PROJECT LOCATION AND CONSULTING AGREEMENT

 

THIS PROJECT LOCATION AND CONSULTING AGREEMENT (this “Agreement”) is made and entered into as of this 9th day of July, 2011, by and between Mammatech Corporation, (In the process of changing its name to “Dynamic Energy Alliance Corporation”) a Florida corporation, (hereinafter “Company”), and Key Services, Inc., a Nevada Corporation in the process of organization,  (hereinafter "Consultant").

WHEREAS, a Consultant has substantial business consulting experience and skills; and

WHEREAS, Company is desirous of engaging the consulting services of Consultant under the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.1   Appointment of Consultant.  Company hereby retains Consultant to locate and assist in Company’s development and of construction of energy campus projects undertaken by Company (hereinafter the “Projects”), on a non-exclusive basis and Consultant hereby agrees to so serve, on the terms and conditions hereinafter set forth herein.  Consultant agrees to provide the services of its principal, Larson Elmore. It is anticipated that the Mr. Elmore will spend approximately 60% of his time on assisting Company and providing consulting services as described herein. The Company understands that this amount of time may vary for day-to-day and that the Consultant and Elmore will perform Consulting Services for other clients and/or companies at the same time, and may take ownership or participation interests in competing projects and ventures.

Section 1.2  Authority to be Legally Bound.  The Company and the Consultant each represent that they have through their executing officers, the requisite corporate authority to sign this agreement and to legally bind their companies to the terms and conditions of this Agreement.

 

Section 2.1  Duties.

·	Lease and or purchase Costs and expenses to acquire a site, or rights of use to a site

·	Architectural fees;

·	Engineering fees;

·	Environmental studies;

·	Attorney and accountant’s fees;

·	Project management fees;

·	Labor expenses, including workman’s compensation, etc.;

·	Hard costs of building materials, including but not limited to utilities, dirt work, paving of parking lots, installation of lights, construction of buildings, manufacture and installation of the equipment necessary to operate an Energy Campus; and

·	All overhead and administration fees incurred by Company in accordance with generally accepted accounting principles, in connection with each Consultant Site, and/or project constructed thereon.

 

Section 3.1  Term Of Agreement. This Agreement shall have a term of 5 years, and shall be automatically renewed there after on a two year by two year term basis unless terminated upon at least 6 months written notice prior to the expiration of any renewal term.

 

 

Section 4.1  Event Of Termination.  This Agreement shall be terminable for cause, as “cause” is hereafter defined, at the election of Company, upon five (30) days’ prior written notice by Company to Consultant after the expiration of any cure period described below without completion of applicable curative measures.  “Cause” for termination by Company shall mean the occurrence of (i) an event listed below in subsection (b) with no cure or grace period whatsoever; or (ii) one or more of the events listed below in subsections (a), (c), (d) and (e) and the continuance of the same for more than thirty (30) days (or, if such event is curable but cannot be cured within thirty (30) days, then such additional period of time as is reasonably necessary to cure the same), provided that within such thirty (30) day period Consultant promptly commences to cure the same and thereafter diligently and continually prosecutes to completion the cure of same), after delivery of written notice by Company specifying in reasonable detail the nature of the default.  The following are the events giving rise to Company's right of termination of this Agreement for cause:

Section 4.2Termination Without Cause.  Consultant may terminate this Agreement for any or no reason upon one hundred twenty (120) days prior written notice to Company.

Section 4.3  Payment To Consultant In Event Of Termination. In the event this Agreement is terminated for any reason by Company or the Consultant, Consultant shall be entitled to receive compensation  and reimbursement in full through the date of termination..

Section 4.4   Survival Of Payment Obligations.  The obligation of Company to pay amounts owing to Consultant as provided herein shall survive termination of this Agreement.

 

Section 5.1  Recovery Of Expenses; Recovery Of Advances By Consultant.  In the event Consultant hereafter incurs any expenses while rendering services under this Agreement, Company shall promptly reimburse Consultant for such advances, together with any interest expense incurred by Consultant with respect thereto, provided that any expenditures aggregating more then $3,000 in any month shall be pre approved by Company prior to expenditure.  Such amounts and expenses may include: (i) costs and expenses which Consultant incurs at the direction of Company, and (ii) reasonable costs and expenses relating to the Project formulation, site location, and location and negotiation with potential vendors and customers.

Section 6.1  Compensation to Consultant.  In compensation for the consulting services to be performed by Consultant hereunder, Company shall pay to Consultant:

 

Section 6.2  Accounting.  Company shall furnish Consultant with copies of all periodic financial and operating reports on the operations and financial results of Company which Company furnishes and distributes to its respective partners, joint venturers, vendors, and/or customers from time to time, as and when such statements and reports are disseminated to such persons.  If this Agreement is terminated and the Consultant is to continue to be paid pursuant to this Agreement, then Consultant shall continue to receive such reports, and if no such reports and statements are routinely disseminated, then from time to time upon request, no more frequently than quarterly, Company shall furnish the Consultant with periodic accountings of amounts due to Consultant, and Consultant and its agents shall have the right, upon reasonable prior notice, to examine the books and records of Company.

Section 7.1 In consideration of mutual promises, assertions and covenants herein stated, and other good and valuable considerations, the receipt of which is hereby acknowledged, Company agrees on behalf of itself and its agents and assigns, to refrain from soliciting business and/or contracts and/or projects or sites from any Consultant Relationship without the written consent of Consultant, which may be withheld in its sole discretion, for a period of five years after the termination of this Agreement. In addition, Company and its agents and assigns agree to maintain complete confidentiality regarding all Consultant Relationships introduced by Consultant, and will only disclose such business sources only upon written consent of Consultant, which may be withheld in its sole discretion.  Company agrees not to circumvent or attempt to circumvent this provision in any manner.

 

Section 8.1  Notices. All notices, demands, requests or other similar communications required or permitted hereunder shall be personally delivered or sent by certified or registered mail, return receipt requested, postage prepaid, and addressed to each of the parties at the addresses specified below, or at such other address as they shall each specify in a notice addressed and mailed as hereinabove set forth. Any such notice shall be deemed given when received by the party to whom it is addressed; provided that the failure or refusal of a party to accept delivery of any notice properly delivered to the address set forth herein shall constitute receipt as of the date of the attempted delivery.  For purposes hereof, the addresses for notices are as follows:

Section 8.2  Entire Agreement.  This Agreement constitutes the entire agreement between Company and Consultant relating in any manner to the subject matter this Agreement.  No prior agreement or understanding pertaining to the same shall be valid or of any force or effect, and the covenants and agreements herein cannot be altered, changed or supplemented except in writing signed by all partners in Company and by Consultant.

Section 8.3   Governing Law.  This Agreement is made pursuant to, and all of the rights and obligations of the parties hereto and all of the terms and conditions herein shall be construed in accordance with and governed by, the laws of the State of Delaware.

Section 8.4    Severability.  If any clause or provision of this Agreement is illegal, invalid or unenforceable under pre-sent or future laws effective during the term hereof, then the remainder of this Agreement shall not be affected thereby, and in lieu of each clause or provision of this Agreement which is illegal, invalid or unenforceable, there shall be added, as part of this Agreement, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and as may be legal, valid and enforceable.

Section 8.5   Assignment By Consultant.  The Consultant shall have the right in its sole discretion to assign in whole or in part, the compensation payable to Consultant here under, and/or to assign a portion or all of its duties hereunder with respect to a specific site or project, to a third party or sub contractor.

 

Section 8.6  Binding Effect.  Except as provided below, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, heirs and assigns.

 

 

Section 8.7  Subordination.  This Agreement and all fees and payments due from Company to Consultant pursuant hereto shall be subject and subordinate in all respects to any mortgage or deed of trust now or hereafter placed upon a Consultant Site, and/or a Project located on a Consultant Site, or any portion thereof. This provision shall be self-executing but Consultant shall, upon request, execute such instruments as may reasonably be requested by Company or any such mortgagee or lender to evidence such subordination.

Section 8.8   Waivers.  No delay or omission by either party in exercising any right or power accruing upon the noncompliance or failure of performance by the other party hereto of any provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof.  A waiver by either party of any of the covenants, conditions or agreements hereof to be performed by the other must be in writing and signed by the party who is waiving such covenants, conditions or agreements.

Section 8.9  Other Activities. Notwithstanding any other provisions of this Agreement to the contrary, Consultant may engage in or possess an interest in other businesses similar to Company’s of every nature and description and in any vicinity whatsoever, including without limitation acquisition, development, operation, and management of real property, and Company shall have no rights in or to any profits there from.  Any of such activities may be undertaken without notice to Company, and Company hereby waives any right or claim that it may have against the Consultant with respect to the income or profits there from.

Section 8.10  No Company.  Company shall not and does not by this Agreement in any way or for any purpose become a partner of Consultant in the conduct of its business, or otherwise, or a joint venturer of or a member of a joint enterprise with Consultant, but rather Consultant is and shall, for all purposes of this Agreement, be deemed an “independent contractor” of Company.

Section 8.11   Company and Affiliates. Terms “Consultant” and “Company” as used in this Agreement

will be deemed to include any affiliate of the Consultant or Company, respectively, now or during the

term of this Agreement. An affiliate is defined as a person who directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with a person or entity.

Section 8.12  Captions. The captions appearing in this Agreement are inserted as a matter of convenience and for reference and in no way affect this Agreement, define, limit or describe its scope or any of its provisions.

Section 8.13   Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their heirs, personal representatives, successors and assigns, including any corporation with which or into which the Company may be merged or which may succeed to its assets or business, provided, however, that the obligations of the Consultant are personal and shall not be assigned by them.

Section 8.15  Attorneys’ Fees. If either party files any action or brings any proceeding against the other arising out of this Agreement then the prevailing party shall be entitled to reasonable attorneys’ fees.

Section 8.16  Force Majeure. Neither the Company nor the Consultant shall be liable to the other for any delay or failure or any other default in performance of this Agreement due to extraordinary events, circumstances or occurrence beyond the control of the Company or Consultant, as applicable, such as acts of nature (flooding, earthquake, volcano, hurricanes, etc.), terrorist activity, war or armed conflict, strike, riot, crime or any other similar cause which would adversely affect, directly or indirectly, the Company or the performance of the services contemplated between Consultant and Company under this Agreement.

Section 8.17  Number of Parties. The singular shall include the plural and the plural the singular and one gender shall include all genders. As used in this Agreement the term Affiliate means a person, directly or indirectly through one or more intermediaries, controls or is controlled by, or is under control

with, the Company.

Section 8.18   Currency. In all instances, references to monies used in this Agreement shall be deemed

to be United States dollars.

Section 8.19  Headings. Titles or captions contained herein are inserted as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Agreement or any provision hereof. No provision in this Agreement is to be interpreted for or against either party because that party or his legal representative drafted such provision.

Section 8.20  Counterparts; Facsimile Signatures. This Agreement may be executed simultaneously 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. The Parties agree that facsimile signatures of this Agreement shall be deemed a valid and binding execution of this Agreement.

 

[Signatures follow on next page]

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first above written with full board approval and by corporate resolution this day July 9, 2011.

 

(in the process of changing its name to “Dynamic Energy Alliance Corporation”)

 

By:	/s/ James Michael Whitfield
	James Michael Whitfield
	President and CEO