Loading...
Resolution 2023-29 Resolution No. 2023-29 A RESOLUTION APPROVING AN AGREEMENT FOR DISBURSEMENT AND USE OF KENDALL COUNTY'S AMERICAN RESCUE PLAN ACT FUNDS WHEREAS, the United City of Yorkville, Kendall County, Illinois (the "City") is a duly organized and validly existing non-home rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and, WHEREAS, the United States Department of Treasury launched the Coronavirus State and Local Fiscal Recovery Fund which was established by the American Rescue Plan Act of 2021 ("ARPA"), to provide billions of dollars in emergency funding for eligible state, local, territorial and Tribal governments ("Recovery Funds"); and, WHEREAS, the County of Kendall (the "County") is an eligible local government and shall be receiving approximately twenty-five million dollars ($25,000,000) in Recovery Funds. WHEREAS,pursuant to the ARPA rules,the County can use its allocated Recovery Funds for any one or more of the following authorized uses: (1)to respond to the public health emergency created by the COVID-19 pandemic("pandemic") or the pandemic's negative economic impacts; (2) to provide premium pay to the eligible workers performing essential work during the public health emergency; (3)to provide government services to the extent of the reduction in revenue due to the public health emergency; and, (4) to make necessary investments in water, sewer or broadband infrastructure; and, WHEREAS, the City provides drinking water service to residents of the County and has submitted a request to the County for Recovery Funds to replace water mains to prevent breaks and leakage as a part of a larger project to obtain water from Lake Michigan(the"Project"); and, Resolution No.2023-29 Page 1 WHEREAS, the County finds that providing a portion of its Recovery Funds for the Project which is a necessary investment in the City's infrastructure is permitted by the ARPA rules; and, WHEREAS, the County, as the jurisdiction responsible for disbursement of its Recovery Funds,is authorizing the subaward of a portion of the County's Recovery Funds to the City for the purpose of the City's use of said Funds to make necessary investments in water and sewer infrastructure with the replacement of water mains; and, WHEREAS,the City has agreed to accept a grant of Two Hundred Twenty-Five Thousand Dollars ($225,000.00) from the County for the sole purpose of replacing water mains within the City, pursuant to the Agreement attached hereto. NOW,THEREFORE,BE IT RESOLVED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. That the"Agreement For Disbursement and Use of Kendall County's American Rescue Plan Act Funds"by and between the United City of Yorkville and the County of Kendall attached hereto and made a part hereof by this reference is hereby approved and the Mayor and City Clerk are hereby authorized to execute said Agreement on behalf of the United City of Yorkville. Section 2. That this Resolution shall be in full force and effect upon its passage and approval as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this 14th day of November, A.D. 2023. I CLERK Resolution No.2023-29 Page 2 KEN KOCH AYE DAN TRANSIER AYE ARDEN JOE PLOCHER ABSENT CRAIG SOLING AYE CHRIS FUNKHOUSER AYE MATT MAREK AYE SEAVER TARULIS AYE RUSTY CORNEILS AYE APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois this I, day of K f O\l'eYYI be( , A.D. 2023. MAYOR Attest: CIT CLERK Resolution No. 2023-29 Page 3 AGREEEMENT FOR DISBURSEMENT AND USE OF KENDALL COUNTY'S AMERICAN RESCUE PLAN ACT FUNDS THIS AGREEMENT ("Agreement") is made and entered into on this 17th day of October 2023 by and between the County of Kendall, Illinois, a unit of local government ("County") and the City of Yorkville, Illinois, a unit of local government ("Grantee"), UEI #E646HGMGZF83. For purposes of this Agreement, the County and Grantee shall hereinafter collectively be referred to as"the Parties". RECITALS WHEREAS, the United States Department of Treasury ("Treasury") launched the Coronavirus State and Local Fiscal Recovery Fund,Assistance Listing 21.027("Recovery Fund"), which was established by the American Rescue Plan Act of 2021 ("ARPA"), to provide $350 billion in emergency funding for eligible state, local, territorial, and Tribal governments; and WHEREAS, the Treasury determined the County is an eligible local government that will be receiving approximately twenty-five million dollars ($25,000,000) in Recovery Funds (FAIN SLFRP 1804) from the United States Government; and WHEREAS,the County's share of the RecoveryFunds are to the U.S. Department Y subject � of the Treasury Coronavirus Local Fiscal Recovery Fund Award Terms and Conditions, as executed by the County on May 18, 2021 ("Award Terms and Conditions"); and WHEREAS,the Federal Award Date for the County's Recovery Funds was May 20, 2021; and WHEREAS, the Treasury issued guidelines identifying the authorized use of Recovery Funds allocated to local governments under the ARPA(hereinafter referred to as the"Final Rule"); and WHEREAS, pursuant to the Final Rule, the County can use its allocated Recovery Funds for any one or more of the following authorized uses: (1)to respond to the public health emergency created by the COVID-19 pandemic("pandemic") or the pandemic's negative economic impacts; (2)to provide premium pay to eligible workers performing essential work during the public health emergency; (3)to provide government services to the extent of the reduction in revenue due to the public health emergency; and (4) to make necessary investments in water, sewer, or broadband infrastructure; and 1 WHEREAS, within the eligible use categories outlined above,the Final Rule provides the County with the flexibility to determine how best to use payments from the Recovery Funds to meet the needs of the County's communities and population; and WHEREAS, the Final Rule permits the expenditure of Recovery Funds for investments in water, sewer, and broadband infrastructure; and WHEREAS, Grantee is located in Kendall County; and WHEREAS, Grantee provides drinking water service to residents of Kendall County; and WHEREAS, Grantee intends to replace water mains in order to prevent breaks and leakage as part of a larger project to obtain water from Lake Michigan; and WHEREAS, the County finds that replacement of the water mains will improve water quality for residents of Kendall County; and WHEREAS, the County finds that providing a portion of its Recovery Funds to Grantee for replacement of water mains is a necessary investment in water infrastructure; and WHEREAS, the County, as the jurisdiction responsible for disbursement of its Recovery Funds, is authorizing the subaward of a portion of the County's Recovery Funds to Grantee (pursuant to the terms and conditions set forth in this Agreement) for the purpose of making necessary investments in water infrastructure by replacing water mains in Yorkville. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Parties hereby agree as follows: 1. Recitals The recitals set forth above are incorporated in this Agreement by reference and made a part of this Agreement. 2. County's Obligations In consideration for Grantee's execution of this Agreement, the County agrees to the following: a. Pursuant to the terms and conditions set forth in this Agreement,the County agrees to disburse a portion of its Recovery Funds to Grantee in the amount of Two Hundred Twenty-Five Thousand Dollars and Zero Cents ($225,000.00) to be used by Grantee for the purpose of replacing water mains in Yorkville, Illinois. Said amounts actually disbursed to Grantee shall hereinafter be referred to as "Grant funds." Grant funds shall not be used for land acquisition. 2 b. The Grant funds set forth in Paragraph 2(a) shall be disbursed by the County to Grantee in one lump sum. 3. Grantee's Obligations a. Grantee understands and agrees it shall use the Grant funds only for the purpose of replacing water mains in Yorkville, Illinois. b. Grantee must spend all Grant funds no later than December 20, 2024 (the "allowable spending period"). If Grantee has not spent all of the Grant funds by the end of the allowable spending period, Grantee must return all remaining Grant funds to the County within thirty (30) calendar days after Grantee's allowable spending period ends. c. If Grantee uses the Grant funds for any purpose other than replacing water mains in Yorkville, Illinois (hereinafter referred to as an "Improper Purpose"), Grantee shall immediately reimburse the County the full amount of Grant funds received from the County. d. Grantee affirms its drinking water system will comply with any applicable requirements of the Safe Drinking Water Act and all applicable federal and state drinking water standards and regulations. e. By signing this Agreement, Grantee affirms that Grantee may not use its Grant funds as a non-federal match for other federal programs whose statute or regulations bar the use of federal funds to meet matching requirements. If Grantee uses its Grant funds for such purpose, this shall also be deemed an Improper Purpose, and Grantee shall immediately reimburse the County the full amount of Grant funds received from the County. f. Grantee agrees it shall not use its Grant funds for an expense for which it has already received, or will receive reimbursement or payment from another federal, state, local, or private program designed to provide relief from the pandemic. g. Grantee agrees to comply with ARPA, the Award Terms and Conditions, the Final Rule (including all subrecipient monitoring and reporting requirements), and all interpretive guidance issued by the Treasury regarding Recovery Funds. Grantee also agrees to comply with all applicable requirements set forth in the Uniform 3 Guidance for Federal Awards seq .),C.F.R. 200 et se the Single Audit Act, n (2 , ga d all other applicable federal and state statutes,regulations, and executive orders. h. Grantee shall maintain all original records relating to its use of the Grant funds for a period of at least ten (10) years after the Grant funds are spent or the period of time required by other state or federal law, whichever is longer. As a recipient of some of the County's Recovery Funds, Grantee understands and agrees that it must take any and all steps necessary to assist the County with the County's reporting requirements on the use of Grantee's Grant funds. Such steps will include,but are not limited to the following: Ninety(90)calendar days after receiving the Grant funds, Grantee shall file a written report with the County that includes the following information: (a) the amount of Grant funds spent by Grantee during that three month period; (b) sufficient detail describing how the Grant funds were used by Grantee during that three month period; and (c) supporting documentation evidencing how the Grant funds were used by Grantee. Grantee agrees to provide any additional information and supporting documentation requested by the County in this report, as the County sees fit. Grantee shall continue to file these written reports every ninety (90) days to include the above information for each 90-day period. ii. Within five (5) calendar days after the allowable spending period ends, Grantee shall file a final written report with the County that includes the following information: (a) the amount of Grant funds spent by Grantee in the time since Grantee's previous report;(b)sufficient detail describing how the Grant funds were used by Grantee since the time period covered by Grantee's previous report; (c) supporting documentation evidencing how the Grant funds were used since the time period covered by Grantee's previous report; and (d) the amount, if any, of unused Grant funds being returned to the County at the conclusion of the allowable spending period. Grantee agrees to provide any additional information and supporting documentation requested by the County in this report as the County sees fit. 4 iii. At any other time, the County, its auditor, or legal counsel may request Grantee provide additional information and records relating to Grantee's use of the Grant funds. Grantee agrees to comply with such a request within ten (10) business days of receiving such a request and to otherwise work collaboratively with the County to ensure compliance with ARPA. j. Grantee agrees to (a) fully comply with all applicable requirements of the Illinois Prevailing Wage Act; (b) notify all contractors and subcontractors that the construction of anypublic work usingGrant funds shall be subject to the Illinois J Prevailing Wage Act; and(c) include all notices required by statute and the Illinois Department of Labor in any contracts using Grant funds. In the event Grantee fails to comply with the notice requirements set forth in the Prevailing Wage Act, Grantee shall be solely responsible for any and all penalties, fines, and liabilities incurred for Grantee's, contractor's, and/or subcontractor's violation of the Prevailing Wage Act. k. If Grantee uses Grant funds to pay a contractor or subcontractor to perform work for Grantee, Grantee must ensure that such contracts include provisions incorporating all of the following: i. The contractor/subcontractor agrees to comply with all applicable provisions of ARPA, the Final Rule, 2 C.F.R. 200 et seq. and all other applicable federal and state statutes, regulations, interpretive guidance, and executive orders. ii. The Substance Abuse Prevention on Public Works Act, 820 ILCS 265/1 et seq. and the Illinois Drug Free Workplace Act, 30 ILCS 580/1 et seq. iii. The Illinois Human Rights Act, Title VI of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, the Age Discrimination in Employment Act, Section 504 of the Federal Rehabilitation Act, and all applicable rules and regulations. iv. The Davis Bacon Act, 40 U.S.C. 3141 et seq. as necessary. v. The Contract Work Hours and Safety Standards Act, 40 U.S.C. 3702 and 3704, as necessary. ICI 5 vi. Grantee shall ensure that Grantee and each contractor and/or subcontractor performing work using Grant funds shall obtain and continue in force during the performance of such work, all insurance necessary and appropriate and that each contractor and/or subcontractor contracted with to perform work shall name the County as an Additional Insured on a Primary and Non- Contributory basis with respect to all liability coverage, as well as a waiver of subrogation with respect to the general liability and workers' compensation in favor of the County. Further, Grantee shall require each contractor and/or subcontractor to provide indemnification and hold harmless guarantees to the County during the work. 1. Grantee agrees that the maintenance of any work constructed in whole or in part with Grant funds will be the responsibility of Grantee, and Grantee alone. Further, Grantee shall be responsible for any future repair or replacement deemed necessary for said work. Nothing in this Agreement shall be construed as to create a duty or responsibility on behalf of County to finance,maintain,repair,replace,or otherwise control the resulting work. m. Grantee certifies that Grantee, its parent companies, subsidiaries, and affiliates are not barred from entering into this Agreement as a result of a violation of either 720 ILCS 5/33E-3 or 5/33E-4 (bid rigging or bid rotating) or as a result of a violation of 820 ILCS 130/1 et seq. (the Illinois Prevailing Wage Act). Grantee further certifies by signing this Agreement that Grantee,its parent companies, subsidiaries, and affiliates have not been convicted of, or are not barred for attempting to rig bids, price-fixing or attempting to fix prices as defined in the Sherman Anti-Trust Act and Clayton Act. 15 U.S.C. § 1 et seq.; and has not been convicted of or barred for bribery or attempting to bribe an officer or employee of a unit of state or local government or school district in the State of Illinois in that officer's or employee's official capacity. Nor has Grantee made an admission of guilt of such conduct that is a matter of record,nor has any official,officer,agent,or employee of the Grantee been so convicted nor made such an admission. n. Grantee, its officers, employees, subcontractors, and agents agree not to commit unlawful discrimination/unlawful harassment and further agree to comply with all 6 applicable provisions of the Illinois Human Rights Act,Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, the Age Discrimination in Employment Act, Section 504 of the Federal Rehabilitation Act, the Illinois Public Works Employment Discrimination Act, 775 ILCS 10/0.01 et seq., as amended, and all applicable rules and regulations. Grantee, its officers, employees, subcontractors, and agents shall maintain a written sexual harassment policy that complies with the requirements of 775 ILCS 5/2-105 and shall comply with all fair employment practices and equal employment opportunity/affirmative action requirements set forth in applicable state and federal laws and regulations. 4. Assignment This Agreement and the rights of the Parties hereunder may not be assigned (except by operation of law), and the terms and conditions of this Agree ment shall inure to the benefit of and be bindingupon the respective successors and assigns of theparties hereto. Nothingin this p p � Agreement, express or implied, is intended to confer upon any party, other than the Parties and their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of such agreements. 5. Non-appropriation The sole source of the Grant funds shall be from the County's received Recovery Funds. The County shall not be obligated to fund the Grant from any other source. If the County does not receive sufficient Recovery Funds to satisfy all or part of the County's obligations under this Agreement, the County's obligation to provide the Grant funds to Grantee shall be suspended unless and until such Recovery Funds are received by the County. Also, Grantee understands and agrees the County's disbursement of Grant funds to Grantee, as set forth in this Agreement, is contingent on the Kendall County Board's appropriation and disbursement of those funds. Grantee understands and agrees that the sole and exclusive decision as to whether or not to appropriate and disburse Recovery Funds to Grantee lies within the discretion of the Kendall County Board. 6. Remedies a. The County, by disbursing Grant funds to Grantee, does not guarantee to Grantee that Grantee's intended use of the Grant funds complies with the requirements of ARPA. By signing this Agreement, Grantee affirms that its use of the Grant funds qualifies for funding under ARPA. The County reserves the right to demand 7 immediate repayment from Grantee of any Grant funds the County determines, in its sole discretion,were used for a purpose that does not meet the criteria of ARPA, the Final Rule, and/or any other Treasury guidelines associated with disbursement of funds under ARPA. b. If the County determines,in its sole discretion,the Grantee has submitted any false, inaccurate, or misleading information to the County, the County may demand immediate repayment from Grantee of all funds and shall not be obligated for any further disbursements. c. If Grantee's records are needed to justify an expense to the Treasury or any other office, official, or department which is responsible for auditing disbursements of ARPA funds, failure by Grantee to promptly provide these records, for any reason including the prior destruction of these records, shall constitute a breach of this Agreement. The sole and exclusive remedy for such a breach is that Grantee shall be responsible for repayment of any funds the Treasury or other appropriate office, official, or department finds were improperly used, unsupported, or unverified. Additionally, Grantee agrees to indemnify the County and make the County whole for any penalty assessed against the County based upon Grantee's failure to retain or provide records. d. Any other breach of this Agreement by Grantee may, at the sole discretion of the County, result in immediate termination of the Agreement and/or a demand for immediate repayment of all Grant funds. Grantee must return all Grant funds to the County within thirty (30) calendar days after the County issues a demand for immediate repayment pursuant to this paragraph. 7. Indemnity If the Treasury, or any other person, official, or department which is charged with the auditing and review of expenditures of Recovery Funds determines that Grantee's use of such funds was not permitted under ARPA, Grantee agrees to indemnify, reimburse and make whole the County for any funds which the United States Government or its agencies seek to recoup or collect, either by litigation, or by withholding other federal funds owed to the County. 8 Grantee further agrees to indemnify, reimburse, and make whole the County for any penalties associated with the United States government seeking to recoup the expended Grant funds including interest and/or any other penalty provided by law. Grantee agrees to hold the County harmless for any evaluation or advice which the County provided to Grantee as to whether Grantee's use of Grant funds is a permissible use under ARPA. In addition to all of the above, Grantee shall indemnify, hold harmless and defend with counsel of County's own choosing, County, its past, present and future elected officials, department heads, employees, insurers, and agents (hereinafter collectively referred to as "Releasees") from and against all liability, claims, suits, causes of action, demands, proceedings, set-offs, liens, attachments, debts, expenses, judgments, or other liabilities including costs, reasonable fees and expense of defense, arising from any loss, damage, injury, death, or loss or damage to property, of whatsoever kind or nature as well as for any breach of any covenant in the Agreement and any breach by Grantee of any representations or warranties made within the Agreement(collectively,the"Claims"), to the extent such Claims result from any act or omission, neglect, willful acts, errors, or misconduct of Grantee in its performance under this Agreement or its use of Grant funds. Pursuant to 55 ILCS 5/3-9005, no attorney may be assigned to represent the Releasees pursuant to this Section of the Agreement unless the attorney has been approved in writing by the Kendall County State's Attorney. Releasees' participation in its defense shall not remove Grantee's duty to indemnify, defend, and hold Releasees harmless, as set forth above. Releasees do not waive their defenses or immunities under the Local Government and Governmental Employees Tort Immunity Act(745 ILCS 10/1 et seq.)by reason of this indemnification provision. All indemnification obligations shall survive the termination of this Agreement. 8. Notice Any notice required or permitted in this Agreement shall be given by either(a) depositing the same in the United States mail, addressed to the party to be notified, postage prepaid and certified with the return receipt requested, (b) delivering the same in person, or(c)via e-mail with electronic confirmation of receipt. If to the County: Kendall County Administrator 111 W. Fox Street Yorkville, Illinois 60560 9 With copy to: Kendall County State's Attorney 807 John Street Yorkville, Illinois 60560 If to Grantee: CONTACT INFO or such address or counsel as any party hereto shall specify in writing pursuant to this Section from time to time. Delivery of notice shall be deemed to have occurred upon the date of receipt of the notice. 9. Venue and Severability This Agreement shall be interpreted and enforced under the laws of the State of Illinois. Any legal proceeding related to enforcement of this Agreement shall be brought in the Circuit Court of Kendall County, Illinois. If the County is required to take legal action to enforce performance of any of the terms, provisions, covenants and conditions of this Agreement, and by reason thereof, the County is required to use the services of an attorney, then the County shall be entitled to reasonable attorneys' fees, court costs, expenses and expert witness fees incurred by the County pertaining thereto and in enforcement of any remedy, including costs and fees relating to any appeal. In case any provision of this Agreement shall be declared and/or found invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall,to the extent possible,be modified by the court in such manner as to be valid, legal and enforceable so as to most nearly retain the intent of the parties, and, if such modification is not possible, such provision shall be severed from this Agreement, and in either case the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. 10. Execution of Agreement This Agreement may be executed in counterparts (including facsimile signatures), each of which shall be deemed to be an original and both of which shall constitute one and the same Agreement. 10 11. Entire Agreement This Agreement represents the entire agreement between the Parties regarding this subject matter and there are no other promises or conditions in any other agreement whether oral or written. Except as expressly stated herein, this Agreement supersedes any other prior written or oral agreements between the parties regarding this subject matter and may not be further modified except in writing acknowledged by both parties. 12. Relationship of the Parties Nothing contained in this Agreement,nor any act of the County or Grantee pursuant to this Agreement, shall be deemed or construed by any of the parties hereto or by third persons,to create any relationship of third party beneficiary, principal, agent, limited or general partnership, joint venture,or any association or relationship involving the County and Grantee. Grantee understands and agrees that Grantee is solely responsible for paying all wages, benefits and any other compensation due and owing to Grantee's officers, employees, and agents for the performance of any services as set forth in the Agreement. 13. Conflict of Interest The County and the Grantee both affirm no Kendall County officer or elected official has a direct or indirect, real or apparent, financial or other interest in Grantee or this Agreement or if any Kendall County officer or elected official does have an interest in Grantee or this Agreement, that interest, and the procedure followed to effectuate this Agreement, has and will comply with 50 ILCS 105/3, 2 CFR 200.318(c), and other applicable state or federal law. 14. Waiver The County and/or Grantee's waiver of any term, condition, or covenant or breach of any term,condition,or covenant,shall not constitute a waiver of any other term,condition,or covenant, or the breach thereof. 15. Termination This Agreement shall be in full force and effect upon signature by both parties and will terminate once Grantee has spent or returned all the Grant funds it has received from the County and filed its final report. However,Grantee's record-keeping obligation and its duty to defend and indemnify shall survive the term of this Agreement. 16. Authority 11 The County and Grantee each hereby warrant and represent that their respective signatures set forth below have been, and are on the date of this Agreement, duly authorized by all necessary and appropriate corporate and/or governmental action to execute this Agreement. IN WITNESS WHEREOF,the parties hereto have executed this Agreement, using duplicate counterparts, on the dates listed below. KENDALL COUNTY,ILLINOIS CITY ORKVILLE ref Kendall County Board Chair Mayor Attest: Attes ebbie Gillette J"or i Bch land Kendall County Clerk a C,Ier G Date: 1Dlo aJ Date: I 12