HomeMy WebLinkAboutAgreement A-24-186 Amend. No. 1 to Agt. 22-172 - MCWD Well Construction.pdf Agreement No. 24-186
1 CORONAVIRUS STATE LOCAL FISCAL RECOVERY FUNDS
2 AMENDMENT NO. 1 TO SUBRECIPIENT AGREEMENT
3 This Amendment No. 1 to Subrecipient Agreement ("Amendment No. 1") is dated
4 April 23, 2024 and is between Malaga County Water District, a special district in the County of
5 Fresno formed under Part 2 of Division 12 of the California Water Code, with a district office located at
6 3580 South Frank Street, Fresno CA 93725 ("Subrecipient"), and the County of Fresno ("County"), a
7 political subdivision of the State of California.
8 Recitals
9 A. On March 11, 2021, the President signed into law the American Rescue Plan Act of 2021
10 ("ARPA") which established the Coronavirus State and Local Fiscal Recovery Funds ("SLFRF")
11 Program.
12 B. The Final Rule for ARPA authorizes the County to expend SLFRF for certain eligible purposes,
13 including responding to the public health emergency or its negative economic impacts from the COVID-
14 19 pandemic, including necessary investment in water infrastructure that support impacted communities
15 and improves the community's resiliency to the effects of drought.
16 C. On May 3, 2022, the County and Subrecipient entered into County agreement number 22-172
17 ("Agreement"), to assist the Subrecipient with funding the final engineering design, environmental
18 review, Department of Drinking Water permitting, construction and administration, construction review,
19 operation and maintenance manual, and project management for the construction of the new Well 5A,
20 which is necessary to maintain adequate and stable service levels, improve drinking water capacity, and
21 provide an alternative supply in case of emergency or drought in the Community of Malaga.
22 D. Subsequent to the approval of the Agreement, the Subrecipient was awarded a separate award,
23 Agreement No. 22-339 for $2,567,225, to assist the Subrecipient fund the final engineering design,
24 environmental review, Department of Drinking Water permitting, construction and administration,
25 construction review, operation and maintenance manual, and project management for the construction
26 of a new water storage tank at Well 5A, which was necessary to comply with storage requirements as
27 prescribed in California Waterworks Standards section 64554.
28
1
1 E. The Subrecipient represents that since the Agreement and the complementary Agreement 22-
2 339 were executed, both programs have completed the Design and Planning portion of their respective
3 Agreements and were simultaneously advertised to receive bids. The Subrecipient represents that the
4 apparent low and responsible bidder exceeded the grant funding provided by the Agreement and
5 Agreement 22-339. The total shortfall for the construction budget for both projects together was
6 $2,519,902. The Subrecipient represents that the reason for the shortfall was the significant escalation
7 of construction costs since the time the original funding applications were prepared and submitted to the
8 County for funding consideration.
9 G. The Subrecipient represents that there are currently no other immediate sources of funding
10 assistance, yet the need to construct the new Well 5A remains a priority between the two projects (well
11 construction and storage tank).
12 H. Subrecipient desires to modify the scope of work and the expenditure plan of the complementary
13 Agreement No. 22-339, from the construction of the new water storage tank for the Subrecipient's Well
14 5A, and instead use SLFRF provided under the complementary Agreement 22-339 to only fund the final
15 engineering and design, planning, and advertisement of a storage tank for the Subrecipient's Well 5A,
16 with a maximum compensation not to exceed $87,663.67, and reallocate the difference of
17 $2,479,561.33 to address the deficit and increase funding capacity for the urgent need to construct the
18 new Well 5A.
19 I. Funding reallocated from Agreement 22-339 into Agreement 22-172 will increase the maximum
20 compensation for the construction of the new Well 5A by $2,479,561.33, to total $4,329,561.33. The
21 Subrecipient further represents that the completed plans and supporting documents will help the
22 Subrecipient pursue other funding opportunities available to disadvantaged communities for the
23 subsequent construction of the storage tank.
24 J. The Final Rule has designated necessary investment in water infrastructure to be one that meets
25 the eligibility requirements of the Drinking Water State Revolving Fund (DWSRF) as implemented by the
26 Environmental Protection Agency (EPA); this project will continue to fall under eligible project category
27 source of the DWSRF.
28
2
1 K The Subrecipient represents that the Program would also benefit from a modification to the
2 Expenditure Plan, which would reduce the Subrecipient's administrative burden to recover allowable
3 costs for allocated line items even if they change during the construction process. A Revised
4 Expenditure Plan, as shown on the Revised Table 1-1 of Exhibit B is necessary to redefine the program
5 and memorialize the approved budget to cover the increased expenditures expected when requesting
6 new bids as the expected advantages of constructing two projects will likely change the re-bidding of the
7 Well construction project by itself.
8 L. The County and the Subrecipient desire to amend the Agreement to revise the Program's
9 Expenditure Plan and scope and reallocate unused funds from the complementary Agreement 22-339 to
10 Agreement 22-172, which will also be memorialized in a separate Amendment No. 1 to Agreement 22-
11 339 and allow the County's Administrative Officer or his/her designee to approve minor budgetary
12 modifications to the Agreement as necessary and appropriate.
13 The parties, therefore, agree as follows:
14 1. This Amendment No. 1 shall be retroactive to the Effective Date of the Agreement, May 3, 2022.
15 2. All references to "Exhibit B" in the Agreement shall be amended to refer to "Revised Exhibit B."
16 Revised Exhibit B is attached to this Amendment No. 1 and incorporated by this reference.
17 3. A portion of Subsection A of Section 13, GRANT FUNDING/COMPENSATION, of the
18 Agreement located on page 15, line 18 through page 16, line 15, is deleted and replaced with the
19 following:
20 "A. The parties understand that funding for this Agreement is SLFRF provided pursuant
21 to ARPA, codified at Title 31 CFR Part 35, and any amendments thereafter. County agrees to
22 grant Subrecipient, and Subrecipient agrees to receive such grants, up to the total SLFRF grant,
23 in an amount not to exceed four million, three hundred twenty-nine thousand, five hundred sixty-
24 one dollars and thirty-three cents ($4,329,561.33).
25 It is expressly agreed and understood that the total amount of SLFRF to be granted by
26 County to Subrecipient for the Program shall not exceed four million, three hundred twenty-nine
27 thousand, five hundred sixty-one dollars and thirty-three cents ($4,329,561.33) to construct a
28 new well site location (Well 5A), which is intended to respond to the drinking water needs of the
3
1 community, to maintain adequate service levels, and to improve drinking water capacity in the
2 Disadvantaged Community of Malaga, which is an eligible use under the Final Rule. Drawdown
3 requests for the County to make a payment shall be in accordance with the sample Drawdown
4 Request Form, attached as Exhibit B, and incorporated by this reference. Drawdowns for the
5 payment of eligible necessary expenses shall include copies of purchase orders, receipts, and
6 reimbursement requests, detailing items purchased, and expenses incurred or anticipated to be
7 incurred in support of the Program for eligible items listed in Table 1-1 of Exhibit B of this
8 Agreement.
9 Subrecipient may make drawdown requests to a maximum of twenty-five percent (25%)
10 of the Program's total budgeted amount ($4,329,561.33) for advancements to cover eligible
11 expenditures in support of the Program. The drawdown requests from Subrecipient to the County
12 shall also be accompanied by a written certification from the Subrecipient that the drawdown
13 request for payment is consistent with the amount of work scheduled to be performed or
14 anticipated to be performed with the amount of funding being requested from the County, and
15 that the drawdown request is in accordance with the Program detailed in Table 1-1 of Exhibit B
16 of this Agreement. After appropriate review and inspection of the drawdown requests, the County
17 shall make payments available to Subrecipient in a timely manner. After the first drawdown
18 request, Subrecipient may make additional subsequent drawdown requests to the County on a
19 quarterly basis (every 90 days) for eligible expenditures to be funded with the remaining balance
20 of the Program's budget in accordance with this Agreement."
21 4. A portion of Subsection A of Section 13, GRANT FUNDING/COMPENSATION, of the
22 Agreement located on page 16, lines 23 through 28, is deleted, and replaced with the following:
23 "Subrecipient shall submit documentation to the County of Fresno, County Administrative Office
24 located at 2281 Tulare, Room 304, Fresno, CA 93721, or electronically, to e-mail address
25 f-------o(a fresnocourI-- ^- . Payment by County shall be in arrears for services provided
26 during the preceding period of time, within forty-five (45) days from date of receipt, verification,
27 and approval of Subrecipient's invoice and supporting documentation by County. Requests for
28 advancement of funds for anticipated eligible expenditures shall be accompanied by a written
4
1 certification from the Subrecipient that the requested advancement is consistent with the amount
2 of work scheduled to be performed or materials to be purchased with the amount of funding
3 being requested from the County, and that the payment request is in accordance with the
4 Program, Table 1-1 of Revised Exhibit B of this Agreement, including supporting documentation
5 of such anticipated eligible expenditures. After appropriate review and inspection of the payment
6 request for advanced funding, the County shall make the payment available to Subrecipient, less
7 any amounts outstanding for which prior advanced funds have not been fully expended or
8 accounted with supporting documentation. If Subrecipient fails to comply with any provision of
9 this Agreement, County shall be relieved of its obligations for further compensation."
10 5. Section 15, MODIFICATION, of the Agreement, located on page 18, lines 11 and 12, is deleted
11 in its entirety, and replaced with the following:
12 "Any matters of this Agreement may be modified from time to time by the written consent of all
13 the parties without, in any way, affecting the remainder. Changes to line items, as set forth in
14 Revised Exhibit B, that, when added together during the term of the Agreement do not exceed
15 ten percent (10%) of the total maximum compensation payable to Subrecipient, may be made
16 with the written approval of SUBRECIPIENT and County's Administrative Officer or designee.
17 These modifications shall not result in any change to the maximum compensation amount
18 payable to Subrecipient, as described in this Agreement."
19 6. A portion of Section 17, HOLD HARMLESS, of the Agreement, located on page 18, lines 16
20 through 24, is deleted and replaced with the following:
21 "The SUBRECIPIENT shall indemnify and hold harmless and defend the County (including its
22 officers, agents, employees, and volunteers) against all claims, demands, injuries, damages,
23 costs, expenses (including attorney fees and costs), fines, penalties, and liabilities of any kind to
24 the County, the SUBRECIPIENT, or any third party that arise from or relate to the performance
25 or failure to perform by the SUBRECIPIENT (or any of its officers, agents, subcontractors, or
26 employees) under this Agreement. The County may conduct or participate in its own defense
27 without affecting the SUBRECIPIENT's obligation to indemnify and hold harmless or defend the
28 County."
5
1 7. A portion of Section 21, NOTICES, of the Agreement located on page 22, lines 25 through 28, is
2 amended to update the Subrecipient's contact information as follows:
3 SUBRECIPIENT
Malaga County Water District
4 3580 South Frank Street
5 Fresno, CA 93725
Attn: General Manager
6 8. Exhibit C —Template Quarterly Expenditure Report in the Agreement shall be amended to reflect
7
the increased maximum compensation provided added to the Agreement. "Revised Exhibit C" is
8 attached to this Amendment No. 1 and incorporated by this reference. All references to Exhibit C shall
9 be amended to instead refer to "Revised Exhibit C."
10
9. The Subrecipient represents and warrants to the County that:
11
a. The Subrecipient is duly authorized and empowered to sign and perform its obligations under
12
this Amendment No. 1.
13 b. The individual signing this Amendment No. 1 on behalf of the Subrecipient is duly authorized
14
to do so and his or her signature on this Amendment No. 1 legally binds the Subrecipient to
15
the terms of this Amendment No. 1.
16
10. The parties agree that this Amendment No. 1 may be executed by electronic signature as
17
provided in this section.
18
a. An "electronic signature" means any symbol or process intended by an individual signing this
19
Amendment No. 1 to represent their signature, including but not limited to (1) a digital
20
signature; (2) a faxed version of an original handwritten signature; or (3) an electronically
21 scanned and transmitted (for example by PDF document) version of an original handwritten
22
signature.
23
b. Each electronic signature affixed or attached to this Amendment No. 1 is deemed equivalent
24
to a valid original handwritten signature of the person signing this Amendment No. 1 for all
25
purposes, including but not limited to evidentiary proof in any administrative or judicial
26
proceeding, and (2) has the same force and effect as the valid original handwritten signature
27
of that person.
28
6
1 c. The provisions of this section satisfy the requirements of Civil Code section 1633.5,
2 subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title
3 2.5, beginning with section 1633.1).
4 d. Each party using a digital signature represents that it has undertaken and satisfied the
5 requirements of Government Code section 16.5, subdivision (a), paragraphs (1) through (5),
6 and agrees that each other party may rely upon that representation.
7 e. This Amendment No. 1 is not conditioned upon the parties conducting the transactions under
8 it by electronic means and either party may sign this Amendment No. 1 with an original
9 handwritten signature.
10 11. This Amendment No. 1 may be signed in counterparts, each of which is an original, and all of
11 which together constitute this Amendment No. 1.
12 12. The Agreement as amended by this Amendment No. 1 is ratified and continued. All provisions of
13 the Agreement and not amended by this Amendment No. 1 remain in full force and effect. When both
14 parties have signed this Amendment No. 1, the Agreement and this Amendment No. 1 together
15 constitute the Agreement.
16 [SIGNATURE PAGE FOLLOWS]
17
18
19
20
21
22
23
24
25
26
27
28
7
I The parties are signing this Amendment No. 1 on the date stated in the introductory clause.
2
3
4 Subrecipient County of Fresno
:ec�
6 Charles E. G`f rabedian Jr., President Nathan Magsig, Chairman of the Board of
Of the Bodrd of Directors Supervisors of the County of Fresno
7 Malaga County Water District
Attest:
8 Bernice E. Seidel
Clerk of the Board of Supervisors
9 Mailing Address: County of Fresno, State of California
Malaga County Water District
10 3580 South Frank Street
11 Fresno, Ca 93725 By:
12 Deputy
13 For accounting use only:
Org: 1033
14 Fund: 0026
Subclass: 91021
15 Account: 7845
16
17
18
19
20
21
22
23
24
25
26
27
28
8
Revised Exhibit B
Subrecipient Expenditure Plan
SUBRECIPIENT shall provide to COUNTY drawdown requests for payments for eligible
expenses to complete the Program. SUBRECIPIENT may make drawdown requests to a maximum of
one million, eighty-two thousand, three hundred ninety dollars and thirty-three cents ($1,082,390.33),
equivalent to twenty-five percent (25%) of the Program's total budgeted amount ($4,329,561.33), to
cover eligible expenditures in support of the Program. Drawdown requests shall be made on a quarterly
basis (every 90 days). SUBRECIPIENT shall use the Drawdown Request Form to submit detailed
drawdown requests for eligible expenses and include copies purchase orders, receipts, and
reimbursement requests, detailing items purchased, and expenses incurred or anticipated to be incurred
in support of the Program as represented in Table 1-1, below.
B-1
Revised Exhibit B (continued)*
- • Expenditure Plan
aI l
Line Items Budget
Final Design/Final Environmental Review $ 177,693.00
State, Department of Drinking Water Advertisement $ 14,668.00
Construction $ 3,500,000.00
Construction Administration $ 39,712.00
Construction Review $ 200,000.00
Operation and Maintenance Manual $ 13,970.00
Funding Administration $ 30,000.00
Project Management $ 50,000.00
Project Contingency $ 303,518.33
Totalsl $4,329,561.33
'Numbers in this table do not increase maximum funding as stated in the Agreement.
B-2
Revised Exhibit B (continued) — Payment Request Form
Date:
County of Fresno
ARPA-SLFRF Coordinator
2281 Tulare Street, Room 304
Fresno, CA 93721
Subrecipient Name; Address; UEI
Subject: Payment Request for:
Subrecipient Program Agreement No.
In accordance with the executed Agreement for the above-referenced Program, the [SUBRECIPIENT
NAME] is requesting payment of$ in support of the Program.
The [SUBRECIPIENT NAME] certifies that this request for payment is consistent with the amount of work
that has been completed to date, detailing items purchased, and expenses incurred or anticipated to be
incurred in support of the Program in accordance with the Subrecipient Expenditure Plan (Revised Exhibit
B, Table 1-1)documented in the executed Agreement, and as evidenced by the enclosed invoices and
supporting documents.
Payee Invoice#/Contract# Amount
Sincerely,
[Subrecipient Signature, title, and
Title]
Enclosure(s)
B-3
Revised Exhibit C
Template Quarterly Expenditure Report
PROGRAM
Unique Entity Identifier (UEI): Agreement Number:
Name of Entity: Program Name:
Reporting Period State Date: Reporting Period End Date:
Expenditure Category: 5, Infrastructure, Water
Total Award: $4,329,561 Remaining Balance:
EXPENDITURES
Category
Expenditures Obligations Period Period
to date ($) to date ($) Expenditures Obligations
5 Infrastructure, Water
5.13 Drinking Water: Source
TOTAL
Describe program achievements and upcoming milestones:
Quarterly Status Report, select one:
Not started
Completed less than 50 percent
Completed more than 50 percent
Completed
PROJECT STATUS
AUTHORIZED SIGNATURE
Signature Date
Prepared by
(Print name)
C-1