SAVE THE FAMILY ESG COVID AMEND 2.PDF
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Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 1 of 11 AMENDMENT NO. 2 TO THE AGREEMENT BETWEEN MARICOPA COUNTY ADMINISTERED BY ITS HUMAN SERVICES DEPARTMENT AND SAVE THE FAMILY FOUNDATION OF ARIZONA I. Maricopa County (“County”), administered by its Human Services Department, and Save the Family Foundation of Arizona (“Subrecipient”) entered into a financial Agreement (“Agreement”), which was fully executed on or about September 3, 2020. The purpose of the Agreement is for the provision of rapid rehousing services for individuals and families experiencing homelessness and disproportionately at risk for COVID-19 in Maricopa County. The County provided the Subrecipient with $200,000 in Emergency Solutions Grant CARES Act (ESG-CV) funds. The term of the Agreement is from September 1, 2020, to September 30, 2022. The County and the Subrecipient collectively are referred to here as the “Parties.” The Parties executed Amendment No. 1 on or about January 27, 2021 to increase funding in the agreement from $200,000 to a not-to-exceed amount of $236,000. II. The Parties now agree to amend the Agreement by this Amendment No. 2 as follows: A. Add that the County shall decrease the Subrecipient’s total contract funding amount by $114,518. The contract is funded through ESG CARES Act Round 2 (ESG-CV2). The Subrecipient is unable to expend the full budget amount by the end of the contractual term. The total available funding now is decreased from $236,000 to a not-to-exceed amount of $121,482. B. Revise Section 1 (General Provisions) to address the following paragraphs: 1. Paragraph 5.0 (TERMINATION), delete in its entirety and replace with the following: 5.0 TERMINATION 5.1 Under A.R.S. § 38-511, the County may cancel this Agreement without penalty or further obligation within three years after execution of this Agreement, if any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of the County at any time while this Agreement or any extension of this Agreement is in effect, is or becomes an employee or agent of any other party to this Agreement in any capacity or consultant to any other party to this Agreement with respect to the subject matter of this Agreement. Additionally, pursuant to A.R.S. § 38-511, the County may recoup any fee or commission paid or due to any person significantly involved in initiating, negotiating, securing, drafting, or creating this Agreement on behalf of the County from any other party to this Agreement arising as the result of this Agreement. A cancellation notice made under this Subparagraph shall be Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 2 of 11 effective when the recipient receives a written notice of cancellation unless the notice specifies a later date. 5.2 Either Party may terminate this Agreement at any time by giving the other Party at least sixty (60) calendar days prior notice in writing (unless terminated by the County under the Availability of Funds provision). The notice shall be given by either personal delivery or registered or certified mail, postage prepaid and return receipt requested, to the persons at the addresses set forth on page 1 of this Agreement. 5.3 The County has the right to terminate this Agreement upon twenty-four (24) hour notice when the County deems the health or welfare of the service recipients are endangered or the Subrecipient’s noncompliance jeopardizes funding source financial participation. If not terminated by one of the above methods, then this Agreement will terminate upon the expiration of the Term of this Agreement stated on page 1 of this Agreement. 5.4 In accordance with 2 C.F.R. §§ 200, et seq., the County may suspend or terminate this Agreement if the Subrecipient violates any term or condition of this Agreement or if the Subrecipient fails to maintain a good-faith effort to carry out the purpose of this Agreement. 5.5 The Parties may terminate this Agreement for convenience in accordance with 2 C.F.R. § 200. The Parties shall agree upon the termination conditions including the effective date of the termination. The Party initiating the termination shall notify the other Parties in writing stating the reasons for such termination. 2. Paragraph 8.0 (GENERAL REQUIREMENTS), delete in its entirety and replace with the following: 8.0 GENERAL REQUIREMENTS 8.1 The terms of this Agreement shall be construed in accordance with Arizona law and the applicable laws and regulations of the United State Department of Housing and Urban Development (HUD). Any lawsuit arising out of this Agreement shall be brought in the appropriate court in Maricopa County, Arizona. 8.2 The Subrecipient shall, without limitation, obtain and maintain all licenses, permits and authority necessary to do business, render services and perform work under this Agreement, and shall comply with all laws regarding unemployment insurance, disability insurance and worker's compensation. 8.3 The Subrecipient is an independent contractor in the performance of work and the provision of services under this Agreement and is not to be considered an officer, employee or agent of the County. 8.4 The Subrecipient shall comply with the regulations prohibiting a conflict of interest. The Subrecipient shall not make any payments, either directly or indirectly, to any person, partnership, corporation, trust, or other organization that has a substantial interest in Subrecipient's organization or with Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 3 of 11 which the Subrecipient (or any of its directors, officers, owners, trust certificate holders, or a relative thereof) has a substantial interest, unless the Subrecipient has made full written disclosure of the proposed payments to the County and has received written approval for the payments. 8.5 For purposes of this provision, the terms "substantial interest" and "relative" shall have the meanings prescribed by A.R.S. § 38-502. 3. Paragraph 10.0 (ASSIGNMENT AND SUBCONTRACTING), delete in its entirety and replace with the following: 10.0 ASSIGNMENT AND SUBCONTRACTING 10.1 No right, liability, obligation or duty under this Agreement may be assigned, delegated or subcontracted, in whole or in part, without the prior written approval of the County. The Subrecipient shall bear all liability under this Agreement, even if it is assigned, delegated, or subcontracted, in whole or in part, unless the County agrees otherwise. 10.2 In accordance with 2 C.F.R. §200.331, the Subrecipient may make a “Subaward” as a pass-through entity for the purpose of carrying out a portion of the federal award and General Funds. The Subrecipient will make determinations classifying recipients of federal funds as a Subrecipient. 4. Paragraph 12.0 (BUDGE ADJUSTMENTS), delete in its entirety and replace with the following: 12.0 BUDGET ADJUSTMENTS 12.1 Any requests for reasonable budget adjustments shall be submitted ninety (90) calendar days prior to the Termination Date of this Agreement. Requests for financial adjustments to this Agreement shall be supported by appropriate documentation. If the County agrees to the budget adjustments, the County shall follow Paragraph 4.0 above. 12.2 The Subrecipient must receive prior written approval from the County to move funds from one budget line item to another. Budget adjustments that do not change the total Agreement amount may be documented by an Administrative Change Order approved and fully executed by the Chairman of the Board of Supervisors and the Subrecipient’s authorized Representative and defined in Section 2 (Special Provisions), Paragraph 13.3.18. If a budget adjustment is necessary that either increases or decreases the Agreement amount, then the County shall follow Section 1 (General Provisions), Paragraph 4.0 (Amendments) of this Agreement to amend the Agreement. 5. Paragraph 13.0 (DISPUTES) delete in its entirety and replace with the following: 13.0 DISPUTES 13.1 Except as may otherwise be provided for in this Agreement, the Parties may attempt to informally resolve any dispute arising out of this Agreement for a reasonable period of time, Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 4 of 11 which shall not exceed one hundred twenty (120) calendar days. Disputes which are not resolved in that time period, shall be submitted in accordance with the following formal dispute resolution process. 13.2 If a dispute cannot be resolved informally, then the Subrecipient shall notify the Department in writing by mailing notice of the dispute to the Assistant Director within ten (10) business days from expiration of the informal dispute resolution process described in Subparagraph 13.1 above. 13.3 The Assistant Director shall respond in writing to the Subrecipient within fourteen (14) business days. The decision of the Assistant Director shall be final and conclusive unless, within seven (7) business days after the date the Subrecipient is served with the decision, the Subrecipient files a written notice of appeal with the Human Services Department Director. 13.4 The Human Services Department Director shall provide the Subrecipient with a written response within fourteen (14) business days following receipt of the notice of appeal. The decision of the Director shall be final and not appealable. 13.5 Pending a final decision of the Director, the Subrecipient shall diligently proceed with its performance of this Agreement in accordance with the Assistant Director’s decision. 6. Paragraph 16.0 (STRICT COMPLIANCE), delete in its entirety and replace with the following: 16.0 STRICT COMPLIANCE The County’s acceptance of the Subrecipient’s performance that is not in strict compliance with the terms of this Agreement shall not be deemed to waive the requirements of strict compliance for all future performance. All changes in performance obligations under this Agreement shall be in writing and signed by both Parties. 7. Paragraph 17.0 (SINGLE AUDIT ACT REQUIREMENTS), delete in its entirety and replace with the following: 17.0 SINGLE AUDIT ACT REQUIREMENT 17.1 The Subrecipient shall, upon written notice, reimburse the County for any payments made under this Agreement that are disallowed by a federal, state, or County audit in the amount of the disallowance. Court costs and attorney and expert fees incurred will be specifically identified as applicable to the recovery of the disallowed costs in question. 17.2 If the County determines that a cost for which payment has been made is a disallowed cost, then the County will notify the Subrecipient in writing of the disallowance and the required course of action, which shall be at the option of the County, either to adjust any future claim submitted by the Subrecipient by the amount of the disallowance or to require immediate repayment of the disallowed amount by the Subrecipient issuing a check payable to the County Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 5 of 11 8. Paragraph 32.0 (SAFEGUARDING OF PARTICIPANT INFORMATION), delete in its entirety and replace with the following: 32.0 SAFEGUARDING OF PARTICIPANT INFORMATION 32.1 The Subrecipient shall observe and abide by all applicable State of Arizona and federal statues, rules, and regulations regarding the use or disclosure of information including, but not limited to, information concerning applicants for and recipients of contracted services. To the extent permitted by law, the Subrecipient shall release information to the County, Department, Attorney General’s Office, or other designated agency as required by the County by the terms of this Agreement or by law. 32.2 The Subrecipient shall comply with the requirements of the Arizona Address Confidentiality Program, A.R.S. §§ 41-161, et seq. The Department will advise the Subrecipient as to applicable policies and procedures adopted for such compliance. 9. Paragraph 35.0 (AGREEMENT COMPLIANCE MONITORING), delete in its entirety and replace with the following: 35.0 AGREEMENT COMPLIANCE MONITORING/AUDITING 35.1 The County will annually monitor the Subrecipient's compliance for fiscal and programmatic performance under the terms and conditions of this Agreement and applicable regulations promulgated by the U.S. Department of Housing and Urban Development and Maricopa County. On-site visits for compliance monitoring may be made by the County or its grantor agencies (or by both the County and its grantor agencies) at any time during the Subrecipient's normal business hours, announced and/or unannounced. For auditing purposes, the County shall provide the Subrecipient with 30-days’ advance notice of any proposed on-site visit. During an on-site visit(s), the Subrecipient shall make all of its records and accounts related to work performed or services provided under this Agreement available to the County for inspection and copying. 35.2 The County shall request information for fiscal monitoring/audit per Office of Management and Budget (OMB) Uniform Guidance 2 C.F.R. § 200, to include: 35.2.1 Financial Management 2 C.F.R. § 200.302 35.2.2 Internal Controls 2 C.F.R. § 200.303 35.2.3 Bonds 2 C.F.R. § 200.304 35.2.4 Payment and Financial Reporting 2 C.F.R. § 200.305 35.2.5 Cost Sharing or Matching 2 C.F.R. § 200.306 35.2.6 Program Income 2 C.F.R. § 200.307 35.2.7 Revision of Budget and Program Plans 2 C.F.R. § 200.308 35.2.8 Period of Performance 2 C.F.R. § 200.309 35.2.9 Insurance Coverage 2 C.F.R. § 200.310 35.2.10 Record Retention and Access 2 C.F.R. §§ 200.334 – 200.338 35.2.11 Procurement Standards 2 C.F.R. § 200.318 Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 6 of 11 35.2.12 Indirect Costs 2 C.F.R. § 200.414 35.2.13 Compensation-Personal Services 2 C.F.R. § 200.430 35.2.14 Audit Requirements 2 C.F.R. §§ 200.501- 200.517 10. Paragraph 37.0 (MINIMUM WAGE REQUIREMENTS), delete in its entirety and replace with the following: 37.0 MINIMUM WAGE REQUIREMENTS The Subrecipient warrants that it shall pay all of its employees who are engaged in either performing work or providing services under the terms of this Agreement not less than the minimum wage specified under Section 206(a)(1) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. §§ 201, et seq.), by law and regulation, and, as applicable, Executive Order 13658, as amended, and as specified by Arizona law. 11. Paragraph 42.0 (EQUAL EMPLOYMENT OPPORTUNITY), delete in its entirety and replace with the following: 42.0 EQUAL EMPLOYMENT OPPORTUNITY 42.1 The Subrecipient shall not discriminate against any employee or applicant for employment because of race, age, disability, color, religion, sex, sexual identity, gender identity, or national origin. 42.2 The Subrecipient shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, age, disability, color, religion, sex sexual identity, gender identity, or national origin. Such action shall include, but is not limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, lay-off or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 42.3 The Subrecipient shall and shall cause its Subcontractors to comply with: 42.3.1 Title VI and VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 2000a, et seq.); 42.3.2 the Rehabilitation Act of 1973, as amended (29 U.S.C. §§ 701, et seq.); 42.3.3 the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. §§ 621, et seq.); 42.3.4 the Americans With Disabilities Act of 1990 (42 U.S.C. §§ 12101, et seq.); and 42.3.5 Arizona Executive Order 2009-09, as amended, et seq. which mandates that all persons shall have equal access to employment opportunities 12. Paragraph 50.0 (EMPLOYMENT DISCLAIMER), delete in its entirety and replace with the following: 50.0 EMPLOYMENT DISCLAIMER 50.1 This Agreement is not intended to constitute, create, give rise to, or otherwise recognize a joint venture agreement, Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 7 of 11 partnership, or other business association or organization of any kind between the Parties, and the rights and obligations of the Parties shall be only those expressly set forth in this Agreement. 50.2 The Subrecipient agrees that no individual performing under this Agreement on behalf of the Subrecipient may be considered a County agent, employee, or representative and that no rights of County civil service, County retirement, or County personnel rules shall accrue to or apply to any such individual. The Subrecipient shall have total responsibility for all salaries, wages, bonuses, retirement, withholdings, workers’ compensation, occupational disease compensation, unemployment compensation, other employee benefits, and all taxes and premiums appurtenant thereto concerning such individuals and the Subrecipient shall indemnify, defend, and hold harmless the County with respect thereto. 50.3 The County agrees that no individual performing under this Agreement on behalf of County may be considered a Subrecipient agent, employee, or representative and that no rights of the Subrecipient civil service, the Subrecipient retirement, or the Subrecipient personnel rules shall accrue to or apply to any such individual. The County shall have total responsibility for all salaries, wages, bonuses, retirement, withholdings, workers’ compensation, occupational disease compensation, unemployment compensation, other employee benefits, and all taxes and premiums appurtenant thereto concerning such individuals and the County shall indemnify, defend and hold harmless the Subrecipient with respect thereto. 13. Paragraph 51.0 (CERTIFICATION REGARDING DEBARMENT, SUSPENSION INELIGIBILITY AND VOLUNTARY EXCLUSION), delete in its entirety and replace with the following: 51.0 CERTIFICATION REGARDING DEBARMENT, SUSPENSION INELIGIBILITY AND VOLUNTARY EXCLUSION 51.1 The undersigned, by signing this Agreement, represents that he/she has the authority to bind the Subrecipient to the terms of this Certification. The Subrecipient, as the primary participant in accordance with 2 C.F.R. Part 180, certifies to the best of its knowledge and belief that it and its principals: 51.1.1 Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; 51.1.2 Have not within a 3-year period preceding the Start Date of this Agreement, been convicted of or had a civil judgment rendered against them for (1) the commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, State, or local) transaction or contract under a public transaction; (2) the violation of any federal or State antitrust statutes Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 8 of 11 or (3) the commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; 51.1.3 Are not presently indicted or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with the commission of any of the offenses enumerated in Sub-subparagraph 49.1.2 above; and 51.1.4 Have not, within a three-year period preceding this Start Date of this Agreement, had one or more public transactions (federal, state, or local) terminated for cause or default. 51.2 The Subrecipient agrees to include, without modification, this clause in all lower tier covered transactions (i.e., transactions with Subcontractors) and in all solicitations for lower tier covered transactions related to this Agreement. 14. Paragraph 52.0 (SUBRECIPIENT EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS), delete Subparagraph 52.3 and replace with the following: 52.3 The Developer shall insert the substance of this clause, including this Paragraph 52.0, in all subcontracts over the simplified acquisition threshold ($250,000 as of June 2021). 15. Add paragraph 55.0 (FORCE MAJEURE): 55.1 Neither Party shall be liable for failure of performance, nor incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused by events, occurrences, or causes beyond the reasonable control and without negligence of the Parties. Such events, occurrences, or causes will include Acts of God/Nature (including fire, flood, earthquake, storm, hurricane, or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, riots, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, lockout, blockage, embargo, labor dispute, strike, pandemic, and interruption or failure of electricity or telecommunication service. 55.2 Each Party, as applicable, shall give the other Party notice of its inability to perform and particulars in reasonable detail of the cause of the inability. Each party must use best efforts to remedy the situation and remove, as soon as practicable, the cause of its inability to perform or comply. 55.3 The Party asserting Force Majeure as a cause for non-performance shall have the burden of proving that reasonable steps were taken to minimize delay or damages caused by foreseeable events, all non-excused obligations were substantially fulfilled, and the other Party was timely notified of the likelihood or actual occurrence that would justify such an assertion, so that other prudent precautions could be contemplated. Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 9 of 11 C. Revise Section 2 (Special Provisions) to address the following paragraph: 1. Paragraph 4.0 (BUDGET ADJUSTMENTS, CHANGE ORDERS AND AMENDMENTS), delete in its entirety and replace with the following: 4.0 BUDGET ADJUSTMENTS AND CHANGE ORDERS 4.1 Administrative Change Orders– The Chairman of the Board of Supervisors is authorized upon the recommendation of the Human Services Department Director and Legal Counsel to make changes within the general scope of the Agreement on behalf of the County through Administrative Change Orders. Administrative Change shall be approved and fully executed by the Chairman of the Board of Supervisors and the City. Administrative Change Orders may address any of the following areas: 4.1.1 Modifications to the project timeline if the last day of the project timeline is within the Agreement term; 4.1.2 Modifications to Budget line items if the Agreement Amount remains unchanged; 4.1.3 Modifications required by federal, state, or County regulations, ordinances, or policies; and 4.1.4 Modifications to Administrative requirements such as changes in reporting periods, frequency of reports, or report formats required by HUD or local regulations, policies or requirements. 4.2 It is the responsibility of the Subrecipient to ensure the latest documents are consulted and followed. D. Revise Section 5 (Attachments), by deleting Attachment 1 (CARES Budget), combined ESG-CV and ESG-CV2 funding and replace with Attachment 1 (CARES Budget 2022). III. Section II above contains all the changes made by this Amendment No. 2. All other terms and conditions of the Agreement and the previously approved Amendment not amended by this Amendment No. 2 shall remain unchanged and in full force and effect as executed by the Parties. IV. The Parities have authorized the undersigned to execute this Amendment No. 2 on their behalf, and it shall be effective upon approval and signature by the Parties. (Signatures are contained on the following page) Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 10 of 11 IN WITNESS, the Parties have approved and signed this Amendment No. 2. FOR AND ON BEHALF OF SAVE THE FAMILY: _____________________________________ Jacki Taylor Date Chief Executive Officer FOR MARICOPA COUNTY: _____________________________________ Bill Gates Date Chairman of the Board of Supervisors Attestation: _____________________________________ Juanita Garza Date Clerk of the Board THIS AMENDMENT NO. 2 HAS BEEN REVIEWED BY THE UNDERSIGNED DEPUTY COUNTY ATTORNEY WHO HAS DETERMINED THAT IT IS PROPER IN FORM AND WITHIN THE POWERS AND AUTHORITY GRANTED TO MARICOPA COUNTY UNDER THE LAWS OF THE STATE OF ARIZONA. Approved as to form: _____________________________________ Deputy County Attorney Date Contract No. C-22-21-024-X-02 Amendment No. 2 Save the Family Foundation of Arizona Page 11 of 11 Attachment 1 (CARES Budget 2022) Expenses Maricopa County Funds Other Funding Total Personnel - Salaries $30,000 $24,750 $54,750 Personnel - EREs $6,000 $4,950 $10,950 Professional Fee/Contracts $0 $2,625 $2,625 Travel $0 $4,125 $4,125 Space $0 $3,375 $3,375 Equipment $0 $1,875 $1,875 Materials & Supplies $0 $1,500 $1,500 Direct Client Subsidy (RR) $85,482 $0 $85,482 Other Operating Expenses $0 $2,250 $2,250 General Admin $0 $22,500 $22,500 Total Estimated Expenses $121,482 $67,950 $189,432