EXHIBIT 10.6
TECHNOLOGICAL RESEARCH AND DEVELOPMENT AUTHORITY
STATE OF FLORIDA
INVESTMENT INITIATIVE FOR ENERGY TECHNOLOGIES
TRDA FUNDING AGREEMENT
This Agreement, dated November 20, 2002, ("Effective Date"), is made
between the Technological Research and Development Authority of the State of
Florida, having its principal place of business at 0000 Xxxxx XX Xxxxxxx 0,
Xxxxxxxxxx, Xxxxxxx 00000 ("TRDA") and DynEco Corporation, having its principal
place of business at 000 Xxxxxxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 ("DynEco").
RECITALS
WHEREAS under a special agreement with the Florida Department of
Community Affairs ("Department"), TRDA operates a program titled "Investment
Initiative for Energy Technologies" pursuant to which TRDA may provide funding
to Florida for-profit companies;
WHEREAS the purposes of the program are to benefit Florida's economy
and promote energy conservation and efficiency by assisting Florida companies
with the commercialization of energy-related technologies and related new or
advanced products and services, the creation of new jobs, and the replenishment
of program funds;
WHEREAS DynEco has applied for funding by TRDA to develop and
commercialize the UniVane compressor, and;
WHEREAS DynEco has obtained the required matching funds as indicated in
their proposal.
NOW, THEREFORE, in consideration of the representations and mutual
promises set forth herein, the parties agree as follows:
A. INCORPORATION OF RECITALS. The parties represent and warrant that the above
recitals are true and correct and are hereby incorporated in the body of this
Agreement by this reference.
B. PURPOSE. The purpose of this Agreement is to provide for the partial funding
for the development and commercialization of UniVane compressors and hydrogen
circulators developed by DynEco for fuel cell applications. Upon the completion
of development, DynEco will develop the market for and engage in the
commercialization of new technology. In consideration of the funding to be
supplied by TRDA, DynEco will make royalty payments to TRDA from Gross Sales.
Funding DynEco aims to bring about significant energy savings, create high tech
jobs and attract new capital investment, promote the State of Florida as a
recognized fuel cell industry center, and replenish the program's funds. This
Agreement is intended to govern the performance of the parties, including the
use of TRDA funds, commercialization goals and compliance with the requirements
of the Investment Initiative for Energy Technologies.
C. DEFINITIONS. For purposes of this Agreement, the following words and terms
shall have the meaning set forth below:
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1. "Gross Sales" means all revenues recognized in accordance with
generally accepted accounting principles from the sale, distribution,
lease or other disposal of the Product by DynEco or any subsidiary,
affiliate or sublicensee of DynEco in the Territory, less returns,
allowances, prompt payment and volume discounts that are customarily
provided in the industry. Freight, packing, insurance, and sales and
other taxes based on a sale of the Product may be deducted from Gross
Sales when included in the gross sales price, but not taxes assessed on
income derived from such sales. Gross Sales shall also include revenues
generated from the licensing, sale or other disposition, of Inventions.
2. "Inventions" means all inventions, discoveries, concepts, research,
ideas and improvements conceived or developed, individually or jointly,
prior to or during the term of this Agreement, that relate directly or
indirectly to the Services regardless of whether a patent, copyright or
another type of legal protection covers that subject matter, and
regardless of the tangible form in which the subject matter is
embodied.
3. "Services" means the development, engineering, management, financial
controls and production of UniVane compressors and hydrogen
circulators. For purposes of calculating royalties due TRDA hereunder,
Services shall also include all fees, sums and credits received from
the sale, license, rental or other temporary or permanent disposition
of products, devices, software, technologies or Inventions relating to
the Services.
4. "Product" means the manufacture or sale of UniVane compressors and
hydrogen circulators. For purposes of calculating royalties due TRDA,
Product shall also include all other products, devices and technologies
that (a) result directly or indirectly from the development of the
Product, and (b) as of the Effective Date are not in or ready for
production at DynEco or any facility under contract with DynEco, its
subsidiaries or affiliates.
5. "Project" means all acts expressly contemplated by this Agreement,
or which are otherwise necessary for the performance of DynEco
hereunder.
6. "Related Entities" means entities that are directly or indirectly
involved with the development, technology, licensing or manufacturing
of the Product and which are under common control or ownership with
DynEco.
7. "Territory" means all the countries of the world.
D. REPRESENTATIONS. DynEco represents and warrants that:
1. It is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida, with its principal
office located at 000 Xxxxxxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, and,
together with its subsidiaries and affiliates, is in good standing
under the laws of the jurisdictions in which it conducts its business.
2. It intends to maintain its principal location in the State of
Florida for at least as long as any sums are due to TRDA hereunder.
3. It lawfully possesses, whether through ownership, agreement or
license, any and all rights to the technology required for the
completion of the Project and the provision of Services and, with the
funding provided herein, it can both complete the project development
and provide Services.
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4. The information supplied in the proposal and all other documents
delivered to TRDA are true, accurate and complete to the extent
presented in the proposal.
5. There are no actions, suits or proceedings pending against DynEco,
or to the knowledge of DynEco, threatened against it, or orders,
judgments, injunctions or decrees that would materially affect the
Project or the Services, including the ability of DynEco to make all
payments required hereunder. DynEco's Notes to Financials are
incorporated here by Reference.
6. It is not in default with respect to any order of any court or
governmental authority, or in violation of any ordinances, governmental
rules or regulations to which it is a party or to which it is subject.
7. Neither it, any member of its staff, or any subcontractor is
debarred or suspended or is otherwise excluded from or ineligible to
participate on government funded programs.
E. CONDITIONS OF TRDA FUNDING. It is understood that DynEco shall:
1. Diligently perform the work in a manner that is consistent with its
proposal to TRDA for the development and commercialization of UniVane
compressors and hydrogen circulators, set forth as Exhibit A, and the
Work/Payment Schedule and Statement of Work set forth as Exhibit B.
2. Provide the necessary personnel, material, services, technology,
equipment and facilities to meet the milestones and other critical
dates required to complete the Project.
3. Assist TRDA and the Department in complying with the Stripper Well
Settlement Agreement and guidance issued by the US Department of
Energy, the Financial Assistance Rules described in Title 10, Part 600,
as well as those regulations concerning the use of oil overcharge
recovery funds.
4. Upon reasonable notice, allow representatives of TRDA, the
Department, or other interested groups or parties, reasonable
visitation to the facilities and sites associated with the Project.
5. Make no future expenditures or take any action material to the
Project that has not been approved by TRDA, and immediately notify TRDA
in the event of any changes relating to the scope or direction of the
Project. No funds provided hereunder, whether by TRDA or matching
funds, shall be used to fund work performed, or activities not directly
related to the performance of this Agreement, such as basic research,
seminars, training programs, business plan development, market
research, interest expense, claims or litigation. Funds provided
hereunder by TRDA shall be used to match funds obtained by DynEco.
6. Conduct a minimum of seventy-five percent (75%) of the work
represented by this Agreement, including the work funded by TRDA, the
matching funds and by DynEco, within the State of Florida.
7. Require that all subcontractors agree to be bound by terms and
conditions no less restrictive than those contained herein, including
such terms as they relate to the indemnification of TRDA. All
subcontracts shall require a prior notification to and approval by TRDA
and copies of the executed agreements shall be provided to TRDA within
ten (10) days after their execution.
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8. Complete the Project within twenty four (24) months of the Effective
Date.
F. TRDA FUNDING/PAYMENT.
1. The funds to be disbursed by TRDA pursuant to this Agreement shall
not exceed One Hundred Fifty Thousand Dollars ($150,000.00). Funding
shall be subject to the receipt by TRDA of sufficient funds from the
Department. TRDA will notify DynEco within ten (10) days of any
reduction in funds provided hereunder.
2. TRDA payments shall be made to reimburse DynEco for 50% of its
allowable costs pursuant to Paragraph E. 5. and in accordance with
Exhibit B, the Work/Payment Schedule and Statement of Work. It is
understood that DynEco submit no more than one request for
reimbursement within each calendar month and that any payment with
respect thereto is conditioned on (a) the completion of applicable
tasks and subtasks and the receipt and approval by TRDA of the
deliverables contemplated by the Work/Payment Schedule and Statement of
Work (as described in Section H.), (b) receipt of allowable costs with
including paid invoice(s) as required, (c) receipt of monthly reports,
and (d) such other documents, information and certifications required
by this Agreement.
3. Payments will be issued within thirty (30) days from the receipt and
approval of a DynEco reimbursement claim containing an original
signature of an authorized DynEco representative, specifying the
payment requested (not exceeding 50% of invoices as noted in Paragraph
F. 2. above paid by DynEco on approved expenses), the tasks and
subtasks completed, the time period covered and the following
certification:
"This is to certify that this invoice is for requesting
payment only on those tasks that have been completed in
accordance with this Agreement. It is further certified that
no portion of the funds received or to be received have or
will be used for lobbying in violation of Section 216.347 of
the Florida Statutes."
4. To the extent that any tasks and/or subtasks have not been completed
to the satisfaction of TRDA, TRDA shall both notify DynEco of such
event and withhold an amount equal to the amount requested for such
tasks and subtasks. Unless DynEco can complete the tasks and/or
subtasks, which are the subject of the notification, to the
satisfaction of TRDA before the closing of TRDA's regular payment
cycle, payment for such tasks and/or subtasks shall occur upon receipt
of the invoice in the following month.
5. Requests for revisions in the Work/Payment Schedule and the
Statement of Work shall be submitted in writing and promptly reviewed
by the parties. Determinations on such requests will be rendered by the
TRDA Board within thirty (30) calendar days of receipt. Unapproved
revisions will not be reimbursed by TRDA.
G. ROYALTY PAYMENTS.
1. DynEco shall pay, or cause to be paid, to TRDA royalty payments
equal to five percent (5%) of the Gross Sales in any calendar year.
Such payments shall be made quarterly beginning with the calendar
quarter after the quarter during which Gross Receipts are first
received by DynEco.
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Unless this Agreement is terminated pursuant to Section O, below, in
which case any amounts owed shall be immediately due and payable,
royalty payments shall continue until an amount equal to three (3)
times the total amount of the TRDA funding has been received by TRDA
from DynEco. At its sole option, DynEco may make advance payments or
payments in excess of those required hereunder, and such payments shall
be credited against the total amount due.
2. Notwithstanding anything to the contrary herein, DynEco may, in its
sole discretion, and at any time during the term of this Agreement, pay
an amount to TRDA equal to three (3) times the total amount of the TRDA
funding received by DynEco as of that date (less any unexpended funds
returned to TRDA), and in doing so, DynEco is thereafter relieved of
any further obligations under this Agreement.
H. EVALUATION AND REPORTING REQUIREMENTS. The following reports, documents and
demonstrations are required for presentation and delivery to TRDA:
1. Bi-Monthly Reports. DynEco shall submit a copy of a written report
on the status of the activities that are being conducted pursuant to
this Agreement. The reports will be submitted through the end of the
agreement and will address, but not be limited to the following:
(a) accomplishments relative to milestones and schedules
(b) financial status
(i) budget summary for the project period covered by the
report
(ii) budget summary for the project overall to date
(iii) explanation for any requested budgetary changes
(iv) job cost detail report reflecting costs incurred for
which all funds with respect to the Project were used
(c) activities of each contractor, subcontractor or other
participants
(d) detail of any slippage or any difficulties encountered
(e) measures by DynEco to address items in (d) above
(f) explanation for any requested change in focus or timeline for
the Project
(g) material changes in project personnel
(h) any other material changes that could affect the outcome or
commercial potential of the Project
(i) anticipated date for first use or sale of the Services
(j) savings as a result of incorporation of the Product into
DynEco production processes, if applicable
(k) results of any demonstrations and testing
(l) the intellectual property rights maintained by DynEco in the
Products
(m) patent and copyright indemnities provided by DynEco to any
person or entity in connection with the Project
2. Tasks/Deliverables Report. DynEco shall submit a Tasks/Deliverables
Report, consistent with Exhibit B, the Work/Payment Schedule and
Statement of Work, with each reimbursement request. The
Tasks/Deliverables Report shall include all the designated designs,
plans, results, etc., and provide specific detail describing and
verifying the achievement of the respective project tasks. The invoice
accompanying the Tasks/Deliverables Report shall be for an amount no
greater than specified on the Work/Payment Plan.
3. Final Reports. Ten (10) copies of a final Project report must be
submitted to TRDA not later than thirty (30) calendar days after
completion of the work specified in Exhibit B. A xxxxx
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invoice/fiscal report must be submitted not later than sixty (60)
calendar days after completion of the work specified hereunder. The
final project report will include a narrative that details and
evaluates the accomplishments and impacts of the Project, and the final
Fiscal report will address each of the items referenced in (a) through
(k) above.
4. Demonstrations. Upon request, DynEco shall demonstrate the
capabilities of its UniVane compressor to TRDA and the Department.
5. Annual Impact Surveys. DynEco will complete and return to TRDA
Economic Impact Surveys on an annual basis for ten (10) years after the
First Use, or until such later date as DynEco has made full payment as
defined in paragraph G, ROYALTY PAYMENTS.
6. Financial Statements. DynEco shall provide to TRDA a project
financial report on its UniVane compressor operations, including
balance sheet and income (P&L) statement. This report shall be
submitted within ninety (90) days from the end of each fiscal year, or
portions thereof, on an annual basis for up to ten (10) years, or until
such time as DynEco has made full payment as defined in paragraph G,
ROYALTY PAYMENTS. Project Financial Report is subject to third party
audit as defined hereafter in paragraph J, ROYALTY REPORTS/AUDIT.
I. PROJECT RECORDS.
1. DynEco shall retain all financial records, supporting documents,
statistical records and any other documents relating to this Agreement
for a period of not less than three (3) years from the date of
expiration of this Agreement, or final payment to TRDA hereunder,
whichever is later. In the event of any litigation, claim, or audit
involving such records and documents, this period shall be extended
until such matters have been resolved.
2. DynEco understands and agrees that except for reports containing
trade secrets as defined by Chapter 812.081 of the Florida Statutes,
any records relating to this Agreement, whether in the possession of
TRDA, the Department or DynEco, may be a "public record" as defined in
Chapter 119, Florida Statutes, and that such records may have to be
available for public inspection and copying at reasonable times and
under reasonable circumstances. Any requests for disclosure will be
evaluated by legal counsel prior to such disclosure to insure that TRDA
is in full compliance with applicable state law.
J. ROYALTY REPORTS/AUDIT
1. Beginning as of the second calendar quarter of 2005, DynEco shall
make written quarterly reports to TRDA within thirty (30) days after
the first day of each of the months of January, April, July and October
during the life of this Agreement. Such reports shall state in
sufficient detail the usage and other components of Gross Revenues
during the preceding three (3) calendar months and upon which royalties
are payable as well as the detail requested in Section H.1 (d), (g),
(h), and (j).
2. Concurrent with the making of each such report, DynEco shall pay
TRDA royalties at the rates specified.
3. DynEco shall keep full, clear and accurate books and records with
respect to the Sales of Products subject to royalties hereunder. Such
books and records shall be kept at DynEco's Principal Florida Office
and made in a manner such that the royalty reports made pursuant to
this section can be verified. TRDA, or authorized representatives of
TRDA, shall have the right to both examine and audit such records upon
reasonable notice during normal business hours, but not more than twice
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per year. In case of any dispute as to the sufficiency or accuracy of
such records, TRDA may have an independent auditor examine and certify
such records. Such inspections shall be at the expense of TRDA, unless
a variation or error to the prejudice of TRDA exceeding three percent
(3%) is discovered. In such event, DynEco shall be responsible for all
costs relating to such audit. DynEco will promptly pay to TRDA the full
amount of any underpayment together with interest thereon at the
current prime interest rate as reported in the Wall Street Journal the
week underpayments are reported.
K. INSURANCE. DynEco shall procure and thereafter maintain the following types
of insurance in not less than the stated minimum coverage with respect to its
performance under this Agreement:
1. Worker's Compensation Insurance in accordance with statutory
requirements for all States in which the Project is performed.
2. Employer Liability Insurance with a limit of not less than $ 500,000
in the aggregate.
3. Comprehensive General Liability Insurance providing Operations
Liability, Owners and Contractual Protective Liability and Contractual
Liability (specifically, but not by way of limitation, covering
liability assumed under the section below titled Indemnification).
Coverage is to include the hazards of explosion, collapse and
underground damage. The policy shall provide a combined single limit of
liability for personal injury (including death) and property damage for
not less than $1,000,000 for each occurrence.
L. INDEMNIFICATION. DynEco, at its sole expense, shall indemnify and hold the
State of Florida, TRDA, the Department, associated agencies of the State of
Florida, and their directors, officers, employees, agents, affiliates, designees
and assignees, harmless from any loss, damage or liability or expense arising as
the result of the performance of this Agreement by DynEco or its subcontractors,
or in the course of the development, testing and use of the UniVane compressor,
or with respect to its compliance with all laws and regulations, including those
specifically included herein. DynEco, at its sole expense, shall defend any suit
or dispose of any claim or other proceedings brought against said indemnities on
account of such loss, damage, liability, or expense and shall pay all costs and
expenses, including attorneys' fees, and satisfy all judgments which may be
incurred by or rendered against said indemnities.
M. INDEPENDENT CONTRACTOR. Notwithstanding anything to the contrary in this
Agreement, or any other communications between the parties, DynEco shall be
deemed an independent contractor and not an agent, employee, joint venturer or
partner of TRDA, the Department or the State of Florida. DynEco is not
authorized to represent itself as an agent or employee of TRDA, the Department,
or the State of Florida before any person or entity and TRDA shall not be bound
by any acts or conduct of DynEco.
N. EXCUSABLE DELAY. Acts of God, or of the public enemy, acts of the Government
in its sovereign capacity, fires, floods, strikes, epidemics, quarantine
restrictions, or freight which cause failure to perform hereunder and, in every
case, are beyond the reasonable control and without the fault or negligence of
DynEco, shall constitute an excusable delay, if written notice thereof is given
to TRDA within ten (10) days after such event shall have occurred. In the event
of delay resulting from any of the above causes, only the applicable delivery
requirements will be extended accordingly.
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O. TERM AND TERMINATION.
1. This Agreement shall be effective as of the date first specified
above and shall remain in force for a period of ten (10) years, unless
otherwise terminated as provided herein or renegotiated, or agreed upon
by the mutual consent of TRDA and DynEco or its successor company.
2. This Agreement may be terminated as follows:
(a) By TRDA for cause immediately upon written notice to
DynEco. Cause shall include, without limitation, misuse of
funds, fraud, DynEco's abandonment of the Project, a material
change in the scope or focus of the Project, refusal by DynEco
to permit public access to any document or other material
subject to disclosure under Chapter 119 of the Florida
Statutes, as amended, or the transfer or attempted transfer by
DynEco to a third party of its rights and obligations in
connection with the Project.
(b) By TRDA immediately upon written notice in the event
DynEco becomes insolvent or is the subject of proceedings
under any law relating to bankruptcy or the relief of debtors
or admits its inability to pay its debts as they become due.
(c) By TRDA or DynEco upon ten (10) days written notice in the
event of any suspension or termination of funds by the
Department or any state or federal agency providing financial
assistance to the Project. Should TRDA disburse to DynEco an
amount less than $150,000 as a result of receiving
insufficient funds from the Department, this agreement shall
immediately terminate and the DynEco obligation to TRDA shall
be limited to the return of all unexpended funds.
(d) By TRDA upon thirty (30) days written notice in the event
a default by DynEco of any of the provisions of this
Agreement, provided that DynEco shall have thirty (30) days in
which to cure any such default.
(e) By mutual written consent of the parties.
3. If terminated by TRDA under (a), (b), or (d) above, notwithstanding
any provisions herein to the contrary, TRDA shall be entitled to
recover in royalty payments three (3) times the amount of funding
received by DynEco from TRDA which shall become due and payable
immediately upon receipt of written notice of termination.
4. If terminated by TRDA under (c) or by the parties pursuant to (e)
above, DynEco shall pay to TRDA only that amount of the funds actually
provided by TRDA hereunder, payable pursuant to Section G, Royalty
Payments, above.
5. In the event of any termination of this Agreement, all unexpended
funds of TRDA shall be returned to TRDA and all property costing in
excess of five hundred dollars ($500.00) and purchased exclusively with
TRDA funds shall become the property of TRDA.
P. CONTINGENT FEES PROHIBITED. DynEco represents and warrants that no person,
selling agency, or other organization has been employed or retained to solicit
or secure this Agreement upon a contract or understanding for a commission,
percentage, brokerage, or contingent fee. In the event of a violation of this
section, TRDA may, in its sole discretion, terminate the Agreement pursuant to
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the Termination provision, below, or deduct the full amount of any such
commission, percentage, brokerage, or contingent fee from the funds it provides
hereunder.
Q. LOBBYING AND POLITICAL ACTIVITY PROHIBITED.
1. DynEco represents and agrees that no federal, State of Florida, or
TRDA funds have been paid or will be paid by or on behalf of DynEco to
any person for influencing or attempting to influence any officer or
employee of any federal agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with the awarding of any federal contract, the making of any
federal grant, the making of any federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal,
amendment or modification of any federal contract, grant, loan or
cooperative agreement.
2. If any funds other than federally appropriated funds have been paid
by DynEco to any person for influencing or attempting to influence an
officer or employee of any federal agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Agreement, DynEco shall complete and submit
Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance
with its instructions. DynEco shall require that the language of this
section be included in the award documents for all sub-awards at all
tiers (including subcontracts, subgrants, and contracts under grants,
loans and cooperative agreements) and that all recipients shall certify
and disclose accordingly.
3. No funds received pursuant to this Agreement may be expended for
lobbying the legislature or any state agency.
R. COMPLIANCE WITH THE LAW. DynEco shall comply with all applicable federal,
state and local laws and regulations, including all United States export laws
and regulations and the following:
1. Discrimination in Employment. DynEco shall comply with all federal
and state employment laws and regulations and, with respect to the
operation of this Agreement, shall assure TRDA that no person shall be
excluded from participation in, be denied the benefits of, or be
otherwise subjected to discrimination on the grounds of race, color,
national origin, sex, or handicap, under any program or activity in
which TRDA, or the Department, provides funds received from the federal
or state government.
2. Clean Air and Water Act. DynEco shall comply with all applicable
standards, orders, or requirements issued pursuant to the following:
Section 306 of the Clean Air Act, Section 508 of the Clean Water Act,
and Environmental Protection Agency Regulations.
S. RELIGIOUS ACTIVITY PROHIBITED. DynEco shall use its best efforts to prohibit
religious activity, including religious instruction, missionizing or
proselytizing at the project site or sites during the performance of this
Agreement.
T. PUBLICATIONS AND PUBLICITY. Any publications which result from the Project,
including without limitation, follow-up studies, research papers, articles,
patent applications, or student theses or dissertations, shall be properly
acknowledged and reported to TRDA in a timely manner. DynEco shall obtain the
prior written approval of TRDA concerning the content and timing of news
releases, articles, brochures, advertisements, speeches and other information
releases concerning the performance of the Agreement. Notwithstanding the above,
all information that is disseminated as a result of this Agreement shall contain
the following statement which acknowledges support from the Department and TRDA:
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"Funding for this project was provided in part by the Department of Community
Affairs/Florida Energy Office and the Technological Research and Developmental
Authority."
U. NOTICES. Any notice(s) required or permitted to be given or made in this
Agreement shall be in writing. Such notice(s) shall be deemed to be duly given
or made when it shall have been delivered by hand or registered mail to the
party to which it is required to be given or made at such party's address
specified below:
If for DynEco: DynEco Corporation.
000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
If for TRDA: TRDA
0000 Xxxxx Xxxxxxxxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxx
V. LIMITATION OF LIABILITY. In no event shall TRDA be liable to DynEco for any
damages whatever resulting from (a) death or bodily injury, or (b) any special,
exemplary, consequential, or incidental damages, including but not limited to
lost profits, whether arising out of contract, tort, strict liability, or
otherwise, resulting from or relating to this Agreement. This section will apply
notwithstanding any other provisions of this Agreement.
W. GENERAL.
1. Governing Law/Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. The
courts of Brevard County, Florida, shall be the venue in the event of
any action or proceeding with respect to the operation or construction
of this Agreement.
2. Attorney's Fees and Costs. In any dispute arising out of or related
to this Agreement, the prevailing party in such dispute shall be
entitled, as part of the final award, to recover its reasonable
attorney's fees and costs, including costs of experts.
3. Conformance with Standards. Where any code, ordinance, or
governmental regulation requires a material or item to conform to a
particular standard, DynEco shall, at the request of TRDA, deliver to
TRDA a certificate stating that the material or item furnished conforms
to the standard prescribed.
4. Successors and Assigns. This Agreement shall be binding on the
parties hereto, and their respective subsidiaries, successors and
assigns. DynEco may not delegate any of its duties or assign any of its
rights without the prior written consent of TRDA, which consent shall
not unreasonably be withheld.
5. No Modification. This Agreement may not be modified or amended
except in a written document signed by authorized representatives of
both parties.
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6. Entire Agreement. The terms and conditions of this Agreement,
including all referenced exhibits, constitute the final and entire
agreement between the parties, and no prior or contemporaneous
representations, expressions or agreements, either written or oral,
shall vary or supplement the terms hereof. The terms of this Agreement
shall not be supplemented or contradicted by any course of dealing,
usage of trade or course of performance under this or other contracts
or agreements.
EXHIBITS
EXHIBIT A DYNECO PROPOSAL
EXHIBIT B WORK/PAYMENT SCHEDULE AND STATEMENT OF WORK
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first written above.
TECHNOLOGICAL RESEARCH AND DYNECO CORPORATION.
DEVELOPMENT AUTHORITY
By: By:
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Xx. Xxxxx Xxxxxx, Executive Director Xx. Xxxxxx X. Xxxxxxx, CEO
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NAME NAME
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DATE DATE
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