DEPARTMENT
Water Enterprise
AGENDA NO.
6k
MEETING DATE
June 25, 2024
AGENDA ITEM
Public Utilities Commission
City and County of San Francisco
Calendar: Consent Calendar
Project Manager: Taylor Nokhoudian
Approval of Novation Agreement Assigning Onsite Water Reuse Grant to Successor Grantee
Summary of
Proposed
Commission Action:
Approve novation agreement assigning the Onsite Water Reuse Grant from NRG Energy Center San Francisco to Energy Center San Francisco.
Background: The San Francisco Public Utilities Commission’s ( SFPUC) Onsite Water Reuse Grant Program provides grant funding to encourage retail water users to reduce SFPUC water supply usage by collecting, treating, and using alternate water sources including rainwater, stormwater, graywater, foundation drainage, air conditioning condensate, and blackwater for non- potable uses such as toilet flushing, irrigation, and cooling tower makeup. The Commission initially approved the Program in June 2012, by Resolution No. 12-0103, and delegated authority to execute grant agreements to the General Manager.
On March 10, 2016, the SFPUC entered into a grant agreement with NRG Energy Center San Francisco (NRG) to provide a total of $500,000 for the purpose of partially funding the purchase and installation of an onsite non- potable w
ater system that will reduce potable water use on the Grantee’s property at 460 Jessie Street in San Francisco. The grant agreement was subsequently amended on April 26, 2017, to modify the grant funding disbursement procedures as follows:
• SFPUC shall di sburse an initial installment of Grant Funds of $200,000, equivalent to 40% of the total grant, to the Grantee to cover project design and project start-up expenses.
• SFPUC shall disburse a second installment of Grant Funds of $250,000, equivalent to 50% of the total grant upon (a) substantial completion of the system and (b) receipt of supporting documentation demonstrating substantial completion.
• SFPUC shall withhold retention of $50,000, equivalent to 10% of the total grant. Before releasing this amount, Grantee shall work with the SFPUC to review the project progress and demonstrate that the project is on track for final completion, in terms of budget and schedule.
Retention shall be released only after (a) the SFPUC is satisfied with Agenda Title: Approval of Modification of Onsite Water Reuse Grant Program for San Francisco Retail Water Customers Commission Meeting Date: June 25, 2024
the project progres s, (b) the Grantee clearly demonstrates that the project will be completed on time and on budget, or otherwise agreed to by the SFPUC, and (c) the Project achieves the water savings estimated in the grant application.
The SFPUC has already issued the first two installments of grant funds to NRG and has determined the grantee is eligible to receive the retention payment of $50,000. NRG completed their project and has achieved the required water savings. However, NRG recently changed its Taxpayer Identification Number (TIN), along with its name. The City’s accounting system treats a new TIN as a new entity, thus necessitating a novation of the grant agreement to accommodate the change in TIN.
Description of
Action:
Staff recommends approval of the novation assigning the Grant Agreement from NRG Energy Center San Francisco to Energy Center San Francisco. The novation agreement reflects the fact that the grantee, NRG, recently changed its name to Energy Center San Fran
cisco and received a new TIN. Even
though it is purportedly the same legal entity, the City’s payment and contracting procedures require a novation to recognize the new TIN and process payment of the final grant installment.
Schedule: The novation agreement would become effective on the date the General Manager signs and executes the agreement.
Environmental
Review:
Approval of the novation agreement does not constitute a “project” under the California Environmental Quality Act Guidelines section 15378(b)(4) because the Onsite Water Reuse Grant Program creates a government funding mechanism which does not involve commitment to any specific project which may result in any physical change in the environment.
Attachment: 1. Novation agreement
PUBLIC UTILITIES COMMISSION
City and County of San Francisco
RESOLUTION NO.
WHEREAS, The San Francisco Public Utilities Commission ( SFPUC) encourages onsite water reuse in new and existing developments to help meet the goal of developing an additional 10 million gallons per day of local water resources; and WHEREAS, On June 12, 2012, by Resolution No. 12- 0103, the Commission approved a grant program for retail water customers to make the best use o f non-potable supplies for onsite water reuse in buildings, referred to herein as the Non-potable Grant Program; and WHEREAS, On March 10, 2016, t he SFPUC entered into a grant agreement with NRG Energy Center San Francisco (NRG) to provide a total of $500,000 for the purpose of partially funding the purchase and installation of an onsite non- potable water system that will reduce potable water use on the Grantee’s property at 460 Jessie Street in San Francisco; and WHEREAS, On April 26, 2017, the grant agreement was amended to modify the grant funding disbursement procedures; and
WHEREAS, NRG has advised the SFPUC that it recently changed its name to Energy Center San Francisco and received a new Taxpayer Identification Number (TIN) and remains the same legal entity as NRG, but the City and County of San Francisco’s payment and contracting procedures still require a novation agreement to recognize the new TIN and process payment of the final grant installment; and
WHEREAS, Approval of the novation agreement does not constitute a “project” under the California Environmental Quality Act Guidelines section 15378(b)(4) because the Onsite Water Reuse Grant Program creates a government funding mechanism which does not involve commitment to any specific project which may result in any physical change in the environment ; now, therefore, be it
RESOLVED, That this Commission hereby approves the novation agreement, assigning the SFPUC’s Onsite Water Reuse Grant from NRG Energy Center San Francisco to Energy Center San Francisco.
I hereby certify that the foregoing resolution was adopted by the Public Utilities Commission at its meeting of June 25, 2024
Acting Commission Secretary, Public Utilities Commission
Energy Center San Francisco LLC May 7, 2024
P-665 (1-22) Page 1 of 6 AWT-11
City and County of San Francisco
Office of Contract Administration
Purchasing Division
City Hall, Room 430
1 Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4685
NOVATION AGREEMENT
THIS NOVATION AGREEMENT (“Novation”) is made as of May 7, 2024, in San Francisco, California, by and between NRG Energy Center San Francisco LLC, a limited liability company duly organized and existing under the laws of Delaware with its principal office in San Francisco, CA, (“Transferor” or “NRG”), Energy Center San Francisco LLC, a limited liability company duly organized and existing under the laws of Delaware with its principal office in San Francisco, CA, (“Transferee” or “Energy Center”), and City and County of San Francisco, a municipal corporation (“City”).
Recitals
WHEREAS, Transferor is a party to the Agreement (as defined below); and WHEREAS, NRG has changed its name to Energy Center San Francisco LLC (City supplier ID # 0000040777), and received a new Taxpayer Identification Number (TIN) since the date of the Agreement, and, as such and for other reasons, Energy Center San Francisco LLC desires to confirm, by way of this Novation, its obligation to perform the Agreement in full on the terms and conditions set forth herein; and
WHEREAS, an upstream owner of NRG (Transferor) sold an upstream indirect owner of Energy Center San Francisco LLC to an affiliate of Global Infrastructure Partners on September 1, 2018; and
WHEREAS, this affiliate of Global Infrastructure Partners sold this upstream indirect owner of Energy Center San Francisco LLC, such upstream indirect owner now known as Cordia LLC, to an entity owned by investment funds managed by or affiliated with Kohlberg Kravis Roberts & Co. L.P., on May 1, 2022; and
WHEREAS, the City, by and through the San Francisco Public Utility Commission (SFPUC), entered into the Agreement with NRG to provide a grant for the purpose of partially funding the purchase and installation of an onsite non-potable water system in an effort to reduce potable water use on the Transferor’s property (“Property”); and WHEREAS, as a result of the above-described corporate sales and name changes, NRG continued to be the direct owner of the Property and its improvements, including the onsite non- potable water systems, as stated above ; and
WHEREAS, Transferor and Transferee represent that they are the same legal entity, and that its only corporate change is the change in name and TIN described above, but the City requires a Energy Center San Francisco LLC May 7, 2024
P-665 (1-22) Page 2 of 6 AWT-11
documented “transfer” of the Agreement to recognize the new name and TIN with Transferee shown as the succesor to Transferor as a party to the Agreement; and WHEREAS, Transferor and Transferee warrant that Transferee is able to fully perform all obligations that may exist under the Agreement; and
WHEREAS, Transferor and Transferee warrant and represent that, as a result of the name change described herein, Energy Center is the current direct owner of the Property, and the direct holder of the retail water-account with SFPUC; and
WHEREAS, It is consistent with the City’s interest to recognize the Transferee as the grantee party to the Agreement; and
WHEREAS, the City consents to the transfer of the Agreement described herein, based on the representations and warranties stated herein and under the terms below; NOW, THEREFORE, in consideration of the promises and the mutual covenants contained in this Novation, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Transferor and Transferee agree as follows:
Article 1 Definitions
The following definitions apply to this Novation:
1.1 “Agreement”
“Agreement” means the agreement dated March 10, 2016 between Transferor and City and County of San Francisco, a municipal corporation, as amended by the first amendment dated April 26, 2017. The Agreement refers to the Grant Agreement (Contract Number AWT-11) made between Transferor and City for the purpose of partially funding the purchase and installation of an onsite non-potable water system that will reduce potable water use on the Transferor’s property. The Agreement and any amendments or modifications are attached to this Novation as Appendix A.
1.2 “Effective Date” means the date first referenced above.
1.3 Other terms used and not defined in this Novation shall have the meanings assigned to such terms in the Agreement.
Article 2 Transfer of Agreement
2.1 Transfer. Transferor and Transferee hereby warrant and represent that Tranferee is entitled to all of Transferor’s rights, title and interest in and to the Agreement and is obligated to perform all of Transferor’s duties and obligations thereunder.
2.2 Acceptance. Transferee hereby agrees to perform all of Transferor’s duties and obligations under the Agreement.
2.3 Rights to Enforce. Subject to the terms of the Agreement, this Novation shall be binding upon, and inure to the benefit of, the parties hereto and their successors and transferees.
Nothing in this Novation, whether express or implied, shall be construed to give any person or Energy Center San Francisco LLC May 7, 2024
P-665 (1-22) Page 3 of 6 AWT-11
entity (other than City and the parties hereto and their respective successors and transferees) any legal or equitable right, remedy or claim under or in respect of this Novation or any covenants, conditions or provisions contained herein.
2.4 Consent of City. The City consents to the right of Transferee to receive the remaining grant under the Agreement based on the evidence provided below, which indicates that Transferee is in a position to fully perform all obligations that may and will exist under the Agreement. The evidence below is attached to this Novation as Appendix B. Further, Transferor and Transferee acknowledge that the prior written consent of City to this Novation is required under the terms of the Agreement. City shall have the right to enforce this Novation. (a) A signed and authenticated document or excerpts of a document showing Transferor’s name change from “NRG Energy Center San Francisco LLC” to “Energy Center San Francisco LLC”;
(b) An authenticated copy of the Transferor’s/Tranfereree’s certificate and articles of incorporation; and
(c) A signed statement from Energy Center’s counsel explaining that that nature of the corporate change is limited to the above-described change in name and TIN, and that Transferor and Transferee continue to be the same corporate entity.
2.5 Successor. The City recognizes the Transferee as the Transferor’s successor in interest as the grantee party in and to the Agreement. The Transferee is liable for all responsibilities and entitled to all rights, titles, and interests of the Transferor in and to the Agreement. The City will treat the Transferee as if the Transferee were the original party to the Agreement. Following the entry into this Novation, the term “Grantee,” as used in the Agreement, shall refer to “Energy Center San Francisco LLC”. The Agreement shall remain in full force and effect, except as modified by this Novation. Each party has executed this Novation as of the day and year first above written.
2.6 Further Assurances. From and after the date of this Novation, Transferee agrees to do such things, perform such acts, and make, execute, acknowledge and deliver such documents as may be reasonably necessary or proper and usual to confirm its right to receive the remaining grant under the Agreement as may be required by City.
Article 3 Obligations and Liabilities
3.1 Transfer, Waiver, and Assumption. The Transferor waives any claims and rights against the City that it now has or may have in the future in connection with the Agreement. The Energy Center agrees to be bound by and to perform the Agreement in accordance with the conditions contained therein. Energy Center is subject to all obligations and liabilities of, and all claims against, the Transferor under the Agreement as if it were the original named party to the Agreement. Energy Center ratifies all previous actions taken by the Transferor with respect to the Agreement, with the same force and effect as if the action has been taken by the Energy Center. Except as expressly provided in this Novation, nothing in it shall be construed as a waiver of any rights of the City against the Transferor.
3.2 Past Payments. All payments and reimbursements previously made by City to the Transferor, and all other previous actions taken by City under the Agreement, shall be Energy Center San Francisco LLC May 7, 2024
P-665 (1-22) Page 4 of 6 AWT-11
considered to have discharged those parts of City’s obligations thereunder. All payments and reimbursements made by City after the date of this Novation in the name of or to the Transferor shall have the same force and effect as if made to the Transferee, and shall constitute a complete discharge of City’s obligations under the Agreement, to the extent of the amounts paid or reimbursed. The Transferor and the Transferee agree and confirm that City is not obligated to pay or reimburse either of them for, or otherwise give effect to, any costs, taxes, or other expenses, or any related increases, directly or indirectly arising out of or resulting from the transfer of this Novation, other than those that City in the absence of this transfer would have been obligated to pay or reimburse under the terms of the Agreement.
Article 4 Insurance and Indemnification
4.1 Insurance Certificates. For this Novation to be effective, Transferee shall provide to City insurance certificates and endorsements for the identical type and amount of coverage currently required under the Agreement.
4.2 City. Transferor and Transferee shall, to the fullest extent permitted by law, indemnify, defend and protect City, and hold City harmless from and against any and all liabilities, losses, damages, claims, costs or expenses (including attorneys’ fees) arising out of Transferor and/or Transferee’s failure to comply with any term or obligation of this Novation or the Agreement. Defense obligations under this Section 4.2 shall be provided immediately following a tender of defense.
Article 5 General Provisions
5.1 Governing Law. This Novation shall be governed by the laws of the State of California, without regard to its conflict of laws principles.
5.2 Headings. All section headings and captions contained in this Novation are for reference only and shall not be considered in construing this Novation.
5.3 Notices. All notices, consents, directions, approvals, instructions, requests and other communications regarding this Novation or the Agreement shall be in writing, shall be addressed to the person and address set forth below and shall be (i) deposited in the U.S. mail, first class, certified with return receipt requested and with appropriate postage, (ii) hand delivered or (iii) sent via email with a return receipt. All communications sent in accordance with this Section shall become effective on the date of receipt. From time to time Transferee or City may designate a new address for purposes of this Section by notice to the other signatories to this Novation.
If to Transferee:
Energy Center San Francisco
LLC, Mike Eurkus, 14 Mint Plaza, Ste. 200 San Francisco, Ca 94103, [email protected]
If to City:
Energy Center San Francisco LLC May 7, 2024
P-665 (1-22) Page 5 of 6 AWT-11
Onsite Water Reuse Grant Program Administrator, San Francisco Public Utilities Commission, 525 Golden Gate Avenue, 10th Floor, San Francisco, California, 94102, [email protected]
5.4 Entire Agreement. This Novation sets forth the entire agreement relating to the transfer of the Agreement and supersedes all other oral or written provisions.
5.5 Severability. Should the application of any word, phrase, clause, sentence, paragraph and/or provision of this Novation to any particular facts or circumstances be found by a court of competent jurisdiction to be invalid or unenforceable, then (i) the validity of other words, phrases, clauses, sentences, paragraphs and/or provisions of this Novation shall not be affected or impaired thereby and (ii) such words, phrases, clauses, sentences, paragraphs and/or provisions shall be enforced to the maximum extent possible so as to effect the intent of Transferor, Transferee and City.
Energy Center San Francisco LLC May 7, 2024
P-665 (1-22) Page 6 of 6 AWT-11
IN WITNESS WHEREOF, Transferor and Transferee have each duly executed this Novation as of the date first referenced above.
TRANSFEREE
ENERGY CENTER SAN FRANCISCO
LLC
CITY SUPPLIER NUMBER
0000053341
By
___________________________________
Title
_______________________________
TRANSFEROR
NRG ENERGY CENTER SAN
FRANCISCO LLC
CITY SUPPLIER NUMBER
0000040777
By
_______________________________
Title
_______________________________
City hereby consents to the transfer described in Article 2 of this Novation.
Recommended by:
____________________________________
Dennis J. Herrrera
General Manager
San Francisco Public Utilities Commission
Approved as to Form:
David Chiu
City Attorney
By _________________________________
Tyson Arbuthnot
Deputy City Attorney
Energy Center San Francisco LLC May 7, 2024
P-665 (1-22) Page 7 of 6 AWT-11
Attached:
Appendix A: Agreement
Appendix B: Documentation
Energy Center San Francisco LLC May 7, 2024
P-665 (1-22); Appendix A Page 1 of 1 AWT-11
APPENDIX A - Agreement
The Agreement dated March 10, 2016 between Grantee and City, as amended by the:
First amendment, dated April 26, 2017
is attached on the following pages.
GRANT
AGREEMENT
Between
THE CITY AND COUNTY OF SAN FRANCISCO,
PUBLIC UTILITIES COMMISSION
And
NRG ENERGY CENTER SAN FRANCISCO, LLC.
THIS Agreement is made this Tenth day of March, 2016, by and between NRG Energy Center San Francisco, LLC, (Grantee) and the City and County of San Francisco, acting by and through the Public Utilities Commission (SFPUC).
WITNESSETH:
WHEREAS, Grantee has submitted to the SFPUC Application Documents seeking a Grant Assistance for Large Alternate Water Source Projects for the purpose of partially-funding the purchase and installation of on-site non-potable water systems that will reduce potable water use on the Grantee's property; and
WHEREAS, the SFPUC desires to provide such a grant on the terms and conditions set forth herein:
NOW, THEREFORE, the SFPUC and Grantee agree as follows:
ARTICLE 1
DEFINITIONS
1.1. Specific Terms. Unless the context otherwise requires, the following capitalized terms (whether singular or plural) shall have the meanings set forth below:
(a) "General Manager" shall mean the General Manager of the San Francisco Public Utilities Commission, or his or her delegate. (b) "Application Documents" shall mean collectively: (i) the grant application submitted by Grantee, including all exhibits, schedules, appendices and attachments thereto; (ii) all documents, correspondence and other written materials submitted in respect of such grant application; and (iii) all amendments, modifications or supplements to any of the foregoing approved in writing by the SFPUC.
(c) "Budget" shall mean either the budget included in the Application Documents, to the extent expressly approved by the SFPUC, consisting of Grant Funds contributed by the SFPUC and Grantee's contribution of funding, if any.
(d) "City" shall mean the City and County of San Francisco, F -1
(e) "Controller" shall mean the Controller of the SFPUC and City and County of San Francisco.
(f) "Eligible Items for Funding" shall have the meaning set forth in the Grant Assistance for Large Alternate Water Source Projects, Grant Guidelines and Terms.
(g) "Event of Default" shall mean the failure of the Grantee to perform any portion of the Grant Assistance for Large Alternate Water Source Projects, Grant Guidelines and Terms.
(h) "Fiscal Quarter" shall mean each period of three (3) calendar months commencing on July 1, October 1, January 1 and April 1, respectively. (i) "Fiscal Year" shall mean each period of twelve (12) calendar months commencing on July 1 and ending on June 30 during all or any portion of which this Agreement is in effect.
(j) "Grantee" shall mean the Property Owner receiving Grant Funds for San Francisco Property; and meeting requirements listed in the Grant Assistance for Large Alternate Water Source Projects, Grant Guidelines and Terms.
(k) "Grant Funds" shall mean any and all funds allocated or disbursed to Grantee by the SFPUC under this Agreement.
(1) "Project" shall mean installation of on-site non-potable water system or other activities described in the approved Grant Application documents. (m) "Publication" shall mean any report, article, educational material, handbook, brochure, pamphlet, press release, public service announcement, web page, audio or visual material or other communication for public dissemination, which relates to all or any portion of the Grant Plan or is paid for in whole or in part using Grant Funds. (n) "Request for Partial Reimbursement" shall have the meaning set forth in Section 5.3.
ARTICLE 2
APPROPRIATION AND CERTIFICATION OF GRANT FUNDS;
LIMITATIONS ON THE SFPUC'S OBLIGATIONS
2.1. Risk of Non-Appropriation of Grant Funds. This Agreement is subject to the budget and fiscal provisions of the Charter. Grantee acknowledges that the SFPUC budget decisions are subject to the discretion of its Mayor and Board of Supervisors. Grantee assumes all risk of possible non-appropriation or non-certification of funds, and such assumption is part of the consideration for this Agreement.
2.2. Certification of Controller; Guaranteed Maximum Costs. No funds shall be available under this Agreement until prior written authorization certified by the Controller. In F-2
addition, as set forth in Section 21.10-1 of the San Francisco Administrative Code: City's obligations hereunder shall not at any time exceed the amount certified by the Controller for the purpose and period stated in such certification.
2.3. Project Approvals; Grantee understands that any development of the work shall require approvals, authorizations and permits from governmental agencies with jurisdiction over the Project which may include, without limitation, the San Francisco City Planning Commission and Department of Building Inspection. Grantee also understands that no disbursement of funds will be made except for feasibility or planning tasks prior to completion of any environmental review necessary for the Project. Notwithstanding anything to the contrary in the Agreement, no party is in any way limiting its discretion of any department, board, or commission with jurisdiction over the Project, including but not limited to a party hereto, from thereto, including but not limited to the discretion to (i) make such modifications deemed necessary to mitigate significant environmental impacts, (ii) select other feasible alternatives to avoid such impacts, including the "No Project" alternative, (iii) balance the benefits against unavoidable significant impacts prior to taking final action if such significant impacts cannot otherwise be avoided, or (iv) determine not to proceed with the proposed Project.
ARTICLE 3
TERM
3.1. Effective Date. This Agreement shall become effective when the Controller has certified to the availability of funds as set forth in Section 2.2.
3.2. Termination. This agreement shall terminate after Grantee has submitted 10 annual status reports (1 per year) to SFPUC, documenting that the Project consistently meets the Grant's eligibility requirements for 10 years, unless terminated earlier in accordance with the provisions herein.
ARTICLE 4
IMPLEMENTATION OF APPROVED ON-SITE NON-POTABLE WATER SYSTEM PROJECT
4.1 Implementation of Approved On-site Non-potable Water System (Project); Cooperation with Monitoring. Grantee shall, in good faith and with diligence, implement the Project on the terms and conditions set forth in this Agreement. Grantee shall not materially change the nature or scope of the Project during the term of this Agreement without the prior written consent of the SFPUC. Grantee shall promptly comply with all standards, specifications and formats of the SFPUC related to evaluation, planning and monitoring of the Project and shall cooperate in good faith with the SFPUC in any evaluation, planning or monitoring activities conducted or authorized by the SFPUC.
4.1. Grantee is an Independent Contractor. The Grantee is solely responsible for the work to design and install the Project, including selection of any designer(s), manufacturer(s), contractors), or installer(s). The Grantee understands that s/he, and any third parties involved with the work, are independent contractors and are not authorized to make any F-3
representations on behalf of the City and County of San Francisco (CCSF). Should the City, in its discretion, or a relevant taxing authority such as the Internal Revenue Service or the State Employment Division, or any court, arbitrator or administrative authority determine that Grantee is an employee for purposes of collection of any employment taxes, or for any other purpose, the amounts payable under this Agreement shall be reduced by any amounts paid by the City as a result of such determination, including if applicable, both the employee and employer portions of any tax due.
4.2. Compliance with Other Laws and Applicable Safety and Performance Standards. The Grantee shall keep itself fully informed of City's Charter, codes, ordinances and regulations and all state, and federal laws, rules and regulations affecting the performance of this Agreement and shall at all times comply with such Charter, codes, ordinances, and regulations, rules and laws. In addition, the work on the Project must meet all applicable safety and performance standards established by local, state, and federal laws.
4.3. Operation and Maintenance of On-site Non-potable Water Systems. The Grantee, by virtue of accepting Grant Funds, agrees to operate and maintain the Project as outlined in the San Francisco Department of Public Health Director's Rules and Regulations Regarding the Operation of Alternate Water Source Systems and by the manufacturer and for their intended purpose.
4.4 Agreement runs with the Land; Transfer of Property. The covenants and agreements of the Grantee and the City contained in this agreement shall be covenants running with the land pursuant to California Civil Code Section 1460 et seq., shall bind every person having any interest in the Property and the Project, and shall be binding upon and inure to the benefit and burden of the Grantee and the City and their respective heirs, successors and assigns.
Any reference to the Grantee in this Agreement shall include successor owners of all or any part of the Property, and all rights and obligations of the Grantee shall accrue to and be imposed upon any and all successor owners of the Property.
Without limiting the foregoing, the Grantee further agrees whenever the Property is sold, conveyed or otherwise transferred to a person or entity (each, a "Transferee"), it shall notify the Transferee of this Agreement, and provide to the Transferee, not later than ten (10) business days before the date of transfer, a copy of this Agreement and any other material correspondence between the City and the Grantee with respect thereto. This requirement shall be waived in the event this agreement is recorded in the Official Records of the City.
In the event the Grantee wishes to release any portion of the Property from the terms of this Agreement, in connection with a subdivision or otherwise, then Grantee shall notify the SFPUC of the proposed release and related transaction, including such terms as are necessary to ensure that the Grantee's obligations under this Agreement will be satisfied with respect to the entire Property. Any such release will be subject to the review and written approval of the SFPUC General Manager, or his or her designee, and shall be recorded against the portion of the Property that is released.
4.5 Publications and Work Product.
Grantee understands and agrees that the SFPUC has the right to review, approve, disapprove or conditionally approve, in its sole discretion, the work funded in whole or part with the Grant Funds pursuant to grant requirements and the provisions of this agreement. Grantee has the burden of demonstrating to the SFPUC that each element of work funded in whole or part with F-4
the Grant Funds is directly and integrally related to the Project as approved by the SFPUC. The SFPUC shall have the reasonable discretion to determine whether Grantee has met this burden.
The SFPUC has the right to monitor from time to time the administration by Grantee or any of its contractors of any work to ensure that Grantee is performing such elements of the Project, or causing such element of the Project to be performed, consistent with the terms and conditions of this Agreement.
ARTICLE 5
USE AND DISBURSEMENT OF GRANT FUNDS
5.1. Maximum Amount of Grant Funds. In no event shall the amount of the Grant Funds disbursed hereunder exceed $500,000. A Grant awarded under this Agreement is intended to partially defray the costs of undertaking the Project, in the amount awarded in the Grant. The Grant is not intended to reimburse the Grantee for the total cost of the Project, and the Grantee shall be responsible for providing any other necessary funds to complete the Project.
5.2. Use of Grant Funds. Grantee shall use the Grant Funds only for Eligible Expenses as set forth in the Grant Requirements and Terms and for no other purpose. Grantee shall expend the Grant Funds in accordance with the Budget set forth in the Grant Application and shall obtain the prior approval of SFPUC before transferring expenditures from one line item to another within the Budget.
5.3. Request for Partial Reimbursement. Based on the Budget submitted to the SFPUC as outlined in the Grant Application, the Grantee shall submit a Request for Partial Reimbursement for Eligible Expenses up to the amount of Grant Funds specified in the Funding Approval Letter. The Disbursement schedule is as follows:
• SFPUC shall disburse 40% of the total grant upon approval of a Non-potable Engineering Report for the Project. Approval letter from SFDPH required. • SFPUC shall disburse 50% of the total grant upon (a) completion of construction of the system and (b) receipt of a construction certification letter in accordance with Non- potable Water Ordinance.
• SFPUC shall disburse the remaining 10% of the total grant after the Final Permit to Operate has been issued by SFDPH and the project achieves the water savings estimated in the grant application and complies with ordinance requirements.
The Grantee shall provide supporting documentation as outlined in the Grant Assistance for Large Alternate Water Source Projects Grant Guidelines and Terms.
5.4. Reimbursement Requests. All payment requests submitted to the SFPUC shall be accompanied by all necessary supporting documentation, in accordance with the Grant Guidelines and Terms. Any reimbursement request that is submitted and not approved shall be returned by the SFPUC to Grantee with a brief reasonably detailed statement of the reason for the SFPUC's rejection of such reimbursement request. If any such rejection relates only to a portion of Eligible Expenses itemized in such reimbursement request, the SFPUC shall have no obligation to disburse any Grant Funds for any other Eligible Expenses itemized in such F-5
reimbursement request unless and until Grantee submits a reimbursement request that is in all respects acceptable to the SFPUC. The Grantee shall maintain records of charges incurred and reconcile those charges with SFPUC funds received. Any overpayment of SFPUC Grant Funds must be reimbursed to the SFPUC within thirty (30) days of the expiration of the term of this Agreement.
5.5. Submitting False Claims; Monetary Penalties. Any Grantee who submits a fal se claim shall be liable to City for three times the amount of damages which City sustains because of the false claim. A Grantee who submits a false claim shall also be liable to City for the costs, including attorney's fees, of a civil action brought to recover any of those penalties or damages, and may be liable to City for a civil penalty of up to ten thousand dollars ($10,000) for each false claim. A Grantee will be deemed to have submitted a false claim to City if the Grantee (a) knowingly presents or causes to be presented to an officer or employee of City a false claim or request for payment or approval; (b) knowingly makes, uses, or causes to be made or used a false record or statement to get a false claim paid or approved by City; (c) conspires to defraud City by getting a false claim allowed or paid by City; (d) knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to City; or (e) is a beneficiary of an inadvertent submission of a false claim to City, subsequently discovers the falsity of the claim, and fails to disclose the false claim to City within a reasonable time after discovery of the false claim.
ARTICLE 6
EVENTS OF DEFAULT AND REMEDIES
6.1. If Grantee fails to perform any portion of the Project in accordance with the terms of this Agreement, SFPUC may do any of the following, individually or in combination:
(a) Termination. The SFPUC may terminate this Agreement by giving a written termination notice to Grantee. In that event, this Agreement shall terminate on the date specified in such notice.
(b) Withholding of Grant Funds. The SFPUC may withhold all or any portion of Grant Funds not yet disbursed hereunder, regardless of whether Grantee has previously submitted a Request for Reimbursement or whether the SFPUC has approved the disbursement of the Grant Funds requested in any Request for Reimbursement. Any Grant Funds withheld pursuant to this Section and subsequently disbursed to Grantee after cure of Project performance failures shall be disbursed without interest. (c) Return of Grant Funds. The SFPUC may demand the immediate return of any previously disbursed Grant Funds that have been claimed or expended by Grantee in breach of the terms of this Agreement.
6.2. Remedies Nonexclusive. Each of the remedies provided for in this Agreement may be exercised individually or in combination with any other remedy available hereunder or under applicable laws, rules and regulations. The remedies contained herein are in addition to all other remedies available to City at law or in equity by statute or otherwise and the exercise of any such remedy shall not preclude or in any way be deemed to waive any other remedy.
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ARTICLE 7
NOTICES AND OTHER COMMUNICATIONS
7.1. Requirements. Unless otherwise specifically provided herein, all notices, consents, directions, approvals, instructions, requests and other communications hereunder shall be in writing, shall be addressed to the person and address set forth below and shall be either mailed via U.S. mail or emailed. Contact information is provided below.
SFPUC:
To: San Francisco Public Utilities Commission
Attn: Non-Potable Grant Assistance Program
525 Golden Gate Ave., 10th Floor
San Francisco, CA 94102
Email: nonpotabie(q)sfvvater.org
GRANTEE:
To: NRG Energy Center San Francisco, LLC.
Address: 460 Jessie Street
San Francisco, CA 94103
Email: [email protected]
ARTICLE 8
8.1. Insurance.
1. Without in any way limiting Grantee's liability pursuant to the "Indemnification" section of this Agreement, Grantee, or Grantee's contractor, shall maintain, or cause to be maintained, until the Grantee received a Project Completion Letter from the SFPUC. (a) Workers' Compensation, in statutory amounts, with Employers' Liability Limits not less than $1,000,000 each accident, injury, or illness; and (b) Commercial General Liability Insurance with limits not less than $1,000,000 each occurrence and $2,000,000 general in the aggregate for Bodily Injury and Property Damage, including Contractual Liability, Personal Injury, Products and Completed Operations; and
2. The General Liability Insurance policy must be endorsed to provide:
(a) Name as Additional Insured the City and County of San Francisco, its Officers, Agents, and Employees. The additional insured status can be provided by blanket endorsement.
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(b) That such policy is primary insurance to any other insurance available to the Additional Insureds, with respect to any claims arising out of this Agreement, and that insurance applies separately to each insured against whom claim is made or suit is brought.
3. Grantee or Grantee's insurance agent/broker shall provide thirty (30) days' advance written notice to the City of reduction or nonrenewal of coverages or cancellation of coverages for any reason. If the endorsement cannot be issued by the insurance company, the SFPUC may accept 30 day advance notice by the Grantee or Grantee's insurance broker.
4. Should any of the required insurance be provided under a claims-made form, Grantee shall maintain such coverage continuously throughout the term of this Agreement and, without lapse, for a period of three (3) years beyond the expiration of this Agreement, to the effect that, should occurrences during the contract term give rise to claims made after expiration of the Agreement, such claims shall be covered by such claims-made policies.
5. Should any required insurance lapse during the term of this Agreement, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this Agreement, effective as of the lapse date. If insurance is not reinstated, the City may, at its sole option, terminate this Agreement effective on the date of such lapse of insurance.
6. At the time it submits and executed Agreement to the City, Grantee shall furnish to City certificates of insurance and additional insured policy endorsements with insurers with ratings comparable to A-, VIII or higher, that are authorized to do business in the State of California, and that are reasonably satisfactory to City, in form evidencing all coverages set forth above. Failure to maintain insurance shall constitute a material breach of this Agreement. Approval of the insurance by City shall not relieve or decrease the Grantee's liability hereunder.
8.2. Indemnification. Grantee shall indemnify and hold harmless City and its officers, agents and employees from, and, if requested, shall defend them from and against any and all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise) arising from or in any way connected with any: (i) injury to or death of a person, including employees of City or Grantee or Grantee's Contractor; (ii) loss of or damage to property; (iii) violation of local, state, or federal common law, statute or regulation, including but not limited to disability and labor laws or regulations; (iv) strict liability imposed by any law or regulation, or (v) losses arising from Grantee or Grantee's Contractor's execution of subcontracts not in accordance with the requirements of this Agreement applicable to subcontractors; so long as such injury, violation, loss, or strict liability (as set forth in subsections (i) - (v) above) arises directly or indirectly from Grantee or Grantee's Contractor's performance of this Agreement, including, but not limited to, Grantee or Grantee's Contractor's use of facilities or equipment provided by City or others, regardless of the negligence of, and regardless of whether liability without fault is imposed or sought to be imposed on City, except to the extent that such indemnity is void or otherwise unenforceable under applicable law, and except where such loss, damage, injury, liability or claim is the result of the active negligence or willful misconduct of City and is not contributed to by any act of, or by any omission to perform some duty imposed by law or agreement on Grantee or Grantee's Contractor, its subcontractors or either's agent or employee. The foregoing indemnity shall include, without limitation, F-8
reasonable fees of attorneys, consultants and experts and related costs and City's out-of-pocket costs of investigating any claims against the City.
In addition to Grantee's obligation to indemnify City, Grantee specifically acknowledges and agrees that it has an immediate and independent obligation to defend City from any claim which actually or potentially falls within this indemnification provision, even if the allegations are or may be groundless, false or fraudulent, which obligation arises at the time such claim is tendered to Grantee by City and continues at all times thereafter.
Grantee shall indemnify and hold City harmless from all loss and liability, including attorneys' fees, court costs and all other litigation expenses for any infringement of the patent rights, copyright, trade secret or any other proprietary right or trademark, and all other intellectual property claims of any person or persons arising directly or indirectly from the receipt by City, or any of its officers or agents, of Grantee or Grantee's Contractor's Services.
8.3. Incidental and Consequential Damages. Losses covered under section 8.2 shall include any and all incidental and consequential damages resulting in whole or in part from Grantee's acts or omissions. Nothing in this Agreement shall constitute a waiver or limitation of any rights that any indemnified party may have under applicable law with respect to such damages.
8.4. Limitation on Liability of City. SFPUC's payment obligations under this Agreement shall be limited to the grant payment. Notwithstanding any other provision of this Agreement, in no event shall CCSF be liable, regardless of whether any claim is based on contract or tort, for any special, consequential, indirect or incidental damages, including, but not limited to, lost profits, arising out of or in connection with this Agreement or SFPUC's performance or nonperformance of its obligations under this Agreement.
8.5. Prohibition on Political Activity with City Funds. In accordance with S. F.
Administrative Code Chapter 12.G, no funds appropriated by the City and County of San Francisco for this Agreement may be expended for organizing, creating, funding, participating in, supporting, or attempting to influence any political campaign for a candidate or for a ballot measure. The terms of San Francisco Administrative Code Chapter I2.G are incorporated herein by this reference.
8.6. Successors; No Third-Party Beneficiaries. The terms of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their successors and assigns.
Nothing in this Agreement, whether express or implied, shall be construed to give any person or entity (other than the parties hereto and their respective successors and assigns and, in the case of section 9.2, any indemnified parties) any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenants, conditions or provisions contained herein. The terms of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their successors and assigns. Nothing in this Agreement, whether express or implied, shall be construed to give any person or entity (other than the parties hereto and their respective successors and assigns and, in the case of section 9.2, any indemnified parties) any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenants, conditions or provisions contained herein.
8.7. Project Proponent to Pay All Taxes. Grantee shall pay to the appropriate governmental authority, as and when due, any and all taxes, fees, assessments or other F-9
governmental charges, including possessory interest taxes and California sales and use taxes, levied upon or in connection with this Agreement, the work, or any of the activities contemplated by this Agreement. Nothing herein shall be construed to limit the ability of Grantee to appeal any taxes or to pay any taxes under protest.
8.8. Modification. This Agreement may not be modified, nor may compliance with any of its terms be waived, except by written instrument executed and approved in the same manner as this Agreement.
8.9. Entire Agreement. This Agreement and the Application Documents set forth the entire Agreement between the parties, and supersede all other oral or written provisions. If there is any conflict between the terms of this Agreement and the Application Documents, the terms of this Agreement shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first specified herein.
SFPUC
SAN FRANCISCO PUBLIC UTILITIES
COMMISSION
GRANTEE:
NRG ENERGY CENTER SAN
FRANCISCO, LLC.
APPROVED AS TO FORM:
Dennis J. Herrera
City Attorney
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FIRST AMENDMENT TO
GRANT AGREEMENT
between
THE CITY AND COUNTY OF SAN FRANCISCO
acting through its
PUBLIC UTILITIES COMMISSION
and
NRG ENERGY CENTER SAN FRANCISCO, LLC.
THIS First Amendment to the Grant Agreement (this "Amendment"), dated for reference purposes only as of April 26, 2017, is made by and between NRG ENERGY CENTER SAN FRANCISCO, LLC., a Delaware limited liability company ("Grantee") and the CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation ("City"), acting through its Public Utilities Commission ("SFPUC").
RECITALS:
WHEREAS, Grantee and City entered into a grant under the Grant Assistance for Large Alternate Water Source Projects on March 10, 2016 for the purpose of partially-funding the purchase and installation of an on-site non-potable water system that will reduce potable water use on the Grantee's property, as authorized by SFPUC Res. No. 12-0103; and WHEREAS, the San Francisco Department of Public Health has determined that San Francisco Health Code Article 12C does not apply to the Grantee's use of alternate water sources for its district heating steam loop; and
WHEREAS, the SFPUC and Grantee desire to modify the terms of the Grant Agreement and procedures for which Grant Funds may be returned in the event of default to the Grant Agreement;
NOW, THEREFORE, City and Grantee agree as follows:
1. Modifications to the Grant Agreement. The Grant Agreement is hereby modified as follows:
1.a. Section 1.1(l) of the Grant Agreement is hereby amended to read in full as follows:
(I) "Project" means the design, installation, operation, maintenance, and repair of an on-site non-potable water system at Property, or other activities described in the approved Grant Application documents.
I.b. Section 1.1 of the Grant Agreement (Specific Terms) shall now include the following provisions:
(o) "Grant Guidelines and Terms" means the document published by SFPUC entitled Grant Assistance fir Large Alternate Water Source Projects, Grant Guidelines and Terms, a copy of which is attached as Exhibit A to the First Amendment to Grant Agreement executed by City and Grantee. (p) "Operating Year" means each consecutive 12-month period during the Term as described in this paragraph. The first Operating Year shall commence on the day that the System is placed in operation ("Operating Commencement Date") and shall end on the day before the one-year anniversary of the Operating Commencement Date. A new Operating Year shall commence on each successive anniversary of the Operating Commencement Date; however the final Operating Year shall end on the date the Term expires or terminates, whether or not consisting of twelve (12) full months.
(q) "System" means the on-site non-potable water system to be designed, installed, operated and maintained at the Property pursuant to this Agreement.
1.c. Section 3.2 of the Grant Agreement ("Termination") is hereby amended to read in full as follows:
3.2 Expiration; Term. The Term of this Agreement shall commence on the Effective Date and shall expire when Grantee has (i) operated the System at the Property for at least eight (8) full years, (ii) achieved a cumulative offset of at least thirty (30) million gallons of potable water, and (iii) submitted at least eight (8) annual status reports (one per Operating Year) to SFPUC (as further described in Section 4.3), documenting that the Project consistently meets the Grant's eligibility requirements set forth in the Grant Guidelines and Terms, for eight (8) years, unless terminated earlier in accordance with the provisions herein.
1.d. Section 4.3 of the Grant Agreement ("Operation and Maintenance of On-site Non-potable Water Systems") is hereby amended to read in full as follows:
4.3 Operation and Maintenance of On-site Non-potable Water Systems. (a) Operation and Maintenance. Grantee, by virtue of accepting Grant Funds, agrees to operate and maintain the Project as outlined by the manufacturer, and for its intended purpose. Except for brief periods necessary for repairs or replacements, Grantee shall operate the System without interruption for eight (8) consecutive years.
(b) Reports. Within thirty (30) days after the end of each Operating Year, as defined in Section 1.1, Grantee will deliver to City the annual report required by the Grant Guidelines and Terms. Such report shall set forth the number of gallons of potable water offset during the Operating Year just elapsed and each prior Operating Year during the Term, and such other information and back-up documentation as may be requested by SFPUC. In addition, if Grantee causes or allows the System to be disconnected or materially modified. Grantee shall promptly report that fact to City.
1.e. Section 5.3 of the Grant Agreement ("Request or Partial Reimbursement") is hereby amended to read in full as follows:
5.3 Request for Partial Reimbursement. Based on the Budget submitted to the SFPUC as outlined in the Grant Application, the Grantee shall submit a Request for Partial Reimbursement for Eligible Expenses up to the amount of Grant Funds specified in the Funding Approval Letter. The Disbursement procedures are as follows:
• SFPUC shall disburse an initial installment of Grant Funds of $200,000, equivalent to forty percent (40%) of the total grant, to the Grantee to cover project design and project start-up expenses.
• SFPUC shall disburse a second installment of Grant Funds of $250,000, equivalent to fifty percent (50%) of the total grant upon (a) substantial completion of the system and (b) receipt of supporting documentation demonstrating substantial completion.
• SFPUC shall withhold retention of $50,000, equivalent to ten percent (10%) of the total grant. Before releasing this amount, Grantee shall work with the SFPUC to review the project progress and demonstrate that the project is on track for final completion, in terms of budget and schedule or otherwise agreed upon. Retention shall be released only after (a) the SFPUC is satisfied with the project progress, (b) the Grantee clearly demonstrates that the project will be completed on time and on budget, or otherwise agreed to by the SFPUC, and (c) the Project achieves the water savings estimated in the grant application.
The Grantee shall provide supporting documentation as outlined in the Grant Assistance for Large Alternate Water Source Projects Grant Guidelines and Terms.
1.f. Section 6.1(c) ("Return of Grant Funds") is hereby amended to read in full as follows:
6.1(c) Return of Grant Funds. The SFPUC may demand the immediate return of all previously disbursed Grant Funds. The SFPUC may demand the return of less than 100% of the Grant Funds if SFPUC determines, at its sole discretion, that a lesser amount will fully compensate City for Grantee's default, taking into consideration all relevant factors, including but not limited to the extent to which Grantee actually met the offset goals, City's costs incurred in administering the Grant and monitoring the Project, the detriment to City of not meeting the offset goals, the time value of the Grant funds, and the lost opportunity to use the funds for a successful project.
1.g. Article 7 (Notices and Other Communications) is hereby amended to read in full as follows:
ARTICLE 7
NOTICES AND OTHER COMMUNICATIONS
7.1 Requirements. Except as otherwise expressly provided in this Agreement, any notice, consent, request, or approval given under or pursuant to this Agreement shall be effective only if in writing and given by delivering such notice, consent, request, or approval in person or by sending it first-class or certified mail with a return receipt requested or via reliable commercial overnight courier, return receipt requested, with postage prepaid, addressed as set forth 3 below, or to such other address(es) as either City or Grantee may designate as its new address(es) for such purpose by notice given to the other party in accordance with the provisions of this Section at least ten (10) days before the effective date of such change.
CITY AND SFPUC:
To: San Francisco Public Utilities Commission
Attn: Non-Potable Grant Assistance Program
525 Golden Gate Ave., 10th Floor
San Francisco, CA 94102
Email: [email protected]
and: San Francisco City Attorney's Office
Attn: Public Utilities Team
1390 Market Street, 7th Floor
San Francisco, CA 94102
Email: [email protected]
GRANTEE:
To: NRG Energy Center San Francisco, LLC
460 Jessie Street
San Francisco, CA 94103
Email: Gordon.juddf&nrg.com
7.2. Effective Date of Notices. A properly addressed notice, consent, request, or approval transmitted by one of the methods set forth in Section 7.1 shall be deemed received upon the confirmed date of delivery, attempted delivery, or rejected delivery, whichever occurs first. Any fax numbers or email addresses provided are for convenience of communication and neither party may give an official or binding notice, consent, request, or approval by email or facsimile.
The effective time of a notice, consent, request, or approval shall not be affected by the receipt, prior to receipt of the original, of a fax or email copy of the notice, consent, request, or approval.
1.h. Section 8.6 (Successors; No Third-Party Beneficiaries) is hereby modified to replace references to "section 9.2" with references to "Section 8.2."
1.h. Article 8 shall now include:
8.10 Consents, Approvals, Elections, and Options. Whenever this Agreement requires or permits the giving by City of SFPUC of any consent or approval, or the making or exercise by City or SFPUC of any election, discretion or option, the General Manager of SFPUC, or his or her designee, shall be authorized to provide such consent or approval, or make or exercise such election, discretion or option, except as otherwise provided by applicable law, including City's Charter. No consent, approval, election or option shall be effective unless given in writing.
2. Effective Date. The modifications set forth in Section 1 above shall be effective on and after the date this amendment is executed and delivered by both parties. 4 By:
GORDON JUDD
General Manager
3. Legal Effect. The Grant Agreement shall remain in full force and effect as modified by this Amendment.
4. Counterparts. This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Grantee and SFPUC have executed this Amendment as of the date first referenced above.
CITY:
CITY AND COUNTY OF SAN
FRANCISCO, a municipal corporation
GRANTEE:
NRG ENERGY CENTER SAN
FRANCISCO, LLC, a Delaware limited
liability company
By: HARLAN L. ICELLY4
General Manager
San Francisco Public Utilities
Commission
APPROVED AS TO FORM:
Dennis J. Herrera
City Attorney
City And County Of San Francisco
7-2 nt—L -7 By: Lefrt
5 Carolyw ohnsoirStein
Deputt( City Attorney
EXHIBIT A
Grant Guidelines and Terms
(Attached)
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Grant Guidelines and Ter
Grant Assistance for Alternate Water Source Projects
ance 0 vervie
The SFPUC's Grant Assistance for Alternate Water Source Projects (Grant Assistance) is a program designed to encourage retail water users to implement the onsite treatment and use of non-potable water including but not limited to rainwater, stormwater, graywater, foundation drainage, and blackwater. The goal is to maximize the use of non-potable water for toilet flushing, irrigation, and other non-potable uses. Non- potable water projects that meetthe following criteria are eligible for grant funding:
1) projects that replace at least 1,250,000 gallons of potable water per year for 8 years; or 2) projects that replace at least 3,750,000 gallons of potable water per year for 8 years.
Grants will be awarded to those applicants who demonstrate they will significantly and permanently reduce or offset the use of existing drinking water supplies for non-potable applications.
Types of activities considered for funding include the installation of harvesting or collection systems for onsite sources, treatment systems to improve the water quality of onsite sources for beneficial reuse, and/or storage of the treated water. The SFPUC anticipates funding multiple projects. The deadline for submitting grant applications will be provided on the SFPUC's Non-potable Water Program web page (www.sfwater.org/no) during each solicitation phase. Provision of grant funding is based on the eligibility of the proposed activity and availability of funds. Each application will be reviewed and evaluated on a case- by-case basis. Grant funding is available on a first come, first serve basis.
Grant Assistance will support customer efforts to implement sustainable water use practices in San Francisco. In addition to advancing water supply reliability, this grant assistance will support the SFPUC's Phased Water System Improvement Program Variant (WSIP) goals adopted by Resolution No. 08-200 on October 30, 2008. The WSIP included a goal of developing an additional 10 million gallons per day (mgd) of locally available water resources
Grant Assistance will not be provided to projects that are undertaken to comply with a City Ordinance. _.Definitions.
Terms used in this grant application package have the meanings described below:
Alternate Water Source — Non-potable source of water that includes graywater, rainwater, stormwater, foundation drainage, and blacicwater. The level of treatment and quality of the alternate water source shall be approved by the City's Department of Public Health and comply with all applicable federal, state, and local regulations.
Applicant — property owner or property tenant that is a retail water customer of the SFPUC, and is seeking grant funds from the SFPUC for an alternate water source project, pursuant to the instructions and guidelines set forth in this application package.
Award — the decision by the SFPUC to provide grant funds, following the review and evaluation of a completed application. An award is made through a Grant agreement.
Last Revised by TC: 4/25/2017 1
Grant Assistance for Alternate Water Source Projects
Blackwater — wastewater containing bodily or other biological wastes, as from toilets, dishwashers, kitchen sinks and utility sinks. Because of plumbing configurations, blackwater leaving a building generally includes graywater.
Building-scale Project — the construction or alteration of any multi-family residential or non-residential building of 100,000 square feet or more that includes the onsite treatment of alternate water sources for non-potable applications.
District-scale Project: a group of two of more parcels that treat and share alternate water sources for non- potable applications.
Foundation Drainage — nuisance groundwater that is dewatered to maintain a building's structural integrity and would otherwise be discharged to the City's sewer system. Sump water is not the same as nonpotable groundwater which requires a production well and is already regulated by the SFPUC and San Francisco Department of Public Health (SFDPH).
Grant Agreement (Agreement) — a written contract between the SFPUC and the recipient of grant funds, which includes the obligations and conditions governing the use of grant funds.
Grantee — property owner or property tenant that is a retail water customer of the SFPUC to whom a grant is awarded.
Graywater — wastewater from bathtubs, showers, bathroom sinks, clothes washing machines, and laundry tubs, but does not include wastewater from kitchen sinks or dishwashers.
Irrigation - water application on land to assist in the growing of landscaping or crops or to maintain vegetation on recreation areas, such as parks and golf courses.
Non-potable Water — water that may be beneficially used but does not meet the federal and state standards for use as drinking water.
Non-potable Water Ordinance — a San Francisco ordinance (Article 12C of the San Francisco Health Code) requiring that new buildings of 250,000 square feet or more of gross floor area be constructed, operated, and maintained using available alternate water sources for toilet and urinal flushing and irrigation. The Ordinance also details the approval and permitting process for the use of alternate water sources for non- potable applications.
Operating Year — each consecutive 12-month period during the 8-year term. The first Operating Year commences on the day that the non-potable water reuse system is placed in operation ("Operating Commencement Date") and ends on the day before the one-year anniversary of the Operating Commencement Date. A new Operating Year will commence on each successive anniversary of the Operating Commencement Date; however the final Operating Year will end on the date the 8-year term expires or terminates, whether or not consisting of 12 full months.
Potable Offset —potable water saved through the use of an appropriate alternative water source.
Potable Water — Water that meets state and federal drinking water standards.
Rainwater — Precipitation collected from roof surfaces or other manmade, aboveground collection surfaces.
Recycled Water — Non-potable water that meets California Department of Public Health statewide uniform criteria for disinfected tertiary recycled water. Recycled water is also known as "reclaimed water".
Recycled Water Ordinance — a San Francisco ordinance (Article 22 of the San Francisco Public Works Code) that requires new construction or major alteration activities over 40,000 square feet install dual plumbing if the activity is located in the recycled water use areas.
Reservation Letter — A written notice of the reservation of grant funds.
Last Revised by TC: 4/25/2017 2
Grant Assistance for Alternate Water Source Projects
Retail Customer/User — Any institutional, industrial, residential, or commercial customer who receives a water bill directly from the SFPUC for their own water use, and not for resale.
Stormwater — Precipitation collected from at-grade or below grade surfaces.
Stormwater Management Ordinance — a San Francisco ordinance (Section 146, Article 4.2 of the San Francisco Public Works Code) that requires all construction activities that would disturb more than 5,000 square feet of ground surface must capture, and possibly treat, a portion of the stormwater generated onsite.
Last Revised by TC: 4/25/2017 3
Grant Assistance for Alternate Water Source Projects
I. Grant Guidelines
Grant funds are available to any institutional, residential, commercial, or district-scale Retail Customer which receives a water bill directly from the SFPUC for their own water use, and not for resale (Retail Customer).
Proposed activities must meet all of the criteria set forth below to qualify for Grant Assistance. Activities _ that do not meet one of more of the criteria listed below will be deemed ineligible.
Grant funds are not available for projects undertaken to comply with a City Ordinance. rue Applica Re
Eligibility Criteria
• The proposed alternate water source system must be permanent and be operated for a minimum of 8 years.
• The proposed activity is by a retail water service customer of the SFPUC as part of the construction or alteration of any institutional, residential, or commercial building. • The Applicant cannot propose use of grant funds for dual-distribution if the project is located within a Recycled Water Use Area.
• The Applicant cannot propose use of grant funds for rainwater harvesting implemented to comply with the Stormwater Management Ordinance.
• The Applicant cannot propose use of grant funds for the mandatory installation of an onsite water reuse system to comply with the requirements of the Non-potable Water Ordinance. • The Applicant must corn* with the requirements of the San Francisco Non-potable Water Ordinance, all applicable rules and regulations required by the Department of Public Health, or other applicable rules and regulations.
• Project must meet all applicable local, state, and federal laws, regulations and ordinance, including the California Environmental Quality Act (CEQA) and San Francisco Administrative Code Chapter 31 as applicable.
• The Applicant must provide a complete application package, including a project description, water budget, schedule, itemized cost documentation, and IRS W-9 form. • Project must be completed within 4 years of the grant agreement signature date and must offset SFPUC potable water use within 6 months after the issuance of the SFDPH Start-Up Permit. • Grantees must submit at least 8 annual status reports to SFPUC (one per Operating Year), documenting that the project consistently meets the eligibility criteria, for 8 years. • If the system does not meet these criteria for a minimum of 8 years, the SFPUC may demand immediate return of all previously disbursed Grant Funds.
Projects must meet one of the following Eligibility Criteria • The project is a new site that is voluntarily installing a non-potable water reuse system; or • The project is an existing site that is voluntarily installing a non-potable water reuse system; or • The project is a site that is voluntarily connecting to a district-scale non-potable water reuse system.
Last Revised by TC: 4/25/2017 4
Grant Assistance for Alternate Water Source Projects
Additional Eligibility Criteria for $250,000 Grant
• The proposed activity is estimated to replace at least 1,250,000 gallons per year of the project's potable water use for 8 years.
Additional Eligibility Criteria for $500,000 Grant
• The total proposed activity is estimated to replace at least 3,750,000 gallons per year of the project's potable water use for 8 years.
Documentation Requirements
• The Applicant must provide a complete application including a project description, schedule, water use calculations and other supporting documentation to be considered for grant funding. • The Applicant must calculate the project's estimated water savings using the method provided in the grant application.
• The Grantee must reference funding and support from the SFPUC in all public outreach materials and signage related to the project. The SFPUC will work with grantee to procure signage.
Additional Documentation Requirements for District-scale Non-potable Water Projects • The Applicant must provide information on the permanent water sharing legal agreements between property owners.
• The Applicant must provide documentation that each party is a willing and responsible participant in the district non-potable water use as is included in the Non-potable Water Engineering Report, as applicable.
Grant Terms and Process
Step 1 —Grant Application
• The Applicant submits a completed application, including any required CEQA compliance documentation and permits and other supplemental documentation such as the project work plan, schedule, budget, and water savings calculations.
• If the Applicant's project is selected for funding, the SFPUC will send a Reservation Letter confirming the amount of funds reserved for the next 6 months, and identifying for the Applicant any additional documentation that must be submitted to receive award and payment. • A Reservation Letter is a provisional reservation, made on a case-by-case basis and subject to availability of funds, and does not guarantee that award will be made. The application must include a signed W-9 tax form.
Step 2 — Project Design and Construction
• The Applicant will then complete design and construction of the non-potable water system meeting the following criteria:
o Approval of a Non-potable Water Engineering Report, as applicable, within 6 months of the Grant Application and Agreement Form signature date.
o Construction completion within 4 years of the reservation letter date. • Upon completion of the project, the Applicant will complete and mail the Project Completion Form, including an accounting of final system costs; daily and annual potable water savings; a copy of the Final Use Permit to Operate from SFDPH; and a final description of the installed projected.
Step 3 — Grant Agreement
• Grant funds will be provided in 3 disbursements:
Last Revised by TC: 4/25/2017 5
Grant Assistance for Alternate Water Source Projects
o Disbursement of 40% of the total grant will be made upon approval of a Non-potable Engineering Report. Approval letter from SFDPH required, as applicable. o Disbursement of 50% of the total grant will be made upon completion of construction of the system. Construction certification letter required in accordance with Non-potable Water Ordinance, as applicable.
o The final disbursement of the remaining 10% of the total grant will be processed after the Final Permit to Operate has been issued by SFDPH, as applicable, and the project achieves the water savings estimated In the grant application and complies with ordinance requirements. A copy of the Final Use Permit to Operate from SFDPH and water savings documentation required, as applicable.
• If the documentation does not prove the water savings estimates outlined in the grant application or fails to comply with any local, state or federal laws or ordinances requirements, the grant funds reserved for the project are subject to termination and previously disbursed funds are subject to potential reimbursement to the SFPUC.
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A grant reservation for the Grant Assistance Program is valid for 6 months from the reservation letter date.
If a reservation expires or the project changes a new application must be submitted. Extensions of the expiration of the grant reservation may be granted at the discretion of the SFPUC and must be obtained in writing. Once a Reservation Letter is issued, the Non-potable Engineering Report must be approved within 6 months, as applicable, to be eligible for potential funding. The Applicant may request an extension of the expiration date in writing thirty days prior to the expiration date. Once a Grant Agreement is executed, the project must be completed within 4 years. The Grantee may request an extension of the Grant Agreement expiration date in writing prior to the end of the 4 years from the date of execution of the Grant Agreement.
The purpose of this Grant Assistance is to encourage and support customers who are taking steps to reduce or offset the use of drinking water supplies. Therefore, in the event that 1) the proposed activity or portion of the proposed activity is not completed within 4 years or as otherwise extended by mutual agreement, and
2) the project does not offset potable water use within 6 months of receiving a SFDPH Start-Up Permit (subject to SFPUC staff verification),
The Grantee will reimburse the SFPUC any funds that the SFPUC may have advanced. The SFPUC reserves the right to evaluate each activity on a case-by-case basis.
Along with the request for the first payment, the Grantee must submit the following to the SFPUC:
• A completed W-9 IRS tax form from the designated payee; • Insurance documentation described in the Grant Agreement; • A City of San Francisco Vendor Number. For more information on doing business with the City, please see the San Francisco Office of Contract Administration at www.sfgsa.org ; and In the February following issuance of an incentive payment, the City will forward a 1099-Misc tax form to the designated Grantee.
Last Revised by IC: 4/25/2017 6
Grant Assistance for Alternate Water Source Projects
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Grantees will be required to provide the SFPUC with detailed annual status reports. Site inspections by SFPUC staff will be conducted for any grant-funded activities, including post installation verification of water savings.
The annual status reports must be submitted for 8 years, and they must provide proof that the project consistently meets the Grant's eligibility requirements detailed below. If the annual status reports show that the system does not consistently meet one of these criteria for a minimum of 8 years, the SFPUC may demand immediate return of all previously disbursed Grant Funds.
Eligibility Criteria for $250,000 Grant Eligibility Criteria for $500,000 Grant The proposed activity is estimated to re_place at
least 1,250,000 gallons of potable water per year for
8 years.
The proposed activity is estimated to replace at
least 3,750,000 gallons of potable water per year for
8 years.
Grant Funding
Funding Requirements
• Funding will be provided based on 1) the evaluation of each application and the water budget documentation, and 2) the availability of funds, as certified by the Controller of the City and County of San Francisco.
• Activities must be completed within 4 years from the execution of a Grant Agreement, unless a written extension has been granted by the SFPUC.
• Only accepted expenses incurred for preparation of the water budget documentation package and ordinance compliance are eligible for reimbursement prior to executing the Grant Agreement.
Budget Items Eligible for Funding
• Direct project costs paid, including, but not limited to materials, supplies, salaries and fringe benefits, and payments on construction contracts.
• Unless otherwise agreed to in writing, no other costs are eligible for reimbursement by the SFPUC.
Budget Items ineligible for Funding
• Fixtures and landscape materials are not eligible for grant funding. • Projects that have already received a Start-up Permit from SFDPH are not eligible for grant funding. • Projects that received a certificate of occupancy from SFDBI before January 1, 2014 are not eligible for grant funding.
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A grant counts as income and therefore may be taxable. It is the responsibility of the Grantee to determine whether a tax liability exists. The designated Grantee will receive a 1099-Misc tax form from the City in the February after award of the grant. By issuing a 1099-Misc, the City is fulfilling its legal obligation for tax- reporting. In order to issue a 1099-Misc, SFPUC will request relevant tax information from a designated Last Revised by TC: 4/25/2017 7
Grant Assistance for Alternate Water Source Projects
Grantee through a W-9 IRS tax form, which must be completed and returned before a grant payment will be made.
The City requires evidence of insurance for all funded activities. Prior to beginning work on an activity, the Grantee must produce a Certificate of General Liability as well as proof of Worker's Compensation Insurance. The Grantee's insurance policy shall name the City and County of San Francisco, the Public Utilities Commission, its board members and commissions, and all authorized agents and representatives, and members, directors, officers, trustees, agents and employees as additional insureds. .Perm
All activities must comply with applicable local, state, and federal permit requirements. A grant will not be awarded until a building permit is issued and the activity has completed compliance with the California Environmental Quality Act (CEQA) and San Francisco Administrative Code Chapter 31 (e.g. categorical exemption, negative declaration, mitigated negative declaration or EIR). An SFPUC inspection of installed systems does not constitute a building inspection by DBI or the local authority with jurisdiction to issue permits to operate the system.
II. Grant Evaluation
Projects must meet all of the eligibility criteria under the Grant Application and the Project Documentation steps listed under Section I. Grant Guidelines:
• Grant Application - Projects that meet all of the grant application eligibility criteria will be evaluated based on the estimated water savings.
• Water Budget Documentation - Projects will also be evaluated on whether the water savings outlined in the grant application will be achieved through the water budget documentation developed and submitted to the SFPUC. The water budget must be calculated using the SFPUC Water Use Calculators (Excel based spreadsheet applications).
lit Grant Application
The Alternate Water Source Assistance Program will be a two-step solicitation, review and selection process for 1) Grant Applications and 2) Water Budget Documentation. Projects that receive final approval from the SFPUC to proceed with their water saving project will enter into a Grant Agreement for grant disbursement and implementation.
The deadline for submitting grant applications will be provided on the SFPUC's Non-potable Water Program web page (www.sfwater.oranp) during each solicitation phase. Applications can be sent by electronic mail to [email protected] or delivered to:
Last Revised by IC: 4/25/2017 5
Grant Assistance for Alternate Water Source Projects
San Francisco Public Utilities Commission
Water Resources Division
Attn: Large Alternate Water Source Grant Program
525 Golden Gate Ave, 10th Floor
San Francisco, CA 94102
For questions about the grant assistance program or if you require assistance in completing a grant application, please send electronic mail messages to the SFPUC grant team at nommtable@sfwaterorg or contact the SFPUC Water Resources Division at (415) 551-4734.
Last Revised by TC: 4/25/2017 9
Energy Center San Francisco LLC May 7, 2024
P-665 (1-22); Appendix A Page 1 of 1 AWT-11
APPENDIX B – Documentation
City and County of San Francisco
Office of Contract Administration
Purchasing Division
City Hall, Room 430
1 Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4685
May 7, 2024
Re: Novation Agreement Among NRG Energy Center San Francisco LLC and Energy Center San Francisco LLC and the City and County of San Francisco
I hereby confirm that as of the date hereof, the nature of the corporate change from NRG Energy Center San Francisco LLC to Energy Center San Francisco LLC is limited to the change in name and TIN, and that NRG Energy Center San Francisco LLC and Energy Center San Francisco LLC continue to be the same corporate entity.
Richard H. Freed
Legal Counsel to Energy Center San Francisco LLC
CordiaEnergy.com | 1 East Washington Street, Ste 430, Phoenix, Arizona 85004 |
Delaware
The First State
2269692 8100 Authentication: 203486012
SR# 20186758807 Date: 09-25-18
You may verify this certificate online at corp.delaware.gov/authver.shtml I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “NRG ENERGY CENTER SAN FRANCISCO LLC”, CHANGING ITS NAME FROM "NRG ENERGY CENTER SAN FRANCISCO LLC" TO "ENERGY CENTER SAN FRANCISCO LLC", FILED IN THIS OFFICE ON THE TWENTIETH DAY OF SEPTEMBER, A.D. 2018, AT 4:42 O`CLOCK P.M.