HomeMy WebLinkAbout24-154 Unsigned by other parties Resolution No. 24-154
RESOLUTION
AUTHORIZING EXECUTION OF A MEMORANDUM OF AGREEMENT WITH COUNTY
OF KANE FOR THE MANAGEMENT OF THE EPA CLIMATE POLLUTION REDUCTION
GRANT AWARD
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,
that Richard G. Kozal, City Manager, be and is hereby authorized and directed to execute a
Memorandum of Agreement on behalf of the City of Elgin with the County of Kane, for the
management of the EPA climate pollution reduction grant award, a copy of which is attached
hereto and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: June 12, 2024
Adopted: June 12, 2024
Vote: Yeas: 9 Nays: 0
Attest:
s/ Kimberly Dewis
Kimberly Dewis, City Clerk
MEMORANDUM OF AGREEMENT FOR THE MANAGEMENT OF THE EPA
CLIMATE POLLUTION REDUCTION GRANT AWARD
RECITALS
THIS MEMORANDUM OF AGREEMENT, made by and between the COUNTY OF
KANE (COALITION LEAD APPLICANT); and the following SUB-RECIPIENTS:
COUNTY OF DUPAGE; KENDALL COUNTY; LAKE COUNTY; COUNTY OF WILL;
CITY OF AURORA; CITY OF BATAVIA; CITY OF ELGIN; CITY OF HIGHLAND
PARK; CITY OF NAPERVILLE; CITY OF WAUKEGAN; VILLAGE OF DOWNERS
GROVE; VILLAGE OF MOKENA; and the VILLAGE OF WHEELING.
WHEREAS, the Parties are units of local government within the meaning of
Section 10 of Article 7 of the Constitution of the State of Illinois; and
WHEREAS, the Parties are also public agencies within the meaning of the
Intergovernmental Cooperation Act (5 ILCS 220/1, et. seq.); and
WHEREAS, the Parties are authorized to contract among themselves to obtain or
share services, or exercise, combine, or transfer any power or function in any manner not
prohibited by law (5 ILCS 220/3); and
WHEREAS, the Congress of the United States has enacted the Inflation Reduction
Act of 2022 and established the Climate Pollution Reduction Grants (CPRG) program to
address greenhouse gas (GHG) pollution contributing to climate change; and
WHEREAS, the CPRG program is designed to incentivize eligible applicants to
apply for funding together as a coalition to implement GHG reduction measures across
multiple municipalities; and
WHEREAS, more than two (2) million residents covered by the coalition will benefit
from the award by reducing GHG emissions, improving air pollution, and accelerating the
transition to a green economy; and
WHEREAS, the partner agencies committing to participate in the Coalition are:
Kane County, Illinois — Coalition lead applicant; DuPage County, Illinois — subrecipient;
Kendall County, Illinois — subrecipient; Lake County, Illinois- subrecipient; Will County,
Illinois — subrecipient; City of Aurora, Illinois — subrecipient; City of Batavia, Illinois —
subrecipient; City of Elgin, Illinois — subrecipient; City of Highland Park, Illinois-
subrecipient; City of Naperville, Illinois — subrecipient; City of Waukegan, Illinois-
subrecipient; Village of Downers Grove, Illinois — subrecipient; Village of Mokena, Illinois
— subrecipient; and Village of Wheeling, Illinois-subrecipient; and
WHEREAS, Kane County is the lead applicant for the Coalition and the "pass
through entity" for purposes of applying for, administering funds, and managing the
program associated with the CPRG grant; and
WHEREAS, Kane County accepts full responsibility for the performance of the
coalition and is be accountable to U.S. Environmental Protection Agency (EPA) for
effectively carrying out the full scope of work and the proper financial management of the
grant; and
WHEREAS, the lead applicant for the Coalition is required to submit a
Memorandum of Agreement (MOA), which provides documentation that the organizations
have consulted with each other and are committed to fulfilling their respective roles and
responsibilities to successfully implement the greenhouse gas (GHG) reduction
measures described in the application prior to receiving any awarded funds by the EPA;
and
WHEREAS, Kane County, as Coalition lead, will provide subawards to
subrecipients through forthcoming subaward agreements for projects listed in the
application as deemed eligible by the US EPA and the subrecipients will be accountable
to the Kane County for proper use of EPA funding, successful project implementation,
procurement of equipment and contractors consistent with EPA subaward policy and any
other state or federal regulations; and
WHEREAS, Kane County, as coalition lead and pass through entity, will
distribute CPRG grant funds to coalition subrecipients on a reimbursement basis for
eligible expenses; and
WHEREAS, Kane County and the Coalition Partner Agencies of this Agreement
find that is in the best interests of their respective local governments, that this undertaking
will benefit the public, and that the division of costs fairly compensates the performing
party for the services or functions under this Agreement; and,
WHEREAS, purchasing and accounting methods will be in accordance with the
subrecipients' governing jurisdiction's established policies and ordinances that govern the
requisition and purchase of equipment and supplies; and
NOW THEREFORE, in consideration of the foregoing and the covenants
contained herein, the parties do hereby agree and covenant as follows:
1. RECITALS
The recitals set forth above are incorporated in this Agreement by reference and
made a part of this Agreement.
For purposes of this Agreement, Kane County shall be referred to as "LEAD" and
all subrecipient or partner agencies shall collectively be referred to interchangeably as
"SUBRECIPIENTS" or "PARTNER AGENCIES."
2. ELIGIBLE EXPENSES
Subrecipient shall spend funds on allowable costs in compliance with approved
awards and any other guidance issued by the Environmental Protection Agency.
Subrecipient shall spend funds in accordance with Title 2 C.F.R. 200- Uniform
Administrative Requirements, guidance by the Environmental Protection Agency and
other applicable state and federal laws. Specific eligible expenses will be determined
upon EPA award and included in any subaward agreement.
3. REIMBURSEMENT REQUESTS
Subrecipient agrees to request funds on a reimbursement basis. Detailed
instructions on requests for reimbursement will be included in subaward agreement.
4. COMPLIANCE WITH GRANT MONITORING & REPORTING PROVISIONS
The Parties agree that this Agreement requires compliance with the regulations of
the State of Illinois and with all applicable state and local orders, laws, regulations and
certifications governing any activities undertaken during the performance of the
Agreement. This Agreement requires compliance with Title 2 C.F.R. 200 Uniform
Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards and guidance issued by the Environmental Protection Agency and all other
applicable federal laws.
Pursuant to 2 C.F.R. § 200.208, LEAD is responsible for ensuring that specific
Federal award conditions are consistent with the program design reflected in Section
200.202, including clear performance expectations of recipients as required in Section
200.301.
In furtherance of its responsibilities, LEAD may adjust specific Federal award
conditions as needed, in accordance with Section 200.208, based on an analysis of the
following factors:
(1) Based on the criteria set forth in § 200.206;
(2) The applicant or recipient's history of compliance with the general or specific terms
and conditions of a Federal award;
(3) The applicant or recipient's ability to meet expected performance goals as
described in § 200.211; or
(4) A responsibility determination of an applicant or recipient. •
Additional Federal award conditions may include items such as the following:
(1) Requiring payments as reimbursements rather than advance payments;
(2) Withholding authority to proceed to the next phase until receipt of evidence of
acceptable performance within a given performance period;
(3) Requiring additional, more detailed financial reports;
(4) Requiring additional project monitoring;
(5) Requiring the non—Federal entity to obtain technical or management assistance;
or
(6) Establishing additional prior approvals.
If LEAD imposes additional Requirements consistent with Section 200.208, it shall notify
the SUBRECIPIENT as to:
(1) The nature of the additional requirements;
(2) The reason why the additional requirements are being imposed;
(3) The nature of the action needed to remove the additional requirement, if
applicable;
(4) The time allowed for completing the actions if applicable; and
(5) The method for requesting reconsideration of the additional requirements
imposed.
Pursuant to Section 200.208, LEAD shall promptly remove any additional Requirements
once the conditions that prompted them have been satisfied.
Furthermore, LEAD has the right to conduct monitoring consistent with 2 CFR
200.332. The Parties shall comply with applicable requirements of the Climate Pollution
Reduction Grants ("CPRG") program, including, but not limited to the monitoring
responsibilities for LEAD and the reporting requirements for SUBRECIPIENTS, as it
relates to financial and grant use reporting. The Subrecipient shall participate in lawfully
required monitoring activities at the request of LEAD. The LEAD may request reasonable
ad-hoc reports and supporting documentation in addition to the reimbursement requests.
Failure to submit proper documentation verifying eligible expenses may result in
termination of funding and recoupment of awarded funds from the Subrecipient.
Under 2 CFR 200.332(d), LEAD monitoring of the SUBRECIPIENT would include:
A. Reviewing financial and performance reports required by the pass-through
entity.
B. Following up and ensuring subrecipient takes timely and appropriate action on
all deficiencies pertaining to the Federal award provided to the subrecipient
from pass through entity.
C. Issuing management decision for applicable audit findings and resolve audit
findings specifically related to subaward.
If a SUBRECIPIENT is noncompliant, LEAD would need to take enforcement action
against the non-complying municipality or county. SUBRECIPIENTS understand and
agree that LEAD may take one of the following actions, by the authority granted to LEAD
under 2 CFR 200.339, if compliance cannot be remedied by imposing additional
conditions. Those Actions may include one or more of the following:
1. Temporarily withhold cash payments pending correction.
2. Disallow all or part of the cost of the activity or action not in compliance.
3. Wholly or partly suspend or terminate the Federal award.
4. Initiate suspension or debarment proceedings- (pass through entities can
recommend the Federal government conduct such proceeding).
5. Withhold further Federal awards for the project or program.
6. Take other remedies that may be legally available.
5. COMPLIANCE WITH GRANT CERTIFICATIONS
The Parties shall comply with all applicable certifications and assurances required
by the CPRG program, which is attached hereto and fully incorporated herein as
ATTACHMENT B.
6. LIABILITY
The Parties shall each be individually responsible for their own actions and
omissions, and for those of their officers, agents and employees, in the performance of
this Agreement. Nothing in this Agreement shall be construed as a waiver of a Party's
respective immunities or defenses, whether statutory or common law, by reason of any
applicable indemnification and insurance provisions, or as an assumption of any duty for
the benefit of any third party.
7. INSURANCE REQUIREMENTS
The Subrecipients will carry sufficient insurance coverage to protect any grant funds
provided to the Subrecipients under the forthcoming subaward agreements. The
insurance coverage shall also be adequate to satisfy any indemnification provisions set
forth in the forthcoming subaward agreements.
8. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so executed and
delivered to LEAD, shall be an original, but all of which shall together constitute one and
the same instrument.
9. TERM & EFFECTIVE DATE
This Agreement shall become effective upon the date of acceptance by all of the
Parties hereto (hereinafter referred to as the "effective date"). The initial term of this
Agreement shall be for a period of three (3) years, commencing upon the Agreement's
effective date.
10.NO THIRD-PARTY BENEFICIARY
The Parties expressly agree that enforcement of the terms and conditions of this
Agreement, and all rights of action relating to such enforcement, shall be strictly reserved
to the Parties, and nothing contained in this Agreement shall give or allow any such claim
or right of action by any other or third person on such Agreements, including, but not
limited to, subcontractors, subconsultants, and suppliers. The Parties expressly intend
that any person other than the Parties who receives services or benefits under this
Agreement shall be deemed to be an incidental beneficiary only.
11.FINAL AGREEMENT OF PARTIES; INTEGRATION - AMENDMENTS
This writing constitutes the final expression of the Agreement of the Parties. It is
intended as a complete and exclusive statement of the terms of this Agreement, and it
supersedes all prior and concurrent promises, representations, negotiations, discussions
and Agreements that may have been made in connection with the subject matter hereof.
This Agreement may only be amended with the written consent of all Parties
hereto, and appropriately executed by all Parties to the Agreement.
12.NOTICES
All notices given or sent hereunder shall be sent by United States Mail, postage
prepaid, addressed to respective party at the address set forth on the signature page of
this Agreement, or to such other address as the parties may designate in writing from
time to time. A party updating their official notice address shall send said notice to all
current and future signatories to this Agreement. Said update is not considered a formal
"modification" to the terms of this Agreement.
13.LEGAL AUTHORITY
The Parties represent that all necessary acts have been taken to authorize and
approve this agreement in accordance with applicable law, and this Agreement, when
executed by the Parties hereto, shall constitute a binding obligation of the Parties, legally
and enforceable at law and equity against each.
14.GOVERNING LAW & VENUE
This Agreement shall be interpreted and governed by the laws of the State of
Illinois. The parties agree that the exclusive venue for resolving any legal proceedings
between them shall be the Sixteenth Judicial Circuit Court of Kane County, State of
Illinois, or the United States District Court for the Northern District of Illinois.
15.ASSIGNMENT
This Agreement may not be assigned without the prior written consent of the other
Parties, which will not be unreasonably withheld.
16.VALIDITY
If any provisions of this Agreement or the application thereof to any person or
situation shall, to any extent, be held invalid or unenforceable, the remainder of this
Agreement, and the application of such provisions to persons or situations other than
those to which it shall have been held invalid or unenforceable, shall not be affected
thereby, but shall continue valid and enforceable to the fullest extent permitted by law.
17.CONFIDENTIALITY
The parties shall maintain the confidentiality of records, data and other information
deemed confidential by another party, except as otherwise required by law. Nothing in
this paragraph is intended to impair a party's compliance with a request for information
made pursuant to the Illinois Freedom of Information Act (FOIA).
18.SEVERABILITY
If any provision of this Agreement is held to be invalid, that provision shall be
stricken from this Agreement, and the remaining provisions shall continue in full force and
effect to the fullest extent possible.
IN WITNESS WHEREOF, the undersigned duly authorized officers have
subscribed their names on behalf of the Parties.
KANE COUNTY, ILLINOIS
By: Date:
Corinne Pierog
Kane County Board Chair
Kane County Government Center
719 Batavia Avenue, Building A
Geneva, Illinois 60134
DUPAGE COUNTY, ILLINOIS
By: Date:
KENDALL COUNTY, ILLINOIS
By: Date:
LAKE COUNTY, ILLINOIS
By: Date:
WILL COUNTY, ILLINOIS
By: Date:
CITY OF AURORA, ILLINOIS
By: Date:
CITY OF BATAVIA, ILLINOIS
By: Date:
CITY OF ELGIN, ILLINOIS
•
By: Date: June 12, 2024
Richard G. Kozal, City Manager
CITY OF HIGHLAND PARK, ILLINOIS
By: Date:
CITY OF NAPERVILLE, ILLINOIS
By: Date:
CITY OF WAUKEGAN, ILLINOIS
By: Date:
VILLAGE OF DOWNERS GROVE, ILLINOIS
By: Date:
VILLAGE OF MOKENA, ILLINOIS
By: Date:
VILLAGE OF WHEELING, ILLINOIS
By: Date:
ATTACHMENT A
AWARD AND GRANTEE-SPECIFIC INFORMATION AND CERTIFICATION
Section I.
[Title and Description of Subaward including whether the Subaward is for Research
and Development]
Section II. Federal Requirements.
A. Federal Award Identification.
1 . Subrecipient: City of Elgin .
2. Official Contact Information (Name, Title, Address, Phone, Email):
3. FEIN Number; SAM Registration; Nature of Entity:
Under penalties of perjury, Subrecipient certifies that is
Subrecipient's correct SAM registration number; that is
Subrecipient's correct FEIN number; and that Subrecipient is doing business as
a Governmental Unit in the State of Illinois.
4. Amount of Agreement: The amount of initial CPRG Funds dispensed to the
Subrecipient are: . Subrecipient agrees to
accept LEAD's payment as specified in the Exhibits and attachments
incorporated herein as part of this Agreement.
5. Identification Numbers: If applicable, the Federal Award Identification Number
(FAIN) is: , the federal awarding agency is: United States
Environmental Protection Agency, and the Federal Award date is .
Note: The FAIN corresponds with the "Assistance ID No."on the EPA Notice of
Award.
6. Assistance Listing Number and Name for each EPA award used to support
the subaward:
7. Indirect cost rate for the pass-through entity's Federal award:
B. All "flow down' requirements imposed on the subrecipient by the pass-through
entity to ensure that the EPA award is used in accordance with Federal statutes,
regulations and the terms of the EPA award. The subrecipient is accountable to the
pass-through entity for compliance with Federal requirements. In turn, the pass-
through entity is responsible to EPA for ensuring that subrecipients comply with
Federal requirements.
These requirements include, among others:
1.Title VI of the Civil Rights Act and other Federal statutes and regulations
prohibiting discrimination in Federal financial assistance programs, as applicable.
2. Reporting Subawards and Executive Compensation under Federal Funding
Accountability and Transparency Act (FFATA) set forth in General Condition of the
pass-through entity's agreement with EPA entitled "Reporting Subawards and
Executive Compensation."
3. Limitations on individual consultant fees as set forth in General Condition 2
CFR 1500.10 and the General Condition of the pass-through entity's agreement
with EPA entitled "Consultant Fee Cap."
4. EPA's prohibition on paying management fees as set forth in General Condition
of the pass-through entity's agreement with EPA entitled "Management Fees."
5.The Procurement Standards in 2 CFR Part 200 including those requiring
competition when the subrecipient acquires goods and services from
contractors (including consultants) and Domestic preferences for
procurements at 2 CFR 200.322.
6. For states and other public recipients, a provision ensuring that subawards
are not conditioned in a manner that would disadvantage applicants for
subawards based on their religious character.
Other statutes, regulations and Executive Orders that may apply to subawards are
described at Information on Requirements that Pass-Throuqh Entities must "How
Down" to Subrecipients. Many Federal requirements are agreement or program
specific and EPA encourages pass-through entities to review the terms of their
assistance agreement carefully and consult with their EPA Project Officer for advice,
if necessary.
ATTACHMENT B
CERTIFICATIONS AND ACKNOWLEDGEMENTS OF CPRG SUBRECIPIENTS
All of the Certifications and Assurances listed below are Federal requirements that
may apply to SUBRECIPIENTS of EPA funded projects per 2 CFR 200.332(a)(2). This
form serves as a notification and acknowledgment of these requirements prior to further
pursing this funding option. Please sign the attestation at the end of the following
certifications and assurances, certifying acknowledgment of each of the requirements of
the grant program. This shall be completed and submitted with grant application
submittals.
Name of SUBRECIPIENT: City of Elgin
1. Non-Discrimination Laws
Title VI of the Civil Rights Act of 1964; Section 13 of the Federal Water Pollution Control
Act Amendments of 1972; Section 504 of the Rehabilitation Act of 1973; and the Age
Discrimination Act of 1975 prohibit discrimination in the provision of services or benefits,
on the basis of race, color, national origin, sex, disability or age, in programs or activities
receiving federal financial assistance.
Pursuant to EPA's regulations on "Nondiscrimination in Programs receiving Federal
Assistance from the Environmental Protection Agency," in 40 CFR Part 5 and 40 CFR
Part 7, the pass-through entity must agree, and require all subrecipients to agree, not to
discriminate on the basis of race, color, national origin, sex, disability or age. The fact that
the regulations do not address discrimination on the basis of age does not exempt
recipients from compliance with the later-enacted Age Discrimination Act.
a. Executive Order 11246
Part III of Executive Order No. 11246 (September 24, 1965) as amended prohibits
discrimination in Federally assisted construction activities. As provided in section 301 of
the Executive Order, Pass-through entities must ensure that subrecipients include the
seven clauses specified in section 202 of the Order in all construction contracts. Section
302 defines "Construction contract" as "any contract for the construction, rehabilitation,
alteration, conversion, extension, or repair of buildings, highways, or other improvements
to real property." Contracts less than $10,000 are exempt from the requirements of the
Order.
b. Executive Order 13798
Executive Order 13798 established a policy of promoting free speech and religious liberty.
It reinforces the requirement that religious organizations be allowed to participate in
Federal financial assistance programs on an equal footing with other organizations
without being required to alter their religious character. States or other public grantees
may not condition subawards in a manner that would disadvantage grant applicants
based on their religious character.
c. Disadvantaged Business Enterprises
EPA regulations at 40 CFR Part 33, '`Participation by Disadvantaged Business
Enterprises in U.S. Environmental Protection Agency Programs" set forth requirements
for making good faith efforts to ensure that Disadvantaged Business Enterprises,
including Minority Business Enterprises and Women's Business Enterprises receive a fair
share of contracts awarded with funds provided by EPA financial assistance agreements.
These requirements apply to subrecipients in accordance with 40 CFR 33.102 and the
definition of"Recipient" in 40 CFR 33.103.
d. Consultation with State and Local Officials
The Demonstration Cities and Metropolitan Development Act and the Intergovernmental
Cooperation Act instructed federal agencies to consult with local officials to ensure
smoother coordination of their assistance programs and to ensure that projects funded
under federal programs are consistent with local planning requirements. Similarly,
Executive Order 12372 as amended(1983) established procedures for intergovernmental
review of federal financial assistance projects. EPA has implemented these requirements
in 40 CFR Part 29.
EPA financial assistance programs subject to intergovernmental review may be
found at: https://www.epa.gov/grants/epa-financial-assistance-programs-
subject-executive-order- 12372-and-section-204-demonstration. Executive
Order 12372 exempts tribal programs from intergovernmental review.
If intergovernmental review is required, and neither EPA nor the pass-through entity
complied with 40 CFR Part 29 prior to award because the location of subaward projects
had not been determined, the pass-through entity must comply with intergovernmental
review requirements after award. Intergovernmental review requirements vary among the
states. As provided at 40 CFR 29.9(d), if a state does not have a single point of contact
for intergovernmental review, the recipient must offer directly affected State, area-wide,
regional and local officials an opportunity to comment on the subrecipient's proposed
project.
e. Clean Air Act and Clean Water Act
Section 306 of the Clean Air Act (CAA) and section 508 of the Clean Water Act (CWA),
as implemented by Executive Order 11738 (1973), prohibit performance of Federal
assistance agreements at facilities disqualified due to certain violations of the CAA or
CWA. Disqualified facilities are listed in the System for Award Management. Pass-through
entities must ensure that subrecipients are not disqualified and that they are aware of the
requirement to check SAM, to determine if facilities that will be used to perform contracts
or subawards are listed in SAM.
2. Financial Management Policies
These policies apply to transactions financed by EPA financial assistance funds and apply
to both pass-through entities and subrecipients on the basis of either regulatory
requirement or the General Terms and Conditions (T&C) of the pass-through entity's
agreement with EPA. Pass-through entities should consult with their EPA Project Officer
for advice if they have questions regarding how these policies apply to a particular
subaward.
a. Federal Funding Accountability and Transparency Act
As set forth in the General Condition of the pass-through entity's agreement with EPA
entitled "Reporting Subawards and Executive Compensation" the pass-through entity
must ensure that subrecipients comply with Federal Funding Accountability and
Transparency Act (FFATA) reporting requirements. Pass-through entities may use the
terms of their subaward agreement or other effective means to meet their responsibilities.
b. Suspension and Debarment
The pass-through entities responsibilities are described at 2 CFR Part 180, Subpart C
and the "Debarment and Suspension" T&C of the pass-through entity's agreement with
EPA. These requirements, which include checking SAM to ensure that potential
contractors, subrecipients and their principals and agents are not suspended, debarred
or otherwise ineligible to participate in Federal assistance programs also apply to
subrecipients. It is important to note that in addition to being precluded from all first tier
contracts and all contracts requiring EPA approval in accordance with 2 CFR 180.220,
under 2 CFR 1532.220, suspended or debarred parties may not receive EPA funded
contracts in excess of $25,000 at any tier. Also, at 2 CFR 1532.995 EPA has identified
activities that suspended or debarred parties may not perform as a "Principal" in EPA
financial assistance agreements and subawards.
c. Limits on Fees Charged by Individual Consultants
EPA's Fiscal Year 2009 Appropriation Act (Pub. L. 111-8) restricts the amount of EPA
financial assistance that recipients may use to compensate individual consultants. EPA
implements this requirement at 2 CFR 1500.10(a) and the "Consultant Cap" T&C. Pass-
through entities must ensure that subrecipients comply with the limitation on
compensation for individual consultants through the terms of their subaward agreements
or another effective means. Additional information regarding when the consultant fee limit
applies is available in the Best Practice Guide for Procuring Services, Supplies, and
Equipment Under EPA Assistance Agreements and the Interim General Budget
Development Guidance for Applicants and Recipients of EPA Financial Assistance.
d. Management Fees
EPA policy prohibits recipients and subrecipients from charging management fees or
making similar arrangements to receive EPA financial assistance in excess of direct or
Federally approved indirect cost rates. This prohibition is implemented by the
Management Fees T&C. Pass-through entities must ensure that subrecipients comply
with this requirement through the terms of their subaward agreements or another effective
means.
e. New Restrictions on Lobbying, 40 CFR Part 34
All recipients of EPA funds, including subrecipients, are subject to the requirements in 40
CFR Part 34. For example, pass-through entities must ensure that subawards in excess
of$100,000 require that subrecipients submit certification and disclosure forms required
by 40 CFR 34.110 and the "Lobbying and Litigation" Terms and Conditions.
f. Uniform Grant Guidance Requirements (UGG)
Subrecipients must comply with 2 CFR Part 200 requirements, including but not limited
to when they award procurement contracts, make subawards, and incur other costs borne
by EPA financial assistance. Pass-through entities must ensure that subrecipients comply
with this requirement through the terms of their subaward agreements or another effective
means.
g. Build America, Buy America Act
Pass-through entities must ensure subrecipients comply with the Buy America sourcing
requirements under the Build America, Buy America (BABA) provisions of the
Infrastructure Investment and Jobs Act (IIJA) (P.L. 117-58, §§70911-70917). The BABA
requirements apply to expenditures for projects for which funds have been obligated on
or after May 14, 2022 under a Federal financial assistance program for infrastructure,
unless the expenditures are subject to an EPA-approved waiver. The BABA provisions
require that all of the iron, steel, manufactured products, and construction materials used
in these projects be produced in the United States. The BABA sourcing requirements
apply to an entire infrastructure project, even if it is funded by both Federal and non-
federal funds under one or more awards.
Pass-through entities and subrecipients must implement these requirements in their
procurements, and these requirements must be included in the terms of all subawards
and contracts at any tier. For descriptions of general applicability waivers, legal definitions
and sourcing requirements, pass-through entities and subrecipients must consult EPA's
BABA website.
When supported by a rationale provided in Section 70914 of the IIJA, pass-through
entities and/or sub-recipients, as appropriate, may submit a project-specific waiver to
EPA. Guidance on the submission instructions of an EPA waiver request will be available
on the EPA BABA website. A list of approved EPA waivers is available on the EPA BABA
website.
3. Environmental Authorities
These requirements typically apply when an EPA funded project involves construction,
remediation of contamination in water, soil, or buildings, and similar activities which alter
the physical environment. Other environmental laws may apply to a project independent
of EPA funding. Financial assistance for research, training, technical assistance and
related outreach, environmental education, program operations, or installation of pollution
control equipment on vehicles or vessels, are generally not affected by these
requirements. Note that this list of environmental authorities is for informational purposes
only and is not intended to provide guidance on compliance in the context of a particular
EPA assistance agreement. If it appears that one or more of these requirements may
apply, pass-through entities should consult with their EPA Project Officer for advice.
a. National Environmental Policy Act
Where applicable, the National Environmental Policy Act (NEPA) requires federal
agencies to conduct an environmental review of their proposed actions, with a view
toward ensuring informed decision-making and public input. EPA's NEPA regulations are
at 40 CFR Part 6, and note that certain EPA actions are exempt from NEPA. Pass-
through entities and subrecipients may be required to assist EPA with NEPA compliance,
where appropriate.
b. Executive Order No. 12898 (1994)
This Executive Order (E.O.) directs federal agencies to "make achieving environmental
justice part of its mission." Each covered agency is required to identify and address, as
appropriate, any "disproportionately high and adverse human health or environmental
effects of its programs, policies, and activities on minority populations and low-income
populations." One vehicle for EPA's efforts to address environmental justice concerns is
a NEPA analysis. Considering environmental justice generally involves identifying
potential adverse effects on minority populations and low-income populations, as well as
encouraging early public participation and the development of alternative or mitigating
options as appropriate. The terms and conditions of the EPA award may require pass-
through entities and subrecipients to assist EPA in ensuring the requirements of the
Executive Order are met.
c. National Historic Preservation Act
Section 106 of the NHPA requires federal agencies to take into account the effects of
their undertakings on historic properties and to provide the Advisory Council on Historic
Preservation (ACHP) a reasonable opportunity to comment on such undertakings. Under
the ACHP's regulations, consultations generally occur in the first instance with state
and/or tribal historic preservation officials, with direct ACHP involvement in certain cases.
EPA funded projects with the potential to affect historic properties — i.e., properties listed
in or eligible for listing in the National Register of Historic Places — may implicate this
statute. This may include, for instance, EPA-funded projects that involve alteration of
structures (e.g., asbestos abatement) that are historic properties or
construction/remediation on culturally sensitive lands.
Pass-through entities should work with their Project Officer to ensure that subrecipients
are available to work with EPA on any required consultation process with the State or
Tribal Historic Preservation Office prior to commencing the project to ensure compliance
with section 106 of the NHPA.
d. Archeological and Historic Preservation Act
This law applies if archeologically significant artifacts or similar items are discovered after
an EPA funded construction project has begun, and compliance may be coordinated with
the NHPA, discussed above. The AHPA requires federal agencies to identify relics,
specimens, and other forms of scientific, prehistorical, historical, or archaeologic data that
may be lost during the construction of federally sponsored projects to ensure that these
resources are not inadvertently transferred, sold, demolished or substantially altered, or
allowed to deteriorate significantly. Pass-through entities must ensure that subrecipients
performing construction projects are aware of this requirement and pass-through entities
must notify EPA if the AHPA is triggered.
e. Protection of Wetlands, Executive Order 11990 (1973), as amended
EPA funded projects involving new construction in wetlands may implicate this Executive
Order. The terms and conditions of the EPA assistance agreement may require pass-
through entities to ensure that subrecipients assist EPA in determining whether a
proposed project will be located in (or affect) a wetland, and if so, evaluating practicable
alternative locations for the project or other mitigation.
f. Flood Plain Management, Executive Order 11988 (1977), as
amended, and Executive Order 13690 (2015)
EPA funded projects that are in or will affect a flood plain are covered by these Executive
Orders and Water Resources Council guidance. EPA assistance agreement terms and
conditions may require pass-through entities to ensure that subrecipients work with EPA
to evaluate practicable alternatives or other mitigation to reduce flood risks and protect
flood plains.
g. Farmland Protection Policy Act
This statute requires EPA to use criteria developed by the Natural Resources
Conservation Service (NRCS) to identify the potential adverse effects of Federal
programs on farmland and its conversion to nonagricultural uses, to mitigate these
effects, and to ensure that programs are carried out in a manner that is compatible with
the farmland preservation policies of state and local governments, and private
organizations. Pass-through entities and their subrecipients may need to work with EPA
or NRCS, as appropriate, to ensure compliance.
h. Coastal Zone Management Act
This statute requires EPA to ensure that Agency funded activities in coastal areas are
consistent with state coastal zone management plans that have been approved by the
Department of Commerce. Pass-through entities and subrecipients should consult directly
with the state Coastal Zone Management agency during the planning stages to ensure
that the EPA funded project will be consistent with the state's coastal zone management
plan.
i. Coastal Barriers Resources Act
This statute restricts federal financial assistance that would encourage development in
the Coastal Barriers Resources System, a collection of undeveloped and ecologically
sensitive barrier formations along the Atlantic and Gulf Coasts of the United States, and
the shore areas of the Great Lakes, and adjacent wetlands, marshes, estuaries, inlets,
and near-shore waters. During the planning phase of a proposed project located in the
Coastal Barriers Resources System, pass-through entities and subrecipients should
consult with the state Coastal Zone Management agency to determine whether a
proposed project will have an effect on the system, and if so, the alternative sites or
mitigating measures that must be incorporated in the project's design.
j. Wild and Scenic Rivers Act
This statute prohibits federal assistance for water resource projects that would have direct
and adverse effects on, invade, or unreasonably diminish, the special values of a
congressionally designated wild and scenic river. Pass-through entities and subrecipients
should consult with appropriate state or federal (National Park Service or Bureau of Land
Management) agency to determine whether the project or any alternatives under
consideration may affect a designated river.
k. Endangered Species Act (ESA)
This statute requires Federal agencies to ensure that their activities are not likely to
jeopardize endangered species, adversely modify designated critical habitats, or
incidentally take (injure or kill) endangered animals without authorization, in
consultation with the appropriate federal wildlife agency (the U.S. Fish and Wildlife
Service or National Marine Fisheries Service) as described in 50 CFR Part 402. The
ESA consultation process is triggered when an action "may affect" ESA-protected
species or critical habitat.
Pass-through entities and subrecipients should coordinate with EPA to ensure
consultation occurs where appropriate."
I. Magnuson-Stevens Fisheries Conservation and Management Act
Magnuson-Stevens Fisheries Conservation and Management Act as amended by The
Sustainable Fisheries Act of 1996 is intended to manage and conserve Essential Fish
Habitats(EFH). The National Marine Fisheries Service(NMFS)administers the Act. Pass-
through entities and subrecipients must coordinate with NMFS to determine whether a
proposed project may adversely affect an EFH. If an action may adversely affect an EFH,
the subrecipient must complete an EFH consultation with NMFS.
m. Clean Air Conformity Act
This statute prohibits any Federal assistance for an activity within a non- attainment or
maintenance area that fails to conform to an applicable State Implementation Plan. Pass-
through entities and subrecipients should first consult with their state air program's
website to determine if an EPA funded activity is in a non-attainment or maintenance
area. If the EPA funded activity is within a non-attainment or maintenance area the pass-
through entity and subrecipient should consult with the state air program to determine
conformity. Note that EPA regulations at 40 CFR 93.153(c) exempt a number of activities
including planning, studies, technical assistance and remediation under the
Comprehensive Environmental Response, Liability and Compensation Act (CERCLA).
n. Safe Drinking Water Act
Precludes the use of EPA financial assistance for projects that would contaminate sole
source aquifers. Pass-through entities and subrecipients must contact state officials to
determine whether a sole source aquifer is in the vicinity of the proposed project. If a sole
source aquifer is in the project planning area, then the assistance recipient, in consultation
with state ground water officials, must conduct investigations to determine if the aquifer
could be contaminated by the project. If the project could potentially affect ground water
supplies, the assistance recipient, in consultation with ground water officials, must elect
an alternative site or devise adequate mitigating measures.
4. National Defense.
a. Never Contract with the Enemy (P.L. 113-91)
This statute applies only to grants and cooperative agreements that are expected to
exceed $50,000 and that are performed outside the United States, including U.S.
territories, and that are in support of a contingency operation in which members of the
Armed Forces are actively engaged in hostilities. The "Never Contract with the Enemy"
restrictions are implemented in 2 CFR Part 180. Recipients must ensure that none of the
funds, including supplies and services, received under Federal grants or cooperative
agreements are provided directly or indirectly (including through subawards or contracts)
to a person or entity who is actively opposing the United States or coalition forces involved
in a contingency operation in which members of the Armed Forces are actively engaged
in hostilities.
b. Prohibition using Federal funds for certain telecommunications and video
surveillance services or equipment (Section 889 of P.L. 115-232).
This statute prohibits using Federal funds to procure equipment, systems, or services,
including equipment, systems, or services produced or provided by entities identified as
subject to the section 889. These entities are recorded in the System for Award
Management exclusion list. Section 889 is implemented in 2 CFR 200.216 and the
general terms and conditions of EPA assistance agreements. EPA recipients,
subrecipients, and borrowers under EPA funded revolving loan fund programs are
prohibited from obligating or expending loan or grant funds to procure or obtain; extend
or renew a contract to procure or obtain; or enter into a contract (or extend or renew a
contract) to procure or obtain equipment, services, or systems that uses covered
telecommunications equipment or services produced by entities subject to section 889
as a substantial or essential component of any system, or as critical technology as part
of any system.
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SUBGRANTEE'S VERIFICATION BY CERTIFICATION
Under penalties of perjury as provided by law pursuant to Section 1-109 of the
Illinois Code of Civil Procedure (735 ILCS 5/1-1109), the undersigned certifies that he or
she is authorized to act on behalf of the subrecipient hereinafter listed and that they have
read and understands the Federal requirements that may apply to SUBRECIPIENTS of
EPA funded projects, per 2 CFR 200.332(a)(2), which have been listed in the attached
document entitled, "ATTACHMENT B: CERTIFICATIONS AND
ACKNOWLEDGEMENTS OF CPRG SUBRECIPIENTS."
City of Elgin
SUBRECIP NT MUNICIPALITY
6 L
Signature of Authorized Representative
Richard G. Kozal
Printed Name
City Manager
Title
June 12, 2024
Date