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HomeMy WebLinkAbout2013 Ordinance No. 020• • • ORDINANCE No.2£2 SERIES OF 2013 BY AUTHORITY COUNCIL BILL NO. 16 INTRODUCED BY COUNCIL MEMBER WOODWARD AN ORDINANCE AUTHORIZING AN INTERGOVERNMENTAL AGREEMENT ENTITLED "COLORADO BROWNFIELDS REVOLVING LOAN FUND MEMORANDUM OF AGREEMENT AMENDMENT 4" PERTAINING TO THE COLORADO BROWNFIELDS REVOLVING LOAN FUND BETWEEN THE CITY OF ENGLEWOOD, THE CITY AND COUNTY OF DENVER, COMMERCE CITY, THE CITY OF LAKEWOOD, THE CITY OF LOVELAND, THE CITY OF WESTMINSTER AND EL PASO COUNTY COLORADO AS WELL AS THE COLORADO HOUSING AND FINANCE AUTHORITY AND THE COLORADO DEPARTMENT OF PUBLIC HEAL TH AND ENVIRONMENT. WHEREAS, the Colorado Brownfields Revolving Loan Fund was established to facilitate the reuse and/or redevelopment of contaminated sites by making low cost funding available for financing environmental cleanups through grants from the Environmental Protection Agency; and WHEREAS, Englewood is represented in a coalition of Front Range communities, which was established to finance environmental cleanups along the Colorado Front Range within the seven local governments as well as the State overall; and WHEREAS, this coalition is comprised of participants from City of Englewood, Commerce City, Lakewood, Loveland, Westminster, El Paso County, the Colorado Housing and Finance Authority, the Colorado Department of Health and Environment and the City and County of Denver; and WHEREAS, the Colorado Brownfields Revolving Loan Fund presents an opportunity for the Englewood business community by providing financing for environmental cleanup activities; and WHEREAS, the City Council of the City of Englewood authorized the City to enter into an IGA which established the Colorado Brownfields Revolving Loan Fund with the passage of Ordinance Number 31, Series of 2000; and WHEREAS, the passage of this ordinance authorizes an amendment to describe the organization and the responsibilities of the Colorado Brownfields Revolving Loan Fund Board, and describes meeting and voting requirements and also describes the various cooperative agreements that have capitalized the Colorado Brownfields Revolving Loan Fund. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: 9 bi Section 1. The "Colorado Brownfields Revolving Loan Fund Memorandum of Agreement • Amendment 4" attached hereto as "Exhibit A," is hereby accepted and approved by the Englewood City Council. Section 2. The Mayor is authorized to execute and the City Clerk to attest and seal the "Colorado Brownfields Revolving Loan Fund Memorandum of Agreement Amendment 4" for and on behalf of the City of Englewood, Colorado. Section 3. The coalition uses Federal Brownfields Revolving Loan Funds. Introduced, read in full, and passed on first reading on the 17th day of June, 2013 . Published by Title as a Bill for an Ordinance in the City's official newspaper on the 21 st day of June, 2013. Published as a Bill for an Ordinance on the City's official website beginning on the 19th day of June, 2013 for thirty (30) days. Read by title and passed on final reading on the 1st day of July, 2013. Published by title in the City's official newspaper as Ordinance No~tJ, Series of 2013, on the 5th day of July, 2013. Published by title on the City's official website beginning on the 3rd day of July, 2013 for thirty (30) days. ~~:Jr: Ra~.Penn,Mayor ==-- I, Loucrishia A. Ellis, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by title as Ordinance No. 2J2 Series of 2013. • • • • . Purpose COLORADO BROWNFIELDS REVOLVING LOAN FUND MEMORANDUM OF AGREEMENT Amendment 4 (MOA) ·•· Introduction The purpose of the Colorado Brownfields Revolving Loan Fund (CBRLF and/or Fund) as represented by its Board of Directors (Board or Board of Directors), is to facilitate the reuse · and /or redevelopment of contaminated sites by making low-cost funding available for financing environmental cleanups. The funding for this endeavor is through grants from the Environmental Protection Agency (EPA). Brownfields are defined as abandoned , idled, or under-utilized industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination. A major barrier to redeveloping brownfields sites in Colorado is that contaminated sites face not only the environmental challenge of cleanup, but also marginal economic potential. In the Colorado real estate market, properties are being avoided because of liability and cleanup cost concerns. The city and county of Denver, Commerce City , Englewood, Lakewood, Loveland, Westminster, El Paso County, the Colorado Housing and Finance Authority (CHF A), and the Colorado Department of Public Health and Environment (CDPHE) have agreed to cooperate and to create the Colorado Brownfields Revolving Loan Fund. The focus of this fund is to finance environmental cleanups along the Colorado Front Range within the seven local governments as well as the State overall. Each of the local governments was eligible for, applied for and was awarded by EPA, brownfields cleanup revolving loan funds. In order to consolidate the administrative requirements and to pool the available revolving loan funds, CDPHE prepared a coordinated application to EPA for funding the CBRLF~· CDPHE has also been awarded brownfields cleanup revolving loan funds, making CBRLF available statewide. The CBRLF coalition was first awarded brownfields revolving loan funds in 2002. That grant expired in 2010 and the associated cooperative agreement has been closed. Under the terms of that agreement, CBRLF was allowed to retain all repayments of principal, interest, and loan earnings as "program income ." Since the original award in 2002, CDPHE, on behalf of the coalition, has applied for and received several additional awards of brownfields revolving loan funds from EPA. It is the intent of the Board to use program income, existing grant funds, and future awards and program income to continue operating CBRLF . In general , CHF A and the other participants will be responsible for outreach and marketing the CBRLF. CHF A will provide financial expertise for reviewing loan applications to the Fund. CDPHE will provide the technical knowledge needed to ensure successful environmental cleanups , and local governments review applications for consistency with CBRLF requirements and assist the Chair in conducting business of the CBRLF. • This arrangement is shown in a graph as Exhibit 1. E X H I B I T A CBRLF is envisioned to be a source of capital for cleanup of both publicly and/or privately held • property. Due to statutory limitations, CHF A will serve as the fiscal agent for CDPHE, operating and servicing loan and sub-grant agreements. Repayment of loan funds , including any interest and principal, will be to CBRLF through CHF A. Duration This document becomes effective upon signature by the nine (9) entities at the end of the document. It will automatically terminate on June 30, 2017 . It can be extended in 5-year periods by mutual agreement of the signing parties, and its effectiveness on a signing party can be terminated at any time, for any reason, with a 30-day written notice provided to the Board by such signing party. Each of the participating local governments agrees to appoint a person to the Board of Directors through June 30, 2017 . In April 2017 the Board shall review this MOA and make changes as necessary, and the participating entities can reaffirm their desire to participate. This agreement may be amended, as needed, by a unanimous decision of the Board of Directors. Board of Directors Organization CBRLF will be administered through a Board of Directors as its organizational entity, with members chosen from each of the participating cities and counties, CHF A, and CDPHE. The Board will meet to discuss issues and make decisions regarding the use of the Fund . This MOA prescribes operating guidelines for the Board of Directors. Roles and Responsibilities The Board of Directors may provide assistance with financial and environmental issues impacting the sale, use, reuse, and /or redevelopment of both publicly and privately held property throughout Colorado . The municipal/county Board members are responsible for: (1) attending scheduled board meetings, (2) ensuring that projects funded under this program are consistent with the goals and objectives of CBRLF , (3) providing loan fund policy direction to CHF A and CDPHE, and (4) providing assistance with development of applications for additional Brownfields Revolving Loan Fund grants. The Board of Directors has the ultimate responsibility for approving or denying applications for funding to CBRLF. CDPHE, acting as the "Lead Agency" under EPA grants BL98811601, RP98899701 , BF98899601, and 2B97863101 , must assure that the Board actions are in accordance with the terms of the respective cooperative agreements ( each a "Cooperative Agreement" and, collectively, the "Cooperative Agreements"). The Board must not spend funds except for their intended use as defined in the Cooperative Agreements and the EPA Browrifields Cleanup Revolving Loan Fund Administrative Manual (OSWER, EPA 500-B-98 .001, May 1998) located via Internet at www.epa.gov/Brownfields. Brownfields Board Members Members. The Board of Directors shall be comprised of one member each from: City and County of Denver, Commerce City, Englewood, Lakewood, Loveland, Westminster, El Paso County, CHF A and CDPHE. Each member must be authorized, in writing, to participate on the 2 • • • • • Board and must be delegated the authority, by his/her organization, to make decision necessary to conduct the business of the CBRLF, including but not limited to decisions regarding the use of funds available to the CBRLF. Chair. The Board shall select a Chair who shall preside over all Board meetings. The Chair shall, in consultation with other members of the Board, prepare agendas and facilitate Board meetings. The . Chair may designate a member of the Board to assume the duties of Chair in their absence. The Chair will also distribute quarterly budget updates to all members. Additional Duties. Board members shall perform such other duties and functions as may be required from time to time by the Board. Vacancies. Should the office of Chair become vacant, the Board shall select a successor at the next regular meeting or at a special meeting called for this purpose. Conflict of Interest. No member of the Board may vote on projects in which that Board member has a direct personal financial interest in any contract or Brownfields Project, existing or proposed, that may be brought before the Board. For purposes of this section, "financial interest" shall mean a substantial interest held by a member, or member's immediate family, such as : • an ownership interest in a business ; • employment or prospective employment for which negotiations have begun; • an ownership interest in real or personal property; • a loan or other debt or interest in business or real property; or • a position as director or officer of a business . To the degree a member of the Board has a preexisting actual or appearance of a conflict of interest, he or she shall immediately disclose the same, in writing, to the Board, and such disclosure shall be entered into the Minutes of the Board. Changes in Membership. Membership in this program is expected to change over time. Current members may choose to leave after achieving their community's brownfields goals. Other entities may seek to join the coalition in order to benefit from the economy of scale offered by the existing CBRLF infrastructure . The following sections outline how membership changes will be accommodated. 1. Exiting Members: Members seeking to leave CBRLF must submit their resignation request, in writing, to the Chair and must give a 30-day written notice . 2. New Members: New members will be allowed to join CBRLF after submitting their request, in writing, to the Chair and receiving the approval of the Board of Directors. New members will be required to sign and abide by this MOA. Federal funds added to the CBRLF will be managed in accordance with the Cooperative Agreement, this MOA, and the CBRLF Administrative Manual. Any non-federal funds and /or program income added to CBRLF will be accounted for and managed separately. (Note: potential new members are strongly encouraged to discuss CBLRF membership with existing Board members prior to submitting their CBRLF grant proposal to EPA.) 3. Membership Eligibility: In order to be considered for CBRLF membership, potential members must have contributed to CBLRF either: a) an EPA RLF grant, or b) a public/private source of funding equivalent to a CBLRF grant (minimum of $50,000.00). 3 Meetings Frequency. The Chair of the Board may, when the Chair deems necessary, call a meeting of the Board for the purpose of transacting business the Chair designates for such meeting . Such meeting shall also be called by the Chair upon the request of two members of the Board for the purpose of transacting business these members designate in the call for such meeting. No meeting shall be held unless all Board members are given written notice a minimum of seven (7) days in advance . Order of Business. At meetings of the Board, the order of business shall follow a written agenda provided to the members by the Chair. Quorum. For the nine-member Board, a quorum shall consist of five members, at least three of whom are local government members. If the number of members changes, the quorum will be redefined by the Board. A Board member must be present either in person or by telephone to be counted in the quorum. In the event of a Board member absence, that Board member may send a substitute to participate and vote. Additionally, voting by written proxy will be allowed. Decision Making. There are numerous kinds of decisions that members of the Board of Directors may be asked to make. As a guiding principle, it is the intent of the Board to make decisions affecting more than one member, by member consensus whenever possible . In the event that consensus cannot be reached, a simple majority vote will decide the issue . Manner of Voting. Voting by the Board may be by acclamation, by ballot or by e-mail ballot, as the Chair may designate . Record of Decision . The outcome and reasoning behind Board decisions resulting in the approval or denial of any project funding or other expenditure shall be recorded in writing and maintained in adherence with Cooperative Agreement record keeping guidelines . Minutes of any other Board meeting or action are not required; such documentation may be recorded at the discretion of the Chair. Meeting Location. The meeting location will be at the Colorado Housing and Finance Authority's facility at 1981 Blake Street, Denver, Colorado, 80202. Term of Office. Board members will serve indefinite terms at the pleasure of their respective management. Public Meetings . The Board may, from time to time, hold public meetings. Colorado Department of Public Health and Environment The Colorado Department of Public Health and Environment agrees to perform the following duties with respect to this MOA: 1. CDPHE is the Cooperative Agreement Recipient, Lead Agency, and Site Manager. 2. CDPHE has entered into the Cooperative Agreements with the Environmental Protection Agency (EPA). • • 3. CDPHE will process cleanup applications in accordance with Colorado's Voluntary • Cleanup and Redevelopment Act. Fees for the Colorado Voluntary Cleanup Program 4 • • • (VCP) application review and approval are to be paid by the applicant in accordance with the requirements of that program . 4. CDPHE is responsible for assuring that all cleanups are conducted in a manner that is not inconsistent with CERCLA and the National Contingency Plan (NCP) for non-time critical removals. 5. CDPHE will review the Analysis of Cleanup Alternatives and write the Action Memorandum as required by the Brownfields Cleanup Revolving Loan Fund Administrative Manual. 6. CDPHE will identify a Brownfields Site Manager for each site receiving a loan from CHFA and conducting a cleanup under the VCP. The Site Manager will be an environmental professional employed by the State. The Site Manager is responsible for overseeing cleanups at specific sites including field visits. Colorado Housing and Finance Authority CHF A is under contract with the State of Colorado to act as its fiscal agent for managing and servicing the loan agreements. As the fiscal agent to the State , CHF A : 1. Will be responsible for advertising and marketing the revolving loan fund under th~ supervision of the participating local government entities and the Board of Directors, 2. Will conduct the financial portion of the loan reviews and provide loan underwriting and servicing as required by this program, 3. Will be responsible for providing the participating local government entities and the Board of Directors with an assessment of the financial strength of each project, prior to final approval of the project by the Board of Directors, 4. Will provide closing documents and disburse loan and sub-grant funds , as appropriate, to successful applicants, 5. Will be responsible for managing the funds in the trust accounts , and revenues it subsequently receives as loan repayments , in accordance with the Cooperative Agreement, applicable laws and regulations , prudent lending practices , and the policies , instructions and directions of the Board of Directors. 6. Will keep all records for each loan made for a period of not less than ten (10) years, 7. Will prepare and provide the financial portion of the EPA-required quarterly reports to CDPHE at least one week prior to the reporting due date. Member Cities and Counties Member cities and counties agree to participate for a full 5-year period from the date of signature on this MOA. In the past, both loan and administrative funds have been available for use by member cities and counties. Currently, only loan/sub-grant funds are available to members , pursuant to a successful application approved by the Board. Member cities and counties agree to use all funds received or direct the use of funds in accordance with the terms and conditions contained in the Cooperative Agreement from the U.S . Environmental Protection Agency. 5 Description of Funds CBRLF is made up of several loan pools derived from various Cooperative Agreements received from EPA. Each of these pools has different federal requirements, which mandate that they be managed separately . A general description of each pool is as follows: 1. EPA Cooperative Agreement BL98811601 is the original Cooperative Agreement that established CBRLF. This Cooperative Agreement has expired and CDPHE and EPA have completed administrative close-out of this agreement. Under the terms of the Cooperative Agreement, CBRLF has retained all funds from repayment of principal, interest, and loan earnings and these funds are considered program income. It is the intent of the Board to use these funds, along with future program income, to continue operating a brownfields revolving loan fund. Program income funds will be managed in general accordance with the requirements of the original Cooperative Agreement. 2. EPA Cooperative Agreement RP98899701 was awarded through CERCLA Section 128(a) State and Tribal Response Program . These funds require a 20% matching payment. The borrower must show that they performed all appropriate inquiry before acquiring the property and that they are not liable for the cleanup under CERCLA Section 107. Sub-grants are allowed for up to 40% of the funds awarded under this Cooperative Agreement. Sub-grants will be considered on a site-by-site basis. • 3 . EPA Cooperative Agreement BF98899601 was awarded under CERCLA Section 104(k)(3). These funds require a 20% matching payment. The funds under this award • have been segregated into two separate loan pools: funds in the petroleum loan pool can only be used at sites that have petroleum contamination, while a separate pool has been established for sites contaminated with hazardous substances. The borrower must show that they performed all appropriate inquiry before acquiring the property and that they are not liable for the cleanup under CERCLA Section 107. Sub-grants are allowed for up to 40% of the funds awarded under this Cooperative Agreement. Sub-grants will be considered on a site-by-site basis. 4. EPA Cooperative Agreement 2B97863101 was awarded under the American Recovery and Redevelopment Act, and are intended to provide sub-grants to local governments and non-profits. Sub-grantees must demonstrate that they have performed all appropriate inquiry before acquiring the property and that they are not liable for the cleanup under CERCLA Section 107. 6 • • • • Signatures Colorado Brownfields Revolving Loan Fund Memorandum of Agreement, Amendment 4 City and County of Denver Paul Washington, Executive Director Office of Economic Development City of Englewood Randy Penn, Mayor City of Loveland William Cahill, City Manager City of Westminster J. Brent McFall, City Manager Colorado Department of Public Health and Environment Dr. Chris Urbina, Executive Director Commerce City Brian McBroom, City Manager Colorado Housing and Finance Authority Cris A. White, Executive Director and CEO El Paso County Dennis Hisey, Chair Board of County Commissioners, El Paso County Attest: -------------- Deputy Clerk, El Paso County 7 ATTEST : By: Margy Greer, City Clerk APPROVED AND RECOMMENDED : By : ____________ _ Jay Hutchison, Director of Public Works By: Larry Dorr Director of Finance 8 CITY OF LAKEWOOD By : __________ _ Kathleen E. Hodgson, City Manager APPROVED AS TO FORM : By : __________ _ City Attorney • • • • • CO Dept of Public Health & Environment Voluntary Clean-up Program Receives Application Colorado Brownfields Revolving Loan Fund Board of Directors Conduct initial loan application screening CO Dept of Public Health & Environment Voluntary Clean-up Program Review & Approval Colorado Housing and Finance Authority Financial Review Local Governments Reviews Project Project Consistent with City Development Plan Declined with --+1 Letter of Rejection $$$$ Decl ined with Letter of Rejection Colorado Brownfields Revolving Loan Fund Board of Directors CO Dept Health & En Final loan approval Approved Colorado Housing and Finance Authority Issue Loan >--~ Redevelopment 9 Repay Loan • • • COUNCIL COMMUNICATION DATE: AGENDA ITEM: SUBJECT: June 17, 2013 Colorado Brownfields Revolving Loan 9 a i Fund Memorandum of Agreement Amendment 4 INITIATED BY: STAFF SOURCE: City Manager's Office Darren Hollingsworth, Economic Development Manager COUNCIL GOAL AND PREVIOUS COUNCIL ACTION: Council discussed the Colorado Brownfields Revolving Loan Fund Memorandum of Agreement Amendment 4 at the May 20, 2013 study session. Council approved Ordinance 31, series 2000 for the Intergovernmental agreement entitled, "Colorado Brownfields Revolving Loan Fund Memorandum of Agreement." This agreement established the Colorado Brownfields Revolving Loan Fund . Amendments were approved in 2002, 2004, and 2009 . RECOMMENDED ACTION: Staff recommends that Council approve the Bill for Ordinance allowing the City of Engle w ood to execute the proposed Colorado Brownfields Revolving Loan Fund Memorandum of Agreement Amendment 4. This amendment contains housekeeping measures and allows Englewood to remain a part of the coalition of member cities involved in the administration and oversight for the Colorado Brownfi elds Revolving Loan Fund. BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED: The City of Englewood is a party to the Colorado Brownfields Revolving Loan Fund (CBRLF) coalition, which was founded in 2001 . The CBRLF was created through a partnership among the cities of Englewood, Lakewood, Loveland , Denver, Commerce City, the Colorado Housing and Finance Authority (CHFA), and the Colorado Department of Public Health and Environment (CDPHE). The initial focus of the fund was to finance environmental cleanups along the Col o rado Front Range within the five member cities. Later, after infusions of additional funding from EPA , El Paso County b ecame a partnering member of the fund, and the focus of the fund was expanded to include financin g en v ironmental cleanup on a stat e-w ide basis. Responsibilities of the CBRLF partn e rs have re main ed consistent since the fund was established. CDPHE is responsible for managing the Cooperative Agreements that make up the fund, and CHFA serves as the fund 's fiscal agent, responsible for administering loans and sub-grants . CDPHE, CHFA, and other CBRLF members are responsible for outreach and marketing the CBRLF. The Board meets on an as needed basis to conduct necessary business and to consider loan and sub-grant applications. Board members have no fiscal responsibility to the fund, other than the time and effort of delegated board members. The CBRLF is capitalized through a number of Federal Brownfields grants provided by EPA Region VIII. The fund accomplishes its mission of facilitating environmental clean -up and infill redevelopment through the issuance of low cost loans and awards sub-grants to eligible local governments and non-profits. It is the intent of the CBRLF Board to use loan repayments and other program income to develop a true revolving loan fund to provide new loans and other assistance for authorized purposes. If properly managed, such funds can operate in perpetuity. The purpose of this amendment is to describe the organization and the responsibilities of the CBRLF Board . The document describes meeting and voting requirements and also describes the various cooperative agreements that have capitalized the CBRLF . In 2001 Englewood benefited from its membership in the coalition when the City borrowed funds from the Colorado Brownfields Revolving Loan Fund to finance the environmental cleanup of a former municipal landfill and transform the site into Centennial Park. FINANCIAL IMPACT: Englewood has no financial commitment to partIcIpate in the coalition. The only non-monetary commitment is very minimal staff time involved with the periodic meetings to review loan applications. LIST OF ATTACHMENTS: Bill for Ordinance • • •