HomeMy WebLinkAboutResolutions - 2002.11.21 - 26955November 21, 2002
MISCELLANEOUS RESOLUTION #02285
BY: Planning and Building Committee, Charles E. Palmer, Chairperson
IN RE: DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT! WASTE RESOURCE
MANAGEMENT DIVISION - ACCEPTANCE OF UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY BROWNFIELDS CLEANUP REVOLVING LOAN FUND- BCRLF
To the Oakland County Board of Commissioners
Chairperson, Ladies and Gentlemen:
WHEREAS pursuant to Miscellaneous Resolution #99252, "Board of Commissioners - Amendments to
the Grants Procedures", the Waste Resource Management Division of the Department of Community and
Economic Development applied to the United States Environmental Protection Agency (EPA) for a grant
to capitalize a Brownfield Cleanup Revolving Loan Fund (BCRLF) program in the amount of $1,000,000;
and,
WHEREAS the EPA has awarded Oakland County a $1,000,000 grant, the same amount as the
application, for the period starting in 2002; and
WHEREAS funds will be used to reimburse the County for all grant administrative support as well as
direct administration for oversight of cleanups and loan capitalization; and,
WHEREAS grant funds will cover 100% of the program cost, no general fund/ General Purpose
appropriation is required; and,
WHEREAS acceptance of the grant does not obligate the County to any future commitments.
WHEREAS the grant agreement has been processed through the County Executive Contract Review
Process and the Board of Commissioners Grant Acceptance Procedures: and,
NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners accepts the
BCRLF grant from the U.S. EPA in the amount of $1,000,000.
BE IT FURTHER RESOLVED that the Board Chairperson is authorized to execute the grant agreement
and to approve grant changes and extensions, within 15 percent of the original award, which are
consistent with the original agreement.
BE IT FURTHER RESOLVED that the Fiscal Year 2003 Special Revenue budget be amended to reflect
this new award.
Chairperson, on behalf of the Planning & Building Committee, I move the adoption of the foregoing
resolution.
P 1 ING & BUILDING COMMITTEE
.....ii ,,, i „I Les _ ...„.„....../_
,,
Planning & Building Committee Vote:
Motion carried on unanimous roll call vote with Garfield, Webster and Gregory absent
Wayne Keller
From: Greg Givens [givensg@co.oakland.mi.us]
Sent: Tuesday, November 05, 2002 2:07 PM
To: seamanm@co.oakland.mi.us ; VanLeuvenj; Keller, Wayne
Cc: Frederick, Candace; Wenzel, Nancy
Subject: CONTRACT REVIEW - Waste Resources Management Division
RE: CONTRACT REVIEW - Waste Resources Management Division
GRANT NAME: EPA Brownfield Clean-up Revolving Loan Fund
FUNDING AGENCY: US Environmental Protection Agency
DEPARTMENT CONTACT PERSON: Marty Seaman / 82113
STATUS: Acceptance
DATE: 5 Nov 2002
Pursuant to Misc. Resolution #01320, please be advised the captioned
grant materials have completed internal contract review. Below are the
comments returned by review departments.
Department of Management and Budget:
Approved - Laurie Van Pelt (11 Oct 2002)
Personnel Department:
I approve - Judy Eaton (3 Oct 2002)
Risk Management and Safety:
Approved. It is my understanding that this is not a county activity and
that we are a conduit for funds only. - Stan Fayne (8 Oct 2002)
Corporation Counsel:
The Superfund Cooperative Agreement is approved by Corporation Counsel.
There are no issues contained in the Agreement that would prevent the
County from entering into this Agreement.
However, please note that this Agreement contains numerous
administrative and regulatory requirements imposed by federal statutes
and regulations in carrying out the project set forth in the Agreement.
This office did not research the requirements imposed by the federal
statutes and regulations. If further assistance is needed addressing
the administrative and regulatory requirements when implementing this
project, please contact Corporation Counsel. - Jody Schaffer (5 Nov
2002)
The captioned grant materials and grant acceptance package (which
should include the Board of Commissioners' Liaison Committee Resolution,
the grant agreement/contract, Finance Committee Fiscal Note, and this
email containing grant review comments) may be requested to be placed on
the appropriate Board of Commissioners' committee(s) for grant
acceptance by Board resolution.
Greg Givens, Supervisor
Grants Administration Unit
Fiscal Services Division
3°1 1
EL - 87570501 - 0 Pagel
ASI;ISTANCE. ID NO.
. v n s'r • • - --1- I- t PR(.3 I DOC ID JAMEND•1.! DATE OF AWARD ..0 •-, U . :_:i . V.: NVIVZ, OH [Vi i.":. i k. i i \,.. ,.. .‘, - , • • - BL. - 01570001 - 0 C;:F P 2 4 ?Fir'
-I. P R OTE." CT 1 0 H. A (..--. E i',! CY n. — _.,__ILI..__
TYPE OF ACTION mckli..*; yATE
t 0 -- ..,,„ 21107 . ci= L.: .,\•• Cooperative Agreement PAYMENT METHOD: ACIiii
41_ pr,o11.1' ASAP
RECIPIENT TYPE:
—send Payment Request to:
County Comptroller Branch, 77W. Jackson, MF-10J
R-E-6-1T3IENT: PAYEE: ---- County of Oakland Michigan County of Oakland Michigan
One Public Works Drive One Public Works Drive
Waterford, MI 49328-1907 , Waterford, MI 48328-1907
EIN: 38-6004876
PROJECT MANAGER EPA PROJECT OFFICER EPA GRANT SPECIALIST
Martin J. Seaman Craig Mankowski Karen Sykes
One Public Works Drive Assistance Section. Assistance Section, MC-10J
Waterford, MI 48328-1907 SM-5J E-Mail: sykes.karen@epa.gov
E-Mail: E-Mail: mankowski.craig@epa.gov Phone: (312) 886-7571
Phone: Phone: (312) 886-9493
PROJECT TITLE AND DESCRIPTION
BROWNFIELD REVOLVING LOAN - OAKLAND COUNTY
Funding being provided to Oakland County to help them in achieving their goals of protecting natural resources, particularly critical water and waterways,
while restoring built environments and increasing urban vitality, creating jobs and enhancing the tax base in distressed communities, and returning vacant
or underutilized properties to economic or public uses.
BUDGET PERIOD PROJECT PERIOD TOTAL BUDGET PERIOD COST TOTAL PROJECT PERIOD COST
10101/2002 - 09/30/2004 10/01/2002 - 09/30/2004 $1,000,000.00 $1,000,000.00
_
NOTE: The Agreement must be completed in duplicate and the Original returned to the appropriate Grants Management Office listed below,
within 3 calendar weeks after receipt or within any extension of time as may be granted by EPA. Receipt of a written refusal or
failure to return the properly executed document within the prescribed time, may result in the withdrawal of the offer by the Agency.
Any change to the Agreement by the Recipient subsequent to the document being signed by the EPA Award Official, which the
Award Official determines to materially alter the Agreement, shall void the Agreement.
OFFER AND ACCEPTANCE
The United States, acting by and through the U.S. Environmental Protection Agency (EPA), hereby offers
Assistance/Amendment to the County of Oakland Michigan for 100.00 % of all approved costs
incurred up to and not exceeding $1,000,000 for the support of approved budget period effort described in application
(including all application modifications) cited in the Project Title and Description above, signed 07/24/2002
included herein by reference.
ISSUING OFFICE (GRANTS MANAGEMENT OFFICE) AWARD APPROVAL OFFICE
ORGANIZATION / ADDRESS ORGANIZATION / ADDRESS
U.S. EPA Region 5 U.S. EPA, Region 5
Mail Code MCG10J Superfund Division, S-6J
77 West Jackson Blvd. 77 West Jackson Blvd.
Chicago, IL 60604-3507 Chicago, IL 60604-3507
THE UNITED STATES OF AMERICA BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY
• SIGNAT yP 0 AWA"D 0 FICIAL TYPED NAME AND TITLE DAT
4 WILLIAM E. MUNO, DIRECTOR, SUPERFUND DIVISION I e .41 .V.,'.... .
This agreement is s bject to applicable U.S. Environmental Protection Agency statutory provisions and assistance regulations. In
accepting this award or amendment and any payments made pursuant thereto, (1) the undersigned represents that he is duly
authorized to act on behalf of the recipient organization, and (2) the recipient agrees (a) that the award is subject to the applicable
provisions of 40 CFR Chapter 1, Subchapter B and of the provisions of this agreement (and all attachments), and (b) that
acceptance of any payments constitutes an agreement by the payee that the amounts, if any found by EPA to have been overpaid
will be refunded or credited in full to EPA.
BY AND ON BEHALF OF THE DESIGNATED RECIPIENT ORGANIZATION
SIGNATURE TYPED NAME AND TITLE DATE
THOMAS LAW, CHAIR - BOARD OF COMMISSIONER
EL - 97570901 - 0 Page 2
---------- - - FUNDS FORMER AWARD THlS ACTION AMENDED TOTAL _ c- EPA Amount This Action ,,, $ 1,000,000 $ 1,000,000
EPA In-Kind Amount
_
$ — f: . $ 0
- Unexpended Prior Year Balance $ $ $0
_
-Other Federal Funds $ s 0
—
• Recipient Contribution $$$ 0
— State Contribution $ $ $ 0
--Coca! Contribution $ $ $-O- _
Other Contribution $ $ $ 0
Allowable Project Cost $ 0 $ 1,000,000 $ 1,000,000
Assistance Program (CFDA) Statutory Authority Regulatory Authority
66.811 - Brownfield Pilots Cooperative CERCLA: Sec. 311 40 CFR PTS 31 & 35 SUBPT 0 Agreements
Fiscal — Site Name DCN FY Approp. Budget PRC Object Site/Project Cost Obligation!
Code Organization Class Organization Deobligation _. - STX037 02 T 05F0D 50108D 41.85 05000L00 C001 1,000,000
•
, ,
1,000,000
97570901 -0 Page 3
Budget Summary Page _____________ Table A - Object Class Category Total Approved Allowable
(Non-construction) Budget Period Cost _ I. Personnel $105,000
2. Fringe Benefits $41,250
3.
Travel $6,250
4. Equipment $4,000
5. Supplies $8,500
6 Contractual . $135,000
7. Construction $0.. 8. Other $700,000
9. Total Direct Charges $1,000,000
10. Indirect Costs: % Base $0
11. Total (Share: Recipient % Federal 100.00 %.) $1,000,000
12. Total Approved Assistance Amount $1,000,000
13. Program Income $0 '
BL - 97570901 - 0 Paqe 4
CT
.IER1+.1.1.3 AND CONDITIONS
THIS AWARD IS IN RESPONSE TO THE RECIPIENT'S APPLICATION SUBMITTED JULY 24, 2002,
AND REVISED AUGUST 16TH, AND SEPTEMBER 13TH, 2002.
1. ANTI-LOBBYING - PART 31 RECIPIENTS
No portion of this agreement may be used for lobbying or propaganda purposes as prohibited by U.S.C.
Section 191301 Section 607(a) of Public Law 96-74.
2. LOBBYING AND LITIGATION
In accordance with OMB Circular A-21, A-87, or A-122, as appropriate, the recipient agrees that it will not
use project funds, including the Federal and non-Federal share, to engage in lobbying the Federal
Government or in litigation against the United States. The recipient also agrees to provide the EPA Form
5700-53, Lobbying and Litigation Certificate as mandated by EPA's annual appropriations act. A chief
executive officer of any entity receiving funds under this Act shall certify that none of these funds have
been used to•engage in the lobbying of the Federal Government or in litigation against the United States
unless authorized under existing law. The certification must be submitted in accordance with the
instructions provided by the EPA award official and is due 90 days after the end of the project period.
3. PAYMENT METHOD - ASAP
In order to comply with the Debt Collection Improvement Act of 1996, the recipient must complete and
return the attached Automated Standard Application for Payments (ASAP) system (OAF Form 5-15-01)
with the signed Assistance Agreement.
Sixty (60) days from the date of this Award, you must be converted to the ASAP Payment method. During
the 60 day transition period, you may use the ACH payment method.
4. BROWNFIELDS
A. AUTHORITY
EPA awards this Cooperative Agreement in accordance with the Federal Grant and Cooperative
Agreement Act of 1977. This agreement is subject to all applicable EPA assistance regulations,
including the National Contingency Plan and 40 CFR Parts 31 and 35.
B. AUTOMATATED STANDARD APPLICATION FOR PAYMENTS (ASAP) SYSTEMS
PROCEDURES
In accepting this Cooperative Agreement, the recipient agrees to the following conditions for the
ASAP method of financing:
a. Request for funds will occur only when needed for disbursements;
b. Timely reporting of cash disbursements and balances will be provided, as required;
c. The same standards of timing and reporting will be imposed on secondary recipients if any;
d. The recipient will submit a Federal Cash Transactions Report (SF 272) every six months on
June 30th and December 31st;
e. When activity is completed, the recipient will submit a Financial Status Report (Standard
Form 269A) within 90 days to the EPA Award Official;
f. Superfund Brownfield recipients also must submit the SF 269A within 90 days after the
close of each budget period. If the budget period is longer than one year the report must be
submitted annually, based on the anniversary date of the award.
Failure on the part of the recipient to comply with the above condition may cause the unobligated
portions of the ASAP credit to be revoked and the financing method changed to a reimbursable
basis.
C. PROMPT PAYMENT ACT PROVISIONS
In accordance with Section 2(d) of the Prompt Payment Act (PL 97-177). Federal funds may not
be used by the recipient for the payment of interest penalties to contractors when bills are paid
late, nor may interest penalties be used to satisfy cost-sharing requirements. Obligations to pay
such interest penalties will not be obligations of the United States.
5. MBENVBE
In accordance with EPA's Program for Utilization of Small, Minority and Women's Business Enterprises in
procurement:under assistance programs, the recipient agrees to:
a) Accept the applicable FY 2002 "fair share" goals negotiated with EPA by the State as follows:
MBE WBE
Construction 4% 4%
Supplies 4% 4%
Services 4% 4%
Equipment 4% 4%
If the recipient does not want to rely on applicable State's MBE/VVBE goals, the recipient agrees to submit
proposed MBE/WBE goals based on availability of qualified minority and women-owned businesses to do
work in relevant market for construction, services, supplies and equipment. "Fair share" objectives must
be submitted to the MBE/WBE Coordinator, within 30 days of award and approved by EPA no later than
30 days thereafter.
b) Ensure to the fullest extent possible that at least the FY 2002 "fair share" objective see a) above of
Federal funds for prime contractors or subcontracts for supplies, construction, equipment or services
are made available to organizations owned or controlled by socially and economically disadvantaged
individuals, women and historically black colleges and universities.
c) Include in bid documents "fair share" objectives of 2002 fair share percentage [see a) above] and
require all of its contractors to include in their bid documents for subcontracts the negotiated fair
share percentages.
d) Follow the six affirmative steps stated in 40 CFR 30.44(b) 40 CFR 31.36(e), 35.3145(d), or 35.6580,
as appropriate.
e) In the event race and/or gender neutral efforts prove to be inadequate to achieve a fair share
objective for MBENVBEs, the recipient agrees to notify EPA in advance of any race and/or gender
conscious action it plans to take to more closely achieve the fair share objective.
f) Until the recipient has completed its fair share negotiations with EPA, it agrees to maintain state
Agency's fair share objectives. Once the recipient has completed its fair share negotiations with EPA,
it will apply those objectives. The recipient also agrees to include in its bid documents the applicable
FY 2002 "fair share" objectives and require all of its prime contractors to include in their bid
documents for subcontracts the applicable FY 2002 "fair share" percentages and to comply
with paragraphs (c) through (e) above.
G. PROCUREMENT OF RECYCLED PRODUCTS
Any State agency or agency of a political subdivision of a State which is using appropriated
Federal funds shall comply with Section 6002 of the Resource Conservation and Recovery Act
(RCRA) (42 U.S.C. 6962). RCRA Section 6002 requires that preference be given in procurement
programs to the purchase of specific products containing recycled materias identified in
guidelines developed by the Environmental Protection Agency (EPA). Current guidelines are
contained in 40 CFR 247-254. State and local recipients and subrecipients of grants, loans,
cooperative agreements or other instruments funded by appropriated Federal funds shall give
preference in procurement programs to the purchase of recycled products pursuant to the EPA
guidelines.
7. PUBLIC ACCOMMODATION
The recipient agrees to ensure that all conference, meeting, convention, or training space funded
in whole or in part with Federal funds, complies with the Hotel and Motel Fire Safety Act of 1990.
8. RECYCLED PAPER
Pursuant to EPA Order 1000.25, dated January 24, 1990, the recipient agrees to use recycled paper for
all reports which are prepared as a part of this agreement and delivered to the Agency. This requirement
does not apply to reports which are prepared on forms supplied by EPA. This requirement applies even
when the cost of recycled paper is higher than that of virgin paper.
9. REPORTING - QUARTERLY
Programmatic and financial status reports will be submitted to U.S. EPA on a quarterly basis, within 30
days following the end of the quarter. Final financial status reports will be submitted when all
encumberances are liquidated.
In describing the work accomplished during the reporting period, recipients are encouraged to describe
related brownfields efforts in their quarterly reports; however, the report must clearly delineate which tasks
are funded by the cooperative agreement and which items are funded from other sources.
10. SMALL BUSINESS IN RURAL AREAS
By accepting this agreement, the recipient agrees to comply with Section 129 of Public Law 100-590, the
Small Business Administration Reauthorization and Amendment Act of 1988. Therefore, if the recipient
awards a contract under this assistance agreement, it will utilize the following affirmative steps relative to
Small Business in Rural Areas (SBRAs):
a. Placing SBRAs on solicitation lists;
b. Ensuring that SBRAs are solicited whenever they are potential sources;
c. Dividing total, requirements when economically feasible, into small tasks or quantities to
permit maximum participation by SBRAs;
d. Establishing delivery schedules, where the requirements of work will permit, which would
encourage participation by SBRAs;
e. Using the services of the Small Business Administration and the Minority Business
Development Agency of the U.S. Department of Commerce, as appropriate; and
f. Requiring the contractor, if it awards subcontracts, to take the affirmative steps in
subparagraphs a. through e. of this condition.
Prograflita.atic Conditions
BCRLIF Terms and Conditions
I. GENERAL FEDERAL REQUIUMENTS
0 Definitions
1. For the purposes of this cooperative agreement, the following definitions apply:
a. Borrower. A borrower is a public or private entity that uses BCRLF funds for
cleanup and cleanup- related activities, and agrees to the terms of a loan
agreement between itself and the cooperative agreement recipient.
- • (1) Nonprofit Borrower
Organizations which meet the definition of a nonprofit entity in Paragraph 4 of
OMB Circular A-122. Exceptions may be made for colleges and universities and
nonprofit hospitals on a case by case basis.
(2) Governmental Borrower
• Includes States, tribes and political divisions. Governmental units are de -fined at
40 CFR 35.6015, Indian Tribes are defined at 40 CFR 35.6015(a)(23); political
subdivisions are defined at 40 CFR 35.6015(a)(31); and, states are defined. at 40
CFR 35.6015(a)(44).
b. Comprehensive Environmental Response, Compensation, and Liability Act
1980. CERCLA, also known as "Superfund," is a Federal law that governs the
investigation and cleanup of sites. The BCRLF demonstration pilot program is
funded under §104(d)(1) of CERCLA.
c. Cooperative Agreement Recipient (CA recipient or "pilot")
d. Engineering Evaluation/Cost Analysis (EE/CA). Cooperative agreement
recipients are required to prepare an EE/CA or its equivalent as part of the
BCRLF response selection. (see NCP at 40 CFR §300.415(b)(4)(I).
e. Loan Capitalization. Capitalization of the loan fund refers to the obligation of
EPA assistance funds as "seed capital" for the CA recipient's loan program. A
loan program "revolves" when it uses loan repayments (principal, plus interest,
and fees) to make new loans for the same authorized purposes.
f. Loan Discount. A decision by the CA recipient to allow a borrower to repay less
than the full amount of a loan, subject to certain restrictions. These restrictions
include a 30% discount of the amount to be repaid by nonprofit borrowers and
20% discount for governmental borrowers. Additionally, the discounted amount
must be expended under the same conditions as the loan itself (including
compliance v,:ith C .F.1,:CLA the NCI', and other statutory obligations.
National, Oil and Ray.:ardons Substances Pollution Contingency Plan (NCP).
40 CFR Part 300, is the Federal regulation that governs the cleanup of releases of
hazardous substances, pollutants, and contaminants under CERCLA.
0 Federal Policy and Guidance
2. In implementing the demonstration pilot, the cooperative agreement recipient shall
consider EPA guidance for the BCRLF program as written in the BCRLF Administrative
Manual, dated May 1998, including any updates made to the Administrative Manual and all
other Federal brownfields policy and guidance. The cooperate agreement recipient should also
consider EPA's "Guidance on Conducting Non-Time-Critical Removal Actions Under
CERCLA," EPA/540-R-93-057, Pub. No. 9360.0-32, PB93-963402 (August 1993).
• 3. Applicable statutes and regulations take precedence over any descriptions contained in
the manual Or guidance. Applicable statutes and regulations include, but are not limited to,
CERCLA, 42 U.S.C. §§96001 to 9675; 40 C.F.R. Part 31 (Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local Governments);
40 .C.F.R. Part 35, Subpart 0 (Cooperative Agreements for SupertUnd Response Action); and
40 C.F.R. Part 300 (the NCP).
0 Cross-Cutting Federal Requirements
4. Cross-Cutting requirements are federal requirements applicable to the BCRLF by
operation of statutes, executive orders, and regulations. These requirements apply by the terms
of the statutes, executive orders and regulations, to projects and activities receiving federal
financial assistance, regardless of whether the statute authorizing the assistance mentions them
specifically. They include social and economic policy authorities on equal employment
opportunity and government-wide debarment and suspension rules.
5. The cooperative agreement recipient is responsible for complying with all applicable
cross-cutting requirements.
6. The cooperative agreement recipient is also responsible for ensuring that borrowers
(including borrowers receiving non-BCRLF loans guaranteed with BCRLF cooperative
agreement funds) comply with all applicable cross-cutting requirements. A term, condition or
other legally binding provision relating to cross-cutting requirements shall be included in all loan
or financial assistance agreements entered into with funds provided under a BCRLF cooperative
agreement.
7. Cross-cutting requirements apply to loans that are funded under this cooperative
agreement in combination with non-Federal sources of funds, and to loans awarded as a result of
BCRLF loan guarantees, to the extent of the Federal participation in the loan. Cross-cutting
requirements apply not only to the initial loans made with Federal funds but also to subsequent
loans made with program income derived from Federal participation in the fund. Within 90 days
of the date of award (i.e., the cooperative agreement start date), the cooperative agreement
zz:•
uccipient shall advise the EPA Project 011T -icier of the approach LOU ensuring compliance with
cross-cutting requirements applicable to this cooperative agreement. Cooperative agreement
recipients may take one of the approaches listed below to ensure that cross-cutting requirements
are met:
a. Include a term or condition in the loan agreement which will require the borrower to
maintain records which segregate expenditures from Federal and non-Federal sources. The
cross-cutting requirements apply to the Federal Expenditures.
b. Use an "equivalency" approach which reflects the amount of Federal funding included in
the cooperative agreement recipient's loan pool. The cooperative agreement recipient has the
discretion to choose which loans are subject to the cross-cutting requirements as long as the
cross-cutters are applied in proportion to the amount of Federal funds in the coOperative
agreement recipient's loan pool. An appropriate term and condition shall be included in all loans
subject to cross-cutting requirements.
c. ApplY the cross-cutting requirements to all loans funded under this cooperative
agreement. An appropriate term and condition shall be included in all loans subject to
cross-cutting requirements.
8. Environmental
a. Federal environmental cross-cutting requirements will be identified and applied on a
site-by-site basis in accordance with CERCLA and consistent with the NCP.
9. Social and Economic
a. EPA has developed a list of social and economic cross-cutting requirements that may
apply to the BCRLF (see the BCRLF Administrative Manual Section IX.B.2., Social and
Economic Cross-Cutters for a list of cross-cutting requirements). Additionally, other
cross-cutting requirements are referenced in Standard Form 424B, entitled "Assurances
Non-Construction Programs." The cross-cutting list and Standard Form 424B may not, however,
identify all cross-cutting requirements, and the cooperative agreement recipient is not relieved
from responsibility for complying with a cross-cutting requirement because it is not included on
the cross-cutting list or Standard Form 424B. The EPA will provide additional guidance on the
applicable of specific cross-cutting requirements if requested to do so by the cooperative
agreement recipient.
b. The cross-cutting list and Standard Form 424B identify cross-cutting requirements that
may be applicable to borrowers. The cross-cutting list and Standard Form 424B may not,
however, identify all cross-cutting requirements, and the cooperative agreement recipient is not
relieved from responsibility for ensuring that borrowers comply with a cross-cutting requirement
because it is not included on the cross-cutting list or Standard Form 424B.
c. The cooperative agreement recipient shall comply with the Davis Bacon Act of 1931.
Pursuant to CERCLA 104 (g)(1), the Davis Bacon Act applies to construction, repair, or
alteration work funded in whole or in part with BCRLF loans, or guaranteed with BCRLF funds.
0
A lerm and condition cnsuring that borrower: comply with One Davis Bacon Act shall be
included in all loan agreements made with BCRLF funds provided under this cooperative
agreement.
St:vte Agreements
10. Prior to incurring any costs under this cooperative agreement associated with a given site,
the recipient shall obtain, and shall forward to the EPA Project officer, written agreement from
the State that the recipient may assume the lead responsibility for removal activities at that site.
Intergovernmental Review (Under Federal Grants Regulations)
11. Proposers are responsible for contacting their State Intergovernmental Review Office
(single point of contact) to initiate applicable review processes as soon as possible after receiving
notification of intent to award (see 40 C.F.R. Part 29). If no State Intergovernmental Review
Office exists for a given state, or if the state has not selected the BCRLF program for review,
proposers aY6" responsible for distributing information about their prospective application to each
relevant reviewing agency. BCRLF applications are subject to §204 of the Demonstration Cities
and Metropolitan Development Act of 1966 (see 40 C.F.R. §§29.8(c)).
12. The start of work shall be delayed until the intergovernmental review process is
completed. The process is deemed complete if the reviewing agency has had a 60 day review
period, or provides comments prior to the expiration of this period. If comments requiring a
response by EPA are provided, then the process is deemed complete when the comments are
resolved.
13. EPA reserves the right to rescind an award and de-obligate funding based on comments
received during the intergovernmental review.
II. GENERAL COOPERATIVE AGREEMENT ADMINISTRATIVE
REQUIREMENTS
Substantial EPA Involvement
14. The EPA expects to be substantially involved in overseeing and monitoring the BCRLF
program. Substantial involvement by the EPA generally covers such activities as: monitoring;
review and approval of procedures for site and loan recipient selection; review or approval of
project phases; approval of substantive terms included in contracts; and overseeing operational
matters. Substantial involvement by the EPA also includes reviewing financial and
environmental status reports, consultation with the Lead Agency prior to the Lead Agency's
approval of site-specific Community Relations Plans, and approving quality assurance project
plans/sampling plans and insuring that all environmental cleanup actions initiated under the
BCRLF program are conducted in accordance with CERCLA and consistent with the NCP.
15. The EPA is responsible for monitoring the cooperative agreement recipient's fulfillment
of all reporting, record keeping, and other program requirements.
;)
0
Insurance Covera;?,-c In tac cica nu p
16. The cooperative agreement recipient may purchase insurance, including environmental
insurance, if the expense is incidental to costs it incurs as a lead agency associated with a specific
loan agreement or site cleanup. Purchase of environmental insurance by a cooperative agreement
recipient is subject to the 10 percent administrative cost limit.
17. The cooperative agreement recipient may allow borrowers to purchase insurance,
including environmental insurance, if the expense is incidental to, and associated with BCRLF
costs it incurs for site-specific cleanup activities (e.g. workers compensation). Incidental
insurance purchased by a borrower is not counted against the borrower's ten percent limit on
administrative costs.
18. With EPA approval, BCRLF funds may be used by a borrower for the sole purpose of
purchasing environmental insurance if the purchase of such insurance is necessary to carry out
other removal activities. Removal activities associated with BCRLF funded insurance must be
carried out iii accordancewith the terms and conditions of the cooperative agreement, CERCLA,
and the NCP.
Cooperative Agreement Recipient Roles and Responsibilities
19. The cooperative agreement recipient is the "lead agency" as defined in the NCP. The
lead agency is responsible for ensuring that BCRLF response actions are conducted in
conformance with CERCLA, the NCP, and the terms and conditions of this cooperative
agreement. As the lead agency, the cooperative agreement recipient is also responsible for
designating a qualified government employee as a "brownfields site manager" to coordinate,
direct and oversee BCRLF response actions at a particular site. The brownfields site manager is
an on-scene coordinator (OSC) and is responsible for carrying out the OSC duties described in
the NCP. The cooperative agreement recipient may acquire or otherwise engage the services of
other entities that have experience with overseeing and carrying out environmental response
actions to assist it in its capacity as lead agency; however, the role of "lead agency" cannot be
assigned or delegated to any entity other than the cooperative agreement recipient.
20. The cooperative agreement recipient shall act as or enlist the services of a "fund
manger." Fund management responsibilities include those related to financial management of
the cooperative agreement recipient's loan program. The cooperative agreement recipient may
acquire or otherwise engage the services of other entities that have experience with fund
management activities to assist the cooperative agreement recipient with fulfilling its fund
management responsibilities; however, the cooperative agreement recipient remains accountable
to EPA for the proper expenditure of cooperative agreement funds.
21. The cooperative agteement recipient shall ensure that BCRLF borrowers comply with all
federal and state requirements as well as the intent of the BCRLF program. The cooperative
agreement recipient shall ensure that the lead agency, the brownfields site manager, and the fund
manager consult with each other prior to any final loan decisions and as loan agreements are
developed to ensure that all BCRLF environmental response requirements will be met and that
BCRLF funds are used only for authorized activities.
4:5
The cooperative agreement recipient shall enter into legally authorized written
commitments (see Section 11.0. Written Commitments for Fulfillment of Cooperative Agreement
Terms) to obtain the services of other qualified agencies, organizations, or individuals.
Notwithstanding any such written commitment, the Cooperative Agreement recipient, remains
legally responsible for carrying out all the terms and conditions of the cooperative agreement and
complying with CERCLA and the NCP.
Written Commitments for Fulfillment of Cooperative Agreement Terms
23. Any transaction involving the transfer of cooperative agreement funds (with the
exception of loans) to acquire goods and services must comply with 40 C.F.R. §35.6550 through
§35.6610. Cooperative agreement recipients may use contracts or, when appropriate,
intergovernmental agreements as defined by 40 C.F.R. §35.6015 (a) to obtain necessary goods
and services. See also 40 C.F.R. §35.6550 (a)(11). Recipients may also use BCRLF funds to
provide nonprofit organizations with -financial assistance as defined by 40 CFR 31.3 "Subgrant".
This -financial assistance must be in the form of a sub-cooperative agreement to support the
organization's participation in the .BCRLF programas opposed to a non-competitive acquisition
of goods or services. See OMB Circular A-133, .210. Cooperative agreement recipients may
enter into Memoranda of Understanding or other agreements which do not transfer funds to any
appropriate entity.
24. The start of work shall be delayed until EPA approves the substantive terms of any
agreements (including non-financial Memoranda of Understanding) between the cooperative
agreement recipient and entity selected as fund manager and any entity which provides services
that the recipient will rely on as the lead agency.
III. FINANCIAL ADMINISTRATION REQUIREMENTS
Eligible Fund Uses
25. BCRLF funds shall be used for non-time critical removal activities only as defined in
CERCLA §101 (23) and described in 40 C.F.R. §300.415.
26. BCRLF funds may be used for sites that are:
a. Publically-owned, either directly by a municipality or indirectly through a quasi-public
entity such as a community development corporation; and
b. Privately-owned and with clear means of recouping BCRLF expenditures (e.g., through
an agreement with the owner or developer or through a lien or other security interests) -- this
includes sites undergoing Purchase by an entity who meets the definition of a prospective
purchaser.
27. At least 70% of the funds must be used by the cooperative agreement recipient to provide
loans.
Loan Discount. The CA recipient may ; but is not required 10 allow nonpront borrowers
to forego repayment of up to 30% of the loan amount. the CA recipient may also allow
governmental borrowers to forego repayment of up to 20% of the loan amount.
a. The loan repayment amount that has been discounted may only be used by the borrower
to carry out allowable clean up activities in compliance with terms of loan agreement such as
compliance with CERCLA, the NCP, the Davis-Bacon Act and cross-cutting requirements
applicable to the loan.
b. The CA recipient remains accountable for the proper expenditure of cooperative
agreement funds, • including ensuring that the borrower carries out the cleanup in accordance with
CERCLA and the NCP.
29. Direct Financial Assistance. The cooperative agreement recipient may use up to 20%
of the remaining cooperative agreement funds for costs incurred for site-specific activities
necessary to carry out the responsibilities as the lead agency. Funds may only be expended for
lead agency-activities directly related to the cleanup of a site where the cleanup is being financed,
all or in part, with loan funds.
All costs charged as site-specific direct financial assistance must finance lead agency
activities (including brownficIds site manager responsibilities) that are necessary for the
lead agency to carry out its responsibilities under Section 104 of CERCLA and the NCP.
Examples of these activities include:
a. determining whether BCRLF cleanup activities at a particular site are authorized by
CERCLA and the NCP based on site evaluation (described in the NCP at 40 C.F.R. § 300.410)
and on current site conditions;
b. ensuring that a BCRLF cleanup meets applicable or relevant and appropriate
requirements under Federal and State environmental laws, as required by 40 C.F.R. § 300.415(j);
.c. ensuring that the NCP public participation requirements (see, 40 C.F.R. § 300.415(n)) are
met. This includes ensuring the availability of documents, providing adequate public comment
periods, and designating a spokesperson to inform the community of actions taken, respond to
inquiries, and provide information;
d. establishing an administrative record for each site, as required by 40 C.F.R. § 300.800(a);
e. working with the .BCRLF Fund Manager, as loan agreements are developed, to ensure
that all environmental response requirements will be met and that BCRLF funds are used only
for authorized activities;
f. ensuring the adequacy of each BCRLF cleanup as it is implemented, including
confirmation sampling (development of the Quality Assurance Project Plan (QAPP) and actual
sampling.)
ensuring that a site is secure and that it poses 110 immediate threat to human health or the g.
0
environment, if a borrower is unable or unwilling to complete a 13C REF cleanup.
h. preparing an FU/CA or its equivalent.
30. All transactions involving the acquisition of products and services (including consulting
services) with direct financial assistance must be conducted in accordanez, with the procurement
requirements of 40 CFR Part 35, Subpart 0 and other applicable provisions of the cooperative
agreement.
Ineligible Fund Uses
31. BCRLF funds shall not be used for any of the following activities:
a. Pre-cleanup environmental response activities, such as site assessment, identification, and
characterization.
b. Cleanup of a naturally occurring substance, products that are part of the structure of and
result in exposure within residential buildings or business or community structures (e.g., interior
lead-based paint contamination or asbestos which results in indoor exposure), or public or private
drinking water supplies that have deteriorated through ordinary use -- except as determined on a
site-by-site basis and approved by EPA Headquarters, consistent with CERCLA §104(a)(3) and
(4).
c. Monitoring and data collection necessary to apply for, or comply with,, environmental
permits under other state and Federal laws, unless such a permit is required as a component of
the cleanup action. •
d. Development activities that are not removal actions (e.g., construction of a new facility or
marketing of property).
e. Award funds shall not be used to support job training.
f. Award funds shall not support "lobbying" efforts of the cooperative agreement recipient
(e.g., before the U.S. Congress, state legislatures, the EPA, or other Federal agencies), as
described in EPA guidance.
32. BCRLF funds may not be used at any sites:
a Listed, or proposed for listing, on the National Priorities List at 40 C.F.R. Part 300,
Appendix B.
b. At which a removal action must be taken within six months (i.e., time critical removal
action).
c. Where a Federal or state agency is planning or conducting . a response or enforcement
action; or
0
d. Contaminated by penoleum products except to address a non-petroleum hazardous
substance (e.g., co-mingled waste).
Non-cleanup Related Restrictions
The cooperative agreement recipient shall adhere to the following non-cleanup related
restrictions on the use of BCRLF pilot funds:
a. A cooperative agreement recipient shall not use award funds to meet a cost Sharing or
matching requirement for another Federal grant unless there is specific statutory authority for the
arrangement.CERCLA does not provide such authority. However, the borrower may use
BCRLF
pilot funds to match other federal funds.
b. The use of award funds to meet a cost sharing or matching requirement of state or local
grants is a matter of state or local law.
Borrower Eligibility
34. The cooperative agreement recipient may lend to itself, another agency or a component of
the cooperative agreement recipient. However, prior EPA approval is required for such •
arrangements (See July 7, 2000 EPA Memo regarding Clarification of Site Manager Role,
Lending to Yourself and Obligation Requirements Under the Brownfields Cleanup Revolving
Loan Fund Program).
35. The cooperative agreement recipient shall ensure that a party which is determined to be a
generator or transporter or contamination at brownfields site(s) is ineligible for a BCRLF pilot
loan for that same site.
36. The cooperative agreement recipient may initially find that an owner/operator of a
brownfields site(s) is an eligible borrower for a BCRLF pilot loan for that same site only if: the
lead agency can determine that an owner/operator would fall under a statutory exemption from
liability; or that the EPA could use its enforcement discretion to not pursue the party in question
under CERCLA, as described by EPA guidance. In addition, eligible borrowers may include an
owner/operator of contaminated brownfields properties who acquired the property after the time
of disposal or placement of hazardous substances if the lead agency determines that the owner/
operator has not caused, contributed to, permitted, or exacerbated the release of a hazardous
substance on, or emanating from that property. The initial findings made by the lead agency,
however, by no means limit the enforcement discretion or authority of the Federal or State
government. The lead agency shall maintain documentation demonstrating the eligibility of the
owner/operator.
37. A borrower must submit information regarding its environmental compliance history.
The cooperative agreement recipient will strongly consider this history in its analysis of the
borrower as a cleanup and business risk.
38. Each borrower must certify that they are not currently, nor have they been, subject to any
penalties resulting from enviammcntat non-compliance at the site subject to the loan.
39. Someone that has been suspended, debarred, or otherwise declared ineligible cannot be a
borrower.
0 • Use of Program Income
40. For BCRLF purposes, program income shall be defined as the gross income received by
the cooperative agreement recipient, directly generated by the cooperative agreement award or
earned during the period of the award (the time between the effective date of theaward and the
ending date of the cooperative agreement, as defined in 40 C.F.R. §3-1.25). In accordance with
40 C.F.R. §31.25 (g)(2), the recipient is authorized to add program income to the funds awarded
by the EPA and use the program income under the terms and conditions of this agreement,
including eligible administrative costs and BCRLF environmental response requirements. • •
41. Program income shall include prinCipal repayments, interest earned on outstanding loan
principal, interest earned on accounts holding BCRLF program income not needed for immediate
lending, all loan fees and loan-related charges received from borrowers, and other income
generated from BCRLF operations. In accounting for program income, any proceeds from the
sale, collection, or liquidation of a defaulted loan, up to the amount of the unpaid principal, and
any proceeds in excess of the unpaid principal shall be treated as program income and shall be
placed in the BCRLF for lending purposes or to cover administrative costs.
42. The cooperative agreement recipient shall maintain it fund for future borrowing needs
within the eligible lending area (as designated by the cooperative agreement recipient). To
determine the appropriate amount of program income to use for administrative expenses, fund
managers shall consider the costs necessary to operate a BCRLF program, the availability of
other monetary resources, the portfolio risk level and projected capital erosions from loan losses
and inflation, the community's (or area's) financial commitment to the BCRLF, and the
anticipated demand for BCRLF loans.
43. Up to 20% of the program income received from fees, loan repayments and interest on
loans and other sources received by the cooperative agreement recipient may be used for
site-specific lead agency costs. Up to 10% of the program income may be used for
administrative costs. The remaining 70% or more of program income must be used for making
new loans, which may include discounted repayment mechanism for nonprofit and governmental
borrowers.
44. In accordance with 40 C.F.R. §30.25(h), program income earned after the end of the
award period shall be used in accordance with the post-cooperative agreement closeout program
income terms and conditions below. Pursuant to 40 C.F.R. §31 .42(c)(3), recipients must
maintain records relating tO such program income.
Administrative Costs
45. • The cooperative agreement recipient that elects to use program income to cover all or part
of a BCRLF's administrative costs shall maintain adequate accounting records and source
documentation to substantiate the ameimt and percent ot . program income ,;!xpended for eligible
P,CRI.,F administrative costs, and comply with applicable OMR cost principles when charging
costs against program income. For any costs determined by the EPA to have been an ineligible
use of program income, the recipient shall reimburse the BCRLF or the EPA. EPA will notify the
recipient of the time period allowed for reimbursement.
'-1 6. The cooperative agreement recipient shall use no more than 10% of the total initial award
to cover a cooperative agreement recipient's (lead agency and fund manager) administrative and
legal costs (e.g., insurance, loan processing, professional services, audit, legal fees, and state
program fees), as negotiated between the EPA and the cooperative agreement recipient during
the cooperative agreement application and award process.
47. Allowable administrative costs may include loan processing, professional services,
administering the BCRLF, audit, legal fees, and state program fees. In addition, allowable
administrative costs shall . include the costs incurred by the cooperative agreement recipient in
ensuring that the borrower complies with Federal requirements related to the agreement, such as
public partiCipation, worker health and safety, and interagency coordination.
48. • The cooperative agreement recipient shall use no more than 10% of the borrower's
principal repayments to the fund, and may use up to 100 percent of the borrower's interest
payments and any program fees for eligible administrative costs. This is allowable for each loan
made and repaid to the fund.
49. . The cooperative agreement recipient shall allow borrowers to use no more than 10% of
borrowed funds for administrative costs. The cooperative agreement recipient (fund manager)
shall negotiate with the borrower a limit of up to ten percent of the total loan to cover both
administrative and cleanup response planning costs.
0 Method of Payment
50. . To comply with the Debt Collection Improvement Act of 1996, the cooperative
agreement recipient shall complete and return the "Payment Information Form ACH Vendor
Payment System" (U.S. Treasury Form 3881) with the signed assistance agreement.
51. The cooperative agreement recipient shall make positive assertions regarding its fund
management capabilities and provide necessary certifications prior to any receipt of cooperative
agreement funds. In particular, the cooperative agreement recipient shall certify that its
. accounting system is adequate to identify, safeguard, and account for all BCRLF funds,
'including BCRLF program income. The cooperative agreement recipient also shall certify that
BCRLF loan documents necessary for lending are in place and that these documents have been
reviewed by the recipient's legal counsel for compliance with applicable state and local law and
compliance with all other terms and conditions of the award.
Future Funding
52. Neither EPA, nor any other federal agency has an obligation to provide any additional
funding in connection with this award. Any renewal of this award to increase funding is at the
0
sole diseretion of the EPA.
'tact:est-Dearing Accounts
53. With respect to interest earned or advances, cooperative agreement recipients are subject
to the provisions of 40 C.F.R. §§ 31.21(h)(2)(1) and 35.6280(a)(2).
IV. BCRLF ENVIRONMENTAL RESPONSE REQUIREMENTS
Applicable Authority
54. All environmental response activities carried out using BCRLF funds shall be conducted
in accordance with CERCLA and consistent with the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP), 40 C.F.R. 300.1 et seq. The cooperative agreement
recipient shall ensure that borrowers of BCRLF funds conduct all activities in accordance with
CERCLA and consistent'with the NCP, and in accordance with all terms and conditions of
this cooperative agreement.
Authorized BCRLF Response Actions
55. BCRLF funds shall only be used to carry out non-time critical removal activities
authorized by CERCLA and the NCP. For the purposes of this document, the term "BCRLF
response" is equivalent to "non-time critical removal action," which is described in 40 C.F.R.
300.415(b)(4). The cooperative agreement recipient shall also consider guidance described in the
most current version of the BCRLF Administrative Manual.
56. BCRLF funds may only be used to conduct response actions at brownfields sites, and the
cooperative agreement recipient shall consider whether cleanup of a particular site will
significantly contribute to local community revitalization.
57. The cooperative agreement recipient's findings and decisions with respect to whether a
BCRLF response action is authorized at a particular site and what response action is appropriate
shall be documented in writing, as described in the most current version of the BCRLF
Administrative Manual.
58. The cooperative agreement recipient shall ensure that loan decisions and/or agreements
do not preclude the ability of the cooperative agreement recipient to change a BCRLF response,
or any portion of response, based on comments from the public or on any new information
acquired.
Sampling and Analysis
59. If environmental samples are to be collected as part of the BCRLF response action (e.g.,
cleanup verification sampling, post-cleanup confirmation sampling), the cooperative agreement
recipient shall develop sampling and analysis plans that provide a process for obtaining data of
sufficient quality and quantity to satisfy data needs. In accordance with 40 C.F.R. Part 35,
Subpart 0, field work may not begin until EPA has approved the cooperative agreement
0
recipient's quality assurance project plan i.ind sampling plan.
These requirements do not apply to other environmental samples collected without
BCRLF monies and prior to the BCRLF response (e.g., Phase II sampling data submitted
by a borrower supporting a loan application). However, if the cooperative agreement
recipient relies on this data to support a determination that a BCRLF response is
authorized and/or to support the selection of a BCRLF response, the cooperative
agreement recipient shall ensure that such data is adequate and reliable.
Community Relations and Public involvement in BCRLF Response Actions
60. All BCRLF activities shall be conducted consistent with the community relations and
public involvement requirements in the NCP.
Administrative Record
61. The cooperative agreement recipient shall establish an administrative record, consistent
with the requirements in the NCP, which contains the information forming the basis for the
selection of any BCRLF response action.
• Implementation of BCRLF Response Actions
62. The cooperative agreement recipient shall ensure the inadequacy of each BCRLF
response as it is implemented. Each loan agreement shall contain terms and conditions which
allow the cooperative agreement recipient to change response activities as necessary.
63. If the selected response action will not fully address threats posed by a release at a site, or
a borrower is unable or unwilling to complete the BCRLF response, the Cooperative Agreement
recipient shall ensure that the site is secure and poses no immediate threat to human health or the
environment. The Cooperative Agreement recipient shall notify the appropriate state agency and
the EPA to ensure an orderly transition to other appropriate response activities.
• Completion of BCRLF Response
64. The cooperative agreement recipient shall ensure that the completion of a BCRLF
response is documented in a report as described in the most current version of the BCRLF
Administrative Manual.
O t ova e Voluntary Cleanup Programs
65. The cooperative agreement recipient shall ensure that any BCRLF response actions
conducted under a State V6luntary Cleanup program are carried out in accordance with the
substantive and procedural requirements of CERCLA and the NCP, and all terms and conditions
of this cooperative agreement.
V. REVOLVING LOAN FUND REQUIREMENTS
l'utiticat 1dlldO g
66. The cooperative agreement recipient shall not incur costs under this cooperative
agreement related to loans until a BCRLE pilot work plan has been submitted to the EPA and
EPA has approved it. The cooperative agreement recipient shall ensure that the overall objectives
of the fund are met through its or the fund manager's selection and structuring of individual loans
and lending practices. These activities shall include, but not be limited to the following:
a. Establishing appropriate project selection criteria consistent with Federal and state
requirements, the intent of the BOUT program, and the cooperative agreement entered into with
EPA.
b. Establishing threshold eligibility requirements whereby only potential borrowers are
eligible to receive BCRLF financing.
c. Developing a formal protocol for potential borrowers to demonstrate eligibility, based on
the procedures described in the initial BCRLF application proposal and cooperative agreement
application. Such a protocol shall include descriptions of projects that will be funded, how loan
monies will be used, and qualifications of the borrower to make legitimate use of the funds.
Additionally, cooperative agreement recipients shall ask borrowers for an explanation of how a
project, if selected, would be consistent with BCRLE program objectives.
d. Requiring that borrowers submit information describing the borrower's environmental
compliance history. The cooperative agreement recipient shall strongly consider this history in an
analysis of the borrower as a cleanup and business risk.
e. Establishing procedures for handling the day-to-day management and processing of loans
and repayments.
f. Establishing standardized procedures for the disbursement of funds to borrowers.
Inclusion of Special Terms and Conditions in BCRLF Loan Documents
67. The cooperative agreement recipient shall ensure that the borrower meets the cleanup and
other program requirements of the BCRLF pilots by including the following special terms and
conditions in BCRLF loan agreements:
a. Borrowers shall use funds only for eligible activities.
b. Borrowers shall document all funds used.
c. Borrowers shall n-iintain documentation—for a minimum of 10 years after the completion
of the cleanup activity supported by the loan or for the length of the loan, whichever is longer.
Borrowers shall obtain written approval from the lead agency prior to disposing of records.
d. Borrowers shall use no more than 10 percent of the loan for allowable non-cleanup
activities.
c. Borrowers shall certify that they arc not currently, nor have they been, subject to any
penalties resulting from environmental non-compliance at the site subject to the loan.
Borrowers shall conduct BCRLF response activities in accordance with the cooperative
agreement and CERCLA and consistent with the NCP.
g. Borrowers shall modify response activities as required by the lead Agency in accordance
with CERCLA and the NCP.
0 Default
68. In the event of a loan default, the cooperative agreement recipient shall make reasonable
efforts to enforce the terms of the loan agreement including proceeding against the assets pledged
as collateral to cover losses to the loan. If the cleanup is not complete at the time of default, the
cooperative agreement recipient is responsible for: (1) documenting the nexus between the
amount paid to the bank or other financial institution and the cleanup that took place prior to the
• default; and (2) securing the site (e.g., ensuring public safety) and informing the EPA Project
Officer and the State.
Conflict of Interest
69. The cooperative agreement recipient shall establish and enforce conflict of interest
provisions governing the roles and responsibilities of the lead agency, fund manager, brownfields
site manager and borrower. These. provisions must address the situations described at 40 C.F.R.
31 .36(b)(3) and 35.6550(b).
0 Loan Guarantees
70. If the cooperative agreement recipient uses BCRLF funds for a loan guarantee, the
recipient shall: (1) document the relationship between the expenditure of CERCLA 104 (d) funds
and response actions; (2) maintain an escrow account expressly for the purpose of guaranteeing
loans, by following the payment requirement described under the Escrow Requirements terms
and conditions; and (3) ensure that response actions guaranteed by BCRLF funds are carried out
in accordance with CERCLA and consistent with the NCP.
71. Escrow Requirements - Payment of funds to a cooperative agreement recipient shall not
be made until a guaranteed loan has been issued by a participating financial institution. Loans
guaranteed with BCRLF funds shall be made available as needed for specified cleanup activities
on a "actual expense" or "schedule" basis to the borrower. (See, section VII. A, Methods of
Disbursement). The cooperative agreement recipient's escrow arrangement shall be structured to
ensure that the CERCLA 104 (d) funds are properly "disbursed" by the recipient for the purposes
of the assistance agreement as required by 40 C.F.R. §31.20 (b) (7) and §31.21(c). If the funds
are not properly disbursed, the CERCLA § 104 (d) funds that the recipient places in an escrow
account will be subject to the interest recovery provisions of 40 C.F.R. §31.21(i).
72. To ensure that funds transferred to the cooperative agreement recipient are disbursements
of assisted funds, the escrow account shall be structured to ensure. that: (I.) the recipient cannot
retain the funds; (2) the recipient must not have access to the CSCrONV funds on demand; (3) the
funds remain in escrow unless there is a default of a guaranteed loan; (4) the organization
holding the escrow, i.e., the escrow agency, shall be a bank or -similar financial institution that is
independent of the recipient; and (5) there must be an agreement with financial institutions
participating in the guaranteed loan program which documents that the financial institution has
made a guaranteed loan to clean up a brownfields site in exchange for access to funds held in
escrow in the event of a default by the borrower.
73. Federal Obligation to the Loan Guarantee Program - Any obligations that the cooperative
agreement recipient incurs for loan guarantees in excess of the amount awarded under the
cooperative agreement are the cooperative agreement recipient's responsibility. This limitation
on the extent of the Federal Government's financial commitment to the cooperative agreement
recipient's loan guarantee program shall be communicated to all participating banks and
borrowers.
74. Repayment of Guaranteed Loans - Upon repayment of a guaranteed loan and release of
the escrow amount by the participating financial institution, the cooperative agreement recipient
shall return the cooperative agreement funds placed in escrow to the U.S. Environmental •
Protection Agency. Alternatively, the cooperative agreement recipient may, with EPA approval,
(1) guarantee additional loans under the terms and conditions of the agreement (2) or, amend the
terms and conditions of the agreement to provide for another disposition of funds that will
redirect the funds for other brownfields related activities.
VI. AUDITS
75. The cooperative agreement recipient shall ensure that periodic program audits are
conducted by an outside auditor in accordance with General Accounting Office (GAO)
accounting standards or generally accepted government auditing standards. Furthermore, the
cooperative agreement recipient shall comply with all applicable requirements of the Single
Audit Act of 1984, as amended and implemented by 01\4B Circular A-133, Audits of States,
Local ,Governments, and Non -Profit Organizations. In addition, the cooperative agreement
recipient shall, as a condition of making a loan, require borrowers to maintain project accounts in
accordance with generally accepted accounting principles.
VII. DISBURSEMENT, PAYMENT, AND CLOSEOUT
Methods of Disbursement
76. For purposes of these terms and conditions, the following definitions apply:
a. "Payment" is the EPA's transfer of funds to the cooperative agreement recipient.
b. The cooperative agreement recipient incurs an "obligation" when it enters into a loan
agreement with the borrower.
c. "Disbursement" is the transfer of funds from the cooperative agreement recipient to the
0 01TOVAft*.
d. "Close out" refers to the process that the EPA follows to ensure that all administrative
actions and work required under the cooperative agreement have been completed, and to
dc-obligate funds that the recipient has been unable to use.
77. The cooperative agreement recipient may choose to disburse funds to the borrower by
means of 'actual expense' or 'schedule'.
a. An 'actual expense' disbursement approach requires the cooperative agreement recipient
to submit documentation of the borrower's expenditures (e.g., invoices) to EPA to request
payment.
b. A 'schedule' disbursement is one in which all, or an agreed upon portion, of the obligated
funds are disbursed to the borrower on the basis of an agreed upon schedule (e.g., progress
payments) or upon execution of the loan. The cooperative agreement recipient shall submit
documentation of disbursement schedules to EPA.
78. If the disbursement schedule of the loan agreement calls for disbursement of the entire
amount of the loan upon execution, the cooperative agreement recipient shall demonstrate to
EPA's Project Officer that tins method of disbursement is necessary for purposes of cleaning up
the site covered by the loan. Further, the cooperative agreement recipient shall include an
appropriate provision in the loan agreement which ensures that the borrower uses loan funds
promptly for costs incurred in connection with the cleanup and that interest accumulated on
schedule disbursements is applied to the cleanup.
Payment Schedule
79. The cooperative agreement recipient may request payment from EPA pursuant to 40
C.F.R. 35.6280 after it incurs an obligation or has an administrative expense. EPA will make
payments to the cooperative agreement recipient on a schedule which minimizes the time
elapsing between transfer of funds from EPA and disbursement by the recipient. The recipient
may request payments when it receives a disbursement request from a borrower based on the
borrower's incurred costs under the "actual expense" method or the schedule for disbursement
under the "schedule" disbursement method. The cooperative agreement recipient shall disburse
accrued program income to meet all or part of this obligation or administrative expenses prior to
requesting payment from EPA.
Schedule for Closeout
80. There are two fundamental criteria for closeout: (1) final payment of funds from EPA to
the cooperative agreement-recipient; and (2) completion of all cleanups funded by the amount of
the award.
81. To close out the cooperative agreement all payments to the cooperative agreement
recipient must be complete. The first criterion of cooperative agreement closeout is met when the
cooperative agreement recipient receives all payments from EPA.
0
The second closeout criterion is met when all cleanups lunded by the initial amount of the
award are complete. All cleanups must he completed within 12 months From the date that on-site
cleanup activity is initiated, unless EPA determines, consistent with CERCLA § 104(c)(1) and
the NCP at 40 C.F.R. §300.415(b)(5), that the response may continue.
83. The cooperative agreement recipient shall have three years from the cooperative
agreement start date to obligate all the funds awarded (i.e., the BCRLF principal). Final payment
and disbursement of award funds shall be complete within five years from the agreement start
date. Any accrued program income (i.e., fees, repayments of interest, repayments of principal,
and other income) must be disbursed before requesting final payment from EPA (per 40 C.F.R.
§31.21(1)). The schedule of obligation shall be no less than 50 percent of the amount awarded
within 18 months; 80 percent within two years; and 100 percent within three years.
Compliance with Closeout Schedule
84. If a 6o-operative agreement recipient fails to comply with the closeout schedule, any
cooperative agreement funds not obligated under loan agreement to a borrower may be subject to
federal recovery, and the cooperative agreement award amended to reflect the reduced amount of
the cooperative agreement.
0 Capital Utilization Standard
85. Subsequent to full payment of award funds, the cooperative agreement recipient shall
manage its repayment and lending activities to maintain 50 percent or more of the BCRLF
capital loaned out or committed at all times.
Recovery of BCRLF Assets
86. In case of termination for cause or convenience, the cooperative agreement recipient shall
return to EPA its fair share of the value of the BCRLF assets consisting of cash, receivables,
personal and real property, and notes or other financial instruments developed through use of the
funds. EPA's fair share is the amount computed by applying the percentage of EPA participation
in the total capitalization of the BCRLF to the current fair market value of the assets thereof.
EPA also has remedies under 40 C.F.R. 31.43 when the Agency determines that the value of such
assets has been reduced by improper/illegal use of cooperative agreement funding. In such
instances, the cooperative agreement recipient may be required to compensate EPA over and
above the Agency's share of the current fair market value of the assets.
Post Cooperative Agreement Program Income
87. After the end of the award period, the cooperative agreement recipient shall use program
income in a manner consistent with the terms and conditions of the cooperative agreement
affecting disposal of program income, eligible administrative costs, and environmental
compliance in accordance with CERCLA and consistent with the NCP, and as provided in this
agreement. In accordance with 40 C.F.R. § 31.42 (c)(3), the cooperative agreement recipient
shall maintain appropriate records to document compliance with these requirements (i.e., records
/ I
relating to the use of post-award prot ,Jain income). 1:1)A. may request 'access to these records or
litLly negotiate post closeout reporting requirements to verify that post-award program income has
been used in accordance with the terms and conditions of the original agreement.
88. When the cooperative agreement has been closed out (i.e., the cooperative agreement
recipient has met all funds use and cleanup requirements), remaining funds not obligated by the
cooperative agreement recipient via a loan agreement shall be returned to the Superfund Trust
Fund, or the Region may choose to modify the award to allow the recipient to use ftmds for other
activities consistent with brownfields cleanup.
FISCAL NOTE (MISC. 102285) November 21, 2002
BY: FINANCE COMMITTEE, SUE ANN DOUGLAS, CHAIRPERSON
IN RE: DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT / WASTE RESOURCE
MANAGEMENT DIVISION - ACCEPTANCE OF UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY BROWNFIELDS CLEANUP REVOLVING LOAN FUND - BCRLF
TO THE OAKLAND COUNTY BOARD OF COMMISSIONERS
Chairperson, Ladies and Gentlemen:
Pursuant to Rule XII-C of this Board, the Finance Committee has
reviewed the above referenced resolution and finds:
1. The resolution authorizes acceptance of the Brownfields Cleanup
Revolving Loan Fund (BCRLF) grant from the U.S. Environmental
Protection Agency in the amount of $1,000,000.
2. Funding is designated in the amounts of $500,000 for loan
capitalization directed at site cleanup, $200,000 for loan
capitalization directed at cleanup for housing, $200,000 for site
specific activities, and $100,000 for loan pilot administration.
3. The County will be reimbursed for all grant administrative
support as well as direct administration for oversight of
cleanups and loan capitalization.
4. The project and budget period is for two (2) years from October
1, 2002 through September 30, 2004.
5. Funding has been budgeted for salaries and fringe benefits.
However, no personnel decisions have been made and expenses will
not be made without prior authorization from the Board of
Commissioners.
6. Further budget detail, including personnel changes, is currently
being formulated and will be addressed in a future miscellaneous
resolution.
7. Grant funds will cover all program costs. No County match or
General Fund/General Purpose appropriation is required.
8. The award is the same amount as the original grant application.
9. The FY 2003 Special Revenue Budget is amended as follows:
Revenue
19-110001-13020-0113
Expenditure
19-210021-13020-2001
19-210021-13020-2074
19-210001-13020-2880
19-210021-13020-3348
19-210021-13020-3756
19-210021-13020-4100
19-210021-13020-4252
Grants - Federal $1,000,000
Salaries $ 105,000
Fringe Benefits 41,250
Grant Program 700,000
Professional Services 135,000
Travel & Conference 6,250
Expendable Equipment 4,000
Office Supplies 8,500
$1,000,000
FINANCE COMMITTEE
FINANCE COMMITTEE
Motion carried unanimously on a roll call vote with Obrecht, Taub and
Friedman Appel absent.
roRECe" I HEREBY
, County Executive Date
/1/24/0 z,
Resolution #02285 November 21, 2002
Moved by Palmer supported by Appel the resolution be adopted.
AYES: Galloway, Garfield, Gregory, Law, McPherson, Melton, Middleton, Moffitt, Moss, Obrecht,
Palmer, Patterson, Sever, Suarez, Taub, Webster, Amos, Appel, Buckley, Causey-Mitchell,
Coleman, Crawford, Dingeldey, Douglas. (24)
NAYS: None. (0)
A sufficient majority having voted therefore, the resolution was adopted.
STATE OF MICHIGAN)
COUNTY OF OAKLAND)
I, G. William Caddell, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true
and accurate copy of a resolution adopted by the Oakland County Board of Commissioners on
November 21, 2002, with the original record thereof now remaining in my office.
In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at
Pontiac, Michigan this 21st day of November, 2002.
G. William Caddell, County Clerk