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HomeMy WebLinkAboutResolutions - 2004.11.18 - 27620November 18, 2004 MISCELLANEOUS RESOLUTION #04321 BY; Planning and Building Committee, Charles E. Palmer, Chairperson IN RE: DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT / SOLID WASTE RESOURCE MANAGEMENT - UNITED STATES ENVIRONMENTAL PROTECTION AGENCY BROWNFIELDS CLEANUP REVOLVING LOAN FUND- (BCRLF) SUPPLEMENTAL GRANT- ACCEPTANCE 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 Solid Waste Resource Management Unit 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 $394,350; and, WHEREAS the EPA has awarded Oakland County a $394,350 grant, for the period starting in 2004; and, WHEREAS funds will be used to reimburse the County for all grant programmatic 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 $394,350. 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 2005 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. G & BUILDING COMMITTEE Planning & Building Committee Vote: Motion carried on unanimous roll call vote with Coleman absent Brad J. Hansen From: • Greg Givens [givensg@co.oakland.mi.us ] Sent: Wednesday, October 27, 2004 10:55 AM To: Doyle, Larry; Hansen, Brad; Jones, Hayes Cc: Keller, Wayne; Smith, Laverne; Frederick, Candace; Wenzel, Nancy; Pardee, Mary; Hanger, Helen Subject: CONTRACT REVIEW — Community & Economic Development CONTRACT REVIEW - Community 6, Economic Development GRANT NAME: Brownfield Cleanup Revolving Loan Fund FUNDING AGENCY: US Environmental Protection Agency DEPARTMENT CONTACT PERSON: Brad Hansen / 88073 STATUS: Acceptance DATE: October 27; 2004 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. 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. Department of Management and Budget: Approved.- Laurie Van Pelt (10/26/2004) Department of Human Resources: Approved. - Ed Poisson (10/14/2004) Risk Management and Safety: Approved. - Gerald Mathews (10/19/2004) Corporation Counsel: have reviewed the proposed grant for the Brownfield Cleanup Revolving Loan Fund. There are no outstanding legal issues and I approve the same on behalf of Corporation Counsel. - Mary Mara (10/26/2004) 1 BF - 97570902 - 0 Page 1 ASSISTANCE ID NO. e0D S7:44.,0 U.S. ENVIRONMENTAL PRG l DOC ID IAMEND# DATE OF AWARD I '.5 PROTECTION AGENCY , r,",) • - Ail BF - 9570902 - 0 m 1100' § TYPE OF ACTIO 7 N MAILING DATE ‘1/4 a New r,T 0 f,z,, nu P -- — ' 4? Cooperative Agreement PAYMENT METHOD: ACH# .41- ppicos 1 i • RECIPIENT TYPE: Send Payment Request to: County Comptroller Branch, MF-10J 77 West Jackson Blvd. .' ,.. .4.4 , RECIPIENT: County of Oakland Michigan County of Oakland Michigan 1200 N. Telegraph 1200 N. Telegraph Exective Office Building Exective Office Building 34 East 34 East Pontiac, MI 48341 Pontiac, MI 48341 EIN: 38-6004876 PROJECT MANAGER EPA PROJECT OFFICER EPA GRANT SPECIALIST Bradley J. Hansen Craig Mankowski Karen Sykes - 1200 N. Telegraph 77 West Jackson Blvd., SM-5J Assistance Section, MC-1OJ Exective Office Building Chicago, IL 60604-3507 E-Mail: sykes.karenepamaiI.epa.gov 34 East E-Mail: Mankowski.CraigepamaiI.epa.gov Phone: (312) 886-7571 Pontiac, MI 48341 Phone: (312) 886-9493 PROJECT TITLE AND DESCRIPTION BROWNFIELD REVOLVING LOAN TRANSITION - OAKLAND COUNTY Additional funds being provided to the County of Oakland for continued support of their Brownfield Revolving Loan Program BUDGET PERIOD PROJECT PERIOD TOTAL BUDGET PERIOD COST TOTAL PROJECT PERIOD COST 10/01/2004 - 09/30/2006 10/01/2004 - 09130/2006 4'' $394,350.00 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 IVE A ifii 6 UM& 6 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 $394,350 for the support of approved budget period effort described in application (including all application modifications) cited in the Project Title and Description above, signed 07116/2004 included herein by reference. ISSUING OFFICE (GRANTS MANAGEMENT OFFICE AWAR n APPROVAL OFFICE ORGANIZATION I ADDRESS 'DRESS 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 „----1 THE UNITED STATES OF AMERICA BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY SIGNATURE,OF AWARD OF fiCIAL TYPED NAME AND TITLE DATE .4" _:..... . A RICHARD C. : a . • : :FUND DIVISION q-26'''-oc This agreement is subject 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 COMMISSIONERS BE- 97570902 - 0 Page 1 ASSISTANCE ID NO. .A.teD stk.-U.S. ENVIRONMENTAL PRG I DOG ID 1 AMEND# DATE OF AWARD t elk .6 SEP 2 8 7004 Ilk • , PROT'EC TYPE OF ACTION "T"N AGENCY BF - 97570902 - 0 22 . iv ' i MAILING DATE New ,,,*, , ': , , eg al • OCT 0 5 rtrik Cooperative Agreement PAYMENT METHOD: ACH# ., 44 FRO t MAP RECIPIENT TYPE: Send Payment Request to: County Comptroller Branch, MF-10J 77 West Jackson Blvd. C inn n II 60604 RECIPIENT: County of Oakland Michigan County of Oakland Michigan 1200 N. Telegraph 1200 N. Telegraph Exective Office Building Exective Office Building 34 East 34 East Pontiac, MI 48341 Pontiac, MI 48341 EIN: 38-6004876 PROJECT MANAGER EPA PROJECT OFFICER EPA GRANT SPECIALIST Bradley J. Hansen Craig Mankowski Karen Sykes 1200 N. Telegraph 77 West Jackson Blvd., SM-5J Assistance Section, MC-10J Exective Office Building Chicago, IL 60604-3507 E-Mail: sykes.karen@epamaiLepagov 34 East E-Mail: Mankowski.Craig@epamail.epa.gov Phone: (312) 886-7571 Pontiac, MI 48341 Phone: (312) 886-9493 E-Mail: hansenb@co.oakland.mi.us Phone: 248-858-8073 PROJECT TITLE AND DESCRIPTION BROWNFIELD REVOLVING LOAN TRANSITION - OAKLAND COUNTY Additional funds being provided to the County of Oakland for continued support of their Brownfield Revolving Loan Program BUDGET PERIOD ' PROJECT PERIOD TOTAL BUDGET PERIOD COST TOTAL PROJECT PERIOD COST 10/01/2004 - 09/30/2006 10/01/2004 - 09/30/2006 3.4 350.00 $394,350.00 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 Michician_ for 100.00 % of all approved costs incurred up to and not exceeding_ $394,350 for the support of approved budget period effort described in application (including all application modifications) cited in the Project Title and Description above, signed 0711612004 included herein by reference. ISSUING OFFICE (GRANTS MANAGEMENT OFFICE AwAqD APPROVAL OFFICE ORGANIZATION / ADDRESS ORGANIZAJION LAI3DRESS 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 SIGNATURE_OF AWARD OF ICIAL TYPED NAME AND TITLE DATE 4' ii.- f RICHARD n I.: • : • : ' ' FUND DIVISION q.26---0 - This agreement is subject 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 COMMISSIONERS EPA Funding Information BF - 97570902 - 0 Page 2 FUNDS FORMER AWARD THIS ACTION AMENDED TOTAL EPA AmountAmount This Action $ $ 394,350 $ 394,350 EPA In-Kind Amount $ $ $ 0- Unexpended Prior Year Balance $ $ r $0 . Other Federal Funds $ $ $ 0 Recipient Contribution $ $ $ 0- State Contribution $ $ $ 0' Local Contribution $ $ $ 0' Other Contribution _.... $r— $ 0 Allowable Project Cost $ 0 $ 394,350 $ 394,350' Assistance Program (CFDA) Statutory Authority , Regulatory Authority 66.818 - Brownfields Assessment and Cleanup CERCLA: Sec. 101(39) 40 CFR PART 31 Cooperative Agreements Fiscal Site Name DCN FY Approp. Budget PRO Object Site/Project Cost Obligation / Code Organization Class Organization Deobligation - STX081 04 E4 05FOAG7 402D79E 41.14 G53MOLOO _ 394,350 . 394,350 , . Interagency Agreements" to the EPA Award Official by October 30 of each year. f) In the event race and/or gender neutral efforts prove to be inadequate to achieve a fair share objective for MBE/WBEs, 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. 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 2004 "fair share" objectives and require all of its prime contractors to include in their bid documents for subcontracts the applicable FY 2004 "fair share" percentages and to comply with paragraphs (c) through (e) above. 4. NATIONAL HISTORIC PRESERVATION ACT Prior to conducting or engaging in any on-site activity with the potential to impact historic properties (such as invasive sampling or cleanup), the grantee shall consult with EPA regarding potential applicability of the National Historic Preservation Act and, if applicable shall assist EPA in complying with any requirements of the Act and implementing regulations. 5. 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 the requirements set forth in Section 6002 of the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 6962). Regulations issued under RCRA Section 6002 apply to any acquisition of an item where the purchase price exceeds $10,000 or where the quantity of such items acquired in the course of the preceding fiscal year was $10,000 or more. RCRA Section 6002 requires that preference be given in procurement programs to the purchase of specific products containing recycled materials identified in guidelines developed by EPA. These guidelines are listed in 40 CFR 247. 6. 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. Therefore, all assistance agreements with a starting date of October 1, 1994, or later, must include the above special condition if the budget includes Federal funds to pay for a conference "at a place of public accommodation". 7. RECYCLED PAPER In accordance with EPA Order 1000.25 and Executive Order 13101, Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition , the recipient agrees to use recycled paper for all reports which are prepared as a part of this agreement and delivered to EPA. This requirement does not apply to reports prepared on forms supplied by EPA, or to Standard Forms, which are printed on recycled paper and are available through the General Services Administration. Please note that Section 901 of E.O. 13101, dated September 14, 1998, revoked E.O. 12873, Federal Acquisition, Recycling, and Waste Prevention in its entirety. 8. REPORTING - QUARTERLY Programmatic status reports will be submitted to U.S. EPA on a quarterly basis, within 30 days following the end of the quarter. Financial Status reports will be submitted annually, 45 days after the anniversary date of the award. 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. 9. 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): 9) BF - 97570902 - 0 Page 4 Administrative Conditions TERMS AND CONDITIONS THIS AWARD IS IN RESPONSE TO THE RECIPIENT'S APPLICATION SUBMITTED JULY 16, 2004. 1. 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. 2. DEBARMENT AND SUSPENSION Recipient shall fully comply with Subpart C of 40 CFR Part 32, entitled "Responsibilities of Participants Regarding Transactions." Recipient is responsible for ensuring that any lower tier covered transaction, as described in Subpart B of 40 CFR Part 32, entitled "Covered Transactions," includes a term or condition requiring compliance with Subpart C. Recipient is responsible for further requiring the inclusion of a similar term or condition in any subsequent lower tier covered transactions. Recipient acknowledges that failing to disclose the information required under 40 CFR 32.335 may result in the delay or negation of this assistance agreement, or pursuance of legal remedies, including suspension and debarment. Recipient may access the Excluded Parties List System at http://epls.arnet.00v. This term and condition supersedes EPA Form 5700-49, "Certification Regarding Debarment, Suspension, and Other Responsibility Matters." 3. 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 2004 "fair share" goals negotiated with EPA by the State as follows: Combined Rate: MBE: 3% WBE: 5% If the recipient does not want to rely on applicable State's MBE/WBE 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 2004 "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 2004 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) For assistance awards for continuing environmental programs and assistance awards with institutions of higher education, hospitals and other non-profit organizations, submit an EPA Form 5700-52A, "MBE/WBE Utilization Under Federal Grants, Cooperative Agreements and 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 affirmativesteps in subparagraphs a. through e. of this condition.1 10. QUALITY ASSURANCE PROGRAM PLAN A Quality Assurance Project Plan (QAPP) must be submitted to EPA at least 90 days prior to the planned start date for field sampling, and field sampling must not commence until approval of the QAPP is obtained from EPA. Costs associated with environmental measurement or data collection for monitoring are not allowable costs unless a QAPP and sampling plan are submitted and approved, nor will such costs be reimbursed. In the event a generic, multi-site QAPP is submitted and approved, site-specific sampling plans for each assessment will need to be submitted 14 days prior to the planned start date for field sampling. The site sampling must include a site specific health and safety plan. Programmatic Conditions Revolving Loan Fund IRLF) Terms and Conditions Please note that these Terms and Conditions (T&Cs) apply to brownfields grants under 104(k) and those that chose to transition to 104(k). They do not apply to pre-FY 2003 grants subject to 104(d). I. GENERAL FEDERAL REQUIREMENTS A. Federal Policy and Guidance 1. a. Cooperative Agreement Recioients: In implementing this agreement, the cooperative agreement recipient (CAR) shall comply with and require that work done by borrowers and subgrant recipients with cooperative agreement funds comply with the requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 104(k). The CAR will ensure that cleanup activities supported with cooperative agreement funding comply with all applicable Federal and State laws and regulations. The CAR will ensure cleanups are protective of human health and the environment. b. CAR's must consider whether they are required to have borrowers or subgrant recipients conduct cleanups under a State or Tribal response program. If the CAR chooses not to require borrowers and subgrant recipients to participate in a State or Tribal response program, then the CAR is required to consult with the Environmental Protection Agency (EPA) on each loan or subgrant to ensure the proposed cleanup is protective of human health and environment. c, Optional T&C for CAR recipients that choose to participate in State or Tribal response programs that do not have a promulgated program. If the State or Tribe does not have a promulgated Response Program, then the CAR is required to consult with the Environmental Protection Agency (EPA) to ensure protectiveness of human health and environment, 2. Borrowers and Suborant recipients: A term and condition or other legally binding provision shall be included in all loans and subgrants entered into with the funds under this agreement, or when funds awarded under this agreement are used in combination with non-Federal sources of funds, to ensure that borrowers and subgrant recipients comply with all applicable Federal and State laws and requirements. In addition to CERCLA 104(k) Federal applicable laws and requirements include: a. 40 CFR 31 and OMB Circular A-87 for governmental recipients of subgrants or 40 CFR 30 and OMB Circular A-122 for non-profit recipients of subgrants and 40 CFR 30 and OMB Circular A-21 for educational institution recipients of subgrants. b. CERCLA 104(g) which requires that borrowers and subgrantees comply with the prevailing wage rate requirements under the Davis-Bacon Act of 1931 for construction, repair or alteration contracts "funded in whole or in part" with funds provided under this agreement. The Borrower or subgrantee must obtain recent and applicable wage rates from the U.S. Department of Labor and incorporate them into the construction, alteration or repair contract. c. Federal cross-cutting requirements including, but not limited to, MBE/WBE requirements found at 40 CFR 40 CFR 31.36(e) or 40 CFR 30.44(b); OSHA Worker Health & Safety Standard 29 CFR 1910.120; the Uniform Relocation Act; Historic Preservation Act; Endangered Species Act; and Permits required by Section 404 of the Clean Water Act; Executive Order 11246, Equal Employment Opportunity, and implementing regulations at 41 CFR 60-4; Contract Work Hours and Safety Standards Act, as amended (40 USC 327-333) the Anti Kickback Act (40 USC 276c) and Section 504 of the Rehabilitation Act of 1973 as implemented by Executive Orders 11914 and 11250. B. Eligible Brownfields Site Determinations 1. a. The CAR must provide information about site-specific work prior to incurring any costs under this cooperative agreement for sites that have not already been pre-approved in the CAR's work plan by the EPA. The information that must be provided includes whether or not the site meets the definition of a brownfields as defined in §101(39) of CERCLA, the identity of the owner, and the date of acquisition. b. If the site is excluded from the general definition of a brownfield, but is eligible for a property-specific funding determination, then the CAR must provide information sufficient for EPA to make a property-specific funding determination. The CAR must provide sufficient information on how financial assistance will protect human health and the environment, and either promote economic development or enable the creation of, preservation of, or addition to parks, greenways, undeveloped property, other recreational property, or other property used for nonprofit purposes. The CAR must not incur costs for cleaning up sites requiring a property-specific funding determination by EPA until the EPA Project Officer has advised the CAR of the Agency's determination. 2. a. For any petroleum-only brownfields site that is not included in the CAR's EPA approved work plan, the CAR shall provide sufficient documentation to the EPA prior to incurring costs under this cooperative agreement which includes: (1) that a State has determined that the petroleum-only site is of relatively low risk, as compared to other petroleum-only sites in the State, (2) that the State determines there is "no viable responsible party" for the site; (3) that the State determines that the person assessing, investigating, or cleaning up the site is a person who is not potentially liable for cleaning up the site; and (4) that the site is not subject to any order issued under section 9003(h) of the Solid Waste Disposal Act. This documentation must be prepared by the CAR or the State following contact and discussion with the appropriate petroleum program official. b. Documentation must include the identity of the State program official contacted, the State official's telephone number, the date of the contact, and a summary of the discussion to reach each determination that the site is of relatively low risk, that there is no viable responsible party and that the person assessing, investigating, or cleaning up the site is a person who is not potentially liable for cleaning up the site. Other documentation provided by a State to the recipient relevant to any of the determinations by the State must also be provided to the EPA Project officer. c. If the State chooses not to make the determinations described in 2.a. & b. above, the CAR must contact the EPA and provide the information necessary for EPA to make the requisite determinations. EPA must also make all determinations on the eligibility of petroleum-only brownfields sites located on Indian tribal lands. Prior to incurring costs for these sites, the CAR must contact EPA and provide the information necessary for EPA to make the determinations described in 2.a. & b. above. II. GENERAL COOPERATIVE AGREEMENT ADMINISTRATIVE REQUIREMENTS A. Term of the Agreement 1. The term of an RLF agreement is five years (two years for Assessment and Cleanup grants) , unless otherwise extended by EPA at the CAIR's request. 2. If after 3 years, EPA determines that the recipient has not made sufficient progress in implementing its RLF, the recipient must negotiate a closeout agreement with EPA. B. Substantial Involvement 1. The U.S. EPA expects to be substantially involved in overseeing and monitoring some parts of the RLF program. a. Substantial involvement by the U.S. EPA generally includes administrative activities such as: monitoring; review and approval of procedures for loan and subgrant recipient selection; and review of project phases. b. Substantial EPA involvement also includes brownfields property-specific funding determinations described above in B.1. under EPA and/or State Approvals of Brownfields Sites above. The CAR may also request technical assistance from EPA on what sites qualify as a brownfields site and when determining whether the statutory prohibition found in section 104(k)(4)(B)(i)(IV) of CERCLA applies to potential borrower/subgrant recipients. Generally, this prohibition prohibits a loan or subgrant recipient from using grant funds to cleanup a site if the recipient is potentially liable under §107 of CERCLA for that site. c. Substantial EPA involvement may include reviewing loan documents, financial and environmental status reports; and monitoring all reporting, record-keeping, and other program requirements. d. EPA may waive any of the provisions in term and condition B.1. above, at its own initiative or upon request by the CAR. EPA will provide waivers in writing. 2. Effect of EPA's substantial involvement includes: a. EPA's review of any project phase, document, or cost incurred under this cooperative agreement, will not have any effect upon CERCLA §128 Eligible Response Site determinations or for rights, authorities, and actions under CERCLA or any Federal statute. b. The CAR remains responsible for ensuring that all assessments and cleanups are protective of human health and the environment and comply with all applicable Federal and State laws. c. The CAR remains responsible for ensuring costs are allowable under applicable OMB Circulars. C. Cooperative Agreement Recipient Roles and Responsibilities 1. The CAR must acquire the services of a qualified environmental professional(s) to coordinate, direct, and oversee the brownfields assessment and cleanup activities at a particular site, if they do not have such a professional on staff. 2. The CAR shall act as or appoint a qualified "fund manager" to carry out responsibilities that relate to financial management of the loan and/or subgrant program. However, the CAR remains accountable to EPA for the proper expenditure of cooperative agreement funds. Any funding arrangements between the CAR and the fund manager for services performed must be consistent with 40 CFR Part 31. 3. The CAR is responsible for ensuring that borrowers and subgrant recipients comply with the terms of their agreements with the CAR, and that agreements between the CAR and borrowers and subgrant recipients are consistent with the terms and conditions of this agreement. D. Quarterly Progress Reports 1. The CAR is required to submit progress reports on a quarterly basis (30 days after the end of each Federal fiscal quarter) to the EPA Project Officer. The progress reports must document incremental progress at achieving the project goals and milestones. Quarterly progress reports must include: a. Documentation of progress at meeting the performance objectives, project narrative and project time line. b. An update on project milestones. c. A budget recap summary page with the following headings: Current Approved Budget; Costs Incurred this Quarter; Costs Incurred to Date; and Total Remaining Funds. d. If applicable, quarterly reports must specify costs incurred at petroleum- only brownfields sites. e. Recipient quarterly reports will clearly identify which activities performed during the reporting period were undertaken with EPA funds, and will relate EPA-funded activities to the objectives and milestones agreed upon in the work plan including a list of sites where assessment or cleanup (either through loans or subgrants) activities were completed. Examples of activities undertaken with EPA funds to be included in quarterly performance and financial reporting may include those listed below. EPA form 9310-3 complies with this requirement. 1. Acres per property 2. Cleanup completed 3. Types of contaminants removed/addressed 4. Acres of greenspace created/preserved 5. Number of properties with one(1) or more engineering/institutional controls 6. Redevelopment underway 7. Number/value of loans made 8. Number/value of subgrants made 9. Funds leveraged 10. Jobs leveraged 11. Number of health monitoring studies, insurance and/or institutional controls funded. f, The CAR must maintain records that will enable it to report to EPA on the amount of costs incurred by the CAR, borrowers or subgrant recipients at petroleum-only brownfields sites. g. The CAR must maintain records on funds (not to exceed 10%) that will enable it to report to EPA on the amount of costs incurred by the CAR, borrowers or subgrant recipients on monitoring the health of the population and monitoring and enforcement of any institutional control. h. The CAR must complete Property Profile Forms provided by EPA. III. FINANCIAL ADMINISTRATION REQUIREMENTS A. Cost Share Requirement 1. CERCLA §104(k)(9)(B)(iii) requires the recipient of this cooperative agreement to pay a cost share (which may be in the form of a contribution of money, labor, material, or services from a non-federal source) of at least 20 percent (i.e., 20 percent of the total federal funds awarded). The cost share contribution must be for costs that are eligible and allowable under the cooperative agreement and must be supported by adequate documentation. B. Eligible Uses of the Funds for the Cooperative Agreement Recipient, Borrower, and/or Subgrant Recipients 1. The CAR must maintain records that will enable it to report to EPA on the amount of costs incurred by the CAR, borrowers or subgrant recipients at petroleum-only brownfields sites. 2. Up to 60% of the funds must be used by the CAR to provide loans for the cleanup of eligible brownfields sites and for eligible programmatic costs for managing the RLF. Up to 40% can be used for subgrants to cleanup eligible brownfield sites under the RLF and for eligible programmatic costs for managing the subgrant (note: cleanup subgrants are limited to $200,000 per site). 3. To determine whether a cleanup subgrant is appropriate, the CAR must consider: a. The extent the subgrant will facilitate the creation of, preservation of, or addition to a park, greenway, undeveloped property, recreational property, or other property used for nonprofit purposes; b. The extent the subgrant will meet the needs of a community that has the inability to draw on other sources of0 funding for environmental remediation and subsequent redevelopment of the area in which a brownfield site is located because of the small population or low income of the community; c. The extent the subgrant will facilitate the use or reuse of existing infrastructure; and d. The benefit of promoting the long-term availability of funds from a revolving loan fund for brownfield remediation. The CAR must maintain sufficient records to support and document these determinations. 4. Cooperative agreement funds may be used (1) to capitalize a revolving loan fund to be used for loans or subgrants for cleanup OR (2) to cleanup eligible sites and for eligible programmatic expenses. Eligible programmatic expenses include: a. Determining whether RLF cleanup activities at a particular site are authorized by CERCLA 104(k); b. Ensuring that a RLF cleanup complies with applicable requirements under Federal and State laws, as required by CERCLA 104(k); c. Ensuring that public participation requirements are met. This includes developing or funding a community relations plan which will include reasonable notice, opportunity for involvement, and response to comments; d. Establishing an administrative record for each site; e. Ensuring the adequacy of each RLF cleanup as it is implemented, including overseeing the borrowers and/or subgrantees activities to ensure compliance with applicable Federal and State environmental requirements; f. The development of Quality Assurance Project Plans (QAPPs) as required by Part 31 and Part 30 regulations; g. Ensuring that the site is secure if a borrower or subgrant recipient is unable or unwilling to complete a brownfields cleanup; h. Preparing an analysis of brownfields cleanup alternatives which will include information about the site and contamination issues (i.e., exposure pathways, identification of contaminant sources, etc.); cleanup standards; applicable laws; alternatives considered; and the proposed cleanup. The evaluation of alternatives must include effectiveness, implementability, and the cost of the response proposed. The f. g. evaluation will include an analysis of reasonable alternatives including no action; For brownfields petroleum-only sites, an analysis of cleanup alternatives would include considering a range of proven cleanup methods including identification of contaminant sources, exposure pathways, and an evaluation of corrective measures; j. Purchasing environmental insurance if the purchase of such insurance is necessary to carry out cleanup activities; k. Any other eligible programmatic costs including costs incurred by the recipient in making and managing a loan; obtaining financial management services; quarterly reporting to EPA; awarding and managing subgrants; and carrying out outreach pertaining to the loan and subgrant program to potential borrowers and subgrant recipients; and 1. Effectively overseeing assessments and cleanups — local governments may use grant funds (up to 10 percent) for monitoring the health of populations and/or enforcement of any institutional controls used to prevent human exposure to one or more hazardous substances from a brownfields site. C. Ineligible Uses of the Funds for the Cooperative Agreement Recipient, Borrower, and/or Subgrant Recipients 1. Cooperative agreement funds shall not be used by the CAR, borrower and/or subgrant recipient for any of the following activities: a. Pre-cleanup environmental activities such as planning, inventory, site assessment, identification, and characterization. However, the CAR may request EPA approval for limited site assessment on a case-by-case basis when necessary to ensure protection of the environment and public health through cleanup actions. b. Monitoring and data collection necessary to apply for, or comply with, environmental permits under other Federal and State laws, unless such a permit is required as a component of the brownfields cleanup. c. Development activities that are not brownfields cleanup activities (e.g., construction of a new facility or marketing of a property). d. Job training unrelated to performing a specific cleanup at a site covered by a loan or subgrant. e. To pay for a penalty or fine. To pay a federal cost share requirement (for example, a cost-share required by another Federal grant) unless there is specific statutory authority. To pay for a response cost at a brownfields site for which the recipient of the subgrant or loan is potentially liable under CERCLA §107. ft To pay a cost of compliance with any federal law, excluding the cost of compliance with laws applicable to the cleanup. Unallowable costs (e.g., lobbying and fund raising) under OMB Circulars A-21 (universities), A-87 (state, tribal, and local governments), A-122 (nonprofit organizations), and Subpart 31.2 of the Federal Acquisition Regulation (commercial organizations), as applicable. 2. Under CERCLA 104(k)(4)(B), administrative costs are prohibited costs under this agreement. Prohibited administrative costs include all indirect costs under OMB Circulars A-21, A-87, and A-122, and Subpart 31.2 of the Federal Acquisition Regulation incurred by the CAR and subgrant recipients. a. Ineligible administrative costs include costs incurred in the form of salaries, benefits, contractual costs, supplies, and data processing charges, incurred to comply with most provisions of the Uniform Aclmihistrative Requirements for Grants contained in 40 CFR Part 30 or 40 CFR Part 31. Direct costs for grant and subgrant administration, with the exception of costs specifically identified as eligible programmatic costs, are ineligible even if the grantee or subgrant recipient is required to carry out the activity under the grant agreement. Costs incurred to report quarterly performance to EPA under the grant are eligible. b. Ineligible grant or subgrant administration costs include: (1) Preparation of applications for Brownfields grants and subgrants; (2) Record retention required under 40 CFR 30.53 and 40 CFR 31.42; (3) Record-keeping associated with supplies and equipment purchases required under 40 CFR 30.33, 30.34, and 30,35 and 40 CFR 31.32 and 31.33; (4) Preparing revisions and changes in the budgets, scopes of work, program plans and other activities required under 40 CFR 30.25 and 40 CFR 31.30; (5) Maintaining and operating financial management systems required under 40 CFR 30 and 40 CFR 31; (6) Preparing payment requests and handling payments under 40 CFR 30.22 and 40 CFR 31.21; (7) Non-federal audits required under 40 CFR 30.26, 40 CFR 31.26, and OMB Circular A-133; and (8) Close out under 40 CFR 30.71 and 40 CFR 31.50. 3. Borrowers and/or subgrantees are subject to the CERCLA 104(k)(4)(B) administrative cost prohibition requirements. The CAR must ensure that loan and subgrant agreements prohibit borrowers and subgrantees from using loans and subgrants financed with cooperative agreement funds for administrative costs. a. Prohibited administrative costs for the borrower and subgrantee (including those in the form of salaries, benefits, contractual costs, supplies, and data processing charges) are those incurred for loan administration and overhead costs. b. Direct costs for loan administration are ineligible even if the borrower is required to carry out the activity under the loan agreement. Ineligible loan administration costs include expenses for: (1) Preparation of applications for loans and loan agreements; (2) Preparing revisions and changes in the budget, work plans, and other documents required under the loan agreement; (3) Maintaining and operating financial management and personnel systems; (4) Preparing payment requests and handling payments; and (5) Audits. c. Overhead costs by the borrower or subgrantee that do not directly clean up brownfields site contamination or comply with laws applicable to the cleanup are ineligible administrative costs. Examples of overhead costs that would be ineligible in loans and subgrants include expenses for: (1) Salaries, benefits and other compensation for persons who are not directly engaged in the cleanup of the site (e.g., marketing and human resource personnel); (2) Facility costs such as depreciation, utilities, and rent on the borrower's administrative offices; and (3) Supplies and equipment not used directly for cleanup at the site. d. Costs incurred by the borrower for procurement are eligible only if the procurement contract is for services or products that are direct costs for performing the cleanup, for insurance costs, or for maintenance of institutional controls. e. Direct costs by the borrower for progress reporting to the lender are eligible programmatic costs. 4. Cooperative agreement funds may not be used for any of the following properties: a. Facilities listed, or proposed for listing, on the National Priorities List (NPL); b. Facilities subject to unilateral administrative orders, court orders, administrative orders on consent or judicial consent decree issued to or entered by parties under CERCLA; c. Facilities that are subject to the jurisdiction, custody or control of the United States government (NOTE: Land held in trust by the United States government for an Indian tribe is eligible for cooperative agreement funding); or d. A site excluded from the definition of a brownfields site for which EPA has not made a property-specific funding determination. D. Subgrant Recipient and Borrower Eligibility 1. The CAR may only provide cleanup subgrants to an eligible entity or nonprofit organization to clean up sites owned by the eligible entity or nonprofit organization at the time the subgrant is awarded. The subgrant recipient must retain ownership of the site throughout the period of performance of the subgrant. For the purposes of this agreement, the term "owned" means fee simple title unless EPA approves a different arrangement. However, the CAR may not provide a subgrant to itself or another component of its own unit of government or organization. 2. The CAR shall not loan or subgrant funds that will be used to pay for cleanup activities at a site for which the borrower or subgrant recipient is potentially liable under CERCLA §107. The CAR may rely on its own investigation which can include an opinion from the subgrant recipient's or borrower's counsel. However, the CAR must advise the borrower or subgrant recipient that the investigation and/or opinion of the subgrant recipient's or borrower's counsel is not binding on the Federal Government. 3. The CAR must consider the factors listed on page 6 under B.3. before awarding a subgrant to an eligible recipient. 4. For approved eligible petroleum-only brownfields sites, the person assessing, investigating, or cleaning up the site must be a person who is not potentially liable for cleaning up the site. For brownfields grant purposes, an entity generally will not be considered potentially liable for petroleum contamination if they did not cause or contribute to the petroleum contamination at the site. 5. The CAR shall maintain sufficient documentation supporting and demonstrating the eligibility of the sites, borrowers, and subgrant recipients. 6. A borrower or subgrant recipient must submit information regarding its overall environmental compliance history including any penalties resulting from environmental non-compliance at the site subject to the loan or subgrant. The CAR, in consultation with the EPA, must consider this history in its analysis of the borrower or subgrant recipient as a cleanup and business risk. 7. An entity that is currently suspended, debarred, or otherwise declared ineligible cannot be a borrower or subgrant recipient. E. Obligations for Grant Recipients, Borrowers, or Subgrantees Asserting a Limitation on Liability from CERCLA §107 1. Grant recipients, borrowers, or subgrantees who are eligible, or seek to become eligible, to receive a grant, loan, or subgrant based on a liability protection from CERCLA as a: (1) bona fide prospective purchaser (BFPP), (2) contiguous property owner (CPO), or (3) innocent landowner (ILO) (known as the "landowner liability protections"), must meet certain threshold criteria and satisfy certain continuing obligations to maintain their status as an eligible grant recipient, borrower, or subgrantee. These include, but are not limited to the following: a. All grant recipients, borrowers, or subgrantees asserting a BFPP, CPO or ILO limitation on liability must perform (or have already performed) "all appropriate inquiry," as found in section 101(35)(B) of CERCLA, on or before acquiring the property. b. Grant recipients, borrowers, or subgrantees seeking to qualify as bona fide prospective purchasers or contiguous property owners must not be: (1.) potentially liable, or affiliated with any other person that is potentially liable, for response costs through (a) any direct or indirect familial relationship; or (b) any contractual, corporate, or financial relationships; or (2.) a reorganized business entity that was potentially liable or (3.) otherwise liable under CERCLA §107(a) as a prior owner or operator, or generator or transporter of hazardous substances to the facility. c. Landowners must meet certain continuing obligations in order to achieve and maintain status as a landowner protected from CERCLA liability. These continuing obligations include: (1) complying with land use restrictions and not impeding the effectiveness or integrity of institutional controls; (2) taking reasonable steps with respect to hazardous substance releases; (3) providing full cooperation, assistance, and access to persons that are authorized to conduct response actions or natural resource restoration; (4) complying with information requests and administrative subpoenas (applies to bona fide prospective purchasers and contiguous property owners); and (5) complying with legally required notices (again, applies to bona fide prospective purchasers and contiguous property owners) [see CERCLA § 101(40)(B)-(H), 107(q)(1)(A), 101(35)(A)-(B).]. d. CERCLA requires additional obligations to maintain liability protection. These obligations are found at §§ 101(35), 101(40), 107(b), and 107(q). F. Use of Program Income 1. In accordance with 40 CFR 31.25(g)(2), the CAR is authorized to add program income to the funds awarded by the EPA and use the program income under the same terms and conditions of this agreement. Program income for the RLF shall be defined as the gross income received by the recipient, directly generated by the cooperative agreement award or earned during the period of the award. Program income shall include principal repayments, interest earned on outstanding loan principal, interest earned on accounts holding RLF program income not needed for immediate lending, all loan fees and loan-related charges received from borrowers and other income generated from RLF operations including proceeds from the sale, collection, or liquidations of assets acquired through defaults of loans. 2. In accordance with Section 104(d)(3)(D), when a CAR transitions to a 104(k) cooperative agreement, any program income (e.g., fees, interest or principal repayments) generated prior to transition will be added to the 104(k) agreement and must be used in a manner consistent with Section 104(k)(3) and with the terms and conditions. 3. The CAR may use program income from fees, interest payments from loans, and other forms of eligible program income to meet its cost-share. The CAR shall not use repayments of principal of loans to meet the CAR's cost-share requirement. Repayments of principal must be returned to the CAR's Brownfields cleanup revolving fund. 4. The CAR that elects to use program income to cover all or part of a C/RLF's programmatic costs shall maintain adequate accounting records and source documentation to substantiate the amount and percent of program income expended for eligible RLF programmatic costs, and comply with applicable OMB cost principles when charging costs against program income. For any cost determined by the EPA D. Administrative Record 1. The CAR shall establish an administrative record that contains the documents that form the basis for the selection of a cleanup plan. Documents in the administrative record shall include an analysis of reasonable alternatives including no action; site investigation reports; the cleanup plan; cleanup standards used; responses to public comments; and verification that shows that cleanups are complete. The CAR shall keep the administrative record available at a location convenient to the public and make it available for inspection. E. Implementation of RLF Cleanup Activities 1. The CAR shall ensure the adequacy of each RLF cleanup in protecting human health and the environment as it is implemented. Each loan and subgrant agreement shall contain terms and conditions that allow the CAR to change cleanup activities as necessary based on comments from the public or any new information acquired. 2. If the borrower or subgrant recipient is unable or unwilling to complete the RLF cleanup, the CAR shall ensure that the site is secure. The CAR shall notify the appropriate state agency and the U.S. EPA to ensure an orderly transition should additional activities become necessary. F. Completion of RLF Cleanup Activities 1. The CAR shall ensure that the successful completion of a RLF cleanup is properly documented. This must be done through a final report or letter from a qualified environmental professional, or other documentation provided by a State or Tribe that shows cleanups are complete. This documentation needs to be included as part of the administrative record. V. REVOLVING LOAN FUND REQUIREMENTS A. Prudent Lending Practices 1. The CAR shall not incur costs under this cooperative agreement related to loans or subgrants until a RLF work plan has been submitted to and approved by U.S. EPA. The CAR 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 RLF program, and the cooperative agreement entered into with EPA. b. Establishing threshold eligibility requirements whereby only eligible borrowers or subgrant recipients receive RLF financing. c. Developing a formal protocol for potential borrowers or subgrant recipients to demonstrate eligibility, based on the procedures described in the initial RLF 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 or subgrant recipient to make legitimate use of the funds. Additionally, CARs shall ask borrowers or subgrant recipients for an explanation of how a project, if selected, would be consistent with RLF program objectives, statutory requirements and limitations, and protect human health and the environment. d. Requiring that borrowers or subgrant recipients submit information describing the borrower's or subgrant recipient's environmental compliance history. The CAR shall consider this history in an analysis of the borrower or subgrant recipient as a cleanup and business risk. e. Establishing procedures for handling the day-to-day management and processing of loans and repayments. Establishing standardized procedures for the disbursement of funds to the borrower or subgrant recipient. to have been an ineligible use of program incorne, the recipient shall reimburse the RLF or the EPA. EPA will notify the recipient of the time period allowed for reimbursement. 5. Loans or subgrants made with a combination of program income and direct funding from EPA are subject to the same terms and conditions as those applicable to this agreement. Loans and subgrants made with direct funding from EPA in combination with non- Federal sources of funds are also subject to the same terms and conditions of this agreement. 6. CAR must obtain EPA approval of the substantive terms of loans and subgrants made entirely with program income. G. Post Cooperative Agreement Program Income 1. After the end of the award period, the CAR shall use program income in a manner consistent with the terms and conditions of a "close out" agreement negotiated with EPA. In accordance with 40 CFR 31.42(c)(3), the CAR shall maintain appropriate records to document compliance with the requirements of the close out agreement (i.e., records relating to the use of post-award program income). EPA may request access to these records or may negotiate post-close-out reporting requirement to verify that post-award program income has been used in accordance with the terms and conditions of the close out agreement. H. Interest-Bearing Accounts 1. The CAR must deposit advances of grant funds and program income (e.g., fees, interest payments, repayment of principal) in an interest bearing account. a. Interest earned on advances, CARs and subgrant recipients are subject to the provisions of 40 CFR §31.21(i) and §30.22(I) relating to remitting interest on advances to EPA on a quarterly basis. b. Interest earned on program income is considered additional program income. IV. RLF ENVIRONMENTAL REQUIREMENTS A. Authorized RLF Cleanup Activities 1. The CAR shall prepare an analysis of brownfields cleanup alternatives which will include information about the site and contamination issues (i.e., exposure pathways, identification of contaminant sources, etc.); cleanup standards; applicable laws; alternatives considered; and the proposed cleanup. The evaluation of alternatives must include effectiveness, implementability, and the cost of the response proposed. The evaluation will include an analysis of reasonable alternatives including no action. 2. For cleanup of brownfields petroleum-only sites, an analysis of cleanup alternatives must include considering a range of proven cleanup methods including identification of contaminant sources, exposure pathways, and an evaluation of corrective measures. The clean up method chosen must be based on this analysis. B. Quality Assurance (QA) Requirements 1. If environmental samples are to be collected as part of the brownfields cleanup (e.g., cleanup verification sampling, post-cleanup confirmation sampling), the CAR shall comply with 40 CFR Part 31.45 (or 40 CFR Part 30.54 requirements for nonprofit organizations) requirements to develop and implement quality assurance practices sufficient to produce data adequate to meet project objectives and to minimize data loss. State law may impose additional QA requirements. C. Community Relations and Public Involvement in RLF Cleanup Activities 1. All RLF loan and subgrant cleanup activities require a site-specific community relations plan that includes providing reasonable notice, opportunity for involvement, response to comments, and administrative records that are available to the public. B. Inclusion of Special Terms and Conditions in RLF Loan and Subgrant Documents 1. The CAR shall ensure that the borrower or subgrant recipient meets the cleanup and other program requirements of the RLF grants by including the following special terms and conditions in RLF loan agreements and subgrant awards: a. Borrowers or subgrant recipients shall use funds only for eligible activities and in compliance with the requirements of CERCLA 104(k) and applicable Federal and State laws and regulations. b. Borrowers or subgrant recipients shall ensure that the cleanup protects human health and the environment. c. Borrowers or subgrant recipients shall document how funds are used. If a loan or subgrant includes cleanup of a petroleum-only brownfields site(s), the CAR shall include a term and condition requiring that the borrower or subgrant recipient maintain separate records for costs incurred at that site(s). d. Borrowers or subgrant recipients shall maintain records for a minimum of three years following completion of the cleanup financed all or in part with RLF funds. Borrowers or subgrant recipients shall obtain written approval from the CAR prior to disposing of records. Cooperative agreement recipients shall also require that the borrower or subgrant recipient provide access to records relating to loans and subgrants supported with RLF funds to authorized representatives of the Federal government. e. Borrowers or subgrant recipients shall certify that they are not currently, nor have they been, subject to any penalties resulting from environmental non-compliance at the site subject to the loan. f. Borrowers or subgrant recipients shall certify that they are not potentially liable under §107 of CERCLA for the site or that, if they are, they qualify for a limitation or defense to liability under CERCLA. If asserting a limitation or defense to liability, the borrower or subgrant recipient must state the basis for that assertion. When using grant funds for petroleum-only brownfields sites, borrowers or subgrant recipients shall certify that they are not a viable responsible party for the petroleum contamination at the site. g. Borrowers or subgrant recipients shall conduct cleanup activities as required by the CAR. h. Subgrant recipients shall comply with applicable EPA assistance regulations (40 CFR Part 31 for governmental entities and 40 CFR Part 30 for nonprofit organizations). All procurements conducted with subgrant funds must comply with 40 CFR Part 31.36 and 40 CFR Part 30.40-30.48. C. Default 1. In the event of a loan default, the CAR 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 CAR is responsible for: (1) documenting the nexus between the amount paid to the borrower (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. D. Conflict of Interest 1. The CAR shall establish and enforce conflict of interest provisions that prevent the award of loans and subgrants in situations that create, or create the appearance of, personal conflicts of interest. Such situations include, but are not limited to, situations in which an employee, official, consultant, contractor, or other individual associated with the CAR (affected party) approves or administers a grant or subgrant to a borrower or subgrant recipient in which the affected party has a financial or other interest. Such a conflict of interest, for example, would arise when: (i) The affected party, (ii) Any member of his immediate family, (iii) His or her partner, or (iv) An organization which employs, or is about to employ, any of the above, has a financial or other interest in the borrower or subgrant recipient. Affected employees will neither solicit nor accept gratuities, favors, or anything of monetary value from borrowers or subgrant recipients. Recipients may set minimum rules where the financial interest is not substantial or the gift is an unsolicited item of nominal intrinsic value. To the extent permitted by State or local law or regulations, such standards of conduct will provide for penalties, sanctions, or other disciplinary actions for violations of such standards by affected parties. VI. DISBURSEMENT, PAYMENT AND CLOSEOUT For the purposes of these terms and conditions, the following definitions apply: "payment" is the U.S. EPA' s transfer of funds to the CAR; the CAR incurs an "obligation" when it enters into a loan agreement with the borrower or subgrant recipient; "disbursement" is the transfer of funds from the CAR to the borrower or subgrant recipient. "Close out" refers to the process that the U.S. EPA follows to ensure that all administrative actions and work required under the cooperative agreement have been completed. A. Payment Schedule 1. The CAR may request payment from EPA pursuant to 40 CFR.§31.21 after it incurs an obligation or has an eligible programmatic expense. EPA will make payments to the CAR on a schedule which minimizes the time elapsing between transfer of funds from EPA and disbursement by the recipient to the borrower or subgrant recipient to pay costs incurred or to meet a "progress payment" schedule. The recipient may request payments when it receives a disbursement request from a borrower or subgrant recipient based on the borrower or subgrant recipient's incurred costs under the "actual expense" method or the schedule for disbursement under the "schedule" disbursement method. The CAR shall disburse accrued program income to meet all or part of this obligation or eligible programmatic expenses prior to requesting payment from EPA. B. Methods of Disbursement 1. The CAR may choose to disburse funds to the borrower by means of 'actual expense' or 'schedule.' If the schedule method is used, the recipient must ensure that the schedule is designed to reasonably approximate the borrower's incurred costs. a. An 'actual expense' disbursement approach requires the borrower to submit documentation of the borrower's expenditures (e.g., invoices) to the CAR prior to requesting payment from EPA. 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, in unusual circumstances, upon execution of the loan. The CAR shall submit documentation of disbursement schedules to EPA. c. If the disbursement schedule of the loan agreement calls for disbursement of the entire amount of the loan upon execution, the CAR shall demonstrate to the U.S. EPA Project Officer that this method of disbursement is necessary for purposes of cleaning up the site covered by the loan. Further, the CAR 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. 2. Subgrant funds must be disbursed to the subgrant recipient in accordance with 40 CFR 31.21 or 40 CFR 30.22, as applicable. a. The CAR may negotiate a predetermined schedule(s) for disbursement to subgrant recipients provided the schedule minimizes the time elapsing between disbursement by the CAR and the subgrant recipient's payment of costs incurred in carrying out the subgrant. b. If the disbursement schedule of the loan agreement calls for disbursement of the entire amount of the loan upon execution, the CAR shall demonstrate to the U.S. EPA Project Officer that this method of disbursement is necessary for purposes of cleaning up the site covered by the subgrant. Further, the CAR shall include an appropriate provision in the loan agreement which ensures that the subgrant recipient uses loan funds promptly for costs incurred in connection with the cleanup and that interest accumulated on schedule disbursements is applied to the cleanup. C. Schedule for Closeout 1. There are two fundamental criteria for closeout: Final payment of funds from EPA to the CAR; and (b) Completion of all cleanup activities funded by the amount of the award. To close out the cooperative agreement all payments to the CAR must be complete. The first criterion of cooperative agreement closeout is met when the CAR receives all payments from EPA. The second closeout criterion is met when all cleanups funded by the initial amount of the award are complete. D. Compliance with Closeout Schedule 1. If a CAR fails to comply with the closeout schedule, any cooperative agreement funds not obligated under loan agreement to a borrower or subgrant recipient may be subject to federal recovery, and the cooperative agreement award amended to reflect the reduced amount of the cooperative agreement. E. Recovery of RLF Assets 1. In case of termination for cause or convenience, the CAR shall return to EPA its fair share of the value of the RLF 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 RLF to the current fair market value of the assets thereof. EPA also has remedies under 40 CFR 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 CAR may be required to compensate EPA over and above the Agency's share of the current fair market value of the assets. Nothing in this agreement limits our authorities under CERCLA to recover response costs from a potentially responsible party. F. Loan Guarantees (Note: The following is an optional T&C for the cooperative agreements that will do loan guarantees) 1. If the CAR chooses to use the RLF funds to support a loan guarantee approach, the following terms & conditions apply: a. The CAR shall: (1) document the relationship between the expenditure of CERCLA §104(k) funds and cleanup activities; (2) maintain an escrow account expressly for the purpose of guaranteeing loans, by following the payment requirement described under the Escrow Requirements term and condition below; and ensure that cleanup activities guaranteed by RLF funds are carried out in accordance with CERCLA 104(k) and applicable Federal and State laws and will protect human health and the environment. G. Escrow Requirements (a) (3) a. Payment of funds to a CAR shall not be made until a guaranteed loan has been issued by a participating financial institution, Loans guaranteed with RLF funds shall be made available as needed for specified cleanup activities on a "actual expense" or "schedule" basis to the borrower or subgrant recipient (See Section on Methods of Disbursement). The CAR's escrow arrangement shall be structured to ensure that the CERCLA §104(k) funds are properly "disbursed" by the recipient for the purposes of the assistance agreement as required by 40 CFR §31.20(b)(7) and §31.21(c). If the funds are not properly disbursed, the CERCLA §104(k) funds that the recipient places in an escrow account will be subject to the interest recovery provisions of 40 CFR §31.21(i). b. To ensure that funds transferred to the CAR are disbursements of assisted funds, the escrow account shall be structured to ensure that: (1) the recipient cannot retain the funds; (2) the recipient must not have access to the escrow 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 or subgrant recipient. H. Federal Obligation to the Loan Guarantee Program 1. Any obligations that the CAR incurs for loan guarantees in excess of the amount awarded under the cooperative agreement are the CAR's responsibility. This limitation on the extent of the Federal Government's financial commitment to the CAR's loan guarantee program shall be communicated to all participating banks and borrower or subgrant recipient. I. Repayment of Guaranteed Loans 1. Upon repayment of a guaranteed loan and release of the escrow amount by the participating financial institution, the CAR shall return the cooperative agreement funds placed in escrow to the U.S. EPA. Alternatively, the CAR may, with EPA approval, a. Guarantee additional loans under the terms and conditions of the agreement or, b. 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. D. Quarterly Progress Reports 1. The CAR is required to submit progress reports on a quarterly basis (30 days after the end of each Federal fiscal quarter) to the EPA Project Officer. The progress reports must document incremental progress at achieving the project goals and milestones. Quarterly progress reports must include: FINANCIAL ADMINISTRATION REQUIREMENTS A. Cost Share Requirement 1. CERCLA §104(k)(9)(B)(iii) requires the recipient of this cooperative agreement to pay a cost share (which may be in the form of a contribution of money, labor, material, or services from a non-federal source) of at least 20 percent (i.e., 20 percent of the total federal funds awarded). The cost share contribution must be for costs that are eligible and allowable under the cooperative agreement and must be supported by adequate documentation. B. Eligible Uses of the Funds for the Cooperative Agreement Recipient, Borrower, and/or Subgrant Recipients 1. The CAR must maintain records that will enable it to report to EPA on the amount of costs incurred by the CAR, borrowers or subgrant recipients at petroleum-only brownfields sites. 2. Up to 60% of the funds must be used by the CAR to provide loans for the cleanup of eligible brownfields sites and for eligible programmatic costs for managing the RLF. Up to 40% can be used for subgrants to cleanup eligible brownfield sites under the RLF and for eligible programmatic costs for managing the subgrant (note: cleanup subgrants are limited to $200,000 per site). 3. To determine whether a cleanup subgrant is appropriate, the CAR must consider: a. The extent the subgrant will facilitate the creation of, preservation of, or addition to a park, greenway, undeveloped property, recreational property, or other property used for nonprofit purposes; b. The extent the subgrant will meet the needs of a community that has the inability to draw on other sources of funding for environmental remediation and subsequent redevelopment of the area in which a brownfield site is located because of the small population or low income of the community; c. The extent the subgrant will facilitate the use or reuse of existing infrastructure; and d. The benefit of promoting the long-term availability of funds from a revolving loan fund for brownfield remediation. The CAR must maintain sufficient records to support and document these determinations. 4. Cooperative agreement funds may be used (1) to capitalize a revolving loan fund to be used for loans or subgrants for cleanup OR (2) to cleanup eligible sites and for eligible programmatic expenses. Eligible programmatic expenses include: a. Determining whether RLF cleanup activities at a particular site are authorized by CERCLA 104(k); b. Ensuring that a RLF cleanup complies with applicable requirements under Federal and State laws, as required by CERCLA 104(k); c. Ensuring that public participation requirements are met. This includes developing or funding a community relations plan which will include reasonable notice, opportunity for involvement, and response to comments; d. Establishing an administrative record for each site; e. Ensuring the adequacy of each RLF cleanup as it is implemented, including overseeing the borrowers and/or subgrantees activities to ensure compliance with applicable Federal and State environmental requirements; f, The development of Quality Assurance Project Plans (QAPPs) as required by Part 31 and Part 30 regulations; Ensuring that the site is secure if a borrower or subgrant recipient is unable or unwilling to complete a brownfields cleanup; h. Preparing an analysis of brownfields cleanup alternatives which will include information about the site and contamination issues (i.e., exposure pathways, identification of contaminant sources, etc.); cleanup standards; applicable laws; alternatives considered; and g. the proposed cleanup. The evaluation of alternatives must include effectiveness, implementability, and the cost of the response proposed. The evaluation will include an analysis of reasonable alternatives including no action; For brownfields petroleum-only sites, an analysis of cleanup alternatives would include considering a range of proven cleanup methods including identification of contaminant sources, exposure pathways, and an evaluation of corrective measures; Purchasing environmental insurance if the purchase of such insurance is necessary to carry out cleanup activities; k. Any other eligible programmatic costs including costs incurred by the recipient in making and managing a loan; obtaining financial management services; quarterly reporting to EPA; awarding and managing subgrants; and carrying out outreach pertaining to the loan and subgrant program to potential borrowers and subgrant recipients; and Effectively overseeing assessments and cleanups — local governments may use grant funds (up to 10 percent) for monitoring the health of populations and/or enforcement of any institutional controls used to prevent human exposure to one or more hazardous substances from a brownfields site. C. Ineligible Uses of the Funds for the Cooperative Agreement Recipient, Borrower, and/or Subgrant Recipients 1. Cooperative agreement funds shall not be used by the CAR, borrower and/or subgrant recipient for any of the following activities: a. Pre-cleanup environmental activities such as planning, inventory, site assessment, identification, and characterization. However, the CAR may request EPA approval for limited site assessment on a case-by-case basis when necessary to ensure protection of the environment and public health through cleanup actions. b. Monitoring and data collection necessary to apply for, or comply with, environmental permits under other Federal and State laws, unless such a permit is required as a component of the brownfields cleanup. c. Development activities that are not brownfields cleanup activities (e.g., construction of a new facility or marketing of a property). d. Job training unrelated to performing a specific cleanup at a site covered by a loan or subgrant. e. To pay for a penalty or fine. f. To pay a federal cost share requirement (for example, a cost-share required by another Federal grant) unless there is specific statutory authority. 9. To pay for a response cost at a brownfields site for which the recipient of the subgrant or loan is potentially liable under CERCLA §107. h. To pay a cost of compliance with any federal law, excluding the cost of compliance with laws applicable to the cleanup. Unallowable costs (e.g., lobbying and fund raising) under OMB Circulars A-21 (universities), A-87 (state, tribal, and local governments), A-122 (nonprofit organizations), and Subpart 31.2 of the Federal Acquisition Regulation (commercial organizations), as applicable. 2. Under CERCLA 104(k)(4)(B), administrative costs are prohibited costs under this agreement. J. Prohibited administrative costs include 811 indirect costs under OMB Circulars A-21, A-87, and A-122, and Subpart 31.2 of the Federal Acquisition Regulation incurred by the CAR and subgrant recipients. a. Ineligible administrative costs include costs incurred in the form of salaries, benefits, contractual costs, supplies, and data processing charges, incurred to comply with most provisions of the Uniform Administrative Requirements for Grants contained in 40 CFR Part 30 or 40 CFR Part 31. Direct costs for grant and subgrant administration, with the exception of costs specifically identified as eligible programmatic costs, are ineligible even if the grantee or subgrant recipient is required to carry out the activity under the grant agreement. Costs incurred to report quarterly performance to EPA under the grant are eligible. b. ineligible grant or subgrant administration costs include: (1) Preparation of applications for Brownfields grants and subgrants; (2) Record retention required under 40 CFR 30.53 and 40 CFR 31.42; Record-keeping associated with supplies and equipment purchases required under 40 CFR 30.33, 30.34, and 30.35 and 40 CFR 31.32 and 31.33; (4) Preparing revisions and changes in the budgets, scopes of work, program plans and other activities required under 40 CFR 30.25 and 40 CFR 31.30; (5) Maintaining and operating financial management systems required under 40 CFR 30 and 40 CFR 31; (6) Preparing payment requests and handling payments under 40 CFR 30.22 and 40 CFR 31.21; (7) Non-federal audits required under 40 CFR 30.26, 40 CFR 31.26, and OMB Circular A-133; and (8) Close out under 40 CFR 30.71 and 40 CFR 31.50. 3. Borrowers and/or subgrantees are subject to the CERCLA 104(k)(4)(B) administrative cost prohibition requirements. The CAR must ensure that loan and subgrant agreements prohibit borrowers and subgrantees from using loans and subgrants financed with cooperative agreement funds for administrative costs. a. Prohibited administrative costs for the borrower and subgrantee (including those in the form of salaries, benefits, contractual costs, supplies, and data processing charges) are those incurred for loan administration and overhead costs. b. Direct costs for loan administration are ineligible even if the borrower is required to carry out the activity under the loan agreement. Ineligible loan administration costs include expenses for: (1) Preparation of applications for loans and loan agreements; (2) Preparing revisions and changes in the budget, work plans, and other documents required under the loan agreement; (3) Maintaining and operating financial management and personnel systems; (4) Preparing payment requests and handling payments; and (5) Audits. c. Overhead costs by the borrower or subgrantee that do not directly clean up brownfields site contamination or comply with laws applicable to the cleanup are ineligible (3) administrative costs. Examples'of overhead costs that would be ineligible in loans and subgrants include expenses for: (1) Salaries, benefits and other compensation for persons who are not directly engaged in the cleanup of the site (e.g., marketing and human resource personnel); (2) Facility costs such as depreciation, utilities, and rent on the borrower's administrative offices; and (3) Supplies and equipment not used directly for cleanup at the site. d. Costs incurred by the borrower for procurement are eligible only if the procurement contract is for services or products that are direct costs for performing the cleanup, for insurance costs, or for maintenance of institutional controls. e. Direct costs by the borrower for progress reporting to the lender are eligible programmatic costs. 4. Cooperative agreement funds may not be used for any of the following properties: a. Facilities listed, or proposed for listing, on the National Priorities List (NPL); b. Facilities subject to unilateral administrative orders, court orders, administrative orders on consent or judicial consent decree issued to or entered by parties under CERCLA; c. Facilities that are subject to the jurisdiction, custody or control of the United States government (NOTE: Land held in trust by the United States government for an Indian tribe is eligible for cooperative agreement funding); or d. A site excluded from the definition of a brownfields site for which EPA has not made a property-specific funding determination. D. Subgrant Recipient and Borrower Eligibility 1. The CAR may only provide cleanup subgrants to an eligible entity or nonprofit organization to clean up sites owned by the eligible entity or nonprofit organization at the time the subgrant is awarded. The subgrant recipient must retain ownership of the site throughout the period of performance of the subgrant. For the purposes of this agreement, the term "owned" means fee simple title unless EPA approves a different arrangement. However, the CAR may not provide a subgrant to itself or another component of its own unit of government or organization. 2, The CAR shall not loan or subgrant funds that will be used to pay for cleanup activities at a site for which the borrower or subgrant recipient is potentially liable under CERCLA §107. The CAR may rely on its own investigation which can include an opinion from the subgrant recipient's or borrower's counsel. However, the CAR must advise the borrower or subgrant recipient that the investigation and/or opinion of the subgrant recipient's or borrower's counsel is not binding on the Federal Government. 3. The CAR must consider the factors listed on page 6 under B.3. before awarding a subgrant to an eligible recipient. 4. For approved eligible petroleum-only brownfields sites, the person assessing, investigating, or cleaning up the site must be a person who is not potentially liable for cleaning up the site. For brownfields grant purposes, an entity generally will not be considered potentially liable for petroleum contamination if they did not cause or contribute to the petroleum contamination at the site. 5. The CAR shall maintain sufficient documentation supporting and demonstrating the eligibility of the sites, borrowers, and subgrant recipients. 6. A borrower or subgrant recipient must submit information regarding its overall environmental compliance history including any penalties resulting from environmental non-compliance at the site subject to the loan or subgrant. The CAR, in consultation with the EPA, must consider this history in its analysis of the borrower or subgrant recipient as a cleanup and business risk. 7. An entity that is currently suspended, debarred, or otherwise declared ineligible cannot be a borrower or subgrant recipient. E. Obligations for Grant Recipients, Borrowers, or Subgrantees Asserting a Limitation on Liability from CERCLA §107 1. Grant recipients, borrowers, or subgrantees who are eligible, or seek to become eligible, to receive a grant, loan, or subgrant based on a liability protection from CERCLA as a: (1) bona fide prospective purchaser (BFPP), (2) contiguous property owner (CPO), or (3) innocent landowner (ILO) (known as the "landowner liability protections"), must meet certain threshold criteria and satisfy certain continuing obligations to maintain their status as an eligible grant recipient, borrower, or subgrantee. These include, but are not limited to the following: a. All grant recipients, borrowers, or subgrantees asserting a BFPP, CPO or ILO limitation on liability must perform (or have already performed) "all appropriate inquiry," as found in section 101(35)(B) of CERCLA, on or before acquiring the property. b. Grant recipients, borrowers, or subgrantees seeking to qualify as bona fide prospective purchasers or contiguous property owners must not be: potentially liable, or affiliated with any other person that is potentially liable, for response costs through (a) any direct or indirect familial relationship; or (b) any contractual, corporate, or financial relationships; or (2.) a reorganized business entity that was potentially liable or (3.) otherwise liable under CERCLA §107(a) as a prior owner or operator, or generator or transporter of hazardous substances to the facility. c. Landowners must meet certain continuing obligations in order to achieve and maintain status as a landowner protected from CERCLA liability. These continuing obligations include: (1) complying with land use restrictions and not impeding the effectiveness or integrity of institutional controls; (2) taking reasonable steps with respect to hazardous substance releases; (3) providing full cooperation, assistance, and access to persons that are authorized to conduct response actions or natural resource restoration; (4) complying with information requests and administrative subpoenas (applies to bona fide prospective purchasers and contiguous property owners); and (5) complying with legally required notices (again, applies to bona fide prospective purchasers and contiguous property owners) [see CERCLA § 101(40)(B)-(H), 107(q)(1)(A), 101(35)(A)-(B).]. d. CERCLA requires additional obligations to maintain liability protection. These obligations are found at §§ 101(35), 101(40), 107(b), and 107(q). F. Use of Program Income 1. In accordance with 40 CFR 31.25(g)(2), the CAR is authorized to add program income to the funds awarded by the EPA and use the program income under the same terms and conditions of this agreement. Program income for the RLF shall be defined as the gross income received by the recipient, directly generated by the cooperative agreement award or earned during the period of the award. Program income shall include principal repayments, interest earned on outstanding loan principal, interest earned on accounts holding RLF program income not needed for immediate lending, all loan fees and loan-related charges received from borrowers and other income generated from RLF operations including proceeds from the sale, collection, or liquidations of assets acquired through defaults of loans. 2. In accordance with Section 104(d)(3)(D), when a CAR transitions to a 104(k) cooperative agreement, any program income (e.g., fees, interest or principal repayments) generated prior to (1.) transition will be added to the 104(k) agreement and must be used in a manner consistent with Section 104(k)(3) and with the terms and conditions. 3. The CAR may use program income from fees, interest payments from loans, and other forms of eligible program income to meet its cost-share. The CAR shall not use repayments of principal of loans to meet the CAR's cost-share requirement. Repayments of principal must be returned to the CAR's•Brownfields cleanup revolving fund. 4. The CAR that elects to use program income to cover all or part of a C/RLF's programmatic costs shall maintain adequate accounting records and source documentation to substantiate the amount and percent of program income expended for eligible RLF programmatic costs, and comply with applicable OMB cost principles when charging costs against program income. For any cost determined by the EPA to have been an ineligible use of program income, the recipient shall reimburse the RLF or the EPA. EPA will notify the recipient of the time period allowed for reimbursement. 5. Loans or subgrants made with a combination of program income and direct funding from EPA are subject to the same terms and conditions as those applicable to this agreement. Loans and subgrants made with direct funding from EPA in combination with non- Federal sources of funds are also subject to the same terms and conditions of this agreement. 6. CAR must obtain EPA approval of the substantive terms of loans and subgrants made entirely with program income. G. Post Cooperative Agreement Program Income 1. After the end of the award period, the CAR shall use program income in a manner consistent with the terms and conditions of a "close out" agreement negotiated with EPA. In accordance with 40 CFR 31.42(c)(3), the CAR shall maintain appropriate records to document compliance with the requirements of the close out agreement (i.e., records relating to the use of post-award program income). EPA may request access to these records or may negotiate post-close-out reporting requirement to verify that post-award program income has been used in accordance with the terms and conditions of the close out agreement. H. Interest-Bearing Accounts 1. The CAR must deposit advances of grant funds and program income (e.g., fees, interest payments, repayment of principal) in an interest bearing account. a. Interest earned on advances, CARs and subgrant recipients are subject to the provisions of 40 CFR §31.21(i) and §30.22(l) relating to remitting interest on advances to EPA on a quarterly basis. b. Interest earned on program income is considered additional program income. IV. RLF ENVIRONMENTAL REQUIREMENTS A. Authorized RLF Cleanup Activities 1. The CAR shall prepare an analysis of brownfields cleanup alternatives which will include information about the site and contamination issues (i.e., exposure pathways, identification of contaminant sources, etc.); cleanup standards; applicable laws; alternatives considered; and the proposed cleanup. The evaluation of alternatives must include effectiveness, implementability, and the cost of the response proposed. The evaluation will include an analysis of reasonable alternatives including no action. 2. For cleanup of brownfields petroleum-only sites, an analysis of cleanup alternatives must include considering a range of proven cleanup methods including identification of contaminant sources, exposure pathways, and an evaluation of corrective measures. The clean up method chosen must be based on this analysis. B. Quality Assurance (QA) Requirements 1. If environmental samples are to be collected as part of the brownfields cleanup (e.g., cleanup verification sampling, post-cleanup confirmation sampling), the CAR shall comply with 40 CFR Part 31.45 (or 40 CFR Part 30.54 requirements for nonprofit organizations) requirements to develop and implement quality assurance practices sufficient to produce data adequate to meet project objectives and to minimize data loss. State law may impose additional QA requirements. C. Community Relations and Public Involvement in RLF Cleanup Activities 1. All RLF loan and subgrant cleanup activities require a site-specific community relations plan that includes providing reasonable notice, opportunity for involvement, response to comments, and administrative records that are available to the public. D. Administrative Record 1. The CAR shall establish an administrative record that contains the documents that form the basis for the selection of a cleanup plan. Documents in the administrative record shall include an analysis of reasonable alternatives including no action; site investigation reports; the cleanup plan; cleanup standards used; responses to public comments; and verification that shows that cleanups are complete. The CAR shall keep the administrative record available at a location convenient to the public and make it available for inspection. E. Implementation of RLF Cleanup Activities 1. The CAR shall ensure the adequacy of each RLF cleanup in protecting human health and the environment as it is implemented. Each loan and subgrant agreement shall contain terms and conditions that allow the CAR to change cleanup activities as necessary based on comments from the public or any new information acquired. 2. If the borrower or subgrant recipient is unable or unwilling to complete the RLF cleanup, the CAR shall ensure that the site is secure. The CAR shall notify the appropriate state agency and the U.S. EPA to ensure an orderly transition should additional activities become necessary. F. Completion of RLF Cleanup Activities 1. The CAR shall ensure that the successful completion of a RLF cleanup is properly documented. This must be done through a final report or letter from a qualified environmental professional, or other documentation provided by a State or Tribe that shows cleanups are complete. This documentation needs to be included as part of the administrative record. V. REVOLVING LOAN FUND REQUIREMENTS A. Prudent Lending Practices 1. The CAR shall not incur costs under this cooperative agreement related to loans or subgrants until a RLF work plan has been submitted to and approved by U.S. EPA. The CAR 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 RLF program, and the cooperative agreement entered into with EPA. b. Establishing threshold eligibility requirements whereby only eligible borrowers or subgrant recipients receive RLF financing. c. Developing a formal protocol for potential borrowers or subgrant recipients to demonstrate eligibility, based on the procedures described in the initial RLF 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 or subgrant recipient to make legitimate use of the funds. Additionally, CARs shall ask boripwers or subgrant recipients for an explanation of how a project, if selected, would be consistent with RLF program objectives, statutory requirements and !imitations, and protect human health and the environment. d. Requiring that borrowers or subgrant recipients submit information describing the borrower's or subgrant recipient's environmental compliance history. The CAR shall consider this history in an analysis of the borrower or subgrant recipient 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 the borrower or subgrant recipient. B. Inclusion of Special Terms and Conditions in RLF Loan and Subgrant Documents 1. The CAR shall ensure that the borrower or subgrant recipient meets the cleanup and other program requirements of the RLF grants by including the following special terms and conditions in RLF loan agreements and subgrant awards: Borrowers or subgrant recipients shall use funds only for eligible activities and in compliance with the requirements of CERCLA 104(k) and applicable Federal and State laws and regulations. b. Borrowers or subgrant recipients shall ensure that the cleanup protects human health and the environment. c. Borrowers or subgrant recipients shall document how funds are used. If a loan or subgrant includes cleanup of a petroleum-only brownfields site(s), the CAR shall include a term and condition requiring that the borrower or subgrant recipient maintain separate records for costs incurred at that site(s). d. Borrowers or subgrant recipients shall maintain records for a minimum of three years following completion of the cleanup financed all or in part with RLF funds. Borrowers or subgrant recipients shall obtain written approval from the CAR prior to disposing of records. Cooperative agreement recipients shall also require that the borrower or subgrant recipient provide access to records relating to loans and subgrants supported with RLF funds to authorized representatives of the Federal government. e. Borrowers or subgrant recipients shall certify that they are not currently, nor have they been, subject to any penalties resulting from environmental non-compliance at the site subject to the loan. f. Borrowers or subgrant recipients shall certify that they are not potentially liable under §107 of CERCLA for the site or that, if they are, they qualify for a limitation or defense to liability under CERCLA. If asserting a limitation or defense to liability, the borrower or subgrant recipient must state the basis for that assertion. When using grant funds for petroleum-only brownfields sites, borrowers or subgrant recipients shall certify that they are not a viable responsible party for the petroleum contamination at the site. Borrowers or subgrant recipients shall conduct cleanup activities as required by the CAR. h. Subgrant recipients shall comply with applicable EPA assistance regulations (40 CFR Part 31 for governmental entities and 40 CFR Part 30 for nonprofit organizations). All procurements conducted with subgrant funds must comply with 40 CFR Part 31.36 and 40 CFR Part 30.40-30.48. C. Default 1. In the event of a loan default, the CAR 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 CAR is responsible for: (1) g. documenting the nexus between the arnount paid to the borrower (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. D. Conflict of Interest 1. The CAR shall establish and enforce conflict of interest provisions that prevent the award of loans and subgrants in situations that create, or create the appearance of, personal conflicts of interest. Such situations include, but are not limited to, situations in which an employee, official, consultant, contractor, or other individual associated with the CAR (affected party) approves or administers a grant or subgrant to a borrower or subgrant recipient in which the affected party has a financial or other interest. Such a conflict of interest, for example, would arise when: (i) The affected party, (ii) Any member of his immediate family, (iii) His or her partner, or (iv) An organization which employs, or is about to employ, any of the above, has a financial or other interest in the borrower or subgrant recipient. Affected employees will neither solicit nor accept gratuities, favors, or anything of monetary value from borrowers or subgrant recipients. Recipients may set minimum rules where the financial interest is not substantial or the gift is an unsolicited item of nominal intrinsic value. To the extent permitted by State or local law or regulations, such standards of conduct will provide for penalties, sanctions, or other disciplinary actions for violations of such standards by affected parties. VI. DISBURSEMENT, PAYMENT AND CLOSEOUT For the purposes of these terms and conditions, the following definitions apply: "payment" is the U.S. EPA' s transfer of funds to the CAR; the CAR incurs an "obligation" when it enters into a loan agreement with the borrower or subgrant recipient; "disbursement" is the transfer of funds from the CAR to the borrower or subgrant recipient. "Close out" refers to the process that the U.S. EPA follows to ensure that all administrative actions and work required under the cooperative agreement have been completed. A. Payment Schedule 1. The CAR may request payment from EPA pursuant to 40 CFR.§31.21 after it incurs an obligation or has an eligible programmatic expense. EPA will make payments to the CAR on a schedule which minimizes the time elapsing between transfer of funds from EPA and disbursement by the recipient to the borrower or subgrant recipient to pay costs incurred or to meet a "progress payment" schedule. The recipient may request payments when it receives a disbursement request from a borrower or subgrant recipient based on the borrower or subgrant recipient's incurred costs under the "actual expense" method or the schedule for disbursement under the "schedule" disbursement method. The CAR shall disburse accrued program income to meet all or part of this obligation or eligible programmatic expenses prior to requesting payment from EPA. B. Methods of Disbursement 1. The CAR may choose to disburse funds to the borrower by means of 'actual expense' or schedule.' If the schedule method is used, the recipient must ensure that the schedule is designed to reasonably approximate the borrower's incurred costs. a. An 'actual expense' disbursement approach requires the borrower to submit documentation of the borrower's expenditures (e.g., invoices) to the CAR prior to requesting payment from EPA. 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, in unusual circumstances, upon execution of the loan. The CAR shall submit documentation of disbursement schedules to EPA. c. If the disbursement schedule of the loan agreement calls for disbursement of the entire amount of the loan upon execution, the CAR shall demonstrate to the U.S. EPA Project Officer that this method of disbursement is necessary for purposes of cleaning up the site covered by the loan. Further, the CAR 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. 2. Subgrant funds must be disbursed to the subgrant recipient in accordance with 40 CFR 31.21 or 40 CFR 30.22, as applicable. a. The CAR may negotiate a predetermined schedule(s) for disbursement to subgrant recipients provided the schedule minimizes the time elapsing between disbursement by the CAR and the subgrant recipient's payment of costs incurred in carrying out the subgrant. b. If the disbursement schedule of the loan agreement calls for disbursement of the entire amount of the loan upon execution, the CAR shall demonstrate to the U.S. EPA Project Officer that this method of disbursement is necessary for purposes of cleaning up the site covered by the subgrant. Further, the CAR shall include an appropriate provision in the loan agreement which ensures that the subgrant recipient uses loan funds promptly for costs incurred in connection with the cleanup and that interest accumulated on schedule disbursements is applied to the cleanup. C. Schedule for Closeout 1. There are two fundamental criteria for closeout: (a) Final payment of funds from EPA to the CAR; and (b) Completion of all cleanup activities funded by the amount of the award. To close out the cooperative agreement all payments to the CAR must be complete. The first criterion of cooperative agreement closeout is met when the CAR receives all payments from EPA. The second closeout criterion is met when all cleanups funded by the initial amount of the award are complete. D. Compliance with Closeout Schedule 1. If a CAR fails to comply with the closeout schedule, any cooperative agreement funds not obligated under loan agreement to a borrower or subgrant recipient may be subject to federal recovery, and the cooperative agreement award amended to reflect the reduced amount of the cooperative agreement. E. Recovery of RLF Assets 1. In case of termination for cause or convenience, the CAR shall return to EPA its fair share of the value of the RLF 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 RLF to the current fair market value of the assets thereof. EPA also has remedies under 40 CFR 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 CAR may be required to compensate EPA over and above the Agency's share of the current fair market value of the assets. Nothing in this agreement limits our authorities under CERCLA to recover response costs from a potentially responsible party. F. Loan Guarantees (Note: The following is an optional T&C for the cooperative agreements that will do loan guarantees) 1. If the CAR chooses to use the RLF funds to support a loan guarantee approach, the following terms & conditions apply: a. The CAR shall: ' • (1) document the relationship between the expenditure of CERCLA §104(k) funds and cleanup activities; (2) maintain an escrow account expressly for the purpose of guaranteeing loans, by following The payment requirement described under the Escrow Requirements term and condition below; and (3) ensure that cleanup activities guaranteed by RLF funds are carried out in accordance with CERCLA 104(k) and applicable Federal and State laws and will protect human health and the environment. G. Escrow Requirements a. Payment of funds to a CAR shall not be made until a guaranteed loan has been issued by a participating financial institution. Loans guaranteed with RLF funds shall be made available as needed for specified cleanup activities on a "actual expense" or "schedule" basis to the borrower or subgrant recipient (See Section on Methods of Disbursement). The CAR's escrow arrangement shall be structured to ensure that the CERCLA §104(k) funds are properly "disbursed" by the recipient for the purposes of the assistance agreement as required by 40 CFR §31.20(b)(7) and §31.21(c). If the funds are not properly disbursed, the CERCLA §104(k) funds that the recipient places in an escrow account will be subject to the interest recovery provisions of 40 CFR §31.21(i). b. To ensure that funds transferred to the CAR are disbursements of assisted funds, the escrow account shall be structured to ensure that: (1) the recipient cannot retain the funds; (2) the recipient must not have access to the escrow 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 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 or subgrant recipient. H. Federal Obligation to the Loan Guarantee Program 1. Any obligations that the CAR incurs for loan guarantees in excess of the amount awarded under the cooperative agreement are the CAR's responsibility. This limitation on the extent of the Federal Government's financial commitment to the CAR's loan guarantee program shall be communicated to all participating banks and borrower or subgrant recipient. I. Repayment of Guaranteed Loans 1. Upon repayment of a guaranteed loan and release of the escrow amount by the participating financial institution, the CAR shall return the cooperative agreement funds placed in escrow to the U.S. EPA. Alternatively, the CAR may, with EPA approval, a. Guarantee additional loans under the terms and conditions. of the agreement or, b. 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. (5) FISCAL NOTE (MISC. #04321) November 18, 2004 BY: FINANCE COMMITTEE, CHUCK MOSS, CHAIRPERSON IN RE: DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT - SOLID WASTE RESOURCE MANAGEMENT - UNITED STATES ENVIRONMENTAL PROTECTION AGENCY - BROWNFIELDS CLEANUP REVOLVING LOAN FUND (BCRLF) SUPPLEMENTAL GRANT ACCEPTANCE 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 a Brownfields Cleanup Revolving Loan Fund (BCRLF) grant from the U.S. Environmental Protection Agency (USEPA) in the amount of $394,350. 2. The grant will provide supplemental funding to Oakland County for continued support of the Brownfields Cleanup Revolving Loan Program. 3. In-Kind Match of 20 96, or $78,870, is required, which will be funded from Brownfields tax capture and private developer match. No additional County match is required. 4. The award is the same amount as the grant application. 5. The grant period is October 1, 2004 through September 30, 2006. 6. Application has also been made to the USEPA to authorize transition of $155,650 to this grant from BCRLF grant funding awarded to Oakland County by M.R. #02285, for a grant total of $550,000. 7. Pending authorization from the USEPA, Board approval will be required for the transition of $155,650 from BCRLF grant funding awarded to Oakland County by M.R. #02285 to this grant. 8. The total grant includes funding designated for loan capitalization, directed at site cleanup, and for site specific activities and programmatic activities. 9. No General Fund/General Purpose appropriation is required for the grant. 10. The FY 2005 Special Revenue Budget is amended as follows: Revenue 19-510002-13050-0113 Expenditure Grants - Federal $394,350 19-610002-13050-2880 Grant Program 394,350 $ -0- FINANCE COMMITTEE •--7( #eafj--- FINANCE COMMITTEE Motion carried unanimously on a roll call vote. G. William Caddell, County Clerk Resolution #04321 November 18, 2004 Moved by Wilson supported by Hatchett the resolutions on the Consent Agenda be adopted (with accompanying reports being accepted). AYES: Coleman, Crawford, Douglas, Gregory, Hatchett, Jamian, Knollenberg, KowaII, Law, Long, McMillin, Middleton, Moffitt, Moss, Palmer, Patterson, Potter, Rogers, Scott, Suarez, Webster, Wilson, Zack, Bullard. (24) NAYS: None. (0) A sufficient majority having voted therefore, the resolutions on the Consent Agenda were adopted (with accompanying reports being accepted). APPROVE THE FOREGO/46 RESOLUTION 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 18th, 2004 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 18th day of November, 2004. I.