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HomeMy WebLinkAbout14712 ORD - 01/10/1979vp:rr:1-10-79 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A RENTAL AGREEMENT WITH IBM FOR RENTAL OF AN IBM 3762 CASH REMITTANCE PROCESSOR AND RELATED EQUIPMENT; AND DECLARING AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: • SECTION 1. That the City Manager be and he is hereby authorized to execute a rental agreement with IBM for rental of an IBM 3762 Cash Remit- tance Processor and related equipment, all as more fully set forth in the contract, a substantial copy of which is attached hereto and made a part hereof, marked Exhibit "A". SECTION 2. That the City Manager be and he is hereby authorized to execute any and all documents necessary to implement the contract afore- said. SECTION 3. That the necessity to immediately authorize the afore- said execution of all related documents creates a public emergency and an imperative public necessity requiring the suspension of the Charter rule that no ordinance or resolution shall be read at three several meetings of the City Council, and the Mayor having declared such emergency and necessity to exist, and having requested the suspension of the Charter rule and that this ordinance be passed finally on the date of its introduction and take effect and be in full force and effect from and after its passage, IT IS ACCORDINGLY SO ORDAINED, this the /a day of January, 1979. ATTEST: Ci•Cy Secretary APPROVED: JOf-4 DAY OF JANUARY, 1979: J. BR COCK, CITY ATTORNEY By .1" ► c t. Assisi" t yl y Attorney klik MAYO 147_12 HE CITY 0 " =iS CHRISTI, TEXAS MICROFILMED JUL DR 1.1?!."5 L L L L L L L L L LEAVE CARBON INTACT UNTIL SIGNED. SIGN ONCE, PROVIDED THE CARBON TRANSFER APPEARS LEGIBLY ON THE REMAINING COPIES. International Business Machines Corporation 230012 L � L Armonk, New York 10504 State and LocalGovernment Lease Plan Supplement for Amendment to Agreement for Lease or Rental of IBM Machines State and Local Government Lease Plan To: International Business Machines Corporation IBM Branch Office Address: Name and Address of Customer: 101 N Shoreline Corpus Christi, Tx 78408 City of Corpus Christi 317 Peoples St Corpus CHristi, Tx 78403 Reference Agreement No. Leese Plan Supplement No, Branch Office No. 001 115 Customer No. 2205004 The following machine, model changes or features are subject to the Amendment to Agreement for Lease or Rental of IBM Machines — State and Local Government Lease Plan: Type/Model or Feature No. Description (Serial No. if Installed) Lease Plan Monthly Charge Monthly U. Charge Rate Scheduled Date of Shipment Contract Period Base Term Purchase Commence. Expiration Purchase Option meat Date' Date' Price Percent 3791/C01 10328 $1,006 3762/001 10317 1,961 Total Lease Plan Monthly Charge 2,967 Upper Limit Percent Total Monthly Use Charge Rate 5 Shipped 60mo Shipped 60mo Maximum Purchase Accrual Percent (see "Purchase Option" section of Amendment) 75% Maximum Accrual Period: 60 months 'To be completed by IBM upon the commencement of a Contract Period. A copy of this Supplement with these dates will be returned to the Customer. "Since this machine type does not normally require installation by IBM, the date the machine is installed by IBM shall be 15 days after ship- ment by IBM. International Business Machines Corporation By Manager's Signature Manager's Name (Tyne or Print) On Date $33,865 70 72,687 65 THE CUSTOMER ACKNOWLEDGES THAT HE HAS READ THE AGREEMENT FOR LEASE OR RENTAL OF IBM MACHINES TOGETHER WITH THE STATE AND LOCAL GOVERNMENT LEASE PLAN AMENDMENT AND THIS SUPPLEMENT AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS. FURTHER, THE CUSTOMER AGREES THAT THE AGREEMENT, THE AMENDMENT AND THIS SUPPLEMENT ARE THE COM- PLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPER- SEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COM- MUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THE AGREEMENT, THE AMENDMENT AND THIS SUPPLEMENT. Authorization to place the above listed machine, model changes or features under the terms of the Amendment to Agreement for Lease or Rental of IBM Machines — State and Local Government Lease Plan is hereby given. City of Corpus Christi Customer By Authorized Signature Name (Type or Print( On Date 2120 270e o Pleas, send as communication, to IBM os he branch office address listed ebore anima notified to the contrary. ATTEST: City Secretary APPROVED: DAY OF JANUARY, 1979: J. BRUCE AYCOCK, CITY ATTORNEY By Assistant City Attorney Director of Finance "rational Business Machines Corporation Agreement for Lease or Rental of IBM Machines IBMBraechomeeAddre®: 101 N Shoreline Corpus Christi, Tx 78403 Name and Address of Cngwmereity of Corpus CHristi 317 Peoples St Corpus CHristi, Tx 78403 Armonk, New1100504 Agreement No.: Branch Office No.: 115 CoarmoerNa:2205004 International Business Machines Corporation (IBM) and the Customer agree that the following terms and conditions will apply to any Customer order for lease or rental of IBM machines that is accepted by IBM under this Agreement. Under these terms and conditions, IBM will 1) lease or rpnt machines to the Customer, 2) provide maintenance service for machines and 3) as available, furnish programming and programming services, all as described herein. The Customer agrees to accept the machines, maintenance service, programming and programming services under the terms and conditions of this Agreement. The Customer further agrees with respect to the machines and programming to accept the responsibility for 1) their selection to achieve the Customer's intended results, 2) their use and 3) the results obtained therefrom. The Customer also has the responsibility for the selection and use of, and results obtained from, any other equipment, programs or services used with the machines and programming. The term "machines" as used in this Agreement refers to machines and/or their model upgrades and features unless the context requires individual reference to model upgrades and features. Specific machines, model upgrades and features become subject to this Agreement when either I) a Supplement to Agreement for Lease or Rental of IBM Machines (Supplement) is signed by the Customer and IBM or 2) other written order is signed by the Customer and accepted by IBM. CONTRACT PERIOD IBM will determine the Lease or Rental Contract Period or Periods for which each machine is eligible. The Customer may select the Lease or Rental Contract Period for each machine from the alternatives available. Lease Contract Period A Lease Contract Period has a Commencement Date, a Base Term and an Expiration Date each of which will be specified in the Sup- plement. Eligible machines become subject to the provisions of a Lease Con- tract Period when a Supplement listing the machines is signed by the Customer and IBM. The Commencement Date for a machine being installed will be the day (Monday through Friday) following the day that the machine is in- stalled, as specified by IBM, provided the applicable Supplement is received by IBM on or before each Commencement Date. The Commencement Date for a machine already installed under a Rental Contract Period will be the day the applicable Supplement is received by IBM. The Commencement Date of a new Lease Contract Period for a machine already installed under a Lease Contract Period or Extension will be the day immediately Following the Expiration Date of such Lease Contract Period or Extension, provided that the ap- plicable Supplement is received by IBM on or before such Com- mencement Date. The Expiration Date of a Lease Contract Period is determined initially by adding the Base Term to the Commencement Date, and thereafter may be adjusted as described in the Section entitled "Machine Modifications." A Lease Contract Period may be extended as described in the Sec. tion entitled "Lease Contract Period Extension." Rental Contract Period A Rental Contract Period has a Commencement Date and is of In- definite duration. Eligible machines become subject to the provisions of a Rental Con. tract Period when a written order is signed by the Customer and ac- cepted by IBM. The Commencement Dam for a machine being installed will be the day (Monday through Friday) following the day that the machine is in- stalled, as specified by IBM. The Commencement Date for an eligible machine already installed will be the day following the Expiration Date of its Lease Contract Period or Extension. 212047011 NIM 111ET1 CHARGES IBM will determine the Monthly Lease Charge or Monthly Rental Charge applicable to the Lease or Rental Contract Period or Periods for which each machine is eligible. In addition, IBM will specify the Plan Offering for each machine as: Plan A: Each Plan A machine which is installed under a Rental Contract Period is subject to an Additional Uee Charge for billable time in excess of 176 hours in any calendar month, as measured by an IBM meter, at an hourly rate which is equal to I/176th of the Monthly Rental Charge multiplied by IBM's ap- plicable Additional Use Charge Percent then generally in effect. There is no Additional Use Charge for a Plan A machine which Is installed under a Lease Contract Period or Extension. Plan B: For each Plan B machine, the Monthly Lease Charge or Monthly Rental Charge provides the Customer with unlimited use in any calendar month. Plan C: Each Plan C machine is subject to a Monthly Use Charge which is determined by multiplying the amount of processing performed by the machine, as measured by an IBM meter, by IBM's applicable Monthly Use Charge Rate then generally in effect. Charges for each machine will begin on the Commencement Date of its Lease Contract Period or Extension or Rental Contract Period. Lease Contract Period Monthly Charges For Lease Contract Periods and Extensions, the Customer agrees to pay the applicable Monthly Lease Charge for each machine and, in ad- dition, the applicable Monthly Use Charge for each Plan C machine. Rental Contract Period Monthly Charges For Rental Contract Periods, the Customer agrees to pay the ep. plicable Monthly Rental Charge for each machine and, in addition, the applicable Additional Use Charge for each Plan A machine and Monthly Use Charge for each Plan C machine. Meter Readings IBM will install and maintain its meters for Plan A and Plan C machines. For each Plan A machine, where required, and for each Plan C machine, the Customer agrees to furnish a monthly report to IBM showing the meter reading as of the close of the last work day of each calendar month. The Customer agrees to use due care not to interfere with the proper operation of the meters. Please send all esinsnunieations to IBM at its branch offing listed above aniess notified to thee:mu:ay. Increases in Lease Contract Period Monthly Charges For each year of a Lease Contract Period for a machine, beginning with the Commencement Dale designated in the Supplement, and thereafter with each Anniversary Date, there will be a maximum Monthly Lease Charge (Upper Limit) for that year. The Upper Limit for the first year of the Lease Contract Period is the initial Monthly Lease Charge in effect for a machine on the Commencement Date specified in the Supplement. The Upper Limit for each succeeding year is calculated by increasing the Upper Limit for the preceding year by an amount which is derived by multiplying the initial Monthly Lease Charge by the Upper Limit Percent specified in the Supplement. For these calculations, when a machine becomes subject to the provisions of a Lease Contract Period on or after announcement, but before the effective date, of an increase in the Monthly Lease Charge, such in- creased Charge will be used as the initial Monthly Lease Charge. For a machine not yet installed, if the Supplement for the machine has been signed by the Customer and IBM. IBM may not increase the Monthly Lease Charge or Upper Limit Percent unless written notice shall have been given to the Customer at least three months before the date of shipment. In the event of such an increase, the Customer may elect to void the Supplement for the affected machine within one month of notification of such increase by IBM. For a machine which is installed, IBM may increase the Monthly Lease Charge upon three months' prior written notice. Such increased Monthly Lease Charge will be the lowest of 1) the Monthly Rental Charge generally in effect for such machine on the effective date specified in the notice, 2) the Monthly Lease Charge generally in effect for such machine on the effective date specified in the notice for Customers commencing a new Lease Contract Period with the same Base Term or 3) the Upper Limit in effect for that year, and, to the ex- tent that any increase exceeds the applicable Upper Limit, the excess will automatically be effective on ensuing Anniversary Dates. The Upper Limit Percent specified in the Supplement will not be in. creased during the Lease Contract Period. The Monthly Lease Charge far a model upgrade or feature addition may be increased by IBM in the same manner and in accordance with the same Upper Limit calculations as for machines and pursuant to the pro. isions set forth in the Section entitled "Machine Modifications." The Monthly Use Charge Rate for each Plan C machine may be in- creased by IBM in the same manner and in accordance with the same Upper Limit calculations as Monthly Lease Charges. Except as provided in this Section and in the Section entitled "Lease Contract Period Extension,' all increases in the Monthly Lease Charge, Monthly Use Charge Rate and Upper Limit Percent will become effective on the date specified in the notice of such increase. Increases in Rental Contract Period Monthly Charges For a machine under a Rental Contract Period, IBM may increase the Monthly Rental Charge, Additional Use Charge Rate or Monthly Use Charge Rate upon three months' prior written notice. The Customer may discontinue any machine included in such notice on the effective date of the increase upon one month's prior written notice. Otherwise, the new Charge and Rates will become effective as specified. Destination Charges All destination charges for eachmachine, model change or feature, both from and to designated IBM locations, and any rigging charges will be paid by the Customer in accordance with IBM's then current ship- ping and billing practices. The cost of labor for crating and uncrating isa Customer expense except when performed at an IBM location. Applicable Taxes In addition to the chargee due under this Agreement, the Customer agrees to pay amounts equal to any taxes resulting from this Agreement, or any activities hereunder, exclusive of property taxes and taxes based on net income. _ LEASE CONTRACT PERIOD EXTENSION Unless otherwise specified in the Supplement, the Customer may ex- tend a Lease Contract Period for a machine any number of times for one year and one time for a period of less than one year. The Com- mencement Date of an Extension will be the day following the Ex- piration Date of the Lease Contract Period or Extension then in effect. The charges, terms and conditions for the ensuing Extension will not be changed by IBM from the date three months prior to the Com- mencement Date of such Extension through its Expiration Date, except that if such Expiration Date is adjusted as described in the Section en. titled "Machine Modifications," the charges during the adjustment may be increased by IBM in agcordance with the Upper Limit 2 provisions described in the Sections entitled "Increases to Lease Goo- tract somtract Period Monthly Charges" and "Purchase Option." Prior to the Expiration Date of a Lease Contract Period or one-year Extension, IBM will provide the Customer with written notice of all such charges, terms and conditions for the ensuing Extension. The one-year Extension Period for each machine will commence automatically unless the Customer notifies IBM in writing on or before the Expiration Date of the Lease Contract Period or current one-year Extension that the Customer elects one of the following choices, as available: a) to extend for a period of less than one year at the end of which lime the machine will be placed under a Rental Contract Period, if available, unless otherwise agreed; b) to execute a Supplement for a new Lease Contract Period; c) to place the machine under a Rental Contract Period; or d) to purchase the machine. In addition, the Customer may discontinue a machine or feature or request a model downgrade effective on the Expiration Date of a Lease Contract Period or Extension upon one month's prior written notice. MACHINE MODIFICATIONS Upon the Customers written request, IBM will make field installable model or feature changes to a machine installed under this Agreement. Model Upgrades and Feature Additions A model upgrade is defined as a model change which results in an in- crease in the Monthly Lease Charge or Monthly Rental Charge. Each model upgrade or feature addition to a machine installed un- - der a Lease Contract Period or Extension may be placed either under that Lease Contract Period or Extension or, if available, under a Rental Contract Period. a) If placed under the Lease Contract Period or Extension, the model upgrade or feature addition will be installed at IBM's applicable Monthly Lease Charge and Monthly Use Charge Rate, if any, then generally in effect for new orders for such model upgrade or feature having the same Base Term as the installed machine. When a model upgrade is installed under that Lease Contract Period or Extension. such Lease Contract Period or Extension will be lengthened to provide a common Expiration Date for the machine and the model upgrade. When a feature addition is in- stalled under that Lease Contract Period or Extension, such Lease Contract Period or Extension will not be lengthened. The model upgrade or feature addition will assume the same Anniversary Date (but not the same Commencement Date) and Upper Limit Percent as the installed machine for purposes of determining future increases in the Monthly Lease Charge and any applicable Monthly Use Charge Rate. b) If placed under a Rental Contract Period, the model upgrade or feature addition to a machine which is under a Lease Contract Period or Extension will be installed at IBM's Monthly Rental Charge then generally in effect. For a model upgrade or feature addition to a Plan A machine, an additional charge, as specified by IBM, will apply in lieu of any Additional Use Charge. For a model upgrade or feature addition to a Plan C machine, IBM's ap- plicable Monthly Use Charge Rate then generally in effect will ap ply. The Expiration Date of the Lease Contract Period or Ex- tension will not be adjusted. Each model upgrade or feature addition to a machine installed un- der a Rental Contract Period may only be placed under a Rental Con- tract Period and will be installed at IBM's Monthly Rental Charge, and Additional Use Charge Rate or Monthly Use Charge Rate, as ap- plicable, then generally in effect. The Commencement Date for a model upgrade or feature addition will be the day (Monday through Friday) following the day that the model upgrade or feature addition is installed, as specified by IBM. provided IBM has received the Supplement or accepted the written or- der by that Date. Model Downgrades and Feature Discontinaances A model downgrade is defined as a model change which results in a decrease in the Monthly Lease Charge or Monthly Rental Charge. The downgrade of a model or discontinuance of a feature prior to the Expiration Date of its Lease Contract Period or Extension will be sub. jeer to the provisions of the Section entitled "Termination Charges." The downgrade of a model or discontinuance of a feature installed under a Rental Contract Period will not result in a Termination Charge. DISCONTINUANCE NOTICE Subject to the Sections entitled "Increases in Rental Contract Period Monthly Charges,' "Lease Contract Period Extension," "Limitation of Remedies" and "Termination Charges,"ttomer in t with any machines or programming supplied under this Agre shall be subject. 16 the terms and conditions of this Agreement unless such activities are provided under another written agreement signed by the Customer and IBM. ADDITIONAL PRODUCTS AND SERVICES In addition to the machines, programming and services provided un. der this Agreement, IBM offers other products and services at separate charges under applicable written IBM agreements. IBM and the Customer agree that such products and services cannot be the subject of an oral agreement. The Customer may contract with IBM for any such products or services as available, but only under the terms and con- ditions of a written agreement signed by the Customer and IBM. TRAVEL EXPENSE There will be no charge for travel expense associated with main. tenance service or programming service under this Agreement except that actual travel expense shall be charged in those instances where the site at which the machine is located is not normally accessible by private automobile or scheduled public transportation. RISK OF LOSS OR DAMAGE During the period a machine, model change or feature is in transit or in the possession of the Customer, IBM and its insurers, if any, relieve the Customer of responsibility for all risks of loss of or damage to the machine, model change or feature except for loss or damage 1) caused by nuclear reaction, nuclear radiation or radioactive contamination for which the Customer is legally liable, and 2) as set forth in the Section entitled "Maintenance Service." INVOICING Monthly Lease Charges and Monthly Rental Charges will be invoiced in advance as of the first of each month. Additional Use Charges and Monthly Use Charges will he invoiced in the month following the month in which they are incurred. When a machine, model change or feature is installed for a part of a calendar month, the Monthly Lease Charge or Monthly Rental Charge will be prorated on the basis of a 30 - day month. Additional Use Charges will be prorated in accordance with IBM's established practices. Payment will be made within 30 days after the date of invoice. All other charges due hereunder are payable as specified in the invoice. WARRANTIES IBM warrants that each machine, model upgrade or feature ad- dition will be in good working order on the day that it is installed and that it will conform to IBM's official published specifications. Thereat. ter, IBM will make all adjustments, repairs and parts replacements necessary to maintain the machine, subject to the provisions stated in the Sections entitled "Maintenance Service" and "Risk of Loss or Damage." IBM further warrants that programming designated by IBM for use with a machine and for which programming services are available will conform to IBM's official published specifications when shipped to the Customer if properly used on such machine. Thereafter, IBM will provide programming services, subject to the provisions stated in the Section entitled "Programming." IBM does not warrant that the functions contained in the program- ming will operate in the combinations which may be selected for use by the Customer, or will meet the Customer's requirements. ALL PROGRAMMING FOR WHICH NO PROGRAMMING SERVICES ARE AVAILABLE IS DISTRIBUTED ON AN "AS IS" BASIS WITHOUT WARRANTY. IBM does not warrant that the operation of the machine or program- ming will be uninterrupted or error free, or that all programming errors will be corrected. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN- CLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PATENT AND COPYRIGHT INDEMNITY IBM will defend the Customer against a claim that machines or programming supplied hereunder infringes a U.S. patent or copyright, or that the machines' operation pursuant to a current release and modification level of any programming supplied by IBM infringes a U.S. patent. IBM will pay resulting costs, damages and attorney's fees finally awarded provided that: a) the Customer promptly notifies IBMin writing of the clair b) IBM has sole control of the defense and all related ser ant negotiations If such claim has occurred, or in IBM's opinion is likely to occur, the Customer agrees to permit IBM, at its option and expense, either to procure for the Customer the right to continue using the machines or programming or to replace or modify the same so that they become non -infringing. If neither of the foregoing alternatives is reasonably available, the Customer agrees to return the machines or programming on written request by IBM. No Termination Charges will be payable on such returned machines, and the Customer will pay only those charges which were payable prior to the dale of such return. IBM has no liability for any claim based upon the combination, operation or use of any machines or programming supplied hereunder with equipment or data not supplied by IBM. or with any program other than or in addition to programming supplied by IBM if such claim would have been avoided by use of another program whether or not capable of achieving the same results, or based upon alteration of the machines or modification of any programming supplied hereunder. The foregoing states the entire obligation of IBM with respect to in- fringement of patents and copyrights. LIMITATION OF REMEDIES IBM's entire liability and the Customer's exclusive remedy shall be as follows: In all situations involving performance or non-performance of machines, model upgrades, features or programming furnished under this Agreement, the Customer's remedy is 1) the adjustment or repair of the machine, model upgrade. or feature, or replacement of its parts by IBM, or, at IBM's option, replacement of the machine, model upgrade or feature, or correction of programming errors, or 2) if, after repeated efforts, IBM is unable to install the machine, model upgrade or feature or a replacement machine, model upgrade or feature in good working order, or to restore it to good working order, or to make programming operate, all as warranted, the Customer shall be entitled to recover ac. turd damages to the limits set forth in this Section. For any other claim concerning performance or non-performance by IBM pursuant to, or in any other way related to the subject matter of, this Agreement and any Supplement or other order under this Agreement, the Customer shall he entitled to recover actual damages to the limits set forth in this Sec- tion. eation. IBM's liability for damages to the Customer for any cause what- soever, and regardless of the form of action, whether in contract or in tort including negligence, shall be limited to the greater of 8100,000 or twelve Monthly Lease Charges or Monthly Rental Charges for the specific machines that caused the damages or that are the subject mat- ter of or are directly related to the cause of action. Such Charges shall be those in effect for the specific machines when the cause of action arose. The foregoing limitation of liability will not apply to the payment of cost and damage awards referred to in the Section entitled 'Patent and Copyright Indemnity," or to claims for personal injury caused solely by IBM's negligence. In no event will IBM be liable for any damages caused by the Customer's failure to perform the Customer's responsibilities, or for any lost profits or other consequential damages, even if IBM has been advised of the possibility of such damages, or for any claim against the Customer by any other party, except as provided in the Section entitled "Patent and Copyright Indemnity." The Customer may discontinue a machine forthwith without Ter- mination Charges for failure of IBM to comply with any of the terms and conditions of this Agreement applicable to such machine. GENERAL This Agreement is not assignable; none of the machines may be sublet, assigned or transferred by the Customer without the prior writ- ten consent of IBM. Any attempt to sublet, assign or transfer any of the rights, duties or obligations of this Agreement without such consent is void. Machines under this Agreement are to be located only in the United States and Puerto Rico. The Customer agrees to keep IBM informed of the location of each machine. Each machine remains IBM's property and may be removed by IBM at any time after discontinuance of the machine. IBM shall have full and free access to each machine for this purpose. IBM may, upon three months' prior written notice to the Customer, discontinue a machine or feature or downgrade a model under a Rental Contract Period at any time. or under a Lease Contract Period or Ex- tension on its Expiration Date. IBM may discontinue a machine forth- with for failure of the Customer to comply with any of the terms and conditions of this Agreement applicable to such machine. io1 any time after installation, discontinue a processor complex n three months' prior written notice, or discontinue any other or any field removable feature or request a field removable m downgrade upon one month's prior written notice. TERMINATION CHARGES The Customer will pay IBM as a Termination Charge, upon ter- mination of a Lease Contract Period or Extension for a machine or model prior to the Expiration Date of such Lease Contract Period or Extension, the lesser of: a) the Termination Charge Percent specified in the Supplement multiplied by the Remaining Contract Value; or b) the Termination Charge Months specified in the Supplement multiplied by the applicable Monthly Lease Charge value as of the date of termination. The Remaining Contract Value of a machine or model downgrade is determined by multiplying its applicable Monthly Lease Charge value as of the date of termination by the number of months remaining in its Lease Contract Period or Extension. The discontinuance of a feature will not result in'a Termination Charge, except that the Monthly Lease Charge of any feature which is on a machine at any time within three months prior to the date of termination of the Leese Contract Period or Extension for such machine will be included in the Monthly Lease Charge value of such machine. For a machine not yet Installed, if the Supplement for the machine has been signed by the Customer and IBM, IBM may not increase the Termination Charge Percent or the Termination Charge Months unless written notice shall have been given to the Customer at least three months before the date of shipment. For a machine which is installed, IBM may not increase such Percent or Months during a Lease Contract Period. Return of a machine to IBM upon the Customer's request during a Lease Contract Period or Extension for any reason, including machine replacement for model or feature changes which are not field install- able, or due to the Customer's failure to comply with any of the terms and conditions of this Agreement. shall be a termination for purposes of this Section. The purchase of a machine under the provisions of the Section entitled "Purchase Option" will not result in a Termination Charge. PURCHASE OPTION The Customer may elect to purchase a machine installed under a Lease Contract Period or Extension by executing an Agreement for Purchase of Installed IBM Machines. Upon request from the Customer, IBM will quote a net purchase option price for such machine including its model upgrades and features as of a specific month that is not more than three months from the date of the request. The net purchase option price, as calculated for each machine, model upgrade and feature, will be the lower of 1) the Purchase Price stated in the Supplement, as modified in accordance with this Section, less any applicable purchase option credits not to exceed an amount determined by multiplying such modified Purchase Price by the Maximum Purchase Accrual Percent, or 2) IBM's purchase price then generally in effect, leas any applicable purchase option credits not to exceed an amount determined by multiplying such purchase price by the Maximum Purchase Accrual Percent. The Maximum Purchase Ac- crual Percent will be specified in the Supplement The purchase option credits are determined by multiplying: e) the applicable Monthly Lease Chargesaid under this Agreement bythe Purchase Option Percent specified in the applicable Sup- plement and b) applicable monthly charges, if any, paid under other IBM agreements by the purchase option percents applicable under those agreements. For purposes of this calculation, the period during which monthly charges are eligible for purchase option credits is the period during which the machine has been continuously installed but may not exceed the Maximum Accrual Period. Eligible monthly charges will be applied in the order in which they are first incurred and do not include Ad- ditional Uee Charges or Monthly Use Charges. When a machine ceases to be installed under this Agreement, all pur- chase option credits accrued hereunder with regard to that machine shall expire. Purchase option credits accrue individually for each machine, model upgrade and feature and only during the accrual period of the machine. Purchase option credits are not transferable to other Customers or between machines, or among a machine, its models and features. For a machine not yet installed, if the Supplement for the machine 2120-2707.1 tane-001l(4177) 3 has been signed by the Customer and IBM, IBM may not i the Purchase Price nor decrease the Purchase Option Percen mm Purchase Accrual Percent on Maximum' Accrual Period un tten notice shall have been given to the Cuslomcr at least three months before the date of shipment. For a machine which is installed, IBM may increase the Purchase Price immediately upon written notice, subject to Upper Limits deter- mined in the same manner as for Monthly Lease Charges as descrihed in the Section entitled "Increases in Lease Contract Period Monthly Charges." The Purchase Option Percent, Maximum Purchase Accrual Percent and Maximum Accrual Period for a machine, will not be decreased during a Lease Contract Period. The Customer may elect to purchase a machine installed under a Rental Contract Period by executing an Agreement for Purchase of In- stalled IBM Machines, at IBM's then applicable purchase price for such machine. Upon request from the Customer, IBM will quote the ap- plicable purchase price for such machine including its model upgrades and features as of a specific month that is not more than three months from the date of the request. SHIPMENT IBM agrees to schedule each machine for shipment in accordance with IBM's applicable shipment sequence and will confirm in writing, and amend as necessary, the Customer's schedule. Prior to shipment IBM will make reasonable accommodation to a delay requested by the Customer. PROGRAMMING The term "programming" as used in this Agreement shall mean such programming as IBM may make generally available, from time to time, without separate charge, for machines of the types ordered by the Customer under this Agreement. IBM will furnish such programming as may be recjuested by the Customer. The term 'programming services" shall mean such services as IBM may generally make available without separate charge in connection with programming. IBM will determine the programming services available and their duration. The terms "programming" and "programming services" do not in- clude IBM programs and services that are available for a separate charge or which are offered under separate written agreements. ALTERATIONS AND ATTACHMENTS An alteration is defined as any change to an IBM machine which deviates from IBM's physical, mechanical or electrical machine design whether or not additional devices or parts are required. An attachment is defined as the mechanical, electrical or electronic interconnection to an IBM machine of non -IBM equipment and devices not supplied by IBM. An alteration to a machine may be made upon prior written notice to IBM. An attachment to a machine may be made without notice to IBM. The Customer agrees to accept the responsibility for making any such alteration or attachment, its use and the results obtained therefrom, and to pay all charges related to the alteration or at- tachment as described in the Section entitled "Maintenance Service." The Customer further agrees to remove any alteration or attachment and to restore the machine to its normal, unaltered condition prior to its return to IBM, or upon notice from IBM that the alteration or at- tachment creates a safety hazard or renders maintenance of the machine impractical MAINTENANCE SERVICE IBM will provide maintenance service to keep each machine in or restore it to good working order and will make all necessary ad- justments, repairs and parts replacements. For this purpose, IBM shall have hall and free access to the machine. The Customer agrees to provide a suitable installation environment as specified in the ap- plicable IBM installation manual. The Customer agrees to pay, at IBM's applicable time and material rates then in effect, all charges for maintenance and other service ac- tivities, or to pay for loss of or damage to a machine, caused by 1) use of the machine for other than data processing purposes for which designed, or 2) alterations and attachments. The Customer also agrees to pay, at IBM's applicable time and material rates then in effect, all charges for repair of damage, replacement of parts (due to other than normal wear) or repetitive service calls caused by the use of supplies. All maintenance and other service activities (including but not limited to activities relating to pre -installation planning, inspections, relocation of machines, engineering changes and altered program- ming) which may be made available by IBM to the Customer at no ad- ditional charge or at IBM's then applicable time and material chargee, SECTION 2 The Agreement may be terminated by either party, upon one month's prior written notice, following the discontinuance of all machines and fulfillment of all obligations hereunder. Subject to the terms of the following paragraph, fBM may, upon twelve months' prior written notice, modify the terms and conditions of this Agreement, except that IBM may, upon three months' prior written notice, modify the terms and conditions of the Sections entitled "Charges," "Termination Charges,' "Purchase Option," "Lease Contract Period Extension" and "Machine Modifications." Any such modification will apply on the effective date specified in the notice to all Rental Contract Periods, to current Lease Contract Periods or Extensions upon their Expiration Dates, provided such oc- cur on or after the effective date, and to new Lease Contract Periods or Extensions which commence on or after the date of the notice. Other- wise, the Agreement or any Supplements can only be modified by a written agreement duly signed by persons authorized to sign agree- ments on behalf of the Customer and of IBM, and variance from the terms and conditions of this Agreement and any Supplements in any Customer order or other written notification will be of no effect. Received by IBM at By Corpus CHristi 115 Branch Office Name/Number Manager', signature Manager a Name (Type or Print) On Date Accepted by: International Business Machines Corporation By Authorized Signature Name (Typo or Print) On - Title Dal ATTEST: City Secretary IBM is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond its control. No action, regardless of Form, arising out of this Agreement may he brought by either party more than two years after the cause of action has arisen, or, in the case of nonpayment, more than two years from the date of the last payment. This Agreement will be governed by the laws of the State of New York. THE CUSTOMER ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CON- DITIONS. FURTHER, THE CUSTOMER AGREES THAT 1T IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES. WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREE- MENTS, ORAL OR WRITTEN, AND ALL OTHER COM- MUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. By City of Corpus Christi Caetomer Authorized Signature Name (Type°, Print) Title On Date APPROVED: DAY OF JANUARY, 1979: J. BRUCE AYCOCK, CITY ATTORNEY By Assistant City Attorney Director of Finance ,1�ational Business Machines Corporation Amendment to Agreement for Lease or Rental of IBM Machines State and Local Government Lease Plan IBM Branch Office Address: Armonk, New Y 504 101 N Shoreline Corpus CHristi, Tx 78403 Nude and AddreesotC: City of Corpus CHristi 317 Peoples St Corpus Christi, Tx 78403 Reference Agreement No.: Branch OWm No.: CwwmwNat2205004 115 International Business Machines Corporation (1984) and the Customer agree that the following terms and conditions amend the Agreement for Lease or Rental of IBM Machines when the Customer elects a State and Local Government Lease Plan for machines and/or their model upgrades and features (together referred to as machine or machines unless the context requires individual reference to model upgrades and features). Specific machines, model upgrades and features become subject to this Amendment when a State and Local Government Lease Plan Supplement (Supplement) is signed by the Customer and IBM. Contract Period Each machine will be furnished by IBM under this Amendment for a Contract Period as specified in the Supplement. The Commencement Date for a machine being installed will be the day (Monday through Friday) following the day that the machine is installed, as specified by IBM. provided the applicable Supplement is received by IBM on or before such Commencement Date. The Commencement Date for machines already installed will be the day the applicable Supplement is received by IBM. The Expiration Date of a Contract Period will be the day specified in the applicable Supplement, and is determined by the number of months in the Base Term specified in the applicable Sup- plement Charges There will be a State and Local Government Lease Plan Monthly Charge (Lease Plan Monthly Charge) for each machine, instead of a Monthly Lease Charge or Monthly Rental Charge. For Plan A machines under this Amendment, there will be no Additional Use Charges. For Plan C machines there will be a Monthly Use Charge es described in the Section of the Agreement for Lease or Rental of IBM Machines en- titled "Charges." For each machine, the Customer agrees to pay IBM the Total Lease Plan Monthly Charge as specked in the current Sup- plement and any applicable Monthly Use Charge for such machine, beginning on the Commencement Date, through the Expiration Data of the Contract Period. For each year of a Contract Period for a machine, beginning with the Commencement Date designated in the Supplement, and thereafter, with each Anniversary Date, there will be a maximum Lease Plan Monthly Charge (Upper Limit) for that year. The Upper Limit for the first year of the Contract Period is the initial Lease Plan Monthly Charge in effect for a machine on the Commencement Date specified in the Supplement The Upper Limit for each succeeding year is calculated by increasing the Upper Limit for the preceding year by an amount which is derived by multiplying the initial Lease Plan Monthly Charge by the Upper Limit Percent specified in that Supplement. Upper Limit calculations for model upgrades and feature additions are made in a similar manner pursuant to the provisions set forth in the Section entitled "Machine Modifications." For purposes of Upper Limit calculations under this Section, when e machine becomes subject to the Contract Period on or after the an- nouncement, but before the effective date, of an increase in the Lease Plan Monthly Charge, such increased Charge will be used as the initial Lease Plan Monthly Charge. For a machine not yet installed, if the applicable Supplement for such machine has been signed by the Customer and IBM. IBM may not increase the Lease Plan Monthly Charge and Upper Limit Percent as 2120.2707-1 (Utr801) REV. 5178 specked in the applicable Supplement unless written notice shall have been given to the Customer at least three months before the scheduled date of machine shipment as specified In the applicable Supplement If such notice is given more than three months before such scheduled shipment date, IBM may not increase the Lease Plan Monthly Charge and Upper Limit Percent as speed in the applicable Supplement un- til the end of the Customer's fiscal year in which such notice is given or until the effective date of the increase, whichever is later, and the in. creased Charges and new Upper Limit Percent shall be used for the balance of the Contract Penod for determining subsequent Upper Limits. In the event an increase in Lease Plan Monthly Charge or Up- per Limit Percent is made to any machine not yet installed, the Customer may, prior to installation, elect to void the Supplement for the affected machine. For a machine which is installed, IBM may, upon at (east three months' prior written notice, increase the Lease Plan Monthly Charge for each machine, model change or feature, as specked in the current Supplement. Such increased Charges will be the lower of (1) the Lease Plan Monthly Charge then in effect for Customers commencing a new Contract Period or (2) the Upper Limit in effect for that year. To the ex- tent that any increase exceeds the applicable Upper Limit, the excess will automatically be effective on ensuing Anniversary Dates. However, the Customer will pay IBM the Lease Plan Monthly Charge in effect at the time of the notice until the end of the Customer's fiscal year in which such notice is given or until the effective date of the increase, whichever is later. The Upper Limit Percent specified in the Supplement will not be in- creased during the Contract Period. IBM may not, during the Contract Period, increase the Purchase Price or decrease the Purchase Option Percent for a machine, model change or feature as specified in the applicable Supplement If the applicable Supplement for an on -order machine has been signed by the Customer and IoM, IBM may not increase the Purchase Price or decrease the Purchase Option Percent, as specified in the ap- plicable Supplement, up to and including the Scheduled Date of Ship- ment as specified in the initial Supplement. In addition, IBM may not decrease the Purchase Option Percent as specified in the applicable Supplement unless (1) the Customer defers shipment after an an- nounced decrease in such percent or (2) the Customer defers shipment before an announced decrease in such percent and the revised Scheduled Date of Shipment for the machine is more than three months following the data of the notice. The Purchase Price for the Contract Period will be specified in the applicable Supplement and shall be the lowest of: The Purchase Price as speclied in the Supplement in effect immediately prior to the commencement of the Contract Period; ii) IBM's established Purchase Price on the date of shipment; Please send ail communications so mina Ib branch office address lil1edabove unless notified to the contrary. CUSTOMER iii) IBM's established Purchaee Price three montha prior to the - Scheduled Date of Shipment as specked in the initial Sup- plement, if the Customer does not defer shipment; or iv) IBM's established Purchase Price three months prior to the revised Scheduled Date of Shipment as specified in the current Supplement, if the Customer does defer shipment prior to an announced price increase. With respect to a Contract Period Extension (hereinafter referred to as "Extension"), as described in the Section entitled "Contract Period Extension," if the applicable Supplement extending the Contract Period or Extension has been signed by the Customer and IBM. IBM may not increase the Lease Plan Monthly Charge, Monthly Use Charge Rate and Purchase Price, as specified in the Supplement for the Extension, unless written notice thereof shall have been given to the Customer at least three months before the Commencement Date of the Extension, except as described in the Section entitled "Machine Modifications." Except as provided herein, all changes in Lease Plan Monthly Charge, Purchase Price, Purchase Option Percent and Upper Limit Percent shall become effective on the date specified in the notice of each change. IBM will provide the Customer a revised Supplement reflecting any changes therein on or after the effective date of such changes. This will be the current Supplement as of such effective date under the terms and conditions of this Amendment. The applicable Supplement is the initial Supplement or current Supplement, as appropriate. The initial Supplement is the fust Supplement signed by the Customer and IBM in which a machine, model upgrade or feature first appears. The Monthly Use Charge Rate for Plan C machines is subject to the same provisions as apply to Lease Plan Monthly Charges, as described above. Contract Period Extension The Customer may extend a Contract Period any number of times for a period of one year and once for a period less than one year by executing a new Supplement prior to the expiration of the Contract Period or Extension then in effect. The Commencement Date of an Ex- tension is the day immediately following the expiration of the Contract Period err Extension then in effect The Customer agrees to pay IBM the Total Lease Plan Monthly Charge and any applicable Monthly Use Charge through the Expiration Date of the Extension as specified in the Extension Supplement Machine Modifications Machines installed under this Amendment may be modified by field installable model changes and features in the following manner. UPGRADES: Model upgrades and feature additions may be installed under this Amendment any time during the Contract Period or Extension by executing a new Supplement Feature additions will be installed at IBM's then existing applicable Lease Plan Monthly Charge. Model upgrades will be installed at the dif- ference between IBM's then existing Lease Plan Monthly Charge for the model to be installed and IBM's then existing Lease Plan Monthly Charge for the installed model. For the purpose of determining future increases in the Lease Plan Monthly Charge and Upper Limit, as set forth in the Section entitled "Charges," such model upgrades and feature additions shall have the same Anniversary Date, Expiration Date and Upper Limit Percent as 'the installed machine; provided, however, that any increase in Leese Plan Monthly Charge applicable to a model upgrade or feature addition announced prior to the inclusion of such equipment in a Supplement will be effective to the full extent of the increase on the date specified in the notice of such increase and will be the Lease Plan Monthly Charge used for all Upper Limit calculations. The Total Lease Plan Monthly Charge will be increased by the amount of the increased Lease Plan Monthly Charge as descrlhed above for the model upgrade or feature addition. The Monthly Use Charge Rate for Plan C machines is subject to the same provisions as apply to the Lease Plan Monthly Charge, as described above. 2 DOWNGRADES: During the Contract Period or Extension, upon one month's written notice by the Customer, a model downgrade to an installed machine may be made only at the end of the Customer's then -current fiscal year or, if the Customer elects to purchase, at the time of purchase. A model downgrade is defined as a model change which results in a decrease in the Total Lease Plan Monthly Charge. For a model downgrade, the Total Lease Plan Monthly Charge will be reduced by the difference between the Lease Plan Monthly Charge for the installed model as specified in the current Supplement and the Lease Plan Monthly Charge which was in effect for the resulting downgraded model as of the earliest date during the Contract Period or Extension on which the machine contained the downgraded model, adjusted for subsequent price changes that would have been applicable to the resulting downgraded model, as provided in the Section entitled 'Charges.' Upon one month's prior written notice by the Customer. a feature may be removed from an installed machine at any time during the Contract Period or Extension. For a feature removal the Total Lease Plan Monthly Charge will be reduced by the Lease Plan Monthly Charge as specified in the current Supplement for such features. Charges After Expiration of the State and Local Government Lease Plan If the Contract Period or Extension expires for a machine, the Customer agrees to pay IBM in accordance with the then current chargee, terms and conditions for a Rental Contract Period under the Agreement for Lease or Rental of IBM Machines until the Customer discontinues or purchases the machine. Purchase Option The Customer may elect to purchase a machine at any time during the Contract Period or Extension under the terms of an Agreement for Purchase of Installed IBM Machines. Upon request from the Customer, IBM will quote a net purchase option price for such machine as of a specific month that is not more than three months from the date of the request. The net purchase option price, as calculated for each machine, model upgrade and feature, will be the lower of: i) The Purchase Price as specified in the current Supplement, less applicable purchase option credits not to exceed the Maximum Purchase Accrual Percent, as specified in the initial Supplement, of the current Supplement's Purchase Price; or ii) IBM's then current purchase price on the Effective Date of Purchase, less applicable purchase option credits not to exceed the Maximum Purchase Accrual Percent, as specified in the initial Supplement, of IBM's then current purchase price on the Effective Date of Purchase. Purchase option credits will accrue individually for each machine, model upgrade or feature for the Contract Period and do not accrue for Extensions as described in the Sectionentitled "Contract Period Ex- tension." Purchase option credits are not transferable to other Customers or between machines or among a machine, its models and features. Purchase option credits earned under the Agreement for Lease or Rental of IBM Machines for a -machine placed under this Amendment will be included hereunder under the applicable prior provisions. In ad- dition, monthly purchase option credits accrued under this Amend- ment will be equal to the Lease Plan Monthly Charge as specified in the applicable Supplement multiplied by the Purchase Option Percent as specified in the applicable Supplement. Purchase option credits shall be applied in the order in which they are first incurred. However, in no event may the above purchase option credits accrue for more than the Maximum Accrual Period as specified in the initial Supplement When a machine, model change or feature ceases to be installed under a Sup- plement, all State and Local Government Lease Plan purchase option credits accrued hereunder with regard to that machine, model change or feature shall expire except to the extent that such credits would have been eligible under the terms and conditions for a Rental Contract Period under the Agreement for Lease or Rental of IBM Machines. Termination or Discontinuance The Customer may, during a Contract Period or Extension, ter- minate the Supplement or discontinue the machine only at the end of the Customer's then current fiscal year upon three months' prior writ- ten notice to IBM for a base central processing complex (CPC) unit, or one month's prior written notice to IBM for a machine other than a CPC unit. Any removal of a machine upon the Customer's request during a Contract Period or Extension for return to IBM for any reason, in- cluding machine replacement for model or feature changes which are not field installable, shall be considered a discontinuance for purposes of this Amendment and will only be allowed at the end of the Customer's then current fiscal year. General This Amendment is effective from the date on which it is accepted by IBM. Expiration or termination of any Contract Period or Extension shall not terminate this Amendment, it being the intent of the parties to leave this Amendment in effect in the event of future Contract Periods or Extensions. This Amendment may be terminated concurrent with or following expiration of all Contract Periods or Extensions by Received by IBM at_ COrpUS CHri I tt 115 Brandi ogee Name/Number By ---------—Manager'e Signior -- DSeoager'e Neem (Typeor Prla[I On Accepted by: International Business Machines Corporation By Au[horteed Signature Name (Type or Print) Title On Date ATTEST: City Secretary the Customer upon one month's prior written notice or by IBM upon three months' prior written notice. The terms of the Agreement for Lease or Rental of IBM Machines as amended by this Amendment, shall prevail notwithstanding any vari- ance with provisions stated in any Customer order. In the event of any conflict between this Amendment and the terms of the Agreement for Lease or Rental of IBM Machines, the terms of this Amendment govern with regard to the machines, model changes and features listed in any Supplement This Amendment is not cancellable except as expressly provided herein; nor may any machines, model changes or features to which it is applicable be discontinued except as expressly provided herein. IBM may modify the terms of this Amendment by providing the Customer with at least three months' prior written notice. A modification will apply on the effective date specked in the notice to a new Contract Period or Extension which commences on or after the date of the noiice, but will not apply to a Contract Period or Extension which commenced prior to the date of the notice until the Contract Period or Extension has expired or been terminated. In addition to the provisions in the Agreement for Lease or Rental of IBM Machines, IBM DOES NOT MAKE ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. By City of Corpus Christi ----- ------ anteater ----- Authortred Signature Name (Type or Print) Title On Date APPROVED: DAY OF JANUARY, 1979: J. BRUCE AYCOCK, CITY ATTORNEY By Assistant City Attorney Director of Finance • • Corpus Christi, xas /0 day of ,19 TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance, a public emergency and imperative necessity exist for the suspension of the Charter rule or requirement that no ordinance or resolution shall be passed finally on the date it is introduced, and that such ordinance or resolution shall be read at three meetings of the City Council; I, therefore, request that you suspend said Charter rule or requirement and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, THE CITY OF The Charter Rule was suspended by the following vote: Gabe Lozano, Sr. Bob Gulley David Diaz Ruth Gill Joe Holt Tony Juarez, Jr. Edward L. Sample The above ordinance was passed Gabe Lozano, Sr. Bob Gulley David Diaz Ruth Gill Joe Holt Tony Juarez, Jr. Edward L. Sample 14712 by the following 1 /I vote: ISTI, TEXAS