TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE G: WASTE DISPOSAL

CHAPTER II: ENVIRONMENTAL PROTECTION AGENCY

PART 885:

MUNICIPAL BROWNFIELDS REDEVELOPMENT GRANT PROGRAM

SUBPART A: GENERAL PROVISIONS

Section

885.100 Purpose

885.105 Definitions

885.110 Severability

SUBPART B: MUNICIPAL BROWNFIELDS REDEVELOPMENT GRANTS

Section

885.200 Scope and Availability of Grants

885.201 Limitations on Grant Amounts

885.205 Grant Assistance Criteria

885.210 Applications for Municipal Brownfields Redevelopment Grants

885.215 Agency Action on Application

885.220 Grant Award Acceptance

885.225 Grant Agreement

885.230 Amendments to Grant Agreement

885.235 Cost Criteria

885.240 Grant Payment

885.245 Grantee Responsibilities

885.250 Evaluation of Performance

885.255 Requirements Applicable to Contracting and Subcontracting

885.260 Agency Cost Recovery

SUBPART C: NONCOMPLIANCE WITH GRANT CONDITIONS

Section

885.300 Agency Action for Noncompliance with Grant Conditions

885.305 Project Termination by Grantee

885.310 Stop-Work Orders

885.315 Covenant Against Contingent Fees

885.320 Recovery of Grant Funds

885.325 Indemnification

885.330 Statutory Requirements

SUBPART D: ACCESS, AUDITING AND RECORDS

Section

885.400 Access

885.405 Audit and Records

AUTHORITY: Implementing and authorized by Section 58.13 of the Environmental Protection

Act [415 ILCS 5/58.13].

SOURCE: Adopted at 23 Ill. Reg. 467, effective December 23, 1998; amended at 27 Ill. Reg.

14604, effective August 28, 2003.

SUBPART A: GENERAL PROVISIONS

Section 885.100 Purpose

The purpose of this Part is to provide municipalities in Illinois with financial assistance in the

form of grants to be used for coordination of activities related to brownfields redevelopment.

Section 885.105 Definitions

Unless specified otherwise, all terms shall have the meanings set forth in the Illinois

Environmental Protection Act. Additionally, for purposes of this Part, the following definitions

apply:

"Act" means the Illinois Environmental Protection Act [415 ILCS 5].

"Agency" means the Illinois Environmental Protection Agency.

"Applicant" means a municipality that applies for a municipal brownfields

redevelopment grant.

"Municipal brownfields redevelopment grant" means a grant issued pursuant to

Section 58.13 of the Act and Subpart B of this Part.

"Brownfields site" or "brownfields" means

a parcel of real property, or a portion

of the parcel, that has actual or perceived contamination and an active potential

for redevelopment.

(Section 58.2 of the Act)

"Grant agreement" means the written grant agreement documents and

amendments thereto signed by both the Agency and a grantee in which the terms

and conditions governing the grant are stated and agreed to by both parties.

"Grantee" means a municipality that has been awarded a grant for brownfields

redevelopment under Section 58.13 of the Act.

"Municipality" means

an incorporated city, village, or town in this State.

Municipality does not mean a township, town when that term is used as the

equivalent of a township, incorporated town that has superseded a civil township,

county, or school district, park district, sanitary district, or similar governmental

district.

(Section 58.2 of the Act)

"State" means the State of Illinois.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.110 Severability

If any Section, subsection, sentence or clause of this Part shall be adjudged unconstitutional,

void, invalid, or otherwise unlawful, such adjudication shall not affect the validity of this Part as

a whole, or any Section, subsection, sentence, or clause thereof not adjudged unconstitutional,

void, invalid, or otherwise unlawful.

SUBPART B: MUNICIPAL BROWNFIELDS REDEVELOPMENT GRANTS

Section 885.200 Scope and Availability of Grants

a) Subject to the availability of funding and the limitations and requirements set

forth in this Part, grant assistance is available to municipalities for coordination of

activities related to brownfields redevelopment,

including identification of

brownfields sites, site investigation and determination of remediation objectives

and related plans and reports, and development of remedial action plans, and

implementation of remedial action plans and remedial action completion reports.

(Section 58.13(a)(1) of the Act) The plans and reports shall be developed in

accordance with Title XVII of the Act.

Grants shall be awarded on a competitive basis subject to availability of funding.

(Section 58.13(a)(2) of the Act)

Grant amounts shall not exceed 70% of the eligible project amount, with the

remainder to be provided by the municipality as local matching funds

. (Section

58.13(a)(5) of the Act)

d) A municipality, if determined to be in noncompliance, pursuant to Section

885.300, with any requirement of this Part for a previously-awarded grant, is not

eligible to receive an additional grant until compliance is achieved.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.201 Limitations on Grant Amounts

Grants shall be limited to a maximum of $240,000 and no municipality shall

receive more than that amount under this Part

(Section 58.13(a)(4) of the Act)

b) Except as provided in subsection (c) of this Section, the total amount requested by

a single grant applicant shall not exceed $120,000.

c) A grantee may submit a supplemental application or an amendment seeking an

increase in grant budget in excess of $120,000 only after demonstrating the

following:

1) The grantee is current on all reporting requirements set forth in Section

885.245;

2) The grantee is current with the grant project work plan schedule; and

3) The grantee has requested payment for grant-eligible work from the

Agency for at least 80% of the total grant funds.

(Source: Added at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.205 Grant Assistance Criteria

Criteria for awarding grants shall include, but shall not be limited to, the

following:

Problem statement and needs assessment;

Community-based planning and involvement;

Implementation planning;

Long-term benefits and sustainability (Section 58.13(a)(2) of the Act); and

5) Whether the applicant has previously received a grant under this Program.

b) In awarding grants,

the Agency may give weight to geographic location to

enhance geographic distribution of grants across this State

(Section 58.13(a)(3)

of the Act).

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.210 Applications for Municipal Brownfields Redevelopment Grants

a) A municipality may apply for grant funds only if the following conditions are

met:

1) The municipality commits in writing to enroll, or has enrolled, the

brownfields site in the Site Remediation Program;

2) A Phase I or II environmental audit has been or will be completed for the

brownfields site and has been or will be submitted to the Site Remediation

Program for review and approval;

3) The municipality provides a cost estimate for the cleanup, prepared by a

professional engineer, for the brownfields site for which grant funds are to

be expended and commits to work toward acquiring a No Further

Remediation letter; and

4) If the costs to complete corrective action and to acquire a No Further

Remediation letter exceed the maximum amount available to the

municipality under this grant program, the municipality has reasonably

demonstrated that there is sufficient capital available to cover such costs.

b) To be considered for a municipal brownfields redevelopment grant, an applicant

must file with the Agency a complete application, in accordance with the

requirements of this Section and relevant statutes.

c) Applicants for municipal brownfields redevelopment grants must use grant

application forms furnished by the Agency, or a similar format. Grant

applications, including budget forms, may be obtained from and must be

submitted to:

Illinois Environmental Protection Agency

Bureau of Land

Office of Brownfields Assistance

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

d) A complete municipal brownfields redevelopment grant application must include:

1) Background information on the applying municipality and proposed

project, including:

A) The negative effects on the local community of the brownfields

site and the positive effects on the local community of funding and

implementation of the proposed project;

B) The local government involvement and planned additional

involvement in the proposed project;

C) If the brownfields site is located in an enterprise zone, as defined at

Section 3(b) of the Illinois Enterprise Zone Act [20 ILCS

655/3(b)], a map that identifies the designated enterprise zone and

the specific brownfields site location;

D) The anticipated long-term benefits of the project and the means by

which the municipality will sustain the benefits;

How the success of the project will be measured;

F) A commitment by the grantee that the site for which the grant is

sought will be entered into the Site Remediation Program, to the

extent that activities funded by the grant are not statutorily

excluded under the Site Remediation Program; and

G) If the property is not municipally owned, the grantee must provide

the following:

i) An explanation as to why grant funds are requested for

privately held property and the anticipated benefit to the

municipality of expending grant funds at privately held

property;

ii) Identification of the owner of the property; and

iii) Tenant information, including but not limited to tenant

name, type of lease/rental and type of business.

2) The project plan, including:

A) A description of all components and phases of the proposed

project;

B) A description of planned or proposed tasks to be performed by

parties involved;

C) A schedule of the work plan by tasks, including specific activities

and events;

D) A detailed explanation of all anticipated expenses covered by the

grant and a discussion of costs not covered by the grant, but

anticipated to achieve the stated long-term project goals and

measures;

E) Letter(s) of agreement or other documentation showing the

applicant is authorized, by law or consent, to act on behalf of or in

lieu of the owner or operator of the site;

F) Letter(s) of agreement or other documentation from the contractor

or subcontractors involved in or responsible for components or

phases of the proposed project;

G) Map(s) indicating location(s) of the proposed project, areas

affected by the proposed project and, if relevant to the project,

enterprise zone;

H) A designation of the total acreage of the project site; and

I) Location of the project site by latitude and longitude.

3) Information on project team members, including:

A) The name of the project manager and a description of his or her

previous management experience and other pertinent experience

and capabilities;

B) The names of other project team members and a description of

their job titles, work assignments and experience;

C) Documentation showing resource commitment by the grantee

adequate for the project manager to successfully organize,

administer, and complete the project specified in the proposal, such

as:

i) Evidence of the relevant experience of all project team

members; and

ii) Proposed allocation of resources, both capital and labor, to

the project;

D) The name, telephone number, fax number, and e-mail address, if

any, of the project team member designated to serve as liaison with

the Agency.

4) Information on any environmental consultant to be employed by the

applicant, including:

A) The previous project management experience and other pertinent

experience and capabilities of the environmental consultant;

B) The names of key environmental consultant personnel and a

description of their job titles, work assignments and experience;

C) A detailed description of the tasks the consultant is to perform in

the proposed project;

D) Evidence of relevant experience of all environmental consultant

personnel involved in the project;

E) Statement that work will be performed as outlined in the work plan

approved as part of the application, including adherence to the

supplied work schedule;

F) A copy of the consultant’s current normal and customary billing

rates; and

G) Evidence of relevant experience for all subcontractors to be used

and a copy of each subcontractor’s signed formal bid.

5) The grant amount requested and a budget, on a form prescribed by the

Agency, or in a similar format, outlining the expenses to be incurred. All

amounts must be rounded to the nearest dollar and all percentages must be

carried to one decimal place. The budget must include costs of:

A) Personnel services;

B) Equipment;

C) All other direct costs; and

D) Contractor and subcontractors.

6) Any additional information required by the Agency.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.215 Agency Action on Application

a) Issuance of municipal brownfields redevelopment grants is subject to availability

of funding.

b) The Agency shall take action on all pending complete municipal brownfields

redevelopment grant applications at the close of each of two grant application

periods per year, the first ending January 1 and the second ending July 1, except

as provided in subsection (c) of this Section.

c) The Agency may award and fund any grant prior to the end of a grant application

period provided that the grant applicant demonstrates that:

1) The brownfields redevelopment project for which the grant is sought is

specific to one or more sites;

2) Remediation of the project site or sites is necessary to assure protection of

human health and the environment; and

3) Failure to fund the grant prior to the end of the grant application period

would substantially impair implementation of the project.

d) If an applicant submits an incomplete application, the Agency shall so notify the

applicant in writing, identifying the information that is lacking.

e) The Agency shall, no more than 90 days after the close of each grant application

period, or in accordance with subsection (c) of this Section, in writing, notify each

applicant with a pending application:

1) If funding is available for municipal brownfields redevelopment grants, of

that applicant's selection or rejection for a grant award; or

2) If funding is not available, of the unavailability of grant assistance.

f) Municipalities cannot obtain grant assistance by default due to failure by the

Agency to act within the time frame set forth in subsection (d) of this Section.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.220 Grant Award Acceptance

No more than 30 days after receipt of grant award selection notification, the grantee shall notify

the Agency in writing of its acceptance. If the grantee fails to so notify the Agency, the grant

award shall be null and void.

Section 885.225 Grant Agreement

a) The Agency shall send to the grantee, at the time the Agency notifies each

applicant of the applicant’s selection, formal grant agreement documents,

including a grant agreement to be signed by the Agency and the grantee.

b) The Agency shall not sign a grant agreement until the grantee has corrected any

errors identified by the Agency in the grant application.

c) The grant takes effect on the date that the Agency receives the signed grant

agreement from the applicant.

d) Once signed by both the Agency and the grantee, the grant agreement,

comprisingthe written grant agreement documents and any amendments thereto,

shall govern the grant.

e) The Agency shall keep the original grant agreement documents and provide a

copy to the grantee.

f) The grant agreement may be amended in accordance with Section 885.230 of this

Part.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.230 Amendments to Grant Agreement

a) To implement a project change, the grantee must obtain a formal amendment to

the grant agreement. The grantee may request an amendment to the grant

agreement by submitting an amended grant application to the Agency at any point

during the grant term. Any such application shall include at a minimum any

reports required pursuant to Section 885.245(a) and not already submitted.

b) The grant agreement may be amended only by the mutual consent of the parties

set forth in writing as a formal grant agreement amendment, signed and dated by

the Agency and the grantee. Grant amendments at the request of the grantee will

be considered by the Agency only if the grantee is current on all reporting

requirements set forth in Section 885.245(a) of this Part.

c) The grantee may request amendments for project changes including, but not

limited to:

1) Increasing the amount of State funds needed to complete the project;

2) Altering the scope of the grant, as agreed to at the time of the grant award,

e.g., by changing methodologies or personnel to be used; or

3) Extending any contractual or grant completion date for the project.

d) No more than 90 days after receipt of an amended grant application, the Agency

shall notify the grantee in writing of its approval or rejection of the requested

amendment to the grant agreement.

e) The Agency shall not approve any amendment to the grant agreement in violation

of the limitations on grants set forth in sections 885.200 and 885.201 of this Part.

f) The Agency shall approve an amendment to the grant agreement, to the extent

that the Agency may approve the amendment consistent with sections 885.200

and 885.201 of this Part, if the grantee makes a showing that:

1) The original project cost approval was based on estimated costs or

contractor bids, where the actual costs or contractor bids are over or under

the estimated costs;

2) Amendments to State statutes have affected or will affect the project costs;

3) A project element was inadvertently omitted;

4) An approved project element has been found unnecessary; or

5) A project element was added pursuant to requirements of the Site

Remediation Program.

g) If the Agency approves a requested amendment to the grant agreement, the

Agency shall send a signed formal amendment signature page and a copy of the

amended grant application to the grantee. After the grantee signs and returns the

signature page, the Agency shall date the signature page and attach the amended

grant application, the notification of Agency approval of the requested

amendment and the signature page to the grant agreement documents.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.235 Cost Criteria

a) The Agency shall approve for reimbursement to the grantee, under the terms set

forth in Section 885.240 of this Part, only costs contained in the quarterly reports

and meeting the following criteria:

1) Costs within the scope of the redevelopment project for which the grant

was awarded;

2) Costs that are reasonable and necessary, including, but not limited to:

A) Site Remediation Program enrollment costs and Agency oversight

costs of participating in the Site Remediation Program of Title

XVII of the Act and No Further Remediation letter assessment

fees;

B) Environmental consultant oversight services;

C) Remedial investigation and design;

D) Development and implementation of activities necessary to

establish remediation objectives;

E) Laboratory services necessary to determine site characterization

and to establish cleanup objectives;

F) Installation and

operation of groundwater investigation and

groundwater monitoring wells;

G) Development and implementation of a soil sampling plan;

H) Development of a groundwater corrective action system;

I) Development of a soil corrective action plan;

J) Costs associated with seeking reimbursement from the municipal

brownfields redevelopment grant program, including, but not

limited to, completion of documentation for partial or final

payment;

K) Purchase costs for non-expendable materials, supplies, equipment

or tools purchased and used for the brownfields project; and

L) Development and implementation of corrective action plans;

3) Costs in amounts up to, but not exceeding, the total amount of the grant

award;

4) Costs incurred on or after the date the grant agreement is executed;

5) Costs incurred without knowing violation of any State or federal law or

regulation; and

6) Costs incurred under a contract or subcontract in conformance with

Section 885.255 of this Part.

b) The Agency shall not approve for reimbursement any costs that are not necessary

for completion of the work required under the grant agreement, including but not

limited to:

1) Costs or losses resulting from business interruption at the specific site;

2) Costs associated with improperly installed sampling or monitoring wells;

3) Costs associated with improperly collected, transported or analyzed

laboratory samples;

4) Interest or finance costs charged as direct costs;

5) Insurance costs charged as direct costs;

6) Costs associated with an asbestos study or survey conducted within or

associated with a structure or dwelling, including sample collection and

analysis;

7) Costs associated with a lead paint study or survey conducted within or

associated with a structure or dwelling, including sample collection and

analysis;

8) Costs associated with demolition;

9) Costs outside the scope of the Agency-approved project;

10) Costs incurred prior to the execution of the grant agreement;

11) Costs of geotechnical sampling and study;

12) Costs associated with resampling, when it has been determined that such

resampling is necessary due to failure by the consultant to follow standard

procedures or advice or direction from the Site Remediation Program; and

13) Costs for expediting of lab analysis of samples, unless approved in

advance by the Agency.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.240 Grant

Payment

a) The Agency shall use reimbursements to the grantee as the method of payment of

grant funds.

b) To obtain reimbursement from the municipal brownfields redevelopment grant

program, the grantee shall submit a request for reimbursement in writing to the

Agency on forms provided by the Agency with documentation, including the

activities performed, the timeframe in which the activities were performed and a

breakdown of the costs incurred, to demonstrate that the grantee has incurred the

costs for which reimbursement is sought.

c) Grant funds must be expended no more than three years after the effective date of

the grant award, except:

1) For grantees who were issued a grant on or before January 1, 2002, in

which case grant funds in excess of $120,000 must be expended no more

than three years after the effective date of the grant amendment; and

2) For grantees whom the Agency determines would thereby be prohibited

from successfully accomplishing the project goals set forth in the Agency-

approved grant agreement, in which case grant funds must be expended by

a date set by the Agency. The Agency determination must be based on the

following written documentation from the grantee:

A) An explanation as to why the grant-approved activities cannot be

completed within the authorized timeframe;

B) A statement as to the steps taken to correct any problems or

deficiencies contributing to the inability to complete the project

within the grant agreement timeframe;

C) An estimate of the additional time necessary to complete the

project; and

D) A description of the impact on the community if the grant

timeframe is not extended.

d) The grantee may submit an initial request for reimbursement at any time after the

costs for which reimbursement is sought have been incurred. Subsequent requests

for reimbursement must be spaced at least 90 days apart, except that the grantee

may submit a final reimbursement request no more than 90 days after either the

most recent prior request or completion of approved grant activities.

e) The Agency shall use the criteria set forth in Section 885.235 of this Part in

determining whether to approve reimbursement to the grantee of costs included in

each request for reimbursement.

f) If grant funds are available, the Agency shall send a voucher for payment of an

approved reimbursement request to the Comptroller's office no more than 90 days

after receipt of the request.

g) If grant funds are unavailable, the Agency shall so notify the grantee, no more

than 90 days after receipt of a request for reimbursement, and shall send vouchers

for payment of approved reimbursement requests to the Comptroller's office when

funds become available.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.245 Grantee Responsibilities

a) The grantee must submit quarterly progress reports to the Agency, using forms

provided by the Agency, during the term of the grant. Each progress report should

be a short narrative of the activities performed and the dates they were performed

during that quarter. The quarterly progress report must also include, but not be

limited to, the following:

1) Date the site was enrolled in the Site Remediation Program and a copy of

the enrollment application;

2) Any change in ownership or intended use of the Brownfields site;

3) Any land use changes within the quarter; and

4) Any deviations from the grant application work plan schedule.

b) The grantee must submit a detailed final report to the Agency at the end of the

grant term. In the final report, the grantee must, at a minimum, describe how the

tasks described in the project plan submitted by the grantee have been fulfilled

and provide a completed Match Funding Certification, on a form provided by the

Agency, certifying that the required, local match has been met, in accordance with

Section 885.200(c) of this Part.

c) If the grantee fails to timely submit quarterly progress reports or a final report, the

Agency may impose any of the sanctions set forth in Subpart C of this Part.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.250 Evaluation of Performance

The Agency shall oversee each grantee's performance under the municipal brownfields

redevelopment grant program in the following manner:

a) The Agency shall evaluate grantee performance and progress toward completing

the approved project plan.

b) If the Agency's evaluation reveals that the grantee is not in compliance with one

or more of the terms, conditions or limitations of the grant agreement, the Agency

shall attempt to resolve the situation through negotiation. The Agency and the

grantee shall put any settlement reached in writing as a formal amendment to the

grant agreement in accordance with Section 885.230 of this Part.

c) If resolution is not achieved, the Agency may impose any of the sanctions set

forth in Subpart C of this Part.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003

Section 885.255 Requirements Applicable to Contracting and Subcontracting

a) The following conditions and limitations shall apply to all contracts and

subcontracts entered into by the grantee:

1) The grantee must use a freely and openly competitive bidding process in

contracting and must require the same of any contractor in subcontracting;

2) Only fair and reasonable profits may be earned by contractors and

subcontractors in contracts and subcontracts under Agency grants. Factors

to be considered in determining a fair and reasonable profit shall include

project-related: material acquisition costs; labor costs; management costs;

contract risks; capital investments; degree of independent development;

and cost control and record keeping efforts. The determination of a fair

and reasonable profit shall not be based upon the application of a

predetermined percentage factor;

3) The grantee, rather than the Agency, is responsible for the administration

and successful accomplishment of the project for which the Agency grant

is awarded. The grantee, rather than the Agency, is responsible for the

settlement and satisfaction of all contractual and administrative issues

arising out of contracts and subcontracts entered into under the grant. This

responsibility includes, but is not limited to, issuance of invitations for

bids or requests for proposals, selection of contractors, award of contracts,

protest of award, claims, disputes and other procurement matters;

4) Any contract or subcontract must include a provision allowing project-

related access, in accordance with Section 885.400 of this Part;

5) Any contract or subcontract must provide that the Agency or any

authorized representative shall have access to any books, documents,

papers, and records, including computer-generated documents, of the

contractor or subcontractor that are pertinent to the project, for the purpose

of making an audit, examination, excerpts, and transcriptions thereof; and

6) Neither the Agency nor the State shall be a party to any contract or

subcontract, solicitation, or request for proposals.

b) No contract or subcontract shall be awarded to any person or organization that

does not:

1) Have adequate financial resources, experience, organization, technical

qualification, and facilities for performance of the subagreement, or a firm

commitment or arrangement to obtain such;

2) Have staffing sufficient to comply with the completion schedule for the

project;

3) Have a demonstrated record of integrity, good judgment, and performance,

including any prior performance under grants or contracts with the federal

or any state government;

4) Have an established financial management system and audit procedure;

5) Maintain a property management system that provides procedures for the

acquisition, maintenance, safeguarding and disposition of all project-

related property;

6) Conform to the civil rights law, equal employment opportunity law, and

labor law requirements, as well as all other statutes of the State; and

7) Use good faith efforts to recruit, develop and extend employment and

contracting opportunities to women, minorities and persons with

disabilities for activities performed pursuant to the grant.

c) Nothing in this Part shall be deemed to modify or negate any requirement of the

Business Enterprise for Minorities, Females and Persons with Disabilities Act.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.260 Agency Cost Recovery

a) If the Agency undertakes a response action at the site of an approved project, the

Agency will not seek recovery of its costs under Section 22.2 or Title XVII of the

Act from a grantee as an owner or operator if the grantee's status as an owner or

operator is based solely on the grantee's:

1) Execution of a grant agreement; or

2) Implementation of an approved project.

The exclusion provided under subsection (a) shall not apply to any grantee who

has caused or contributed to the release or threatened release of a hazardous

substance or pesticide from the facility, and such grantee shall be subject to the

provisions of the Act in the same manner and to the same extent, both

procedurally and substantively, as any nongovernmental entity, including liability

under Sections 22.2(f) and 58.9 of the Act. (Section 22.2(h)(2)(H) of the Act)

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

SUBPART C: NONCOMPLIANCE WITH GRANT CONDITIONS

Section 885.300 Agency Action for Noncompliance with Grant Conditions

a) In addition to such other remedies as may be provided by law, in the event of

noncompliance with any condition imposed pursuant to a municipal brownfields

redevelopment grant or other violation of this Part, the Agency may:

1) Revoke the grant and recover all grant funds disbursed;

2) Take no action on reimbursement requests;

3) Terminate the grant;

4) Suspend all project work; or

5) Take such other action as the Agency is authorized to take.

b) Noncompliance includes, but is not limited to:

1) Failure to submit a quarterly report or a final report;

2) Failure to deliver or act upon any grant commitment, such as a

commitment to enter into the Site Remediation Program;

3) Failure to provide local matching funds, as required under Section

885.200(c); or

4) Failure to limit use of the brownfields site to uses consistent with the end

use designated in the grant application.

c) No action shall be taken under this Section without prior oral or written

consultation with the grantee.

d) In determining whether to take action and which action to take under this Section,

the Agency shall consider factors including, but not limited to:

1) The severity of the violation(s);

2) The number of violations by the grantee;

3) Whether the violation is a continuing one;

4) Whether the grantee can remedy the violation; and

5) Whether the grantee and any contractor or subcontractor remain capable of

complying with the approved work project.

e) Recovery actions under this Section shall be taken pursuant to the Illinois Grant

Funds Recovery Act [30 ILCS 705].

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.305 Project Termination by Grantee

a) The grantee may request the termination of an incomplete project for which a

grant has been awarded only for good cause.

b) The Agency shall review the grantee's request to terminate a project and make a

finding, no more than 90 days after the date of receipt of the request to terminate,

as to good cause. Good cause shall include, but not be limited to:

1) A change in grant program requirements or priorities;

2) Lack of adequate public or private funding for the completion of the

project; or

3) Advancements in technology.

c) If the Agency finds that the grantee's request to terminate the project is for good

cause, it shall terminate the grant, effective upon the date the request to terminate

the project was received by the Agency. The grantee may keep all grant funds

previously paid.

d) If the Agency finds that the grantee's request to terminate the project is without

good cause, the grant shall be revoked and the grantee shall return to the State all

grant funds previously paid. The grantee shall return such funds no more than 30

days after the date the grant is revoked by sending a certified check to the

Brownfields Redevelopment Fund.

(Source: Amended at 27 Ill. Reg. 14604, effective August 28, 2003)

Section 885.310 Stop-Work Orders

a) The Agency may, for any violation of this Part, issue a written stop-work order,

requiring the grantee to stop all or any part of the project work, effective for a

period of not more than 30 days from the date of the order, or for any further

period to which the parties may agree in writing. The Agency shall include in any

stop-work order a list of the project activities to which the order applies.

b) Upon receipt of a stop-work order, the grantee must comply with its terms and

stop the incurrence of costs allocable to the work covered by the order during the

period of work stoppage.

c) No more than 30 days after the date of the stop-work order, or within any

extension of that period to which the parties agree in writing, the Agency shall:

1) Upon resolution of the violation leading to the stop-work order, cancel the

stop-work order; or

2) Terminate the portion of the grant covered by the stop-work order, as

provided in Section 885.300.

d) If a stop-work order issued under this Section is canceled, or the effective period

of the order or any written extension thereof expires, the grantee shall resume

work. The grantee may request an amendment to the grant agreement, in

accordance with Section 885.230 of this Part, to obtain an adjustment in the grant

amount accounting for the work stoppage.

e) The grantee may not obtain reimbursement for costs associated with a stop-work

order unless the Agency authorizes reimbursement in writing.

Section 885.315 Covenant Against Contingent Fees

a) The grantee must warrant, as part of the grant agreement, that no person has been

employed or retained to solicit or secure a grant under this Part upon an

agreement or understanding for a commission, percentage, brokerage, or

contingent fee.

b) For breach or violation of this warranty, the Agency shall have the right to revoke

the grant without liability or, in its discretion, to deduct from the grant award, or

otherwise recover, the full amount of such commission, percentage, brokerage, or

contingent fee.

Section 885.320 Recovery of Grant Funds

If the Agency determines that any grant funds are being misspent or improperly held by the

grantee, the Agency or the Attorney General shall have the authority to recover those funds and

take any action authorized by the Illinois Grant Funds Recovery Act [30 ILCS 705].

Section 885.325 Indemnification

The grantee, rather than the Agency, shall assume the entire risk, responsibility and liability for

any and all loss or damage to property owned by the grantee, the Agency, or third persons, and

any injury to or death of any persons (including employees of the grantee) caused by or arising

out of, or occurring in connection with, the execution of any work, contract or subcontract

arising out of this grant, and the grantee shall indemnify, save harmless and defend the State and

the Agency from all claims for any such loss, damage, injury, or death. However, a grantee's

execution of a grant agreement, or implementation of an approved project, does not, in itself,

render the grantee an owner or operator for purposes of 415 ILCS 5/22.2(h)(2), or under

regulations promulgated pursuant to 415 ILCS 55/8. The grantee shall require any contractor or

subcontractor engaged by the grantee to agree in writing to look solely to the grantee for

performance of its contract or subcontract with the grantee and for satisfaction of any and all

claims arising thereunder.

Section 885.330 Statutory Requirements

The grantee is solely responsible for assuring compliance with all statutory requirements,

including, but not limited to, the Local Government Professional Services Selection Act [50

ILCS 510] and the Construction Contract Indemnification for Negligence Act [740 ILCS 35].

SUBPART D: ACCESS, AUDITING AND RECORDS

Section 885.400 Access

a) The Agency or any authorized representative shall have access to the premises

where any portion of the project for which the grant was awarded is being

performed, both during normal business hours and at any other time project-

related work is being performed.

b) Subsequent to the end of the grant term, the Agency or any authorized

representative shall have access to the project records, as defined in Section

885.405(a) of this Part, to the full extent of the grantee's right to access, during

normal business hours.

c) If the Agency or any authorized representative is denied access in violation of this

Section, the Agency shall provide notice in writing to the grantee that failure to

provide access within 10 days will be cause for:

1) Termination of the grant pursuant to Subpart C of this Part;

2) Refund to the State of any unexpended grant funds in the possession of the

grantee; and

3) Refund of any grant funds previously expended by the grantee, contractor,

or subcontractor found in noncompliance with this Section.

Section 885.405 Audit and Records

a) The grantee shall maintain books, records, documents, reports and other

evidentiary material, using accounting procedures and practices that conform to

generally accepted accounting principles, to account properly for:

1) The receipt and disposition by the grantee of all financial assistance

received for the project, including both State assistance and the local

share; and

2) The costs charged to the project for which the grant has been awarded,

including all direct and indirect costs of whatever nature incurred in

performance of the project.

b) The grantee's facilities, or such facilities as may be engaged in the performance of

the project for which the grant has been awarded, and the grantee's records shall

be subject to inspection and audit by the Agency or any authorized representative

at the times specified in Section 885.400 of this Part.

c) The grantee shall preserve records and make records available to the Agency or

any authorized representative:

1) Until expiration of 3 years from the date of final payment under this grant;

2) For such longer period, if any, required by applicable statute or regulation;

3) For records relating to grant work that has been terminated, for a period of

3 years from the date of any resulting final termination settlement; or

4) For records relating to disputes and/or appeals, litigation or the settlement

of claims arising out of the performance of the project for which the grant

was awarded, or costs and expenses of the project to which exception has

been taken by the Agency or any of its duly authorized representatives,

until disposition of such appeals, litigation, claims, or exceptions.