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HomeMy WebLinkAboutResolution 2008-215 N.C.S. 11/17/2008Resolution No. 2008-215 N.C.S. of the City of Petaluma, California AUTHORIZING CITY MANAGER TO EXECUTE NON-DISCLOSURE AGREEMENT WITH NISSAN MOTOR COMPANY, LTD. IN SUBSTANTIAL CONFORMITY WITH ATTACHED EXHIBIT A WHEREAS, Nissan Motor Company, Ltd. has proposed establishing a working team made up of City and County officials in Sonoma County and Nissan to explore a plan to implement an electric vehicle ("E-V") charging network in Sonoma County, formulate incentive packages and educate the public about the use of electric vehicles; and, WHEREAS, expansion of E-V use is one of the best presently-identified solutions. to reducing greenhouse gas emissions; and, WHEREAS, an economically feasible E-V program could greatly contribute to greenhouse gas reduction the City, further the City's adopted policy goals and contribute to the City's Climate Change Action Program; and, WHEREAS, the proposed MOU will allow the City to participate in discussions on possible methods of cooperation to introduce and expand use of E-Vs in and around Sonoma County from a business, technical, legal and tax standpoint. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby authorizes the City Manager to execute aNon-Disclosure Agreement with Nissan Motor Company, Ltd. in Substantial Conformity with the Attached Exhibit A. Under the power and authority conferred upon this Council by the Charter ofsaid City. REFERENCE: 1 hereby certify the foregoing Resolution was inU~oduced and adopted by the :'"Appr~~ed as~to Council of the City of Petaluma at a Regular meeting on the 17`~ day of November, ~ ~ r 2008, by the following vote: ~, AYES: Barrett, Freitas, Nau, O'Brien, Vice Mayor Babbitt, Mayor Torliatt NOES: None ABSENT: Harris ABSTAIN: None ATTEST: City Clerk Citv A Resolution No. 2003-215 N.C.S. Page 1 Exhibit A Memorandum of Understanding This Memorandum of Understanding ("MOU") is executed this day of 2008, between NISSAN MOTOR CO., LTD., a company organized under the laws of Japan and having its registered office at 2 Takara- Cho, Kanagawa-Ku, Yokohama-Shi, Kanagawa 220-8623, Japan ("NML"), for itself and its affiliates, NISSAN NORTH AMERICA, INC., a company organized under the laws of California and having its headquarters at One Nissan Way, Franklin, TN 37068, ("NNA"), and the City of PETALUMA, a municipal corporation and charter city of the state of California ("Petaluma"), having a principal place of business in Petaluma, California. NML, NNA, and Petaluma are hereinafter individually referred to as a "Party" and collectively as the "Parties." NML and NNA are hereinafter collectively referred to as "Nissan". PREAMBLE WHEREAS, Nissan is a leading car manufacturer which is engaged worldwide in the business of designing, developing, manufacturing, assembling, marketing and selling automotive vehicles, as welt as their related parts and components, under the "Nissan" and "Infiniti" trademarks; WHEREAS, Nissan and Petaluma believe that introduction and expansion of electric vehicles ("EVs") is one of the best solutions to reduce CO2 emissions; WHEREAS, Nissan desires to be a leader in development and sales of EVs around the world, and Petaluma is interested in introduction and expansion of EVs therein; WHEREAS, Renault s.a.s. at 13/15 Quai Alphonse Le Gallo, 92513 Boulogne Billancourt Cedex, France ("Renault") is also interested in the introduction and expansion of EVs and is involved in a strategic alliance with Nissan; WHEREAS, Nissan and Petaluma wish to start discussion on possible cooperation with respect to introduction and expansion of EVs in and around Petaluma from a business, technical, legal and tax standpoint (such cooperation. will be referred to as the "Zero Emission Mobility Program" or "Program"). NOW THEREFORE, the Parties wish to record their understanding as follows: PURPOSE 1.1 The purpose of this MOU is to set forth the general principles that shall govern the discussions regarding the Program and to describe on a preliminary basis the possible program or arrangement which. the Parties contemplate in relation thereto. 1.2 The Parties acknowledge that this MOU is anon-binding expression of the Parties' understandings which is intended to facilitate the preparation and negotiation of the appropriate legally binding agreements (the "Definitive Agreements") which will embody the final understanding of the Parties regarding the Program. The Parties therefore agree that they shall have no binding obligation with respect to any of the cooperation contemplated in this MOU. Notwithstanding the preceding sentence, the Parties agree that the provisions of Articles 7 (Confidentiality), 8 (Costs and Expenses); and 9 (Miscellaneous) shall be legally binding on the Parties. 1.3 The Parties agree that they shall establish a working party made up of officials of Petaluma and representatives of Nissan. This working party shall propose a Definitive Agreement within one hundred and twenty (120) days of the date of this MOU. Resolution No. 2008-215-N.C.S. Page 2 1.4 Neither Party shall be responsible to the other Party for any kind of direct, indirect, special or consequential damages which may be incurred by it as the result of (i) breach of any of the non-binding provisions of this MOU, (ii) failure to reach agreement in any of the Definitive Agreements and (iii) termination or expiration of this MOU for any reason whatsoever. 2. PROPOSED Zero Emission Mobility Program At the present stage of their discussions, the Parties are considering the arrangement set out below for implementation of the Program. The description set out below is merely indicative and the Parties are free to study, discuss and decide on any other arrangement which more effectively reflects their business intents and objectives. 2.1 Nissan's Role Under the Program Nissan intends to: (a) Make all efforts that Nissan deems commercially reasonable to supply EVs to Petaluma. (b) Provide Petaluma with information, ideas or knowledge relating to; a battery charging network, incentives and public education activities about EVs. (c) Establish working teams comprising governments, government agencies, state and local regulatory institutions, non-governmental organizations and companies whose purpose will be to: (1) propose a comprehensive and viable plan for the implementation and maintenance of a battery charging network in Petaluma, (2) formulate incentive packages that government and regulatory institutions could offer EV infrastructure providers and EV users and, (3) establish a plan that will support public education activities designed to promote the use of EVs. 2.2 Petaluma's Role. Under the Program, Petaluma intends to: (a) Participate in the working teams referred to above,. (b) Consider financial and non-financial incentives for: (1) EV lease and/or purchase, (2) EV use (i.e., tax exemption, discount on parking fee and highway toll, and exemption from certain traffic rules), and (3) Establishment, operation and maintenance of an EV charging network. (c) Provide Nissan with information, ideas or knowledge relating to battery charging network, incentives and public education activities for EVs. (d) Recommend and organize participation of local organizations (including companies) in the Program in and around Petaluma, and specifically recommend and introduce to Nissan third party organizations to develop and implement EV charging infrastructure. (e) Consider regulatory program changes that would support introduction and use of EVs. Resolution No. 2008-21 ~ N.C.S. Page 3 (f) Consider the lease and/or purchase of a minimum of EVs from Nissan by the end of calendar year 2010. 2.3 Participation of Renault The Parties acknowledge and agree that Renault may be invited to be a party to this MOU. 3. NO OBLIGATION TO CONSUMMATE. The Parties acknowledge (i) that the determination and implementation of the final arrangement for the Program contemplated herein shall be based on each Party's business, technical, legal and tax concerns and (ii) that the execution of this MOU does not constitute any obligation or commitment by either Party to enter into any Definitive Agreements. 4. NON-EXCLUSIVITY No Party has any exclusivity right over the other Party, and either Party is free to discuss or implement a similar program with any third parties or government entities. 5. APPROVALS The Parties agree that the implementation of the Program contemplated by this MOU shall be subject to the receipt of all applicable governmental, regulatory, corporate and other approvals that each Party may require as per the law and regulations of the relevant federal, state, and local. governments and each party's internal regulations. The Parties shall cooperate with each other in securing such approvals. TERM; TERMINATION 6.1 This MOU shall become effective on the date hereof and shall remain in full force and effect until the earlier of (i) the execution of all the Definitive Agreements as per Article 1.2, or (ii) March 31, 2009. Any Party may terminate this MOU, for any reason, by giving the other Parties 30 days prior written notice. The term of this MOU may be extended by the .Parties in writing, and unless such extension is executed before the period specified herein expires, this MOU shall be terminated. 6.2 Articles 7, 8, and 9 of this MOU shall survive any termination of this MOU. 7. CONFIDENTIALITY 7.1 During the term of this MOU and a period of five (5) years thereafter, all Confidential Writings (as defined below) of a Party shall be held in confidence by the other Party receiving the Confidential Writing to the same extent and in at least the same manner as the receiving Party protects its own confidential or proprietary writings. The party providing such Confidential Writing is, for the purposes of this Section 7.1 referred to as the "Disclosing Party," and the party receiving such information is referred to as the "Recipient." "Confidential Writing" means nonpublic information that the Disclosing Party identifies in writing as "confidential" or "trade secret." No Party shall disclose, publish, release, transfer or otherwise make available Confidential Writings in any form to any third party other than its Affiliates without a prior written consent by Disclosing Party.. "Affiliate" means with respect to a party, any entity that, directly or indirectly, is controlled by, controls or is under common control with a party. "Control" for this purpose shall mean the .possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of a majority of the voting securities, by contract or otherwise. For purposes of this Agreement, the term "Affiliate" when applied to Nissan shall also include the following: Renault-Nissan B.V.; Renault s.a.s; Nissan-Infiniti LT; and their respective Affiliates. 7.2 Notwithstanding the preceding paragraph above, the Confidential Writing shall not include information that (i) is independently developed or known by the receiving Party, as demonstrated by the receiving Party, (ii) becomes publicly known (other than through the fault of the receiving Party), (.iii) is disclosed Resolution No. 2008-215 N.C.S. Page 4 by the disclosing Party to a third party free of any obligation of confidentiality, or (iv) is rightfully received from a third party free of any obligation of confidentiality. 7.3 Notwithstanding anything to the contrary in Section 7, the Parties hereby acknowledge they are informed and aware that Petaluma is a public entity, subject to various laws regarding open government, including, by way of example and without limitation, requiring that Petaluma place this MOU for consideration upori the agenda of its governing board, and, further, requiring that any proceeds as well as any expenditures by Petaluma related to this MOU may, from time to time, appear in Petaluma's agenda items and budgets. Therefore, in any such cases, Petaluma is not required to notify any other Party prior to such disclosure and no Party shall prevent such disclosure(s). However, in any such case Petaluma will use its best efforts to notify Nissan prior to any such disclosure. 7.4 Disclosure under the California Public Records Act (PRA). Promptly after Petaluma's receipt of a request for disclosure of Confidential Writings pursuant to a PRA or discovery request or subpoena, Petaluma shall give notice to Nissan of such request pursuant to Section 9 and of the disclosure deadline required by the specific request. Except for Confidential Writings that fhe Petaluma, in its sole discretion, determines are exempt from disclosure Petaluma will disclose such Confidential Writings to the requester, unless prior to disclosure deadline Petaluma is served with. notice of an order from a court of competent jurisdiction enjoining or otherwise limiting disclosure of the Confidential Writings. As to any Confidential Writings, Petaluma shall give notice to Nissan (under Section 9 of this Agreement) of any request for the disclosure of such Confidential Writings, whether or not Petaluma determines the same to be exempt from disclosure under the PRA. Nissan shall have five (5) days from the date it receives such notice to in turn notify Petaluma in writing that it objects to the disclosure of any specific Confidential Writings. Any legal action to enjoin or limit disclosure shall be in Nissan's sole discretion and at Nissan's sole cost and expense. If Nissan disputes the release of any Confidential Writings and a court of competent jurisdiction (including appellate courts) rules against Nissan and orders release of the Confidential Writings, then Nissan agrees to defend, indemnify and hold harmless Petaluma for all costs (including, without limitation, all attorneys' fees, whether in-house or outside counsel) incurred by Petaluma or Nissan in any legal action related to disclosure of Confidential Writings. If Nissan disputes the release of any Confidential. Writings and a court of competent jurisdiction (including appellate courts) rules in favor of Nissan, then Nissan will hold Petaluma harmless for all costs (including, without limitation, all attorneys' fees, whether in-house or outside counsel) incurred by Nissan. 7.5 All Confidential Writings shall remain the sole and exclusive property of the disclosing Party, and may be used by receiving Party only in connection with the EV Connection Program. 7.6 Unless otherwise agreed upon between the Parties, upon termination or expiration of this MOU, each Party shall promptly return any Confidential Writings received from the other Party hereunder. 7.7 This MOU shall supersede any prior non-disclosure agreement(s) entered into by the Parties with respect to the subject matter of this MOU. 8. COSTS AND EXPENSES From the date of signature of this MOU and until all of the Definitive Agreements are executed and/or this MOU is terminated, each Party shall be responsible for and bear its own costs and expenses in relation to the Program (including fees of counsel and other advisors), such as but not limited to those costs and expenses that may be sustained in connection with the preparation of this MOU, the Definitive Agreements and the discussion for the Program, generally. 9. MISCELLANEOUS 9.1 Publicity. Notwithstanding the requirements under Section 7.3, no Party shall make any press release regarding fhe existence, content, performance or any part of this MOU without the prior written notification and consent of the other Party. Such consent may riot be unreasonably withheld. 9.2 Amendment; Waiver. A waiver, amendment or modification of any term or condition of this MOU must be in writing and signed by the party against whom that waiver, amendment or modification is Resolution No. 2008-215 N.C.S. Nage 5 sought to be enforced. No waiver by any party of any breach hereunder shall be deemed a waiver of any other breach or any subsequent breach. 9.3 Governing Law. This MOU shall be governed by and construed in accordance with the laws of the State of California. Any action to enforce the terms of this Agreement or for the breach thereof shall be brought and tried in state or federal court located in California. 9.4 Relationship. Nothing contained herein shall be deemed to create an agency, joint venture or franchise relation between the Parties. 9.5 Notices. Notices required in the course of the performance of this MOU shall be served as follows: If to Nissan: Nissan North America, Inc. Attention: Jack Sayed Fax number: 615-725-8584. E-mail: jack.sayed@nissan-usa.com If to Petaluma: City of Petaluma Attention: John C. Brown, City Manager Fax number: (707) 778-4419 E-mail: citymgr@ci.petaluma.ca.us IN WITNESS WHEREOF, the Parties hereto have through their respective duly authorized representatives, executed this MOU in two counterparts on the day and year first hereinabove written: NISSAN MOTOR CO., LTD. NISSAN NORTH AMERICA, INC. Name: Carlos Tavares Name: Dominique Thormann Title: Executive Vice President Title: Senior Vice President City of PETALUMA a municipal corporation and charter city of the state of California Name: John C. Brown Title: City Manager Resolution No. 2008-215 N.C.S. Page 6