HomeMy WebLinkAboutCO 2025-017 - Smart & Final Docusign Envelope ID'. 166C14C0-B7E8-4EBB-907C-86BAE7BE7230 City of
Rancho Cucamonga
CONTRACT NUMBER
2025-017
RANCHO CUCAMONGA MUNICIPAL UTILITY
ECONOMIC DEVELOPMENT RATE AGREEMENT
FOR NEW OR EXPANDED LOAD ELECTRIC SERVICE CUSTOMER
This ECONOMIC DEVELOPMENT RATE AGREEMENT for New or Expanded Load Electric
Service Customer is made and entered into this lath day of February 2025 by and between
chedraui usA ("Customer"), and the CITY OF
RANCHO CUCAMONGA ("Rancho Cucamonga"), a California general law city and municipal
corporation organized and existing under the laws of the State of California, each hereinafter
sometimes referred to individually as`Party"and collectively as "Parties".
In consideration of the mutual covenants and promises in this Agreement, the Parties agree as
follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following meanings:
1.1 Agreement: This document and appendices, as amended from time to time.
1.2 Authorized Representative: The representative designated by each Party, in accordance
with Section 15.1, to act on such Party's behalf with respect to those matters specified
in this Agreement.
1.3 Economic Development Rate ("ED"): the rates and charges set forth in Schedule ED,
subject to the terms and conditions of this Agreement.
1.4 Base Period Usage: As defined in Section 4 of this Agreement.
1.5 Commencement Date: The date on which Rancho Cucamonga shall begin charging
Customer for Electric Service at the Electric Rate as such date may be established
pursuant to Section 7.2 and may be tolled pursuant to Section 12.4, but not to exceed
twelve (12) months from the Effective Date.
1.6 Customer: Customer as defined in the Rancho Cucamonga's Electric Service Rule 1.
1.7 Effective Date: The date this Agreement is executed by both parties, as set forth in the
introductory paragraph of the Agreement.
1.8 Electric Rate: Customer's Otherwise Applicable Rate Schedule for Electric Service,
less the discounts set forth in Subsection 3.3.
1.9 Electric Rules: All, or any combination of, Rancho Cucamonga's "Electric Service
Rules, Fees, and Charges", as modified from time to time and adopted by the Rancho
Cucamonga City Council.
1.10 Electric Service: Energy, demand, substation distribution and transmission service
necessary to deliver such Energy to Customer's Points of Interconnection, and such
other services that Rancho Cucamonga is required to provide pursuant to this
Agreement, the Electric Service Rules and any programs or services mandated by a
state or federal regulatory agency, or Rancho Cucamonga's City Council.
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1.11 Energy Efficiency Measure: Any type of project conducted, or technology
implemented, to reduce the consumption of energy in a building. The types of projects
implemented can be in a variety of forms and should achieve a savings, reducing the
amount of energy used by a particular process, technology or facility. Energy
Efficiency Measures does not include on-site generation or participation in Demand
Response programs.
1.12 Expanded Load: The amount of qualifying load eligible for discount under this
Agreement, which shall be measured as the difference between the new monthly,
meter-documented energy use and demand, and the Base Period Usage.
1.13 Expanded Load Customer: A commercial or industrial customer currently served by
Rancho Cucamonga meeting the qualifications set forth in Schedule ED and expanding
business operations within Rancho Cucamonga’s electric service area that will add new
load and increase its average monthly demand by a minimum of 200 kW.
1.14 Forecast Maximum Demand: Customer’s forecast of its Total Load maximum demand,
including any expansion of load planned over the five years of this Agreement.
1.15 Forecast Minimum Demand: Customer’s forecast of its minimum monthly electrical
demand, including any on-site generation planned or reasonably anticipated over the
five years of this Agreement.
1.16 Labor Dispute: A strike, walkout, lockout or other dispute between a Party’s labor force
and the Party.
1.17 Liquidated Damages: Damages owed by Customer to Rancho Cucamonga as provided
in Section 11 of this Agreement.
1.18 Minimum Charge: The amount as defined in Customer’s Otherwise Applicable Rate
Schedule.
1.19 Minimum Load: The minimum metered kilowatt input at the Point of Interconnection
during one calendar month as averaged over a rolling one year period, as referenced for
Customer in Section 5.
1.20 New Load Customer: A commercial or industrial customer meeting the qualifications
set forth in Schedule ED, locating in Rancho Cucamonga’s electric service territory.
1.21 Otherwise Applicable Rate (OAR) Schedule: The rate schedule under which Customer
is taking electric service from Rancho Cucamonga at the time of signing this
Agreement, or, in the case of a New Load Customer, the rate schedule otherwise
applicable to the New Load Customer upon initiation of service, and any applicable
successor schedule.
1.22 Party, Parties: The parties to this Agreement are Rancho Cucamonga and Customer, as
defined above.
1.23 Total Load: Customer’s recorded (metered) load (energy and demand).
1.24 Uncontrollable Force(s): Any cause beyond the control of the Party affected and
asserting excuse from performance, including but not restricted to flood, drought,
earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience,
labor dispute, labor or material shortage, sabotage, restraint by court order or public
authority, and action or inaction by or failure to obtain the necessary authorizations or
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approvals from, any governmental agency or authority which by exercise of due
diligence such Party could not reasonably have been expected to avoid and to the extent
which by exercise of due diligence it has been unable to overcome. The Party claiming
such Uncontrollable Force must give the other Party at least two weeks written notice
of the commencement of such cause, and keep the other Party informed concerning the
continuance of such cause. Uncontrollable Force does not include any change or
fluctuation in Customer’s load or demand due to changes in Customer’s business
practices, business downturn, lack of demand for Customer’s products or services, or
the like, all of which are expressly presumed to be reasonably anticipated and within
Customer’s control.
2 CUSTOMER AFFIDAVIT OF ELIGIBILITY
2.1 Customer represents and warrants to Rancho Cucamonga that it satisfies the criteria for
Schedule ED eligibility as indicated by Customer’s initials below [Customer must
initial Subsection 2.4 and one of Subsections 2.2 or 2.3.
2.2 ( ) New Load Customer is a new Customer of Rancho Cucamonga that:
2.2.1 Has a Forecast Minimum Demand of at least 500 kW and plans and expects to
continue to maintain or exceed the Forecast Minimum Demand of at least 500 kW
throughout the terms of the Agreement; and
2.2.2 Will create _____ new permanent full time equivalent jobs within the City of
Rancho Cucamonga.
2.3 ( ) Expanded Load Customer is an existing Customer of Rancho Cucamonga that:
2.3.1 Covenants to increase its average monthly demand by a minimum of 200 kW, and
2.3.2 Represents that all documents that it has provided to Rancho Cucamonga as
evidence of Customer’s ability to maintain such a demand increase during the
Agreement Term are true and correct.
2.4 ( ) Customer represents and warrants under penalty of perjury under the laws of the
State of California that all covenants, statements of facts, representations, and
documents provided to Rancho Cucamonga with respect to Forecast Minimum Demand
and Customer’s eligibility for Schedule ED, including Customer’s disclosure of any
plans to install on-site generation at any point during the term of the Agreement, are
true and correct.
3 ECONOMIC DEVELOPMENT RATE
3.1 Customer represents that it meets the eligibility requirements of Schedule ED.
3.2 Customer agrees to purchase from Rancho Cucamonga and Rancho Cucamonga agrees
to sell to Customer at the Electric Rate set forth herein, all of Customer’s Electric
Service requirements at Customer’s Site(s) including Electric Service necessary to
deliver such Energy to Customer’s Points of Interconnection throughout the Term of
this Agreement. Except as expressly provided in this Agreement, Rancho Cucamonga
shall provide such Electric Service in accordance with the Electric Rules. In the event
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X
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any term of this Agreement adds to, varies or contradicts the Electric Rules, the terms
of this Agreement shall prevail.
3.3 Subject to the terms and conditions of this Agreement, Rancho Cucamonga will provide
New Load Customers a Tier ___ discount and Expanded Load for existing Customers
only the Tier 1 discount off the Customer’s bill calculated based on the rate
components comprising its OAR for purchases of electricity (demand and energy) over
the five-year term of this Agreement.
Tier 1 Tier 2 Tier 3
Years 1 - 2 20% 20% 20%
Years 3 - 4 15% 17% 20%
Year 5 10% 12% 15%
3.4 All charges for Electric Service pursuant to this Agreement shall be subject to Rancho
Cucamonga’s Public Purpose Program Charge, any applicable state or federal energy
Tax, and any other governmental taxes, duties, or fees, as may be revised from time to
time by the relevant regulatory authority, applicable to Electric Service provided by
Rancho Cucamonga.
3.5 The Electric Service provided herein is expressly reserved for Customer’s sole use.
Customer is prohibited from transferring, providing, or reselling all or any portion of
such service to any third party or parties.
4 BASE PERIOD USAGE
4.1 Base Period Usage must be established for each Customer.
4.2 Rancho Cucamonga shall determine Customer’s Base Period Usage by estimating
Customer’s load characteristics, including estimated demand and energy usage on a
time-of-use basis using available data, including Customer’s previous electricity bills, if
any. Customer’s Forecast Minimum Demand, and other facts, affirmations and
documents that may be provided by Customer upon Rancho Cucamonga’s reasonable
request. That calculation shall be used to determine Customer’s Base Period Usage
until recorded load data becomes available to more definitively establish Customer load
characteristics. When Rancho Cucamonga can more accurately estimate Customer’s
actual load characteristics, Customer’s Base Period Usage shall be established based
upon the new recorded data.
4.3 If Customer is subject to billing on a time-of-use basis but does not have the requisite
historical data to determine its actual base period usage, Rancho Cucamonga shall
estimate Customer’s load characteristics, including estimated demand and energy usage
on a time-of-use basis using available data. That calculation shall be used as
Customer’s Base Period Usage until recorded load data becomes available to more
definitively establish Customer’s load characteristics. When Rancho Cucamonga can
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more accurately estimate Customer’s actual load characteristics, Customer’s Base
Period Usage shall be established based upon the new recorded data.
4.4 Base Period Usage is established as follows:
Average Monthly Base
Period Usage (kW)
Average Hourly Base
Period Usage (kWh)
Facilities Related Demand N/A
Summer
On-Peak
Mid-Peak
Off-Peak
Overall
Winter
Mid-Peak
Off-Peak
Overall
1,029 kW
1,226 kW
162,918 kWh
207,903 kWh
Base Period Usage Facilities Related Demand is computed as follows:
1. Determine a Facilities Related Demand for each month in the period used to
establish Base Period Usage that is the greater of:
a. The maximum billing demand for the month, or
b. 50% of the highest of all the billing demands in the period used to
establish Base Period Usage.
2. Compute the average of the monthly Facilities Related Demands thus
determined. This is Base Period Usage Facilities Related Demand.
3. An “XXX” entered above indicates that the entry is not applicable to
Customer’s Base Period Usage.
5 MINIMUM LOAD
5.1 Customer must maintain a Minimum Load for each year from the date service is first
rendered under Schedule ED for the five-year term of this Agreement, including any
extension provided under Subsection 12.4.
5.2 The Minimum Load for a New Customer representing and warranting its eligibility for
Schedule ED under Subsection 2.2 of this Agreement must be at least 500 kW.
5.3 The Minimum Load for an Existing Customer representing and warranting its eligibility
for Schedule ED under Subsection 2.3 of this Agreement cannot be lower than 200 kW.
5.4 Any load reductions shown to the reasonable satisfaction of Rancho Cucamonga to be
directly attributable to Energy Efficiency Measures implemented after establishing
Base Period Usage in this Agreement shall not adversely impact the calculation of
Customer’s Minimum Load. The imputed load reductions attributable to any energy
efficiency measure implemented subsequent to the establishment of Base Period Usage
shall be added back into the load calculation in the event that New Customer’s
Minimum Load falls below 500 kW, or Expanded Load Customer’s Minimum
Expanded Load falls below 200 kW. Provided that New Customer maintains usage of
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at least 500 kW, and Expanded Load Customer maintains its Minimum Expanded
Load, net of any energy efficiency impacts, all Customer discounts shall apply.
6 SUSPENSION
6.1 If during any year of service the New Customer’s Total Load maximum demand falls
below 500 kW in any three months, the Customer’s discounts under Section 3.3 above
shall be suspended for the balance of the year and such suspension shall begin with the
month of the third occurrence. Customer’s discounts applicable to total Load, shall
resume at the beginning of the following year, subject to the terms of this provision, but
only if Customer has:
6.1.1 maintained the Minimum Load for the prior three consecutive months before such
suspension is lifted, and;
6.1.2 provided Rancho Cucamonga reasonable assurance that the maximum demand
will not fall below 500 kW at any point during the remainder of the term of the
Agreement. For purposes of this section, a year of service commences with the
date service is first rendered under this Agreement or the anniversary of such date.
6.2 If during any year of service the Expanded Load Customer’s Minimum Expanded Load
falls below 200 kW in any three months, the Customer’s discounts under Section 3.3
above shall be suspended for the balance of the year and such suspension shall begin
with the month of the third occurrence. Customer’s discounts applicable to Minimum
Expanded Load shall resume at the beginning of the following year, subject to the terms
of this provision, but only if Customer has:
6.2.1 maintained the Minimum Expanded Load for the prior three consecutive months,
before such suspension is lifted and;
6.2.2 provided Rancho Cucamonga reasonable assurance that the Minimum Expanded
Load will not fall below 200 kW at any point during the remainder of the term of
the Agreement. For purposes of this section, a year of service commences with
the date service is first rendered under this Agreement or the anniversary of such
date.
7 COMMENCEMENT OF SERVICE
7.1 Rancho Cucamonga will begin providing the Customer service under Schedule ED at the
start of the next regular billing period following the date the Customer notifies Rancho
Cucamonga that service should begin under Schedule ED, which date shall not be more
than 12 months from the effective date of this Agreement.
7.2 Customer estimates that service under Schedule ED shall commence at the start of the
next regular billing period beginning after January 31, 2025 and shall provide Rancho
Cucamonga at least five business days’ notice of any change in such date.
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8 ACKNOWLEDGEMENT
8.1 Except as otherwise amended herein, Customer acknowledges that it is fully subject to all
terms and conditions contained in Customer’s OAR, or its successor rate schedule, all
of Rancho Cucamonga’s rules, and all terms and conditions of service contained in
Rancho Cucamonga’s rates. Any provision pertaining to either a peak period rate
limiter or an average rate limiter does not apply.
8.2 Customer also acknowledges that Rancho Cucamonga may request documentation to
support Customer’s signed Affidavit, may request documentation to determine
Customer’s ongoing compliance with its obligations under this Agreement, and may
verify any supporting documentation and statements Customer has made in support of
its signed stand-alone Affidavit.
9 TERM
9.1 This Agreement shall be effective for five years following the commencement of service
under Schedule ED pursuant to Section 7 of this Agreement.
9.2 At the end of the fifth year, Customer will no longer take service under Schedule ED and
will be billed only under its OAR, effective with the start of the next regular billing
period following the end of the fifth year of service under this Agreement.
9.3 This Agreement is not renewable at the expiration of its term.
10 TERMINATION
This Agreement may be terminated (subject to payment of Liquidated Damages as provided
for in Section 11) by either Party upon written notice as follows.
10.1 Termination for Misrepresentation or Fraud: Rancho Cucamonga may terminate this
Agreement upon five business days’ notice if any representation made by Customer in
this Agreement is untrue in any material respect, or if any statement in Customer’s
Affidavit was untrue, or if Rancho Cucamonga determines that Customer was not
eligible for Schedule ED when this Agreement was signed, in which case Customer
will pay Liquidated Damages as set forth in Section 11.3.
10.2 Termination at Customer’s Request: Customer may request termination of this
Agreement at any time by providing at least 60 days’ written notice to Rancho
Cucamonga.
10.3 Termination for Nonpayment: Rancho Cucamonga may terminate this Agreement if
Customer fails to pay any amount due under Schedule ED within 30 days after receipt
of notice of nonpayment from Rancho Cucamonga. Customer shall be liable for all
unpaid amounts and any late payment charges.
10.4 Termination for Noncompliance: Rancho Cucamonga may terminate this Agreement
upon five business days’ notice if Customer fails to comply with any term or condition
of Schedule ED or this Agreement, or if Customer ceases the operations to which this
Agreement applies or moves such operations out of Rancho Cucamonga’s service
territory.
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10.5 Termination for Ineligibility: Rancho Cucamonga may terminate this Agreement upon
five business days’ notice if it determines that Customer has become ineligible for
Schedule ED.
10.6 Termination for Failure to Maintain Minimum Load: Rancho Cucamonga may
terminate this Agreement if a Suspended Customer fails to maintain its Minimum Load
as defined in Sections 6.1 and/or 6.2 or shuts down its operations. If a Suspended
Customer fails to maintain its Minimum Load as defined in Sections 6.1 and/or 6.2,
Rancho Cucamonga must provide Customer at least 60 days’ notice of termination and
Customer shall have the opportunity to increase its load to the Minimum Load and
demonstrate to Rancho Cucamonga’s satisfaction that it will continue to use its
Minimum Load for the remaining term of this Agreement.
10.7 Termination for Failure to Commence Service: Rancho Cucamonga may terminate this
Agreement if Customer does not begin service within 6 months after the date this
Agreement was executed.
10.8 Obligations Continuing: Termination of this Agreement shall not relieve either Party of
its obligations incurred prior to termination.
10.9 Upon termination of the Agreement, Rancho Cucamonga’s obligation to provide
Electric Service to Customer and the rates and rules applicable to Rancho Cucamonga’s
provision of such Electric Service shall be pursuant to Rancho Cucamonga’s then
existing Electric Service Rate Schedules.
11 LIQUIDATED DAMAGES
11.1 Upon termination of this Agreement, prior to the last day of its five-year term pursuant
to Sections 10.1, 10.2, 10.3, 10.4, 10.5, or 10.6, Customer shall be required to pay
Rancho Cucamonga Liquidated Damages. The Liquidated Damages are required to
ensure that neither Rancho Cucamonga nor its ratepayers are financially or otherwise
damaged if this Agreement is prematurely terminated before the end of its term.
11.2 It would be extremely difficult for the Parties to identify the amounts of increased or
additional costs attributable to termination of this Agreement. Parties agree the
Liquidated Damages specified herein are a reasonable approximation of damages which
Rancho Cucamonga and its ratepayers may incur as a result of such termination, and
that the damage amount does not represent a penalty.
11.3 For termination under Section 10.1 above, Liquidated Damages under this Agreement
shall be an amount equal to 200% of the cumulative difference between (i) the amount
the Customer would have paid for its energy and demand if billed at its OAR from the
date service was first rendered under Schedule ED to the date of termination, and (ii)
the amount billed to Customer under this Agreement and Schedule ED during the same
period.
11.4 For termination under Sections 10.2, 10.3, 10.5, or 10.6 above (excepting business
closure or reduction in load without relocation) Liquidated Damages under this
Agreement shall be an amount equal to 100% of the cumulative difference between (i)
the amount billed to Customer under Schedule ED from the date service was first
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rendered under Schedule ED to the date of termination, and (ii) the amount the
Customer would have paid for its energy and demand if billed at its OAR from the date
service was first rendered under Schedule ED to the date of termination. Should a
customer’s usage increase such that the cumulative liquidated damages become
negative upon contract termination, under no circumstances will Rancho Cucamonga be
liable for paying liquidated damages to a Customer.
11.5 After termination of this Agreement for any cause, Customer shall be billed at its OAR.
11.6 Rancho Cucamonga may in its discretion require Customer to establish a letter of credit
or other security as a condition to providing service under Schedule ED to secure
payment of any Liquidated Damages. Rancho Cucamonga may, at any time during the
term of this Agreement, request that Customer provide reasonable documentation of its
ongoing eligibility under the terms of this Agreement and Schedule ED.
12 UNCONTROLLABLE FORCE
12.1 Neither Party shall be considered to be in default in the performance of any obligation
under this Agreement, except for obligations to pay money, when and to the extent that
failure of performance shall be caused by an Uncontrollable Force.
12.2 If either Party, because of an Uncontrollable Force, is rendered wholly or partly unable
to perform its obligations under this Agreement, the Party shall be excused from
whatever performance is affected by the Uncontrollable Force to the extent the
following conditions are met.
12.2.1 The suspension of performance is of no greater scope and of no longer duration
than is required by the Uncontrollable Force.
12.2.2 The nonperforming Party uses its best efforts to cure its inability to perform. This
subsection shall not require the settlement of any strike, walkout, lockout or other
labor dispute on terms which, in the sole judgment of the Party involved in the
dispute, are contrary to its interest. It is understood and agreed that the settlement
of strikes, walkouts, lockouts, or other labor disputes shall be at the sole discretion
of the Party having the difficulty.
12.2.3 When the nonperforming Party is able to resume performance of its obligations
under this Agreement, that Party shall give the other Party written notice to that
effect immediately.
12.3 Nonperformance due to Uncontrollable Force shall be excused, provided Party can
demonstrate that the Uncontrollable Force was owing to causes outside its reasonable
control and the occurrence of the Uncontrollable Force could not have been prevented
by the exercise of due diligence.
12.3.1 Accordingly, nonperformance shall be excused from the date of the occurrence of
the Uncontrollable Force, provided the nonperforming Party has given the other
Party written notice describing the particulars of the occurrence within two weeks
of the event.
12.3.2 Accordingly, nonperformance shall be excused from the date on which the
nonperforming Party gives the other Party written notice describing the particulars
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of the occurrence of the Uncontrollable Force, if such written notice is given more
than two weeks after the Uncontrollable Force occurred.
12.4 If Customer experiences an Uncontrollable Force that prevents Customer from
complying with Schedule ED and this Agreement, Customer may request that Rancho
Cucamonga suspend the terms of Schedule ED and this Agreement for the duration of
the Uncontrollable Force. Customer will be billed at the Otherwise Applicable Rate for
the duration of the suspension of this Agreement. Resumption of the terms of Schedule
ED and this Agreement shall commence with the next regularly scheduled billing
period following the resolution of the Uncontrollable Force event; provided that if the
Uncontrollable Force event is not resolved within 6 months, the Customer will be
permanently assigned to its Otherwise Applicable Rate and this Agreement will be
terminated as of the first day of the following billing period without additional notice.
In addition, the term of this Agreement will be extended for up to 12 months beyond
the term originally established in this Agreement by the length of time this Agreement
was suspended.
12.5 The occurrence of an Uncontrollable Force shall not (i) prevent Rancho Cucamonga
from terminating this Agreement in accordance with Sections 10.4 and 10.5, or (ii)
extending the period any level of discount is available as provided in Section 3.3.
12.6 If the Uncontrollable Force causing the nonperformance is caused by the actions or
inactions of legislative, judicial or regulatory agencies, or other proper authority, this
Agreement may be amended to comply with the legal or regulatory change causing the
nonperformance. Any such amendment must first be approved by the Rancho
Cucamonga City Council prior to implementation.
13 INDEMNITY
13.1 Except for any liens, claims, costs, damages, liability or loss resulting from Willful
Action, as defined herein, Customer agrees to indemnify, protect, defend, and hold
harmless the City of Rancho Cucamonga, and Rancho Cucamonga’s employees,
officers, managers, agents and City Council Members from and against any claim for
damage, charge, lawsuit, action, judicial, administrative, regulatory or arbitration
proceeding, damage, cost, expense (including reasonable attorney and expert fees),
judgment, civil fine and penalties, liabilities or losses of any kind or nature whatsoever
whether actual, threatened or alleged, which arise out of, pertain to, or relate to, or are a
consequence of, or are attributable to, or are in any manner connected with this
Agreement but only in proportion to and to the extent such liens, claims, damages,
liability or loss are caused by or result from the negligent acts, errors, or omissions of
Customer, its employees, officers, or agents. This indemnification provision shall apply
to any acts, omissions, negligence, recklessness, or willful misconduct, whether active
or passive, on the part of the Customer or anyone employed or working under the
Customer.
13.2 “Willful Action” shall be defined as an action taken or not taken by a Party at the
direction of its directors, officers, or employees where:
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13.2.1 An action is knowingly or intentionally taken or not taken with conscious
indifference to the consequences thereof or with intent that injury or damage
would probably result therefrom; or
13.2.2 An action has been determined by final arbitration, judgment, or judicial decree to
be a material default under this Agreement and occurs beyond the time specified
for curing such default or, if no time to cure is specified therein, occurs or
continues thereafter beyond a reasonable time to cure such default; or
13.2.3 An action is knowingly or intentionally taken or not taken with the knowledge of
material default under this Agreement.
13.3 Willful Action does not include any act or failure to act which is merely involuntary,
accidental, negligent, or performed (or not performed).
13.4 The provisions of this Section 13 shall be binding upon the Parties to the full extent
permitted by law. The obligations set forth herein are binding on the successors, assigns
and heirs of Customer and shall survive termination of this Agreement.
14 ASSIGNMENT OF AGREEMENT
14.1 Customer shall not assign this Agreement or any part or interest thereof, to a third party
without the prior, written consent of an authorized representative of the City of Rancho
Cucamonga. Any assignment made without such consent shall be void and of no effect.
Further, any assignment made under this Agreement shall be subject to any applicable
City Council authorization except as waived by the City Council.
15 REPRESENTATIVES AND NOTICES
15.1 Representatives: Upon the Effective Date of the Agreement, the City Manager for
Rancho Cucamonga, and person identified on the execution page for Customer shall be
the Authorized Representatives who will act on its behalf in the implementation of this
Agreement. Either Party may at any time change, via written notice, the designation of
its Authorized Representative to the other Party.
15.2 Form of Notice: Any notice and other communication required or permitted to be given
under this Agreement shall be deemed given: (i) when hand delivered; or (ii) one (1)
business day after pickup by Federal Express or similar overnight delivery service
properly addressed as provided below; or (iii) three (3) business days after such notice
or communication shall have been deposited with the United States Postal Service,
postage prepaid and properly addressed as provided below; or (iv) when sent by
facsimile transmission to the fax numbers provided below, with receipt of such fax
confirmed telephonically, provided that on the same day such notice or communication
shall also be hand delivered or sent by overnight delivery pursuant to this Subsection.
15.3 Addresses of Parties: Notices to Rancho Cucamonga should be given to: Rancho
Cucamonga Municipal Utility, 10500 Civic Center Drive, Rancho Cucamonga, CA
91730; Notices to Customer shall be given to the addressee at the location shown on the
execution page.
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15.4 Change of Address: Either Party may change such address by giving notice to the other
Party as provided herein.
16 ENFORCEMENT
16.1 Legal Action: In addition to any other rights or remedies, either Party may take legal
action, in law or in equity, to cure, correct or remedy any default, to recover damages
for any default, to compel specific performance of this Agreement, to obtain
declaratory or injunctive relief, or to obtain any other remedy consistent with the
purposes of this Agreement.
16.2 Governing Law: This Agreement shall be interpreted, governed by, and construed
under the laws of the State of California or the laws of the United States as applicable
without regard to the conflicts of laws or rules thereof. Any action at law or in equity
brought by either of the Parties for the purpose of enforcing a right or rights provided in
this Agreement shall be tried in a court of proper jurisdiction in the County of San
Bernardino, State of California, and the Parties hereby waive all provisions of law
providing for a change of venue in such proceedings to any other county.
16.3 Damage Limitation: Rancho Cucamonga shall not be liable for any consequential,
incidental, indirect, or special damages, whether in contract, tort, or strict liability
including, but not limited to, lost profits, property damage, personal injury and loss of
power, arising out of or in any way related to power outages, other electric service
interruption(s), Rancho Cucamonga’s performance or nonperformance of its obligations
under this Agreement or termination of this Agreement.
16.4 Attorney Fees: If either Party to this Agreement is required to initiate or defend any
action or proceeding this Agreement, the prevailing party in such action or proceeding,
in addition to any other relief which may be granted, whether legal or equitable, shall
be entitled to reasonable attorney’s fees, if awarded by an arbitrator or court of
competent jurisdiction.
16.5 Disputes: All disputes regarding questions of fact, opinions or interpretation of
provisions in this Agreement shall be submitted to the Authorized Representatives. If
the Authorized Representatives are unable to resolve the dispute, the matter shall be
referred to the individuals designated to receive notices pursuant to Section 14. Nothing
in this Agreement precludes either Party from taking any lawful action it deems
appropriate to enforce its rights.
16.6 Waivers: Waiver by any Party to this Agreement of any term, condition, or covenant of
this Agreement shall not constitute a waiver of any other term, condition, or covenant.
Waiver by any Party of any breach of the provisions of this Agreement shall not
constitute a waiver of any other provision or a waiver of any subsequent breach or
violation of any provision of this Agreement. No delay or omission in the exercise of
any right or remedy by a non-defaulting Party on any default shall impair such right or
remedy or be construed as a waiver. Any waiver by either Party of any default must be
in writing and shall not be a waiver of any other default concerning the same or any
other provision of this Agreement.
Docusign Envelope ID: 166C14C0-B7E8-4E8B-907C-86BAE7BE7230
Updated: 6-17-15
13
17 MISCELLANEOUS
17.1 Integration and Amendment: this Agreement contains the final, complete, and exclusive
statement of the terms of the agreement between the Parties pertaining to the subject
matter of this Agreement, and supersedes all prior and contemporaneous oral or written
communications of the Parties. Neither Party has been induced to enter into this
Agreement by, nor is any Party relying on, any representation or warranty of the other
Party outside those expressly set forth in this Agreement. Ambiguities or uncertainties
in the wording of this Agreement shall not be construed for or against either Party, but
shall be interpreted in a manner that most accurately reflects the original intent of the
Parties, and is consistent with the nature of the Parties’ rights and obligations. No
modification of this Agreement shall be valid or binding unless in writing duly signed
by both Parties.
17.2 Severability: In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or
unenforceable by a valid judgment or decree of a court of competent jurisdiction, such
invalidity or unenforceability shall not affect any of the remaining phrases, sentences,
clauses, paragraphs, or sections of this Agreement which are hereby declared as
severable and shall be interpreted to carry out the intent of the Parties hereunder unless
the invalid provision is so material this its invalidity deprives either Party of the basic
benefit of its bargain or renders this Agreement meaningless.
17.3 Exhibits: All documents referred to below and attached to this Agreement as Exhibits
are incorporated into and made a part of this Agreement. Exhibit “A”: Customer
Site(s); Metered Accounts
17.4 Corporate Authority: The persons executing this Agreement on behalf of the Parties
hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so
executing this Agreement, such Party is formally bound to the provisions of this
Agreement, and (iv) the entering into this Agreement does not violate any provision of
any other Agreement to which said party is bound. This Agreement shall be binding
upon the heirs, executors, administrators, successors and assigns of the parties.
Docusign Envelope ID: 166C14C0-B7E8-4E8B-907C-86BAE7BE7230
Updated: 6-17-15
14
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their
duly authorized agents to be effective on the date of the Rancho Cucamonga’s signature below.
CITY OF RANCHO CUCAMONGA, a municipal
corporation
__________________________________________
City Manager
ATTEST:
_______________________________
City Clerk
APPROVED AS TO FORM:
________________________________
City Attorney
CUSTOMER:
_________________________________________
By:______________________________________
Name:
Title:
Address for Notice Representative:
Name:____________________________________
Street:____________________________________
City:_____________________________________
Telephone:_________________________________
Fax:______________________________________
Email:____________________________________
Docusign Envelope ID: 166C14C0-B7E8-4E8B-907C-86BAE7BE7230
Tom Paolucci
12430 4th St
Tom Paolucci
3232197716
Chedraui USA
Rancho Cucamonga
thomas.paolucci@smartandfinal.com
GVP Business Integration