Future of Cities Advisory Board Membership Agreement
WHEREAS, FOC is engaged in finding real estate and venture opportunities to invest in, develop, consult and participate in various projects in the United States & internationally, focused on regenerative placemaking (individually referred to herein as a “Project,” and collectively as the “Projects”);
WHEREAS, FOC has formed an Advisory Board to assist it with evaluation of its research and development and business activities;
WHEREAS, FOC wishes to co-create a platform with a group of esteemed private and public sector systems innovators, scholars and leaders in their respective fields, to support FOC’s altruistic objectives to positively impact 1 billion people through accelerating the propagation of new standards for urban regeneration, to promote sustainable development, and achieve the United Nations Sustainable Development Goals by 2030.
WHEREAS, FOC wishes to build a multidimensional movement with diverse expertise by appointing Advisor as a member of FOC’s Advisory Board, to adhere to the agreement set forth below, and Advisor wishes to lead in the movement to transform the real-estate industry.
NOW, THEREFORE, in consideration of the promises contained in this Agreement, the parties agree as follows:
1. Advisory Board Member Obligations. FOC hereby invites Advisor to serve on its Advisory Board. Advisor shall provide general advisement and insight to FOC as generally described below (the “Advisory”), as a member of its Advisory Board, to include:
- Participating in conference calls with the FOC’s executives and/or senior staff on an “on-call” basis during normal business hours in EST;
- Attending (in person or telephonically) one (1) meeting each quarter with the FOC’s executives and/or senior staff (each meeting to last approximately two (2) to four (4) hours; date, time and location to be mutually agreed upon by the parties);
- Attending and participating an annual Advisory Board retreat in Florida (the meeting, which will be planned with not less than thirty (30) days’ advance notice, to last approximately three (3) days including travel; date, time and other details to be mutually agreed upon by the parties);
- Responding, within forty-eight (48) hours, to phone calls or emails sent by FOC’s executives or senior staff;
- Assisting in identifying and evaluating potential Projects;
- Be willing to lend, and apply, Advisor’s specific expertise while maintaining all legal, ethical and professional obligations;
- Include FOC in collaborations, events, marketing and/or discussions which result from their membership on the Board, and;
- Adhere to the Code of Ethics for Board members, as set forth on Exhibit A herein, at all times while the Advisor remains a member of the FOC Board.
2. “Project” Defined. For the purpose of this Agreement, “Project” (whether used in the singular or plural) shall be defined as any matter that involves the direct or indirect ownership (through separate affiliated or unaffiliated entities) of real estate projects, operating businesses, consulting arrangements, and/or joint venture agreements (whether potential or actual), which are focused on regenerative placemaking.
3. Consulting Obligations. As a member of the FOC Advisory Board, Advisor may be invited to serve as a consultant and to be deployed by FOC to customers of the FOC Advisory Consulting Firm. Customers can include, but are not limited to, multinational corporations, private equity firms and government entities. Advisors may accept/decline such opportunities as they arise. Payment for any consulting services rendered by Advisor will be determined pursuant to separate agreement of the Parties.
4. Consulting Service Fees and Expenses.
- Hourly Rate. In consideration for entering into this Agreement and the Services rendered on the FOC Advisory Board, FOC shall pay Advisor an agreed-upon hourly rate for specific Projects, (which will be determined pursuant to separate agreement of the Parties), that Advisor is specifically qualified for and the Parties are mutually interested in having Advisor involved in. FOC intends to be involved with many projects, and FOC does not guarantee that the Advisor will participate in all Projects, as the scope and Advisor’s role may be different for each Project.
- Profit Sharing: At the discretion of FOC, Advisor may be eligible for participation in third party promoted-interest in relation to project-based and value-added services rendered to FOC, including procuring opportunities, brokering strategic partnerships, introducing joint venture partners, local coalition building, and generally enhancing the value of the Project. These arrangements will be described in and governed by separate binding agreements between FOC and said Advisor on an individual investment basis. Neither this Agreement, nor Advisor’s membership in the Board of Advisors, constitutes any promise or commitment by FOC regarding any automatic profit sharing, economic benefit or other benefits regarding any Projects.
- Expense Reimbursement. FOC shall reimburse Advisor for all reasonable out-of-pocket expenses actually incurred by Advisor in performance of the services specifically requested by FOC and actually performed by Advisor pursuant to the terms of this Agreement; provided, however, that the expenses shall be first approved, in writing, by FOC. Advisor shall present to FOC supporting documentation and a detailed explanation of such expenses.
5. Term. This Agreement has a two (2) year term and shall continue until the second anniversary of the effective date. Thereafter, this Agreement may be renewed for an unlimited number of successive two (2) year terms upon mutual consent of the parties. It is FOC’s duty to evaluate the contributions of the Advisor prior to the renewal of this Agreement. Notwithstanding this term, this Agreement is voluntarily and is at-will. That is, either party is free to terminate the Agreement at will, at any time, with or without cause. Nothing contained in any FOC documents shall in any way modify the at-will nature of this Agreement, and the at-will policy cannot be modified in any way by oral or written representation made by anyone employed by FOC. In the event of termination of this Agreement by the FOC, Advisor shall not be entitled to any damages and shall not be entitled to any compensation other than that earned for services actually rendered and/or expenses actually incurred, prior to notification by FOC that this Agreement has been terminated.
6. Rights upon Termination. The Advisor shall be entitled to receive compensation for services rendered and/or expenses incurred, as described in Sec. 4.c. above, through and including the date of termination of this Agreement, if the Advisor’s service with FOC is terminated for any reason. The Advisor will only be entitled to compensation for services actually rendered, at the agreed-upon rate.
7. Advisor is an Independent Contractor. It is expressly understood and agreed that in the performance of services under this Agreement, the Advisor shall at all times act as an independent contractor with respect to FOC, not as an agent or employee of FOC. Further, it is expressly understood and agreed by the Parties that nothing contained in this Agreement shall be construed to create a joint venture, partnership, association, or other affiliation or like relationship between the parties, it being specifically agreed that their relationship is and shall remain that of independent parties to a contractual relationship as set forth in this Agreement. The Advisor shall not have any power or authority to bind FOC and/or any of its affiliates, and the Advisor shall not be deemed to be the agent of FOC or any of its affiliates and shall not act for or on behalf of any of them, except as may be expressly authorized in writing by an executive officer of FOC. Accordingly, FOC shall neither have nor exercise any specific control or direction over the particular methods by which the Advisor shall perform the services required by this Agreement. Advisor agrees and acknowledges that Advisor shall exercise considerable discretion and authority over the performance of services required by this Agreement. In no event shall either party be liable for the debts or obligations of the other of them. The Advisor shall not have any claim under this Agreement or otherwise against FOC for vacation pay, paid sick leave, emergency leave (including but not limited to any leave benefits provided under the Families First Coronavirus Response Act), retirement benefits, social security, workers’ compensation, health, disability, or unemployment insurance benefits or Advisor benefits of any kind. The Advisor understands and agrees that (i) the Advisor will not be treated as FOC’s employee for federal tax purposes; (ii) to the extent that payment is made to Advisor, FOC will not withhold on behalf of the Advisor any sums for income tax, unemployment insurance, social security, or any other withholding pursuant to any law or requirement of any governmental body, (iii) all of such payments, withholdings, and benefits, if any, are the sole responsibility of the Advisor, and (iv) the Advisor will indemnify and hold FOC harmless from any and all loss or liability arising from its failure to make such payments, withholding, and benefits, if any. This is not an exclusive agreement. Advisor is free to contract with other parties for similar services.
8. Waiver of Liability. Advisor assumes all risk connected with the services performed pursuant to this Agreement. Advisor shall be fully and solely responsible for providing, at his/her own cost and expense, any and all equipment that is required in the performance of duties hereunder.
9. Indemnification. Advisor expressly agrees to protect, defend, indemnify, and hold harmless FOC and its officials, officers, members, agents, representatives and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorney fees, for injury to or death of any person, and for injury to any property arising out of or in any way connected with the Advisor’s performance or non-performance of any provision of this Agreement required of Advisor, or on behalf of Advisor, or resulting from any errors, omissions, misconduct, negligent acts of Advisor or violation by Advisor of any statute, law, ordinance, regulation on account of the performance or non-performance of any provision of this Agreement. Advisor agrees to indemnify and hold harmless FOC against any loss, claim, liability, or cost of any kind whatsoever, arising from Contractor’s acts, omissions, or failures. Advisor further releases FOC, and its owners, officers, agents, employees, servants, representatives, and volunteers from any and all suits, liability, claims or judgment of any kind, including attorneys’ fees, and including without limitation, any claims by third parties, in any way concerning, relating to, arising out of, or in any manner connected with, any services rendered or lack thereof, for injuries or illnesses during participation in any activities contemplated by this Agreement.
10. COVID-19 Waiver. Advisor agrees that he/she is personally responsible for his/her safety and actions while performing services pursuant to this Agreement. Advisor agrees to comply with all FOC policies and rules, including but not limited to all policies, guidelines, signage, and instructions. Because FOC may have in-person meetings and events, Advisor recognizes that he/she is at higher risk of contracting COVID-19, a coronavirus, and/or other viral illness. With full awareness and appreciation of the risks involved, the Advisor, for him/herself and on behalf of his/her family, spouse, estate, heirs, executors, administrators, assigns, and personal representatives, expressly agrees to forever release, waive, discharge, and covenants not to sue FOC, its owners, officers, agents, servants, independent contractors, affiliates, employees, successors, and assigns (collectively referred to as “Released Parties”) from any and all liability, claims, demands, actions, and causes of action whatsoever, directly or indirectly arising out of or related to any loss, damage, or injury, including death, that may be sustained by Advisor related to COVID-19, whether caused by the negligence of the Released Parties, any third-party located on FOC property, or otherwise, while participating in any activity while in, on, or around FOC and/or while using any FOC facilities, tools, equipment, or materials.
11. Proprietary Rights. FOC and its affiliates have conceived, developed and owned, and continue to conceive and develop, certain property rights and information, including but not limited to its business plans and objectives, products, opportunities, investments, client and customer information, financial projections, marketing plans, marketing materials, logos, and designs, and technical data, inventions, processes, know-how, development tools and instructions, templates, and other trade secrets, intangible assets and industrial or proprietary property rights, which may or may not be related directly or indirectly to FOC’S business, and all documentation, media or other tangible embodiment of or relating to any of the foregoing are all proprietary rights of FOC (all of which are hereinafter referred to as the “Proprietary Information”). During the normal course of business, such Proprietary Information, methods and ideas will be discussed and presented to the Board, and it is incumbent upon the Advisor to protect and not share this information with other parties. FOC is developing a proprietary regenerative design process and Projects, which will be exclusive to FOC and its affiliates.
12. General Restrictions on Use. Advisor agrees to hold all Proprietary Information in confidence and not to, directly or indirectly, disclose, use, copy, publish, summarize, or remove from FOC’s premises any Proprietary Information (or remove from the premises any other property of FOC), except (i) during the advisory relationship, to the extent authorized and necessary to carry out Advisor’s responsibilities under this Agreement, and (ii) after termination of the advisory relationship, only as specifically authorized in writing by FOC. Notwithstanding the foregoing, such restrictions shall not apply to: (x) information which Advisor can show was rightfully in Advisor’s possession at the time of disclosure by FOC; (y) information which Advisor can show was received from a third party who lawfully developed the information independently of FOC or obtained such information from FOC under conditions which did not require that it be held in confidence; or (z) information which, at the time of disclosure, is generally available to the public.
13. Confidentiality. Advisor recognizes that the Projects are confidential in nature and disclosure of which could cause FOC substantial losses and damages that could not be readily calculated and for which no remedy at law may be adequate. Accordingly, Advisor covenants and agrees that he/she will not at any time, except as necessary to facilitate the performance of his/her obligations under this Agreement, or without the prior written consent of FOC, directly or indirectly, disclose Confidential Information or any secret related to Projects.
14. Confidential Information. Confidential Information shall include, without limitation, all communications, both oral and written and any documentation, including but not limited, to presentations, financial projections, term sheets, reports, plans and any other documents, provided by FOC to the Advisor, and information not previously disclosed by FOC to the public or to the industry with respect to the Potential Transaction. This Agreement will apply to all information and/or knowledge provided by FOC to the Advisory prior and subsequent to the date of this Agreement.
15. Intellectual Property. Nothing in this Agreement grants Advisor any rights in or to any of the Intellectual Property owned by FOC or its related or affiliated entities. As used herein, “Intellectual Property” means all proprietary rights in any jurisdiction throughout the world, including without limitation: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, divisionals, extensions, and reexaminations thereof; (b) all trademarks, service marks, trade dress, logos, slogans, trade names, and Internet domain names, together with all translations, adaptations and combinations thereof, all applications, registrations, and renewals in connection therewith, and all goodwill associated with any of the foregoing; (c) all copyrights and other works of authorship, and all applications, registrations, and renewals in connection therewith and all goodwill associated with any of the foregoing; (d) all trade secrets and other confidential business information (including research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals); (e) all URLs, including any and all domain names, social media handles, and web addresses, website; (f) all computer software (including source code, executable code, data, databases, and related documentation); (g) all proprietary and intellectual property rights in the foregoing; and (h) all copies and tangible embodiments of the foregoing (in whatever form or medium). Notwithstanding the foregoing, Advisors are permitted to reference their participation in the Advisory Board and cite to its work, if/when Advisor is involved in contributing to the creation of ideas developed as a member of the Board. FOC may grant non-exclusive license(s) to Advisor to use certain Intellectual Property, but only in accordance with Advisor’s services as set forth in this Agreement. Such license, if granted in advance in writing by FOC, does not constitute a grant of any ownership interest in FOC’s Intellectual Property.
16. Covenant Not To Compete. During the term of the Agreement and for a period of twelve (12) months thereafter, Advisor agrees that they will not, directly or indirectly, have an interest in, be affiliated with or assist others with, any business or venture, or solicit or work on any Projects which compete with FOC. The parties agree that this covenant not to compete is reasonable and necessary to protect FOC’s legitimate business interests, including, without limitation, the confidential and professional information and trade secrets of FOC, the substantial relationships between FOC and its customers and clients, and the goodwill of FOC.
17. Non-Solicitation. During the term of this Agreement and for a period of twenty-four (24) months thereafter, Advisor will not: (a) directly or indirectly, provide to any actual or prospective client, customer or company, with whom Advisor dealt during the term of this Agreement as a result of this Agreement, any products or services that compete with the products and services offered by FOC; (b) directly or indirectly, call upon or solicit, or make known to any other person or entity, either directly or indirectly, the names and addresses of, and other pertinent or confidential information relating to, any such clients, customers, or accounts, with whom Advisor dealt during the term of this Agreement and as a result of this Agreement; (c) solicit, hire, retain, engage, attempt to induce away, or assist or abet any other person or entity in soliciting, hiring, retaining, engaging, or otherwise attempting to induce away from their association with FOC, any then current officer, manager, director, independent contractor, consultant, agent, or other personnel or representative of FOC.
18. Marketing Usages. Advisor authorizes FOC to use his/her name, logo and/or trademark, as deemed appropriate by FOC, without notice to or consent, in connection with certain marketing and promotional materials that FOC may disseminate to the public. The promotional materials may include, but are not limited to, brochures, video tape, internet website, press releases, advertising in newspaper and/or other periodicals, and any other materials relating the fact that Advisor has a relationship with FOC, and such materials may be developed, disseminated and used without Advisor’s review. Nothing herein obligates FOC to use Advisor’s name, logo and/or trademark, in any promotional materials. Advisor shall not, and shall not permit any of its affiliates to, issue any press release or other public disclosure (other than any document filed with any governmental authority) using the name, logo or otherwise referring to FOC without at least ten (10) business days prior written notice to and the prior written consent of FOC (unless Advisor is required to do so under applicable law and then, only after consulting with FOC prior thereto).
19. Governing Law. This Agreement shall be governed in all respects by the laws of the State of Florida without regard to any otherwise applicable principles of conflicts of laws.
20. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Notwithstanding the foregoing, neither party may delegate its obligations under this Agreement to any other person without the express written consent of the other party, which may be withheld in such party’s sole discretion.
21. Entire Agreement; No Waiver. This Agreement constitutes the full and entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior written or oral agreements, understandings, representations and warranties made with respect to the subject matter hereof. No amendment, supplement or modification of this Agreement nor any waiver of any provision hereof or thereof shall be made except in writing executed by the party against whom enforcement is sought.
22. Severability. If any term, covenant or condition of this Agreement, or the application of such term, covenant or condition to any party or circumstance shall be found by a court of competent jurisdiction to be, to any extent, invalid or unenforceable, the remainder of this Agreement and the application of such term, covenant, or condition to parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant or condition shall be valid and enforced to the fullest extent permitted by law. Upon determination that any such term is invalid, illegal or unenforceable, the parties hereto shall amend this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner.
23. No Waiver. No waiver by any party hereto of any one or more defaults by the other party in the performance of any of the provisions of this Agreement shall operate or be construed as a waiver of any future default or defaults, whether of a like or different nature. No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
24. Execution and Counterparts. This Agreement may be executed in counterpart originals, each of which when taken together shall be deemed an original and shall constitute one and the same instrument. Signatures of the parties hereto on copies of this Agreement transmitted by facsimile machine or electronic mail shall be deemed originals for all purposes hereunder, and shall be binding upon the parties hereto.