Novell Multi Year Licensing and Support AgreementMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Novell Multi -Year Support Agreement
DATE: July 20, 2010
Dubuque
kilkd
AlWlmedca City
1 11 '
2007
Information Services Manager Chris Kohlmann recommends City Council approval of a
three year agreement for Novell software licensing and support financed by Arrow
Enterprise Computing Solutions, Inc. Annual payments for the next three years would
be $43,130.05 per year starting in Fiscal Year 2011.
concur with the recommendation and respectfully request Mayor and City Council
approval.
Michfael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Chris Kohlmann, Information Services Manager
Masterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: Chris Kohlmann, Information Services Manager
SUBJECT: Novell Multi -Year Support Agreement
DATE: July 16, 2010
Dubuque
hfril
All - America City
'
2007
BACKGROUND
The City currently licenses software from Novell, Inc. The software from Novell includes:
• Server operating system and Novell workstation client;
• Groupwise e-mail including server, client and calendaring;
• ZenWorks which provides for automatic delivery of applications, remote
management and inventory of workstations;
• iPrint which provides for shared network printing and management;
• Identity Manager which is used for management of users, roles and security.
This software is maintained and licensed through a contract with Novell. The
maintenance contract provides for software updates, fixes and support. In FY 2010 the
amount paid for licensing and maintenance was $45,434.00. Due to a change in
discount and fee structure for volume and government pricing, the proposed cost for
Novell annual licensing and maintenance for FY 2011 is $53,584.00 - an 18% increase.
The increase in cost results primarily from a change to the discount structure from 40%
to 34 %.
This memo outlines a proposal for multi -year licensing done through a lease
arrangement that can provide cost savings over projected for the next 3 years.
DISCUSSION
Novell has proposed a 3 year licensing agreement that would be financed through a
lease arrangement through Arrow Enterprise Computing Solutions, Inc. By entering into
a in a 3 year licensing and maintenance agreement the City will also be able to be able
to take advantage of a 40% discount for the licensing and maintenance fees. Arrow has
also agreed to a Non - Appropriation Addendum to be included in the agreement. Both of
these agreements have been forwarded to Corporation Counsel Barry Lindahl for
review.
The total amount to be financed would be $118,934.40. Nominal annual interest rate is
4.334 %. The annual payment would be $43,130.05 with total principal and interest paid
over 3 years to be $129,390.15.
I have attached a spreadsheet showing projected savings by entering into the multi -year
contract which is estimated at almost $39,505 over 3 years compared to the annual
payment arrangement.
In addition to the cost savings, the three year arrangement locks in the 40% discount
rate for any existing or new products from Novell as well as provides a predictable
annual expense.
RECOMMENDATION
I recommend that the City enter into a three year agreement for Novell software
licensing and support financed by Arrow Enterprise Computing Solutions, Inc. Annual
payments for the next three years would be $43,130.05 per year starting in FY 2011.
BUDGET IMPACT
Novell Licensing is budgeted as part of the Information Services annual operating
budget. The three year lease agreement creates a savings of $10,453.95 in FY2011
and a projected savings of $13,119.50 in FY2012 and $15,931.98 in FY2013. Interest
paid over the life of the lease would be $10,455.75.
ACTION STEP
I would request your approval to enter into the 3 -year Novell software licensing and
support agreement as proposed to be financed by Arrow Enterprise Computing
Solutions, Inc. with payments for the next three years of $43,130.05 per year starting in
FY 2011. Please let me know if you have questions. Thank -you.
Attachments include: Novell 3 year proposal for software licensing and support, Arrow
sample agreement, Non - Appropriation Addendum, excel spreadsheet showing financing
details and saving summary.
Cc: Jenny Larson, Budget Director
Ken Tekippe, Finance Director
Barry Lindahl, Corporation Counsel
Lisa Hamilton, Senior Network Administrator
<Date>
<Customer>
<Customer address>
<Customer address>
Re: Installment Payment Agreement No. < > dated < >.
Thank you for choosing Arrow Enterprise Computing Solutions, Inc. (AECS) as your leasing partner. We appreciate
your business and look forward to providing you with excellent service. Enclosed please find all documents necessary to
complete the lease. Please sign and return as soon as possible all documents (to issue any necessary purchase order)
except the Delivery and Acceptance Certificate to:
Arrow Enterprise Computing Solutions, Inc.
Attn: Christina Snedeker
24 Inverness Place East
Englewood, CO 80112
Phone # 303 - 790 -2330 ext 2208
The documents needed are as follows:
1. Installment Payment Agreement — Please sign and date.
2. Product Description — Please initial.
3. Certificate of Incumbency and Authority (COIA) — Requires Secretary's Signature and Corporate Seal. This
document must be completed by someone other than the individual signing the lease documents. The same
individual cannot sign the COLA and the other lease documents.
4. Billing Information Form - To ensure billing accuracy, please complete and sign all information requested and
return with the lease documents.
5. Authorization for Electronic Funds Transfer (EFT) — Please complete and return if you wish to make your
lease payments using the EFT system.
6. Certificate of Acceptance - After all the equipment has been received and successfully installed, please sign
and DATE the Delivery and Acceptance Certificate and forward it to my attention at the above address.
Arrow Enterprise Computing Solutions, Inc. will complete the paperwork and return to you an executed copy of the
Lease Agreement when we have received the Delivery and Acceptance Certificate and paid the vendor. Please do not
hesitate to call if you have any questions. We look forward to serving your leasing needs again in the future.
Sincerely,
Christina Snedeker
Vendor Support Manager
IPA_11 21 09
IPA No.:
Date:
Customer:
Customer Address:
Software License Agreement:
Quote Number:
Description of Software Licenses:
Product Schedule attached to this Installment Payment Agreement.
Licensor:
Arrow Enterprise Computing Solutions, Inc.
Fees owed by Customer under the License
Agreement:
Program Fees:
Applicable sale /use tax included (if any)
Total
$
$ 0
$
Payments due to AECS under this IPA:
Payment
January 15, 2010 $
January 15, 2011 $
January 15, 2012 $
Total $
Doc Fee:
$
Guarantor (if any):
Enterprise Computing Solutions
This INSTALLMENT PAYMENT AGREEMENT "IPA ") is made by and between Arrow Enterprise Computing Solutions, Inc. ("AECS ") and the Customer identified
above. This IPA is made in connection with the license to be granted by the Licensor identified above to the Customer of certain software (the "Licensed
Software ") and provision by Licensor of certain maintenance, professional and /or support services in connection with the Licensed Software ("Services "), all as
further identified in the software license agreement described above ("License Agreement "). Software license fees and related service fees in the amounts set
forth above (collectively, the "Fees ") are owing by Customer to Licensor pursuant to the License Agreement. Customer and AECS have agreed that instead of
Customer paying the Fees to Licensor, AECS will satisfy Customer's obligation to pay the Fees to Licensor and, in consideration thereof, Customer agrees to pay
AECS the Payments (as defined in Section 1) due hereunder. Customer acknowledges that the Payments to be paid by it to AECS may exceed the amounts paid
by AECS to the Licensor in satisfactions of the Customer's obligations to pay the Fees. Any amounts set forth in the License Agreement that are not financed
under this IPA shall be due and payable by Customer to Licensor at the times and in the manner set forth in the License Agreement. This IPA is separate from,
and independent of, the License Agreement. AECS and Customer agree to the following terms and conditions. Provided (a) no Event of Default (as defined in
Section 8) or no event which, with the giving of notice or passage of time, or both, would constitute an Event of Default has occurred hereunder or under any other
agreement between AECS and Customer, (b) since the date of this IPA, there has not been a material adverse change in the business, status, operations,
financial condition or prospects of the Customer or Licensor, or (c) the Software License Agreement has not been terminated for any reason, AECS will, on behalf
of Customer, pay Licensor the applicable Fee at the times and in the manner as set forth above.
1. PAYMENTS.
(a) Customer agrees to pay to AECS the installment payments as described above (the
"Payments "), on the due date set forth above and continuing on the same date of each month,
quarter or year thereafter, as applicable.
(b) Customer agrees that its obligation to pay all amounts due under this IPA to AECS is
absolute and unconditional, and shall not be subject to any delay, reduction, deduction,
abatement, setoff, recoupment or any defense, claim or counterclaim (each a "Claim ") that
Customer may have against AECS, Licensor or any other third party. Unless indicated above,
the Payments exclude, and Customer shall be liable for, any and all applicable sales, use,
property, or any other tax, duty or withholding allocable to the License Agreement or this IPA.
Customer acknowledges and agrees that Customer's sole remedy in the event of (i) a breach of
the License Agreement, or (ii) a failure of the Licensed Software to perform as warranted by
Licensor, or (iii) any other dispute or default under the License Agreement shall be against
Licensor, and Customer shall have no right to withhold or refuse to make the Payments required
under this IPA, even if the License Agreement provides for the possibility of offset, refund or
suspension of payment, or the licenses granted under the License Agreement and/or Services
provided thereunder have been revoked or otherwise terminated for any reason whatsoever.
2. LATE CHARGE RATE. If any Payment or other amount due under this IPA is not
received within five (5) business days after its due date, Customer agrees to pay interest on
such overdue amount until paid, calculated from the due date at the lesser of the rate of one
and one -half percent (1.5 %) per month or the maximum rate permitted by applicable law (the
"Late Charge Rate ").
3. PREPAYMENT. Upon prior written consent of AECS (which consent shall not be
unreasonably withheld), Customer may prepay, in whole but not in part, the entire outstanding
balance of the Payments due hereunder (on a non - discounted basis) by paying to AECS such
outstanding Payments plus interest at the Late Charge Rate (if any). No other manner of
prepayment shall be permitted.
4. APPLICATION OF PAYMENTS. Each Payment received under this IPA shall be applied
first to all costs of collection, then to interest at the Late Charge Rate Of any), and the balance to
IPA_11 21 09
Installment Payment Agreement
the outstanding Payments due under this IPA in such order and manner as AECS may direct in
its sole discretion.
5. COVENANTS.
(a) If Customer is a privately held company, Customer shall fumish AECS with its audited
financial statements on an annual basis within 120 days after the end of each fiscal year.
(b) Customer shall not waive the performance of, or amend, modify or otherwise alter any
term or condition of the License Agreement, including without limitation, any such term or
condition related to (i) payment of any amount due; (ii) any other liabilities or obligations of
Customer; (iii) late fees on past due amounts; or (iv) payment of applicable taxes; provided,
however, that this provision shall not apply to those terms or conditions relating solely to
amounts owing to Licensor which have not been financed under this IPA.
(c) Customer shall deliver to AECS such information, instruments and documents (including but
not limited to opinions of counsel and corporate resoiutions),and shall do all such things from
time to time hereafter as AECS may reasonably request to carry into effect the provisions and
intent of this IPA and to comply with all applicable statutes and laws.
6. REPRESENTATIONS AND WARRANTIES. Customer represents and warrants that:
(a) Customer is duly organized, validly existing and in good standing under applicable state
law;
(b) this IPA is a genuine, legal, valid and binding obligation of Customer, enforceable against
Customer in accordance with its terms, subject to applicable bankruptcy and other similar laws
affecting creditors' rights generally;
(c) the undersigned signatory is authorized to execute this IPA on behalf of Customer;
(d) the execution, delivery and performance of this IPA will not violate or create a default
under any law (including any applicable usury law), regulation, judgment, order, instrument,
agreement or charter document binding on Customer or its property;
(e) this IPA has been duly authorized, executed and delivered by Customer;
(f) Customer shall comply with all applicable laws, regulations and orders relating to this IPA;
(g) Customer has made the selection of the Licensed Software and the related Services
based upon its own judgment and expressly disclaims any reliance on statements made by
AECS or its agents;
(h) this IPA evidences a loan for business or commercial purposes only;
(i) financial statements prepared by Customer (whether for the purposes of Section 5(a) or
otherwise) are and will at the time of their preparation be true and correct and prepared in
accordance with generally accepted accounting principles (GAAP), consistently applied; and
(j) Customer acknowledges that neither Licensor nor any agent of Licensor is an agent of
AECS.
7. ASSIGNMENT. Customer may not assign this IPA or any part of it, or grant any interest in
or permit any lien or encumbrance upon this IPA or Customer's interest in the Licensed
Software or the License Agreement, without AECS's prior written consent (which consent shall
not be unreasonably withheld). Pursuant to the License Agreement, Customer may not assign
all or any part of its rights thereunder.
Customer acknowledges and agrees that AECS may sell, assign, grant a security interest in,
negotiate or otherwise transfer all or any part of its rights and interest in this IPA (collectively, an
"Assignment") without notice to or consent of Customer. Upon receipt a written instruction from
AECS that Payments under this IPA are to be made to the assignee, Customer shall promptly
comply with, and, if requested, acknowledge in writing such instructions. Customer waives and
will not assert against the assignee any Claim which it may have against AECS, the Licensor or
any third party. References to AECS in this IPA include any assignee or successor of AECS.
8 EVENTS OF DEFAULT. Any of the following shall constitute an event of default ( "Event of
Default") under this IPA:
(a) Customer fails to pay when due all or any portion of any Payment or other amounts
payable under this IPA or otherwise payable to AECS, and such failure continues for a period of
ten (10) business days after written notice from AECS;
(b) Customer fails to perform or observe any other covenant, condition or agreement to be
performed or observed by it under this IPA or in any other document fumished to AECS in
connection with this IPA, and such failure continues for a period of thirty (30) days after written
notice from AECS;
(c) any representation or warranty made by Customer under this IPA or the License
Agreement or by any guarantor of any of Customer's obligations ( "Guarantor") in relation
thereto is or becomes false in any material respect;
(d) a default or event of default occurs under the License Agreement;
(e) Customer or any Guarantor is de- listed, dies, dissolves, ceases doing business as a going
concem, merges or consolidates with or into another entity, changes organizational form, goes
through a change of control, transfers all or a substantial part of its assets, admits in writing its
inability to pay its debts as they become due, or makes an assignment for the benefit of
creditors;
(f) any receiver, trustee or similar officer is appointed for Customer or any Guarantor (with or
without its consent) or for all or any substantial part of its property;
(g) any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of
debt, dissolution, liquidation or similar proceeding relating to Customer or any Guarantor is
instituted against or by it and is not dismissed within sixty (60) days; or
(h) any judgment, writ, warrant or attachment or execution of similar process is issued or
levied against all or a substantial part of Customer's property and remains unsatisfied for thirty
(30) days.
9. REMEDIES.
(a) Should an Event of Default under this IPA occur:
(i) AECS may declare the entire outstanding balance of the Payments hereunder
immediately due and payable without further notice or demand, which Payments shall, together
with all other amounts due hereunder, accrue interest from such acceleration until the date of
actual payment at the Late Charge Rate (provided, however, that should there occur an Event
of Default, and if a voluntary or involuntary petition under the United States Bankruptcy Code is
filed by or against Customer while such default remains uncured, the entire outstanding balance
of the Payments and other amounts hereunder shall be automatically accelerated and due and
payable with interest thereon at the Late Charge Rate);
(ii) AECS may demand from Customer and AECS shall be entitled to collect all costs
and expenses of collection, including, without limitation, reasonable attomeys' fees, as awarded
or as agreed to in any settlement and incurred in connection with enforcement of its rights and
remedies under this IPA, or in connection with AECS's collection efforts, or in connection with
any bankruptcy or other judicial proceeding, whether or not any claim or suit on this IPA or any
foreclosure proceeding is filed;
(iii) AECS may exercise any and all remedies provided to it under applicable law; and
(iv) AECS may request Licensor to terminate or cause to be terminated all licenses
granted to Customer under the License Agreement to the extent such licenses have been
financed pursuant to this IPA, and /or request that any Services provided under or in connection
with the License Agreement to be withheld. Notwithstanding the foregoing, AECS
acknowledges that it shall be within Licensor's sole discretion whether to terminate any licenses
or Services. Upon AECS's written demand therefor, Customer shall immediately cease its use
of the Licensed Software and related Services that are financed hereunder, regardless of
whether Customer is in default of its obligations under the License Agreement; and Customer
shall, at AECS's sole option, either (i) deliver to AECS in writing the certification of a duly
authorized officer of Customer to the effect that Customer has ceased its use of the Licensed
Software and related Services, or (ii) assemble the Licensed Software and make it available to
AECS at a place to be designated by AECS which is reasonably convenient to AECS and
Customer. In the event Customer is entitled to transfer the right to use the Licensed Software
to any third party, Customer hereby (x) agrees to transfer any such right to use the Licensed
Software to AECS or any third party selected by AECS, and (y) acknowledges that Customer
shall have no right to fees payable by any third party in connection with such transfer.
(b) Customer stipulates that the remedies at law of AECS may not be adequate to
compensate AECS for Customer's failure to comply with this IPA, including Section 10(a)(iv),
and that Customer's obligations under this IPA and under such Section may be specifically
IPA_11 21 09
enforced by a decree for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
(c) The remedies of AECS provided herein and under applicable law shall be cumulative and
concurrent and may be pursued singly, successively or concurrently at the sole discretion of
AECS and may be exercised as often as occasion therefor shall occur. The failure to exercise,
or any delay in the exercise of, any right or remedy shall in no event be construed as a waiver,
release or exhaustion of any such remedies.
10. INDEMNIFICATION. Customer assumes liability for, shall pay when due and shall
indemnify and defend AECS against, any and all liabilities, losses, damages, claims and
expenses including, without limitation, reasonable attorneys' fees ( "Claims ") relating to or
arising out of (a) this IPA or any items of Licensed Software or Services including, without
limitation, the design, licensing, ownership, financing (solely as to financing, subject to AECS's
payment to Licensor in accordance with and subject to the terms of this IPA), installation,
possession, use and operation of the Licensed Software, or (b) a termination, pursuant to
Section 9(a)(iv), of the Licensed Software and Services financed hereunder. Customer shall
give AECS prompt notice of any occurrence, event or condition for which AECS may be entitled
to indemnification under this IPA. These indemnifies shall survive the expiration of the term of
this IPA or any renewal or extension then in effect.
11. WAIVERS. CUSTOMER HEREBY WAIVES GRACE, DEMAND, PRESENTMENT FOR
PAYMENT, NOTICE OF NON- PAYMENT, PROTEST AND NOTICE OF PROTEST, NOTICE
OF DISHONOR OR DEFAULT, NOTICE OF INTENT TO ACCELERATE AND NOTICE OF
ACCELERATION OF THIS IPA. CUSTOMER AND AECS HEREBY EACH IRREVOCABLY
WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION WHATSOEVER BASED UPON OR ARISING OUT OF OR RELATED TO THIS IPA.
UPON THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER THIS IPA, CUSTOMER
IRREVOCABLY CONSENTS TO A TERMINATION BY LICENSOR (AT LICENSOR'S SOLE
DISCRETION) OF ANY SERVICES AND OF ANY LICENSE FOR THE LICENSED
SOFTWARE FINANCED HEREUNDER, AND IRREVOCABLY WAIVES ANY CLAIM IT MAY
HAVE AGAINST AECS WITH RESPECT THERETO. LICENSOR SHALL BE A THIRD PARTY
BENEFICIARY OF THIS CONSENT AND WAIVER.
12. DISCLAIMER OF WARRANTIES. Customer acknowledges that AECS does not hold title
to the Licensed Software and that Customer is or shall be the licensee of the same directly from
Licensor. The use of the Licensed Software by Customer is subject to the terms of the License
Agreement. AECS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE
LICENSED SOFTWARE OR SERVICES COVERED BY THE LICENSE AGREEMENT
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE OR OF MERCHANTABILITY, AND AECS DISCLAIMS SAME. CUSTOMER
WAIVES ANY CLAIM (INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE
LIABILITY IN TORT) THAT IT MAY HAVE AGAINST AECS FOR ANY LOSS, DAMAGE
(INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF DATA OR DIRECT,
SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGE) OR EXPENSE
ARISING OUT OF, CAUSED BY OR RELATED TO THE LICENSED SOFTWARE OR ANY
SERVICES COVERED BY THE LICENSE AGREEMENT OR A TERMINATION OF THE USE
OF THE LICENSED SOFTWARE AND SERVICES PURSUANT TO SECTION 9(a)(iv), EVEN
IF AECS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, LOSS, EXPENSE
OR COST.
13. LICENSOR BANKRUPTCY. In the event of a Licensor bankruptcy, Customer agrees to
take no action toward the termination of this IPA and shall continue to make payments to AECS
in accordance with the terms of the License Agreement and this IPA. To the extent that the
License Agreement grants Customer an interest in the source code, Customer shall take all
legal action necessary under the United States Bankruptcy Code or otherwise in order to obtain
the source code and shall take other actions as necessary to protect its rights to use the
Licensed Software. In the event Customer fails to take such action, Customer hereby appoints
AECS as its attomey -in -fact, coupled with an interest, to take all actions as are necessary to
secure Customer's right to use the Licensed Software, all at Customer's sole cost and expense.
14. NOTICES. Notices, demands and other communications shall be in writing and shall be
sent by hand delivery, certified mail (retum receipt requested) or by ovemight courier service.
Notices to Customer shall be sent to the address set forth on page 1 of this IPA and notices to
AECS shall be sent to 1000 South McCaslin Blvd, Superior, CO 80026, Attention, Vice -
President, Operations or to such other address that a party may substitute by written notice.
Notices shall be effective upon receipt or refusal to accept receipt.
15. MISCELLANEOUS. If more than one person or entity signs this IPA as a Customer, the
obligations contained herein shall be deemed joint and several. This IPA shall be governed in
all respects and construed in accordance with the laws of the State of Colorado (without regard
to conflict of laws principles), except where pre - empted by federal bank law. Any action against
either party conceming this IPA and the indebtedness evidenced hereby may be brought in any
court of competent jurisdiction located in the State of Colorado, and Customer accepts the
nonexclusive jurisdiction of any such court and waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action. This IPA shall constitute
the complete and exdusive agreement of Customer and AECS with respect to the payment of
the amounts owing hereunder and supersedes all prior oral or written understandings. No term
or provision of this IPA may be amended, waived, discharged or terminated except by a written
instrument signed by Customer and AECS. Whenever possible, each provision of this IPA shall
be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this IPA shall be prohibited by or invalid under the laws of any applicable
jurisdiction, such provision, as to such jurisdiction, shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this IPA in any other jurisdiction.
By signing below, each party acknowledges that it has read, understood and agrees to be do so.
bound by the terms and conditions of this IPA and that the person signing is duly authorized to
Arrow Enterprise Computing Solutions, Inc. <Customer>
By: By:
Name: Name:
Title: Date Title: Date
IPA _11 21 09
IPA_11 21 09
PRODUCT SCHEDULE
TO INSTALLMENT PAYMENT AGREEMENT NO. < >
Part# Description Qty.
Ent rprise Cenipw tinq Siotutions
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am a duly elected, qualified and acting officer of the Company, and the current custodian of all applicable records of organization and
operation of the Company;
2. the execution, delivery and performance of all documents relating to the financing of certain items of personal property described in any lease
agreement, security agreement, guaranty, equipment schedule, promissory note or other document(s) from time to time entered into with respect
thereto between Licensor and Company (collectively, the "Transaction Documents ") (a) have been duly authorized by all necessary action on the
part of the Company and (b) have been or will be duly and validly executed and delivered on behalf of Company if executed by any of the persons
whose names, titles and signatures appear in the Authorized Signatories section below (each such person, an "Authorized Signatory ");
3. the Authorized Signatories have been duly elected and qualified and are acting officers and /or Authorized Signatories of the Company holding
the offices indicated, and the signatures appearing opposite their names are the genuine signatures of such Authorized Signatories;
4. the Company's execution, delivery and performance of the Transaction Documents (a) do not conflict with or result in the breach of any
provisions of any agreement or other instrument to which the Company is a party or by which it is bound, or, to its knowledge, any applicable law,
judgment, order, writ, injunction decree, rule or regulation of any court, administrative agency or other governmental authority and (b) do not require
the consent, approval or other authorization of or by any court, administrative agency or other authority or person;
5. the Licensor is entitled to rely on this Certificate until otherwise notified in writing by the Company; and
6. the information contained in this Certificate is true, accurate and complete.
This certification is given to Licensor as of this _ day of , 20
Company:
Certified by •
Print Name:
Print Title:
Licensor: Arrow Enterprise Computing Solutions, Inc.
(full legal name)
NOTE: (1) You cannot both sign above as "Certified by" and below as one of the Authorized Signatories.
(2) The full and complete legal name of the corporation, limited liability company, partnership or other type of legal entity
must be correctly set forth above.
AUTHORIZED SIGNATORIES:
Nam
Print
Print
Print
Print
Title
Print
Print
Print
Print
Certificate of Incumbency and Authority
Signature
Sign
Sign
Sign
Sign
£niprprisc Computing SoWtions
IPA # < >
Please fill in the following questions and return this form to us along with the lease documents. This information will be used by
our billing department to assure that all invoices are prepared correctly.
1. Name of Lessee
2. Equipment Location Address:
3. County equipment is located in:
4. Billing address (if different than equipment location):
5. Send invoices to the "ATTN" of:
6. Phone no. and extension of A/P contact:
7. Do you need a P.O. referenced on invoices? Y/N #
I am exempt from state tax but subject to local tax. I have attached a completed exemption certificate.
I have a valid abatement or property tax exemption (documentation attached).
If applicable to the tax rates in your state, are you outside the city limits or in an unincorporated area?
Additional comments:
8. Federal Tax ID number (required)
Arrow Enterprise Computing Solutions, Inc. is required to collect and remit sales /use tax in the taxing jurisdiction where your
equipment will be located. In the event we do not receive a valid sales tax exemption certificate prior to the date your lease
commences, you will be charged sales /use tax.
BILLING INFORMATION
Personal property tax returns will be filed as required by local law. In the event that any tax abatements or special exemptions are
available on the equipment you will be leasing from us, please notify us as soon as possible and forward the related
documentation to us. This will ensure that your leased equipment will be reported correctly.
Please indicate below if you feel that your lease is subject to tax or whether a valid exemption exists.
I agree that my lease is subject to sales /use tax.
Lessee:
By:
Title:
IPA_11 21 09
I am exempt from sales /use tax and I have attached a completed exemption certificate to Arrow Enterprise
Computing Solutions, Inc..
I have previously provided a completed exemption certificate to Arrow Enterprise Computing Solutions, Inc.
which is valid for this transaction.
Authorization For Electronic Funds Transfer (EFT) Transaction Ref. No.
This EFT payment authorization ( "Agreement ") is being provided to Arrow Enterprise Computing Solutions, Inc.( "Finance Company ") by
("Customer "). As used below, the words "you" and "your" refer to the Customer and the words "we ", "us" and "our" refer to the
Finance Company. This authorization applies to the transaction(s) referenced above (the "Financing "). We will initiate ACH entries from you based
on the following:
1. The EFT will be forwarded to the financial institution and account number ("Account) on this authorization form.
2. We will make payment entries in accordance with, and be govemed by, the National Automated Clearing House Association (NACHA) ACH Operating Rules. Any
remittance information will be passed to you with the related ACH entry.
3. We will use the banking information you provide to us on this form. Any change in your banking information must be communicated in writing to us by your authorized
representative in time to allow us to respond to the change. You agree (A) to hold us harmless for any loss which may arise solely by reason of error, mistake, or fraud
regarding this information, (B) that our liability for any erroneous transfers of funds into or out of the Account shall be limited to our obligation to correct same by making
the corresponding corrective debit or credit to the Account, and (C) that in no event shall we be Gable for any incidental, consequential or punitive damages.
4. Debits/credits will be initiated within the terms of the Financing agreements, induding without imitation amounts which may be subject to change without prior
notification due to increases or decreases in (a) sales taxes due under the obligations, (b) property taxes or assessments due under the obligations, or (c) other
payment amounts required under the terms of the obligations.
5. We may, at our option, discontinue EFT from the Account if you fail to maintain adequate funds in the Account to cover the payments required under the terms dike
Financing. Should there not be adequate funds available in the Account on a payment date, you shall be obligated to pay any deficiency and late charges pursuant to
the terms of the Financing and we may, at our option, deduct a $25.00 fee for inadequate funds from the Account at the time sufficient funds become available.
6. Our EFT terms and conditions neither expand nor reduce your or our respective rights and obligations within the Financing agreements. We will consider a
transaction paid when your financial institution has received and posted the transaction and our financial institution has received and posted the corresponding
transaction. You should notify us immediately if an entry did not post
7. We are responsible for making all entries within this Agreement. We have the right to make adjustments if debits or credits previously transacted are found to be
duplicated, in excess of requirements, fraudulent, or in error.
8. Payment via EFT may be terminated by either of us provided that notification is in wring, and that you and we agree to the termination date, provided, however that
after two instances of insufficient funds, we may terminate this Agreement without such agreement Otherwise, in the absence of an agreement as to the termination
date, we will continue to debit the Account as specified. Written notice is to be sent to the address provided in the Financing agreement
YOUR COMPANY INFORMATION
Your Company Name:
Address:
City: State:
Zip: Phone:
DUNS or IRS Tax ID Number.
YOUR BANKING INFORMATION
Bank Name:
Address:
City: State:
Zip: Phone:
ABA Number.
Account Number
Name on Account:
AGREED: <customer name>
X
Print Name:
IPA_I 121 09
Title:
Date:
Erturrprlsa Computing Sol....ions
Lessor: Arrow Enterprise Computing Solutions, Inc.
24 Inverness Place East
Englewood, CO 80112
Equipment location:
Lessee hereby acknowledges that all the items of Equipment covered by Product Schedule to Installment Payment Agreement No.
< > (the "IPA") between Arrow Enterprise Computing Solutions, Inc., as lessor, and the undersigned, as lessee:
Lessee:
<customer name>
By:
Name:
Title:
* *Acceptance Date:
( ** Please fill in the date as it is crucial to finalizing the documentation)
1PA_11 21 09
Certificate of Acceptance
Lessee:
(a) were received by the undersigned,
(b) are satisfactory to the undersigned in all respects and are acceptable to the undersigned for lease under the Lease,
(c) are suitable for the undersigned's purposes,
(d) are in good order, repair and condition,
(e) have been installed and operate properly, and
(f) are subject to all of the terms and conditions of the Lease.
Lessee /Renter /Customer:
Title of lease, rental or other agreement:
dated
Lessor or Lender:
Arrow Enterprise Computing Solutions
Lease, rental or contract #:
Non - Appropriation Addendum
This Non - Appropriation Addendum (this "Addendum ") is made by and between the above - referenced state or local
governmental entity ( "Customer ") and the above - referenced lessor or lender ( "Creditor ").
Introduction: Customer and Creditor are simultaneously herewith entering into the above - referenced lease or other
credit agreement ( "Agreement "); and Customer and Creditor wish to modify the terms of the Agreement to provide for terms
that will apply in the event of the non - appropriation of funds by Customer's legislature or other governing body. This Addendum
shall be effective as of the same date as the Agreement (the "Effective Date ").
1. Incorporation and Effect. This Addendum is hereby made a part of, and incorporated into, the Agreement as
though fully set forth therein. As modified or supplemented by the terms set forth herein, the provisions of the Agreement shall
remain in full force and effect, provided that, in the event of a conflict between any provision of this Addendum and any provision
of the Agreement, the provision of this Addendum shall control.
2. Definitions. Capitalized terms herein that are not otherwise specifically defined herein shall have the same
meanings as set forth in the Agreement. As used in this Addendum, the following terms shall have the following- described
meanings:
"Agreement Related Documents" means all solicitations, requests for proposal, invitations for bid, proposals, bids,
contract awards, service level agreements, statements of work, service agreements, maintenance agreements,
purchase orders or other documents or specifications related to the transaction contemplated in the Agreement but not
issued or entered into by Creditor.
"Goods" shall have the same meaning as the term "Equipment," "Leased Equipment," "Goods," "Property" or
"Collateral" (or a similar term) as defined and used in the Agreement.
"Non- Appropriation of Funds" means any failure of Customer's legislature or other governing body to appropriate
funds for the payment of amounts due and to become due to Creditor under the Agreement in a given fiscal year
during the term thereof.
"Non- Appropriation Notice" means a written notice delivered to Creditor from Customer certifying that (i) a Non -
Appropriation of Funds has occurred, and (ii) Customer has exhausted all funds appropriated for payment of amounts
due and to become due under the Agreement.
3. Non - Appropriation. Customer intends, to the extent permitted by law, to remit to Creditor all sums due and to
become due under the Agreement for the full term thereof, provided funds are appropriated for such purpose. Notwithstanding
the foregoing, the Agreement does not constitute an obligation payable in any fiscal year beyond the last fiscal year for which
related funds are lawfully appropriated. In the event of a Non- Appropriation of Funds, Customer may, subject to the terms
hereof, terminate the Agreement as of the last day of the fiscal year for which appropriations were received and thereafter
return the affected Goods as set forth below. In order to invoke Customer's rights under this provision, Customer agrees that:
(a) to the extent permitted by law, at least thirty (30) days prior to the end of the fiscal period for which funds were last
appropriated with respect to the Agreement, Customershall provide Creditor with a Non - Appropriation Notice, and (b) upon
expiration of such fiscal period, Customer shall return the Goods to Creditor to any location Creditor designates in the
continental United States, insured, freight prepaid by Customer, in good and working order and immediately available for sale
by Creditor to a third party buyer, user, renter or lessee, other than Customer, without the need for any repair or refurbishment.
Customer shall pay all costs to repair Goods not returned in conformity herewith.
4. Non- Substitution. In the event Customer terminates the Agreement due to a Non - Appropriation of Funds,
Customer agrees (to the extent permitted by law) that, for a period of one (1) year from the date of such termination, Customer
shall not purchase, lease or rent equipment performing functions similar to those performed by the Goods, for use at the site
where the Goods are located, except for the public health, safety or welfare of the Customer; provided, however, that this
section shall not be applicable to the extent that these restrictions are unlawful or would adversely affect the validity
or enforceability of the Agreement.
5. Additional Representations and Warranties. In addition to the representations and warranties made by
Customer as set forth in the Agreement, Customer hereby represents and warrants that the Agreement: (a) is a valid and legally
binding contract, entered into in compliance with all applicable laws, including, without limitation, laws relating to open meetings,
public bidding, procurement and appropriations, (b) conforms with, but does not incorporate, the terms and conditions of any
applicable Agreement Related Documents and is the sole governing contract with respect to the Customer's acquisition or use
of the Goods, and (c) constitutes a current expense (and not debt under state law) and does not constitute a pledge of
Customer's tax or general revenues. Customer further represents and warrants that sufficient unencumbered funds have been
appropriated for Customer to fulfill all of its payment obligations under the Agreement during Customer's current fiscal year.
120542 vl Non - Appropriation Addendum 07 -05 Page 1 of 2
Customer acknowledges and agrees that Agreement Related Documents are not a part of the Agreement and that the terms
and conditions of the Agreement supersede and control over any additional or conflicting terms set forth in any Agreement
Related Documents.
6. Choice of Law; Affect on Default and Indemnity Provisions. Notwithstanding anything in the Agreement to the
contrary, the Agreement shall be governed by, construed and enforced in accordance with the laws of the state in which
Customer is located. To the extent Creditor's remedies for a Customer default under the Agreement include any right to
accelerate amounts to become due under the Agreement, such acceleration shall be limited to amounts to become due during
the then - current fiscal year of Customer. Nothing contained in this Section shall be deemed to otherwise limit or affect any of
Creditor's rights or remedies under the Agreement. To the extent Customer is or may be obligated to indemnify, defend or hold
harmless Creditor under the terms of the Agreement, such potential indemnity obligation shall only arise to the extent permitted
by applicable law. Customer's monetary obligation with respect to such potential indemnity obligation (if any) shall be limited
solely to sums lawfully appropriated for such purpose and shall be available only in the amount and pursuant to such
administrative or legal procedures as required by law. Nothing contained in this Addendum or the Agreement shall be
deemed to obligate Creditor to appropriate or otherwise make available funds to satisfy any indemnity or other
obligation to the extent such obligation would be unlawful or would adversely affect the validity or enforceability of the
Agreement. Nothing contained in this Section shall be deemed to otherwise limit or affect any of Creditor's rights or remedies
under the Agreement.
7. Miscellaneous. This Addendum, together with the provisions of the Agreement not expressly inconsistent
herewith, constitutes the entire agreement between the parties with respect to the matters addressed herein, and shall
supersede all prior oral or written negotiations, understandings and commitments. This Addendum may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed to constitute
one and the same agreement. A facsimile or other copy of this Addendum with facsimile or copied signatures shall have the full
force and effect of the original for all purposes, including the rules of evidence applicable to court proceedings.
Customer:
By: X
Print:
Title:
Accepted by Creditor: Arrow Enterprise
Computing Solutions
Print:
Title:
120542 v 1 Non- Appropriation Addendum 07 -05 Page 2 of 2
Novell Customer Quote # 1732029
Program: MLA
Pricing Good: 17 Jun 2010 - 15 Jul 2010
Status: Pending Customer Acceptance
Service Contract #: S1022824
Created By: Bott, Jeremy David (Jeremy)
JBott@novell.com
Customer
CITY OF DUBUQUE IA
1300 MAIN ST
DUBUQUE IA 52001
Contract:
7194711
End User Contact
LISA HAMILTON
563 589 -4281
LHAMILTO @CITYOFDUBUQUE.O
RG
29
877 - 003123
28 873- 008780
28 877 - 002314
552 877 - 002315
1 873- 009864
1 877 - 001604
416 877 - 001605
10 873 - 009230
10 877 - 001694
Resel ler
RESELLER NOT APPLICABLE -
NOVELL
1800 S NOVELL PL
PROVO UT 84606
Reseller Contact
NOT APPLICABLE
ORDERACKDUMP @NOVELL.COM
Novell Open Workgroup Suite with
Teaming 1 -User 1 -Year Priority
Maintenance
Upgrade Novell Open Workgroup Suite 1-
User License
Novell Open Workgroup Suite 1 -User 1-
Year Priority Maintenance
Novell Open Workgroup Suite 1 -User 3-
Year Priority Maintenance
ZENworks 10 Asset Management 1-
Instance /User License
ZENworks Asset Management 1-
Instance /User 1 -Year Priority
Maintenance
ZENworks Asset Management 1-
Instance /User 3 -Year Priority
Maintenance
Novell Identity Manager 3.6 & Prior 1-
User License
Novell Identity Manager 1 -User 1 -Year
Priority Maintenance
Comments:
N/A
N/A
Approved
Shipping
CITY OF DUBUQUE IA
1300 MAIN ST
DUBUQUE IA 52001
Shipping Contact
LISA HAMILTON
563 589 -4281
LHAMILTO @CITYOFDUBUQUE.O
RG
01 Jan 2009 - 132.00
30 Jun 2011
StandardPricing: 81.78 %
N/A 150.00 40.0 %
StandardPricing: 34.0 %
01 Jan 2010- 113.00 40.0%
30 Jun 2010
StandardPricing: 17.0 %
01 Jul 2010 - 305.00 40.0 %
30 Jun 2013
StandardPricing: 34.0 %
33.00 40.0 %
StandardPricing: 34.0 %
01 Jan 2010 - 8.00 40.0 %
30 Jun 2010
StandardPricing: 17.0 %
01 Jul 2010 - 22.00 40.0 %
30 Jun 2013
StandardPricing: 34.0 %
25.00 40.0 %
StandardPricing: 34.0 %
01 Jan 2010 - 6.30 40.0 %
30 Jun 2010
StandardPricing: 17.0 %
42.27 % 76.20
Billing
USD 209.55
90.00 136.36
USD 99.0
67.80 81.69
USD 37.29
183.00 277.27
USD 201.3
19.80 30.00
USD 21.78
USD 2.64
CITY OF DUBUQUE IA
1300 MAIN ST
DUBUQUE IA 52001
Billing Contact
LISA HAMILTON
563 589 -4281
LHAMILTO @CITYOFDUBUQUE.0
RG
418.22
4.80 5.78
13.20 20.00
USD 14.52
15.00 22.73
USD 16.5
3.78 4.55
USD 2.08
2,209.8(
2,520.01
1,898.4(
101,016.0(
19.8(
4.8(
5,491.21
150.0(
37.81
548 877 - 001695 Novell Identity Manager 1 -User 3 -Year 01 Jul 2010 - 17.00 40.0 % 10.20 15.45 5,589.6(
Priority Maintenance 30 Jun 2013
StandardPricing: 34.0 % USD 11.22
How to Place an Order:
Total USD 118,937.40
• If purchasing directly from Novell (MLA, SLA, ALA only), please retum • If purchasing via an authorized Novell reseller, please provide this
your purchase order along with this quote document to one of the document to your reseller to ensure order accuracy, and to receive a
following: quote of your final purchase price.
eMail:
+1-801-861-6335 : +d8rs @nov6
Fax • This quote does not include any shipping or taxes, if any.
F
Mail: Novell Inc. • If a pricing discrepancy should arise, the pricing as published in the
Mail Stop PRV - - 231 current Novell price list and /or NPA will prevail.
1800 South Novell Place
Provo, Utah 84606
USA
Novell
Compound Period:
Nominal Annual Rate:
CASH FLOW DATA
1 Loan
2 Payment
Event
AMORTIZATION SCHEDULE - Normal Amortization
Annual
4.334%
Date Amount Number Period End Date
7/16/2010 118,934.40 1
7/16/2011 43,130.05 3 Annual 7/16/2013
Date Payment Interest Principal Balance
Loan 7/16/2010 118,934.40
2011 Totals 0.00 0.00 0.00
1 7/16/2011 43,130.05 5,154.99 37,975.06 80,959.34
2012 Totals 43,130.05 5,154.99 37, 975.06
2 7/16/2012 43,130.05 3,509.03 39,621.02 41,338.32
2013 Totals 43,130.05 3,509.03 39,621.02
3 7/16/2013 43,130.05 1,791.73 41, 338.32 0.00
2014 Totals 43,130.05 1,791.73 41,338.32
Grand Totals 129,390.15 10,455.75 118,934.40
7/19/2010 11:01 AM Page 1
FY 2010 FY2011 FY2012* FY2013* Total
Annual Payment Actual 45,434.00
Annual Payment Proposed 53,584.00
Annual Payment Budgeted 53,571.00 56,249.55 59,062.03
3 Year Proposal with Financing N/A 43,130.05 43,130.05 43,130.05
Diff/Savings 10,453.95 13,119.50 15,931.98 39,505.43
* Assumes 5% annual increase in licensing expenses