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
885.232
Project Change Approvals
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; amended at 31 Ill. Reg. 5774, effective March 30, 2007.
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)
“River Edge Redevelopment Zone” means an area of the State created by the
Department of Commerce and Economic Opportunity as a River Edge
Redevelopment Zone pursuant to the River Edge Redevelopment Zone Act [65
ILCS 115].
"State" means the State of Illinois.
(Source: Amended at 31 Ill. Reg. 5774, effective March 30, 2007)
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.
b)
Grants shall be awarded on a competitive basis subject to availability of funding.
(Section 58.13(a)(2) of the Act)
c)
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
a)
Except for grants to municipalities with designated River Edge Redevelopment
Zones, grants shall be limited to a maximum of $240,000 and no municipality
shall receive more than this amount under this
Part (Section 58.13(a)(4) of the
Act)
.
The following applies to municipalities other than municipalities with
designated River Edge Redevelopment Zones:
1)
Except as provided in subsection (a)(2) of this Section, the total amount of
grant funds awarded to a municipality under this Part shall not exceed
$120,000.
2)
A grantee may request grant funds in excess of the limit set forth in
subsection (a)(1) of this Section only after demonstrating the following:
A)
The grantee is current on all reporting requirements set forth in
Section 885.245 of this Part;
B)
The grantee is current with the grant project work plan schedule;
and
C)
The Agency has approved payment of at least $96,000 in grant
funds for grant-eligible work, or the grantee has received Agency
approval of a remedial action plan under 35 Ill. Adm. Code 740.
b)
For grants to municipalities with designated River Edge Redevelopment Zones,
grants shall be limited to a maximum of $2,000,000 and no municipality shall
receive more than this amount under this
Part (Section 58.13(a)(4) of the Act)
.
The following applies to municipalities with designated River Edge
Redevelopment Zones:
1)
Except as provided in subsection (b)(2) of this Section, the total amount
awarded to a municipality under this Part shall not exceed $1,000,000.
2)
A grantee may request grant funds in excess of the limit set forth in
subsection (b)(1) of this Section only after demonstrating the following:
A)
The grantee is current on all reporting requirements set forth in
Section 885.245 of this Part;
B)
The grantee is current with the grant project work plan schedule;
and
C)
The Agency has approved payment of at least $800,000 in grant
funds for grant-eligible work, or the grantee has received Agency
approval of a remedial action plan under 35 Ill. Adm. Code 740.
3)
Grant funds in excess of $240,000 must be used for grant projects located
within the River Edge Redevelopment Zone.
(Source: Amended at 31 Ill. Reg. 5774, effective March 30, 2007)
Section 885.205 Grant Assistance Criteria
a)
Criteria for awarding grants shall include, but shall not be limited to, the
following:
1)
Problem statement and needs assessment;
2)
Community-based planning and involvement;
3)
Implementation planning;
4)
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;
E)
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 with the
grantee as the Remediation Applicant, to the extent that activities
funded by the grant are not statutorily excluded under the Site
Remediation Program;
G)
If the property is not municipally owned, 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; and
H)
If a designated River Edge Redevelopment Zone is located within
the municipality, a copy of the River Edge Redevelopment Zone
Certificate and all amendments to the certificate issued for the
River Edge Redevelopment Zone pursuant to the River Edge
Redevelopment Zone Act.
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;
I)
Location of the project site by latitude and longitude;
J)
A description of the planned use for the project site following the
completion of remediation activities and the issuance of a No
Further Remediation Letter under 35 Ill. Adm. Code 740; and
K)
If funding for performance of a remedial action is being requested,
a copy of the remedial action plan approval letter issued by the
Agency under 35 Ill. Adm. Code 740.
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 31 Ill. Reg. 5774, effective March 30, 2007)
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 frames set forth in this Section.
(Source: Amended at 31 Ill. Reg. 5774, effective March 30, 2007)
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, comprising
the 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)
The grantee must obtain an amendment to the grant agreement for the following
project changes:
1)
An increase in the total amount of grant funds awarded under this Part;
2)
The addition or deletion of one or more project sites; or
3)
The extension of any contractual or grant completion date for the project.
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. The grantee may request an amendment at any point
during the grant term. Requests for amendments must be submitted on forms
prescribed by the Agency and must include all reports due under Section
885.245(a) of this Part that have not been submitted. 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)
Project changes other than those identified in subsection (a) of this Section must
be approved by the Agency pursuant to Section 885.232 of this Part.
d)
No more than 90 days after receipt of a request for an amendment to the grant
agreement the Agency shall notify the grantee in writing of its approval or
rejection of the requested amendment.
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; or
4)
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 sign the amendment and the amendment shall become a part of the
grant agreement. The amendment becomes effective on the date it is signed by
the Agency.
h)
A grantee cannot obtain an amendment to the grant agreement by default due to
the Agency’s failure to act within the time frames set forth in this Section.
(Source: Amended at 31 Ill. Reg. 5774, effective March 30, 2007)
Section 885.232 Project Change Approvals
a)
Project changes other than those identified in Section 885.230(a) of this Part must
be approved by the Agency in writing (e.g., personnel changes, reallocation of
budgeted amounts). The grantee may request approval of a project change at any
point during the grant term. Requests for project change approvals must be
submitted on forms prescribed by the Agency and must include all reports due
under Section 885.245(a) of this Part that have not been submitted. Requests 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. This Section cannot be
used to approve project changes identified in Section 885.230(a) of this Part.
b)
No more than 90 days after receiving a request for approval of a project change,
the Agency shall notify the grantee in writing of its approval or rejection of the
request.
c)
The Agency shall not approve a project change in violation of the limitations on
grants set forth in Sections 885.200 and 885.201 of this Part.
d)
The Agency shall approve a project change, to the extent that the Agency may
approve the project change 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.
e)
The Agency shall notify the grantee in writing of its approval or rejection of the
requested project change. A project change approval becomes effective on the
date the Agency issues its written notification of approval.
f)
A grantee cannot obtain approval of a project change by default due to the
Agency’s failure to act within the time frames set forth in this Section.
(Source: Amended at 31 Ill. Reg. 5774, effective March 30, 2007)
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;
L)
Development and implementation of corrective action plans;
M)
If asbestos that poses a threat to human health or the environment
is detected outside a structure, costs associated with identifying the
source of the asbestos and remediating the asbestos until it no
longer poses a threat to human health or the environment;
N)
For grants to municipalities with a designated River Edge
Redevelopment Zone, costs associated with demolition within the
River Edge Redevelopment Zone; and
O)
For grants to municipalities with a designated River Edge
Redevelopment Zone, costs associated with an asbestos study,
survey, or abatement conducted within or associated with a
structure or dwelling located within the River Edge
Redevelopment Zone, including sample collection and analysis;
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, survey, or abatement conducted
within or associated with a structure or dwelling, including sample
collection and analysis, except as provided in subsection (a)(2)(O) of this
Section;
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, except as provided in subsection
(a)(2)(N) of this Section;
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 31 Ill. Reg. 5774, effective March 30, 2007)
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.
d)
If a designated River Edge Redevelopment Zone is located within the
municipality, within 10 days after the amendment or decertification of a River
Edge Redevelopment Zone pursuant to the River Edge Redevelopment Zone Act
the grantee must notify the Agency of the amendment or decertification and
provide the Agency with a copy of the amendment or decertification documents.
(Source: Amended at 31 Ill. Reg. 5774, effective March 30, 2007)
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.
b)
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 as the
Remediation Applicant;
3)
Failure to provide local matching funds, as required under Section
885.200(c);
4)
Failure to limit use of the brownfields site to uses consistent with the end
use designated in the grant application; or
5)
Failure to remediate the brownfields site consistent with the end use
designated in the grant application, such as failure to remediate a site with
a residential end use to residential cleanup levels.
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 31 Ill. Reg. 5774, effective March 30, 2007)
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.
e)
A grantee cannot obtain approval of a request to terminate a project for good
cause by default due to the Agency’s failure to act within the time frames set forth
in this Section.
(Source: Amended at 31 Ill. Reg. 5774, effective March 30, 2007)
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.