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AMENDMENT NO. 1 TO VWFM-21-0319
BAY AREA AIR QUALITY MANAGEMENT DISTRICT
VOLKSWAGEN MITIGATION TRUST FUND
ZERO EMISSION FREIGHT AND MARINE PROGRAM GRANT AGREEMENT
GRANT AGREEMENT NO. VWFM-21-0319
This grant agreement amendment (“Amendment”) consists of nine (9) pages.
RECITALS:
1. On July 26, 2022, the Bay Area Air Quality Management District (“Air District”) and Port of Richmond, (“Grantee”) (hereinafter referred to together as the “Parties”) entered into Agreement No. VWFM-21-0319(“Agreement”), pursuant to which the Air District awarded a Volkswagen Mitigation Trust Fund Zero Emission Freight and Marine Program Grant of $1,003,250.00 for a project to reduce emissions by installing grid-based shore side power at Berths 7/8 at the Point Potrero Marine Terminal in the Port of Richmond (“Project”).
2. The Parties seek to update Recital 5 to reflect the latest version of the Program Guidance.
3. The Parties seek to clarify that the Agreement requires Grantee to submit Project records requested by the Air District or California Air Resources Board (“CARB”) within thirty business days of such request.
4. The Air District seeks to add a new clause at Section I, Paragraph 11 outlining Grantee’s obligations before and after the sale of any Project Equipment, and Grantee agrees to such obligations.
5. The Air District seeks to update Section I, Paragraph 14 regarding Nondiscrimination to make a correction.
6. The Air District seeks to add a new clause at Section I, Paragraph 17 stating that this Agreement is binding on and will inure to the benefit of Grantee’s heirs, executors, administrators and successors in interest.
7. The Air District seeks to update Section III, Paragraph 1 regarding Agreement Term, Project Equipment Operational Period, and Project Term.
8. The Air District seeks to update Section III, Paragraph 18 regarding Governing Law.
9. The Air District seeks to update Section III, Paragraph 25 regarding Public Documents.
10. The Air District seeks to add a new clause at Section III, Paragraph 28 regarding Authority to Sign.
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11. The Parties seek to update Paragraph 4 of Attachment A to modify the funding awarded for one piece of equipment.
12. The Parties seek to modify Paragraph 5 of Attachment A to modify the funding awarded for one piece of equipment.
13. The Air District seeks to modify the Minimum Total Usage listed to reflect updates in the estimated usage of the Equipment and add the definition of Unregulated Vessel, and the modification is necessary to ensure the terms of the Agreement comply with the Zero Emission Freight and Marine Program.
14. Grantee agrees to meet the modified Minimum Total Usage requirements for the equipment.
15. The Parties seek to update Paragraph 6 of Attachment A to clarify the description of the Project.
16. The Grantee seeks to modify Paragraph 9 of Attachment A to reflect changes in the Project Schedule.
17. The Air District seeks to modify Paragraph 14 of Attachment A regarding Annual Monitoring Reports.
18. The Air District seeks to add definitions of disadvantaged and low-income communities to align these definitions with the State of California’s definitions by modifying Paragraph 16, Part A of Attachment A.
19. The Air District seeks to add a new attachment, Attachment C, to the Agreement to include CARB’s most current California Climate Investments Priority Populations map.
20. The Air District has confirmed that all of these changes are in compliance with the applicable guidelines and do not change Grantee's ranking or eligibility for funding.
21. Thus, in accordance with Paragraph 9 of Section III of the Agreement, the Parties desire and agree to amend the above-entitled Agreement as follows:
TERMS AND CONDITIONS OF AMENDMENT:
1. This Amendment amends Recital 5, by deleting this paragraph in its entirety and replacing it with the following language:
The Zero-Emission Freight and Marine Program (“Program”) provides funding for the replacement of airport ground support equipment (“GSE”), forklifts, port cargo handling equipment (“CHE”), the repower of marine engines to zero-emissions, and installation of shore power at berths in Regulated California Waters. On May 12, 2021, following CARB’s approval, the Air District released the Program Guidance for Zero-Emission Freight and Marine Program (“Program Guidance”) to describe requirements, applicant and project eligibility, application process, evaluation criteria, reporting, inspection, implementation and operation, and other VWFM-21-0319 Page 3 of 9
requirements, and last updated the Program Guidance on the program website at https://www.californiavwtrust.org/zero-freight-marine/ on October 19, 2023. The Grantee has affirmed it is an “eligible applicant” under the Program and has affirmed that it shall comply with all Program requirements set forth in the Program Guidance, which are incorporated herein and made a part hereof by this reference as if fully set forth herein.
2. This Amendment amends paragraph 4 of Section I, by deleting this paragraph in its entirety and replacing it with the following language:
4) To allow the staff and third-party partners of the Air District to inspect the Project Equipment and to conduct financial and performance audits of the Project. Grantee agrees that the Air District, CARB, or their respective designated representatives shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Project.
Grantee further agrees to cooperate fully with such inspections and audits, including providing copies of any Project records related to performance of this Agreement requested by the Air District, CARB, or their designee within thirty business days of such request.
3. This Amendment adds a new provision at Paragraph 11 of Section I, by deleting the term “Reserved” and replacing it with the following language:
11) To give advance notice to the Air District in writing of its intent to sell the Project Equipment along with reasons why, mailing address, phone number and e-mail of the purchaser, prior to Project Equipment resale. Grantee must receive Air District and CARB written approval prior to any sale. For Project Equipment sold within three years of the original Project Equipment purchase date (and after the Air District and CARB provides written approval), Grantee must inform the new purchaser in writing about the project requirements by sharing a copy of this Agreement. The new Equipment purchaser must agree in writing to meet all applicable requirements of this Agreement, and if applicable, to provide the Air District with a copy of the new title documenting the sale within thirty business days after the effective date of the successor grant agreement. Grantee is responsible for meeting all obligations of this Agreement until a novation agreement is fully executed by the Air District, Grantee, and the new Equipment purchaser. Within thirty business days after any Project Equipment is sold, Grantee must notify the Air District that the Project Equipment has been sold and the Project Equipment sale price.
4. This Amendment amends Paragraph 14 of Section I, by deleting this paragraph in its entirety and replacing it with the following language:
14) Nondiscrimination: During the performance of this Grant Agreement, the Grantee and its contractors shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment because of sex, race, religious creed, color, national origin, ancestry, physical disability (including HIV and AIDS), mental disability, sexual orientation, medical condition, marital status, age (over 40) or allow denial of family-care leave, medical-care leave, or pregnancy-disability leave. The Grantee and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination and harassment. The Grantee and its contractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code section 12990 (a-f) et seq.) and VWFM-21-0319 Page 4 of 9
the applicable regulations promulgated thereunder (California Code of Regulations, title 2, section 11000 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code section 12990 (a-f), set forth in Chapter 5 of Division 4 of title 2 of the California Code of Regulations, are incorporated into this Grant Agreement by reference and made a part hereof as if set forth in full. The Grantee and its contractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
5. This Amendment adds a new provision at Paragraph 17 of Section I with the following language:
17) That this Agreement is binding on and will inure to the benefit of Grantee’s heirs, executors, administrators and successors in interest.
6. This Amendment amends paragraph 1 of Section III, by deleting this paragraph in its entirety and replacing it with the following language:
1) Agreement Term, Project Equipment Operational Period, and Project Term: The term of this Agreement (“Agreement Term”) begins on the Effective Date and shall remain in effect until the conclusion of all Project Equipment Operational Periods and submission of all required reports, as set forth in Attachment A unless this Agreement is terminated earlier. A Project Equipment Operational Period begins when the piece of Project Equipment has been successfully inspected by the Air District and concludes upon the satisfaction of the usage requirement and project life requirement for that piece of Project Equipment. The Project Term begins at the start of the earliest Project Equipment Operational Period and ends at the conclusion of all Project Equipment Operational Periods. The Project Equipment Operational Period for each piece of Project Equipment is set forth in Table 1 of Attachment A. In no event shall Grantee own and operate a piece of Project Equipment for less than three years from the date the new unit is put into service, or the minimum project term specified in the Program Guidance, whichever is longer.
7. This Amendment amends paragraph 18 of Section III, by deleting this paragraph in its entirety and replacing it with the following language:
18) Governing Law: Any dispute that arises under or relates to this Agreement shall be governed by law, excluding any laws that direct the application of another jurisdiction’s laws. Venue for resolution of any dispute that arises under or relates to this Agreement shall be San Francisco, California. Any rights or remedies of the Air District provided for in this Agreement are in addition to any other rights and remedies provided by law.
8. This Amendment amends paragraph 25 of Section III, by deleting this paragraph in its entirety and replacing it with the following language:
25) Public Documents: To the extent not otherwise prohibited by law, and to the extent required by the California Public Records Act (Government Code section 7920 et seq.), the Grantee will place in the public domain any software, written document or other product developed with Program funds as part of the Project.
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9. This Amendment adds a new provision at Paragraph 28 of Section III with the following language:
28) Authority to Sign: The persons executing this Agreement certify that they have the legal authority to bind their respective entities to all terms and conditions set forth herein.
10. This Amendment amends Paragraphs 4 of Attachment A, by deleting this paragraph in their entirety and replacing it with the following language:
4. Total Grant Funds Awarded (Sections I.3, II.1, and III.15): $2,602,750 The Air District will pay the awarded Eligible Costs of the Project Equipment, less any amount from an Air District approved co-funding source as adjusted and set forth in Table 1 below. Payment shall not exceed the permitted Funds Awarded for the individual Project Equipment as specified in Table 1 below. In no event shall the Total Grant Funds Awarded for all Project Equipment exceed $2,602,750. Funds Awarded may only be used to cover Eligible Costs as described in this Agreement.
11. This Amendment amends paragraph 5 of Attachment A, by deleting this paragraph in its entirety and replacing it with the following language:
Berth
Number &
Project
Location
New
Equipment or
Eligible Cost
Item
Description*
Eligible
Costs
Maximum %
of Funding of
Eligible Costs
Minimum
Total Usage
&
Equipment
Operational
Period
% Operation
in CA
(% in
disadvantaged
or low-income
community **)
Funds
Awarded
Berths 7/8
the Point
Potrero
Marine
Terminal
Shore power
station with
one shore
power outlet
1800kW+
$3,297,500 100%
459 MWh
electricity
delivered to
unregulated
vessels,***
and
3 years
100%
(100%)
$2,602,750
Total award: $2,602,750
* As an alternative to Project Equipment, Grantee may propose installation of equipment that will result in the same or better emissions reductions and meet or exceed the operational parameters as Project Equipment and specified in Attachment A of this Agreement (“Equivalent Equipment”). Installation of Equivalent Equipment in lieu of Project Equipment requires advanced written approval from the Air District.
** Percentage of usage occurring in impacted communities during the Project Equipment Operational Period. *** “Unregulated vessels” are those not required to connect to shore power under CARB rules and regulations adopted before May 2018 (e.g., the At-Berth Regulation adopted in 2007).
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12. This Amendment amends paragraph 6 of Attachment A, by deleting this paragraph in its entirety and replacing it with the following language:
6. Project Description:
Table 1 provides the details of the grid-based shore side power installation at the Project Location. Awarded projects will consist of the purchase, installation, and operation of the major infrastructure listed in Table l, as well as all associated, related and ancillary infrastructure.
For shore power installation projects, the electricity delivered must be to vessels that are not regulated by the 2007 CARB At-Berth Regulation. Emissions reductions achieved by the Project must be surplus to CARB rules and regulations adopted prior to May 2018 (e.g. the At-Berth Regulation adopted in 2007). If the Project does not deliver the amount of electricity provided in Table 1 to unregulated vessels, surplus NOx emission reductions will not be achieved and the Funds Awarded may be reduced or withdrawn by the Air District.
13. This Amendment amends paragraph 9 of Attachment A, by deleting this paragraph in its entirety and replacing it with the following language:
9. Project Schedule: By no later than October 8, 2026, the Grantee must put the Project Equipment into service and have the equipment inspected by the Air District. Inspections may occur at any time prior to Grant Agreement execution and throughout the contract term. If applicable, Grantee must scrap the Baseline Equipment within 60 days of when the Project Equipment becomes operational. Copies of purchase order must be submitted within 3 months of a Notice to Proceed.
14. This Amendment amends paragraph 14 of Attachment A, by deleting this paragraph in its entirety and replacing it with the following language:
14. Annual Monitoring Reports: The annual reporting cycle is a calendar year January 1 through December 31. Grantee shall submit an annual monitoring report each calendar year for the Project Term in a format approved and provided by the Air District. The monitoring report shall include, but is not limited to, the following information:
• Port, terminal, and berth name(s)/identifier(s) for the shore power system (System). • Date and location of the System installation (operation) • Total number of ship visits to each berth
• Total power (Megawatt-hours) dispensed to vessels that are not required to use shore power by CARB’s At-Berth regulation using the System
• Each use of the System, inclusive of the following information:
o Vessel type, name, and Lloyd’s numbers
o Date and times that System initially plugged into vessel and subsequently unplugged from vessel
o Total hours the System was connected to the vessel
o Power (kilowatt-hour) supplied to the vessel to displace use of auxiliary engine(s) • Date, time, and description of any equipment failure of the System that affected the ability of a vessel to control auxiliary engine emissions
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• Summary of System maintenance, source testing, and inspections conducted • Signed certification statement that all Project Equipment was operated in accordance with this Agreement and that all information submitted is true and accurate • A copy of any new or updated Terminal Plans submitted to CARB for reporting purposes under applicable shore power regulation(s)
• Proof of insurance
• Other information as requested by the Air District.
The first annual report shall be submitted by February 1 of the year following execution of the Grant Agreement to cover the period from the Effective Date of this Agreement through December 31 of the prior year. The first annual report shall include a report on the Grantee’s progress in meeting milestones listed in the Project Schedule as set forth in Paragraph 9 of this Attachment. Subsequent annual reports shall be submitted by February 1st of each succeeding year with the final annual monitoring report due by February 1 following the last year of the Project Term. If Grantee fails to submit annual monitoring reports in a timely fashion, the Air District shall perform a project performance audit. Failure to submit monitoring reports could be considered a breach of this Agreement and may jeopardize Grantee’s eligibility to participate in future incentive and grant programs.
15. This Amendment amends Paragraph 16, Part A of Attachment A, by deleting this paragraph in its entirety and replacing it with the following language:
A. The Grantee shall operate the Project Equipment funded within disadvantaged or low-income communities throughout the Project Equipment Operational Period for a minimum of the percent usage specified in Table 1 of Attachment A to ensure that the Project directly reduces emissions in disadvantaged or low-income communities and helps to reduce public health risks associated with such air contaminants in the disadvantaged or low-income communities. The disadvantaged or low-income community parameter is based on the application materials submitted by the Grantee and is the basis for the calculation of emissions reductions achieved through the Project.
Disadvantaged communities are defined by the California Environmental Protection Agency as the top 25% most impacted census tracts in CalEnviroScreen. Low-income communities are defined as the census tracts that are either at or below 80 percent of the statewide median income, or at or below the threshold designated as low-income by the California Department of Housing and Community Development (HCD). Disadvantaged communities and low-income communities are depicted on the map in Attachment C of this Agreement.
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16. This Amendment adds Attachment C to the Agreement:
ATTACHMENT C – DISADVANTAGED OR LOW-INCOME COMMUNITIES
DESIGNATION*
*Map created on October 25, 2024, using CARB’s map at
https://webmaps.arb.ca.gov/PriorityPopulations/.
17. All other terms and conditions of the Agreement shall remain in effect.
18. The Effective Date of this Amendment is the date that the Air District’s Executive Officer/Air Pollution Control Officer or designee has executed it.
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IN WITNESS WHEREOF, the PARTIES have caused this Amendment to be duly executed on their behalf by their authorized representatives.
BAY AREA AIR QUALITY GRANTEE
MANAGEMENT DISTRICT
By: __________________________________ By: _______________________________ Philip M. Fine Charles Gerard
Executive Officer/ Port of Richmond
Air Pollution Control Officer Port Director
Date: ________________________________ Date: _______________________________
Approved as to form:
By: __________________________________
Alexander Crockett
General Counsel