HomeMy WebLinkAboutChargePoint, Inc. 2023-09-22CHARGEPOINT CONFIDENTIAL
MEMORANDUM OF UNDERSTANDING
Representatives of ChargePoint, Inc. ("Company" or “ChargePoint”) and ____________________
Site Host") have been discussing a proposed project for the installation of Company’s electric
vehicle (“EV”) charging stations (“Charging Stations”) at Site Host’s property or properties
identified in Exhibit A (“Site(s)”) (“Charging Station Project”). The parties understand that this
Memorandum of Understanding (“MOU”) is intended only to summarize the current business
understanding of the parties with respect to the principal terms of the proposed Charging Station
Project. This MOU is intended solely to facilitate negotiation and preparation of an agreement
which embodies, or agreements which embody, the final understanding between the parties (each,
a “Definitive Agreement”).
This MOU is effective as of _______________ (“Effective Date”) and sets forth certain non-
binding business terms and certain binding terms between Site Host and Company (hereinafter,
each a “Party” or together, “the Parties”) with regards to the Charging Station Project.
A.NON-BINDING BUSINESS TERMS.
The Parties understand that this MOU is intended only to summarize the current business
understanding of the Parties with respect to the proposed Charging Station Project and to facilitate
their further discussions regarding certain business objectives of the Charging Station Project, as
more fully described in Exhibit A, which are non-binding on the Parties. The business terms and
objectives set forth in Exhibit A shall be used for discussion purposes only and shall not be deemed
to create any rights or obligations for or on behalf of any Party.
The Parties hereby acknowledge and agree that either Party may unilaterally terminate all
negotiations for the Charging Station Project pursuant to this MOU at any time without any
obligation or liability by giving the other Party written notice. The Parties agree to proceed at their
own risk and expense regarding the subject matter of this MOU until the execution of a Definitive
Agreement or termination of negotiations, whichever is earlier. This MOU is non-exclusive and
neither Party shall be precluded from entering into similar transactions with any third parties.
Each Party acknowledges that the other Party has not given it, nor has it relied on, any
representations or assurance of future revenues, sales opportunities or profits, or compliance with
regulatory requirements, arising from or in connection with the subject matter of this MOU. The
Parties acknowledge that neither Party is justified in acting in reliance upon any promises or
representations of present intention purported to be contained in this MOU. Nothing in this MOU
will exclude any liability which one Party would otherwise have to the other Party in respect of
any statements made fraudulently.
The Parties may add additional Site(s) in Exhibit A, or otherwise amend this MOU, by mutual
written agreement.
B.BINDING TERMS
COU No. 2324-092
City of Ukiah
September 22, 2023
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The Parties hereby acknowledge and agree that the following subsections under this Section B
Binding Terms) shall be binding and shall create legal rights and obligations on the Parties. This
MOU may require Ukiah City Council approval which can only occur in an open session of the
City Council.
B.1. Confidentiality
There shall be no disclosure of or reference to any part of this MOU at any time during the term
of this MOU or after expiration or termination of this MOU without the prior written approval of
the other Party. This MOU and its contents and any other proprietary or confidential information
in connection with the subject matter of this MOU provided to either Party prior to the execution
of this MOU or during the term of this MOU shall be treated as confidential in accordance with
the terms set forth in Exhibit B attached hereto.
B.2. Scope
The scope of this MOU does not cover any development work, testing, licensing, distribution,
support, sales, or maintenance. Should the Parties decide to pursue any such matter that is outside
the scope of this MOU, the Parties shall enter into a development, license, distribution, or other
appropriate written agreement(s) as applicable.
B.3. Independent Contractors.
Each of the Parties is an independent contractor. Nothing contained herein will in any way
constitute any association, partnership, or joint venture between the Parties. Neither Party will
have the power to bind the other Party or incur obligations on the other Party’s behalf without the
other Party’s prior written consent.
B.4. Publicity
The Parties hereby agree that no press release or other public announcements regarding this MOU
or any agreements contemplated thereby, except as noted below, shall be made by a Party without
prior review and written agreement signed by a duly authorized representative of the other Party.
The exception is that the Site address(es) may be published by the California Energy Commission
for the purpose of soliciting public comment on localized health impact of the Charging Station
Project and approving the Site(s) to participate in a California Energy Commission grant program.
B.5. Term and Termination
The Parties agree that this MOU shall be effective as of the Effective Date and shall continue in
effect for twelve (12) months thereafter unless earlier terminated by written notice from one Party
to the other of termination of this MOU. Section B (including all subsections) shall survive the
expiration or termination of this MOU.
B.6. Limitation of Liability
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EXCEPT WITH RESPECT TO THE RIGHTS AND OBLIGATIONS OF THE PARTIES
BASED ON THEIR RESPECTIVE INTELLECTUAL PROPERTY RIGHTS AND TO THEIR
OBLIGATIONS UNDER THE NDA, UNDER NO CIRCUMSTANCES WILL EITHER PARTY
BE LIABLE TO THE OTHER UNDER ANY CONTRACT, STRICT LIABILITY,
NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DAMAGES OR
OTHER RELIEF WHATSOEVER.
B.7 Governing Law; Venue
This MOU shall be controlled by and construed under the laws of the State of California, without
reference to its conflicts of laws provisions, and the state courts located in Mendocino County,
California shall have exclusive jurisdiction over any claim arising under this MOU.
Notwithstanding the foregoing, either Party may seek interim injunctive relief in any court of
appropriate jurisdiction with respect to any alleged breach of such Party's intellectual property or
proprietary rights
IN WITNESS WHEREOF, the Parties have executed this MOU effective as of the Effective Date
by their duly authorized representatives.
ACCEPTED AND AGREED:
COMPANY
CHARGEPOINT, INC.
By: _______ _
Name: ----------
Title:
Date: ----------
Address for Notices:
254 E. Hacienda Ave.
Campbell, CA 95008
SITE HOST
CITY OF UKIAH
Name: Sage Sangiacomo
Title: City Manager
Date: September 21, 2023
300 Seminary A venue
Ukiah, CA 95482 _____
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Henrik Gerdes
Chief Accounting Officer, ChargePoint Inc.
10/19/2023
CHARGEPOINT CONFIDENTIAL
EXHIBIT A
NON-BINDING BUSINESS TERMS
THIS PROPOSED BUSINESS TERM SHEET DOES NOT CONSTITUTE NOR CREATE,
AND SHALL NOT BE DEEMED TO CONSTITUTE NOR CREATE, ANY LEGALLY
BINDING OR ENFORCEABLE OBLIGATION ON THE PART OF EITHER PARTY. EACH
PARTY AGREES THAT IT SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND IN
THE EVENT THAT THE OTHER PARTY DETERMINES, IN ITS SOLE DISCRETION, NOT
TO PURSUE THE TRANSACTION PROPOSED IN THIS NON-BINDING BUSINESS TERM
SHEET.
1.Scope
For the Charging Station Project, ChargePoint has been awarded a grant by the California Energy
Commission (CEC) to install and manage Charging Stations in rural California communities
("CEC Grant").
For the Charging Station Project, the Site Host to commit to the following:
•Provide adequate space to support the installation and operation of Charging Stations,
including room for cabling, distribution, electrical equipment, signage, striping, and
potential accessibility improvements
•Allow ChargePoint to hire/manage a licensed contractor to design the installation and
install Charging Stations at selected property before the grant activation deadline
( currently planned for March 2026)
•Allow utility upgrades on site, including individual metering of the Charging Stations
•Own, operate and keep Charging Stations publicly available, accessible, clear of snow,
and well-lit 24/7 for at least 5 years after activation
•Allow access for maintenance of Charging Stations
•If requested by ChargePoint, allow up to one publicity event at the property after
activation
•Payment for the following:
o Capital costs of installation, hardware, software and warranty not covered by the
CEC Grant
o All ongoing operational expenses not covered by warranty (e.g., electricity bills)
•Set reasonable pricing policies for use of the Charging Stations
•Grant ChargePoint permission to share data about the Charging Stations with CEC and
the public
•Follow other CEC grant standard terms and conditions, provided as "Exhibit C" below
For the Charging Station Project, ChargePoint to commit to the following:
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Grant Administration services:
Negotiate and execute the grant agreement with the CEC
Lead communications with CEC
Ensure scope of work is completed on time in compliance with grant terms and
conditions
Produce and send deliverables to CEC
Collect data and comply with required reporting
Document costs and submit reimbursement requests to CEC
Participate in audits by CEC as required
Design and Construction Management services:
Select and hire design and installation subcontractor(s) via competitive bid and in
accordance with grant requirements
Manage and pay design and installation subcontractor(s)
Provide oversight of design, permitting, utility coordination, EVSE installation,
related civil work, and EVSE commissioning and activation.
Ensure compliance with CEQA and all relevant electrical/building codes,
including accessibility
Operation and Maintenance services:
Upon Site Host’s purchase of ChargePoint Assure (“ Assure”), ChargePoint will
perform maintenance of the stations subject to the Assure Terms and Conditions; a
current copy of may be accessed at https://www.chargepoint.com/legal/assure
2. Site(s):
Hub Location: APNs 002-232-09 and/or 002-232-10
Spoke #1: 506 Park Blvd, Ukiah, CA
Spoke #2: 1403 S. State Street, Ukiah, CA
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EXHIBIT B
CONFIDENTIALITY TERMS
The nondisclosure terms set forth in this Exhibit B provides for the exchange of Confidential
Information (defined below) relating to the Memorandum of Understanding.
1. Confidential Information. “Confidential Information” means confidential or proprietary information disclosed or made available by
one Party to the other, including but not limited to, business plans, financial reports, financial data, employee data, custo mer lists, designs,
specifications, drawings, diagrams, computer code and programs, trade secrets, discoveries, ideas, concepts, know -how, techniques, and other
technical and business information. Confidential Information may be that of the disclosing Par ty or of third parties to whom the disclosing Party has
an obligation to treat the disclosed information as confidential. Confidential Information also includes copies, notes, abst racts, and other tangible
embodiments made by the receiving Party that are based on or contain any of such information.
2. Identification of Confidential Information. Information will be considered to be Confidential Information and protected under this
Exhibit B if it is identified as “confidential” or “proprietary” at the time of disclosure or if the information should reasonably be considered to be
confidential or proprietary due to its nature or the context of its disclosure.
3. Protection of Confidential Information. Each Party acknowledges that the other Party claims that its Confidential Information is a
valuable and unique asset and agrees to the following:
3.1 The receiving Party: (i) will not disclose the Confidential Information to any third Party; (ii) will not disclose the Confidential
Information to its employees or agents unless the employees or agents have a need to know the Confidential Information; (iii) will use the Confidential
Information only for the Charging Station Project(s) in the MOU and will not use it for its own or for any third Party’s benefit; and (iv) will not create
any type of derivative works based on the Confidential Information, copy, frame, replicate or mi rror any part or content of the Confidential
Information, or reverse engineer any of the Confidential Information or products received or disclosed under the MOU. The receiving Party may not
access or use the Confidential Information for any improper purpo se whatsoever, including, without limitation, in order to (A) build a competitive
product or service, or (B) copy any features, functions, interface, graphics or “look and feel” of the disclosing Party’s pro duct or Confidential
Information. The receiving Party shall promptly notify the disclosing Party of any unauthorized use, disclosure, or suspected unauthorized use or
disclosure, of the disclosing Party’s Confidential Information of which the receiving Party becomes aware. The receiving Part y shall be responsible
to the disclosing Party for any disclosure of Confidential Information by any employee or agent of the receiving Party.
3.2 The receiving Party will use the same degree of care to protect the Confidential Information from unauthorized use or disclos ure as
it would use to protect its own information of a similar nature, but in no event with less than reasonable care.
3.3 The receiving Party’s obligations under this Exhibit B with respect to particular information do not apply to the extent that: (i) the
disclosing Party authorizes the receiving Party in writing to disclose such information; (ii) the receiving Party knows such information at the time of
disclosure by the disclosing Party, free of any obligation to keep it confidential, as evidenced by written records; (iii) such information is or becomes
generally known in the relevant industry without fault of the receiving Party; (iv) the receiving Party independently develops such information without
access to or use of the Confidential Information, as e videnced by written records; or (v) the receiving Party rightfully obtains such information from
a third party who has the right to disclose it without violation of any confidentiality obligations. However, even if certain informat ion is already
known, the disclosing Party’s use of it (including the fact of the Party’s use and the manner and results of use) may not be and thus wo uld be
considered to be Confidential Information.
3.4 If the receiving Party is subject to judicial or governmental proceedings requiring disclosure of particular Confidential Information,
then, prior to disclosing any such Confidential Information, the receiving Party will provide the disclosing Party with reaso nable prior notice and will
obtain or provide the disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Confidential Information. The
City is subject to the California Public Records Act (the “Act”; Cal Gov. Code §7920.000 et seq.) The City will assert any applicable exemption from
public disclosure under the Act, if it receives a request for confidential information; provided, however, that if the reques tor files an action in court
under the Act to compel disclosure, the City will defend the action only if the Party furnishing the confidential information agrees to pay the City’s
costs of litigation, including attorney’s fees and other litigation expenses and pays any award of attorney’s fees awarded by the Court to the party
seeking to compel disclosure.
4. Return of Confidential Information. All Confidential Information of the disclosing Party remains the property of that Party and will be
returned to it or destroyed at its request or upon the termination or other expiration of the MOU. Within 30 days of receiving such a request from the
disclosing Party, the receiving Party will comply with the request and provide a written certification, signed by an officer, of its compliance.
Notwithstanding the foregoing, Parties are not required to delete copies that are maintained pursuant to automatic back-up and archiving systems
provided that confidential obligations shall remain on those archived copies.
5. No License or Warranty. No license under any patents, copyrights, mask work rights, trademarks or other proprietary rights is granted
by the disclosure of or access to Confidential Information under this Exhibit B. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”,
WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO A WARRANTY THAT IT IS ACCURATE
OR COMPLETE OR A WARRANTY AGAINST INFRINGEMENT.
6. Term & Termination. All provisions of this Exhibit B relating to Confidential Information disclosed pursuant to the MOU prior to
termination or expiration of the MOU will survive for five (5) years after termination or expiration of the MOU. Notwithstanding the foregoing, for
Confidential Information that constitutes a trade secret, the provisions of this Exhibit B will continue for so long as that information remains a trade
secret under applicable law.
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EXHIBIT C
CALIFORNIA ENERGY COMMISSION (CEC) PROGRAM TERMS AND CONDITIONS
Site Host to commit to at all times comply with the Program Terms, as updated from time to time by the
CEC. A current copy of the Program Terms may be found at this webpage under Solicitation Files,
Attachment 10: https://www.energy.ca.gov/solicitations/2021-12/gfo-21-604-clean-transportation-
program-rural-electric-vehicle-rev-charging. Any terms used but not defined in this Exhibit C or the
Agreement shall have the meanings set forth in the Program Terms.
Notwithstanding anything to the contrary in the Program Terms, the following terms shall apply to this
Agreement:
1. Equipment. Equipment is defined as having a useful life of at least one year, having an acquisition
unit cost of at least $5,000, and purchased with Energy Commission funds. Equipment means any products,
objects, machinery, apparatus, implements or tools purchased, used or constructed within the Project,
including those products, objects, machinery, apparatus, implements or tools from which over thirty percent
30%) of the equipment is composed of materials purchased for the Project. For purposes of determi ning
depreciated value of equipment used in the Agreement, the Project shall terminate at the end of the normal
useful life of the equipment purchased, funded and/or developed with Energy Commission funds. The
Energy Commission may determine the normal useful life of such equipment.
a) Title to Equipment. Title to equipment acquired wholly or in part with grant funds shall vest in the
Recipient, unless Recipient requests and the CAM in writing approves vesting equipment with another
entity.
b) Use and Disposition of Equipment. The equipment title holder shall use the equipment in the project
or program for which it was acquired as long as needed, whether or not the project or program continues to
be supported by grant funds, and the equipment title holder shall not encumber the property without CAM
written approval. When no longer needed for the original project or program, the equipment title holder
shall contact the CAM for disposition instructions. The Recipient and any equipment title holder shall flow
down this Section 1 to all subsequent equipment title holders.
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