07 Attachment 1ATTACHMENT 1
FIRST AMENDMENT OF CHARGING STATION AGREEMENT
THIS FIRST AMENDMENT OF CHARGING STATION AGREEMENT (this "Amendment") is made and
entered into as of January __, 2021 (the "Amendment Effective Date") by and between The Town of Los
Gatos, a local government ("Counterparty"), and Tesla, Inc., a Delaware corporation ("Tesla").
R E C I T A L S
1. Counterparty and Tesla are parties to that certain Charging Station Agreement dated
February 13, 2018 (the “Agreement”). Pursuant to the Agreement, Counterparty granted Tesla possession
and control of eighteen (18) parking spaces (the “Existing Premises”) at the Property for the installation
and operation of a Charging Station.
2. During the initial construction of the Charging Station, Tesla installed Infrastructure in eight
(8) parking spaces (“Expansion Premises”) adjacent to the Existing Premises.
3. Counterparty and Tesla now desire to expand the Existing Premises extend the Term and
amend the Agreement, as more particularly described herein.
T E R M S
NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants herein contained,
and good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows, as of the Amendment Effective Date:
1. Defined Terms. All capitalized terms used in this Amendment shall have the same meaning
given such terms in the Agreement, unless otherwise defined in this Amendment.
2. Amendment of the Agreement: As of the Amendment Effective Date:
2.1. Expansion of the Existing Premises. Tesla shall, at its sole cost, expand the Existing
Premises by installing Trade Fixtures at the Expansion Premises. As of the Amendment Effective Date,
all references in the Agreement to the “Premises” shall be deemed to include the Existing Premises
and the Expansion Premises consisting of a total of twenty-six (26) parking spaces, as depicted on
Exhibit A attached hereto. For the avoidance of doubt, the Premises shall consist of twenty-six (26)
Dedicated Stalls.
2.2. Term. The Possession Date for the work contemplated by this Amendment shall be
March 1st, 2021 Upon the opening of the Charging Station (including the Expansion Premises), Tesla
shall deliver written notice to Counterparty of the updated Commencement Date and the old
Commencement Date, which occurred on September 24th 2018 shall be of no further force or effect.
For the avoidance of doubt, the initial term of this Agreement shall begin on the updated
Commencement Date and shall expire five (5) years from the last day of the month in which the
updated Commencement Date occurs (the “Initial Term”). Tesla shall have one (1) option to extend
the term of this Agreement for an additional five (5) years (the “Renewal Term” and together with
the Initial Term, the “Term”), upon the same terms contained in the Agreement.
2.3. Confidentiality. Section 21 of the Agreement shall be deleted and replaced in its
entirety with the following:
“21. CONFIDENTIALITY AND PUBLICITY: Except as provided below, to the maximum
extent permitted by law, Tesla and Counterparty agree that the terms of this Agreement and
any non-public, confidential or proprietary information or documentation provided to one
Party by the other Party in connection with this Agreement are confidential information, and
the Parties agree not to disclose such confidential information to any person or entity during
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the Term and for a period of three (3) years thereafter.
Notwithstanding the foregoing, the Parties may disclose information (i) to their respective
Affiliates, subcontractors, lenders, employees, financial, legal and space planning
consultants, in each case that have a “need to know” such confidential information and have
committed to treat the information as confidential under terms no less protective than the
terms of this Section 21, and (ii) as required by law, including the California State Public
Records Act; provided that if Counterparty receives such a request, then Counterparty shall
promptly notify Tesla to allow Tesla to seek a protective order or other appropriate remedy
before the Agreement is released.
Neither Party will use the other Party’s name, trademark or logo without obtaining the other
Party’s prior written consent.”
2.4. Rent. The following shall be added to the Agreement as Section 31:
“31. RENT: Tesla will pay Counterparty Eight Thousand Dollars ($8,000.00) per month
(the “Rent”) for a portion of the Premises on the first business day of each calendar month
during the Term. If the Commencement Date is any day other than the first business day of
a month, the first rent payment shall include payment for the partial month in which the
Commencement Date occurs, prorated based on the number of days in such month. All rent
payments shall be made either electronically to an account specified by Counterparty to
Tesla in writing, or by check to the Counterparty address provided in Section 1. Tesla shall
have no obligation to pay any other charge to Counterparty. For the avoidance of doubt,
Tesla shall only pay Rent for the twenty (20) parking spaces occupied by the Level 3 DC fast
chargers and Counterparty agrees that the Rent shall not increase during the Term.”
2.5. Incentives. The following shall be added to the Agreement as Section 32:
“32. INCENTIVES: Counterparty agrees that Tesla shall own and receive the benefit of all
Incentives derived from the construction, ownership, use or operation of the Charging
Station, including, without limitation, from electricity delivered through, stored at or
generated by the Charging Station. Counterparty will cooperate with Tesla in obtaining all
Incentives, provided that Counterparty is not obligated to incur any out-of-pocket costs in
doing so unless reimbursed by Tesla. If any Incentives are paid directly to Counterparty,
Counterparty agrees to immediately pay such amounts over to Tesla. “Incentives” means (a)
electric vehicle charging or renewable energy credits or certificates, carbon credits and any
similar environmental or pollution allowances, credits or reporting rights, (b) rebates or other
payments based in whole or in part on the cost or size of equipment, (c) performance-based
incentives paid as periodic payments, (d) tax credits, grants or benefits, and (e) any other
attributes, commodities, revenue streams or payments, in each of (a) through (e) under any
present or future law, standard or program and whether paid by a utility, private entity or
any governmental, regulatory or administrative authority.”
2.6. Exhibit A. Exhibit A of the Agreement shall be deleted in its entirety and replaced by
the Exhibit A, attached hereto and incorporated herein.
2.7. Exhibit B. The bullet points on Exhibit B of the Agreement shall be deleted in its
entirety and replaced with the following:
• Ten (10) Chargers Cabinets
• Twenty (20) charge posts (Level 3 DC fast chargers)
• Two (2) Level 2 posts (Four (4) parking spaces in total) for all EV use (at no charge to
the users
• Switchgear and meter panel
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• Signage
3. Effect. Except as expressly modified by this Amendment, the Agreement shall remain
unchanged and in full force and effect. Except as otherwise set forth in this Amendment, nothing in this
Amendment shall be deemed to waive or modify any of the provisions of the Agreement.
4. Consent. The parties represent and warrant that there are no consents of third parties
(including any lenders) that are necessary for the execution and performance of this Amendment or that each
party has obtained all consents of third parties necessary for the execution and performance of this
Amendment.
5. Counterparts. This Amendment may be executed in several counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same Amendment. Any
signature to this Amendment that is transmitted electronically through email as a PDF or DocuSign will be
deemed an original signature, be binding upon the parties hereto and will have the same force and effect as
an original signature.
6. Brokers. Counterparty and Tesla each represents that they have not dealt with any broker
and each hereby agrees to indemnify and hold the other harmless from any claims for any broker related
commissions or fees.
7. Successors. The provisions of this Amendment shall bind and inure to the benefit of the heirs,
representatives, successors and assigns of the parties hereto.
[Signatures appear on following page]
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IN WITNESS WHEREOF, Counterparty and Tesla have executed this Amendment as of the
Amendment Effective Date.
COUNTERPARTY: TESLA:
Town of Los Gatos Tesla, Inc.
a local government a Delaware corporation
By: __________________________ By: _______________________________
Name: Laurel Prevetti
Name:
Maximilien de Zegher
Title: Town Manager
Title:
Senior Manager, Global Charging Infrastructure
By: __________________________
Name: Matt Morley
Title: Director of Parks and Public Works
By: __________________________
Name: Robert Schultz
Title: Town Attorney
Attest:
_____________________________
Shelley Neis, MMC, CPMC, Town Clerk
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EXHIBIT A
Premises Depiction and Address
Northeast Parking Garage Address –Northside Paring Lot - Town of Los Gatos, CA – 142 Los Gatos-Saratoga
Rd, Los Gatos, CA 95032
Premises Depiction:
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