ESBD_567617_1791926589019_EXHIBIT D SAMPLE CONTRACT.pdf

PROFESSIONAL SERVICES AGREEMENT

This Professional Services Agreement (the “Agreement”) is between Mason County, Texas, a political subdivision of the State of Texas (the “County”), and [CONTRACTOR] (the “Contractor”). County and Contractor are hereinafter referred to either individually as the “Party,” or collectively as the “Parties.” The Parties hereto have severally and collectively agreed and by the execution of this Agreement are bound to the mutual obligations and to the performance and accomplishment of the tasks described herein.

RECITALS

WHEREAS, the County issued a solicitation seeking professional services to develop a Federal Emergency Management Agency (FEMA)-approved Hazard Mitigation Action Plan Update (HMAP);

WHEREAS, Contractor submitted a proposal in response and was selected for award;

WHEREAS, the County desires to retain Contractor to perform the services described in this Agreement in accordance with the terms and conditions herein; and

WHEREAS, Contractor agrees to provide all technical and professional expertise, knowledge, management, and other resources required for producing a FEMA-approved HMAP for the County.

NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the Parties agree as follows:

1. RESPONSIBILITIES OF THE PARTIES.

1.1. STATEMENT OF WORK; RESPONSIBILITIES OF CONTRACTOR. The Contractor shall perform the

Services described in the Statement of Work attached hereto as Exhibit ___ (the “Statement of Work”), which is incorporated herein by reference as if fully set forth. The Statement of Work provides detailed scope, tasks, and deliverable requirements for this Project.

Without limiting or modifying the requirements set forth in the Statement of Work, and in order to summarize certain core obligations, the Contractor shall:

A. Be solely responsible for the professional quality, technical accuracy, timeliness, and coordination of all designs, drawings, documents, estimates, specifications, reports, studies, and other materials prepared or furnished under this Agreement (collectively, the “Project Documents”), as well as all consulting and related services performed hereunder (the “Services”).

B. Perform and deliver the Project Documents and Services in strict compliance with the terms, covenants, and conditions of this Agreement and in accordance with all applicable federal, state, and local laws, statutes, ordinances, rules, regulations, and officially adopted standards in effect at the time the Services are performed.

C. Coordinate with the County to schedule and conduct a minimum of one (1) planning kickoff meeting, three (3) local planning team meetings, three (3) public planning workshops, and three (3) public meetings. The Contractor shall prepare all agendas, presentation materials, notices, and supporting documentation for such meetings.

D. Facilitate the formation and operation of a hazard mitigation planning committee and maintain a structured document and information tracking system to manage requested data, meeting records, and plan development materials.

E. Develop and implement a public involvement strategy, including preparation of public and stakeholder presentations and development of a public survey designed to solicit meaningful input for incorporation into the HMAP.

F. Prepare and distribute capability assessment materials to the County and participating jurisdictions and review existing plans, studies, reports, and technical information for incorporation into the HMAP, as appropriate.

G. Conduct a comprehensive hazard analysis and risk and vulnerability assessment for the HMAP, including data collection, development of data worksheets, identification of potential mitigation measures, assessment of local capabilities, and calculation of hazard loss estimates, as applicable.

H. Facilitate identification and prioritization of hazard mitigation strategies and actions for inclusion in the HMAP.

I. Develop the format and structure of the HMAP; prepare and draft all required sections of the HMAP;

and compile and maintain documentation of meetings and planning activities necessary to support plan certification and approval.

J. Submit a preliminary draft of the HMAP to the County for review and comment; revise the HMAP as necessary; and, upon County authorization, submit the draft HMAP to the Texas Division of Emergency Management (“TDEM”) for review.

K. Complete the applicable plan review tools and address all comments or required revisions from TDEM. Following TDEM approval and submission to FEMA, revise the HMAP and associated review documentation as required to obtain FEMA approval.

L. Upon final FEMA approval, provide the County with an electronic copy of the approved HMAP in an agreed-upon digital format suitable for distribution and record retention.

1.2. RESPONSIBILITIES OF THE COUNTY. The County shall provide cooperation, coordination, and support necessary for the Contractor to perform the Services. At a minimum, the County shall:

A. Designate a primary point of contact to serve as the County’s authorized representative for purposes of day-to-day coordination under this Agreement. The designated representative shall be responsible for facilitating communication between the Contractor and County departments, consolidating and transmitting County comments on draft deliverables, coordinating internal review processes, and providing timely decisions, approvals, and direction necessary to avoid delay in the performance of the Services.

B. Provide contact information for department heads, staff, elected officials, and other potential Planning Team members, and distribute meeting notices prepared by the Contractor regarding upcoming meetings and workshops.

C. Establish, in coordination with the Contractor, the dates, times, and locations of all required meetings and workshops, including public meetings.

D. In conjunction with the Contractor, compile and maintain a list of stakeholders with an interest in the

HMAP and provide notice of meetings to such stakeholders.

E. Advertise all required public and stakeholder meetings related to the HMAP on the County’s official website and/or in the legal notice section of a newspaper of general circulation, as applicable.

F. Furnish or make available a projector and screen suitable for presentations at each meeting. If such equipment will not be available, the County shall notify the Contractor in advance so that alternate arrangements may be made.

G. Make available to the Contractor all pertinent and reasonably available data necessary for preparation of the HMAP, including but not limited to:

• Available GIS data and mapping files;

• Information regarding past mitigation activities or grant-funded projects, including project descriptions, dates, funding amounts, and completion status; and

• Current status documentation for the National Flood Insurance Program (NFIP), if applicable.

H. Review documents, draft materials, and other submissions provided by the Contractor and provide comments, approvals, or requested revisions in a timely manner so as not to cause unreasonable delay in the progress of the Services.

I. Be responsible for formally adopting the Hazard Mitigation Action Plan by resolution or other legally required action following receipt of FEMA Approval Pending Adoption (APA) status. Upon request, the Contractor shall provide a sample adoption resolution for the County’s consideration.

J. Provide, at the County’s expense, all services, information, notices, advertising, and other support required under this Section. The County shall use reasonable efforts to ensure the accuracy of information provided to the Contractor and shall promptly notify the Contractor of any known inaccuracies or material omissions.

K. Retain sole responsibility for grant administration and management, including but not limited to:

• Preparation and submission of required quarterly or periodic reports;

• Review and processing of contracts and invoices;

• Preparation and submission of reimbursement requests with supporting documentation;

• Collection and maintenance of in-kind contribution documentation from participating jurisdictions, if applicable; and

• Preparation and organization of files and documentation necessary for grant closeout.

2. TERM.

A. Contractor agrees to commence work on the day of execution of this Agreement and continue work until final FEMA approval of the HMAP.

B. This Agreement may be extended upon the execution of an additional written Letter of Agreement signed by Contractor and County.

C. Contractor may modify the time of performance upon written approval from County.

3. INVOICES AND COMPENSATION.

A. The County agrees to pay Contractor for the satisfactory performance of services in an amount not to exceed $_____________________, as detailed in Exhibit ____.

B. Contractor and the County shall negotiate mutually agreeable terms and compensation for completing additional services beyond those stated in the Agreement, should the need arise.

C. Contractor shall invoice the County monthly via email. Each invoice shall include a description of work completed.

D. Contractor will invoice the County up to 90 percent (%) of the contract amount. A final invoice will be submitted upon approval of the HMAP by FEMA for 10 percent (%) of the entire contract amount.

E. Payment shall be made in accordance with Chapter 2251 of the Texas Government Code (“Texas Prompt

Payment Act”), subject to County’s receipt and approval of proper invoices. If the County objects to any itemized entries on an invoice, the County will promptly notify Contractor of the objection(s) and payment for those specific entries may be delayed until the objection(s) are resolved.

F. No expenses shall be reimbursed unless specifically authorized in Exhibit ____ or approved in writing in advance.

4. OWNERSHIP OF MATERIALS. All Project Documents, reports, plans, studies, data, drawings, deliverables, and other materials prepared, developed, or furnished by the Contractor under this Agreement (collectively, the “Work Product”) shall become the sole property of the County upon submission, whether or not the project is completed or the Agreement is terminated.

The County shall have the right to use, reproduce, modify, or distribute the Work Product for any purpose related to its governmental operations, including future updates to the Hazard Mitigation Plan, without additional compensation to the Contractor.

The Contractor may retain copies of the Work Product for its internal records, but shall not use the Work Product for any other project or purpose without the prior written consent of the County.

5. INDEPENDENT CONTRACTOR. Contractor is an independent contractor and not an agent, employee, or representative of the County. Nothing in this Agreement shall be construed to create a joint venture or partnership.

6. COMPLIANCE WITH LAWS. Contractor shall comply with all applicable federal, state, and local laws, regulations, ordinances, and rules in the performance of services under this Agreement.

7. RECORDS AND ACCESS. Contractor shall maintain complete and accurate records of all matters related to the services performed for a period of four (4) years after final payment. The Contractor agrees to provide the County, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this Agreement for the purposes of making audits, examinations, excerpts, and transcriptions.

The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

8. DELIVERABLES, REVIEW, AND REMEDIES.

8.1. COUNTY REVIEW AND CORRECTION. The County may review all Project Documents and Services and provide written notice of any defective, incomplete, or nonconforming deliverables. The Contractor shall correct, replace, or re-perform such deliverables at its own cost to meet the Agreement requirements.

8.2. ACCEPTANCE OF NONCONFORMING DELIVERABLES. In lieu of requiring immediate correction, the County may elect to accept defective or nonconforming deliverables. If acceptance occurs prior to final payment, the County and Contractor shall agree in writing on an equitable reduction in compensation to reflect diminished value. If acceptance occurs after final payment, the Contractor shall promptly refund the agreed-upon amount. Acceptance shall not waive the County’s right to require correction or replacement or any warranty obligations.

8.3. DOCUMENTATION AND PAYMENT. The Contractor shall maintain records of all corrections or revisions. Payment may be withheld or adjusted to reflect nonconforming deliverables, as described above, until satisfactory resolution.

9. CURE, BREACHES, AND TERMINATION.

9.1. OPPORTUNITY TO CURE. In the event that the Contractor fails to perform a contractual requirement or materially breaches any term or condition, the County may issue a written cure notice. The Contractor may have a period of thirty (30) days in which to cure. The County is not required to allow the Contractor to cure defects if the opportunity for cure is not feasible as determined solely within the discretion of the County.

Time allowed for cure shall not diminish or eliminate the Contractor’s liability for liquidated or other damages, or otherwise affects any other remedies available against the Contractor under the Agreement or by law.

9.2. TERMINATION PROVISIONS.

A. The County may terminate this Agreement, or any portion of it, by serving a notice of termination to the contractor, which shall be effective on the date of the receipt of the notice of termination. The notice shall state whether the termination is for convenience of the County or for default of the contractor.

B. If the termination is for default, the notice shall state the manner in which the contractor has failed to perform the requirements of the Agreement and identify a reasonable time period for the contractor to cure such default or provide evidence sufficient to prove to the County’s reasonable satisfaction that such default does not, in fact, exist.

C. The County’s performance is contingent upon the availability and appropriation of sufficient funds. If funds are not appropriated or are otherwise unavailable, the County may terminate this Agreement with no further liability upon written notice to Contractor.

D. Upon termination of this Agreement, regardless of the reason for termination, both Parties shall be released from any further obligations under this Agreement, except for those obligations that expressly survive termination, including but not limited to confidentiality, indemnification, and payment for services rendered up to the effective date of termination. In the event of termination, the Contractor shall promptly return any property or materials belonging to the County, and both Parties shall settle any outstanding payments or accounts due. Termination shall not affect any rights or remedies that either Party may have accrued prior to the date of termination.

10. INSURANCE AND INDEMNITY.

A. The Contractor agrees to maintain, at its own expense, sufficient insurance coverage to adequately protect against all risks arising from the performance of this Agreement and to list the County as an additional insured on such policies. Upon request, the Contractor shall provide certificates of insurance or waivers of subrogation to the County as evidence of such coverage.

B. TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR SHALL DEFEND,

INDEMNIFY, AND HOLD HARMLESS THE COUNTY AND ITS OFFICERS, EMPLOYEES, AND

AGENTS FROM ANY AND ALL CLAIMS, DAMAGES, OR LIABILITIES ARISING OUT OF

CONTRACTOR’S PERFORMANCE UNDER THIS AGREEMENT.

11. ASSIGNMENT AND SUBCONTRACTING. Contractor may not assign, transfer, or subcontract any rights or obligations under this Agreement without the County’s prior written consent.

12. DISPUTE RESOLUTION. Any dispute, claim, or controversy arising out of or relating to this Agreement shall be resolved in accordance with Chapter 2009 of the Texas Government Code. The Parties agree that prior to initiating any legal action, they will engage in the process specified under said chapter, including, but not limited to, any applicable mediation, negotiation, or other procedures required under Texas law. Should the dispute not be resolved through such methods, the Parties may pursue other remedies available under Texas law.

12. NOTICES. All notices, demands, consents, approvals, or other communications required or permitted under this Agreement (collectively, “Notices”) shall be in writing and shall be deemed given: (i) when delivered in person;

(ii) upon receipt if sent by a nationally recognized overnight courier service; (iii) upon deposit in the United States Mail, postage prepaid, certified or registered mail, return receipt requested; or (iv) upon confirmation of delivery if sent by email, provided that a duplicate copy is also sent by one of the other methods listed above within two

(2) business days. Notices shall be addressed as follows:

County: Mason County, TX PO Box 1726 Mason, TX 76856

Sheree Hardin County Judge Email: sheree.hardin@co.mason.tx.us Phone: (325) 347-5556

Contractor: CONTRACTOR NAME

ADDRESS LN 1

ADDRESS LN 2

NAME

TITLE

Email:

Phone:

13. STATE OF TEXAS CONTRACT PROVISIONS. The Contractor agrees to comply with all applicable contract clauses required by the State of Texas, as outlined in Exhibit _____. The Contractor acknowledges that these clauses are incorporated into this Agreement by reference and shall be binding upon the Contractor. The Contractor further agrees to adhere to all requirements and obligations imposed by the State of Texas with respect to the performance of this Agreement, including, but not limited to, compliance with all applicable laws, rules, regulations, and policies.

14. FEDERAL CONTRACT PROVISIONS.

14.1. CLEAN AIR ACT. The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.

The contractor agrees to report each violation to the County and understands and agrees that the County will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.

The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.

14.2. FEDERAL WATER POLLUTION CONTROL ACT. The contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq.

The contractor agrees to report each violation to the County and understands and agrees that the County will, in turn, report each violation as required to assure notification to the Texas Division of Emergency Management, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.

The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.

14.3. SUSPENSION AND DEBARMENT. This contract is a covered transaction for purposes of 2 C.F.R.

Part 180 and 2 C.F.R. Part 3000. As such, the contractor is required to verify that none of the contractor’s mailto:sheree.hardin@co.mason.tx.us principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).

The contractor must comply with 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, and must include a requirement to comply with these regulations in any lower-tier covered transaction it enters.

This certification is a material representation of fact relied upon by the County. If it is later determined that the contractor did not comply with 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, in addition to remedies available to the County, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.

The bidder or proposer agrees to comply with the requirements of 2 C.F.R. Part 180, subpart C and 2 C.F.R.

Part 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower-tier-covered transactions.

14.4. BYRD ANTI-LOBBYING AMENDMENT. Contractors who apply or bid for an award of more than $100,000 shall file the required certification. Each tier certifies to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the federal agency.

14.5. PROCUREMENT OF RECOVERED MATERIALS. In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired—

a) Competitively within a timeframe providing for compliance with the contract performance schedule;

b) Meeting contract performance requirements; or

c) At a reasonable price.

Information about this requirement, along with the list of EPA-designated items, is available at Comprehensive Procurement Guideline (CPG) Program | US EPA. The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.

14.6. PROHIBITION ON CONTRACTING FOR COVERED TELECOMMUNICATIONS

EQUIPMENT OR SERVICES.

a) Definitions. As used in this clause, the terms backhaul; covered foreign country; covered telecommunications equipment or services; interconnection arrangements; roaming; substantial or essential component; and telecommunications equipment or services have the meaning as defined in FEMA Policy 405-143-1, Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services, as used in this clause—

b) Prohibitions.

https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program

1) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after Aug.13, 2020, from obligating or expending grant, cooperative agreement, loan, or loan guarantee funds on certain telecommunications products or from certain entities for national security reasons.

2) Unless an exception in paragraph (c) of this clause applies, the contractor and its subcontractors may not use grant, cooperative agreement, loan, or loan guarantee funds from the Federal Emergency Management Agency to:

i. Procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system;

ii. Enter, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system;

iii. Enter, extend, or renew contracts with entities that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or

iv. Provide, as part of its performance of this contract, subcontract, or other contractual instrument, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.

c) Exceptions.

1) This clause does not prohibit contractors from providing—

i. A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or

ii. Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.

2) By necessary implication and regulation, the prohibitions also do not apply to:

i. Covered telecommunications equipment or services that:

a. Are not used as a substantial or essential component of any system; and

b. Are not used as critical technology of any system.

ii. Other telecommunications equipment or services that are not considered covered telecommunications equipment or services.

d) Reporting requirement.

1) ) In the event the contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the contractor is notified of such by a subcontractor at any tier or by any other source, the contractor shall report the information in paragraph (d)(2) of this clause to the recipient or subrecipient, unless elsewhere in this contract are established procedures for reporting the information.

2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause:

i. Within one business day from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand;

model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.

ii. Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause:

Any further available information about mitigation actions undertaken or recommended.

In addition, the contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services

e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e), in all subcontracts and other contractual instruments.

14.7. DOMESTIC PREFERENCES FOR PROCUREMENTS. The Contractor should, to the greatest extent practicable and consistent with law, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. This includes, but is not limited to, iron, aluminum, steel, cement, and other manufactured products.

For purposes of this clause:

Produced in the United States means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

15. MISCELLANEOUS.

15.1. ENTIRE AGREEMENT. This Agreement and all exhibits and attachments constitute the entire understanding between the Parties and supersede all prior representations and agreements.

15.2. AMENDMENTS. This Agreement may be amended only by a written instrument executed by authorized representatives of both Parties. No pre-printed, standard, or additional terms contained in any invoice, confirmation, correspondence, or other document issued by the Contractor shall modify, supersede, or otherwise alter the terms, covenants, or conditions of this Agreement unless expressly agreed to in writing by the County.

15.3. NO WAIVER. Failure to enforce any provision shall not constitute a waiver of the right to do so later.

15.4. SEVERABILITY. If any provision of this Agreement is held invalid, the remainder shall remain enforceable. The Parties further agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision.

15.5. CONFLICTS; ORDER OF PRECEDENCE. In the event of any conflict, inconsistency, or ambiguity between the provisions of this Agreement and any exhibit, attachment, addendum, or incorporated document, the following order of precedence shall govern, unless expressly stated otherwise:

1. This Agreement, including any written amendments duly executed by both Parties;

2. Any grant agreement or funding conditions applicable to the Project;

3. Exhibits and attachments to this Agreement (including the Statement of Work);

4. The Request for Proposals Document;

5. The Contractor’s proposal.

To the extent a conflict exists between federal or state grant requirements and any provision of this Agreement, applicable federal or state law and grant conditions shall control.

Any ambiguity in this Agreement shall not be construed against either Party as the drafter. The Parties agree that this Agreement shall be interpreted to give effect to its overall intent and to ensure compliance with applicable laws and funding requirements.

SIGNATURES

IN WITNESS WHEREOF, The Parties acknowledge that they have read, understand, and accept this Agreement, including any supplements or attachments, and that this Agreement constitutes the entire agreement between them and supersedes all other communications, written or oral, relating to the subject matter of the Agreement. This Agreement may be executed on counterparts and shall be binding on all Parties as if all signatures were affixed to a single Agreement. An electronic facsimile of this Agreement bearing the authorized signature of either Party shall have the same force and effect as a copy bearing an original signature.

[CONTRACTOR] MASON COUNTY, TEXAS

BY: _____________________________________ BY: ______________________________________

PRINT NAME: ____________________________ PRINT NAME: _____________________________

TITLE: __________________________________ TITLE: ____________________________________

DATE: __________________________________ DATE: ____________________________________