ADOPTED 07/20/1999

RESOLUTION NO. R99-1621

A resolution approving an Economic and Community Development Incentive Grant and the Economic and Community Development Incentive Grant Agreement between The Metropolitan Government of Nashville and Davidson County, The Industrial Development Board of The Metropolitan Government of Nashville and Davidson County and Dell Computer Corporation.

Whereas, the Metropolitan Government is vitally interested in the economic welfare of the citizens of the Metropolitan Government and wishes to provide the necessary leadership to enhance this area’s capabilities for growth and development; and

Whereas, the provision of jobs to area citizens by local business is both necessary and vital to the economic well-being of the Metropolitan Government; and

Whereas, pursuant to the Industrial Development Corporations Act, currently codified at Tenn. Code Ann. §§ 7-53-101—311 (such act, as heretofore or hereafter amended, the "Act"), the General Assembly of the State of Tennessee (the "General Assembly") has authorized the incorporation of public corporations known as "industrial development boards" in municipalities in the State of Tennessee (the "State"); and

Whereas, the Board has been duly organized and incorporated in compliance with the Act; and

Whereas, the General Assembly has found and declared that the Board is performing a public function on behalf of the Metropolitan Government and that the Board is a public instrumentality of the Metropolitan Government; and

Whereas, the Supreme Court of Tennessee (the "Supreme Court") has found that the Board is an agent or instrumentality of the Metropolitan Government; and

Whereas, the Act expressly incorporates by reference the statement of public policy set forth in Section 3 of Chapter 209 of the Public Acts of 1955; and

Whereas, Chapter 209 of the Public Acts of 1955 states that the declared purpose of the Act is to do that which the State welfare demands and the State public policy requires to alleviate the problems of unemployment, to raise family income, to provide a means by which the citizens of the community may promote and develop industry in their area so as to obtain a balanced economic development highly essential to the welfare of the State, and to promote the development of commercial, industrial, agricultural and manufacturing enterprises by the several municipalities so as to be given local benefits peculiar to each and general benefits to the entire State; and

Whereas, the General Assembly has also declared that the purposes of the Act include maintaining and increasing employment opportunities by promoting industry, trade and commerce by inducing manufacturing, industrial, financial, service and commercial enterprise to locate or remain in the State; and

Whereas, the Supreme Court has held that the purposes of the Act include the promotion of industry and the development of trade to provide against low wages and unemployment and that such purposes are public in nature; and

Whereas, the Board is empowered pursuant to the Act to acquire, whether by purchase, exchange, gift, lease or otherwise, and to improve, maintain, equip and furnish, "projects" (as defined in the Act) and to lease such projects to others; and

Whereas, "projects" under the Act may include, without limitation, manufacturing, processing and assembly facilities and office buildings for use in connection with an industrial, commercial, financial or service enterprise; and

Whereas, the Board is empowered pursuant to Tenn. Code Ann. § 7-53-302, to acquire real and personal property to be used for manufacturing and office purposes, whether by purchase, construction, exchange, gift, lease or otherwise, and to improve, maintain, extend, equip and furnish such properties in order to promote employment, trade, industrial development and environmental pollution control; and

Whereas, pursuant to Tenn. Code Ann. §§ 5-9-101(26) and 7-53-310, the Metropolitan Government is authorized to use available funds to make grants to the Board for economic and community development purposes and to acquire property for contribution, by sale, lease or gift, to the Board; and

Whereas, the Metropolitan Council adopted Ordinance No. O99-1680, on July 20, 1999, after determining that, in order to promote industry, develop trade and provide against low wages and unemployment, and in order to further other public purposes of the Metropolitan Government, it was in the best interest of the Metropolitan Government to make economic and community development incentive grants to the Board to encourage the location within the boundaries of the Metropolitan Government of: (i) international, national or regional headquarters of well known and branded, large and successful companies, comparable, but not limited to, companies on the Fortune 500 listing, that are expected to result in the creation of at least 1,000 new jobs within the boundaries of the Metropolitan Government during the first five years of operations; and (ii) manufacturing facilities, offices, distribution facilities and customer support and call center facilities of well known and branded, large and successful companies, comparable, but not limited to, companies on the Fortune 500 listing, involved in manufacturing or assembly of computers or telecommunications equipment or component parts thereof that are expected to result in the creation of at least 2,000 new jobs within the boundaries of the Metropolitan Government during the first five years of operations; and

Whereas, the Metropolitan Council further determined in Ordinance No. O99-1680 that, in order to promote industry, develop trade and provide against low wages and unemployment, and in order to further other public purposes of the Metropolitan Government, it was in the best interest of the Metropolitan Government to make economic and community development incentive grants to the Board in an amount calculated by multiplying the average number of full time equivalent employees of the qualified company within the boundaries of the Metropolitan Government during the preceding year by an amount not to exceed $500, with the actual amount of the economic and community development incentive grant and the period of such grant to be determined taking into account, among other things, the amount of revenue from all sources that is anticipated to be received by the Metropolitan Government with respect to the location of the qualified company and its operations within the boundaries of the Metropolitan Government and other economic and community development opportunities that the qualified company is expected to create.

Whereas, Dell Computer Corporation ("Dell"), a Fortune 500 company with its headquarters in Round Rock, Texas, has announced its tentative decision to locate computer manufacturing, assembly and distribution facilities and technological support operations (the "Dell Project") on certain property owned by the Board (the "MTMHI Property"), on certain property leased to the Board by the Metropolitan Nashville Airport Authority (the "Airport Property") and on certain property currently owned by the State of Tennessee, if it is eventually conveyed to the Board (the "State Property"); and

Whereas, the Metropolitan Government has found that Dell and the Dell Project meet the criteria to be eligible to receive the benefits of an economic and community development incentive grant as authorized by Ordinance No. O99-1680; and

Whereas, the Metropolitan Government has found that the location of the Dell Project within the boundaries of the Metropolitan Government will result in significant employment and other commercial opportunities for area citizens; and

Whereas, in order to promote industry and develop trade and to provide against low wages and unemployment and to further other public purposes of the Metropolitan Government, and after taking into account, among other things, the amount of revenue from all sources that is anticipated to be received by the Metropolitan Government with respect to the Dell Project and other economic and community development opportunities that the Dell Project is expected to create, the Metropolitan Government has found that it is in the best interest of the Metropolitan Government to make an economic and community development incentive grant to the Board on behalf of Dell for a period of forty (40) years, in an amount calculated by multiplying the average number of full time equivalent employees of Dell located within the boundaries of the Metropolitan Government during the preceding year by $500; and

Whereas, Ordinance No. O99-1680 provides that prior to the Board making any economic and community development grant, the economic and community development grant and any agreement memorializing such grant must be approved by the Metropolitan County Mayor and then submitted to the Metropolitan County Council for approval by resolution receiving at least 21 affirmative votes; and

Whereas, as evidenced by his signature on this Resolution, the Metropolitan County Mayor has approved an economic and community development grant (the "Grant"), as memorialized in the Economic and Community Development Incentive Grant Agreement between the Metropolitan Government, the Board and Dell (the "Grant Agreement"), a copy of which is attached hereto as Exhibit 1 and is incorporated herein, and hereby submits the Grant and the Grant Agreement to the Metropolitan County Council for its approval.

Now, therefore, be it resolved by the Council of The Metropolitan Government of Nashville and Davidson County:

Section 1. That the Grant and the Grant Agreement which is attached hereto as Exhibit 1 and is incorporated herein, are hereby approved, and the Metropolitan County Mayor is authorized to execute the Grant Agreement on behalf of the Metropolitan Government. From and after the execution and delivery of the Grant Agreement, the officers of the Metropolitan Government or any of them are hereby authorized, empowered and directed to do all such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of the Grant Agreement.

Section 2. This Resolution shall take effect from and after its adoption, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored By: Charles French & Janis Sontany

ECONOMIC AND COMMUNITY DEVELOPMENT INCENTIVE
GRANT AGREEMENT

 This Economic and Community Development Incentive Grant Agreement (this "Agreement") is entered into as of the Effective Date by and among The Metropolitan Government of Nashville and Davidson County (the "Metropolitan Government"), The Industrial Development Board of The Metropolitan Government of Nashville and Davidson County, a Tennessee public, nonprofit corporation created pursuant to Tenn. Code Ann. §§ 7-53-101, et seq., (the "Board"), and Dell Computer Corporation, a Delaware corporation ("Dell").

RECITALS

WHEREAS, the Metropolitan Government is vitally interested in the economic welfare of the citizens of the Metropolitan Government and wishes to provide the necessary leadership to enhance this area’s capabilities for growth and development; and

WHEREAS, the provision of jobs to area citizens by local business is both necessary and vital to the economic well-being of the Metropolitan Government; and

WHEREAS, pursuant to the Industrial Development Corporations Act, currently codified at Tenn. Code Ann. §§ 7-53-101—311 (such act, as heretofore or hereafter amended, the "Act"), the General Assembly of the State of Tennessee (the "General Assembly") has authorized the incorporation of public corporations known as "industrial development boards" in municipalities in the State of Tennessee (the "State"); and

WHEREAS, the Board has been duly organized and incorporated in compliance with the Act; and

WHEREAS, the General Assembly has found and declared that the Board is performing a public function on behalf of the Metropolitan Government and that the Board is a public instrumentality of the Metropolitan Government; and

WHEREAS, the Supreme Court of Tennessee (the "Supreme Court") has found that the Board is an agent or instrumentality of the Metropolitan Government; and

WHEREAS, the Act expressly incorporates by reference the statement of public policy set forth in Section 3 of Chapter 209 of the Public Acts of 1955; and

WHEREAS, Chapter 209 of the Public Acts of 1955 states that the declared purpose of the Act is to do that which the State welfare demands and the State public policy requires to alleviate the problems of unemployment, to raise family income, to provide a means by which the citizens of the community may promote and develop industry in their area so as to obtain a balanced economic development highly essential to the welfare of the State, and to promote the development of commercial, industrial, agricultural and manufacturing enterprises by the several municipalities so as to be given local benefits peculiar to each and general benefits to the entire State; and

WHEREAS, the General Assembly has also declared that the purposes of the Act include maintaining and increasing employment opportunities by promoting industry, trade and commerce by inducing manufacturing, industrial, financial, service and commercial enterprise to locate or remain in the State; and

WHEREAS, the Supreme Court has held that the purposes of the Act include the promotion of industry and the development of trade to provide against low wages and unemployment and that such purposes are public in nature; and

WHEREAS, the Board is empowered pursuant to the Act to acquire, whether by purchase, exchange, gift, lease or otherwise, and to improve, maintain, equip and furnish, "projects" (as defined in the Act) and to lease such projects to others; and

WHEREAS, "projects" under the Act may include, without limitation, manufacturing, processing and assembly facilities and office buildings for use in connection with an industrial, commercial, financial or service enterprise; and

WHEREAS, the Board is empowered pursuant to Tenn. Code Ann. § 7-53-302, to acquire real and personal property to be used for manufacturing and office purposes, whether by purchase, construction, exchange, gift, lease or otherwise, and to improve, maintain, extend, equip and furnish such properties in order to promote employment, trade, industrial development and environmental pollution control; and

WHEREAS, pursuant to Tenn. Code Ann. §§ 5-9-101(26) and 7-53-310, the Metropolitan Government is authorized to use available funds to make grants to the Board for economic and community development purposes and to acquire property for contribution, by sale, lease or gift, to the Board; and

WHEREAS, the Metropolitan Council adopted Ordinance No. O99-1680, on July 20, 1999, after determining that, in order to promote industry, develop trade and provide against low wages and unemployment, and in order to further other public purposes of the Metropolitan Government, it was in the best interest of the Metropolitan Government to make economic and community development incentive grants to the Board to encourage the location within the boundaries of the Metropolitan Government of: (i) international, national or regional headquarters of well known and branded, large and successful companies, comparable, but not limited to, companies on the Fortune 500 listing, that are expected to result in the creation of at least 1,000 new jobs within the boundaries of the Metropolitan Government during the first five years of operations; and (ii) manufacturing facilities, offices, distribution facilities and customer support and call center facilities of well known and branded, large and successful companies, comparable, but not limited to, companies on the Fortune 500 listing, involved in manufacturing or assembly of computers or telecommunications equipment or component parts thereof that are expected to result in the creation of at least 2,000 new jobs within the boundaries of the Metropolitan Government during the first five years of operations; and

WHEREAS, the Metropolitan Council further determined in Ordinance No. O99-1680 that, in order to promote industry, develop trade and provide against low wages and unemployment, and in order to further other public purposes of the Metropolitan Government, it was in the best interest of the Metropolitan Government to make economic and community development incentive grants to the Board in an amount calculated by multiplying the average number of full time equivalent employees of the qualified company within the boundaries of the Metropolitan Government during the preceding year by an amount not to exceed $500, with the actual amount of the economic and community development incentive grant and the period of such grant to be determined taking into account, among other things, the amount of revenue from all sources that is anticipated to be received by the Metropolitan Government with respect to the location of the qualified company and its operations within the boundaries of the Metropolitan Government and other economic and community development opportunities that the qualified company is expected to create.

WHEREAS, Dell, a Fortune 500 company with its headquarters in Round Rock, Texas, has announced its tentative decision to locate computer manufacturing, assembly and distribution facilities and technological support operations (as further defined below, the "Dell Project") on certain property owned by the Board (the "MTMHI Property"), on certain property leased to the Board by the Metropolitan Nashville Airport Authority (the "Airport Property") and on certain property currently owned by the State of Tennessee, if it is eventually conveyed to the Board (the "State Property"); and

WHEREAS, the Metropolitan Government has found that Dell and the Dell Project meet the criteria to be eligible to receive the benefits of an economic and community development incentive grant as authorized by Ordinance No. O99-1680; and

WHEREAS, the Metropolitan Government has found that the location of the Project within the boundaries of the Metropolitan Government will result in significant employment and other commercial opportunities for area citizens; and

WHEREAS, in order to promote industry and develop trade and to provide against low wages and unemployment and to further other public purposes of the Metropolitan Government, and after taking into account, among other things, the amount of revenue from all sources that is anticipated to be received by the Metropolitan Government from the Dell Project and other economic and community development opportunities that Dell is expected to create, the Metropolitan Government has found that it is in the best interest of the Metropolitan Government to make an economic and community development incentive grant to the Board with respect to the Dell Project for a period of forty (40) years, in an amount calculated by multiplying the average number of full time equivalent Dell Nashville Employees (as defined below) during the preceding year by $500.

NOW, THEREFORE, for and in consideration of the mutual covenants and agreements of the Parties contained herein, and other good and valuable consideration, the Parties, intending to be legally bound, hereby agree as follows:

ARTICLE 1.
DEFINITIONS

1.1 Recitals. The foregoing Recitals are hereby incorporated herein as if fully set forth below and are material terms and provisions of this Agreement representing the intent of the Parties.

1.2 Definitions. Certain terms are defined in the text of this Agreement. As used in this Agreement and unless otherwise expressly indicated, the following terms shall have the following meanings:

"Act" shall mean the Industrial Development Corporations Act, currently codified at Tenn. Code Ann. §§ 7-53-101—311, as heretofore or hereafter amended.

"Agreement" shall mean this Economic and Community Development Incentive Grant Agreement.

"Airport Property" shall mean the real property described as MNAA property on Exhibit A.

"Applicable Law" shall mean any applicable constitution, treaty, statute, rule, regulation, ordinance, order, directive, code, interpretation, judgment, decree, injunction, writ, determination, award, permit, license, authorization, directive, requirement or decision of or agreement with or by any Governmental Authority.

"Board" shall mean The Industrial Development Board of The Metropolitan Government of Nashville and Davidson County.

"Dell" shall mean Dell Computer Corporation, a Delaware corporation.

"Dell Entity" shall mean (a) Dell, (b) any successor to Dell, including, without limitation, any corporation, partnership, limited liability company or other entity (i) that acquires, directly or indirectly, a controlling interest in Dell (whether through merger, stock purchase, stock swap or otherwise), (ii) that merges or consolidates with Dell, or (iii) that acquires substantially all of the assets of Dell, and (c) any corporation, partnership, limited liability company or other entity that is controlled by, or is under common control with, any of the foregoing.

"Dell Nashville Employee" shall mean any employee of any Dell Entity employed at any Dell Nashville Facility, including temporary employees, part-time employees and full-time employees of any Dell Entity.

"Dell Nashville Facility" shall mean any facility located within the boundaries of the Metropolitan Government that is operated by any Dell Entity, including, without limitation, the Dell Project, but shall not include any facility that is operated by a Dell Supplier.

"Dell Project" shall mean the operations of one or more Dell Entities to be located on the MTMHI Property, the Airport Property and the State Property which Dell currently anticipates will include computer manufacturing, assembly and distribution facilities and technological support operations.

"Dell Supplier" shall mean any corporation, partnership, limited liability company or other entity that (a) is not a Dell Entity, and (b) produces, assembles, stores or manages goods that are utilized by the operations of any Dell Entity or provides services in connection with the operations of any Dell Entity (including services for Dell Nashville Employees).

"Director of Finance" shall mean the Director of Finance of the Metropolitan Government.

"Effective Date" shall mean the date on which the Metropolitan Government executes and delivers this Agreement and files a copy of the same with the Metropolitan Clerk.

"Exempt Employee" shall mean each full time Dell Nashville Employee who is exempt from the minimum wage and overtime requirements under the Fair Labor Standards Act, as now in effect, or as hereinafter amended.

"Governmental Authority" shall mean any and all jurisdictions, entities, courts, boards, agencies, commissions, offices, divisions, subdivisions, departments, bodies or authorities of any nature whatsoever of any governmental unit (federal, state, county, district, municipality, city or otherwise), whether now or hereafter in existence.

"Grant Payment" shall mean, for any Grant Year, the amount calculated by multiplying the number of full time equivalent Dell Nashville Employees during such Grant Year by $500. The number of full time equivalent Dell Nashville Employees during a given Grant Year shall be (a) the average number of Exempt Employees during such Grant Year, as determined on a weighted average basis to give effect to the portion of the Grant Year that a person was an Exempt Employee at a Dell Nashville Facility) plus (b) the number determined as follows: (i) the number of paid hours worked by all Dell Nashville Employees (other than Exempt Employees), including the number of hours paid for holiday, vacation day, sick day, paid time off, short term disability and other similar benefits, divided by (ii) Two Thousand Eighty (2,080) hours.

"Grant Year" shall mean (a) for the year 1999, the period beginning October 1 and ending December 31, 1999 and (b) for each of the years 2000 through 2038, the period beginning January 1 and ending December 31 for such year.

"Metropolitan Clerk" shall mean the Metropolitan Clerk of the Metropolitan Government.

"Metropolitan Council" shall mean the Metropolitan County Council of the Metropolitan Government.

"Metropolitan Government" shall mean The Metropolitan Government of Nashville and Davidson County.

"MNAA" shall mean the Metropolitan Nashville Airport Authority.

"MTMHI Property" shall mean the real property described as Metro property on Exhibit A.

"Parties" shall mean the parties to this Agreement.

"Person" shall mean any natural person, firm, partnership, association, corporation, limited liability company, trust, entity, public body, government or other entity.

"State" shall mean the State of Tennessee.

"State Property" shall mean the real property described as State property on Exhibit A.

1.3 Additional Terms. The definitions in Section 1.2 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." All references to Articles, Sections and Paragraphs shall be deemed references to Articles, Sections and Paragraphs of this Agreement, unless the context shall otherwise require. All references herein to Exhibits shall be deemed to be references to the Exhibits attached to this Agreement. The terms "this Agreement", "hereof", "hereunder" and similar expressions refer to this Agreement as a whole and not to any particular Article, Section or Paragraph or other portion hereof and include any agreement supplemental hereto. The conjunction "or" shall be understood in its inclusive sense (and/or).

1.4 Headings. The division of this Agreement into Articles, Sections and Paragraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

ARTICLE 2.
ECONOMIC AND COMMUNITY DEVELOPMENT
INCENTIVE GRANT

2.1 Economic and Community Development Grant. The Metropolitan Government shall pay the Grant Payment for each Grant Year to the Board on July 1 of the year following such Grant Year.

2.2 Manner of Payment. The Grant Payment shall be paid, without demand, when due by check to the Board at its address set forth in Section 5.1 hereof or by wire transfer of immediately available funds to the Board, and, if paid by wire transfer, the payment shall be made into such bank account in the State as the Board may specify in advance from time to time.

2.3 Annual Settlement Statement. Within ninety (90) days following the end of each Grant Year, Dell shall furnish the Director of Finance and the Board with a settlement statement (the "Annual Settlement Statement"), listing the calculations of the number of full time equivalent Dell Nashville Employees and the amount of the Grant Payment for such Grant Year determined in accordance with this Agreement. Each Annual Settlement Statement shall be (i) prepared by a nationally recognized and reputable independent certified public accounting firm reasonably acceptable to the Director of Finance and the Board, and (ii) accompanied by a certification from an official of Dell that the information in such statement is true, correct and complete.

2.4 Annual Appropriation. Notwithstanding anything to the contrary herein, the Metropolitan Government’s obligation to pay any Grant Payment to the Board is contingent upon the annual appropriation of funds for such purpose by the Metropolitan Council. Although the Parties recognize that such annual appropriation is a legal requirement of the Metropolitan Government, the Metropolitan Government acknowledges that this Agreement has served as a material inducement to Dell to locate and maintain operations within the boundaries of the Metropolitan Government and to make material investments within the boundaries of the Metropolitan Government.

 ARTICLE 3.
USE OF GRANT PAYMENTS

3.1 Use of Grant Payments. The Board is hereby authorized to utilize the Grant Payments to acquire, whether by purchase, lease or otherwise, real or personal property for use for the Dell Project, to improve, maintain, extend, equip and furnish real and personal property owned by the Board and used for the Dell Project, and for any other purposes that are permitted under Ordinance No. O99-1680 and the Act. The Parties agree that Dell shall have the exclusive right to designate the manner in which the Grant Payment funds shall be utilized, provided that such funds must be utilized for expenditures that are permitted under Ordinance No. O99-1680 and the Act.

 ARTICLE 4.
TERM

4.1 Term. The term of this Agreement (the "Term"), shall commence on the Effective Date and, unless sooner terminated or canceled in accordance with the terms of this Agreement, shall expire immediately following the later of: (a) the Metropolitan Government’s payment of the Grant Payment for all Grant Years; and (b) the Board’s application of all Grant Payment funds paid to it pursuant to this Agreement.

4.2 Early Termination Right. The Metropolitan Government shall have the right to terminate this Agreement in the event that no Dell Entity is utilizing real or personal property leased or subleased to a Dell Entity by the Board, or otherwise operating a "project" as defined in the Act that is subject to an arrangement with the Board as authorized by the Act.

ARTICLE 5
MISCELLANEOUS

5.1 Notices. All notices, requests, demands and other communications which are required or may be given pursuant to the terms of this Agreement shall be in written or electronic form and shall be deemed delivered (i) on the date of delivery when delivered by hand, (ii) on the date of transmission when sent by facsimile transmission during normal business hours with telephone confirmation of receipt, (iii) one day after dispatch when sent by overnight courier maintaining records of receipt, or (iv) three days after dispatch when sent by certified mail, postage prepaid, return-receipt requested; provided that, in an any such case, such communication is addressed as provided below:

 

To the Metropolitan Government:

The Metropolitan Government of
Nashville and Davidson County
106 Metropolitan Courthouse
Nashville, TN 37201
Attention: Director of Finance
Telephone: (615) 862-6151
Facsimile: (615) 862-6156

With copy to:

Director of Law of the Metropolitan Government
204 Metropolitan Courthouse
Nashville, TN 37201
Telephone: (615-862-6341
Facsimile: (615) 862-6352

If to the Board:

The Industrial Development Board of
The Metropolitan Government of
Nashville and Davidson County
c/o Bobby D. Davis
Davis & Hooper
101 Shepherd Hills Drive
Madison, Tennessee 37115
Telephone: (615) 851-6697
Facsimile: (615) 859-7934

If to Dell:

Dell Computer Corporation
One Dell Way
Round Rock, Texas 78682
Attention: Cindy Oaks
Telephone: (512) 728-3366
Facsimile: (512) 728-4038

With a copy to:

Dell Computer Corporation
One Dell Way
Round Rock, Texas 78682
Attention: General Counsel
Telephone: (512) 728-0355
Facsimile: (512) 728-3773

Any Party may change its address or the designation of the intended recipient of notice provided that it notifies the other Parties in accordance herewith.

5.2 Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State. The Parties hereby agree that any suit, action or proceeding may be instituted with respect to this Agreement in any federal or state court in Davidson County. The Parties hereby consent to in personam jurisdiction of such courts and irrevocably waive any objection and any right of immunity on the ground of venue, the convenience of forum or the in personam jurisdiction of such courts or from the execution of judgments resulting therefrom.

5.3 Entire Agreement; Amendments and Waivers. This Agreement and the Exhibits hereto constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties, and there are no warranties, representations or other agreements between the Parties in connection with the subject matter hereof. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the Party to be bound thereby. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressly agreed to in writing by the affected Party. Any Party’s failure to enforce any provision of this Agreement or its acceptance of any payment shall not constitute a waiver thereof and shall not prevent such Party from enforcing that provision or any other provision of this Agreement in the future.

5.4 Remedies Cumulative. No reference to any specific right or remedy shall preclude any Party from exercising any other right or from having other remedy or from maintaining any other action to which it would otherwise be entitled at law or in equity.

5.5 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto, and their successors and assigns permitted under this Agreement, and no provisions of this Agreement shall be deemed to confer upon any other Person any remedy, claim, liability, reimbursement, cause of action or other right.

5.6 No Merger. The terms and provisions of this Agreement (including, without limitation, the representations, warranties and covenants) shall not merge, be extinguished or otherwise affected by the delivery and execution of any document delivered pursuant to this Agreement unless such document shall specifically so state and shall be signed by the Metropolitan Government, the Board and Dell.

5.7 Relationship. Nothing contained in this Agreement shall be deemed or construed by the Parties or by any third Person to create the relationship of principal and agent, partnership, joint venture or any association between the Metropolitan Government, the Board and Dell.

5.8 Multiple Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

5.9 Severability. If any covenant or provision hereof is determined to be void or unenforceable in whole or in part, it shall not be deemed to affect or impair the invalidity of any other covenant or provision, each of which is hereby declared to be separate and distinct. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. If any provision of this Agreement is declared invalid or unenforceable for any reason other than overbreadth, the offending provision will be modified so as to maintain the essential benefits of the bargain among the Parties to the maximum extent possible, consistent with Applicable Law and public policy.

5.10 Interpretation. Each of the Parties has agreed to the use of the particular language of the provisions of this Agreement, and any questions of doubtful interpretation shall not be resolved by any rule or interpretation against the draftsman, but rather in accordance with the fair meaning thereof, having due regard to the benefits and rights intended to be conferred upon the Parties hereto and the limitations and restrictions upon such rights and benefits intended to be provided.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of this ___________day of _______________, 1999, and effective as of the Effective Date.

LEGISLATIVE HISTORY
Referred to:	Budget & Finance Committee
Introduced:	July 20, 1999
Adopted:	July 20, 1999
Approved:	July 21, 1999
By: