1. The City and County of San Francisco, acting by and
through its Public Utilities Commission (“City”), and the Customer (as
specified herein) enter into this Agreement for participation in the Upgrade
for Savings (“UPGRADE FOR SAVINGS”) Program for electrification rebates pursuant
to these Terms and Conditions and (1) the Upgrade for Savings Electrification
Rebate Catalog; (2) the completed Application Documents for the Project, and
(3) the Reservation Notice, which are hereby incorporated by reference as if
fully set forth herein (“Program Documents”). All capitalized terms shall have
the meaning set forth in the UPGRADE FOR SAVINGS Electrification Catalog.
2. Only the Customer or Authorized Customer Agent may
submit applications. Applicants to the Program
must have authority to enter into the Program Incentive Agreement for the
Project, and be authorized on behalf of the legal owner of the Project site, to
implement/install electrification measures. The Applicant’s signature on the
application indicates such permission has been obtained.
3. By submitting this Application & Incentive
Agreement to the City, the Customer agrees to implement the Project described
in the Program Documents. Customer
acknowledges that its participation in the UPGRADE FOR SAVINGS Program is
voluntary, and it is under no obligation to accept Technical Assistance or
implement any recommendations, comments, or measures stemming from the Technical
Assistance process. Customer further
acknowledges and represents that any changes made to the design or construction
of the Project are based upon the Customer’s independent review, analysis, and
decision-making and not in reliance on the recommendations or advice of the
City.
4. Customer understands that Program Incentives are
based on meeting the Qualifying Criteria and Technical Requirements of the
Upgrade for Savings Program as determined by SFPUC in its sole discretion.
5. Prior to installation and/or implementation of
measures, a completed and signed Application along with supporting documents
must be submitted to the Program. The Program reserves the right to conduct an
onsite pre-inspection on any project. Customer understands that submission of an
application package does not guarantee Program participation, nor is it a
guarantee of funding availability.
6. Funding for this Program is limited and subject to
the budgeting and fiscal provisions of the City’s Charter. The City reserves the right to modify or
discontinue this Upgrade for Savings Program and/or this Agreement without prior notice
and at its sole discretion. Upon Program termination, SFPUC will not be liable
for any losses, costs, or damages of any kind.
7. Funding is available on a first-come-first served
basis for qualified applicants and is subject to the availability of
funds. Incentives will be reserved only
upon the City’s approval and execution of this Incentive Agreement and in
accordance with the Program Documents. Payment of UPGRADE FOR SAVINGS
Incentives will be made only after all Program requirements are met and upon Project
verification by the City as set forth in the Program Documents. The
City reserves the right to modify or cancel the UPGRADE FOR SAVINGS
Incentive Payment if the actual measures installed differ from the design of
measures contained in this Application, the Project fails the City inspection
and verification, or for any other failure to comply with the Program
Documents.
8. These Terms and Conditions apply from the
Reservation Date until the fifth annual anniversary of the date on which the
City issues an Incentive Payment to the Customer.
9. Customer/ Authorized Customer Agent agrees to:
A. Undertake, in good faith and with due diligence, the construction
of the Project, consistent with Program Documents. Customer understands that s/he, and any
third parties involved with the Project, are not performing any work for,
on behalf of, or at the direction of, the City, and are not authorized to
make any representations on behalf of the City.
B. Meet all program requirements and conduct all work in compliance with
applicable federal, state, and local government laws, codes, ordinances,
and regulations, as well as property owner and/or homeowner’s association
conditions, restrictions, and rules.
C. Obtain and maintain, at their own expense, all licenses and permits
required by any federal, state, local, or other governing agency for
performing work on the Project and for operation of the Project. Applicant
shall provide copies of all Project permits to SFPUC upon request.
D. Provide written notification to the City of any material change in
the nature or scope of the Project.
Customer understands and acknowledges any such change may result in
disqualification of the Project for the Upgrade for Savings Program and cancellation of this Agreement.
E. Cooperate in good faith with any evaluation or verification
activities required by the City. Customer
shall provide City and its representatives and agents, reasonable access
to Customer’s Project Site to verify pre- and post-installation and
operation conditions. Customer
understands that such verification is not an electrical safety or building
permit inspection.
F. Prior to the payment of any Incentive, provide the City with all
documentation reasonably necessary for verification of installation and
performance of the Project, including but not limited to, manufacturer’s
specification sheets, and vendor and construction invoices.
G. Accept as final authority, the City’s
determination of the UPGRADE FOR SAVINGS Incentive amount.
H. Provide the City the right to claim and report
benefits, credits, allowances, or any other right resulting from the
energy savings and avoided emissions associated with the Project for the
purpose of compliance with any local, state, federal, or international
program governing environmental attributes (“Benefits”), for the lesser of
five years or the rated life of the equipment. Customer agrees that if 1) Customer
does not provide City with 100 percent of the related Benefits for which
the UPGRADE FOR SAVINGS Incentive is paid, for a period of five years from
the receipt of the incentive, or 2) the energy benefit to City ceases (for
example, if Customer’s company stops using the equipment), Customer will
return to City the prorated portion of the Incentive dollars based on the
actual period of time for which Customer provided the Benefit.
I. If City electricity service to the Project
Site is terminated through no fault of the SFPUC within five (5) years of
the date of the UPGRADE FOR SAVINGS Incentive Payment, Customer will
return to the City the prorated portion of the Incentive dollars based on
the actual period of time that the Customer was a City electricity
customer.
J. Include this Agreement as part of the property
sale or rental agreement if the Project Site is sold or rented.
10. Incentives may be taxable and will be reported by
the City to the IRS unless Customer qualifies under an exempt status. Utility
will report the incentive as income to Customer on IRS Form 1099 unless Customer
has indicated that it qualifies for an exempt tax status as indicated on the
Application.
11. Customer shall indemnify, protect, and hold
harmless City, the SFPUC and its, officers, employees, and agents 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 Customer; (ii) loss of or damage to property; (iii) violation of local,
state, or federal common law, statute or regulation; (iv) strict liability
imposed by any law or regulation; (v) infringement of patent rights, copyright,
trade secret or any other proprietary right or trademark, and all other
intellectual property claims; so long as such injury, violation, loss, or
strict liability (as set forth in subsections (i) – (v) above) arises directly
or indirectly from Customer’s performance of this Agreement, regardless of the
negligence of, and regardless of whether liability without fault is imposed or
sought to be imposed on City. Customer shall, at the City’s request, provide a
defense against any claim covered by this indemnity. The
City’s obligations under these Terms and Conditions shall be limited to the
UPGRADE FOR SAVINGS Incentive Payment.
In no event shall the City be liable, regardless of whether any claim is
based on contract or tort, for any special, consequential, indirect or
incidental damages arising out of or in connection with this Agreement.
12. CITY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES RELATED TO THE TECHNICAL
ASSISTANCE, CONSTRUCTION, EQUIPMENT, OR INSTALLATIONS REFERRED TO HEREIN; THE
BENEFITS TO BE DERIVED FROM THE TECHNICAL ASSISTANCE, OR INSTALLATION,
OPERATION, AND USE OF SUCH EQUIPMENT, OR; ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OR APPLICATION, AND SPECIFICALLY DISCLAIMS ANY SUCH WARRANTY,
EXPRESS OR IMPLIED. SFPUC’S AND/OR ITS
CONSULTANTS’ REVIEW OF THE DESIGN, CONSTRUCTION, OR OPERATION OF THE PROJECT OR
ANY ELECTRIFICATION MEASURES ("EMs") COVERED UNDER THIS AGREEMENT
SHALL NOT CONSTITUTE ANY REPRESENTATION AS TO THE ECONOMIC OR TECHNICAL
FEASIBILITY, SAFETY, OPERATIONAL CAPABILITY, OR RELIABILITY OF THE PROJECT OR
EEMs, NOR SHALL CUSTOMER, IN ANY WAY, MAKE SUCH A REPRESENTATION TO A THIRD
PARTY. CUSTOMER IS SOLELY RESPONSIBLE FOR THE DESIGN, INSTALLATION, ECONOMIC
AND TECHNICAL FEASIBILITY, PERMITTING, CONSTRUCTION, OPERATIONAL CAPABILITY AND
RELIABILITY OF THE PROJECT AND EMs.
13. The selection of contractor, engineering firm,
vendor, installer, manufacturer, dealer, purchase of materials, work performed
and payment thereof is the sole responsibility of the Customer/Authorized
Customer Agent. Customer/Authorized Customer Agent waives any claims against SFPUC
arising out of the installation and/or use of the Project. SFPUC does not
endorse, recommend, or guarantee the services, work, materials, products,
workmanship, or financial stability of any contractor, engineering firm,
vendor, auditor, installer, manufacturer, dealer, or any other party. SFPUC
will have no role in resolving any disputes between the Customer, contractor,
engineering firm, vendor, installer, manufacturer, and/or any other third parties.
14. Customer represents and warrants that it has not
applied, and will not apply, for or any electrification rebate offered by any
other local or state authority or utility for measures receiving incentives
under this Agreement unless the other program specifically allows for
“stacking” (allowing for more than one funding source to incentive the same
measure”.
15. Customer/Authorized Agent acknowledges SFPUC will
review the Application & Incentive Agreement and Supporting Documentation
for completeness, accuracy and compliance with Program rules and guidelines as
described in the Electrification Rebate Catalog. Applications will be evaluated
in the order in which they were received, and incentive funding will be
reserved for Projects based upon the date of application approval by the SFPUC,
subject to available program funds. Upon the SFPUC’s approval and issuance of a
Reservation Notice, the Estimated Incentive funds will be reserved. SFPUC’s
final determination of these values will vary based upon its verification
procedures for the completed Project that may include selection for an onsite
post-installation inspection.
16. Customer/Authorized Agent acknowledges Projects
must be Complete with the Notice of Completion submitted to the SFPUC within six
(6) months from the Reservation Date or thirty (30) days from the completion of
the Project, whichever is sooner. If Applicant fails to meet the project
schedule, or deviates from the Project submitted with this Application &
Incentive Agreement, the Estimated Incentive Amount may be reduced or
canceled. This Incentive Agreement will
have no force or effect until the SFPUC approves the Application and issues a
Notice of Reservation.
17. Customer/Authorized Agent authorize employees
of the SFPUC, which also includes CleanPowerSF employees, and other City and
County of San Francisco employees, agents, consultants, and representatives, to
access account data and information that I submit and receive in order to manage
and process my enrollment, application and participation in the Upgrade for
Savings Program.
18. Customer/Authorized Agent acknowledges that the City is a public agency subject to the
California Public Records Act and the San Francisco Sunshine Ordinance and all
information submitted to the City may be subject to disclosure in accordance
with applicable law or court order. By executing this Agreement, the Customer certifies
that (i) it has read and understood these Terms and Conditions and the UPGRADE
FOR SAVINGS Electrification Rebate Catalog, (ii) it and the Project meet all of
the UPGRADE FOR SAVINGS Program eligibility requirements, (iii) the information
provided by the Customer and its representatives to the City in connection with
the UPGRADE FOR SAVINGS Program, including the description of the Project set
forth in the Application Documents, is true and correct and acknowledge that
information found to be false or misleading is grounds to void the Incentive
Agreement and reject or cancel the Incentive reservation, and (iv) the
undersigned is duly authorized to execute this Agreement.
19. By using this form and signing
electronically above, I agree and understand that this electronic signature is
the legal equivalent of my manual/handwritten signature.