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HomeMy WebLinkAboutRES NO 202-89RESOLUTION NO. 202-89 Resolution of the Council of the City of Bakersfield determining that certain Computer Hardware can be reasonably obtained from only one vendor, IBM Corporation and authorizing the Finance Director to dispense with bidding therefor, not to exceed $294,000.00. WHEREAS, The Finance Director has determined, and has recommended that this Council find:, that computer hardware for the Police Department can be reasonably obtained from only one vendor and has recommended that this Council authorize dispensing with bidding therefor in accordance with Section 3.20.060 B. of the Bakersfield Municipal Code. NOW, THEREFORE], BE IT RESOLVED by the Council of the City of Bakersfield as follows:: The Council hereby finds that computer hardware for the Police Department can be reasonably obtained from only vendor because of the need for compatibility between the existing equipment and the system completion equipment, to wit: IBM Corporation and authorizes the Finance Director to dispense with bidding therefor and to negotiate the purchase of same from such vendor. .......... o0o ........... 5:RES.4 I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on December 13, 1989 by the following vote: AYES, COUNCiLMEMBERS EDWA~DS..DeMOND, S',~ITH, B~UNNI, PETERSON, McDERMOiFr, SALVA§~fO NOES: COU!~Cti MEMBERS: .~ ABSENT C,. , -,,~b ERo CITY CLERK and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED December 13, 1989 MAYOR of the CTty of Bakersffield APPROVED as to form: CITY ATTORNEY of ~the City 6~ ~akersfield 5RESIGNPG PO 64-2759 TO FROM SUBJECT MEMORANDUM Fmbruary 22. 198q R. A. PATTF. R.qON, CHIEF OF POLICE ~. A. RT.ACKRURN, LTEUTRNANT, ADMINTSTRAT/ON DTVT.qTON 'i~EQ'[IV, R'T' WOR COt4PUTER ATDED DISPATCH SYS.TF.M (one) (one) (one) IBM 9370 MODEL 80 COMPbT~2x HARDWARE DISK DRIVE SYSTY~ CAD SO~x~A~E MAIB-£~NANCE (one year) GEO BASED SYS'£~, INC. (psw- ) (PSW-3) $ 204,730 60,000 110,000 44,400 22,000 $ 441,130 The present computer aided dispatch system utilized by the Bakersfield Police Department is owned by the County of Kern. We have been using the county system for three years and pay a user fee annually for terminals and printers of $51,300. During the three year tenure of the computer aided dispatch system, the major problem facing the police communications centel' is the increasing and ex~ended periods of down time the computer is experiencing. An example of this down time is as follows: · For the month of April, 1988, the CAD system was down for a total of eight hours, oz' 99.989% of the time in service. By the later part of November to the first part of December, 1988, a total of two weeks; the system was down for seven hours or a 99.978%" operational time. These figures are unacceptable as industry standards for computer aided dispatch systems in today's technology require an up time of 99.998%. This allows no more than eighty eight minutes per month unscheduled down time to meet these industry requirements. As stated above, our current annual cost to be connected to the County of Kern for computer aided dispatch services is $51,300 per year, however there is no guarantee from Kern County the cost will remain the same, in fact the county data processing division has indicated the cost will probably increase annually to help the county defray the cost of operating the system. Another consideration is the fact the county data processing division quoted a price of $120,000 per year in fiscal year 1988-89, for the City to add a mobile data terminal system to the CAD hardware and Request for Computer Aided Dispatch System Page 2 software at Kern County's Control Five. This price was prohibitive to the City ever entering into the state of the art technology available today for police dispatching and a technology that would defray the cost of adding more personnel to accomplish this same mission of dispatching police officers 'to calls for services. An alternative must be addressed because of channel loading. Channel loading simply stated, is an excessive amount of radio air time used because of increased calls for services and mobile units on limited radio channels. The solution is more personnel and radio channels to dispatch the calls or state of the art computer technology. The logical way to approach the problem of increasing population, increasing officers and increasing calls for services is to incorporate as much technology as is available to defray high and ever increasing personnel costs. If the City were to purchase its own computer aided dispatch system, then the mobile data terminal system could be added without not only~ the current user fee cost, but the additional cost the county has indicated would be in the neighborhood of one million dollars over the next ten year period,, The City, in purchasing a computer aided dispatch system, would not only be able to expand the technological methods of dispatching police officers and civilian personnel to calls for service, DUE would De able to regain control of the management of a City use~ ~ystem. That control was given up to Kern County in an attempt to save money upon our entering the contractual agreement with Kern County to use their system. By going in this direction the City has. ~iven up accountability to ~he system operation and lies at the mercy of Kern County to do the "right thing". CAB:cgm '¥VE WORK HARD TO EARN THESE STRIPES' t =~- ~-~= 4550 California Avenue, Suite 100 Bakersfield CA 93309 ~' (805) 395-2412 December 5, 1989 IBM PROPOSAL TO The City of Bakersfield FOR TIlE POLICE DISPATCH SYSTEM Marketing Representative Kathleen Cummings Marketing Manager qNE WORK HARD TO EARN THESE STRIPES' 4550 California Avenue, Suite 100 Bakersfield CA 93309 ~ (805) 395-2412 Exhibit A Total System Sommarv *Purchase *Monthly (ICC) Hardware IBM Software Non IBM Software and Services Extended Maint.(3) $ 222,765.87 70,838.20 154,400.00 (2) 4,419.82 1,462.00 (1) 3,289.00 35,869.00 722.00 (1) This cost is for months 3 through 60, the 1st month is no charge and the second month is $ 238.00. (2) Cost is supplied by PSW3 and includes taxes. (3) Please view the maintenance chart for the equipment proposed for a non-financed maintenance contract. * All charges include Taxes. 'VVE WORK HARD TO EARN THESE STRIPES' 4550 California Avenue, Suite 100 Bakersfield CA 93309 ~ {805) 395-2412 Exhibit B HARDWARE · 9377-08O · 9332-600 · 9332-600 · 9332-600 · 9309-002 · 3299-002 · 3299-002 · 3299-002 · 3299-002 · 3299-002 · 3299-002 · 3299-002 · 3299-002 · 2440-A02 · 4234-011 System unit Disk Disk Disk Rack Muliplexor Muliplexor Muliplexor Muliplexor Muliplexor Muliplexor Muliplexor Muliplexor 6250 Tape Drive 800 LPM printer 130,999.00 11,545.00 11,545.00 11,545.00 2,214.00 481.00 481.G0 481.00 481.00 481.00 481.00 481.00 481.00 25,515.00 10,237.00 Total Cost Total Cost AT 209,662.00 222,765.87 'WE WORK HARD TO EARN THESE STRIPES' 4550 California Avenue, Suite 100 Bakersfield CA 93309 ~' (805) 395-2412 Exhibit C SOFTWARE · 5656-092 VSE/OLTEP NC · 5656-260 EREP V3 NC · 5666-302 VSE/ICCF V2 3,815.00 · 5666-312 ACF/VTAM (DOS/VSE) 7,600.00 · 5686-005 IBM VSE/Power Version 4 3,620.00 · 5686-006 VSE/SP Version 4 13,590.00 · 5686-007 VSE/AF Version 4 9,975.03 · 5688-052 DITTO for VSE & VM V3 1,785.00 · 5746-AM2 VSE/VSAM 1,538.25 · 5746-AM4 VSE/Fast Copy 353.00 · 5746-CB1 COBOL Compiler/Lib. 3,640.00 · 5746-RC5 BTAM-ES For DOS/VSE 1,050.00 · 5746-SM2 DOS/VS Sort Merge 2,135.00 · 5746-XX3 CICS/DOS/VS 17,570.00 · 5747-DS2 Device Support Fac. VSE NC · 5750-ABF Asset Reg. and Manuals NC Total Cost 66,671.25 Total Cost AT(6.25): 70,838.20 International Business Machines Corporation Bakersfield, California 93309 805/395-2400 TERMS AND CONDITIONS The terms and conditions of the current IBM agreements subsequently signed by customer and IBM shall apply to this proposal. The recommendations for equipment, programs and services contained in this proposal are estimate!; based on the data you have furnished us and on our observations. While we believe our estimates to be sound, the degree of success with which equipment, programs and services can be applied to data processing is dependent on many factors, many of which are not under IBM's control. Therefore, our estimates as to the results to be obtained must not be regarded as express or implied warranties. Successful application, operation and management of IBM products and services are the responsibility of the user. Examples of these responsi- bilities are: confirming the validity of the proposed equipment and programs; developing appropriate systems procedures; incorporating protective measures to safeguard the data from unauthorized modification, destruction or disclosure; incorporate in the application design sufficient checkpoints, balances and controls necessary to satisfy accuracy, restart and audit requirement!;; establishing adequate backup contingency plans; preparing adequate documentation; and providing qualified personnel to obtain the desired results. IBM's responsibilities are set forth in the various IBM agreements executed, or to be executed by both parties. In no event shall IBM have any liability for consequential damages. This proposal will expire ninety (90) days from its date unless extended by IBM in writing; however, this does not apply to pricing. Pricing information is referenced in the following paragraph. The prices stated are for your i'nformation only and are subject to change. Applicable taxes are not shown. Lease or rental of IBM machines will be by the Agreement for Lease or Rental of IBM Machines and its supplement signed by the customer and IBM. Purchase of IBM machines will be by agreement subsequently signed by the customer and IBM. Price protection provisions are stated in the applicable IBM agreements and/or amendments. Selection, supervision, and evaluation of third party programmers, firms and/or individuals, are the exclusive responsibility of the customer. IBM does not warrant, represent, or imply that a third party is qualified to perform the work required. The customer is responsible for the performance of the third party and there is no connection between the third party's successful or on-time performance and the customer's contractual responsi- bilities to IBM for equipment and for software charges. T&C1/pagnja IBM Credit Corporation Name and Address of Lessee: IBM Branch Office Address: TERM LEASE MASTER AGREEMENT STATE AND LOCAL GOVERNMENT Agreement No.: IBM Branch Office No.: IBM Customer No.: Stamford, CT 06904 The lessor pursuant to this Term Lease Master Agreement (Agreement) will be (a) IBM Credit Corporation, or a subsidiary or affiliate thereof, Or (b) a related business enterprise for whom IBM Credit Corporation is the agent (Lessor). The subject matter of the lease shall be machines, field instal[able upgrades, feature additions or accessories marketed by International Business Machines Corporation (IBM) and shall be referred to as Equipment. Any lease transaction requested by Lessee and accepted by Lessor shail be specified in a Term Lease Supplement (Supplement). A Supplement shall refer to and incorporate by reference this Agreement and, when signed by the parties, shall constitute the lease for the individual items contained therein (Lease) for the Equipment specified therein. A Supplement may also specify additional details and terms and conditions as well as other amounts to be financed (Financing). Financing may include charges for licensed program material charges (LPM Charges) for licensed programs marketed by IBM under the agreement specified in the Supple- merit as Referenced License Agreement No. (License Agreement). 1. Lease Options. The Supplement shall designate the option. For Equipment, Option G is a Lease with Purchase Option and Op- tion G Prime (G') is a Lease to Purchase. For LPM Charges, Op- tion S or Option S Prime (S') will apply. For other Financing, Option T or Option T Prime (T') will apply. Prime Options, such as G Prime, S Prime, and T Prime, are re- served for Lessees who are state and local governments or politi- cal subdivisions thereof as defined under Section 103 of the Inter- nal Revenue Code of 1986, as amended, including all Intemat Revenue Service regulations and rulings under this section. 2. Agreement Term. This Agreement shall be effective when signed by both parties and may be terminated by either party upon one month's written notice. However, each Lease then in effect shall survive any termination of this Agreement. 3. Changes. Lessor may only change the terms and conditions of this Agreement by providing prior written notice. Any change will apply only to Leases with an Estimated Shipment Date, or Effec- tive Date for Additional License, on or after the effective date specified in the notice. However, such change shall not apply to Leases, signed by Lessee and received by Lessor on or before the date of the notice, which have an Estimated Shipment Date, or Ef- fective Date for Additional License, three months or less after the date of notice. If such change does apply, Lessee may terminate the Lease for an affected item by providing notice to Lessor within 15 days after receipt of passer's notice and prior to delivery, or E!- fective Date for Additional License, of the affected item. 4. Selection and Use of Equipment, Programming and Licensed Program Materials. Lessee agrees that it shall be re- sponsible for the selection, use of, and results obtained from, the Equipment, any programming supplied by ISM without additional charge for use on the Equipment (programming), licensed pro- gram materials, and any other associated equipment, programs or services. 5. Assignment to Lessor. Lessee hereby assigns, exclusively to Lessor, Lessee's right to purchase the Equipment from IBM. This assignment is effective when Lessor accepts the applicable Sup- plement and Lessor shall then be obligated to purchase and pay for the Equipment. Other than the obligation to pay the purchase price, alt responsibilities and limitations applicable to Customer in the ISM purchase agreement specified in the Supplement as Refer- enced Purchase Agreement No. (Purchase Agreement) shall re- main with Lessee. If the Equipment is subject to a volume procurement or educa- tional allowance amendment to the Purchase Agreement or to another discount offering, (a) Lessor will pay the same amount for the Equipment that would have been payable by Lessee, and (b) Lessee will remain responsible to IBM for any other charges incurred under the discount offering. 6. Full Term Intention; Appropriation of Funds. Lessee intends to pay Rent for the full Lease Term and, if required, to request ap- propriation of funds for the Lease. Nevertheless, Lessee will not be in default for nonpayment as Iong as (a) the funds for the Lease require appropriation by a legislative or other elected authority of a state or local government or a political subdivision thereof, (b) Lessee has duly requested appropriation of funds for Rent, and (c) such funds for the Equipment (or in the case of any Financing, funds for both the Financing and for the Equipment related to the Financing) or comparable equipment are not appropriated for any fiscal year during the Lease Term. If a nonappropriation of this kind occurs, Lessee wilt promptly notify Lessor, and the Lease for the Equipment and Financing involved will terminate at the end of the last fiscal year for which funds were appropriated. Other than for a nonappropriation of this kind, the Lease may not be cancelled during its Term, and the obligation of Lessee to pay the Rent for the Term of the Lease shall be absolute and not subject to any re- duction for any reason whatsoever. If the Equipment, program- THE ADDITIONAL TERMS AND CONDITIONS ON PAGES 2 THROUGH 4 ARE PART OF THIS AG REEMENT. LESSEE ACKNOWLEDGES THAT LESSEE HAS READ THIS AGREEMENT AND ITS SUPPLEMENT, UNDERSTANDS THEM, AND AGREES TO SE BOUND BY THEIR TERMS AND CONDITIONS. FURTHER, LESSEE AGREES THAT THIS AGREEMENT AND ITS SUPPLEMENT ARE THE COM- PLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL PROPOSALS OR PRIOR AGREE- MENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF. Accepted by: IBM Credit Corporation Authorized Signature Lessee Authorized Signature Name .......................................................................................... (Type or Print) ~)~ ......... ~r:n~ ~T¢~-~F'I~i~i) ........................................ '-'~---~/~6~t-~- ...... L sso.'s ming or licensed program materials unsatisfactory for any reason, Lessee shall make any claim surely against the supplier and shall, nevertheless, pay Lessor all amounts payable under the Lease. 7. Warranties. Lessor grants to Lessee the benefit of any and all warranties made available by IBM in the Purchase Agreement. Lessor warrants that neither Lessor nor anyone acting or claiming through Lessor, by assignment or otherwise, will intedere with Les- see's quiet enjoyment of the use of the Equipment so long as no event of default shall have occurred and be continuing. EXCEPT FOR LESSOR'S WARRANTY OF QUIET ENJOYMENT, LES- SOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MA'rrER WHATSOEVER, INCLUDING, BUT NOT LIM- ITED TO, THE IMPLIED WARRANTIES OF MERCHANTABIL- ITY OR FITNESS FOR A PARTICULAR PURPOSE. AS TO LES- SOR, LESSEE LEASES THE EQUIPMENT AND TAKES ANY PROGRAMMING "AS IS." IN NO EVENT SHALL LESSOR HAVE ANY LIABILITY FOR, NOR SHALL LESSEE HAVE ANY REMEDY AGAINST LESSOR FOR, CONSEQUENTIAL DAM- AGES, ANY LOSS OF SAVINGS OR LOSS OF USE. 8. Lessee Authorization. So ~ong as Lessee is not in default under the Lease, Lessee is authorized to act on Lessor's behalf concerning any IBM warranty service for the Equipment, and any programming services for the programming. 9. Defiveryandlnstallation. Lesseesha~larrangewith*SMforthe delivery of the Equipment and programming and for installation of the Equipment at the Equipment Location. Lessee shall pay any delivery and installation charges. Lessor shall not be liable to Les- see for any delay in, or failure of, delivery of the Equipment or pro- gramming. Lessee shall examine the Equipment and program- ming immediately upon delivery. If the Equipment is not in good condition or the Equipment or programming does not correspond to IBM'S specifications, Lessee shall promptly give IBM written notice and shall provide IBM reasonable assistance.to cure the defect or discrepancy. 10. Late Defivery. If the Equipment or licensed program mate- rials are not delivered to the Equipment Location on or before the 15th day after the Estimated Shipment Date, Lessor may, upon written notice to Lessee prior to delivery, increase the Lease Rate. Lessee may terminate the Lease for the affected item upon written notice to Lessor prior to delivery. Otherwise, the Rent shall be ad- justed to reflect such increase. 11. Rent Commencement Date. The Rent Commencement Date, unless otherwise specified in the Supplement, shall be the date payment is due ~BM under the applicable Purchase Agreement or License Agreement. Lessee shall be notified of the Rent Com- mencement Date and the serial numbers of the Equipment. 12. Lease Term. The Lease shall be effective when signed by both parties. The initial Term of the Lease shall expire at the end of the number of Payment Periods, specified as "Term" in the Sup- plement, after the Rent Commencement Date. However, obliga- tions under the Lease shall continue until they have been per- formed in full. 13. Rate Protection. Unless modified pursuant to Paragraph 10, the Rent shall be based on the Lease Rate specified in the Supple- ment or such greater Lease Rate as may be specified by written notice to Lessee more than three months before the Estimated Shipment Date or Effective Date for Additional License. By notice to Lessor in writing prior to delivery, or Effective Date for Additional License, and within 15 days after receipt of such notice, Lessee may terminate the Lease for the affected item. Otherwise, the Rent shall be adjusted to reflect the increase. The Unit Purchase Price and LPM Charges are subject to change in accordance with the applicable Purchase Agreement or License Agreement. 14. Rent. During the initial Term, Lessee shall pay Lessor, for each Payment Period, Rent as determined in Paragraph 13. Les- see's obligation to pay shall begin on the Rent Commencement Date. Rent will be invoiced in advance as of the first day of each Payment Period and will be due on the day following the last day of the Payment Period. When the Rent Commencement Date is not on the first day of a calendar month and/or when the initial Term does not expire on the last day of a calendar month, the applicable Rent will be prorated on the basis of 30-day months. 15. Renewal If Lessee is not then in default under the Lease, Lessee may renew the Lease one or more times but, for Option G, the Lease may not continue beyond five years from the Date of Installation as defined in the Purchase Agreement. Lessor shall offer renewal Tern ~i one year and may offer longer Terms if then generally available. For a renewal Term, upon request by Lessee, at least five months prior to Lease expiration, Lessor shall notify Lessee, at least four months prior to Lease expiration, of the Rent, any changes to the Payment Period and due dates, and of any re- quired Purchase Option or Renewal Option Percents not specified in the Supplement. The Rent shall be objectively determined by Lessor by using the projected fair market rental value of the Equip- ment as of the commencement of such renewal Term. Lessee may renew for any renewal Term only by so notifying Lessor in writing at least three months prior to Lease expiration. 16. Optional Extension. If Lessee has not elected to renew or purchase, and as long as Lessee is not in default under the Lease, the Lease (other than Leases that expire five years from Date of Installation) wilt be extended unless Lessee notifies Lessor in writ- ing, not less than three months prior to Lease expiration, that Les- see does not want the extension. The extension will be under the same terms and conditions then in effect, including Rent (but not less than fair market rental value) and will continue until the earlier of termination by either party upon three months' prior written notice or five years from the Date of Installation. 17~ Title Transfer at Expiration of Option G Prime Lease. Follow- ing the payment of all amounts due or to become due under the Lease and the additional payment of $1.00 and if Lessee is not then in default under the Lease, upon the expiration of the Lease for Equipment under Option G Prime, Lessor shall transfer to Les- see without recourse or warranty of any kind, express or implied, all of Lessor's right, title and interest in and to such Equipment on an "As Is, Where Is" basis except that Lessor shall warrant title free and clear of all encumbrances arising through Lessor. 18. Purchase of Equipment. For Option G, if Lessee is not then in default under the Lease, Lessee may, upon three months prior written notice to Lessor, purchase Equipment upon expiration of the lease. The purchase price shall be objectively determined by Lessor by using the projected fair market sales value of the Equip- ment as of such expiration date. For Option G Prime, if Lessee is not then in default under the Lease, Lessee may, upon notice to Lessor, ~urchase Equipment at any time during the Lease Term. Such notice shall be given not later than three months prior to Lease expiration and shall specify the desired date of purchase, which shall be one month or more afte? the date of notice. If the date of purchase is prior to the second annwersary of the Rent Commencement Date, the purchase price shall be calculated by multiplying the Unit Purchase Price specified in t~e Supplement by the Purchase Option Percent for the second ann~verary and adding all Rent that would be due through such niverary date. If the date of purchase is the second or a subsequent anniversary of the Rent Commencement Date, the purchase price shall be an amount determined by multiplying the Unit Purchase pric? by the Purchase Option Percent for such Equipment for such If the date of purchase is between two such anniversaries, the purchase price shall be the prorated price (in 12 monthly steps) be- tween the purchase prices described above for such ann~ver- If Lessee purchases any Equipment, Lessee shall, on or before the date of purchase, pay to Lessor the purchase price, any appli- cable taxes, all Rent due through the day preceding the date of pur- chase, any other amounts due, and the prepayment of any Financ- ing (Paragraph 32). Lessor shall upon the later of payment or date of purchase, transfer to lessee by bill of sale, without recourse or warranty of any kind, express or imptied, ail of Lessor's right, title and intrest in and to such Equipment on an "As In, Where Is" basis except that Lessor shall warrant title free and clear of all encumbr- ances arising through Lessor. 19. Inspection; Marking; Financing Statement. Upon reduest, Lessee shall make the Equipment and its maintenance records available for inspection by Lessor during Lessee's normal busi- ness hours. Lessee shall affix to the Equipment any labels indicaI- ing ownership supplied by Lessor. Lessee shall execute and de- liver to Lessor for fiting any Uniform Commercial Code financing statements or similar documents Lessor may reasonably request. 20. Equipment Use. Lessee agrees that Equipmentwillbeoper- ated by competent, qualified personnel, in accordance with appli- cable operating instructions, laws and government regulations. 21. Maintenance. Lessee, at its expense, shall keep the Equip- merit in a suitable environment as specified by IBM and in good con- Page 2 of 4 d/t/on and working order, ordinary wear ar ar excepted. 22. Alterations; Modifications; Parts. L~. Ce may alter or modify the Equipment only upon written notice to Lessor. Any non-iBM alt- eration is to be removed and the Equipment restored to its normal, unaltered condition at Lessee's expense prior to its return to Les- sor. At Lessee's option, any ISM field instatlable upgrade, feature addition or accessory added to any item of Equipment (Modifica- tion) may be removed. If removed, the Equipment is to be restored at Lessee's expense to its normal, unmodified condition. If not re- moved, such Modification shall, upon return of the Equipment, come, without charge, the property of Lessor free of all encumbr- ances. Restoration will include replacement of any parts removed in connection with the installation of an alteration or Modification. Any part installed in connection with warranty or maintenance ser- vice shall be the property of Lessor. 23. Leases for Modifications and Additions. Upon Lessee's re- quest, Lessor will arrange for leasing of Modifications and Addi- tions under terms and conditions then generally in effect. Additions shall be machines, or LPM Charges for licensed program mate- dais, which are associated with the Equipment. These Modifica- tions and Additions must be ordered by Lessee from IBM. Any lease for Modifications to Equipment shall, and any lease for Additions may, expire at the same time as the Lease for the Equipment. The rent shall be determined by Lessor and specified in a SupCement. If Lessee purchases Equipment prior to Lease expiration, Lessee shall simultaneously purchase any Modifications under Lease. 24. Return of Equipment. Upon expiration or termination of the Lease for any item of Equipment, or upon demand by Lessor pur- suant to Paragraph 34, Lessee shall promptty return the Equip- ment, freight prepaid, to a location in the continental United States specified by Lessor. Except for Casualty Loss, Lessee shall pay any costs and expenses incurred by Lessor to inspect and qualify the Equipment for ~BM'S maintenance agreement service. Any parts removed in connection therewith shall become Lessor's property. 25. Casualty lnsurance; Loss or Damage. Lessorwill maintain, at its own expense, insurance covering loss of or damage to the Equipment (but excluding any Modifications not subject to a Lease and any non-iBM alterations). If any item of Equipment shall be lost, stolen, destroyed or irreparably damaged for any cause what- soever (Casualty Loss) before the Date of Installation, the Lease for that item shall terminate. If any item of Equipment suffers Casu- ally Loss, or shall b(~ otherwise damaged, on or after the Date of Installation, Lessee shall promptly inform Lessor. If Lessor deter- mines that the item can be economically repaired, Lessee shall place the item in good condition and working order and Lessor will reimburse Lessee the reasonable cost of such repair. If not so re- pairable, the Lease for that item shall terminate. 26. Taxes. All taxes on or measured by the net income of Lessor, any taxes resulting from the Purchase Agreement, and any prop- erty taxes shall be for the account of Lessor. All other taxes of any description attendant to transactions under the Lease shall be for the account of Lessee, either by reimbursement of Lessor, or, at Lessor's request, directly paid by Lessee to the taxing authority. 27. Lessor's Payment. If Lessee fails to perform its obligations under Paragraph 26 or 29 or to discharge any encumbrances created by Lessee, Lessor shall have the right to substitute perfor- mance, in which case, Lessee shall pay Lessor the cost thereof. 28. Net Lease. The Lease shall be strictly a net lease. Con- sequectly, unless specifically provided otherwise in the Lease, claims, costs and expenses of any description connected with the Lease shall be for the sole account of Lessee, except that Lessor shall bear responsibility, to the extent of its fault, for claims for per- sonal injury or real and tangible personal property damage caused by Lessor's negligence. 29. L/ability Insurance. Lessee shall obtain and maintain com- prehensive general liability insurance, in an amount of $1,000,000 or more for each occurrence, with an insurer having a "Best's Policyholders" rating of B + or better. The policy shall name Les- sot as an additional insured as Lessor's interests may appear and shall contain a clause requiring the insurer to give Lessor at least one month's prior written notice of the cancellation, or any altera- t/on in the terms, of the policy. Lessee shall furnish to Lessor, upon request, evidence that such insurance coverage is in effect. 30. Sublease and Relocation of Equipment; No Assignment by Lessee. Upon Lessor's prior written consent, which will not be un- reasonably withheld, Lessee may sublet the Equipment or relocate it from the Equipment Location. No sublease or relocation shall re- lieve Lessee of its gallons under the Lease. In no event shall Lessee remove th~ ,equipment from the United States. Lessee shall not assign, transfer or otherwise dispose of the Lease or Equipment, or any interest therein, or create or suffer any levy, lien or encumbrance thereon except those created by Lessor. 31. Financing of LPM Charges. If the Lease provides for financ- ing of LPM Charges, Lessor will pay such Charges directly to ISM. Any other charges due IBM under the License Agreement shall be paid directly to IBM by Lessee. If Lessee discontinues any of the licensed program materials in accordance with the terms of the License Agreement prior to the date LPM Charges are due, the fi- nancing of affected LPM Charges shall be cancelled; otherwise, Lessee's obligation to pay Rent shall not be affected by any dis- continuance, return or destruction of any license or licensed pro- gram materials under the License Agreement. 32. Financing Prepayment (does not apply for ~terns of Equip- ment). Lessee may terminate any item of Financing (but not an item of Equipment) by prepaying its remaining Rent. Lessee shall provide Lessor with notice of the intended prepayment date which shall be at least one month after the date of the notice. Lessor may, depending on market conditions at the time, reduce the remaining Rent to reflect such prepayment and shall advise Lessee of the balance to be paid. If, prior to Lease expiration, Lessee purchases the Equipment retated to the Financing or if the Lease for such Equipment is terminated, for any reason except if funds are not ap- propriated as described in Paragraph 6, Lessee shall at the same time prepay such Financing. 33. Default; No Waiver. Lessee shall be in default under the Lease upon the occurrence of any of the following events: (a) Les- see fails to pay when due any amount required to be paid by Les- see under the Lease and such failure shall continue for a period of seven days after the due date; (b) Lessee fails to perform any other provisions under the Lease or Lessee fails to perform any of its obligations under any other Lease entered into pursuant to this Agreement, and such failure or breach shall continue unremedied for a period of 15 days after written notice is received by Lessee from Lessor; (c) Lessee violates any of the covenants or represen- tat/ohs made by Lessee to Lessor with respect to any Lease eh- tered into pursuant to this Agreement or in any agreement with IBM with respect to the Equipment or licensed program materials or fails to perform any provision in any such agreement (except the obligation to pay the purchase price or LPM Charges). Any failure of Lessor to require strict performance by Lessee or any waiver by Lessor of any provision in the Lease shall not be con- strued as a consent or waiver of any other breach of the same or of any other provision. 34. Remedies. If Lessee is in default under the Lease, Lessor shall have the right, in its sole discretion, to exercise any one or more of the following remedies in order to protect its interests, reasonably expected profits and economic benefits. Lessor may (a) declare any Lease entered into pursuant to this Agreement to be in default; (b) terminate in whole or in part any Lease; (c) re- cover from Lessee to the extent permitted by law any and all amounts then due and to become due; (d) take possession of any or all items of Equipment, wherever located, without demand or notice, without any court order or other process of law; and (e) de- mand that Lessee return any or all such items of Equipment to Les- sor in accordance with Paragraph 24 and, for each day that Lessee shall fail to return any items of Equipment, Lessor may demand an amount equal to the Rent, prorated on the basis of a 30-day month, in effect immediately prior to such default. Upon repossession or return of such item or items of Equipment, Lessor shall sell, lease or otherwise dispose of such item or items in a commercially reasonable manner, with or without notice and on public or private bid, and apply the net proceeds thereof towards the amounts due under the Lease but only after deducting, (i) in the case of sale, the estimated fair market value of such item or items as of the scheduled expiration of the Lease, or (ii) in the case of any replace- ment lease, the rent due for any period beyond the scheduled expi- ration of the Lease for such item or items; and (iii) in either case, all expenses, including legal fees, incurred in connection there- with. Any excess net proceeds are to be retained by Lessor. Lessor may pursue any other remedy available at law or in equity, includ- ing, but not limited to, seeking damages, specific performance and an injunction. No right or remedy is exclusive of any other provided herein or permitted by law or equity. All such dghts and remedies shall be Page 3 of 4 LESSOR'S ORIGINAL cumulative and may be enforced con( mtly or individually from time to time. 35. Ownership; Persona/ Property,' L ,bensed Program Materials. The Equipment under Lease is and shall be the property of Lessor. Lessee shall have no right, title or interest therein excep as set forth !n the Lease. The Equipment is, and shall at a I times be and rema~n~ personal property and sha~l not become a fixture or realty. Licensed program materials are licensed and provided by IBM di- rectly to Lessee under the terms and conditions of the License Agreement. 36. Notices,' Administration. Service ef all notices under the Lease shall be sufficient if delivered personally or mailed to Lessee at its address specified in the Supplement or to Lessor in care of the IBM Branch Office specified in the Supplement. Notice by mail shalt be effective when deposited in the United States mail, duly addressed and with postage prepaid. Notices, consents and ap- provals from or by Lessor shall be given by Lessor or on its behalf by IBM and all payments shall be made to ~B,~ until Lessor shall notify Lessee otherwise. 37. Revisions for Previously Installed Equipment Equipment in- stalled with Lessee under an ~BM lease or rental agreemenl may be purchased by Lessor, on the Effective [)ate of Purchase (as de- fined in the Purchase Agreement), for lease to Lessee under Op- tion G or G Prime. For such Equipment, the Lease shall be revised as follows: Paragraphs 3, 15, 16 and 25 - replace "Estimated Shipment Date" by "Intended Effective Date of Purchase" and replace "de- livery" and "Dat6 ,stallation" by "Effective Date of Purchase"; Paragraph 5- aod at the end of the first paragraph, "Assignment of the option to purchase installed Equipment at the net purchase option price under an iBM lease or rental agreement will be permit- ted only when Lessee submits the Supplement in sufficient time to achieve the Intended Effective Date of Purchase. The Effective Date of Purchase under this assignment shall be the later of the first day of the Quotation Month or the day on wh ch the Supple- ment is accepted by Lessor. If the Quotation Month expires and the purchase of Equipment is not concluded, this assignment and Lease will be null and void regarding any such Equipment and all rights, duties and obligations of Lessee and IBM will remain in ac- cordance with the provisions of the 18M agreement under which the Equipment is currently installed."; Paragraphs 9 and 1 O-delete both paragraphs; and Paragraph 13 - replace entire paragraph wth the following: "The Rent shall be based on the Lease Rate specified in the Sup- plement or such greater Lease Rate as may be specified by written notice to Lessee more than three months before the Effective Date of Purchase. The Unit Purchase Price is subject to change in ac- cordance with the referenced Purchase Agreement. Lessee may terminate the Lease for any item sub ect to an increase by givin, g Lessor written notice on or be ore the Effective Date of Purchase. ' 38. Appfioabte Law,' Severability. Lessee's state laws shall gov- ern the Lease. If any provision of the Lease shall be held to be in- valid or unenforceable, the validity and enforceability of the re- maining provisions shall not in any way be affected or impaired. Page 4 of 4 'WE WORK HARD TO EARN THESE STRIPES' 4550 California Avenue, Suite 100 Bakersfield CA 93309 ~' (805) 395-2412 December 5, 1989 IBM PROPOSAL TO The City of Bakersfield FOR TIlE POLICE DISPATCH SYSTEM ffoonala a.' Thornton/"- Marketing Representative Marketing Manager 'WE WORK HARD TO EARN THESE STRIPES' 4550 California Avenue, Suite 100 Bakersfield CA 93309 ~' (805) 395-2412 Exhibit A Total System Summary *Purchase *Monthly ICC) Hardware IBM Software Non IBM Software and Services Extended Maint.(3) $ 222,765.87 70,838.20 154,400.00 (2) 4,419.82 1,462.00 3,289.00 35,869.00 722.00 (1) (z) (2) (3) This cost is for months 3 through 60, the 1st month is no charge and the second month is $ 238.00. Cost is supplied by PSW3 and includes taxes. Please view the maintenance chart for the equipment proposed for a non-financed maintenance contract. * All charges include Taxes. 'WE WORK HARD TO EARN THESE STRIPES' 4550 California Avenue, Suite 100 Bakersfield CA 93309 ~' (805) 395-2412 Exhibit B HARDWARE · 9377-080 · 9332-600 · 9332-600 · 9332-600 · 9309-002 · 3299-002 · 3299-002 · 3299-002 · 3299-002 · 3299-002 · 3299-002 · 3299-002 · 3299-002 · 2440-A02 · 4234-011 System unit Disk Disk Disk Rack Muliplexor Muliplexor Muliplexor Muliplexor Muliplexor Muliplexor Muliplexor Muliplexor 6250 Tape Drive 800 LPM printer 130,999.00 11,545.00 11,545.00 11,545.00 2,214.00 481.00 481.b0 481.00 481.00 481.00 481.00 481.OO 481.O0 25,515.00 10,237.00 Total Cost Total Cost AT 209,662.00 222,765.87 'WE WORK HARD TO EARN THESE STRIPES' 4550 California Avenue, Suite 100 Bakersfield CA 93309 ~' (805) 395-2412 Exhibit C SOFTWARE · 5656-092 VSE/OLTEP NC · 5656-260 EREP V3 NC · 5666-302 VSE/ICCF V2 3,815.00 · 5666-312 ACF/VTAM (DOS/VSE) 7,600.00 · 5686-005 IBM VSE/Power Version 4 3,620.00 · 5686-006 VSE/SP Version 4 13,590.00 · 5686-007 VSE/AF Version 4 9,975.0D · 5688-052 DITTO for VSE & VM V3 1,785.00 · 5746-AM2 VSE/VSAM 1,538.25 · 5746-AM4 VSE/Fast Copy 353.00 · 5746-CB1 COBOL Compiler/Lib. 3,640.00 · 5746-RC5 BTAM-ES For DOS/VSE 1,050.00 · 5746-SM2 DOS/VS Sort Merge 2,135.00 · 5746-XX3 CICS/DOS/VS 17,570.00 · 5747-DS2 Device Support Fac. VSE NC · 5750-ABF Asset Reg. and Manuals NC Total Cost 66,671.25 Total Cost AT(6.25): 70,838.20 International Business Machines Corporation 4550 California Ave., Suite 100 Bakersfield, California 93309 805/395~2400 TERMS AND CONDITIONS The terms and conditions of the current IBM agreements subsequently signed by customer and IBM shall apply to this proposal. The recommendations for equipment, programs and services contained in this proposal are estimates based on the data you have furnished us and on our observations. While we believe our estimates to be sound, the degree of success with which equipment, programs and services can be applied to data processing is dependent on many factors, many of which are not under IBM's control. Therefore, our estimates as to the results to be obtained must not be regarded as express or implied warranties. Successful application, operation and management of IBM products and services are the responsibility of the user. Examples of these responsi- bilities are: confirming the validity of the proposed equipment and programs; developing appropriate systems procedures; incorporating protective measures to safeguard the data from unauthorized modification, destruction or disclosure; incorporate in the application design sufficient checkpoints, balances and controls necessary to satisfy accuracy, restart and audit requirements; establishing adequate backup contingency plans; preparing adequate documentation; and providing qualified personnel to obtain the desired results. IBM's responsibilities are set forth in the various IBM agreement!; executed, or to be executed by both parties. In no event shall IBM have any liability for consequential damages. This proposal will expire ninety (90) days from its date unless extended by IBM in writing; howewer, this does not apply to pricing. Pricing information is referenced in the following paragraph. The prices stated are for your i'nformation only and are subject to change. Applicable taxes are not shown. Lease or rental of IBM machines will be by the Agreement for Lease or Rental of IBM Machines and its supplement signed by the customer and IBM. Purchase of IBM machines will be by agreement subsequently signed by the customer and IBM. Price protection provisions are stated in the applicable IBM agreements and/or amendments. Selection, supervision, and evaluation of third party programmers, firms and/or individuals, are the exclusive responsibility of the customer. IBM does not warrant, represent, or imply that a third party is qualified to perform the work required. The customer is responsible for the performance of the third party and there is no connection between the third party's successful or on-time performance and the customer's contractual responsi- bilities to IBM for equipment and for software charges. T&C1/pagnja Revised 3/89 International Business Machines Armonk, New York 10504 Name and Address of Customer; IBM Branch Office Address: ,rporation Installment Payment Agreement (State and Local Government) Reference Agreement No.: Reference Supplement Datsd: Agreement No.: IBM Branch Office No.: Customer No.: International Business Machines Corporation (IBM) and the Customer agree that this Instalrment Payment Agreement supplements and amends the referenced Agreement for Purchase of IBM Machines and its referenced Supplement with respect to the following IBM machines, features, model upgrades, machine elements and/or accessories (hereinafter called "Machines" unless the context requires individual reference). ~BM P~ant Order or Purchase Machine Serial Model or Price $ Qty. Type Number (*) Feature D~scription (Net Unit Price) Amount $ (*) An "*" indicatss Machine Serial Number. Statement of Transaction TOTAL:$ 1. Cash Price (if this were a cash sale) ................................................... $ 2. Trade-In Allowance Credit (from IBM trade-in agreement) ............................... $ 3. Cash Down Payment ................................................................. $ 4. Total Down Payment (Sum of Items 2 and 3) ........................................... $ 5. Unpaid Balance of Cash Price (Item 1 minus Item 4) .................................... $ 6. State and Local Taxes, if applicable ................................................... $ 7. Amount to be Financed (Sum of Items 5 and 6) ........................................ $ 8. FINANCE CHARGE (Time Price Differential on Item 7). Finance Charge consists of interest at an ANNUAL PERCENTAGE RATE of % ........................ $ · 9. Tax on Finance Charge, if applicable, (payabte in first installment) ...................... $ 10. Total Amount of Remaining Payments (Sum of Items 7, 8 and 9) ......................... $ 11. Total Time Sale Price (Sum of Items 4 and 10) ......................................... $ Pa~e I of 4 Payments The Customer agrees to pay the Cash Down Payment, if any, (a) upon the Date of installation of the Machines or (b) with respect to installed Machines., on the Effective Date of Purchase, and agrees to pay the Total Amount of Remaining Payments in consecutive Periodic Payments, including Finance Charge, for the Fiscal Periods as set forth below in either Payment Plan I or Payment Plan II. PAYMENT PLAN I Periodic Payment Finance Charge Fiscal (Annual) (Included in Period (Biennial) Payment) The Customer n',.., at any time, pay in advance the full amount due hereunder and the Finance Charge will be adjusted by IBM to reflect the shorter payment period. All remittances are to be made to the IBM Branch Office address listed herein unless otherwise requested by IBM. Assignments This Instalrment Payment Agreement is not assignable by the Customer, nor may the Customer sell, transfer, sub- stantially modify, relocate or dispose of any or all of the Machines without prior written permission of IBM. In no event may the Machines be relocated outside the United States. Any attempted assignment or transfer by the Customer of any of the rights, duties or obligations of this Installment Payment Agreement is void. PAYMENT PLAN II Total Finance Periodic Payment Charge for (Total of Monthly Fiscal Period Fiscal Payments for Monthly (Included in Period Fiscal Period) Payment Payments) The Periodic Payment for Period 1, which includes the Tax on Finance Charge, if applicable, is due on the first business day of the month following the Dateof Installation or the Effective Date of Purchase, and the Periodic Pay- ments for Periods 2 through are due on the first business day of each succeeding Fiscal Period. If Payment Plan I has been chosen, payments must be made in full on the due dates. If Payment Plan II has been chosen, payments must be made in equal consecutive monthly installments, except that the first installment will includethe Tax on Finance Charge, if applicable, beginning on the due dates and continuing on the corresponding day of each month of each Fiscal Period until fully paid. Payments include Finance Charge in the appropriate amount in- dicated above. The Customer having been offered the choice of pur- chasing at the foregoing Cash Price (plus applicable State and Local Taxes) or at the Total Time Sale Price has elected to purchase at such Total Time Sale Price. Customers Covenants The Customer covenants and agrees that (a) it will not create, assume, or voluntarily suffer to exist, without giving IBM at least 15 calendar days' prior written notice, any mortgage, pledge, encumbrance, security interest, lien or charge of any kind upon any or all of the Machines; (b) it will keep the Machines in good repair and operating condition; (c) it will promptly pay all taxes, interest and other charges when levied or assessed upon the Machines or their operation or use, or upon IBM, exclusive of taxes based on IBM's net income, in connection with this Installment Payment Agreement; (d) it will promptly satisfy all liens against the Machines; and (e) there are no mortgages, pledges, encumbrances, security interests, liens or charges of any kind by any party other than iBM or assigns upon the machines on which features, model upgrades, machine elements or accessories will be installed subject to this Installment Payment Agreement. The Customer further agrees to procureand maintain fire insurance with extended coverage against loss, theft, damage to or destruction of the Machines for the full insurable value thereof for the duration of this Installment Payment Agreement, the policy for such insurance being endorsed to show loss payable to IBM and assigns as respective interests may appear. Upon request, a certificate of such insurance will be furnished to IBM or assigns. Any proceeds received directly by IBM under such insurance shall be credited to the payment required from the Custo- mer pursuant to the Section entitled "Casualty Occur- Casualty Occurrences A Casualty Occurrence shall be deemed to exist if any of the Machines shall be lost, stolen, irreparably damaged or destroyed or otherwise rendered permanently unfit for use from any cause whatsoever prior to the payment in full of the Total Time Sale Price. To the extent permitted by law, the Customer shall promptly pay to iBM a sum equal to the aggregate Casualty Value of such Machines. The Casualty Value of each Machine suffering a Casualty Occurrence shall be the sum of the unpaid balances of the State and Local Taxes, Unpaid Balance of Cash Price and Finance Charge at the time of such Casualty Occurrence and attributable to such Machine. The Finance Charge shall be adjusted by IBM to reflect the shorter payment period. Any money so paid shall be applied by IBM to reduce installments thereafter failing due so that such installments represent only the payments due for the remaining Ma- U/M 025 I Page2of4 / chines~ Any excess insurance pa~ 3ts received by IBM shall be credited to the Customer. Events of Default Any one or more of the foilowl ng are Events of Defau It: (a) the Customer faits to pay when due any amount required to be paid by the Customer hereunder and such failure shalt continue for a period of seven days after the due date, except as provided in the Section entitled "Funding"; {b) the Customer fails to procure and maintain insurance as required in this Installment Payment Agreement; (c) the Customer faits to perform any other provisions hereunder or violates any of the covenants or agr{~ments made by the Customer hereunder, and such failure or breach shall continue for a period of 15 days after written notice is received by the Customer from IBM; or (d) any insolvency proceedings of any character, voluntary or involuntary, shall be instituted by or against the Customer. Any failure of IBM to require strict performance by the Customer or any waiver by IBM of any provision of this Installment Payment Agreement shall not be construed as a consent or waiver of any other breach of the same or of any other provision. Remedies If an Event of Default shall haw.~ occurred and be continuing, IBM or assigns may, to the extent permitted by law, (a) recover from the Customer any and all amounts then due and to be become due; (b) take possession of any or all of the Machines, wherever located, without demand or notice and without any court order or other process of law, or render them unusable, and retain all prior payments as partial compensation for their use and depreciation; (c) require the Customer to assemble the Machines and make them available to IBM, freight prepaid, at any ptace in the continental United States specified by IBM; and/or (d) incur reasonable attorney's fees and legal expenses in exercising any of its rights and remedies upon default which the Customer hereby agrees to pay. Upon repossession of such Machines, IBM may sell, lease or otherwise dispose of any or all of the Machines in a commercially reasonable manner, with or without notice and by public or private proceedings, and apply the net proceeds thereof towards the amounts due under this Installment Payment Agree- ment after deducting the reasonable expenses of retaking, holding and preparing for such disposition and deducting reasonable attorr ,~ fees and legal expenses. IBM will pay to the Customer any portion of the net proceeds in excess of the unpaid Total Time Sale Price. In the event IBM repossesses and removes a feature, model upgrade, machine element or accessory, it shall be the Customer's responsibility to restore any remaining information processing equipment to good working order.. The Customer a¢~rees that IBM shall have no liability for damages caused by the repossession of such a feature, model upgrade, machine element or accessory or by the Customer's failure to fulfill such responsibilities. Further, IBM shall have no obligation to reimburse the Customer, user or any other secured party for the cost of repair resulting from such removal. IBM may pursue any other remedy available at law or in equity, including, but not limited to, seeking damages, specific performance and an injunction. No right or remedy is exclusive of any other provided herein or permitted by law or equity. All such rights and remedies shall be cumulative and may be enforced concurrently or individ- ually from time to time. Funding Since the Customer intends to request the appropriation of funds periodically to be paid for the Machines, if funds are not appropriated for the Customer for such Periodic Payment for any future Fiscal Period, the Customer will not be obligated to pay the remainder of the Total Time Sale Price due beyond the end of the then current Fiscal Period. Such event will not constitute an Event of Default. The Customer agrees to notify IBM in writing of such nonappro- priation at the earliest possible time. in the event that funds are not appropriated as provided above and the Customer is unable to make further pay- ments due under this Installment Payment Agreement beyond the end of the then current Fiscal Period, IBM will, within a reasonable time after the end of such Period, enter and take the Machines from the Customer's premises and will retain all sums previously paid by the Customer to IBM as partial compensation for machine use and depreciation; provided, however that upon the Customer's request, the Customer may, prior to such repossession, retain the Machines during a reasonable period agreed to by IBM at a monthly charge designated by IBM, beginning on the first day following the last Fiscal Period for which payment has been made hereunder. Page 3 of 4 Security Interest and Location of M nes To secure the payment of the Tota~ ~ ime Sale Price, IBM reserves a purchase money secudty interest in each of the Machines, and the Customer hereby grants a security interest in any substitutions, replacements, accessions, and additions thereto and the proceeds thereof. Such interest shall be satisfied by payment in full of the Total Time Sale Price. A copy of this Installment Payment Agreement may be filed with appropriate state and local authorities, at any time after signature by the Customer, as a financing statement in order to perfect IBM's security interest. Such filing does not constitute acceptance of this Installment Payment Agreement by IBM. The Customer also shall execute from time to time, alone or with IBM, any financing statements or other documents and do such other act or acts considered by IBM to be necessary or desirable to perfect or protect the security interests hereby created. The Machines shall remain personal property, not become fixtures to real property, and be kept at: (Street address) (City) (County) (State) where IBM may inspect them at any reasonable time. General If the Net Unit Price for any Machine is adjusted as provided in the referenced Agreement, or the trade-in allowance for any trade-in equipment is adjusted as pro- vided in an applicable IBM trade-in agreement, Items No. 1 through 11 in the Statement of Transaction and the Payments herein agreed to be paid shall be adjusted, and this Installment Payment Agreement shall be deemed to be amended accordingly. The terms and conditions of this Installment Payment Agreement shall prevail notwithstanding any variance with the terms and conditions of the referenced Agreement. Should this Installment Payment Agreement and/or the referenced Agreement be held by the courts to be invalid or unenforceable, th ties agree that the Machines shall be deemed to have be=,~ installed under IBM's State and Local Government Lease Plan pursuant to the terms and condi- tions of IBM's applicable agreement and/or amendment at IBM's applicable Lease Plan Monthly Charges, commenc- ing with the Date of Installation or the Effective Date of Purchase of the Machines. For the period prior to such holding, IBM shall credit to the applicable Lease Plan Monthly Charges the amounts paid by the Customer to IBM under this Installment Payment Agreement and amounts paid by the Customer for maintenance, property taxes and insurance. Any excess credits will be refunded to the Customer, and any deficiency shall be due to IBM; but in no event shall any amount be due to IBM in excess of funds appropriated. In the event that the affected Machines are not available from IBM under a lease or rental agreement, at the time of such holding, the Customer and IBM will agree upon a fair and equitable Lease Plan Monthly Charge for the period prior to and following such holding and, other- wise, the provisions of this Section shall apply. If any provision or provisions of this Installment Payment Agreement shall be held to be invalid, illegal or unenforce- able, and the preceding paragraph does not the . apply validity, legality and enrorceabi ty of the remaining provi- sions shall not in any way be affected or impaired thereby. THE CUSTOMER ACKNOWLEDGES THAT THE CUSTO- MER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AGREES TO BE BOUND BY ITS TERMS AND CON- DITIONS, AND BY THE CUSTOMER'S SIGNATURE BELOW, ACKNOWLEDGES THAT THE CUSTOMER IS LEGALLY AUTHORIZED TO ENTER INTO THIS AGREE- MENT. FURTHER, THE CUSTOMER AGREES THAT THIS INSTALLMENT-PAYMENT AGREEMENT, THE REFERENCED AGREEMENT AND SUPPLEMENT AND ANY APPLICABLE IBM TRADE-IN AGREEMENT CON- STITUTE A SINGLE AGREEMENT AND THE COM- PLETE AND EXCLUSIVE STATEMENT OF THE AGREE- MENT BETWEEN THE CUSTOMER AND IBM, WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREE- MENTS, ORAL OR WRITTEN, AND ALL OTHER COM- MUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF. Received by IBM at ................................................................... Branch Office Name/Number Manager's Signature Accepted by.' International Business Machines Corporation ....................................................................................................... By ..................................................................................................By .................................................................................................. Authorized Signature Authorized Signature Pt. EASE PRESS FIRMLY WITH BALL POINT PEN ON A HARD SURFACE FOR MAXIMUM LEGIBILITY. Page 4 of 4 /~ Customer Name and Address: IBM Branch Office Address: FINANCING AGREEMENT Date Prepared Page 1 of Customer NO.: Referenced License Agreemenl No.: IBM Branch Office No.: Referenced Term Lease Supplement No.: Financing Agreement No.: Referenced IBM Installment Payment Ag reement No.: IBM Credit Corporation, acting for or as Lender (Lender), and Customer enter into this Financing Agreement (Agreemenl) wherein (a) Lender agrees to finance the charges listed (Financing) and (b) Customer agrees to pay Lender the Periodic Payment(s) indicated for each Payment Period. Financing will be for (a) charges payable to the International Business Machines Corporation (IBM) which may include charges for licensed program material (LPM Charges) for licensed programs marketed by iBM under the referenced license agreemen~ (License Agreement) or (b) ether charges payable by Customer which Lender may choose to finance. Each Financing will begin on the Commencement Date and shatl continue lot the number of Payment Periods indicated as Term. Periodic Payments wil~ be due on the first day of the month Ioltowing the last day of each Payment Period. When the Commencement Date is not on the first day ol a calendar month and/or the Term does not expiate on the last day of a calendar month, the applicable Periodic Payment will be prorated on the basis of 30*day months. Customer No. Machine or Licensed Plant Order Rate E ,~ Commencemen~ Customer/ Program Materials Or Serial Amount $/1000/ Periodic *~ ~ Lender Qly. Type Model/Feature Description MesNo. No. Financed Prat Period Payment I Date Total Payment Period (all pages) (Monthly unless noir CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT, INCLUDING THE TERMS AND CONDITIONS LISTED ON THE REVERSE SIDE, J~.ND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, CUSTOMER AGREES THAT THiS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PAR- TIES, SUPERSEDING ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES R ELATING TO THE SUBJECT MATTER HEREOF. Accepted by: IBM Credit Corporation For or as Lender: Authorized Signature Z125 3975-00 (U/M 025) Rev 5,87 (Conlinuauon Sheet Z 125 3977) Customer Authorized Signature LENDER'S ORIGINAL 1. FINANCING OF LICENSED PROGRAM MATERIAL CHARGES (LPM CHARGES). The Commencement Date, unless otherwise specified herein, will be the date payment of the LPM Charges is due IBM under the License Agreement and Lender will pay such charges directly to IBM. Any other charges due IBM under the License Agreement shall be paid directly to IBM by Customer. Customer's obligation to make pay- ments under this Agreement shall not be affected by any discontinuance, return or de- struction of any license or licensed program materials under the License Agreement on or alter the date LPM Charges are due. I1 Customer discontinues any of the licensed pro- gram materials in accordance with terms of the License Agreement prior lo the date LPM Charges are due, the Financing of affected LPM Charges shall be cancelled. If Cuslomer prepays Financing for related IBM equipment under a referenced IBM installment Pay- ment Agreement or terminates a lease for related IBM equipment under a referenced Term Lease Supplement, Lender may require prepayment of Financing for related LPM Charges under this Agreement. 2. FINANCING PREPAYMENT. Customer may terminate an item ol Financing at any time by prepaying its remaining payments. Customer shall provide Lender with notice of the intended prepayment date which shall be at least one monlh after the date of the notice. Lender may, depending on money markel condilions at the time, reduce the re- maining payments to reflect such prepaymeet and shall advise Customer of the balance to be paid. 3. CHANGES. Any change in the charges, Commencement Date or other details of this Financing may be cause for Lender to adjust the rates and farms of the Financiag by written notice to Customer. Upon such adjustmenl, by notice to Lender prior to the Commencement Date, Customer may terminate the Financing for the affected item. 4. RATE PROTECTION. Unless modified pursuant to Paragraph 3, the Periodic Pay- ment shall be based on the Rale indicated or such greater Rate as may be specified by writter~ notice lo Customer more than one month before the Commencement Date. By notice to Lender prior to the Commencement Date, Customer may terminate the Financ- ing for such affected item. Otherwise the Periodic Payment shall be adjusted to reflect the increase. 5. SELECTION AND USE OF EQUIPMENT, LICENSED PROGRAM MATERIALS, PRODUCTS OR SERVICES. Customer recognizes that this is a financing agreement and agrees that Customer is responsib{e for the seleclion, use of, and resulls obtained from the equipment, licensed program materials, products or services linanced through this Agreement and any other associated equipment, programs or services. If the equipment, programs, licensed program materials, or any financed products or services are unsatis- factory for any reason, Customer shall make any claim solely against the supplier thereof and shaH, nevertheless, pay Lender all amounts payable under this Agreement, 6. GENERAL. Other than Lender's obligation 1o pay the LPM Charges or other amounts financed, as specified in this Agreement, responsibilities and limitations applica- ble to Customer as defined in any referenced IBM agreement shall apply to Customer. II the IBM licensed program materials are subject to a discount ollering, (a) the LPM Charges will be the same amount that would have been payable to IBM by Customer, and (b) Customer will remain responsible to 1BM for any adiustment charges or any other charges incurred under the discount ollering. LPM Charges are subject to change in ac- cordance with the License Agreement. 7. CUSTOMER ASSIGNMENTS. This Agreement is not assignable by Customer. Any attempted assignment or transfer by Customer of any ct the rights, duties or obligations under {he Agreement is void. 8. CUSTOMER'S REPRESENTATIONS. Customer represeots that it is (a) a corpora- tion if located in Ohio, Mississippi, Virginia, or West Virginia; (b) a business corporation if located in Pennsylvania; and/or (c) an organization and not a natural person if the Agree- ment is being used to finance a transaction for agricultural purposes. 9. DELINQUENT PAYMENTS. If any amount to be paid to Lender is not paid on or before its due date, Customer shall pay Lender on demand a late fee in an amount not to exceed 2% of such delinquent payment for each month or part thereof from the due date until the date paid; but Customer shall have such grace period as may be required by law and the late fee shall not exceed the maximum allowed by law. 10. EVENTS OF DEFAULT. Any one or more of the following are Events of Default: Customer fails to make any payment to Lender when due and such failure shall continue for a period of seven days after the due date; (b) Customer fails to pedorm any other obli- gations under this Agreement or violates any of the representations, covenants or agre~.- meets made by Customer in this Agreement or any other lease or financing agreement with IBM or IBM Credit Corporation and such failure or breach shall continue for a period of 15 days after written notice from Lender; (c) Customer violates any of the representa- tions made by Customer in any application for credit or submits inaccurate financial infor- mation for the purpose of inducing Lender to enter into this Agreement; (d) Customer makes an assignment for the benefit of creditors, whether voluntary or involuntary, or con- sents to the appointment of a trustee or receiver, or if either shall be appointed for Cus er or for a substantial part of its property without its consent; (e) any petition or proce¢ is filed by or against Customer under any Federal or State bankruptcy or insolvency cocle or similar law; or (f) if applicable, Customer makes a bulk transfer subject to the provisions of the Uniform Commercial Code. Any failure of Lender to require strict perforrhance by Customer or any waiver by Lender of any provision of this Agreement shall not be con- strued as a consent or waiver of any other breach of the same or any other provision. 11. REMEDIES. ~f an Event of Default shall have occurred and be continuing, Lender or assigns may, to the extent permitted by law, (a) declare this Agreement to be in default and all payments due and to become due to be immediately due and payable; (b) declare any other lease or financing agreements with Lender or with IBM Credit Corporation to be in default and declare all payments due and to become due thereunder to be im- mediately due and payable; (c) recover from Customer any and all such amounts due under this Agreement and any other lease or financing agreement declared to be in de- fault; and (d) recover reasonable attorney's fees and legal expenses in exercising any of its rights and remedies upon default. Upon request of Lender, Customer agrees to surren- der to Lender for return to licensor all licensed program materials for which Lender has financed the charges, and to destroy any and all copies thereof. Customer hereby au- thorizes Lender to request that licensor terminate the license for those programs for which the financing is in defaull. Customer acknowledges that such termination and surrender will not reduce the economic damages sustained by Lender as a result of default by Cus- tomer, and that such damages can be recompensed only by recovery of amounts due to become due under the relevant agreement. Lender may pursue any other remedy a able at law or in equity, including, but not limited to, seeking damages, specific pe~ mance and an injunction. No right or remedy is exclusive of any other provided herein or permitted by law or equity. All such rights and remedies shall be cumulative and may be enforced concurrently or individually from time to time. 12. NOTICES; ADMINISTRATION. Service of all notices under this Agreement shall be sufficient il delivered personally or mailed to Customer at its address specified or to Lender in care of the IBM Branch Office specified. Notice by mail shall be effective when deposited in the United States mail, duly addressed and with postage prepaid. Notices, consents and approvals from Lender shall be given by Lender directly or through IBM. All payments to Lender shall be made to IBM unless Lender notifies Customer otherwise. 13. APPLICABLE LAW; SEVERABILITY. This Agreement shall be governed by the laws of the State of Connecticut. If any provision shall be held to be invalid or unenforce- able, the validity and enforceability of the remaining provisions shall not in any way be affected or impaired. IBM Credit Corporation Cuslomer Name and Address: IBM Branch Office Address: Stamford, Connecticut 06904 Addendum to Agreement (State and Local Government) Tax-Exempt Status/IRS Reporting Requirements Date Prepared: Referenced Agreement No,: Addendum No.: Cuslomer No.: IBM Credit Corporation and Lessee/Customer agree that the Financing Agreement, Installment Payment Agreement, or Term Lease Master Agreement referenced above between the parties is hereby modified by adding the tollowing provision: THE RATES IN THIS AGREEMENT ARE BASED ON THE LESSEE'S/CUSTOMER'S UNDERLYING DEBT OBLIGATION QUALIFYING TO PAY INTEREST WHICH IS EXEMPT FROM FEDERAL INCOME TAX UNDER SECTION 103(a) OF THE INTERNAL REVENUE CODE (Code). Accordingly, Lessee/Cuslomer represents that it qualifies as a State or political subdivision of a State for purposes of Section f03(a). Lessee/Customer agrees that any misrepresentation of its status under Section '103(a) is an event of default under this agreement. Further, Lessee/Customer agrees to comply promptly with all information reporting requirements of Code Section 149(e) and Treasury Regulations thereunder. Lessee/Customer specifically agrees to file internal Revenue Service Form 8038-G or 8038-GC, whichever appropriate, for this transaction. If the Lessee/Customer either 1) does not file the above IRS forms on a timely basis, or 2) is unable upon request to demonstrafe to the satisfaction of IBM Credit Corporation that the IRS has determined Lessee/Customer is qualified under Seclion 103(a) of the Code, lhen Lessee/Customer shall pay, on demand by IBM Credit Corporation, a sum to be determined by IBM Credit Corpo- ration that will return to IBM Credit Corporation the economic results it would otherwise have received. Accepted by: IBM Credit Corporation By Name (Type or Print) Authorized Signature Date By Name (Type or Print) AulhoNzed Signalure Date