Services.
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(b) "Claim" means (i) any action, administrative action, legal proceeding, claim, demand,
obligation and cause of action of every kind and character made or asserted against an Indemnitee, whether
based on tort, contract or equitable principles, and whether asserted by one or more owners of any Unit, any
applicable associations or any other person or entity; and (ii) any damage, loss, liability, lien, judgment, cost
and expense (including, without limitation, attorney fees and costs, investigative and expert witness fees and
costs and other litigation, mediation, arbitration or judicial reference expenses) suffered or incurred by an
Indemnitee; which are in any way occurring, incident to, or arising from or in connection with (A) any act or
omission (including, without limitation, any actual or alleged breach of any term or provision of this Agreement
or any Authorization Agreement) by Consultant or any Subconsultant, and any of their respective employees,
agents, officer, directors, shareholders, representatives, affiliates, successors and assigns that is not a
Professional Liability Claim, including, without limitation, those acts or omissions covered by general liability,
worker's compensation, employer's liability or auto liability insurance; (B) the willful misconduct of, or the
failure to comply with applicable Laws by Consultant, any Subconsultant, and any of their employees, agents,
officers, directors, shareholders, representatives, affiliates, successors and assigns; and/or (C) any actual or
alleged infringement of the intellectual property rights of any person or entity in connection with the Services
and/or the Work Product.
(c) "Indemnitee" means each of the following: Meritage and any of their respective
subsidiaries, affiliates, members, managers, shareholders, owners, officers, directors, partners, employees,
agents, successors and assigns, and lenders and land bankers, if any.
(d) "Non-Indemnified Matter" means any portion (and solely to the extent of such portion)
of any Claim against an Indemnitee to the extent the Claim (or portion thereof, if applicable) is determined by
entry of a non-appealable final judgment after trial or award after arbitration to have been caused by the
negligent act or willful misconduct of the Indemnitee sought to be indemnified, or the negligent act or willful
misconduct of any third party who is not a Subconsultant or a parent, subsidiary, affiliate, member, manager,
shareholder, owner, officer, director, partner, employee, contractor, agent, Subconsultant, successor or assign of
Consultant or any Subconsultant.
For purposes of this Section 8, attorney and other professional and witness fees and costs shall be deemed
reasonable if such fees and costs are incurred at the rate customarily charged by the professional or witness
rendering the services.
9. Ownership and Use of Work Product. All surveys, field data, test data, reports, plans, studies, tapes, disks and other electronic
recordings,drawings, sketches, estimates,data sheets,maps,work sheets,prints,models, designs, specifications,photographs,presentations,
renderings,CAD files and media(in all formats)prepared by Consultant and its Subconsultants in performance of the Services(collectively,
"Work Product") are commissioned at Meritage's request and shall be considered a"work-made-for-hire"under the copyright laws of the
United States. Accordingly, (a) Consultant hereby irrevocably assigns and transfers to Meritage from the moment of creation the exclusive
right,title and interest in and to the Work Product,whether completed or in draft form,whether patentable or copyrighted,made or conceived
or reduced to practice, and to all modifications and derivative works thereof(including,without limitation, any portion of incomplete Work
Product), and to all United States and foreign trademarks, service marks, copyrights, patents, trade dress, trade secrets and all other
intellectual property rights (collectively "Intellectual Property Rights") related thereto; (b) Consultant, on behalf of itself and any of its
Subconsultants and employees who perform any work hereunder,hereby,to the fullest extent permitted by law,irrevocably waives any right
to assert any moral rights and rights under the Visual Artist Rights Act against Meritage or any third party with respect to the Work Product,
any modifications or derivatives thereof,and any Intellectual Property Rights related thereto;and(c)Meritage shall be the sole owner of and
have exclusive right,title and interest in and to the Work Product(including,without limitation,any portion of incomplete Work Product),to
all modifications and derivative works thereof, and to all Intellectual Property Rights related thereto, even if Meritage elects to allow
Consultant to retain possession of copies of the Work Product. If any Work Product does not qualify as a"work made for hire," Consultant
hereby assigns and agrees to assign to Meritage all copyrights, copyright registrations and copyrightable subject matter, including the right to
secure copyrights worldwide,reproduction rights,and including the right to recover for past infringement of such copyrights. Consultant agrees to
and shall execute promptly, upon presentation to Consultant by Meritage, any and all applications, assignments, waivers and other
instruments that Meritage deems necessary or appropriate to vest in Meritage or to register in any state or country all right,title and interest in
the Intellectual Property Rights, including the waiver of all rights arising under the Visual Artist Rights Act and moral rights. Upon
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Meritage's request, Consultant shall deliver to Meritage the original Work Product and any copies thereof in any forms requested by
Meritage. No license or other interest of any kind in the Work Product is granted by Meritage directly or indirectly to Consultant,except for
Consultant's use of the same to perform its Services under this Agreement. If Meritage modifies the Work Product, or reuses the Work
Product on projects other than the applicable Project, either without retaining Consultant or without Consultant's prior written consent,
Meritage shall remove Consultant's name and professional seal from the title block of any of the modified Work product and release and
indemnify Consultant from all claims and causes of action to the extent arising from such modification or unintended reuse. Nothing herein
shall be deemed to release Consultant from liability for that portion of the Work Product not modified by Meritage and used on the applicable
Project;accordingly,in all events,Consultant will remain fully responsible and liable in accordance with the terms of this Agreement for any
loss or damage resulting from the unmodified portions of the Work Product used on the applicable Project. The rights and obligations set
forth in this Section 9 shall survive termination of this Agreement.
10. Assignment.
10.1 No Assignment by Consultant. Consultant shall not sell, assign, grant or transfer, voluntarily, involuntarily, by
bankruptcy, other operation of law or otherwise, Consultant's rights, interests or obligations in or under this Agreement without the prior
written consent of Meritage, which consent may be withheld by Meritage in its sole discretion. Any purported sale, assignment, grant or
transfer in violation of this Section 10.1 shall be null and void.
10.2 Land Bankers, Lenders, Successors, Assignees and Affiliates. Consultant acknowledges that Meritage may transfer or
assign in whole or part the Work Product or portion(s)thereof(including the transfer of any or all related contracts and documents)to one or
more other developers, lenders, land banking entities,other finance sources,joint ventures,or any other successors,assignees or affiliates of
Meritage, and any such successor or assignee is entitled to rely on, and enforce against Consultant, any representations, warranties,
covenants, indemnities and other obligations of Consultant under this Agreement, including,without limitation,the provisions of Section 9.
Consultant shall provide free of charge such estoppel certificates, reliance letters, consents to assignment and novations as Meritage or any
such successor or assignee may require in order to reflect the assignment of Meritage's interest, in whole or in part, in this Agreement, any
Authorization Agreement(s)and the Work Product. If a successor or assignee owner of any of the Work Product assumes the obligations of
Meritage with respect to the Work Product pursuant to such form of assignment document, Consultant shall execute such documentation as
may be required to release Meritage and its affiliates from any continuing obligation or liability with respect to the Work Product and this
Agreement(including the applicable Authorization Agreement(s))or, if Meritage requests, Consultant shall enter into a new agreement in a
substantially identical form with such successor or assignee, whereupon the obligations of Consultant and Meritage and its affiliates under
this Agreement(including the applicable Authorization Agreement(s))shall be canceled and of no further force or effect.
11. Dispute Resolution:Arbitration.
11.1 Binding Arbitration. All disputes arising out of or relating to this Agreement shall be subject to binding arbitration
conducted by the American Arbitration Association, or any successor thereto, in accordance with its Home Construction Arbitration Rules
(the "Arbitration Rules"), as supplemented by this Section 11; provided, however, that in order to minimize the duplication of dispute
resolution proceedings, Consultant agrees to fully cooperate, participate in good faith in and be bound by whatever dispute resolution
provisions and proceedings are determined to bind Meritage or any affiliate of Meritage with respect to any dispute, claim or controversy
between Meritage or any affiliate of Meritage and Consultant that arises out of or relates to(a)any claim or action brought by a purchaser of
improvements constructed by Meritage or an affiliate of Meritage to which any portion of the Services relates and to which a"notice and
opportunity to repair" statute (if any) applies, including, without limitation the statutes(s)identified on Exhibit B and/or(b) any conditions,
covenants and restrictions recorded against any Meritage project to which any portion of the Services relates; any sales agreement between
Meritage or any affiliate of Meritage and purchasers (including, without limitation, subsequent purchasers) of the units/residences in such
project(s), any unit(s)/residence(s), common area or association property at such project(s); and/or any combination thereof. A copy of the
dispute resolution provisions contained in the sales agreement typically used by Meritage or its affiliates as of the date of this Agreement for
the sale of a unit/residence is set forth in Exhibit D. Notwithstanding the foregoing, (i)none of the provisions of this Section 11 shall in any
way limit the right of any party to exercise any other remedies under this Agreement, to exercise any lien rights or to obtain provisional,
ancillary or equitable remedies (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) from a
court of competent jurisdiction before,after or during the pendency of any arbitration or other proceeding pursuant to this Section 11;(ii)the
exercise of any such remedy shall not waive the right of any party to resort to arbitration; and(iii)the parties each acknowledge and agree
that to the extent any legal proceeding other than an arbitration proceeding is permitted by this Section I I' the state court situated in the
county in which the applicable Project is located, and its associated federal and appellate courts, shall have exclusive jurisdiction over such
legal proceeding.
11.2 Supplemental Arbitration Rules. Unless Meritage is bound by other dispute resolution provisions and proceedings in
accordance with Section 11.1 above,the following supplemental rules shall apply to all arbitration proceedings and shall govern in the event
of a conflict between the rules set forth below and the Arbitration Rules.
a. Agreement to Arbitrate. Meritage and Consultant shall resolve disputes exclusively through binding arbitration
in the county in which the Project is located unless an alternative location is agreed upon by both Meritage and Consultant, and each party
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hereto hereby waives any defense of inconvenient forum or other objection to exclusive venue in the county in which the Project is located.
This arbitration provision shall apply to disputes of any kind or nature regardless of the nature of the relief sought.
b. WAIVER OF TRIAL BY JUDGE OR JURY. BY AGREEING TO RESOLVE ALL DISPUTES
THROUGH BINDING ARBITRATION, MERITAGE AND CONSULTANT EACH GIVE UP THE RIGHT TO HAVE THEIR
RESPECTIVE CLAIMS AND DEFENSES DECIDED BY A JUDGE OR A JURY. ALL CLAIMS AND DEFENSES SHALL
INSTEAD BE DECIDED BY THE ARBITRATOR.
C. Participation by Other Parties. Meritage and Consultant may have all necessary or appropriate persons and
entities included as parties to the arbitration. Consultant agrees to participate in and be bound by any arbitration proceeding between
Meritage and any third party relating to the Services. Notwithstanding any provision in this Section 11 to the contrary, Meritage shall be
entitled to terminate this Agreement and/or any or all Authorization Agreement(s) in whole or in part, if any dispute arises between
Consultant and Meritage, whereupon Meritage shall also be entitled to exercise any and all remedies, deductions and offsets authorized
pursuant to this Agreement. Notwithstanding any other provision of this Section 11, if Consultant's Subconsultants or material suppliers of
Consultant, or any other necessary third party, cannot be forced to mediate or arbitrate,Meritage may elect to unilaterally waive mediation
and arbitration.
d. Rules of Law. The arbitrator must follow the substantive law of the state where the Project is located,including
statutes of limitations, but strict conformity with the rules of evidence is not required, except that the arbitrator shall apply applicable law
relating to privilege and work product. The arbitrator shall be authorized to provide all remedies provided for under this Agreement and all
other recognized remedies available at law or in equity for any cause of action.
e. Attorneys'Fees and Costs. The prevailing party in any such arbitration shall be entitled to recover all of its costs
and expenses incurred in such proceeding from the other party,including without limitation the cost of reasonable attorneys' fees and expert
witness costs. In addition to the foregoing award of attorneys' fees to the prevailing party, the prevailing party shall be entitled to its
attorneys' fees incurred in any court action or proceeding to collect or enforce the arbitrator's award and/or to enforce the provisions of this
Section 11.
11.3 Final and Binding Award. The decision of the arbitrator shall be final and binding, and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction thereof. A petition to confirm,vacate,modify or correct an award
may be filed in any court of competent jurisdiction in the county in which the Project is located.
11.4 Severability. In addition to and without limiting the effect of any general severability provisions of this Agreement,if the
arbitrator or any court determines that any provision of this Section 11 is unenforceable for any reason,that provision shall be severed, and
proceedings agreed to in this Section 11 shall be conducted under the remaining enforceable terms of this Section 11.
11.5 Consultant's Duty to Continue and Complete Services. During all disputes,actions,claims or other matters arising out of
or relating to this Agreement or the breach thereof, and unless and until Meritage or Consultant terminates this Agreement pursuant to and in
accordance with Section 6 above, Consultant shall carry on its duties, as described in this Agreement, unless Consultant terminates this
Agreement pursuant to Section 6 above.
12. Miscellaneous.
12.1 Exhibits/Schedules. Exhibits and schedules attached to and referred to in this Agreement are incorporated in this
Agreement by reference and are part of this Agreement.
12.2 Time of Essence. Time is of the essence with respect to Consultant's performance under this Agreement.
12.3 Choice of Law. Except where otherwise explicitly provided,this Agreement shall be construed and interpreted under and
shall be governed by and enforced according to the laws of the state in which the Project is located,without regard to choice of law rules.
12.4 Confidentiality. Consultant agrees to keep confidential any and all information concerning the plans, operations or
activities of Meritage,its affiliates,divisions and subsidiaries if such information is divulged to Consultant by any source in the course of the
performance of Consultant's Services under this Agreement.
12.5 Entire Agreement; Previous Services. This Agreement, any Authorization Agreement(s) and the exhibits/schedules
thereto contain the entire agreement between the parties with respect to its subject matter and supersede all other agreements or
understandings between the parties, including without limitation any previous master professional services agreement. Notwithstanding the
fact that this Agreement is executed as of the Effective Date, the parties recognize that a portion of the Services required under this
Agreement (and any Authorization Agreement(s) executed in connection with this Agreement) may have been performed prior to the
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Effective Date. Irrespective of that fact, all work and services performed by or on behalf of Consultant shall be governed by the terms and
conditions of this Agreement and shall be deemed to be a part of Consultant's Basic Services under this Agreement. Consultant shall not be
entitled to any compensation for such prior work or services except as expressly provided in this Agreement. Without limiting the foregoing,
all of Consultant's liabilities and obligations to Meritage under this Agreement shall apply to all work and services provided by Consultant
prior to the execution of this Agreement,notwithstanding the fact that such work or services may have been performed prior to the Effective
Date pursuant to prior negotiations, representations, agreements,understandings or otherwise, unless such work and services were (i)not a
portion of the Services required under this Agreement (and any Authorization Agreement(s) executed in connection with this Agreement),
and(ii)performed and completed pursuant to a written agreement duly executed by Meritage and Consultant prior to the Effective Date, in
which case the terms and conditions of such written agreement shall govern solely to the extent such work and services were authorized,
performed and completed thereunder.
12.6 No Waiver. No waiver of a breach of any of the terms, covenants or conditions of this Agreement will be construed or
held to be a waiver of any succeeding or preceding breach of the same or any other term,covenant or condition herein contained. The failure
of either party to insist upon strict performance of any of the provisions of this Agreement shall in no way constitute a waiver of its rights,at
law or in equity, or a waiver of any other provisions of this Agreement or subsequent default by the other party in the performance of or
compliance with any of the terms and conditions set forth in this Agreement. The consent or approval by Meritage to or of any act by
Consultant requiring the consent or approval of Meritage does not waive or render unnecessary the consent or approval of Meritage to or of
any subsequent similar acts by Consultant.
12.7 Headings. Headings used in this Agreement are for general reference only and do not have special significance or
relevance in construing various aspects of this Agreement.
12.8 Invalidity. The invalidity,illegality or unenforc e ability of any provision of this Agreement shall not affect the validity or
enforceability of any other provision.
12.9 Survival. All representations; agreements to reimburse, defend, hold harmless or indemnify; dispute resolution
provisions;and covenants or agreements of Consultant that contemplate performance after completion of and/or payment for the Services that
are set forth in this Agreement shall survive any completion or termination of this Agreement. Without limiting the generality of the
foregoing or the survival of any other express provision to that effect, the terms and conditions contained in Sections 7, 8, 9 and 11 above
shall survive the termination of this Agreement.
12.10 Successors. Subject to the restrictions and limitations set forth in Section 10.1 above, this Agreement shall be binding
upon and shall inure to the benefit of the parties and their respective heirs, administrators, executors, permitted assigns and successors in
interest.
12.11 Construction. The parties to this Agreement agree that both have had the opportunity to review and negotiate the terms
of this Agreement and to obtain the assistance of counsel in reviewing and negotiating such terms prior to execution,and that this Agreement
shall be construed neither against nor in favor of either party but shall be construed in a neutral manner.
12.12 Beneficiaries. In addition to specific provisions above, Consultant's Services, obligations, representations, warranties
and indemnity promises are generally intended to protect and benefit not only Meritage,but also any applicable project owner,lender,finance
source or land banker, and all of their respective affiliates, subsidiaries, corporate parents, partners, joint venturers, officers, directors,
shareholders,employees,agents and representatives.
12.13 Modification. This Agreement may not be modified, changed or supplemented, nor may any obligations in this
Agreement be waived,except by a written document signed by the party to be charged or by such party's agent duly authorized in writing.
12.14 Authority to Bind. Each party, and each individual on behalf of each party signing this Agreement and/or any
Authorization Agreement,represents that it has the full legal power,authority and right to execute, deliver and perform its obligations under
this Agreement, and each party's performance under this Agreement and the transaction contemplated hereby have been duly authorized by
all requisite actions on the part of such party, and no remaining action is required to make this Agreement and/or any Authorization
Agreement binding.
12.15 Cumulative Remedies. All rights,options and remedies of Meritage contained in this Agreement are cumulative so that
no one of them is exclusive of the other. Meritage will have the right to pursue any one or all of its remedies or to seek damages or specific
performance in the event of any breach of this Agreement by Consultant,or to pursue any other remedy or relief that may be provided by law
or equity, whether stated in this Agreement, including without limitation Meritage's right of offset described in Section 12.16 below.
Meritage specifically retains and reserves,to the fullest extent permitted by law,all causes of actions,claims,and remedies,in contract and in
tort, at law or in equity, seeking recovery for property damage,personal injury, or economic loss arising from,without limitation,breach of
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contract, negligence, malpractice, fraud, or negligent misrepresentations in connection with or relating to the performance by Consultant of
the obligations and duties set forth in this Agreement or performed in connection with or as a result of this Agreement.
12.16 Cross-Default and Offset. Consultant and Meritage acknowledge and agree that Meritage's continued confidence in the
ability of Consultant to properly and expeditiously perform the Services is a substantial and material concern to Meritage. Consequently, if
Meritage(and/or any affiliate thereof)and Consultant(and/or any affiliate thereof)enter into or have entered into any other agreements and
Consultant defaults under this Agreement or under any other such agreement,Meritage may, at its election,treat that default as a default of
all agreements between Meritage(and/or any affiliate of Meritage)and Consultant(and/or any affiliate of Consultant)and may terminate any
or all such agreements for cause pursuant to Section 6.2 above. In the event of any such default by Consultant under this Agreement,
Meritage (and/or any affiliate of Meritage) may offset from amounts owing to Consultant (and/or any affiliate of Consultant) under this
Agreement and/or any other agreement between Meritage (and/or any affiliate of Meritage) and Consultant (and/or any affiliate of
Consultant)any losses,damages,costs and expenses incurred by Meritage(and/or any affiliate of Meritage)arising from such default.
12.17 Meritage Name. Consultant shall not use the name of Meritage,Meritage's logo or the logo of any division or project of
Meritage without the prior written approval of Meritage,which may be granted or withheld in Meritage's sole discretion.
12.18 Equal Opportunity; Code of Ethics. Consultant shall adopt and maintain (a) employment practices that ensure that it
does not discriminate in employment in any way prohibited by applicable Law and(b)business practices consistent with the Meritage Homes
Corporation Code of Ethics,a copy of which is available at www.meritagehomes.com,which Consultant acknowledges having reviewed.
13. Notices. All notices and other communications made pursuant hereto shall be in writing and shall be deemed properly delivered,
received,given and served: (i)on the same day as personally delivered; (ii)when delivered if deposited in the United States mail,certified or
registered, postage prepaid, return receipt requested; (iii)when delivered by Federal Express or other comparable courier service, charges
prepaid; or (iv)on the same day as actually sent by facsimile transmission to the parties at their respective addresses or facsimile numbers
listed on page 1 of this Agreement if sent before 5:00 p.m.Arizona time,and otherwise on the next Business Day. Either party may change
its address for the purposes of this Section 0 by giving five (5)days prior written notice of such change to the other party in the manner
provided in this Section 0. Any delivery failure caused by a party's failure to give notice of change of address or refusal to accept delivery
shall be deemed receipt of notice. No notice to Meritage of any breach, default, dispute or Claim under this Agreement shall be
effective unless and until a copy thereof has also been delivered to Meritage Homes Corporation and addressed as follows:
"Meritage Homes Corporation,8800 East Raintree Drive, Suite 300, Scottsdale,Arizona 85260,Attention: General Counsel. THIS
NOTICE MAY REQUIRE IMMEDIATE ATTENTION."
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the Effective Date.
"Meritage" "Consultant"
MERITAGE HOMES OF TEXAS,LLC,an Arizona GOODWIN AND MARSHALL,INC.,a(n) Texas
limited liability company(Dallas/Fort Worth Division) corporation
DocuS➢gned by: DocuSigned by:
FVI a o ��04 f
By. By. F-Z9QQA60Q96F
Edward Eckart
Name:DAVID AUGHINBAUGH Name:
Its:DIVISION VICE PRESIDENT Its: officer
Doccusigned by:
PIJ �SVu � (Py`t& )A,
By:
Name:AUSTIN WOFFINDEN
Its:DIVISION PRESIDENT
Master Professional Services Agreement(TX-DFW 03.1.17) 11
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EXHIBIT A
FORM OF AUTHORIZATION AGREEMENT
(DO NOT COMPLETE-EXHIBIT ONLY)
Project Name:
Contract No.:
Vendor Name: /Vendor No.:
Cost Code: /Job No.:
AUTHORIZATION AGREEMENT
THIS AUTHORIZATION AGREEMENT (this"Authorization Agreement")dated ,20 is made and entered into as of
the "Effective Date", by and between"Meritage" and"Consultant" (each as defined below),in connection with, and upon and subject to
the terms and conditions of, that certain Master Professional Services Agreement between Meritage and Consultant dated 120
(the"Master Agreement").
NOW,THEREFORE,the parties do hereby mutually agree as follows:
1. Defined Terms. Initially capitalized terms used and not otherwise defined in this Authorization Agreement shall have the
meanings given to them in the Master Agreement, which Master Agreement is fully incorporated in this Authorization Agreement by this
reference.
2. Master Agreement. Meritage and Consultant acknowledge and agree that this Authorization Agreement is entered into in
connection with,constitutes a part of,and is governed by the Master Agreement.
3. Services. The Basic Services to be performed pursuant to this Authorization Agreement are identified on Schedule 1 to
this Authorization Agreement,together with all those services that are reasonably inferable from or incidental to such services.
4. Performance Schedule. The Performance Schedule (if any) applicable to this Authorization Agreement is set forth on
Schedule 1 to this Authorization Agreement.
5. Compensation. Consultant's compensation with respect to this Authorization Agreement is set forth on Schedule 2 to this
Authorization Agreement.
6. Reimbursable Expenses. Reimbursable Expenses (if any)with respect to this Authorization Agreement are identified in
Section I of Schedule 2 to this Authorization Agreement.
7. Additional Services. Orders for Additional Services related to this Authorization Agreement(if any) shall be on a form
substantially similar to the Additional Services Order form attached as Schedule 3 to this Authorization Agreement that shall be completed
and executed by Meritage and Consultant.
8. Schedules. Schedules referred to and attached to this Authorization Agreement are incorporated herein by reference. In
the event that all or any portion of Consultant's proposal or form agreement is attached to this Authorization Agreement or to Schedules 1.2
and/or 3 hereto,the parties acknowledge and agree that such item is attached thereto solely to set forth the scope of work,compensation to be
paid and/or expenses to be reimbursed to Consultant, and/or performance schedule, and no other terms, provisions or conditions of such
attachment shall have any force or effect whatsoever.
9. Effective Date: ,20
IN WITNESS WHEREOF,the parties hereto have executed this Authorization Agreement as of the date first written above.
"Meritage" "Consultant"
MERITAGE HOMES a(n) a(n)
By: (EXHIBIT ONLY) By: (EXHIBIT ONLY)
Name: (EXHIBIT ONLY) Name: (EXHIBIT ONLY)
Its: (EXHIBIT ONLY) Its: (EXHIBIT ONLY)
By: (EXHIBIT ONLY)
Name: (EXHIBIT ONLY)
Its: (EXHIBIT ONLY)
os os
Master Professional Services Agreement(rev 02.26.16) EX.A-1 Initial Initial
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SCHEDULE 1 TO AUTHORIZATION AGREEMENT
THE SERVICES
(PO NOT COMPLETE-EXHIBIT ONLY)
I. BASIC SERVICES:
Consultant shall:
IL PERFORMANCE SCHEDULE(if any):
III. COMPLETION DATE:
oS oS
Master Professional Services Agreement(rev 02.26.16) EX.A-2 Initial Initial
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SCHEDULE 2 TO AUTHORIZATION AGREEMENT
COMPENSATION
(PO NOT COMPLETE-EXHIBIT ONLY)
Meritage shall compensate Consultant for Consultant's performance of the Services described on Schedule 1 as hereafter set forth.
I. COMPENSATION:
Compensation will be as follows:
Reimbursable Expenses(all at cost,without mark-up or administrative charge):
IL MECHANICS OF PAYMENTS:
A. Payment Schedule. Payments to Consultant shall be made, as set forth herein, upon completion of the Services by
Consultant and acceptance of the Services by Meritage (or such portion thereof as may be required for payment as set forth in Section I of
this Schedule 2),and upon delivery to Meritage of Consultant's written application for payment for the Services performed,accompanied by
appropriate back-up and other documents required by Meritage in the Master Agreement or otherwise (collectively, "Applications for
Payment"). All Applications for Payment are subject to Meritage's review and approval. If Meritage receives a complete Application for
Payment by the fifth (5t') day of any calendar month, Meritage shall pay Consultant the amount approved by Meritage no later than the
twenty-fifth(25')day of the calendar month in which the Application for Payment is received,less any applicable retention,withholding and
offsets deducted by Meritage. Any Application for Payment received by Meritage after the fifth (5t') day of any calendar month shall be
deemed to have been submitted in the subsequent calendar month for payment(in accordance with the Agreement)by the twenty-fifth(25")day of
the subsequent calendar month. Consultant's failure to submit an Application for Payment within one hundred twenty 120 days after completion of
the Services for which payment is requested shall constitute a waiver of Consultant's right to receive payment for the Services covered by such
Application for Payment.
B. Information. Each of Consultant's Applications for Payment shall include all information reasonably requested by
Meritage, such as, without limitation, the invoice date,job description, invoice number, contract number, total contract amount, amounts
applicable to each individual item of work or task,percentage of work completed, billing to date, amount previously billed and amount for
which payment is being requested. Consultant's Applications for Payment shall also contain an itemization of: (a)the Basic Services and
any Additional Services performed by Consultant for the payment period covered by the statement; and (b)the Reimbursable Expenses
incurred during such period, together with supporting documentation therefor acceptable to Meritage. Consultant's first Application for
Payment shall include a completed IRS W-9 form and other customary vendor set-up information and documentation required by Meritage
and/or Applicable Law.
C. Documents: Lien Releases. Consultant shall include with its Applications for Payment any other documents that shall be
required by Meritage,including,but not limited to: (a)an affidavit of Consultant confirming that no person or entity has any right to any lien
for materials,labor, supplies,equipment,tools or other items in connection with the Services; (b)documents that verify that all indebtedness
for the labor and materials used in the performance of the Services through the date of the statement has been fully paid by Consultant,
including,if requested by Meritage,lien waiver and release forms for all Subconsultants;and(c)such evidence of Consultant's full payment
of all of Consultant's Subconsultants, including, without limitation (if applicable), conditional waiver and release of lien upon progress
payment,for the Services rendered during the period covered by the Application for Payment,unconditional waiver and release of lien upon
progress payment for the Services rendered during the prior Application for Payment, conditional waiver and release of lien upon final
payment accompanying the final Application for Payment, and unconditional waiver and release of lien upon final payment upon receipt of
such final payment. All types of such releases shall be in the form required by Meritage and shall be executed by Consultant and its
Subconsultants of every tier who may have lien rights in connection with the Services.
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SCHEDULE 3 TO AUTHORIZATION AGREEMENT
ADDITIONAL SERVICES ORDER
(PO NOT COMPLETE-EXHIBIT ONLY)
ADDITIONAL SERVICES ORDER NO. TO AA NO.
MERITAGE: MERITAGE HOMES
CONSULTANT:
PROJECT NAME:
THIS ADDITIONAL SERVICES ORDER ("ASO") TO AUTHORIZATION AGREEMENT ("AA") is made and entered into as
of ,20 ,by and between"Meritage"and"Consultant" (each as defined below),in connection with the AA dated ,for the
Project(s) identified in the AA. Initially capitalized words used in this ASO and not otherwise defined herein shall have the meaning as
defined in the AA and this ASO is hereby incorporated into the AA. All of the terms, provisions and conditions of the ASO that are not
expressly amended by this ASO shall remain in full force and effect. In the event of any conflict between the AA and this ASO, the
provisions of this ASO shall control.
L DESCRIPTION OF ADDITIONAL SERVICES:
IL EFFECTIVE DATE OF ADDITIONAL SERVICES/COMPLETION DATE:
III. COMPENSATION. Meritage shall compensate Consultant for Additional Services in the following manner:
IV. SUMMARY:
Original AA Amount: $
Previous/Accumulative ASOs: $
This ASO: $
Total To Date: $
V. In the event that all or any portion of Consultant's proposal or form agreement is attached to this ASO,the parties acknowledge and
agree that such item is attached hereto solely to set forth the scope of Additional Services,compensation to be paid and/or expenses
to be reimbursed to Consultant for the Additional Services, and/or performance schedule for the Additional Services, and no other
terms,provisions or conditions of such proposal or Consultant's form agreement shall have any force or effect whatsoever.
IN WITNESS WHEREOF,the parties hereto have executed this ASO effective as of the date first written above.
"Meritage" "Consultant"
MERITAGE HOMES
a(n) a(n)
By: (EXHIBIT ONLY) By: (EXHIBIT ONLY)
Name: (EXHIBIT ONLY) Name: (EXHIBIT ONLY)
Its: (EXHIBIT ONLY) Its: (EXHIBIT ONLY)
By: (EXHIBIT ONLY)
Name: (EXHIBIT ONLY)
Its: (EXHIBIT ONLY)
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EXHIBIT B
STATE-SPECIFIC PROVISIONS
The State-specific provisions set forth on this Exhibit B are incorporated into and made part of that certain Agreement to which this Exhibit B
is attached. Initially capitalized terms used and not otherwise defined in this Exhibit B have the meanings given such terms in the
Agreement. The State-specific provisions set forth on this Exhibit B supplement,and modify to the extent necessary,all terms and conditions
in the Agreement.
TEXAS
Notice and Opportunity to Repair Statute (Section 4.2): Tex.Prop. Code Sec.27.001 —27.004,inclusive, and Sec.428.001 —428.005,
inclusive,as the same may be amended,and any successor statute(s).
Insurance Limitations(Section 7): No State-specific limitations.
Indemnification and Defense Limitations (Sections 3.1 and 8.4): If an arbitrator, court or tribunal of competent jurisdiction refuses to
enforce Consultant's obligations under Sections 3.1 and 8.4 of the Agreement because the scope of such obligations are deemed
unreasonable or to be in violation of applicable law or public policy,it is expressly understood and agreed that such obligations will not
be void for the purpose of such proceedings and the scope of Consultant's obligations will be reduced to the extent necessary to permit
the enforcement of such obligations.
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EXHIBIT C
INSURANCE REQUIREMENTS
1. Consultant shall not commence any Services until it has provided Meritage with evidence of compliance with all of the insurance
requirements set forth in this Exhibit C. Consultant shall purchase and maintain, at its own expense, with an insurer or insurers
acceptable to Meritage, at least the following insurance coverages prior to commencement of the Services,during the remainder of
the term of the Agreement to which this Exhibit C is attached, during the entirety of the Warranty Period, and thereafter, as
specified herein. Initially capitalized terms used and not otherwise defined in this Exhibit C shall have the meanings given to them
in the Agreement.
1) Professional Liability. Professional liability insurance,including prior acts coverage sufficient to cover any and all claims
arising out of the Services,or a retroactive date no later than the date of commencement of the Services,with limits of not less than
$2,000,000 per claim and$2,000,000) annual aggregate, or limits carried,whichever are greater, with a deductible or self-insured
retention amount not greater than$100,000 per claim. The professional liability insurance shall be maintained continuously during
the term of the Master Agreement and so long as the insurance is commercially reasonably available,for a period of ten(10)years
after completion of the Services. The professional liability insurance shall include Contractual Liability to cover liability assumed
under this Agreement to the extent insurable under such professional liability insurance and shall not contain any exclusions or
limitations applicable to Services of the type contemplated by the Master Agreement and any applicable Authorization Agreement.
Consultant shall require each of its Subconsultants to purchase and maintain insurance coverage as provided in this paragraph,
except that the required limits of liability shall be not less than $1,000,000 per claim and $2,000,000 annual aggregate, or limits
carried,whichever are greater.
2) Commercial General Liability. Commercial general liability insurance(ISO form CG 00 01 12 07,or a form equivalent in
coverage and acceptable to Meritage) on an occurrence policy form (`modified occurrence" and "claims-made" policies are not
acceptable), with limits of liability of not less than $2,000,000 bodily injury and property damage per occurrence, $2,000,000
general aggregate, and $2,000,000 personal injury and advertising injury limits, or limits carried, whichever are greater, with a
deductible or self-insured retention acceptable to Meritage and clearly stated on the certificates of insurance evidencing coverage.
Meritage must be included by endorsement as additional insured as outlined in the Additional Insured section of this Exhibit C. All
liability policies shall provide,without limitation, (a)a"per project"endorsement(ISO form CG 25 03 03 97 or its equivalent), (b)
full separation of insureds, (c) contractual liability coverage (unmodified ISO form CG 00 01 12 07 language or an equivalent
acceptable to Meritage, including coverage to the maximum extent possible for the indemnification contained in the Agreement),
(d)a"Primary and Noncontributory"Endorsement(ISO form CG 20 0104 13,or an equivalent acceptable to Meritage,(e)a waiver
of subrogation endorsement in favor of Meritage and the other parties listed in the Additional Insured Endorsement section of this
Exhibit C,and(f)that Meritage is allowed to satisfy any deductibles or self-insured retentions. The required limits of liability may
be provided by a combination of primary and umbrella and/or excess liability policies, all written on an occurrence policy form
(`modified occurrence" and "claims made" forms are not acceptable), with umbrella/excess coverage at least as broad as the
primary general liability insurance. Consultant shall require each of its Subconsultants to purchase and maintain insurance coverage
as provided in this paragraph.
3) Worker's Compensation. Workers' compensation insurance with statutory limits complying with the laws of the State in
which the Services are provided and employer's liability insurance with limits of liability of not less than $1,000,000 for bodily
injury by accident (each accident) and $1,000,000 for bodily injury by disease (each employee), or limits carried, whichever are
greater. Consultant shall also provide evidence of such coverage in the form of a certificate of insurance that includes an attached
waiver of subrogation endorsement in favor of Meritage and the other parties listed in the Additional Insured Endorsement section
of this Exhibit C. Such insurance shall be in strict accordance with the applicable workers' compensation laws in effect during
performance of the Services by Consultant pursuant to the Master Agreement and during performance by any Subconsultant or
subcontractor. Consultant shall require each of its Subconsultants and subcontractors to purchase and maintain insurance coverage,
as provided in this paragraph, with the same waiver of subrogation with respect to Meritage and the other parties listed in the
Additional Insured Endorsement section of this Exhibit C.
4) Commercial Auto Liability. Commercial automobile liability insurance(ISO form CA 00 01 03 06, or a form equivalent
in coverage and acceptable to Meritage),including,without limitation,coverage for liability arising out of"any auto" or any and all
owned,non-owned,leased,and hired automobiles,trucks and trailers,or semi-trailers,including,without limitation,any machinery
or apparatus attached thereto,with limits of liability not less than $1,000,000 each accident, or limits carried,whichever is greater,
with a deductible or self-insured retention amount acceptable to Meritage. The commercial automobile liability insurance shall be
written on a policy form acceptable to Meritage and shall include, without limitation, contractual liability coverage and insured
status for Meritage and Owner. Consultant waives all rights against Meritage, Owner and the other Indemnitees for recovery of
loss, injury and/or damages to the extent such loss, injury and/or damages are covered by the commercial automobile liability
insurance maintained by Consultant. The required limits may be provided by a combination of primary and umbrella and/or excess
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liability policies, with umbrella/excess coverage at least as broad as the primary commercial automobile liability insurance.
Consultant shall require each of its Subconsultants and subcontractors to purchase and maintain insurance coverage,and provide the
same waiver of rights,as provided in this subparagraph.
5) Pollution Liability. If the Services include mold remediation or asbestos, lead or other pollution abatement work in
connection with reports or surveys of mold, asbestos or lead contamination and/or other mold or pollution consulting services
performed by Consultant,pollution liability insurance, including asbestos or lead abatement if applicable(unless covered under an
Asbestos and Lead Abatement Liability policy), on a claims-made form covering all phases of the remediation process(including
explosion, collapse and underground coverage), with limits of not less than Two Million Dollars ($2,000,000)per claim and Two
Million Dollars ($2,000,000) annual aggregate, or limits carried, whichever are greater,with a deductible or self-insured retention
amount acceptable to Meritage. Consultant shall require each other pollution remediation related Subconsultant to purchase and
maintain insurance coverage as provided in this subparagraph.
B. Additional Insured Endorsement. Meritage,and such other persons and entities as may from time to time be designated by Meritage
in writing, shall be added as an additional insured to the Commercial General Liability policy by issuance of both ISO form CG 20
10 07 04 or an equivalent acceptable to Meritage. All Additional Insured Endorsements shall include the following wording:
"Meritage Homes Corporation, including its subsidiaries, affiliates, successors and assigns, is an additional insured to the full
extent assumed under written contract." The coverage provided to the additional insureds must be at least as broad as that provided
to Consultant and may not contain any additional exclusionary language or limitations applicable to the additional insureds.
C. Any insurance policies required of or maintained by Consultant or any Subconsultant (`Consultant Party") pursuant to the
Agreement may not contain any exclusions or limitations applicable to:(a)additional insured vs.named insured Claims or suits;(b)
any condominiums,townhomes,multi-unit,multi-family and/or attached projects,residential development or construction,common
interest subdivisions or projects with a homeowners association,or tract housing;or(c)similar exclusions or limitations.
D. Prior to commencing the Services, Consultant shall deliver to Meritage the endorsements and waivers of subrogation referred to in
this Exhibit C,as well as certificates of insurance evidencing the coverages referred to in this Exhibit C. Promptly upon Meritage's
request,Consultant shall deliver to Meritage a copy of any and all of the insurance policies and other insurance documents required
by this Exhibit C. In the case of policies expiring while Services are in progress, a renewal certificate with all applicable
endorsements must be received at the business office of Meritage prior to the expiration of the existing policy or policies.
Permitting Consultant to begin Services, continue Services, or releasing any progress payment prior to compliance with these
requirements shall not constitute a waiver thereof. If at any time the Consultant's insurance fails to meet the requirements stated
herein all payments may be held until the deficiency has been resolved. Each certificate and endorsement must be executed by an
authorized agent of the respective insurers. All Consultants must provide Meritage with thirty (30) days advance written notice of
cancellation or non-renewal and ten(10)days notice in the event of cancellation for non-payment of premium. Certificates issued
by the carrier(s)shall include the following wording:
CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE
POLICY PROVISIONS.
E. All insurance referred to in this Exhibit C to be carried by Consultant shall be maintained by Consultant at its sole expense, with
insurance carriers qualified to do business in the State in which the applicable Project is located and maintaining a rating of not less
than A-,VII from A.M.Best&Co.,unless Meritage,in writing,in its sole discretion,accepts a lower Best's rating.
F. In the event Consultant fails to secure or maintain any policy of insurance required hereby, Meritage, at its sole discretion and
election, may terminate any Contract Confirmation then in effect and shall retain all remedies thereunder for breach of the
Agreement.
G. The insurance requirements set forth herein are independent of Consultant's indemnification and other obligations under the
Agreement and at law. Nothing in this Exhibit C shall be construed to limit or alter any of the other obligations of Consultant,
under the Agreement, at law, or otherwise, including, without limitation, Consultant's indemnification obligations. Nothing
contained herein shall be construed as limiting the type,quality or quantity of insurance Consultant should maintain or the extent of
Consultant's responsibility or liability for damages or other relief, under the Agreement or otherwise. Neither receipt nor
acceptance of policies,endorsements or certificates,whether or not showing less or different coverage than required herein,nor any
other forbearance or omission by Meritage with respect to these insurance requirements or otherwise shall be deemed a waiver of,
or estoppel to assert, any right of Meritage regarding these insurance requirements. Consultant shall be solely responsible to pay
any loss amount that lies within the deductible(s)or self-insured retention(s)of Consultant's policies,up to the maximum amount of
the deductible(s)or self-insured retention(s).
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H. None of the requirements contained herein shall relieve any Consultant Party of its obligations to exercise due care in the
performance of its duties in connection with the Services or to complete the Services in strict compliance with the Contract
Documents.
1. With regard to its personal property and its property insurance(if any),Consultant agrees and acknowledges as follows:
1) Consultant and each other Consultant Party shall have the risk of loss as to all materials, supplies, equipment and/or
fixtures until such time as such materials, supplies, equipment and/or fixtures have been installed or otherwise affixed
permanently to a Project (and accepted by Meritage and/or Owner in accordance with the Agreement). Meritage and
Owner and their respective affiliates shall not be liable for loss or damage to, or theft of, any materials, supplies,
equipment and/or fixtures prior to such time,whether such materials, supplies,equipment and/or fixtures are off the site,
in transit,on the site,under the control of Meritage,Owner or otherwise.
2) Consultant and each other Consultant Party shall be solely responsible for any loss or damage to its or their tools,
equipment and other personal property and that of their employees and workmen (collectively, "Personal Property").
Consultant and each other Consultant Party, at its or their option and own expense,may purchase and maintain insurance
for such Personal Property and any deductible or retention in relation thereto shall be its or their sole responsibility. Any
such insurance shall be Consultant's and any other Consultant Party's sole source of recovery in the event of loss or
damage to its or their Personal Property. Any such insurance purchased and maintained by Consultant and any other
Consultant Party shall include a waiver of subrogation as to Meritage and Owner and their respective affiliates.
3) Consultant waives all rights of recovery,whether under subrogation or otherwise, against Meritage and Owner and their
respective affiliates for (a) loss or damage covered by Consultant's property insurance and (b) loss or damage to
Consultant's Personal Property. Consultant shall require the same waivers from each other Consultant Party and from the
insurers issuing property insurance policies relating to the Services or the applicable Project purchased and maintained by
any other Consultant Party. The waivers of recovery, including, subrogation, referred to in this subparagraph shall be
effective as to any individual or entity even if such individual or entity (a) would otherwise have a duty of
indemnification,contractual or otherwise,(b)did not pay the insurance premium,directly or indirectly,and(c)whether or
not such individual or entity has an insurable interest in the property that is the subject of the loss or damage. If the
policies of insurance referred to in this Section I require an endorsement to effectuate the waivers of subrogation required
hereunder,the parties procuring such policies will cause them to be so endorsed at their own expense.
J. Consultant shall furnish each other bidding and negotiating Consultant Party a copy of this Exhibit C, and shall make the same
requirement of all with respect to their subcontracting or procurement procedures. Consultant shall not allow any Consultant Party
to perform any portion of the Services until Consultant obtains from the Consultant Party, and provides to Meritage proof of
insurance in a form and substance identical to that required to be carried by Consultant pursuant to the Agreement, and reasonably
acceptable to Meritage. Consultant shall in writing bind each such Consultant Party and Consultant to all of the insurance
requirements of this Exhibit C. Consultant shall also obtain from all such Consultant Parties an indemnification in a form and
substance identical to the indemnity set forth in Section 8 of the Agreement, with the modification that such indemnity from the
Consultant Party shall also be for the benefit of Meritage and the other Indemnitees,as defined in Section 8 of the Agreement.
K. Any type of insurance or any increase of its limits of liability not described above that Consultant requires for its protection, or on
account of statute,shall be its own responsibility and at its own expense.
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EXHIBIT D
DISPUTE RESOLUTION PROVISIONS FROM TYPICAL SALES AGREEMENT
i. Binding Neutral Arbitration. Buyer and Meritage hereby agree that from and after the Closing, any dispute,
claim, or controversy between them and/or any of their respective successors in interest shall be determined by binding arbitration, as
provided by the Federal Arbitration Act(9 U.S.C. Section 1 et seq.)and in accordance with the terms and conditions of this Agreement, and
not by or in a court of law or equity. For purposes of this paragraph, "dispute, claim, or controversy" shall include any and all disputes,
claims, or controversies of any type or nature whatsoever involving Buyer(and/or any successor to Buyer)and Meritage, including,but not
limited to: (a)those arising from or involving the condition of the Home and/or Meritage's construction of the Home; (b)those arising from
or related in any way to this Agreement or the Warranty Agreement; and (3)those relating to any claim for personal injury or property
damage allegedly sustained by Buyer.Any determination of the scope and applicability of the agreement to arbitrate,however, shall be made
solely by a federal court in the state in which the Home is located.
NOTICE: BY INITIALING THE SPACE PROVIDED BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING
OUT OF THE CONTRACT AND/OR THE WARRANTY AGREEMENT DECIDED BY BINDING NEUTRAL ARBITRATION
AS PROVIDED BY THIS AGREEMENT AND THE FEDERAL ARBITRATION ACT. TO THE GREATEST EXTENT NOT
CONTRARY TO STATE LAW, YOU ARE WAIVING AND GIVING UP ANY RIGHTS YOU MAY HAVE TO HAVE ANY
CLAIM OR DISPUTE LITIGATED BY A COURT OR BY JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE
WAIVING AND GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL EXCEPT TO THE LIMITED
EXTENT PROVIDED IN THIS AGREEMENT. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO
THIS PROVISION,YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF APPLICABLE FEDERAL
AND STATE LAW.YOUR AGREEMENT TO THIS BINDING NEUTRAL ARBITRATION PROVISION IS VOLUNTARY.I/WE
HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT ALL CLAIMS AND DISPUTES TO
BINDING NEUTRAL ARBITRATION IN ACCORDANCE HEREWITH.
Buyer's Initials:
ii. Rules for Binding Neutral Arbitration. Subject to the limitations set forth in this Agreement, the arbitration
shall be administered by Judicial Arbitration and Mediation Services (`JAMS") pursuant to its Arbitration Rules and Comprehensive
Procedures, including,but not limited to,the expedited procedures of JAMS Rule 16 and the JAMS Optional Arbitration Appeal Procedure,
and in accordance with the Expedited Procedures in those Rules. Nothing in this Agreement, however, shall preclude parties from seeking
provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
a) Demand for Arbitration. Any demand for arbitration pursuant to this Section shall be in writing and
delivered by certified mail,return receipt requested to the address specified in Section 14 of this Agreement,within the applicable statute of
limitations period. Note that pursuant to such Section, a copy of any demand made for arbitration to Meritage must be provided to
Meritage Homes, 8800 East Raintree Drive, Suite 300, Scottsdale, AZ 85260, Attention: General Counsel— THIS NOTICE MAY
REQUIRE IMMEDIATE ATTENTION. Any disputes regarding the sufficiency and timeliness of any demand for arbitration shall be
resolved by the "Arbitrator" (as defined in Section ii(b)below). In order to constitute a valid demand for arbitration, the party demanding
arbitration shall include all of the following in the written demand for arbitration: (i)a detailed description of the claim or dispute; (ii)the
date upon which the condition which is the subject of the claim or dispute first arose;(iii)the names,work locations,and telephone numbers
of any individuals with knowledge of the dispute;and(iv)the relief requested.
b) Appointment of Arbitrator. A neutral arbitrator, (the "Arbitrator") shall be selected by mutual
agreement of the parties. Unless Buyer and Meritage agree otherwise, the Arbitrator shall be an attorney licensed and in good standing to
practice in the state in which the Home is located or a retired federal or state judge who presided in the state in which the Home is located.
The arbitration proceedings shall take place at a location within forty-five (45) miles from both the Home and Meritage's nearest Division
office,unless both Meritage and Buyer agree otherwise in writing. In the event Buyer and Meritage are unable to agree upon an Arbitrator,
either party may declare an impasse and apply to a court of competent jurisdiction in the state in which the Home is located within ten(10)
days thereafter to appoint an Arbitrator, who shall act under this Agreement with the same force and effect as if Buyer and Meritage had
selected the Arbitrator by mutual agreement.
c) Fees and Costs. Except as required otherwise by this Agreement or the laws of the state in which the
Home is located,Buyer and Meritage shall share equally in advancing JAMS and Arbitrator fees and costs required,and each party shall bear
its own attorneys' fees and costs. This provision notwithstanding, the prevailing party shall be awarded its reasonable attorneys' fees and
costs to the greatest extent not otherwise contrary to state law in any litigation to enforce or compel arbitration in accordance with this
Section.
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d) Discovery and Hearing Limitations. By entering into this Agreement, both Buyer and Meritage
acknowledge and agree that one of the goals of arbitration in accordance with this Section is to create an informal process(as contrasted with
proceeding in Court)to quickly and efficiently resolve their disputes with minimal cost and expense.With this objective in mind,both Buyer
and Meritage agree to the following limitations and parameters:
(1) All discovery will close no later than one hundred fifty (150)days following appointment of
the Arbitrator;
(2) If the claim or dispute arises from an alleged construction defect, Meritage shall be entitled
reasonable access to the Home to conduct reasonable inspections and destructive testing;
(3) Each party shall be limited to no more than thirty(30)written interrogatories;
(4) Each party shall be limited to no more than thirty(30)document requests;
(5) Each party shall be limited to three (3) depositions of non-expert witnesses and each party's
depositions are to consume not more than a total of fifteen (15) hours, with no speaking objections at the depositions
except to preserve privilege;
(6) All expert witnesses shall be identified in writing within sixty(60)days after the appointment
of the Arbitrator and be made reasonably available for deposition within the discovery period above;
(7) The evidentiary hearing on the merits("Hearing")shall commence within one hundred eighty
(180)days following appointment of the Arbitrator;
(8) Upon the request of either party,the Arbitrator shall conduct a site visit;
(9) At the Hearing, each party shall have no more than two (2) days for presentation of direct
evidence and for cross examination,exclusive of a site visit and reasonable opening and closing remarks;and
(10) The Arbitrator shall issue a reasoned written decision, including findings of fact and
conclusions of law, within thirty (30) days following the close of the Hearing, or within thirty (30) days after service of
post-hearing briefs if the Arbitrator directs the service of such briefs.
Notwithstanding the foregoing, for good cause shown,upon written request of either party the Arbitrator may modify these limitations and
parameters as equitable. In doing so,however,the Arbitrator shall remain mindful of the parties' objectives to resolve their dispute(s)quickly
and efficiently, with minimal cost and expense. Failure to meet any of the foregoing deadlines will not render the award invalid,
unenforceable, or subject to being vacated; however, the Arbitrator may impose appropriate sanctions and draw appropriate adverse
inferences against the party primarily responsible for the failure to meet any such deadlines.
e) Appellate Procedures.Buyer and Meritage hereby adopt and agree to implement the JAMS Optional
Arbitration Appeal Procedure with respect to any final award in excess of$100,000,subject to the following limitations and parameters:
(1) There shall be one (1) neutral Appeal Arbitrator unless either party elects, prior to the
selection of an Appeal Arbitrator,to have the appeal heard by a panel of three(3)Appeal Arbitrators.In the event a party
elects the appointment of a panel of three(3)arbitrators,the requesting party shall be responsible for the cost and expense
of the additional two(2)Appeal Arbitrators.Each Appeal Arbitrator shall have experience as a judge on an appellate court
in the state in which the Home is located.
(2) Except as provided otherwise in this Agreement,the parties shall equally share the JAMS and
Appeal Arbitrator fees and costs of the Appeal;
(3) The party requesting the appeal shall be responsible,at its sole cost and expense,for providing
a certified copy of the hearing transcript and all documentary evidence to the Appeal Arbitrator and the non- requesting
party.In the event both parties request the appeal,these costs and expenses shall be equally shared.
f) Participation by Other Parties.Meritage may elect to have all other parties it deems necessary and/or
proper included as parties to the arbitration, including, but not limited to, any subcontractors, vendors, manufactures, professionals, and/or
others who provided materials, labor, and/or professional services pertaining to the Home.Meritage's failure to add such parties shall in no
manner be construed as a waiver of any claims against any such third parties.
g) Applicable State Law.The Arbitrator shall apply the substantive law of the state in which the Home is
located to resolve the claims made, without regard to conflict or choice of law rules.Nevertheless, the Arbitrator need not strictly comply
with the applicable Rules of Evidence in such state with the sole exception of those regarding the protection of privileged attorney work
product and attorney-client communications. Notwithstanding the foregoing provision with respect to applicable substantive law, any
arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act(9 U.S.C.Section 1 et seq.).
DS DS
Master Professional Services Agreement(rev 02.26.16) EX.D-2 Initial Initial
DocuSign Envelope ID:5D5A8ED1-D903-4915-B48D-80BACA3E1 COC
h) Class/Collective Action Waiver. Buyer and Meritage acknowledge and agree that there shall be no
right or authority for any dispute or claim to be brought,heard, or arbitrated pursuant to collective action or in a representative capacity on
behalf of a class, the community in which the Home is located, or the general public. In the event any party makes a claim in any forum
contrary to this provision, the other party shall have the right to seek enforcement of this Class/Collective Action Waiver under the Federal
Arbitration Act and seek dismissal of such class or collective action or claim.Moreover,notwithstanding any other provision of the Contract,
any claim that all or part of this Class/Collective Action Waiver is unenforceable, void, or voidable may be determined only by a court of
competent jurisdiction and not by an Arbitrator or Appeal Arbitrator.
i) Confidentiality. The parties shall maintain the confidential nature of the arbitration and the award,
including the Hearing, except as may be necessary to prepare for or conduct the hearing on the merits, or except as may be necessary in
connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise
required by law or judicial decision.
j) Damages. The arbitrator(s) may award only those actual damages actually incurred by a party as a
direct result of the claims,and may not award punitive or exemplary damages or any incidental,indirect,or consequential damages,including
damages for lost profit,except where expressly permitted by statute,and the parties waive any right to recover any such damages.
os os
Master Professional Services Agreement(rev 02.26.16) EX.D-3 Initial Initial
DocuSign Envelope ID:63DD6770-51362-4789-813CA-A59A5131 E2133A
Project Name:Chisholm Trail
Contract No.:76652395
Vendor Name: Goodwin&Marshall/Vendor No.: 13 86 10
Cost Code: 10130,10155/Job No.:61129649950
AUTHORIZATION AGREEMENT
THIS AUTHORIZATION AGREEMENT (this"Authorization Agreement") dated July 26, 2021 is made and entered
into as of the"Effective Date",by and between"Meritage" and"Consultant" (each as defined below), in connection with, and
upon and subject to the terms and conditions of, that certain Master Professional Services Agreement between Meritage and
Consultant dated July 18,2012(the"Master Agreement").
NOW,THEREFORE,the parties do hereby mutually agree as follows:
1. Defined Terms. Initially capitalized terms used and not otherwise defined in this Authorization Agreement
shall have the meanings given to them in the Master Agreement, which Master Agreement is fully incorporated in this
Authorization Agreement by this reference.
2. Master Agreement. Meritage and Consultant acknowledge and agree that this Authorization Agreement is
entered into in connection with,constitutes a part of,and is governed by the Master Agreement.
3. Services. The Basic Services to be performed pursuant to this Authorization Agreement are identified on
Schedule 1 to this Authorization Agreement, together with all those services that are reasonably inferable from or incidental to
such services.
4. Performance Schedule. The Performance Schedule (if any) applicable to this Authorization Agreement is set
forth on Schedule 1 to this Authorization Agreement.
5. Compensation. Consultant's compensation with respect to this Authorization Agreement is set forth on
Schedule 2 to this Authorization Agreement.
6. Reimbursable Expenses. Reimbursable Expenses (if any) with respect to this Authorization Agreement are
identified in Section I of Schedule 2 to this Authorization Agreement.
7. Additional Services. Orders for Additional Services related to this Authorization Agreement(if any) shall be
on a form substantially similar to the Additional Services Order form attached as Schedule 3 to this Authorization Agreement that
shall be completed and executed by Meritage and Consultant.
8. Schedules. Schedules referred to and attached to this Authorization Agreement are incorporated herein by
reference. In the event that all or any portion of Consultant's proposal or form agreement is attached to this Authorization
Agreement or to Schedules 1,2 and/or 3 hereto,the parties acknowledge and agree that such item is attached thereto solely to set
forth the scope of work, compensation to be paid and/or expenses to be reimbursed to Consultant, and/or performance schedule,
and no other terms,provisions or conditions of such attachment shall have any force or effect whatsoever.
9. Project Owner. The Project Owner is Meritage.
10. Effective Date:July 26,2021.
IN WITNESS WHEREOF, the parties hereto have executed this Authorization Agreement as of the date first written
above.
"Meritage" "Consultant"
MERITAGE HOMES OF TEXAS,LLC,a(n)Arizona GOODWIN&MARSHALL,INC,a(n)Texas corporation
limited liability company(Dallas/Fort Worth Division)
DocuSigned by: uSigned by:
rs&-�k�
By: By: €3F soa�esasF...
Edward Eckart
Name: STEVEN COOK Name:
Its:DIRECTOR OF LAND DEVELOPMENT Its: officer
DocuSigned by:
Ettsfiw ( bAW A,
By:
Name:AUSTIN WOFFINDEN
Its:DIVISION PRESIDENT
AA to MPSA(rev 6/4/15) 1
DocuSign Envelope ID:63DD6770-51362-4789-813CA-A59A5131 E2133A
SCHEDULE I TO AUTHORIZATION AGREEMENT
THE SERVICES
I. BASIC SERVICES:
Consultant shall provide Services for the Project,including,but not limited to,the following:
A. Sewer Trunk Main Construction Plans
It will be necessary to extend a 12-inch - 27-inch off-site sanitary sewer line from the CTR/Cadence property line at
Brewer Road west along Old Granbury Road to the Richardson Slough Lift Station. Consultant shall prepare plans,
profiles, and specifications for the sewer line extension and submit the plans to the City. Consultant shall provide
technical support to facilitate acceptance.It is anticipated that the cost of design and construction of these improvements
is anticipated to be shared with the neighboring property owner and the City,as appropriate.Any cost sharing associated
with this item is being coordinated by Meritage; however, Consultant shall assist in the preparation of the formal cost
sharing documents between Meritage and the City.
B. Potholing Coordination
It will be necessary to pothole the gas line crossings to determine the location and depth of the lines. Consultant shall
coordinate with Meritage,the appropriate gas companies,and potholing company,and other agencies responsible for the
line,as necessary.It is currently anticipated that a minimum of eight gas crossings will be required.
C. City Coordination Services for Design Procurement Agreement(DPA)
Consultant shall coordinate with the Meritage relative to the preparation of the required DPA, including contract
documents and legal description and exhibits. Consultant shall submit required support documentation to the City and
provide technical support to facilitate acceptance.
D. Easement and Encroachment Coordination
Consultant shall prepare Encroachment Agreement Documents as necessary for sewer line crossings encroachments
across existing public and private utility easements and facilities. This will include a graphic of each crossing, and a
plan/profile exhibit of each crossing occurrence. Consultant shall coordinate with the City, Meritage, and Fossett Title
Works as necessary. Consultant shall submit the encroachment agreement documentation to the City for review and
provide technical support to facilitate acceptance.
E. Community Facilities Agreement
The City requires the processing of a Community Facilities Agreement (CFA) in conjunction with construction plan
approval.Consultant shall prepare the CFA and supporting documentation for the public improvements.Consultant shall
coordinate with the City for approval and execution of the CFA.
F. Construction Support Services
During the construction of the CTR sewer trunk main, Consultant shall perform general support services relative to the
site civil construction plans prepared by Consultant,to include:
L. Public bid documents and coordination;
2. Responses to requests for information(RFIs);
3. Design changes due to field conditions;
4. Design changes due to Meritage's request;
5. Assist Meritage in identifying construction issues as they arise during the normal course of the project and
provide solutions,as appropriate;and
6. When requested by Meritage, Consultant shall visit the site in order to observe the progress and quality of the
work completed by the Contractor. Such visits and observations are not intended to be an exhaustive check or
detailed inspection of the Contractor's work,but rather to allow Consultant, as an experienced professional,to
become generally familiar with the work in progress and to determine, in general,if the work is proceeding in
accordance with the contract documents.
G. Construction Staking Services
Consultant shall provide construction staking for all improvements for which Consultant prepares construction plans.All
staking will be performed one time only.Necessary re-staking shall have prior authorization from Meritage.
AA to MPSA(rev 6/4/15) 2
DocuSign Envelope ID:63DD6770-51362-4789-813CA-A59A5131 E2133A
H. Record Drawings
Consultant shall produce one set of final record drawings in both paper and electronic format in accordance with the
requirements of the City, if applicable. The record drawings will be prepared using information provided by the
contractor.
L CAD Files
Consultant shall provide CAD files of plats and other requisite documents to Meritage's consultants,local postmaster(if
needed),and franchise utility providers serving the project and/or designated by Meritage upon execution of Consultant's
standard waiver of liability. If such franchise utility providers supply design layouts to Consultant, Consultant shall
forward same to Meritage for review and/or approval. Consultant shall coordinate with Meritage regarding utility
easements requested by the franchise utility providers prior to adding such easements to the final plat.
IL PERFORMANCE SCHEDULE(if any):
Consultant shall begin Services on July 26,2021.
III. COMPLETION DATE:
Consultant shall complete Services on or before December 31,2021 or as directed by Meritage.
AA to MPSA(rev 6/4/15) 3
DocuSign Envelope ID:63DD6770-51362-4789-813CA-A59A5131 E2133A
SCHEDULE 2 TO AUTHORIZATION AGREEMENT
COMPENSATION
Meritage shall compensate Consultant for Consultant's performance of the Services described on Schedule 1 as hereafter set forth.
L COMPENSATION:
Compensation will be as follows:
The total Contract Price to be paid to Consultant for the completion,approval and acceptance of the Services included in
Schedule 1 of this Authorization Agreement shall be Two Hundred Seven Thousand and 00/100 Dollars ($207,000.00).
Invoices based on the percentage of the Services completed may be submitted on a monthly basis in accordance with the terms of
the MPSA, this AA, and the following Contract Price Schedule below at such time as each Services item listed in the Contract
Price Schedule is accepted by Meritage as fully completed.Any increases to the Contract Price resulting from a Scope of Services
change, Plan change by Meritage, or force majeure events must be specifically approved in writing by Meritage prior to the
commencement of any associated Service. All changes to the Contract Price must be documented in a Meritage issued and
approved Additional Services Order.
Schedule of Values:
Sewer Trunk Main Construction Plans $162,000.00
Potholing Coordination $2,100.00
City Coordination Service for Procurement Agreement $2,500.00
Easement and Encroachment Coordination $4,500.00
Community Facilities Agreement $4,800.00
Construction Support Services $9,500.00
Construction Staking Services $21,600.00
Record Drawings Included in total cost
CAD Files Included in total cost
Total: $207,000.00
Reimbursable Expenses(all at cost,without mark-up or administrative charge):None.
IL MECHANICS OF PAYMENTS:
A. Payment Schedule. Payments to Consultant shall be made,as set forth herein,upon completion of the Services
by Consultant and acceptance of the Services by Meritage(or such portion thereof as may be required for payment as set forth in
Section I of this Schedule 2), and upon delivery to Meritage of Consultant's written application for payment for the Services
performed,accompanied by appropriate back-up and other documents required by Meritage in the Master Agreement or otherwise
(collectively, "Applications for Payment"). All Applications for Payment are subject to Meritage's review and approval. If
Meritage receives a complete Application for Payment by the 5 b day of any calendar month, Meritage shall pay Consultant the
amount approved by Meritage no later than the 25'day of the calendar month in which the Application for Payment is received,
less any applicable retention, withholding and offsets deducted by Meritage. Any Application for Payment received by Meritage
after the 5'day of any calendar month shall be deemed to have been submitted in the subsequent calendar month for payment(in
accordance with the Agreement)by the 25 b day of the subsequent calendar month. Consultant's failure to submit an Application for
Payment within 120 days after completion of the Services for which payment is requested shall constitute a waiver of Consultant's
right to receive payment for the Services covered by such Application for Payment.
B. Information. Each of Consultant's Applications for Payment shall include all information reasonably requested
by Meritage,such as,without limitation,the invoice date,job description,invoice number,contract number,total contract amount,
amounts applicable to each individual item of work or task, percentage of work completed, billing to date, amount previously
billed and amount for which payment is being requested. Consultant's Applications for Payment shall also contain an itemization
of: (a)the Basic Services and any Additional Services performed by Consultant for the payment period covered by the statement;
and (b)the Reimbursable Expenses incurred during such period, together with supporting documentation therefor acceptable to
Meritage. Consultant's first Application for Payment shall include a completed IRS W-9 form and other customary vendor set-up
information and documentation required by Meritage and/or Applicable Law.
C. Documents; Lien Releases. Consultant shall include with its Applications for Payment any other documents
that shall be required by Meritage,including,but not limited to: (a)an affidavit of Consultant confirming that no person or entity
has any right to any lien for materials, labor, supplies, equipment, tools or other items in connection with the Services;
(b)documents that verify that all indebtedness for the labor and materials used in the performance of the Services through the date
AA to MPSA(rev 6/4/15) 4
DocuSign Envelope ID:63DD6770-5B62-4789-8BCA-A59A5B1 E2133A
of the statement has been fully paid by Consultant, including, if requested by Meritage, lien waiver and release forms for all
Subconsultants; and (c)such evidence of Consultant's full payment of all of Consultant's Subconsultants, including, without
limitation (if applicable), conditional waiver and release of lien upon progress payment, for the Services rendered during the
period covered by the Application for Payment,unconditional waiver and release of lien upon progress payment for the Services
rendered during the prior Application for Payment, conditional waiver and release of lien upon final payment accompanying the
final Application for Payment, and unconditional waiver and release of lien upon final payment upon receipt of such final
payment. All types of such releases shall be in the form required by Meritage and shall be executed by Consultant and its
Subconsultants of every tier who may have lien rights in connection with the Services.
AA to MPSA(rev 6/4/15) 5
DocuSign Envelope ID:63DD6770-51362-4789-813CA-A59A5131 E2133A
SCHEDULE 3 TO AUTHORIZATION AGREEMENT
ADDITIONAL SERVICES ORDER
(DO NOT COMPLETE-SAMPLE®NLI)
ADDITIONAL SERVICES ORDER NO. TO AA NO.
MERITAGE: MERITAGE HOMES
CONSULTANT:
PROJECT NAME:
THIS ADDITIONAL SERVICES ORDER ("ASO") TO AUTHORIZATION AGREEMENT ("AA") is made and
entered into as of 120 ,by and between"Meritage"and"Consultant"(each as defined below),in connection with
the AA dated for the Project(s) identified in the AA. Initially capitalized words used in this ASO and not otherwise
defined herein shall have the meaning as defined in the AA and this ASO is hereby incorporated into the AA. All of the terms,
provisions and conditions of the ASO that are not expressly amended by this ASO shall remain in full force and effect. In the
event of any conflict between the AA and this ASO,the provisions of this ASO shall control.
L DESCRIPTION OF ADDITIONAL SERVICES:
IL EFFECTIVE DATE OF ADDITIONAL SERVICES/COMPLETION DATE:
III. COMPENSATION. Meritage shall compensate Consultant for Additional Services in the following manner:
IV. SUMMARY:
Original AA Amount: $
Previous/Accumulative ASOs: $
This ASO: $
Total To Date: $
V. In the event that all or any portion of Consultant's proposal or form agreement is attached to this ASO, the parties
acknowledge and agree that such item is attached hereto solely to set forth the scope of Additional Services,
compensation to be paid and/or expenses to be reimbursed to Consultant for the Additional Services,and/or performance
schedule for the Additional Services,and no other terms,provisions or conditions of such proposal or Consultant's form
agreement shall have any force or effect whatsoever.
IN WITNESS WHEREOF,the parties hereto have executed this ASO effective as of the date first written above.
"Meritage" "Consultant"
MERITAGE HOMES a(n) ,a(n)
By: By:
Name: Name:
Its: Its:
By:
Name:
Its:
AA to WSA(rev 6/4/15) 6
DocuSign Envelope ID:94FBC5A9-FA3B-4D92-B62B-2CF6561822AD
ADDITIONAL SERVICES ORDER NO.001 TO AA NO.76652395
MERITAGE: MERITAGE HOMES OF TEXAS,LLC
CONSULTANT: GOODWIN&MARSHALL,INC.
PROJECT NAME: Chisholm Trail Ranch
THIS ADDITIONAL SERVICES ORDER("ASO")TO AUTHORIZATION AGREEMENT("AA")is made and entered
into as of August 17, 2021, by and between "Meritage" and "Consultant" (each as defined below), in connection with the AA
dated July 26, 2021, for the Project(s) identified in the AA 76652395. Initially capitalized words used in this ASO and not
otherwise defined herein shall have the meaning as defined in the AA and this ASO is hereby incorporated into the AA.All of the
terms,provisions and conditions of the ASO that are not expressly amended by this ASO shall remain in full force and effect. In the
event of any conflict between the AA and this ASO,the provisions of this ASO shall control.
L DESCRIPTION OF ADDITIONAL SERVICES:
Consultant shall provide the following Additional Services for the Project:
Subsurface Utility Engineering(SUE)
Consultant shall subcontract with The Rios Group("Subconsultant")to perform the Subsurface Utility Engineering(SUE)
services for the Project.Consultant shall provide coordination of services performed by Subconsultant. The services to be
performed by Subconsultant are as follows:
Quality Levels
Quality Level A (QL "A") - Three dimensional (x,y,z) utility information obtained utilizing non-destructive vacuum
excavation equipment to expose utilities at critical points which are then tied down by surveying. Also known as
"locating",this quality level provides precise horizontal and vertical positioning of utilities within approximately 0.05 feet.
Quality Level B(QL`B")-Two-dimensional(x,y)information obtained through the application and interpretation of non-
destructive surface geophysical methods.Also known as"designating"this quality level provides the horizontal position of
subsurface utilities within approximately one foot.
Subcontract Consultant shall perform Quality Level "A" and `B" SUE) Utilities to be designated include gas,
telecommunications, electric, traffic signals, storm, water and sanitary sewer that cross the proposed sanitary sewer
alignment.Designating will be performed as directed by Meritage.
Subconsultant shall provide ten (10) QL "A" test holes. Test hole locations will be determined by Consultant and
Subconsultant once the QL `B" SUE deliverable has been reviewed. Subconsultant will have all designating marks and
test holes surveyed using project control point data provided by Consultant.
Any necessary Right-of-Entry(ROE)permits, including railroad ROE,will be provided by Consultant prior to the start of
Subconsultant field work.
Designating Procedures
Prior to beginning field designating activities, Subconsultant's field manager will review the project scope of work and
available utility records. Once these initial reviews are complete,the field manager and technicians will begin designating
the approximate horizontal position of known subsurface utilities within the specified project limits.A suite of geophysical
equipment (electromagnetic induction, magnetic) will be used to designate metallic/conductive utilities (e.g. steel pipe,
electrical cable, telephone cable). Subconsultant will establish routine/ordinary traffic control (cones and free-standing
signage, etc.) whenever required. If non-routine traffic control measures are required(barricades, flag person, changeable
message board,etc.),Consultant shall notify Meritage before beginning any additional services.
Subconsultant's field manager will produce detailed sketches depicting each utility as well as relevant surface features such
as roadways, buildings, manholes, fire hydrants, utility pedestals, valves, meters, etc. Each utility will be labeled with a
unique ID code.For example, if two different water lines exist on the project, one will be labeled W1 and the other W2.
Paint and pin flags will be used to designate the utilities in the field.A labeled pin flag or paint mark will be used to mark
each location where a survey shot is required.The locations will be numbered sequentially for each individual utility line.
For example,if there are 10 shots required on water line WI,the points will be numbered W 1-1 through W 1-10.
Locating Procedures
Subconsultant will utilize non-destructive vacuum excavation equipment to excavate test holes at the required locations_
Due to the risk of damage, Subconsultant will not attempt to probe or excavate test holes on any AC water lines unless
ASO to AA to MPSA(rev 5/20/14) 1
DocuSign Envelope ID:94FBC5A9-FA3B-4D92-B62B-2CF6561822AD
approval is obtained from Meritage in advance.Once each utility is located,Subconsultant will record the utility type,size,
material,depth to top,and general direction.Each test hole will be assigned a unique ID number and will be marked with a
nail/disk.The test-hole ID number and other pertinent utility information will be painted at each test-hole location.
It is assumed that all test holes will be in non-paved areas and are accessible to truck-mounted equipment,and that routine
traffic control(cones and free standing signage,etc.)will be required during the performance of the QL"A"SUE work.
Deliverables
Subconsultant shall produce a utility file,in AutoCAD format,depicting the type and horizontal location of the designated
utilities. The size of each utility will be presented in the utility file if this information is indicated on available record
drawings. Subconsultant shall also provide a summary sheet of the test hole coordinate data and depth information.
Consultant shall provide Subconsultant with base map/topographic files for use in preparing the utility file.
IL EFFECTIVE DATE OF ADDITIONAL SERVICES/COMPLETION DATE:
Effective Date:August 17,2021/Completion Date: October 31,2021
III. COMPENSATION. Meritage shall compensate Consultant for Additional Services in the following manner:
SUE Services $34,600.00
Coordination Services $3,460.00
Total: $38,060.00
IV. SUMMARY:
Original AA Amount: $207,000.00
Previous/Accumulative ASOs: $0.00
This ASO: $38,060.00
Total To Date: $245,060.00
V. In the event that all or any portion of Consultant's proposal or form agreement is attached to this ASO, the parties
acknowledge and agree that such item is attached hereto solely to set forth the scope of Additional Services,compensation
to be paid and/or expenses to be reimbursed to Consultant for the Additional Services,and/or performance schedule for the
Additional Services, and no other terms, provisions or conditions of such proposal or Consultant's form agreement shall
have any force or effect whatsoever.
IN WITNESS WHEREOF,the parties hereto have executed this ASO effective as of the date first written above.
"Meritage" "Consultant"
MERITAGE HOMES OF TEXAS,LLC,a(n)Arizona limited GOODWIN&MARSHALL,INC.,a(n)Texas corporation
liability company(Dallas/Fort Worth Division)
DocuSigned by:
E_�Gcu
DSigned by: d"����By: By: f-AA 9Clruen w;7EEAF6AEG56460... Edward EC art
Name:ROBERT HALL Name:
Its:LAND DEVELOPMENT MANAGER Its: President
FWVA,
ocuSigned by:
By: (hk
Name: STEVEN COOK
Its:DIRECTOR OF LAND DEVELOPMENT
ASO to AA to WSA(rev 5/20/14) 2
DocuSign Envelope ID:3D7ED343-B84C-42B0-8E21-697AFBC7EB99
ADDITIONAL SERVICES ORDER NO.002 TO AA NO.76652395
MERITAGE: MERITAGE HOMES OF TEXAS,LLC
CONSULTANT: GOODWIN&MARSHALL,INC.
PROJECT NAME: Chisholm Trail Ranch
THIS ADDITIONAL SERVICES ORDER("ASO")TO AUTHORIZATION AGREEMENT("AA")is made and entered
into as of February 7, 2022, by and between"Meritage" and "Consultant" (each as defined below), in connection with the AA
dated July 26, 2021, for the Project(s) identified in the AA 76652395. Initially capitalized words used in this ASO and not
otherwise defined herein shall have the meaning as defined in the AA and this ASO is hereby incorporated into the AA.All of the
terms,provisions and conditions of the ASO that are not expressly amended by this ASO shall remain in full force and effect. In the
event of any conflict between the AA and this ASO,the provisions of this ASO shall control.
L DESCRIPTION OF ADDITIONAL SERVICES:
Consultant has been requested to revise the alignment of the sewer trunk main to avoid the US Army Corps of Engineers
property at the direction of the Corps. Consultant will coordinate with the City of Fort Worth to revise the plans to
accommodate the revised alignment.The services outlined herein include the additional field staking and easement related
services necessary along the new properties impacted by this proposed realignment.
IL EFFECTIVE DATE OF ADDITIONAL SERVICES/COMPLETION DATE:
Effective Date: January 28,2022/Completion Date:April 30,2022
III. COMPENSATION. Meritage shall compensate Consultant for Additional Services in the following manner:
Revised Sewer Trunk Main Plans,City Meetings,Meritage Meetings,and Design Alternatives $14,875.00
New Easement Documentation $1,300.00
New and Ongoing Acquisition Services $1,900.00
Revised Alignment Staking Services $1,150.00
Total: $19,225.00
IV. SUMMARY:
Original AA Amount: $207,000.00
Previous/Accumulative ASOs: $38,060.00
This ASO: $19,225.00
Total To Date: $264,285.00
V. In the event that all or any portion of Consultant's proposal or form agreement is attached to this ASO, the parties
acknowledge and agree that such item is attached hereto solely to set forth the scope of Additional Services,compensation
to be paid and/or expenses to be reimbursed to Consultant for the Additional Services,and/or performance schedule for the
Additional Services, and no other terms, provisions or conditions of such proposal or Consultant's form agreement shall
have any force or effect whatsoever.
IN WITNESS WHEREOF,the parties hereto have executed this ASO effective as of the date first written above.
"Meritage" "Consultant"
MERITAGE HOMES OF TEXAS,LLC,a(n)Arizona limited GOODWIN&MARSHALL,INC.,a(n)Texas corporation
liability company(Dallas/Fort Worth Division)
DocuSigned by: DocuSigned by:
XWA4 fry
By: B!' " ' By:
Edward Eckart
Name:ANDREW HAMILTON Name:
Its:LAND DEVELOPMENT MANAGER Its: President
By: EDocuSigned by:
sfwt vu Ch&
Name: STEVEN COOK
Its:DIRECTOR OF LAND DEVELOPMENT
ASO to AA to MPSA(rev 5/20/14) 1
DocuSign Envelope ID:4C286072-4DE7-4996-B8C3-06AEE25956F3
Project Name:Chisholm Trail
Contract No.: 76652395
Vendor Name:Goodwin&Marshall/Vendor No.:138610
Cost Code: 10130,10155/Job No.:61129649950
ADDENDUM TO AUTHORIZATION AGREEMENT
THIS ADDENDUM TO AUTHORIZATION AGREEMENT("Addendum")is made and entered into as of
March 15, 2022, (the "Effective Date"), by and between Goodwin & Marshall, Inc ("Consultant") and Meritage
Homes of Texas,LLC("Meritage")(each as defined below),and serves as an Addendum to that certain Authorization
Agreement dated July 26, 2021, concurrently herewith between Meritage and Consultant (the "Authorization
Agreement")with respect to that Project commonly known as "Chisholm Trail",which Authorization Agreement
is entered into in connection with,and upon and subject to the terms and conditions of,that certain Master Professional
Services Agreement between Meritage and Consultant dated July 18, 2012 (the "Master Agreement"). This
Addendum shall modify and amend the Authorization Agreement with respect to the Project and the Master
Agreement, in so far as it is applicable to the Authorization Agreement and the Project only (collectively, the
"Agreement"),but not as to any other authorization agreement entered into in connection with the Master Agreement,
the Master Agreement as it applies to such other authorization agreement(s),or the Master Agreement as a whole.
NOW THEREFORE,for good and valuable consideration,the receipt and sufficiency of which are hereby
acknowledged,the parties hereby agree as follows:
1. Defined Terms. Initially capitalized terms used and not otherwise defined in this Addendum shall
have the meanings given to them in the Master Agreement.
2. Basic Services. The following shall be added to the Basic Services:
"The City of Fort Worth shall have an ownership right in the plans outlined in this Agreement. In the event
the Agreement between Meritage and the City of Fort Worth covering the work set forth herein is terminated,
the City shall have the right to enter into an agreement with G&M to complete the design.
CONSULTANT SHALL INDEMNIFY AND HOLD HARMLESS THE CITY OF FORT WORTH
AGAINST LIABILITY FOR ANY DAMAGE CAUSED BY OR RESULTING FROM AN ACT OF
NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR
FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE CONSULTANT
OR CONSULTANT'S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY
OVER WHICH THE CONSULTANT EXERCISES CONTROL.
The City of Fort Worth shall have the right until the expiration of three(3)years after final payment under
this Agreement,to have access to and the right to examine any directly pertinent books,documents,papers
and records of Consultant involving transactions relating to the Agreement for Public Water Sewer Line
Upsizing and the agreement between Meritage and Consultant. Consultant agrees that the City shall have
access during normal working hours to all necessary Consultant facilities and shall be provided adequate and
appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City
shall give Consultant reasonable advance notice of intended audits.
The City of Fort Worth shall be listed as an additional insured on Consultant's insurance policy."
3. Confidentiality. The existence and terms of this Addendum and any related discussions and
correspondence shall remain confidential and shall not be disclosed by Consultant to any other party unless required
by law or to the extent required to enforce the terms of this Addendum.
4. Scope of Addendum. All of the terms,provisions and conditions of the Agreement that are not
expressly amended by this Addendum shall remain in full force and effect. In the event of any conflict between the
Agreement and this Addendum,the provisions of this Addendum shall control.
Addendum to Authorization Agreement No.76652395 1
DocuSign Envelope ID:4C286072-4DE7-4996-B8C3-06AEE25956F3
IN WITNESS WHEREOF,the parties hereto have executed this Addendum as of the date first written above.
"Meritage"
MERITAGE HOMES OF TEXAS,LLC,a(n)Arizona GOODWIN & MARSHALL, INC., a(n) Texas
limited liability company(Dallas/Fort Worth corporation
Division)
DocuSi9ned by D—Siq-d by:
By: Ay. k h&" By: ed d,d U.
Name: AMMMOFFINDEN Name: PTW Eckart
Its: DIVISION PRESIDENT Its: President
NOT BINDING UNLESS EXECUTED BY MERITAGE COUNSEL
By: r-D—Signed by:
l A141I 1A1 M e.jjw.
OAW797929CDd92.
Name: MATTHEW B.MEEHAN
Its: VP CONTRACTS&RISK MANAGEMENT
Addendum to Authorization Agreement No.76652395 2
EXHIBIT C TO DESIGN PROCUREMENT AGREEMENT
LEVEL OF EFFORT
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Design Procurement Agreement for Chisholm Trail Ranch Off-site Sewer Page 16o18
M£rita£anmes of Texas,LLC
a9a gs9 e 3,w 2
EXHIBIT D TO DESIGN PROCUREMENT AGREEMENT
INSURANCE
1.01 Du . to Acquire and Maintain. Developer shall ensure that a policy or policies of insurance
are procured and maintained at all times, in full force and effect, to provide coverage of the types
and amounts specified herein, naming the City as an additional insured as set forth herein, and
covering all public risks related to this Agreement. The insurance required hereunder may be met
by a combination of self-insurance and primary and excess policies.
1.02 Types and Amounts of Coverage Required
a. Commercial General Liability:
(1) $1,000,000.00 per occurrence, $2,000,000.00 aggregate, including
coverage for the following: (i)Premises Liability; (ii)independent contractors; (iii)
products/completed operations; (iv) personal injury; (v) contractual liability; (vi)
explosion, collapse, and underground property damage
b. Property Damage Liability:
(1) $1,000,000.00 per occurrence
C. Umbrella Policy
(1) $5,000,000.00
d. Environmental Impairment Liability (EIL) &/or Pollution Liability
(1) $2,000,000 per occurrence
(2) $5,000,000 aggregate
e. Automobile Liability:
(1) $1,000,000.00 Each accident on a combined single-limit basis
f. Worker's Compensation:
(1) As required by law
g. Employer's Liability:
(1) $1,000,000.00 per accident
1.03 Revisions to Required Coverage. At the reasonable recommendation of the City's Risk
Design Procurement Agreement for Chisholm Trail Ranch Off-site Sewer Page 17 of 18
Meritage Homes of Texas,LLC
4893-1089-8178,v.2
Manager, the City may at any time revise insurance coverage requirements and limits reasonably
required by this Agreement. Company agrees that within thirty (30) days of receipt of written
notice from the City, all such revisions requested by the City will be implemented.
1.04 Underwriters and Certificates. The insurers for all policies must be licensed and approved
to do business in the State of Texas. Except for workers' compensation, all insurers must have a
minimum rating of A: VII in the current A. M. Best Key Rating Guide or have reasonably
equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is
below that required, prior written approval of the City's Risk Management Division is required.
Developer shall ensure that City is furnished with certificates of insurance signed by the respective
companies as proof that the types and amounts of insurance coverage required herein have been
obtained.
1.05 Deductibles. Deductible or self-insured retention limits on any line of coverage required
herein shall not exceed $25,000.00 in the annual aggregate unless the limit per occurrence or per
line of coverage, or aggregate is otherwise approved by the City.
1.06 No Limitation of Liability. The insurance requirements set forth in this section and any
recovery by the City of any sum by reason of any insurance policy required under this License
shall in no way be construed or affected to limit or in any way affect Company's liability to the
City or other persons as provided by this Agreement or law.
1.07 Umbrella or Excess Liability. If insurance policies are not written for specified coverage
limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability
shall follow form of the primary coverage.
1.08 Additional Insured. The City, its officers, employees and volunteers shall be named as an
Additional Insured on the Automobile and Commercial General Liability policies.
1.09 Waiver of Subrogation. The insurance shall include a waiver of rights of recovery
(subrogation)in favor of the City of Fort Worth.
1.10 Copies of Policies and Endorsements. City shall be entitled, upon request and without
expense, to receive copies of policies and endorsements thereto and may make any reasonable
requests for deletion or revision or modifications of particular policy terms,conditions,limitations,
or exclusions in order to comply with the requirements of this Agreement except where policy
provisions are established by law or regulations binding upon either of party or the underwriter on
any such policies.
1.11 Certificate of Insurance. Developer shall submit to the City a certificate of insurance
evidencing all required insurance coverage and any applicable endorsements.
Design Procurement Agreement for Chisholm Trail Ranch Off-site Sewer Page 18 of 18
Meritage Homes of Texas,LLC
4893-1089-8178,v.2
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 03/08/22 M&C FILE NUMBER: M&C 22-0175
LOG NAME: 60CTR OFFSITE SEWER
SUBJECT
(CD 6)Authorize Execution of Design Procurement Agreement with Meritage Homes of Texas, LLC,with City Participation in the Amount Not to
Exceed$200,856.60, for Engineering Design for the Extension of Chisholm Trail Ranch Offsite Sanitary Sewer Main Located in South West Fort
Worth, and Adopt Attached Appropriation Ordinance to Effect a Portion of Water's Contribution to the Fiscal Years 2022-2026 Capital
Improvement Program
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the execution of a design procurement agreement with Meritage Homes of Texas, LLC, with City participation in the amount not to
exceed$200,856.60 for the engineering design for extending of a Chisholm Trail Ranch offsite sanitary sewer main located in south west
Fort Worth; and
2. Adopt the attached appropriation ordinance adjusting estimated receipts and appropriations in the Water and Sewer Bond 2017A Fund, in
the amount of$200,857.00 by decreasing estimated receipts and appropriations in the Unspecified project(City Project No. UNSPEC)and
increasing estimated receipts and appropriations in the Community Facilities Agreement Bucket programmable project(City Project
NO.P00001) by the same amount, for the purpose of funding the Design Procurement Agreement—Chisholm Trail Ranch Offsite Sewer
project(City Project No.103610)and to effect a portion of Water's contribution to the Fiscal Years 2022-2026 Capital Improvements
Program.
DISCUSSION:
The purpose of this Mayor and Council Communication(M&C) is for the City to participate with Meritage Homes of Texas, LLC, in the engineering
design cost for extension of offsite sanitary sewer. The project will serve Chisholm Trail Ranch development located west of South Freeway and
north of McPherson Boulevard. The City is participating in the project to oversize the sewer main to provide additional capacity for future growth
within the basin. The cost for the project is estimated to be allocated at 23.8%for Meritage Homes of Texas, LLC and 76.2%for the City.
The estimated fee for the City's portion of the engineering design, topographic survey, easement document preparation, construction documents,
and public bidding is$200,856.60.
The table shows the cost sharing breakdown for engineering design cost between Meritage Homes of Texas, LLC and the City.
Cost Sharing Breakdown Amount
Meritage Homes of Texas, LLC(24%) $63,428.40
City of Fort Worth(76%) $200,856.60
Total Engineering Design Cost $264,285.00
*Amounts rounded for presentation purposes.
Meritage Homes of Texas, LLC, has selected Goodwin and Marshall Inc., as the engineering consultant to perform the design of the project. Staff
concurs that the fees charged by Goodwin and Marshall, are fair and reasonable for the work to be performed. The engineering design will be
reviewed through the City's Infrastructure plan review process.
It is the practice of the Water Department to appropriate its Capital Improvement Program plan throughout the fiscal year, instead of within the
annual budget ordinance, as projects commence, additional funding needs are identified, and to comply with bond covenants. The actions in the
M&C will appropriate funds in support of the Water's portion of the City of Fort Worth's Fiscal Years 2022-2026 Capital Improvement Program, as
follows:
Capital Revised
Project FY2022 CIP Budget Change
Fund Name Appropriations Authority (Increase/Decrease) FY2022
Name Budget
I56011- 103610-
Water& CFA
Chisholm This
Bon Sewer Trail $0.00 M&C $200,857.00 $200,857.00
2017A Ranch
Fund Offsite
Sewer
Govt
Community
Facilities P00001 $1,100,000.00
Ag mt-
30111
CFW
Developer- P00001 $6,000,000.00 $7,300,857.00
Fund
30114
Funding for the Design Procurement Agreement-Chisholm Trail Ranch(DPA)as depicted in the table below.
Fund Existing Additional Project Total
Appropriations Appropriations
56011-Water&Sewer $0.00 $200,857.00$200,857.00
Bond 2017A Fund
Project Total $0.00 F $200,857.00$200,857.00
*Numbers rounded for presentation purposes.
Funding is currently available in the Unspecified-All Funds project within the Water/Sewer Bond 2017A fund for the purpose of funding the CFA-
Chisholm Trail Ranch Offsite Sewer project.
Upon completion of the design,the construction of the project will be publicly bid. Staff will present an M&C to the City Council seeking approval for
the City to enter into a Community Facility Agreement with City participation for the construction of the project.
This project is located in COUNCIL DISTRICT 6
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are currently available in the Unspecified-All Funds project within the Water&Sewer Bond 2017A
Fund and upon approval of the above recommendation and adoption of the attached appropriation ordinance, funds will be available in the Water
&Sewer Bond 2017A Fund for the CFA Bucket programmable project to support the approval of the above recommendation and execution of the
agreement. Prior to an expenditure being incurred,the Water Department has the responsibility of verifying the availability of funds.
Submitted for City Manager's Office by: Dana Burghdoff 8018
Originating Business Unit Head: Chris Harder 5020
Additional Information Contact: Vishal Sood 8055
Expedited