View the PDF version Google Docs PDF Viewer
CITY OF MUSKEGON
CITY COMMISSION MEETING
FEBRUARY 22, 2011
CITY COMMISSION CHAMBERS @ 5:30 P.M.
AGENDA
CALL TO ORDER:
PRAYER:
PLEDGE OF ALLEGIANCE:
ROLL CALL:
HONORS AND AWARDS:
INTRODUCTIONS/PRESENTATION:
CONSENT AGENDA:
A. Approval of Minutes. CITY CLERK
B. Amendment to the Zoning Ordinance – Outdoor Lighting. PLANNING &
ECONOMIC DEVELOPMENT
C. Rezoning Request for the Property Located at 1221 W. Laketon Avenue.
PLANNING & ECONOMIC DEVELOPMENT
D. Easement from Brunswick to Construct Sidewalks along the North Side
of Laketon Avenue on Parts of Blocks 438, 458 and 459. ENGINEERING
PUBLIC HEARINGS:
COMMUNICATIONS:
CITY MANAGER’S REPORT:
UNFINISHED BUSINESS:
NEW BUSINESS:
A. ChargePoint Station – Muskegon: Master Services Subscription
Agreement. PLANNING & ECONOMIC DEVELOPMENT
B. Shoreline Spectacular Request – Labor Day Weekend 2011. PLANNING
& ECONOMIC DEVELOPMENT
C. Breakwater Festival Request – Labor Day Weekend 2011. PLANNING &
ECONOMIC DEVELOPMENT
ANY OTHER BUSINESS:
PUBLIC PARTICIPATION:
Reminder: Individuals who would like to address the City Commission shall do the following:
Fill out a request to speak form attached to the agenda or located in the back of the room.
Submit the form to the City Clerk.
Be recognized by the Chair.
Step forward to the microphone.
State name and address.
Limit of 3 minutes to address the Commission.
(Speaker representing a group may be allowed 10 minutes if previously registered with City Clerk.)
CLOSED SESSION:
ADJOURNMENT:
ADA POLICY: The City of Muskegon will provide necessary auxiliary aids and services to individuals who
want to attend the meeting upon twenty four hour notice to the City of Muskegon. Please contact Ann
Marie Becker, City Clerk, 933 Terrace Street, Muskegon, MI 49440 or by calling (231) 724-6705 or TDD:
(231) 724-4172.
Date: February 22, 2011
To: Honorable Mayor and City Commissioners
From: Ann Marie Becker, City Clerk
RE: Approval of Minutes
SUMMARY OF REQUEST: To approve minutes of the February 7th
Commission Worksession Meeting and the February 8th City
Commission Meeting.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: Approval of the minutes.
City of Muskegon
City Commission Worksession
February 7, 2011
City Commission Chambers
5:30 PM
MINUTES
2011-07
Present: Commissioners Gawron, Shepherd, Spataro, Wierengo, Wisneski, and Carter.
Absent: Mayor Warmington (excused).
City-GVSU Joint Permit-Offshore Buoy Project.
Arn Boezaart, Director GVSU/MAREC, explained that in order to place a research buoy in Lake
Michigan, GVSU/MAREC has requested that the City of Muskegon officially apply for a permit
with the U.S. Army Corps of Engineers and the Michigan Department of Environmental Quality
Water Programs. GVSU/MAREC is unable to apply directly since the applicant must be a
riparian owner on the Lake Michigan waterfront. However, all application costs and staff time
needed to submit the permit will be absorbed by GVSU/MAREC. Since the City of Muskegon
and MAREC have formed a successful partnership, it is requested that this request be approved.
Motion by Commissioner Shepherd, second by Commissioner Wierengo to accept the
recommendation from staff to participate with GVSU/MAREC in submitting an
application to the U.S. Army Corps of Engineers and the MDEQ Water Programs to allow
for an offshore buoy to conduct wind assessment research on Lake Michigan.
ROLL VOTE: Ayes: Shepherd, Spataro, Wierengo, Wisneski, Carter, and Gawron
Nays: None
MOTION PASSES
Discussion on Plowing of Alleys.
There are 300 miles of streets in the City. We attempt to accommodate all of our citizen’s. The
alleys are plowed by request and those requests have increased. We do accommodate the
property owners by allowing parking on the terrace during the winter snow months. It was asked
if the 2-6 a.m. parking ban is necessary. In reply it was stated that it gives the plow trucks an
advantage by having no cars on the street and also the cars will not have snow plowed around
them and possible damage done to the vehicles.
Adjournment
Motion by Commissioner Carter, seconded by Commissioner Shepherd to adjourn at 5:58
p.m.
MOTION PASSES
____________________________________
Ann Marie Becker, MMC
City Clerk
CITY OF MUSKEGON
CITY COMMISSION MEETING
FEBRUARY 8, 2011
CITY COMMISSION CHAMBERS @ 5:30 P.M.
MINUTES
The Regular Commission Meeting of the City of Muskegon was held at City
Hall, 933 Terrace Street, Muskegon, MI at 5:30 p.m., Tuesday, February 8, 2011.
Vice Mayor Gawron opened the meeting with a prayer from Pastor Josh
Dear from the Lakeside Baptist Church after which the Commission and public
recited the Pledge of Allegiance to the Flag.
ROLL CALL FOR THE REGULAR COMMISSION MEETING:
Present: Vice Mayor Stephen Gawron, Commissioners Clara Shepherd,
Lawrence Spataro, Sue Wierengo, Steve Wisneski, and Chris Carter, City
Manager Bryon Mazade, City Attorney John Schrier, and City Clerk Ann Marie
Becker.
Absent: Mayor Stephen Warmington (excused)
2011-08 CONSENT AGENDA:
A. Approval of Minutes. CITY CLERK
SUMMARY OF REQUEST: To approve the minutes of the Commission Goal Setting
Session that was held on Friday, January 21, 2011, and the City Commission
Meeting that was held on Tuesday, January 25, 2011.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: Approval of the minutes.
B. Purchase of Police Patrol Bicycles. PUPLIC SAFETY
SUMMARY OF REQUEST: The Director of Public Safety is requesting permission to
purchase 12 new police patrol bicycles. These bicycles will replace 12 Trek
Police Bicycles that are currently in use and were purchased in the late 90’s.
Bids were solicited from the following businesses:
• The Bicycle Rack – 1790 Roberts, Muskegon
• Breakaway Bicycle – 4741 Harvey, Muskegon
• Village Bike & Fitness – 450 Baldwin, Jenison
I am recommending the purchase of the Trek Police Bike from Breakaway
Bicycle. Breakaway is the only business who submitted a bid for the Trek. While
this is the most expensive model of those bid ($1,000 per bicycle), this bicycle is
built specifically for the rigors of police service. This is evidenced by the length of
time that the current bicycles have been in service. This bicycle is complete
and no “extras” need to be purchased.
FINANCIAL IMPACT: Total cost for this purchase will be approximately $12,000.
This purchase will be funded by the Criminal Forfeiture Account.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: Staff recommends approval of the request.
C. Approval of the Fair Housing Resolution. COMMUNITY &
NEIGHBORHOOD SERVICES
SUMMARY OF REQUEST: The Community and Neighborhood Services
Department is requesting that a resolution be adopted for the City of Muskegon
for all MSHDA NSP1, CDBG, LEAD and HOME Investment Act Program activities.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: As an Equal Housing Opportunity participant
jurisdiction, the City of Muskegon supports Fair Housing Law and Title VIII of the
Civil Rights Act of 1968. We are requesting to approve the authorizing resolution
and direct the Mayor and Clerk to sign the resolution.
D. Approval of Sale of City-Owned Property at 1585 Hudson. COMMUNITY
& NEIGHBORHOOD SERVICES
SUMMARY OF REQUEST: To approve the resolution and instruct the Community
and Neighborhood Services department to complete the sales transaction
between Ms. Suzanne Hershey for the vacant property at 1585 Hudson, which is
part of the City’s Neighborhood Stabilization Program through the Michigan
State Housing Development Authority Office of Community Development. This is
a non-buildable lot. Ms. Hershey is the adjacent property owner to 1585 Hudson.
As a part of the City’s continuous neighborhood redevelopment efforts, 1585
Hudson was purchased and demolished with Neighborhood Stabilization
Program funds as a blighted structure.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: To approve the resolution and direct the CNS staff to
complete the sale.
E. Control System Annual Software Update/Support. WATER FILTRATION
SUMMARY OF REQUEST: Renewal of the annual customer support for plant
operating system with Wonderware North.
FINANCIAL IMPACT: One time cost of $11,385 for 2011.
BUDGET ACTION REQUIRED: None, this item is budgeted.
STAFF RECOMMENDATION: Staff requests authorization to renew the annual
customer support agreement at a budgeted cost of $11,385.00 for 2011.
F. Accept Resignation and Make Appointments to Various Boards and
Committees. CITY CLERK
SUMMARY OF REQUEST: To accept the resignation from Kristy Weberg from the
Equal Opportunity Committee, appoint Carlos Flores to the Citizen’s Police
Review Board, and appoint Jonathan Rolewicz to the Housing Code Board of
Appeals.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: Approval
COMMITTEE RECOMMENDATION: The Community Relations Committee
recommended approval at their February 7th meeting.
Motion by Commissioner Carter, second by Commissioner Spataro to approve
the Consent Agenda as read.
ROLL VOTE: Ayes: Wisneski, Carter, Gawron, Shepherd, Spataro, and Wierengo
Nays: None
MOTION PASSES
2010-09 NEW BUSINESS:
A. Application for Special License (Liquor Control Commission). PUBLIC
SAFETY
SUMMARY OF REQUEST: The Muskegon Catholic Education Foundation, Inc. has
submitted an application for a Special License for Beer, Wine and Spirits for
Consumption on the Premises for April 30, 2011. This license is for an auction and
dinner to be held at Muskegon Catholic Central High School.
The Foundation meets all of the requirements for the special license with the
exception of the request for “spirits”. Commission policy dictates that any
special license request which includes spirits must be considered and approved
by the body.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: Approval of the request.
Motion by Commissioner Spataro, second by Commissioner Wierengo to
approve the application for special license for the event at Muskegon Catholic
Central High School.
ROLL VOTE: Ayes: Spataro, Wierengo, Wisneski, Carter, Gawron, and Shepherd
Nays: None
MOTION PASSES
B. Consideration of Bids for Isabella Avenue, Peck to Terrace (S-654 and
W-724). ENGINEERING
SUMMARY OF REQUEST: Award the construction contract to replace water and
sewer lines in Isabella Avenue from Peck Street to Terrace Street to McCormick
Sand Inc., out of Twin Lake, MI. McCormick Sand is the lowest responsible bidder
for this project with a total bid price of $374,698.20.
While completing the Bid Tabulation for this project, it was discovered that
McCormick transposed the bid price on two line items. Line items numbered
four (4) and five (5) had their bid prices transposed thus making their Bid
Tabulation appear higher than the amount bid. Staff and contractor discussed
and corrected the miscalculation, and it was determined that McCormick
remained the lowest responsible bidder.
FINANCIAL IMPACT: The construction cost of $374,698.20 plus engineering cost
which is estimated at an additional 15%.
BUDGET ACTION REQUIRED: None at this time as this project appears on the
2010 – 2011 budget.
STAFF RECOMMENDATION: Award the contract to McCormick Sand Inc.
Motion by Commissioner Spataro, second by Commissioner Wierengo to
approve the bid for Isabella Avenue from Peck to Terrace to McCormick Sand
Inc.
ROLL VOTE: Ayes: Carter, Gawron, Shepherd, Spataro, Wierengo, and Wisneski
Nays: None
MOTION PASSES
ADJOURNMENT: The City Commission Meeting adjourned at 5:40 p.m.
Respectfully submitted,
Ann Marie Becker, MMC
City Clerk
Commission Meeting Date: February 22, 2011
Date: February 14, 2011
To: Honorable Mayor & City Commission
From: Planning & Economic Development Department
RE: ChargePoint Station- Muskegon: Master Services
Subscription Agreement
SUMMARY OF REQUEST: The Federal Government has contracted with
ChargePoint (Coulomb Technologies, Inc) to install 297 electric vehicle charge
stations in Michigan by October 1, 2011. Thus far, they have installed 70 stations.
The West Michigan area will receive several stations, including over 20 in Muskegon
County. Currently, there is a ChargePoint station at MAREC. Other municipalities
are also having them installed (as well as institutions and businesses). The City has
designated two parking spaces in the Western Avenue Parking Lot to be used for a
station. We are in discussions with the Arena Management in this regard.
FINANCIAL IMPACT: The Federal Government will pay for the ChargePoint station
equipment. The City will receive a grant in the amount of $2,500 from the Lou
Eklund Fund at the Community Foundation for Muskegon County for the station
installation (estimated to be $2,000; any funds remaining can be applied towards
future maintenance fees). It is recommended to allow free access for the electrical
charge for the first year. If it is determined that the station is being well used, the City
can start charging for its use. If the City charges for the station use, there will also be
a $.50 per transaction fee and a 7.5% charge per total usage fee from ChargePoint
for administration (they will not charge anything if the City does not charge anything-
see attached e-mail from ChargePoint).
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: To approve the “ChargePoint Master Services
Subscription Agreement” between the City of Muskegon and ChargePoint/Coulomb
Technologies, Inc. and authorize the Mayor’s signature.
Page 1 of 2
Potter, Linda
From: Brubaker-Clarke, Cathy
Sent: Monday, February 14, 2011 11:53 AM
To: Becker, Ann; Potter, Linda
Cc: Mazade, Bryon; Schrier, John (attorney)
Subject: FW: Revised Master Services Agreement
Ann and Linda, please include this e-mail to Commission with the ChargePoint agenda item. Thank you.
Cathy
From: kim@shockingsolutions.com [mailto:kim@shockingsolutions.com]
Sent: Monday, February 14, 2011 11:07 AM
To: Brubaker-Clarke, Cathy
Cc: John Auld; Fabio Zafferani
Subject: RE: Revised Master Services Agreement
Hi Cathy,
You are correct in your understanding of the information included below. If you have any
other questions that Len, Fabio or I can help you with, please do not hesitate to contact any
of us.
Thank you and looking forward to hearing from you soon.
Regards,
Kim
-------- Original Message --------
Subject: RE: Revised Master Services Agreement
From: "Brubaker-Clarke, Cathy" ;
Date: Thu, February 10, 2011 4:25 pm
To: kim@shockingsolutions.com
Thank you, Kim. My understanding from my meeting with Len and Fabio, yesterday, is that
ChargePoint will provide the equipment for the station and the City will pay for installation.
Providing the City does not charge the customer for electricity, there will be no charge from
ChargePoint, either (until January 2014). If we do charge a fee, there will also be a $.50 per
transaction fee, plus 7.5% session fee from ChargePoint. This charge will be administered by
ChargePoint and the fee the City charges will be reimbursed through ChargePoint. In addition,
there is a $149/yr maintenance fee, but this fee will not go into effect until January 2014. In the
meantime, ChargePoint will provide the maintenance for the station. In January 2014, there will
also be a warranty fee, but this fee is not yet determined. If the City chose not to participate
after 2013, we could refrain from making the payments to ChargePoint without additional
consequences. Although I do not foresee this happening, as I believe the charge stations will
become a success by that time, I need to make sure the City interests are attended to.
Providing the above statements are true, I plan to take the Agreement to our City Commission
on Feb. 22.
Cathy
From: kim@shockingsolutions.com [mailto:kim@shockingsolutions.com]
2/15/2011
Page 2 of 2
Sent: Wednesday, February 09, 2011 2:10 PM
To: Brubaker-Clarke, Cathy
Subject: Revised Master Services Agreement
Hi Cathy,
Here is the revised Master Services Agreement. Talk to you soon.
Kim
2/15/2011
CHARGEPOINT®
MASTER SERVICES SUBSCRIPTION AGREEMENT
IMPORTANT: PLEASE READ THIS MASTER SERVICES SUBSCRIPTION AGREEMENT (“AGREEMENT”)
CAREFULLY.
THIS AGREEMENT GOVERNS REGISTRATION OF YOUR CHARGING STATION ON THE CHARGEPOINT
NETWORK AND ACTIVATION OF CHARGEPOINT NETWORK SERVICES. SUBSCRIBING FOR A
CHARGEPOINT NETWORK SERVICE CONSTITUTES ACCEPTANCE OF ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND IS BINDING ON YOU AND THE BUSINESS ENTITY YOU
REPRESENT (COLLECTIVELY, “SUBSCRIBER” OR “YOU”). IF YOU ARE ENTERING INTO THIS AGREEMENT
ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE AUTHORITY
TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY AND ITS AFFILIATES TO THESE TERMS AND
CONDITIONS; IF NOT, YOU MAY NOT ENTER INTO THIS AGREEMENT AND MAY NOT USE THE
CHARGEPOINT SERVICES.
YOU MAY NOT ACCESS THE CHARGEPOINT SERVICES IF YOU ARE A DIRECT COMPETITOR OF CTI
EXCEPT WITH CTI’S PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE
CHARGEPOINT SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR
FUNCTIONALITY, OR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSE.
1. DEFINITIONS. The following terms shall have the definitions set forth below when used in this
Agreement:
1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is
under common control with the subject entity. “Control”, for purposes of this definition, means direct
or indirect ownership or control of fifty percent (50%) or more of the voting interests of the subject
entity.
1.2 “ChargePass™ RFID Card” means a CTI provisioned radio-frequency identification card
issued to a ChargePass Account Holder which permits a User of such card access to the ChargePoint
Network for the delivery of Subscriber-provided services and the ChargePass Account Holder to use the
ChargePoint Network to manage their ChargePass Account.
1.3 “ChargePass Account” means an account registered with CTI that permits a User to
prepay for access to Networked Charging Stations utilizing a ChargePass RFID Card.
1.4 “ChargePass Account Holder” means a User who has registered with the Network
Operator and created a ChargePass Account.
1.5 “ChargePoint Network” means the Network Operator provisioned software, firmware,
hardware (excluding Charging Stations owned and registered by Subscribers) and services for
Subscribers and Users that, among other things, provision, manage, and allow access to Networked
Charging Stations by ChargePass Account Holders via the RFID Card and by other Users via the
utilization of contactless RFID embedded credit cards, or authorized credit or electronic debit card
transactions and permit Subscribers to register, activate, monitor and operate Charging Stations.
1.6 “ChargePoint Network Standard Service” means the bundled group of ChargePoint
Services that assist in the basic operation of the Networked Charging Stations. The ChargePoint
Network Standard Service is required to be subscribed to by Subscriber in order to register and activate
a Charging Station on the ChargePoint Network.
1.7 “ChargePoint Services” means the ChargePoint Network support services and
ChargePoint software applications, as such may be introduced and made available to Subscribers by the
12-14-10
Network Operator from time to time, which provide network support and functionalities for Users and
Subscribers and allow Subscribers, among other things, to monitor and control Networked Charging
Stations. ChargePoint Services, including, but not limited to, the ChargePoint Network Standard Service,
are made available for subscription by Subscribers pursuant to Purchase Orders entered into between
Subscriber and CTI.
1.8 “Charging Session” has the same definition as “Session” set forth below.
1.9 “Charging Station” means the electric vehicle charging station(s) installed by Subscriber
at the Subscriber Location(s), either manufactured by CTI or by another entity, which have embedded
within them CTI proprietary hardware and firmware, enabling Subscriber to register and activate such
charging stations on the ChargePoint Network. A charging station may be designated by a Subscriber as
a Commercial Charging Station or a Free Charging Station, a Public Charging Station or a Private Charging
Station and such designations may be changed at any time with respect to any Networked Charging
Station(s) utilizing the ChargePoint Network Standard Service.
1.10 “Commercial Charging Station” means a Charging Station that is designated by the
Subscriber as one where Users must pay a Session Fee for access to the Charging Station.
1.11 “CTI” means Coulomb Technologies, Inc., a Delaware corporation.
1.12 “CTI Marks” means the various trademarks, service marks, names and designations
used in connection with the CTI manufactured Charging Stations and/or the ChargePoint Network,
including, without limitation, ChargePoint and ChargePass.
1.13 “CTI Intellectual Property” means all intellectual property of CTI relating to the CTI
Marks, the ChargePoint Network, the ChargePoint Services, ChargePass, ChargePass RFID Cards,
ChargePass Accounts and all other Intellectual Property Rights of CTI.
1.14 “Documentation” means written information (whether contained in user or technical
manuals, product materials, specifications or otherwise) pertaining to ChargePoint Services and/or the
ChargePoint Network and made available by the Network Operator to Subscribers and/or Users in any
manner (including on-line).
1.15 “Free Charging Station” means a Charging Station that is designated by the Subscriber
as one where Users do not pay a Session Fee for access to the Charging Station.
1.16 “Intellectual Property Rights” means all intellectual property rights, including, without
limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names,
service marks, service mark applications, copyrights, copyright applications, franchises, licenses,
inventories, know-how, trade secrets, Subscriber lists, proprietary processes and formulae, all source
and object code, algorithms, architecture, structure, display screens, layouts, inventions, development
tools and all documentation and media constituting, describing or relating to the above, including,
without limitation, manuals, memoranda and records.
1.17 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious
code, malware, spyware, files, scripts, agents or programs.
1.18 “Net Session Fees” means all Session Fees actually collected on behalf of the Subscriber
from Users by Network Operator for use of Networked Charging Stations less Session Authorization Fees
and Session Processing Fees, as well as any Taxes and Regulatory Charges, if any, required by law to be
collected by CTI from Users in connection with the use of Networked Charging Stations. Except as
required by law, Subscriber shall be responsible for the payment of all Taxes and Regulatory Charges
incurred in connection with the Networked Charging Stations.
Page 2 of 17
12-14-10
1.19 “Networked Charging Station” means a Charging Station for which a Subscriber has
subscribed for the ChargePoint Network Standard Service and registered and activated such Charging
Station on the ChargePoint Network.
1.20 “Network Operator” means the entity responsible for provisioning, managing and
maintaining the ChargePoint Network and offering ChargePoint Services. CTI is the Network Operator in
North America but is permitted at any time to assign its rights and obligations as Network Operator
under this Agreement to another entity.
1.21 “Network Web Portal” means any of the secure Internet web portals established and
maintained by the Network Operator which will allow (i) Subscriber through its Subscriber Accounts to
access ChargePoint Services for the management and control of Subscriber’s Networked Charging
Stations and (ii) ChargePass Account Holders through their respective ChargePass Accounts to track their
use of Networked Charging Stations, replenish ChargePass RFID Cards and otherwise manage their
ChargePass Account.
1.22 “Party” means the Network Operator and Subscriber.
1.23 “Private Charging Station” means a Charging Station for which access by the general
public is restricted (e.g., a Charging Station located in a private parking facility or restricted corporate
campus).
1.24 “Public Charging Station” means a Charging Station that is accessible by any User
subject only to stated hours of operation.
1.25 “Purchase Order” means the purchase order(s) or other documentation entered into
between Subscriber and the Network Operator, its distributors or other authorized representatives for
the subscription of ChargePoint Services the terms of which are incorporated herein by reference.
1.26 “Purchased ChargePoint Services” means those ChargePoint Services made available by
the Network Operator and for which a Subscription has been purchased by Subscriber with respect to
any of Subscriber’s Networked Charging Stations or for which the Subscription Term has automatically
been renewed pursuant to Section 8.3 (Automatic Renewal of Subscriptions).
1.27 “Regulatory Charges” is defined in Section 4.6 (Taxes and Regulatory Charges).
1.28 “Session” or “Charging Session” means a continuous period of time measuring not less
than five (5) minutes commencing when a User has accessed a Networked Charging Station and the
delivery of Subscriber provided services has been initiated and terminating upon the cessation by such
User of the Subscriber provided services.
1.29 “Session Authorization Fees” means the fees payable by the Subscriber to the Network
Operator to pre-authorize a Charging Session at a Commercial Networked Charging Station.
1.30 “Session Fees” means the fees set by the Subscriber for a Charging Session, including
any applicable Taxes and/or Regulatory Charges.
1.31 “Session Processing Fees” means the fees charged by the Network Operator for the
management, collection and processing of Session Fees on behalf of Subscriber and the remittance of
Net Session Fees to Subscribers.
1.32 “Session Transaction Fees” means the complete set of fees, session authorization fees
and session processing fees, charged by the Network Operator to the Subscriber for collection of User
Session Fees on behalf of the Subscriber, as well as any applicable Taxes and Regulatory Charges.
Page 3 of 17
12-14-10
1.33 “Software Application” means computer programs, including firmware, as provided or
otherwise made available to Subscriber by the Network Operator, or its distributors or other authorized
representatives, as embedded in or downloaded by Subscriber to the Subscriber’s Charging Stations,
related products and any Upgrades.
1.34 “Subscriber” is an owner of one or more Charging Stations for which Subscriber has
purchased Subscriptions for ChargePoint Services and registered with and activated on the ChargePoint
Network.
1.35 “Subscriber Account” means an account established by a Subscriber.
1.36 “Subscriber Location(s)” means the physical locations where Subscriber has installed
Networked Charging Stations registered with the ChargePoint Network.
1.37 “Subscription” means a subscription for ChargePoint Services purchased by a
Subscriber.
1.38 “Subscription Fees” means the fees payable by Subscriber to the Network Operator for
subscribing to any of the ChargePoint Services.
1.39 “Subscription Term” means the Term for which Subscriber has purchased a Subscription
for Purchased ChargePoint Services for a Networked Charging Station.
1.40 “Taxes” is defined in Section 4.6 (Taxes and Regulatory Charges).
1.41 “Upgrades” means any authorized upgrades, updates, bug fixes or modified versions of
Software Applications furnished by the Network Operator.
1.42 “Users” means any person using Networked Charging Stations including, without
limitation, ChargePass Account Holders.
1.43 “You” or “Your” means the company or other legal entity for which you are accepting
this Agreement and the Affiliates of that company or entity.
2. CTI’S RESPONSIBILITIES AND AGREEMENTS.
2.1 NETWORK OPERATION. The Network Operator shall be solely responsible for: (i)
Provisioning and Operating the ChargePoint Network – provisioning and operating, maintaining,
administration and support of the ChargePoint Network infrastructure (but excluding Subscribers’
Charging Stations and infrastructure for transmitting data from Networked Charging Stations to any
ChargePoint Network operations center); (ii) Provisioning and Operating Network Web Portals –
provisioning and operating, maintaining, administration and support of the Network Web Portals; (iii)
User Acquisition, Administration and Support -- acquisition and registration of new ChargePass Account
Holders, administration and support of ChargePass Accounts and provisioning the support services for
Users embodied in the ChargePoint Services, and (iv) Data Protection – using commercially reasonable
efforts to comply with all applicable laws and regulations of the United States of America and all other
governmental entities governing, restricting or otherwise pertaining to the use, distribution, export or
import of data, products, services and/or technical data whether such information or data relates to
either the Subscriber or Users in connection with the ChargePoint Network.
2.2 PURCHASED CHARGEPOINT SERVICES. The Network Operator shall make the
Purchased ChargePoint Services available to Subscriber pursuant to this Agreement and the applicable
Purchase Orders for each Networked Charging Station during the Subscription Term. The Network
Operator represents and warrants that: (i) Authority -- it has the power and authority to enter into and
be bound by this Agreement, (ii) Performance of ChargePoint Services -- the ChargePoint Services shall
Page 4 of 17
12-14-10
perform materially in accordance with the Documentation, (iii) Support for Purchased ChargePoint
Services – it will provide all support for Purchased ChargePoint Services and technical support and
maintenance for all Software Applications as set forth in the Documentation, including, without
limitation, Upgrades, (iv) Continuity of Purchased ChargePoint Services – It will use commercially
reasonable efforts to make the Purchased ChargePoint Services available 24 hours a day, 7 days a week,
365 days per year, except for planned downtime (of which Subscriber shall be given not less than eight
(8) hours prior notice via electronic messaging to the email address for notices specified in each
Subscriber Account), (v) No Decrease in Functionality of ChargePoint Services -- subject to Section
2.3(vi), the functionality of the ChargePoint Services shall not materially decrease during the
Subscription Term, and (vi) Malicious Code – it will use commercially reasonable efforts to ensure that it
does not transmit to Subscriber any Malicious Code (excepting Malicious Code transmitted to CTI or the
Network Operator by Subscriber or its Affiliates). Subscriber’s exclusive remedy for a breach of any of
the foregoing shall be as provided in Section 8.4 (Termination) and Section 8.5 (Refund or Payment
Upon Termination) as set forth below.
2.3 LIMITATIONS ON RESPONSIBLITY. Neither CTI, its distributors nor its other authorized
representatives nor the Network Operator shall be responsible for, or makes any representation or
warranty to Subscriber with respect to the following: (i) Competing Subscriber Locations -- specific
location(s) or number of Networked Charging Stations now, or in the future, owned, operated and/or
installed by Subscribers other than Subscriber, or the total number of Networked Charging Stations that
comprise the ChargePoint Network; (ii) Electrical Service Interruptions – continuous availability of
electrical service to any Networked Charging Stations; (iii) Cellular and Internet Service Interruptions –
continuous availability of any wireless or cellular communications network or Internet service provider
network not operated by CTI or the Network Operator; (iv) Network Intrusions – availability of or
interruption of the ChargePoint Network attributable to unauthorized intrusions; (v) Unregistered
Charging Stations -- Charging Stations that are not registered and activated with the ChargePoint
Network, and (vi) Google™ Services – the continued availability of any Google services incorporated for
use with the ChargePoint Services; provided that, if Google ceases to make the Google Application
Programming Interface (“API”) or any similar program available on reasonable terms for the ChargePoint
Services, the Network Operator shall make commercially reasonable efforts to replace the Google API or
such similar program with products providing similar functionalities if such products are available upon
terms which the Network Operator, in its reasonable discretion, believes are commercially reasonable;
and provided further that, if Google ceases to make the Google API or similar program available, or
available on reasonable terms for the ChargePoint Services, the Network Operator may cease providing
such features without entitling Subscriber to any refund, credit or other compensation.
2.4 DISCLAIMER OF WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
SECTION 2, NEITHER CTI, THE NETWORK OPERATOR NOR ANY OF THEIR RESPECTIVE DISTRIBUTORS OR
OTHER AUTHORIZED REPRESENTATIVES AS APPLICABLE, MAKES ANY WARRANTIES OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY FOR FITNESS FOR A
PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
3. SUBSCRIBER RESPONSIBILITIES AND AGREEMENTS
3.1 GENERAL. Subscriber shall be solely responsible for: (i) Installation of Charging
Stations and/or Related Electrical Vehicle Charging Products – the purchase and installation of
Subscriber’s Charging Stations and other electrical vehicle charging products shall be at Subscriber’s sole
cost and expense; (ii) Registration and Activation of Charging Stations with the ChargePoint Network –
registration with and activation of Subscriber’s Charging Stations on the ChargePoint Network through a
Page 5 of 17
12-14-10
Network Web Portal, including, without limitation, keeping current Subscriber’s contact information,
email address for the receipt of notices hereunder, billing address for invoices and payment of
Subscriber’s Net Session Fees due under this Agreement; (iii) Pricing and Access -- setting the pricing
(including all applicable Taxes and Regulatory Charges) for any Subscriber provided services accessed by
Users through Networked Charging Stations that are designated Commercial Charging Stations and any
conditions limiting access thereof, (iv) Update of Registration of Charging Stations -- if a Networked
Charging Station is moved from its registered location Subscriber shall update the registration location
of the Networked Charging Station on the appropriate Network Web Portal within five (5) business days
of making any change in the Subscriber Location(s); (v) Identification of Charging Stations and
Subscriber Locations – provisioning and installation of appropriate signage that clearly and prominently
identifies and, where appropriate, provides directions to the Subscriber Locations so that they may be
easily located by Users; (vi) Public Access Level – designation of each Networked Charging Station as
either a Public Charging Station or a Private Charging Station; (vii) Commercialization – designation of
each Networked Charging Station as either a Commercial Charging Station or a Free Charging Station;
(viii) Appearance and Cleanliness -- keeping Networked Charging Stations and Subscriber Locations(s)
clean and free of graffiti, unauthorized advertising, debris and other materials that would obscure, block
access or otherwise detract from or cast a negative light on the reputation of the ChargePoint Network;
(ix) Maintenance, Service and Repair of Networked Charging Stations – the maintenance, service,
repair and/or replacement of Subscriber’s Networked Charging Stations as needed, including
deactivation of Networked Charging Stations that are non-operational and not intended to be replaced
or repaired by Subscriber within ten (10) business days from the ChargePoint Network; (x) Location of
Charging Stations -- assuring the accessibility, lighting and other factors pertaining to the safety of
Users while utilizing the Charging Stations not directly related to the design or manufacture of the
Charging Stations themselves; and (xi) Compliance with Laws – operating and maintaining the
Subscriber’s Networked Charging Stations in a manner that complies with all applicable laws.
3.2 REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. Subscriber represents and
warrants to CTI, the Network Operator, their respective its distributors and other authorized
representatives that: (i) Authority -- Subscriber has the power and authority to enter into and be
bound by this Agreement and to install the Charging Stations and any other electrical vehicle charging
products to be registered and activated on the ChargePoint Network at the Subscriber Location(s); (ii)
No Violation With Subscriber’s Electrical Supply or Other Agreements -- Subscriber assumes all
responsibility that the electrical usage consumed by any of Subscriber’s Networked Charging Station
does not violate or otherwise conflict with the terms and conditions of any applicable electrical
purchase or other agreement including, without limitation, any lease, to which Subscriber is a party; (iii)
Installation of Charging Stations Will Not Violate Any Other Agreements or Laws -- Subscriber will not
install or attach Charging Stations on or to infrastructure not owned by Subscriber without proper
authority, or in a manner that will block any easement or right of way. Subscriber will observe all legal
requirements with respect to vehicle clearances from intersections, points of ingress or egress and
public infrastructure such as fire hydrants, lampposts, parking meters, and will otherwise observe all
applicable governmental restrictions or restrictions applicable to the Subscriber Locations under any
other agreements to which Subscriber is subject; and (iv) Compliance Laws -- Subscriber will comply
with all applicable laws.
3.3 FURTHER AGREEMENTS OF SUBSCRIBER MADE IN CONNECTION WITH REGISTRATION
OF CHARGING STATIONS ON THE CHARGEPOINT NETWORK AND USE OF CHARGEPOINT SERVICES.
Subscriber further acknowledges and agrees with the Network Operator, CTI, and their respective
distributors and authorized representatives, as applicable, as follows: (i) Display of CTI Marks --
Subscriber will not remove, conceal or cover the CTI Marks or any other markings, labels, legends,
Page 6 of 17
12-14-10
trademarks, or trade names installed or placed on the Networked Charging Stations or any peripheral
equipment for use in connection with the Networked Charging Stations for so long as such Charging
Stations are Networked Charging Stations; (ii) Use of Network Web Portals -- Subscriber shall comply
with, and shall have responsibility for and cause all other persons accessing or using Network Web
Portals to comply with, all of the rules, regulations and policies of the Network Operator, as well as
other networks and computer systems used to access Network Web Portals, whether operated by
Subscriber, its suppliers or others and Subscriber agrees to indemnify and hold the Network Operator,
CTI, and their respective distributors and authorized representatives, directors, shareholders, officers,
agents, employees, permitted successors and assigns harmless from any third party notices, allegations,
claims, suits or proceedings (each, a “Claim”) resulting from Subscriber’s use of Network Web Portals
and the ChargePoint Services in violation of the terms of this Section 3.3(ii) or of Section 3.3(iii); (iii) Use
of the ChargePoint Network and ChargePoint Services – Subscriber shall be responsible for use of the
ChargePoint Services in compliance with this Agreement, and in particular, shall: (A) use its
commercially reasonable efforts to prevent unauthorized access to Purchased ChargePoint Services, (B)
use the Purchased ChargePoint Services only in accordance with the Documentation and applicable laws
and government regulation, (C) shall not sell, resell, rent or lease the Purchased ChargePoint Services,
(D) shall not interfere with or disrupt the integrity of the ChargePoint Network, the ChargePoint Services
or any third party data contained therein, and (E) shall not attempt to gain unauthorized access to the
ChargePoint Network or the ChargePoint Services or their related systems or networks; (iv) Future
ChargePoint Services – Purchase Orders are not contingent on the delivery of any future functionality or
features, nor dependent on any oral or written comments anticipating future functionality or features;
(iv) Ownership of Data -- All data collected by the Network Operator in connection with the operation of
the ChargePoint Network shall be owned by CTI and the Network Operator and Subscriber
acknowledges and agrees that Subscriber shall have no right of access or the use of such data for any
purpose other than the management of Subscriber’s Networked Charging Stations while registered with
the ChargePoint Network.
4. FEES AND PAYMENT FOR PURCHASED CHARGEPOINT SERVICES.
4.1 SUBSCRIPTION FEES. Subscriber shall pay the Subscription Fees set forth on any
Purchase Order for Purchased ChargePoint Services. Except as otherwise specified herein or in any
Purchase Order, (i) Subscription Fees are quoted in and payable in U.S. Dollars, (ii) Subscription Fees are
based on ChargePoint Services purchased and not on actual usage, (iii) payment obligations are non-
cancelable and are non-refundable, and (iv) Subscriptions are non-transferable (provided, that any
Subscription may be transferred to a Charging Station that is purchased by Subscriber to replace a
previously Networked Charging Station). Subscription Fees are based on annual periods that begin on
the date of the Subscription start date and end each annual anniversary thereafter.
4.2 INVOICING AND PAYMENT. Subscriber shall provide the Network Operator with valid
and up to date credit card information if Subscriber is subscribing for ChargePoint Services online
through the applicable Network Web Portal. In all other cases, payment of Subscription Fees shall be
made under the terms of any accepted Purchase Order pursuant to a method of payment reasonably
acceptable to the Network Operator. Where Subscriber provides credit card information to the Network
Operator through such Network Web Portal for the payment of Subscription Fees, Subscriber hereby
authorizes the Network Operator to charge such credit card for all Purchased ChargePoint Services for
the initial Subscription Term and the automatic renewal of Subscription Term(s) as set forth in Section
8.3 (Automatic Renewal of Subscriptions). All credit card charges shall be made in advance, either
annually or in accordance with the terms of the accepted Purchase Order. If the Purchase Order
specifies that payment shall be made by a method other than credit card, the Network Operator, its
Page 7 of 17
12-14-10
distributors or authorized representatives, as applicable, shall invoice Subscriber in advance in
accordance with the accepted Purchase Order (including the automatic renewal of Subscription Term(s))
and invoiced charges shall be due within thirty (30) days of the invoice date.
4.3 OVERDUE SUBSCRIPTION FEES. If any invoiced Subscription Fees are not received by
the Network Operator by the due date, then such charges: (i) may accrue late interest at the rate of one
and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by
law, whichever is lower, from the date such payment was due until paid, and (ii) the Network Operator
may condition future Subscription renewals and acceptance of Purchase Orders on payment terms other
than those set forth herein.
4.4 ACCELERATION AND SUSPENSION OF CHARGEPOINT SERVICES. If any amount owing
by Subscriber under this Agreement for Subscription Fees for Purchased ChargePoint Services or under
any other agreement between the Network Operator and Subscriber is more than thirty (30) days
overdue (or, in the event that Subscriber has authorized the Network Operator to charge the amount
owing to Subscriber’s credit card and payment under such credit card has been declined, more than 5
days has passed since Subscriber has received notice from the Network Operator of such event), the
Network Operator may, without otherwise limiting the Network Operator’s rights or remedies,
accelerate Subscriber’s unpaid fee obligations under such agreements so that all such obligations
become immediately due and payable, and suspend the use by Subscriber of the Purchased ChargePoint
Services until such amounts are paid in full.
4.5 PAYMENT DISPUTES. The Network Operator shall not exercise its rights under Section
4.3 (Overdue Subscription Fees) or Section 4.4 (Acceleration and Suspension of ChargePoint Services) if
the applicable charges are under reasonable and good faith dispute and Subscriber is cooperating
diligently to resolve the dispute.
4.6 TAXES AND REGULATORY CHARGES. Unless required by law or otherwise stated herein,
Session Authorization Fees and Session Processing Fees do not include any taxes, levies, duties or similar
governmental assessments of any nature, including, but not limited to, value added, sales, local, city,
state or federal taxes (“Taxes”) or any fees or other assessments levied or imposed by any governmental
regulatory agency (“Regulatory Charges”). Subscriber is responsible for the payment of all Taxes and
Regulatory Charges hereunder in connection with Purchased ChargePoint Services, Session Fees, Session
Authorization Fees and Session Processing Fees; provided that the Network Operator is solely
responsible for all Taxes and Regulatory Charges assessable based on the Network Operator’s income,
property and employees. Where the Network Operator is required by law to collect and/or remit the
Taxes or Regulatory Charges for which Subscriber is responsible, the appropriate amount shall be
invoiced to Subscriber in accordance with this Section 4 and deducted by the Network Operator from
Session Fees, unless Subscriber has otherwise provided the Network Operator with a valid tax or
regulatory exemption certificate or authorization from the appropriate taxing or regulatory authority.
5. FLEX-BILLING SERVICE FOR NETWORKED CHARGING STATIONS.
5.1. SESSION FEES. Subscriber shall have sole authority to determine and set in real-time a
User’s Session Fees (which shall include all applicable Taxes and Regulatory Charges) applicable to
Subscriber’s Networked Charging Stations that are designated as Commercial Charging Stations.
5.2 SESSION TRANSACTION FEES. In exchange for the Network Operator collecting Session
Fees on behalf of the Subscriber, the Subscriber hereby authorizes the Network Operator to deduct
from all Session Fees collected: (i) a Session Authorization Fee, and (ii) a Session Processing Fee, each in
the amount and subject to the terms and conditions as set forth in Schedule 1.
Page 8 of 17
12-14-10
5.3 PAYMENT TO SUBSCRIBER OF NET SESSION FEES. The Network Operator shall remit to
Subscriber not more than thirty (30) days after the end of each calendar month to the address set forth
in Subscriber’s Account information registered on the applicable Network Web Portal all Net Session
Fees.
6. PROPRIETARY RIGHTS.
6.1 RESERVATION OF RIGHTS. Subject to the limited rights granted expressly hereunder,
CTI reserves all right, title and interest in and to the ChargePoint Services, including all related
Intellectual Property Rights. No rights are granted to Subscriber hereunder except as expressly set forth
herein. CTI shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable perpetual
license to use or incorporate in the ChargePoint Services any suggestions, enhancement requests,
recommendations or other feedback provided by Subscribers or Users relating to the ChargePoint
Services.
6.2 RESTRICTIONS ON USE. Neither Subscriber nor any of its Affiliates shall: (i) permit any
third party to access the ChargePoint Services except as otherwise expressly provided herein or in any
Purchase Order, (ii) create derivative works based on the ChargePoint Services, (iii) copy, frame or
mirror any part or content of the ChargePoint Services, other than copying or framing on Subscribers
own intranets or otherwise for Subscriber’s own internal business purposes, (iv) reverse engineer any
Charging Station or Software Application, or (v) access the ChargePoint Network, any Network Web
Portal or the ChargePoint Services in order to (A) build a competitive product or service, or (B) copy any
features, functions, interface, graphics or “look and feel” of any Network Web Portal or the ChargePoint
Services.
6.3 GRANT OF LIMITED LICENSE FOR CTI MARKS.
(a) LICENSE GRANT. Subscriber is granted under this Agreement the nonexclusive
privilege of displaying the CTI Marks during the Term of this Agreement in connection with the
Networked Charging Stations installed by Subscriber. Subscriber warrants that it shall not use any of the
CTI Marks for any products other than the Networked Charging Stations at the Subscriber Locations(s).
CTI may provide trademark usage guidelines with respect to Subscriber’s use of the CTI Marks which will
be made available on a Network Web Portal, in which case Subscriber thereafter must comply with such
guidelines. If no such guidelines are provided, then for each initial use of the CTI Mark, Subscriber must
obtain CTI’s prior written consent, which shall not be unreasonably withheld or delayed, and after such
consent is obtained, Subscriber may use the CTI Mark in the approved manner. The CTI Marks may not
be used under this Agreement as a part of the name under which Subscriber’s business is conducted or
in connection with the name of a business of Subscriber or its Affiliates.
(b) NO REGISTRATION OF CTI MARKS BY SUBSCRIBER. Neither Subscriber nor any
of its Affiliates will take any action, directly or indirectly, to register or apply for or cause to be registered
or applied in Subscriber’s favor or in the favor of any third party any CTI Marks or any patent, trademark,
service mark, copyright, trade name, domain name or registered design that is substantially similar to a
patent, trademark, service mark, copyright, trade name or registered design of CTI or the Network
Operator, or that is licensed to, connected with or derived from confidential, material or proprietary
information imparted to or licensed to Subscriber by CTI or the Network Operator .
(c) USE OF CTI MARKS BY SUBSCRIBER ON INTERNET. Subscriber shall be entitled
to use the CTI Marks to promote the ChargePoint Network on Subscriber-owned websites and through
the Internet advertising of Subscriber and its Affiliates, provided, that Subscriber is limited to using the
CTI Marks in connection with the Internet as follows: (i) Compliance with Law -- the use must be in
Page 9 of 17
12-14-10
compliance with local rules regarding advertising of the Networked Charging Stations and the
ChargePoint Network on the Internet; (ii) No Domain Name -- no license is granted to use or register
any domain name containing “CTI”, the name of the Network Operator or the CTI Marks; and (iii) Notice
of License – Subscriber and its Affiliates, as applicable, will at all times indicate that each of the CTI
Marks is a mark of CTI and used under license, as appropriate.
(d) TERMINATION AND CESSATION OF USE OF CTI MARKS. Upon termination of
this Agreement Subscriber and its Affiliates will immediately discontinue all use and display of the name
“CTI”, the name of the Network Operator and the CTI Marks.
6.4 FEDERAL GOVERNMENT END USER PROVISIONS. CTI provides the ChargePoint
Services, including Software Applications and technology, for ultimate federal government end use
solely in accordance with the following: Government technical data and software rights related to the
ChargePoint Services include only those rights customarily provided to the public as defined in this
Agreement. This customary commercial license is provided in accordance with FAR 11.211 (Technical
Data) and FAR 11.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015
(Technical Data – Commercial items) and DFAR 226.7202-3 (Rights in Commercial Computer Software or
Computer Software Documentation). If a government agency has a need for rights not conveyed under
these terms, it must negotiate with CTI to determine if there are acceptable terms for transferring such
rights, and a mutually acceptable written addendum specifically conveying such rights must be included
in any applicable Purchase order, contract or other agreement.
7. INDEMNIFICATION
7.1 INDEMNIFICATION OF SUBSCRIBER BY CTI. CTI shall defend at its expense any third
party notices, allegations, claims, suits, or proceedings (“Claim”) against Subscriber and its Affiliates, and
their respective directors, shareholders, officers, agents, employees, permitted successors and assigns,
to the extent alleging that the use of any of the ChargePoint Services as permitted hereunder or the CTI
Marks as furnished hereunder infringes or misappropriates the Intellectual Property Rights of any third
party, and to pay costs and damages finally awarded in any such suit or agreed to by CTI in settlement
with such third party (including reasonable attorney’s fees and expenses), provided that CTI is notified
promptly in writing of the suit and at CTI’s request and at its expense is given control of said suit and all
requested reasonable assistance for defense of same. CTI agrees that it shall not settle any Claim unless
Subscriber and its Affiliates, as applicable, are unconditionally released from any liability as part of any
settlement. This indemnity does not extend to any suit based upon any infringement or alleged
infringement of any Intellectual Property Rights by the combination of a product (including the
ChargePoint Services) furnished by CTI with other elements not furnished by CTI if such infringement
would have been avoided by the use of the CTI product (including in conjunction with the CTI furnished
ChargePoint Services) alone.
7.2 INDEMNIFCATION OF CTI AND THE NETWORK OPERATORBY SUBSCRIBER. Subscriber
shall defend CTI, the Network Operator , and their respective distributors, authorized agents, directors,
shareholders, officers, agents, employees, permitted successors and assigns against any Claim brought
by a third party (i) as a result of Subscriber’s negligence or willful misconduct or (ii) alleging that
Subscriber’s or any of its Affiliates’ use of the ChargePoint Network or ChargePoint Services in violation
of this Agreement infringes or misappropriates the Intellectual Property Rights of any third party or
violates applicable law, and to pay costs and damages finally awarded in any such suit or agreed to by
Subscriber in settlement with such third party (including reasonable attorney’s fees and expenses),
provided that Subscriber is notified promptly in writing of the suit and at Subscriber’s request and at its
expense is given control of said suit and all requested reasonable assistance for defense of same.
Page 10 of 17
12-14-10
Subscriber agrees that it shall not settle any Claim unless CTI, the Network Operator, and their
respective distributors and/or other authorized representatives, as applicable, are unconditionally
released from any liability as part of any settlement.
7.3 LIMITATION OF LIABILITY. Except for liability for indemnification against third party
claims for infringement or misappropriation of intellectual property rights, the Network Operator and
CTI’s aggregate liability under this Agreement shall not exceed the aggregate Subscription Fees paid by
Subscriber to the Network Operator in the calendar year prior to the event giving rise to the Claim. THE
FOREGOING DOES NOT LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS FOR THE PURCHASED
CHARGEPOINT SERVICES.
7.4 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. REGARDLESS OF WHETHER
ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPORSE OR OTHERWISE, IN NO EVENT WILL
CTI , THE NETWORK OPERATOR OR THEIR RESPECTIVE DISTRIBUTORS OR OTHER AUTHORIZED
REPRESENTATIVES BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS
INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR
PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER
ARISING OUT OF THE USE OF OR INABILITY TO USE THE CHARGEPOINT NETWORK, ANY CHARGEPOINT
SERVICES, THIS AGREEMENT OR OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIED OR CLAIMED
WARRANTIES BY SUBSCRIBER NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT AND EVEN IF CTI, THE
NETWORK OPERATOR OR THEIR RESPECTIVE DISTRIBUTORS, OTHER AUTHORIZED REPRESENTATIVES,
SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. BECAUSE SOME
STATES OR JURISDICITON DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7.5 EXCLUSIVE REMEDY. The foregoing states the indemnifying party’s sole liability to, and
the indemnified party’s exclusive remedy against, the other party with respect to any Claim described in
this Section 7.
7.6 ELECTRICAL, CELLULAR AND INTERNET SERVICE INTERRUPTIONS. None of CTI, the
Network Operator, any of their respective distributors, other authorized representatives, or Subscriber
shall have any liability whatsoever to the other with respect to damages caused by: (i) electrical
outages, power surges, brown-outs, utility load management or any other similar electrical service
interruptions whatever the cause; (ii) interruptions in wireless or cellular service linking Networked
Charging Stations to the ChargePoint Network; (iii) interruptions attributable to unauthorized
ChargePoint Network intrusions; or (iv) interruptions in services provided by any Internet service
provider not affiliated with CTI or the Network Operator. This includes the loss of data resulting from
such electrical, wireless, cellular or Internet service interruptions.
8. TERM AND TERMINATION.
8.1 TERM OF AGREEMENT. This Agreement shall become effective on the date of
acceptance and continues until all Subscriptions (including any automatic renewals thereof) purchased
by Subscriber have been terminated or otherwise have expired.
8.2 TERM OF PURCHASED SUBSCRIPTIONS. Subscriptions purchased by Subscriber
commence on the start date specified in the Purchase Order and shall continue for the applicable
Subscription Term specified therein for each Subscription or until the Purchased ChargePoint Services
provided pursuant to any Subscription are otherwise terminated, changed or canceled by the Network
Operator or Subscriber as allowed by the terms and conditions set forth herein.
Page 11 of 17
12-14-10
8.3 AUTOMATIC RENEWAL OF SUBSCRIPTIONS. Unless otherwise specified in the
applicable Purchase Order, all purchased Subscriptions shall automatically be renewed for a period
equal to that of the expiring Subscription, unless either party gives the other notice of non-renewal not
less than thirty (30) days prior to the schedule expiration date for the relevant Subscription Term. The
per-unit pricing for any renewal term shall be the same as during the prior term unless the Network
Operator shall have given Subscriber notice to the email address for the Subscriber Account that
Subscriber has provided hereunder of any increase in pricing for Subscriptions not less than thirty (30)
days prior to the end of such expiring Subscription, in which case the price increase shall be effective
upon renewal and thereafter. Any such pricing increase shall not exceed ten percent (10%) over the
pricing for the relevant Purchased ChargePoint Services in the prior term, unless the pricing for such
expiring Subscription was designated in the applicable Purchase Order as promotional or a one-time
offer.
8.4 TERMINATION.
(a) BY THE NETWORK OPERATOR. This Agreement and the Purchased ChargePoint
Services furnished hereunder may be immediately suspended or terminated: (i) if Subscriber is in
material violation of any of Subscriber’s obligations under this Agreement, provided, that Subscriber
shall be given written notice of such violation and if cured within thirty (30) days of such notice, any
suspension or termination of Purchased ChargePoint Services shall be restored and this Agreement shall
continue in effect, (ii) Subscriber becomes the subject of a petition in bankruptcy or any other
proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors,
(iii) upon the determination by any regulatory body that the subject matter of this Agreement is subject
to any governmental regulatory authorization or review, or (iv) if, pursuant to the terms of this
Agreement, the Network Operator is permitted the right to terminate upon the occurrence of an event
or events.
(b) BY SUBSCRIBER. This Agreement may be terminated by Subscriber for cause:
(i) upon thirty (30) days written notice given to the Network Operator alleging a material breach of this
Agreement and the alleged breach remains unremedied at the expiration of such period, or (ii) the
Network Operator becomes the subject of a petition in bankruptcy or any other proceeding related to
insolvency, receivership, liquidation or an assignment for the benefit of creditors. This Agreement may
be terminated by Subscriber upon the voluntary deactivation and removal from registration via the
applicable Network Web Portal of all Networked Charging Stations owned by Subscriber and its Affiliates
from the ChargePoint Network, at which time this Agreement shall terminate effective immediately;
provided, that Subscriber shall not be entitled to any refund of prepaid Subscription Fees as a result of
such termination.
8.5 REFUND OR PAYMENT UPON TERMINATION. Upon any termination of this Agreement
for cause by Subscriber pursuant to Section 8.4(b)(i), or (ii) or the election of the Network Operator to
terminate this Agreement pursuant to Section 8.4(a)(iii), the Network Operator shall refund to
Subscriber the pro-rata portion of any pre-paid Subscription Fees for the remainder of the applicable
Subscription Term for all Subscriptions after the effective date of termination. Upon any termination for
cause by the Network Operator pursuant to Section 8.4(a)(i), (ii) or (iv) or upon the voluntary removal
from registration and activation of all of Subscriber’s Network Charging Stations from the ChargePoint
Network, Subscriber shall pay any unpaid Subscription Fees covering the remainder of the Subscription
Term for any accepted Purchase Orders. In no event shall any termination relieve Subscriber of any
liability for the payment of Subscription Fees or Session Processing Fees for any period prior to the
termination date.
Page 12 of 17
12-14-10
9. AMENDMENT OR MODIFICATION. No modification, amendment or waiver of this Agreement
shall be effective unless in writing and either signed or electronically accepted by the party against
whom the amendment, modification or waiver is to be asserted; provided, that subject to any applicable
Purchase Order the Network Operator may change the Session Authorization Fee and/or the Session
Processing Fee as provided in Schedule 1.
10. WAIVER. The failure of either Party at any time to require performance by the other Party of
any obligation hereunder will in no way affect the full right to require such performance at any time
thereafter. The waiver by either Party of a breach of any provision hereof will not constitute a waiver of
the provision itself. The failure of either Party to exercise any of its rights provided in this Agreement
will not constitute a waiver of such rights. No waiver will be effective unless in writing and signed by an
authorized representative of the Party against whom such waiver is sought to be enforced. Any such
waiver will be effective only with respect to the specific instance and for the specific purpose given.
11. FORCE MAJEURE. Except with respect to payment obligations, neither the Network Operator
nor Subscriber will be liable for failure to perform any of its obligations hereunder due to causes beyond
such party’s reasonable control and occurring without its fault or negligence (a “Force Majeure Event”).
A Force Majeure Event will include, but not be limited to, fire, flood, earthquake or other natural
disaster (irrespective of such party’s condition of any preparedness therefore); war, embargo; riot;
strike; labor action; any lawful order, decree, or other directive of any government authority that
prohibits a party from performing its obligations under this Agreement; material shortages; shortage of
transport; and failures of suppliers to deliver material or components in accordance with the terms of
their contracts.
11. APPLICABLE LAW. This Agreement will be construed, and performance will be determined,
according to the laws of the State of California without reference to such state’s principles of conflicts of
law (the “Applicable Law”) and the state and federal courts of California shall have exclusive jurisdiction
over any claim arising under this Agreement.
12. WAIVER OF JURY TRIAL. Each Party hereby waives any right to jury trial in connection with any
action or litigation arising out of this Agreement.
13. SURVIVAL. Those provisions dealing with the Intellectual Property Rights of CTI, limitations of
liability and disclaimers, restrictions of warranty, Applicable Law and those other provisions which by
their nature or terms are intended to survive the termination of this Agreement will remain in full force
and effect as between the Parties hereto as contemplated hereby.
14. SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition of this
Agreement or the application thereof to either Party will to any extent be determined jointly by the
Parties or by any judicial, governmental or similar authority, to be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to this Agreement, the Parties
or circumstances other than those as to which it is determined to be invalid or unenforceable, will not
be affected thereby. If, however such invalidity or unenforceability will, in the reasonable opinion of
either Party cause this Agreement to fail of its intended purpose and the Parties cannot by mutual
agreement amend this Agreement to cure such failure, either Party may terminate this Agreement for
cause as provided herein above.
15. ASSIGNMENT. Subscriber may not assign any of its rights or obligations hereunder, whether by
operation of law or otherwise, without the prior written consent of the Network Operator (not to be
unreasonably withheld). In the event of any purported assignment in breach of this Section 15, the
Network Operator shall be entitled, at its sole discretion, to terminate this Agreement upon written
Page 13 of 17
12-14-10
notice given to Subscriber. In the event of such a termination, Subscriber shall pay any unpaid
Subscription Fees covering the remainder of the Subscription Term for any accepted Purchase Orders. In
no event shall any termination relieve Subscriber of any liability for the payment of Subscription Fees or
Session Processing Fees for any period prior to the termination date. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted
assigns CTI and the Network Operator may each assign its rights and obligations under this Agreement.
Within ninety (90) days of any such assignment, CTI or the Network Operator, as the case may be, shall
provide written notice to Subscriber of the fact of such assignment.
16. NO AGENCY OR PARTNERSHIP CREATED BY THIS AGREEMENT. CTI, in the performance of this
Agreement, and in its role as the Network Operator, is an independent contractor. In performing its
obligations under this Agreement, CTI shall maintain complete control over its employees, its
subcontractors and its operations. No partnership, joint venture or agency relationship is intended by
CTI and any Subscriber to be created by this Agreement.
17. ENTIRE AGREEMENT. This Agreement, Schedule 1 and the applicable Purchase Orders of
Subscriber contain the entire agreement between the Parties and supersedes and cancels all previous
and contemporaneous agreements, negotiations, commitments, understandings, representations and
writings in respect to the subject matter hereof. To the extent of any conflict or inconsistency between
the terms and conditions of this Agreement and any Purchase Order, this Agreement shall prevail.
Notwithstanding any language to the contrary therein, no terms or conditions stated in any other
documentation (excluding Schedule 1 and Purchase Orders) shall be incorporated into or form any part
of this Agreement, and all such purported terms and conditions shall be null and void.
Page 14 of 17
12-14-10
18. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which, taken together, shall constitute but one and the same
document.
COULOMB TECHNOLOGIES, INC. SUBSCRIBER:
Praveen K. Mandal, President By: ___________________________________
(Signature)
Name: ________________________________
Title: _________________________________
On Behalf of:
______________________________________
(Print Name of Company or Other Legal Entity)
Address: ______________________________
City: __________________________________
State: ______ Zip Code: ________________
E-Mail Address for Notices: _______________
______________________________________
(Please complete Appendix A if signing up for Flex Billing Service.)
Page 15 of 17
12-14-10
Schedule 1: Subscriber Session Transaction Fee Schedule1
For Each Charging Session using For Each Charging Session Using
Fee Schedule ChargePass Card Credit Card
Session Authorization Fee2 $0.50 per Session $0.50 per Session
Session Processing Fee3 7.5% of Session Fees 7.5% of Session Fees
1
Subscriber is required to separately subscribe for the ChargePoint™ Network Standard Service in order to
activate its Charging Stations on the ChargePoint™ Network.
2
The Session Authorization Fee may not be increased more than once in any twelve (12) month period nor more
than the greater of (i) ten percent (10%) or (ii) the Consumer Price Index rate of change promulgated by the
United State Bureau of Labor Statistics with respect to the 12-month period just then ended when any notice of
change is given by CTI to Subscribers.
3
CTI may increase the Session Processing Fee payable pursuant to this Agreement at any time after July 1, 2011,
upon not less than one hundred eight (180) days notice (the “ Notice Period”) given by electronic notice posted
to the Subscriber Portal and sent to each individual Subscriber Account, and any such change shall thereafter
be binding and enforceable with respect to Subscriber after the expiration of such Notice Period; provided,
further, that the Session Processing Fee may not be increased by more than one percentage point in any
twelve (12) month period, nor in the aggregate, increased to more than twenty percent (20.00%) of Session
Fees at any time.
Page 16 of 17
12-14-10
Appendix A: Account Information Form for Flex Billing Services
Complete and fax this form to Coulomb Technologies Sales Operations (+1-214-716-1244) to sign up for
Flex Billing services. All fields are required (except where noted).
Business Info
Business Legal Name: __________________________________________________________________
Business Legal Address: ________________________________________________________________
(Number) (Street) (City) (State/Province) (Postal Code) (Country)
Business Federal Tax ID: ________________________________________________________________
Individual Point of Contact
Contact Name: _______________________________________________________________________
Contact Phone: _______________________________________________________________________
Contact Fax: _________________________________________________________________________
Contact Email Address: ________________________________________________________________
Bank Account Info
Bank Name: _________________________________________________________________________
Bank Address: ________________________________________________________________________
(Number) (Street) (City) (State/Province) (Postal Code) (Country)
Bank Routing number or Swift Code: ______________________________________________________
Bank’s Account number (if applicable): ____________________________________________________
Business’s Account Number: ____________________________________________________________
Business’s Account Name: ______________________________________________________________
(Remit To Name, if different than Business Legal Name)
Business’s Account Address: ____________________________________________________________
(Remit To Address, if different than Business Legal Address)
Business’s Federal Tax ID: ______________________________________________________________
(if Remit To Entity is if different than Business Legal Entity)
Additional Information (for Non-US Customers Only)
Intermediary Bank Name: ______________________________________________________________
Intermediary Bank Address: _____________________________________________________________
(Number) (Street) (City) (State/Province) (Postal Code) (Country)
Intermediary Bank Routing or Swift Code: _________________________________________________
Intermediary Bank’ Account number if applicable: ___________________________________________
Page 17 of 17
12-14-10
Commission Meeting Date: February 22, 2011
Date: February 14, 2011
To: Honorable Mayor & City Commission
From: Planning & Economic Development Department
RE: Shoreline Spectacular Request- Labor Day
Weekend 2011
SUMMARY OF REQUEST: In accordance with our recently amended
Special Events Policy, “applicants requesting a Special Events Liquor
License for Labor Day events must go before the City Commission for
approval”. The Shoreline Spectacular is requesting approval for their
event. The Police Department has not approved their request for a
temporary liquor license.
FINANCIAL IMPACT: The Shoreline Foundation, which runs Shoreline
Spectacular, has an outstanding invoice (#9845846) for their 2010
event. It is City policy that all current charges owed to the City must be
paid prior to holding another event.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: To deny the request for the Shoreline
Spectacular event in 2011, due to the fact that their invoice from 2010
has not been paid and the Police Department has not approved their
request for a temporary liquor license.
Commission Meeting Date: February 22, 2011
Date: February 14, 2011
To: Honorable Mayor & City Commission
From: Planning & Economic Development Department
RE: Breakwater Festival Request- Labor Day
Weekend 2011
SUMMARY OF REQUEST: In accordance with our recently amended
Special Events Policy, “applicants requesting a Special Events Liquor
License for Labor Day events must go before the City Commission for
approval”. The Breakwater Festival is requesting approval for their
event.
FINANCIAL IMPACT: Any costs will be paid by the Breakwater Festival.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: None.
Sign up for City of Muskegon Emails