01-0206_ADVANCED UTILLITY SYSTEMS_Software Licence and Implementation Agreement 4
SOFTWARE LICENCE AND IMPLEMENTATION AGREEMENT
BETWEEN
ADVANCED UTILITY SYSTEMS CORPORATION
- and—
CAPISTRANO VALLEY WATER DISTRICT
2235 SHEPPARD AVE EAST
SUITE 1102 TORONTO
ON M2J 585 �
www.ausc.COM
PATRICIA SORBARA
PRESIDENT & D N D
CHIEF EXECUTIVE OFFICER
TEL (416) 496 0149 EXT 225
FAX(416) 4963910 UTILITY SYSTEMS
CELL(4 16) 4026644
psorbara@ausc.com
Advanced Utility Systems Corporation
2235 Sheppard Avenue E.,Suite 1702 +
Toronto, Ontario
M2J 5B5
TABLE OF CONTENTS
Page No.
ARTICLE I INTERPRETATION...........................................................................................1
1.1 Definitions............................................................................................................. 1
1.2 Time of the Essence............................................................................................... 3
-1.3 Currency................................................................................................................3
1.4 Headings................................................................................................................3
1.5 Plurals and Gender.................................................................................................3
1.6 Schedules...............................................................................................................3
ARTICLE II SOFTWARE LICENCES..................................................................................3
2.1 Grant of Licenses...................................................................................................3
2.2 Term of Licenses ...................................................................................................4
2.3 Restrictions on Use................................................................................................4
2.4 Derivation, Modification and Copyright.................................................................4
2.5 Acceptance of Software .........................................................................................4
2.6 Ownership of Software and Confidential Information ............................................4
2.7 Escrow...................................................................................................................5
2.8 Ownership and Disposition of Documents.............................................................7
ARTICLE III CONSULTING SERVICES.............................................................................7
3.1 The Consultant's Services......................................................................................7
3.2 Performance by Consultant....................................................................................7
3.3 Performance by District......................................................................................... 8
3.4 Support Agreement................................................................................................ 8
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................................8
4.1 Warranty of Performance....................................................................................... 8
4.2 Intellectual Property Rights....................................................................................9
4.3 Corrections ............................................................................................................9
4.4 No Other Warranties..............................................................................................9
ARTICLE V FEES AND PAYMENTS.................................................................................10
5.1 Fees and Payments............................................................................................... 10
ARTICLE VI REMEDIES AND LIABILITY......................................................................11
6.1 Remedies and Liability......................................................................................... 11
6.2 Intent ................................................................................................................... 12
6.3 Remedies............................................................................................................. 12
ARTICLE VII INDEMNITY.................................................................................................13
7.1 Indemnity............................................................................................................. 13
ARTICLEVIII GENERAL....................................................................................................13
8.1 Force Majeure...................................................................................................... 13
8.2 Confidentiality..................................................................................................... 13
8.3 Termination ......................................................................................................... 14
8.4 Procedure on Termination.................................................................................... 15
8.5 Arbitration .............................................................Error! Bookmark not defined.
8.6 Accounts and Records.......................................................................................... 15
8.7 Addresses for Notice............................................................................................ 16
8.8 Assignment.......................................................................................................... 16
(i )
Page No.
8.9 Reorganzations ......................................................Error! Bookmark not defined.
8.10 Binding Agreement and Enurement..................................................................... 17
8.11 Entire Agreement................................................................................................. 17
8.12 Governing Law.................................................................................................... 17
8.13Invalidity.............................................................................................................. 17
8.14 Waiver................................................................................................................. 17
8.15 Counterparts ........................................................................................................ 18
8.16 Further Assurances .............................................................................................. 18
Schedule "A" - Detailed Description of Software
Schedule "Al" - Consultant's Response to the Request for Proposal
Schedule "B" - Implementation Process Checklist and Timetable
Schedule "C" - Support Agreement
Schedule "D" - Fee Structure and Payment Schedule
( ii )
SOFTWARE LICENCE AND IMPLEMENTATION AGREEMENT
THIS AGREEMENT made as of the day of rc 1 , 2001.
BETWEEN:
ADVANCED UTILITY SYSTEMS CORPORATION
("Consultant')
- and -
CAPISTRANO VALLEY WATER AUTHORITY
("District')
RECITALS
1. The Consultant owns the Software (as defined below);
2. The District wishes to (a) acquire a license to utilize the Software, and (b) retain the
Consultant to perform the Services (as defined below); and
3. The Consultant wishes to (a) grant the District a license to utilize the Software, and (b)
provide the Services to the District, all upon the terms and conditions set out in this
Agreement.
NOW THEREFORE, in consideration of the mutual covenants set out in this Agreement
and for other good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties agree as follows:
ARTICLE I
INTERPRETATION
1.1 Definitions
Throughout this Agreement, except as otherwise expressly provided, the following
words and expressions shall have the following meanings:
(a) "Agreement", "this Agreement", "the Agreement", "hereof', "herein",
"hereto", "hereby", "hereunder" and similar expressions mean this Software
Licence and Implementation Agreement, including all of its Schedules and all
instruments supplementing, amending or confirming this Agreement. All
references to "Articles" or "Sections" mean and refer to the specified Article or
Section of this Agreement.
(b) "Completion of Services" means that all conversion, installation, configuration,
training, testing and other implementation procedures as described in the
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implementation process checklist and timetable attached hereto as Schedule"B"
have been successfully completed and the Software is fully operational and
performing in conformity with the specifications set out herein. For purposes of
this Agreement, Completion of Services will be deemed to have occurred on the
date which the District commences using the Software as its predominate billing
system.
(c) "Designated Staff Members" means those staff members of the District
designated by the District in Schedule `B" as "Designated Staff Members" for the
purposes of this Agreement.
(d) "Project Manager" has the meaning set out in Section 3.3(c) hereof.
(e) "Required Programs" has the meaning set out in Section 3.3(b) hereof.
(f) "Services" has the meaning set out in Section 3.1 hereof.
(g) "Server Licence" means the non-exclusive license granted to the District pursuant
to Section 2.1(a) hereof, to configure and install the Software on the District's
server computers to enable Users to access and use the Software pursuant to User
Licences.
(h) "Software" means the utility billing and customer service computer software
programs owned and developed by the Consultant, in machine readable, object
code form, collectively called CIS Infinity, together with the media and other
related materials, all as more particularly described in Schedule "A" and Schedule
"Al" attached hereto.
(i) "Support Agreement"has the meaning set out in Section 3.4 hereof.
(j) "User" means each individual granted access to the Software pursuant to a User
License.
(k) "User Licence" means each license granted pursuant to Section 2.1(b) of this
Agreement, to allow an individual to access the Software within the District's
computer network.
(1) "Warranty Period" means a period of three months from the date of Completion
of Services, during which time the Consultant shall correct any errors or
malfunctions reported to the Consultant by the District in accordance with
Section 4.3 of this Agreement.
(m) "General Manager" means the City Manager of the District or the designee of the
City Manager.
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1.2 Time of the Essence
Time shall be of the essence in and of this Agreement and every part hereof. Any
extension, waiver or variation of any provision of this Agreement shall not be deemed to affect
this provision and there shall be no implied waiver of this provision.
1.3 Currency
Unless otherwise specified, all references to amounts of money in this Agreement
refer to U.S. currency.
1.4 Headines
The descriptive headings preceding Articles and Sections of this Agreement are
inserted solely for convenience of reference and are not intended as complete or accurate
descriptions of the content of such Articles or Sections. The division of this Agreement into
Articles and Sections shall not affect the interpretation of this Agreement.
1.5 Plurals and Gender
The use of words in the singular or plural, or referring to a particular gender, shall
not limit the scope or exclude the application of any provision of this Agreement to such persons
or circumstances as the context otherwise permits.
1.6 Schedules
The Schedules described below and appended to this Agreement shall be deemed
to be integral parts of this Agreement.
Schedule "A" - Detailed Description of Software
Schedule"Al" - Consultant's Response to the Request for Proposal
Schedule `B" - Implementation Process Checklist and Timetable
Schedule "C" - Support Agreement
Schedule "D" - Fee Structure and Payment Schedule
ARTICLE H
SOFTWARE LICENCES
2.1 Grant of Licenses
Subject to the terms and conditions of this Agreement, the Consultant hereby
grants to the District:
(a) a non-exclusive Server Licence; and
(b) 6 non-exclusive User Licenses to allow no more than 6 concurrent Users in the
District to utilize the Software within the District's computer network.
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2.2 Term of Licenses
The licenses granted herein commence on the date of this Agreement and are of
indefinite duration unless terminated pursuant to the terms hereof.
2.3 Restrictions on Use
The licenses granted hereunder are restricted to use by the District to perform the
basic functions of billing and customer service District, which functions are more particularly set
out in the chart constituting part of Schedule "A" and Schedule"Al".
2.4 Derivation, Modification and Copvrieht
(a) The District agrees that it will not attempt to derive, or permit or help others to
derive the source code relating to the Software or attempt to otherwise convert or
alter the Software into human readable code. The District further agrees that it will
not attempt to duplicate, or permit or help others to duplicate, the source code
relating to the Software.
(b) The District agrees that it will not copy or otherwise reproduce the Software and
that any additional copies as are reasonably necessary for the use of the Software
shall be provided to the District through the issuance of additional User Licenses at
the Consultant's then current charges, except that any additional User Licenses
required by the District within 90 days of signing this Agreement shall be issued to
the District in exchange for the User License fee specified in Schedule "D" to this
Agreement.
2.5 Acceptance of Software
The District shall promptly test the Software upon delivery and if the City Manager
finds that the Software conforms in all respects to the specifications set forth in the description of
the Software set forth in Schedule "A" and Schedule "Al" to this Agreement, the District shall
accept the Software. The District shall be deemed to have accepted the Software if the General
Manager does not give a written statement of errors, malfunctions, or deviations from the
specifications to the Consultant within the Warranty Period.
2.6 Ownership of Software and Confidential Information
(a) The District acknowledges that the Software contains proprietary and confidential
information of the Consultant which shall, at all times, remain the property of the
Consultant. Through the grant of licenses pursuant to Section 2.1, the District is
only entitled to use of the Software in accordance with the terms of this Agreement.
(b) The District will ensure that the Universal Copyright Convention symbol and other
copyright and proprietary notices of the Consultant will remain on the Software in
machine-readable form. The District will take the same care to safeguard the
Software as it takes to safeguard its own confidential information and such care
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shall not be any less than would be taken by a reasonable person to safeguard its
own confidential information.
(c) No third parry, other than duly authorized agents or employees of the District
authorized pursuant to the User Licenses issued hereunder, shall have access to or
use of the Software.
(d) In order to assist the Consultant with the protection of its proprietary rights with
respect to the Software and to enable the Consultant to ensure that the District is
complying with its obligations with respect to the proprietary nature and
confidentiality of the Software, the District shall permit the Consultant, at no cost
to the District, to visit during normal business hours any premises at which the
Software is used and shall provide the Consultant with access to such Software.
2.7 Escrow
(a) The Consultant shall keep a copy of the source code for the Software (the
"Source") with a third-party escrow service provider selected by the Consultant
from time to time (the "Escrow Agent'). As of the date of this Agreement, the
Escrow Agent is Lincoln-Parry and Associates.
(b) The Consultant hereby grants the District a contingent licence, subject to the
conditions of Sections 2.7(c) and 2.7(d)herein, to use the copy of the Source
maintained by the Escrow Agent for support purposes only.
(c) The contingent licence referred to in Section 2.7(b) shall only be available to the
District to the extent that the District has a Support Agreement in effect with the
Consultant immediately prior to the occurrence of any event specified in Section
2.7(d). If no such Support Agreement is in effect, the District may retain the
licences granted to it pursuant to Section 2.1, but will relinquish its rights to receive
any updates or modification of the Software or continuing support from the
Consultant. Furthermore, the District will relinquish its rights to access the Source
upon the occurrence of any of the events specified in Section 2.7(d). To the extent
that the District terminates its Support Agreement, the provisions in this
Agreement respecting the use of the Software and the terms of the licences granted
hereby, will continue to apply following any such termination.
(d) The contingent licence granted pursuant to Section 2.7(b) shall, to the extent it
remains available to the District, become exercisable if and when any of the
following events occur:
(i) the Consultant ceases to do business for any reason whatsoever;
(ii) the Consultant fails or refuses to perform its obligations under this
Agreement or provide the District with support for the Software pursuant to
the Support Agreement (except as a result of a failure by the District to
comply with its obligations under this Agreement or the Support
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Agreement), the District has issued written notice to the Consultant in
respect of such failure or refusal pursuant to Section 8.3(a), and the
Consultant has not cured the failure or refusal indicated in such written
notice or issued a written notice of its own to the District disputing the
default alleged by the District;
(iii) the Consultant commits any act of bankruptcy within the meaning of the
Bankruptcy Act, and fails to cure such act within 30 days of the commission
of such act; and
(iv) the Consultant institutes or has instituted against it bankruptcy,
receivership, insolvency, re-organization, dissolution, liquidation or other
similar proceedings under any federal or provincial laws and, in the case of
any proceedings instituted against the Consultant, it fails to stay such
proceedings or vacate or dismiss any order resulting therefrom within 60
days of the initiation of such proceedings or the issuance of such order, as
the case may be.
(e) On the occurrence and during the continuance of any of the conditions listed in
Section 2.7(d) , and at the District's request, validation of Source shall be
performed as follows:
(i) the Consultant or a duly qualified computer programmer selected by the
District (the "Programmer") shall retrieve the Source from the Escrow
Agent and shall perform the necessary Source verification and testing
procedures at the premises of the District on the District's computer
systems;
(ii) the Programmer shall proceed to carry out the steps necessary to correct any
deficiencies in the existing Software utilizing the Source; and
(iii) following the completion of said verification and correction procedures, the
Consultant or Programmer shall return the Source to the Escrow Agent.
(f) The provisions of this Section 2.7, and the requirement of the Escrow Agent to
perform its duties in accordance with this Section 2.7, shall be subject to:
(i) the District executing any standard form documentation containing
reasonable terms required by the Escrow Agent in connection with the
performance of its duties and obligations hereunder; and
(ii) the payment by the District of the fees specified by the Escrow Agent from
time to time, as more particularly set out in Section 5.1(e) of this
Agreement.
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2.8 Ownership and Disposition of Documents
The District shall be the exclusive owner of all materials and documents which
were developed or prepared by the Consultant specifically for the District pursuant to this
Agreement. All materials and documents which were developed or prepared by the Consultant for
general use and which are not the copyright of any other party or publicly available, including
educational materials, the Software and any other computer applications, shall continue to be the
property of the Consultant.
ARTICLE III
CONSULTING SERVICES
3.1 The Consultant's Services
Prior to the Completion of Services, the Consultant agrees, subject to the terms and
conditions of this Agreement, to perform the following services (the "Services") for the District:
(a) Oversee and implement the conversion from the District's existing utility billing
and customer service system to CIS Infinity substantially in accordance with the
implementation process checklist and timetable attached hereto as Schedule "B".
(b) Install the Software, perform necessary set up and configuration operations,
perform initial testing and parallel testing as described in Schedule"B" attached
hereto.
(c) Provide the training outlined on Schedule "B" attached hereto to Designated Staff
Members of the District.
3.2 Performance by Consultant
(a) Manner of Performance -- The Consultant shall perform the Services in an
efficient, competent and timely manner and exercise reasonable care, skill and
diligence in the performance thereof.
(b) Consultant's Discretion -- The Consultant shall determine in its sole discretion the
manner and means by which the Services shall be performed.
(c) Conduct on District's Premises -- The Services shall be performed with the
District's full co-operation, on the premises of the District or, if agreed to by both
parties, at an alternative location. The Consultant agrees, while working on the
District's premises, to observe the District's rules and policies relating to the
security thereof, access to or use of all or part of the District's premises and any of
the District's property, including proprietary or confidential information.
(d) Inquiries by District -- The Consultant shall respond expeditiously to any inquiries
pertaining to this Agreement from the District.
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3.3 Performance by District
(a) Co-operation by District -- The District acknowledges that the success and
timeliness of the implementation process shall require the active participation and
collaboration of the District and its Designated Staff Members and agrees to act
reasonably and co-operate fully with the Consultant to achieve the Completion of
Services.
(b) Required Programs. The District acknowledges that the use of the Software
requires that the District obtain and install additional required software programs
(the "Required Programs"), as detailed in the attached Schedule"A", and the
District agrees that the acquisition of the Required Programs shall be at its sole cost
and that the cost thereof is not included in the fees herein. The District further
acknowledges that the operation of the Software requires the District's hardware to
be of sufficient quality, condition and repair, and the District agrees to maintain its
hardware in the appropriate quality, condition and repair at its sole cost and
expense, in order to facilitate the achievement of Completion of Services.
(c) Project Manager — The District shall appoint a project manager (the "Project
Manager") who shall work closely with the Consultant to facilitate the successful
completion of the implementation process and who shall be responsible for
supervising the Designated Staff Members of the District and their co-operation
with and participation in such process.
3.4 Sunnort Agreement
Concurrently with the execution and delivery of this Agreement, the Consultant
and the District have entered into a support agreement (the "Support Agreement") in the form of
and on the terms set out in the attached Schedule"C" which shall apply in respect of the ongoing
services and support to be provided by the Consultant to the District following the expiry of the
Warranty Period. Notwithstanding the ongoing application of the Support Agreement, the terms
and conditions of this Agreement shall continue to apply and the Support Agreement is not
intended to, nor will it, apply to the exclusion of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Warranty of Performance
The Consultant warrants to the District that the Software will perform for the
Warranty Period, if the Software is properly used in accordance with the Consultant's instructions.
This warranty is void if the District or any other third parry changes or modifies the Software.
Examples of such changes or modifications include, but are not limited to, data modifications
from third parry software, the de-compiling and modifying of the source code, and tampering with
the base set-up of the system.
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4.2 Intellectual Property ftlits
The Consultant warrants:
(a) that it has the full right, authority and power to enter into this Agreement and to
grant to the District the licenses and rights conveyed by this Agreement; and
(b) that the Software is an original work of authorship and does not infringe the
intellectual property rights of others.
4.3 Corrections
The Consultant covenants that it will make corrections of program malfunctions
which are reported in writing to the Consultant during the Warranty Period and which are
necessary for the Software to conform to the description provided in Schedule "A" and Schedule
"Al". The District agrees to allow the Consultant the opportunity to make repeated efforts within
a reasonable time to correct programming errors or malfunctions as warranted in this Agreement.
4.4 No Other Warranties
The express warranties contained above are in lieu of all other representations,
warranties and conditions, express or implied, whether arising by statute or otherwise in law or
from a course of dealing, or usage of trade. Without limiting the generality of the foregoing, the
Consultant does not represent or warrant and the District acknowledges that there are no further
representations or warranties:
(a) that the functions contained in the Software will operate in the combinations which
may be selected for use by the District or will meet the District's requirements and
satisfy its intended results; or
(b) that the operation of the Software will be error free or that:
(i) any programming errors will be corrected after the Warranty Period, or
(ii) any updates of, or modifications to, the Software will be made available to
the District after the Warranty Period,
in each case unless there is an effective Support Agreement in place after the
Warranty Period in respect of the period of time during which any such programming errors
require correction, or any updates of, or modifications to, the Software, are developed by the
Consultant and made available to the other licensees of the Software.
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ARTICLE V
FEES AND PAYMENTS
5.1 Fees and Payments
(a) The District agrees to pay the Consultant total licence fees of $40,000.00,
consisting of fees for both the Server License and the User Licenses. In addition,
the District agrees to pay Consultant an hourly rate of $120.00 per hour as
compensation for providing the Services to the District. The fee structure and
payment schedule is outlined in the attached Schedule "D".
(b) The Services will be charged to the District at the rates and under the schedule set
forth in Schedule D, on a not-to-exceed basis subject to the maximum cost to the
District of$111,400,00 as set forth in Schedule D. As used in this Article V, "not-
to-exceed" means that Consultant will perform its obligations under this Agreement
even if it is required to expend more than the number of hours used to determine
the cost set forth in Schedule D and will not charge the Organization for such
excess hours unless otherwise permitted under this Agreement. In no event will the
cost to the Organization of the Services exceed the maximum contract price as set
forth in Schedule D, unless agreed upon in advance in writing signed by authorized
representatives of both parties. Services to be provided by Consultant under any
duly authorized Change Orders that increase the maximum contract price will be
provided at then current hourly rates.
(c) As part of its regular reports to the District during the term of this Agreement, the
Consultant shall advise the District whether additional time beyond the estimate
provided in Schedule "B" may be required. The District may then request a
meeting with the Consultant to negotiate the terms of any such additional time.
Should an agreement not be reached within 10 business days of such meeting, the
parties agree to have the terms of the additional hours settled pursuant to the
arbitration provisions contained herein.
(d) The District shall reimburse the Consultant for its direct expenses, including, but
not limited to:
(i) courier services;
(ii) photocopying, faxing and reproduction;
(iii) all reasonable travel costs including a travel time rate of $50.00 per hour,
meal expenses of not more than $40.00 per diem (receipts provided),
accommodation costs capped at a rate pre-established by the District and
agreed to by the Consultant, and a mileage charge of$.24 per km;
(iv) long distance telephone calls; and
(v) all other reasonable expenses incurred in the performance of the
Consultant's duties.
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(e) In addition to all other amounts payable under this Agreement, the District shall
pay any initial and annual fees charged by the Escrow Agent for performing its
obligations under Section 2.7. The Consultant shall use its commercially
reasonable efforts to negotiate the best possible fee structure with the Escrow
Agent. The Escrow Agent may charge a one-time annual fee or a fee based on the
number of beneficiaries entitled to access the Source. In either case, the Consultant
shall be entitled to pass on to the District any fees relating to the Escrow Agent
reasonably attributable to the District, provided that the District remains entitled to
access the Source pursuant to Section 2.7(c). Upon receiving any invoice from the
Escrow Agent that requires payment by the District, the Consultant shall submit the
relevant invoice to the District, together with background documentation
confirming the amount attributable to the District and evidence that the Consultant
has paid the fees that are subject to such invoice. Within 30 days following receipt
of such invoice, the District shall reimburse the Consultant for the amounts
attributable to the District, as more particularly set out in the documentation
submitted by the Consultant. The Consultant reserves the right to change the
Escrow Agent from time to time in order to obtain the most appropriate package of
fees and services, as determined by the Consultant, in its sole discretion. In the
event that the Escrow Agent is replaced, prompt written notice of such replacement
shall be provided to the District and the District shall execute any documentation
reasonably required by the Escrow Agent in order to give effect to the provisions of
this Agreement.
(f) The District shall be liable for the payment of any sales or use tax in the event any
sales tax or use tax is assessed on the District's purchase of the Software. The fees
herein do not include sales, uses, excise, personal property or other taxes or custom
charges or duties or other duties of any locality or jurisdiction and any such taxes or
duties, including the Goods and Services Tax and Provincial Sales Tax, shall be the
responsibility of and be paid by the District. To the best of the Consultant's
knowledge, as at the date hereof, there are no applicable additional charges,
including any taxes, custom charges or duties.
ARTICLE VI
REMEDIES AND LIABILITY
6.1 Remedies and Liability
(a) Termination of this Agreement shall not affect any right of action of either party
arising from anything which was done or not done, as the case may be, prior to the
termination taking effect.
(b) The District and the Consultant recognize that circumstances may arise entitling the
District to damages for breach or other fault on the part of the Consultant arising
from this Agreement. The parties agree that in all such circumstances the
District's remedies and the Consultant's liabilities will be limited as set forth below
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and that these provisions will survive notwithstanding the termination or other
discharge of the obligations of the parties under this Agreement.
(i) For breach or default by the Consultant or otherwise in connection with this
Agreement, including a breach or default entitling the District to rescind or
be discharged from the provisions of this Agreement and whether in the
nature of a breach of condition or a fundamental breach, the District's
exclusive remedy, in addition to electing if so entitled to rescind or be
discharged from the provisions of this Agreement, shall be payment by the
Consultant of the District's direct damages to a maximum amount equal to,
and the Consultant shall in no event be liable in excess of, the lesser of(x)
the fees payable to the Consultant provided for herein, and (y) the amount
actually paid by the District under this Agreement up to and including the
date of termination.
(ii) In no event shall any damages include, nor shall the Consultant be liable
for, any special, indirect or consequential damages even if the Consultant
has been advised of the possibility thereof. Without limiting the generality
of the foregoing, the Consultant shall not be liable for lost profits, lost
business revenue, failure to realize expected savings, other commercial or
economic loss of any kind, or for any claim whatsoever against the District
by any other party.
(iii) Clauses (i) and (ii) shall apply in respect of any claim, demand or action by
the District irrespective of the nature of the cause of action underlying such
claim, demand or action, including, but not limited to, breach of contract or
tort.
6.2 Intent
tent
The parties hereby confirm that the waivers and disclaimers of liability, releases
from liability, limitations and apportionments of liability, and exclusive remedy provisions
expressed throughout this Agreement shall apply even in the event of default, negligence (in whole
or in part), strict liability or breach of contract of the person released or whose liability is waived,
disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such
person's affiliates and to its shareholders, directors, officers, employees and affiliates.
6.3 Remedies
Where remedies are expressly afforded by this Agreement, such remedies are
intended by the parties to be the sole and exclusive remedies of the District for liabilities of the
Consultant arising out of or in connection with this Agreement, notwithstanding any remedy
otherwise available at law or in equity.
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ARTICLE VII
INDEMNITY
7.1 Indemnity
(a) District's Indemnity--The District shall indemnify and save harmless the
Consultant, its successors and assigns together with its officers, directors, employees, agents and
those for whom it is in law responsible, only from and against any and all liabilities, damages,
costs, expenses, causes of action, claims, suits, proceedings and judgments (collectively "Claims")
which they may incur or suffer or be put to by reason of or in connection with or arising solely
from any breach, violation or non-performance by the District of any obligation contained in this
Agreement to be observed or performed by the District, or any wrongful act or negligence of the
District or its agents or employees which relates to this Agreement, howsoever arising. The
District acknowledges and agrees that this indemnity shall survive any termination of this
Agreement.
(b) Consultant's Indemnity--The Consultant shall indemnity and save harmless the
Organization,its successors and assigns together with its officers, directors, employees, agents and
those for whom it is in law responsible, only from and against any and all Claims which they may
incur or suffer or be put to by reason of or in connection with or arising solely from any breach,
violation or non-performance by the Consultant of any obligation contained in this Agreement to
be observed or performed by the Consultant or any wrongful act or negligence of the Consultant or
its agents or employees which relates to this Agreement, howsoever arising, and such liability shall
not exceed the Consultant's liability under Section 4.2 (b) of this Agreement. The Consultant
acknowledges and agrees that this indemnity shall survive any termination of this Agreement.
ARTICLE VIII
GENERAL
8.1 Force Maieure
Neither party shall be liable for delay or failure in performance resulting from acts
beyond the control of such party including, but not limited to, acts of God, acts of war or of the
public enemy, riots, fire, flood, or other natural disaster, acts of government, strike, walkout,
communication line or power failure, failure in operability or destruction of the District's
computer (unless by reason of the negligence of a parry to this Agreement) or failure or
inoperability of any software other than the Software.
8.2 Confidentiality
(a) Duty Owed to the District -- The Consultant acknowledges that it may receive
information from the District or otherwise in connection with this Agreement or the
performance of the Services. Except for information in the public domain, unless
such information falls into the public domain by disclosure or other acts of the
Consultant or through the fault of the Consultant, the Consultant agrees:
(i) to maintain this information in confidence;
A-13
(ii) not to use this information other than in the course of this Agreement;
(iii) not to disclose or release such information except on a need-to-know only
basis;
(iv) not to disclose or release such information to any third person without the
prior written consent of the District, except for authorized employees or
agents of the Consultant; and
(v) to take all appropriate action, whether by instruction, agreement or
otherwise, to ensure that third persons with access to the information under
the direction or control or in any contractual privity with the Consultant, do
not disclose or use, directly or indirectly, for any purpose other than for
performing the Services during or after the term of this Agreement, any
material or information, including the information, without first obtaining
the written consent of the District.
(b) Duty Owed to the Consultant -- The parties agree that if the District shall breach
any term of Section 0 of this Agreement entitled "Ownership of Software and
Confidential Information", then the Consultant shall have the right to terminate this
Agreement and the grant of licences herein forthwith without giving notice as set
forth in Section 8.3(b).
8.3 Termination
(a) If the Consultant should neglect to perform the Services properly or otherwise fail
to comply with the requirements of this Agreement, the District must notify the
Consultant in writing of such default (a "Default Notice"). Upon receipt of a
Default Notice, the Consultant must either correct the default at no additional cost
to the District, or issue a written notice of its own disputing the alleged default, in
either case within 30 days immediately following receipt of a Default Notice. If the
Consultant fails to correct the default, or issue a notice disputing the alleged
default, in either case within 30 days following receipt of the Default Notice, the
District may terminate the part of this Agreement relating to the provision of
Services and in such case will be responsible for payment to the Consultant of only
that part of the fee earned by the Consultant for those Services performed up to the
time of communication of such notice of termination to the Consultant.
(b) If the District should fail to comply with its obligations under this Agreement, the
Consultant must notify the District in writing of such default (a "Default Notice").
Upon receipt of a Default Notice, the District must correct the default at no
additional cost to the Consultant, or issue a written notice of its own disputing the
alleged default, in either case within 30 days immediately following receipt of a
Default Notice. If the District fails to correct the default, or issue a notice disputing
the alleged default, in either case within 30 days following receipt of the Default
Notice, the Consultant may terminate the whole of this Agreement including the
grant of licence to the Software and in such case the District will be responsible for
A-14
payment to the Consultant of only that part of the fee earned by the Consultant for
that part of the Services performed in accordance with this Agreement up to the
time of communication of such notice of termination to the District.
(c) In the event of the issuance of a Default Notice under this Agreement, both parties
shall continue performing their respective obligations under this Agreement during
the 30-day period following issuance of the Default Notice. Compliance with this
section shall be a condition precedent to any legal action and such compliance shall
not be a waiver of any parry's right to take legal action in respect of the subject
matter of the Default Notice.
(d) The Consultant and the City Manager, and such additional persons working for the
Consultant and the District as the parties believe may be helpful in the resolution of
any dispute arising under this Agreement, whether or not relating to the issuance of
a Default Notice, shall meet and confer in an effort to resolve each dispute in an
amicable manner prior to the initiation of any legal proceeding to enforce any of the
terms of this Agreement. Nevertheless, save and except as set out in Section
8.3(c), neither parry shall be prevented from taking legal action to protect or
enforce its rights under, or in respect of, this Agreement.
8.4 Procedure on Termination
If this Agreement is terminated prior to the Completion of Services, then within
15 days following such termination, the District shall return the Software to the Consultant and
shall. certify, under the hand of a duly authorized officer of the District, that all copies of the
Software or any part thereof, in any form, within the possession or control of the District have
been returned to the Consultant. If this Agreement is terminated following the Completion of
Services, then the District may retain the copy of the Software in its possession as of the
Completion of Services but it shall not be entitled to any additional User Licences, nor will it
receive updates of, or modifications to, the Software made by the Consultant. Finally, it will not
be entitled to access the Source through exercise of the licence granted pursuant to Section 2.7 of
this Agreement. Notwithstanding the foregoing, the District will remain subject to the obligations
imposed upon it pursuant to this Agreement with respect to the Software, including, but not
limited to, such obligations relating to ownership of the Software and confidentiality.
8.5 Accounts and Records
The Consultant shall:
(a) keep proper and detailed accounts in accordance with accepted accounting
practices of all factors entering into the computation of the amounts payable
pursuant to this Agreement; and
(b) for a period of two years from the date of Completion of Services by the
Consultant, preserve all accounts and other documentation relating to the District
and keep them available for inspection by the District or its representative, at any
A-15
time. The Consultant agrees that this obligation shall survive any termination of
this Agreement.
8.6 Addresses for Notice
Any notice required or permitted to be given to any parry to this Agreement shall
be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by
facsimile to the appropriate address or facsimile number set out below. Any such notice shall be
conclusively deemed to have been given and received on the day on which it is delivered or
transmitted (or on the next succeeding business day if delivered or received by facsimile after 5:00
p.m. local time on the date of delivery or receipt, or if delivered or received by facsimile on a day
other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third
business day following the date of mailing, and addressed, in the case of the Consultant, to:
ADVANCED UTILITY SYSTEMS CORPORATION
2235 Sheppard Avenue East, Suite 1702,
Toronto, Ontario, Canada
M2J 5B5
Attention: Patricia Sorbara
Telephone: 416-496-0149 extension 225
Fax: 415-496-3910
and in the case of the District, to:
CAPISTRANO VALLEY WATER DISTRICT
City of San'Juan Capistrano
32450 Paseo Adelanto
San Juan Capistrano, California 92657
Attention: Jim Widner
Telephone: 949-487-4303
Fax: 949-483-1053
Each party may change its particulars respecting notice, by issuing notice to the other parry
in the manner described in this Section 8.6.
8.7 Assignment
(a) This Agreement is not assignable by the District without the prior, express, written
permission of the Consultant, which may not be unreasonably withheld. The
licenses granted hereunder and the Software may not be sublicensed, assigned or
transferred.
(b) Without derogating from the Consultant's right to withhold its consent to an
assignment of this Agreement, no permission shall be granted unless the assignee
executes an assumption agreement in favour of the Consultant, in form and
A-16
substance satisfactory to the Consultant. Furthermore, as a condition to granting its
consent to any assignment of the Agreement by the District, the Consultant may
require that the assignee agree to pay an additional server license fee based on any
additional User Licenses it purchases within a one year period following the
assignment. The Server License fee set out in Schedule "D" hereto has been
established on the basis of the Server License supporting approximately 6 User
Licenses. To the extent that the Agreement is assigned by the District, and the
assignee requires additional User Licenses to support its customer base, then in
addition to the then applicable User License fee, the Consultant shall be entitled to
receive, and the assignee shall pay, an additional Server License Fee equal to the
then prevailing price of the equivalent server license fee required by the assignee
within one year following the said assignment. The provisions of this
Section 8.3(b) shall apply mutatis mutandis to any subsequent assignments
occurring after the fust assignment.
8.8 Binding Agreement and Enurement
This Agreement shall be binding upon the parties hereto and their respective
successors and assigns. This Agreement shall enure to the benefit of the parties hereto and their
respective successors and permitted assigns.
8.9 Entire Agreement
This Agreement shall constitute the entire agreement between the parties pertaining
to the provision of Services, and will supersede all prior and contemporaneous agreements,
understandings, negotiations and discussions between the Consultant and the District whether oral
or written in respect of this matter. There are no representations, warranties, collateral
agreements, conditions or other agreements between the parties hereto in connection with the
subject matter hereof except as specifically set forth herein.
8.10 Governing Law
The parties agree that this Agreement was entered into in the City of San Juan
Capistrano, California. This Agreement shall be construed and enforced in accordance with the
laws of the State of the California and the United States.
811 Invalidity
The invalidity or unenforceability of any provision or covenant contained in this
Agreement shall not affect the validity or enforceability of any other provision or covenant herein
contained and any such invalid provision or covenant shall be deemed to be severable.
A-17
8.12 Waiver
A term or condition of this Agreement may be waived or modified only by written
consent of both parties. Forbearance or indulgence by either party in any regard shall not
constitute a waiver of the term or condition to be performed, and either party may evoke any
remedy available under the Agreement or by law despite such forbearance or notice.
8.13 Counterparts
This Agreement may be executed in counterparts (whether by facsimile signature
or otherwise), each of which when so executed shall constitute an original and all of which
together shall constitute one and the same instrument.
8.14 Further Assurances
The parties shall do all such things and provide all such reasonable assurances as
may be required to consummate the transactions contemplated hereby, and each party shall
provide such further documents or instruments required by any other party as may be reasonably
necessary or desirable to effect the purposes of this Agreement and carry out its provisions.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement
on the day and year first written above.
ADVANCED UTILITY SYSTEMS
CORPORAT�yf;
Per: ----��
Name: Patricia Sorbara
Title: President
Per:
Name: hilip Mayfair
Title: Vice-President
APPROVED AS TO FORM CAPIST VALL WATER
DISTRIC
Per:
John Shai Counsel Nam Geo e Scarborough
Title: Ge ral Manager
ATTEST
Per:
Name: Ch 1 JAMSOTI
Title: Clerk of the Board
A-18
Schedule"A"
Detailed Description of Software
1. The Software
CIS Infinity is 32 -bit object-oriented software that operates in a Windows 95/98/2000/NT
environment. The basic CIS Infinity package is comprised of the following individual modules
and sub-modules that perform the basic functions of a billing and customer service operation and
includes all media and other materials related thereto:
MODULES AND SUB-MODULES
• Arrangement System • Menu System
• Billing (Electric, Water, Sewer) • Move In/Move Out Process
Cycle Billing • Multiple Receivables
Final Billing • New Services
Regular Billing • Payment Processing
Manual Billing Adjustments
Flat Rate Billing Cash Register
Meter Add/Remove Deposits
Rate Code Changes Payments
Service Add/Remove Penalties
• Bill Journal/Cash Journal Archive Post Dated Cheques
• Collections • Period End Routines
• Contact Management System • Point of Sale System
• Correspondence System • Post Billing Functions
• Customer Service Inquiries Bill Cancel and Re-bill
• Deposits Bill Inquiries
• G/L Integration with Third Party Bill Reprint
Software • Pre-Authorized Payment
• Inventory • Reports
• Electric Meter • Service Order System
Gas Meter
Instrument Transformer
Remote
Transformer/Loading
Water Heater
Water Meter
2. Required Programs
- Windows 95/98/2000/NT
Appropriate Network Software
P.C. Anywhere 8.0
A-19
Schedule "Al"
Consultant Response to the Reauest for Proposal—Utility Billin¢System
issued by the City of San.Tuan Capistrano. California
(ATTACHED)
A-20
Schedule `B"
Implementation Process Checklist and Timetable
I. DESIGNATED STAFF MEMBERS
• To be determined by the District and the Consultant
II. COMPLETION OF SERVICES —GLOBAL TIMETABLE
1. Project Commencement Date: To be determined
2. Estimated Project Completion Date: To be determined
3. Consultant's Project Manaeer: To be determined
4. District's Project Manaeer: To be determined
5. Project Schedule: To be determined
III. COMPLETION OF SERVICES —KEY PHASE TIMETABLES
1. Conversion Process
Projected Commencement Date: To be determined
Projected Completion Date: To be determined
Estimated Hours Required: 170
INIMagm
Diagnose existing systems 70
a) Determine what data is available
b) Determine what data is not available
a) Determine what data can be trusted
Map data fields from the existing systems to news stem 15
Programming/testing of conversion code on the existing system 15
Identify and correct exceptions and problems in conversion 35
Perform ongoing conversions and ensure data mapping is correct 25
Formulate, develop and execute a"Go Live" strategy 10
TOTAL: 170
B-1
2. Installation/Set-up
Projected Commencement Date: To be determined
Projected Completion Date: To be determined
Estimated Hours Required: 225
Install Server Software 10
Install Client Software 10
Configuration of the control files 55
Set up the interface with third party packages 35
Test billings/cash processingladjustments with installed settings 25
Full testing of processes of CIS Infinity with existing systems. Advanced 55
Utility Systems staff on-site during parallel testing and live.
(i) Project Management 35
TOTAL: 1 225
3. Training
Estimated Hours 200
The parties will agree upon an appropriate training schedule based on, among other things,
the modules in respect of which training is required and the skills and availability of Designed
Staff Members.
B-2
Schedule"C"
Support Aereement
This support agreement (the "Agreement") is entered into pursuant to a software
license ffld implementation agreement (the "Software License and Implementation Agreement")
dated & Ze�n I between Advanced Utility Systems Corporation ("Consultant") its
principal place 61 business at 2235 Sheppard Avenue East, Suite 1702, Toronto, Ontario, M2J
5135, and Capistrano Valley Water District ("District"), with its principal place of business at
32450 Paseo Adelanto, San Juan Capistrano, California 92675 and becomes effective immediately
upon the expiry of the Warranty Period.
Unless otherwise defined herein, all defined terms used herein shall have the
meaning ascribed to them in the Software License and lmplementation Agreement.
1. Subject to the terms and conditions of this Agreement, Consultant shall provide
subscription and support service which includes revisions, updates and enhancements to
CIS Infinity and related materials for the version of CIS Infinity specified in Schedule "A"
and Schedule "Al" attached to the Software License and Implementation Agreement.
2. Subject to the terms and conditions of this Agreement, Consultant shall provide software
support via telephone and electronic mail, and site visits when necessary, Monday through
Friday, 8:00 a.m. to 5:00 p.m., Pacific Standard Time, excluding Consultant observed
holidays. To enable Consultant to provide effective support, District will establish a
dedicated auto-answer modem to allow Consultant to access the Software effectively. For
emergency situations and after-hour assistance, Consultant will be available to District by
pager number and electronic mail to provide support.
3. In consideration for the support services specified in Section 2, District shall pay the
Annual Support Fee set forth in Schedule "D" attached to the Software License and
Implementation Agreement. Consultant may change the Annual Support Fee from time to
time, provided that any such change must be made for all clients of Consultant. In addition
to the Annual Support Fee, District shall reimburse Consultant for its direct expenses in
providing support services pursuant to this Agreement, including, but not limited to:
(a) courier services;
(b) photocopying, faxing and reproduction services;
(c) all reasonable travel costs, including a travel time rate of $50.00/hour, meal
expenses of not more than $40.00 per diem (receipts provided), accommodation
costs capped at a rate pre-established by the District and agreed to by the
Consultant and a mileage charge of$.29/km;
(d) long distance telephone calls; and
(e) all other reasonable expenses incurred in the performance of Consultant's duties
hereunder.
C-1
Consultant may update its reimbursement policies from time to time, in which case such
updated policies shall apply for purposes of this Agreement, provided that such updated
reimbursement policies must generally apply to all clients of Consultant.
4. All support services provided by Consultant to District other than those specified in
Section 2 (such as, but not limited to, on-site support), shall be provided to District by
Consultant at Consultant's then prevailing prices, hourly rates, policies and terms. For
certainty, any updates of, or enhancements to, the Software will be made available to
District free of charge (with respect to the actual updates or enhancements), but all services
provided by Consultant with respect to such updates or enhancements will be subject to the
Consultant's then-prevailing prices, hourly rates, policies and terms, meaning that such
then-prevailing prices will apply to matters such as set-up and training relating to such
updates or enhancements.
5. All payments hereunder shall be in U.S. dollars and shall be net of any taxes, tariffs or
other governmental charges.
6. The initial term of this Agreement shall be for one year beginning on the date set out
above. The Agreement shall continue thereafter on an annual basis provided that District
shall pay the then prevailing Annual Support Fee set forth in Schedule "D" attached to the
Software License and Implementation Agreement, unless terminated by either party upon
giving to the other not less than 90 days notice in writing prior to the end of the first year
or any subsequent anniversary of such date. If the Support Agreement is terminated by
District, it shall be entitled to retain the Software licensed to it as at the date of such
termination, but it will relinquish its rights to receive upgrades of, or enhancements to, the
Software, services for the Software, or access to the Source in escrow upon the occurrence
of any event specified in Section 2.7(d) of the Software Licence and Implementation
Agreement. For certainty, and without mitigating the application of the Software License
and Implementation Agreement during the term of this Support Agreement, the terms and
conditions of the Software Licence and Implementation Agreement will continue to apply
to District following the termination of this Agreement.
7. Title to and ownership of all proprietary rights in the Software and all related proprietary
information shall at all times remain with Consultant, and District shall acquire no
proprietary rights by virtue hereof.
8. Unless terminated pursuant to Paragraph 6 hereof, this Agreement shall remain in full
force and effect except as terminated as follows:
(a) if either party neglects or fails to perform, observe or cure within (30) days of
written notice of such failure to perform any of its existing or future obligations.
(b) If District attempts to assign this Agreement or any of its rights hereunder, or
undergoes a reorganization, without complying with the Software License and
Implementation Agreement.
C-2
9. Unless otherwise agreed to by the parties, all notices required hereunder shall be made in
accordance with the provisions of the Software License and Implementation Agreement.
10. Either parry's lack of enforcement of any provision in this Agreement in the event of a
breach by the other shall not be construed to be a waiver of any such provision and the
non-breaching parry may elect to enforce any such provision in the event of any repeated or
continuing breach by the other.
11. A valid contract binding the parties hereto shall come into being only upon execution of
this Agreement by a duly authorized agent, officer or representative of both parties.
12. This Agreement is the exclusive statement of the entire support agreement between
Consultant and District. No change, termination or attempted waiver of any of the
provisions hereof shall be binding unless in writing and signed by the party against whom
the same is sought to be enforced.
13. The parties hereto agree that the terms and conditions contained herein shall prevail
notwithstanding any variations on any orders submitted by District.
14. The particular provisions of this Agreement shall be deemed confidential in nature and
neither District nor Consultant shall divulge any of its provisions as set forth herein to any
third parry except as may be required by law.
15. Portions of the data supplied by Consultant may be proprietary in nature and will be
marked as such. District will abide by the terms of such markings and will be liable for all
loss or damage to Consultant from any failure to so abide by such markings or from all
unauthorized disclosure of such proprietary data to any other party. Consultant retains for
itself all proprietary rights in and to (1) all designs, engineering details, and other data
pertaining to CIS Infinity (2) all original works, computer programs, discoveries,
inventions, patents, know-how, and techniques arising out of work done wholly or in part
by Consultant in connection with this Agreement, and (3) any and all product(s) developed
as a result of such work, including the sole right to manufacture any and all such
Products(s).
16. In no event will Consultant be liable to District for any special, indirect or consequential
damages arising from this Agreement. Without limiting the generality of the foregoing,
Consultant shall not be liable for lost profits, lost business revenue, failure to realize
expected savings, other commercial or economic loss of any kind, or for any claim
whatsoever against District by any other party arising out of or in connection with this
Agreement or the use or performance of the Software whether in an action based on
contract or tort, including negligence.
17. This Agreement shall be governed by, subject to and construed in accordance with the laws
of the State of California.
C-3
18. This Agreement may not be assigned by the District unless, concurrently with any such
assignment, the District assigns its rights under, and complies with the provisions of, the
Software License and Implementation Agreement.
19. This Agreement shall be binding upon the successors and assigns of the parties and enure
to the benefit of the successors and permitted assigns of the parties.
20. This Agreement is to be read and construed as an ancillary agreement to the Software and
Implementation Agreement. If a conflict or inconsistency exists between a provision of
this Agreement and a provision of the Software and License Agreement, then the
provisions of the Software and Implementation Agreement shall prevail.
21. Time shall be of the essence of this Agreement.
22. The invalidity or unenforceability of any provision or covenant contained in this
Agreement shall not affect the validity or enforceability of any other provision or covenant
herein contained and any such invalid provision or covenant shall be deemed to be
severable.
23. The parties shall do all such things and provide all such reasonable assurances as may be
required to consummate the transactions contemplated hereby, and each party shall provide
such further documents or instruments required by any other party as may be reasonably
necessary or desirable to effect the purposes of this Agreement and carry out its provisions.
C-4
Y
24. This Agreement may be executed in counterparts (whether by facsimile signature or
otherwise), each of which when so executed shall constitute an original and all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement to be
effective as of the date first written above.
ADVANCED UTILITY SYSTEMS
CORPORATIO
Per: -4, 7uf�
Name: Pat is Sorbara
Title: Presi nt
Per: ""'4444
Name: P lip Playfair
Title: Vice-President
APPROVED AS TO FORM CAPIST VA Y WATER
DISTRICT
Per:
i
Jo S egal Counsel Name or e Scarborough
Title: Gene all Manager
ATTEST
Per:
Name:Chery o on
Title: Clerk of the Board
C-5
Schedule"D"
Fee Structure and Payment Schedule
Note: Fees for Services listed below are based on best estimates of the number of hours of work
required to complete the Services outlined on Schedule `B" to this Agreement.
Accordingly, the total of such fees will increase or decrease as the number of actual hours
worked is greater than or less than such estimates.
Server License $ 25,000.00
User Licenses 6 @ $2,500.00 $ 15.000.00
Subtotal: $ 40,000.00
Conversion 170 hours @ $120.00 $ 20,400.00
Set-up and Install 225 hours @ $120.00 $ 27,000.00
Training 200 hours @ $120.00 $ 24,000.00
Sub-total: $ 71,400.00
TOTAL: $11].aIN1.00
Payment Schedule:
A. Licence Fees:
1. On execution of this Agreement: (25% of license fee) ......................$10,000.00
2. On completion of Set-up and Installation:(25% of licence fee) .........$10,000.00
3. On completion of the "Completion of Services" as described in Section
1.1(b)...........................................................................$20,000.00
B. Consulting and Training Fees:
Invoiced bi-weekly on the basis of actual hours of work to the completion of the project.
C. Annual Support Fee......................................................................................$10.000.00
D-1