All together, what this comparison highlights is that RA did not deal in good faith with Mediaworld in its negotiations. It demanded a contract so restrictive and potentially costly to Mediaworld team members that that it expected Mediaworld to refuse to sign it. That is eventually what happened.
(The paragraph references listed below are the requirements of the Mediaworld contract draft unless otherwise specified.)
Para. 3.1(c): This paragraph may be one of the most important in the Mediaworld draft. It has no counterpart in the StoneTurn contract. Specifically, it calls for Mediaworld's team members to each sign a confidentiality agreement as follows:
The Consultant shall ensure that all Consultant Team Members, including any replacements or additions to the Consultant Team Members, who perform any Services under this Agreement adhere to all of the provisions of this Agreement as if such provisions were expressly binding upon each such Consultant Team Member, individually, and shall require that all Consultant Team Members, including any replacements or additions consistent with Section 3 Paragraph 3.4, infra, execute the Confidentiality Agreement set forth as Schedule B attached hereto and return the executed Confidentiality Agreement prior to the initiation of any work under this Agreement, which Confidentiality Agreement shall become a part of this Agreement.There is no Confidentiality Agreement requirement at all in the StoneTurn Group contract. We have included Schedule B from the Mediaworld contract to show what RA expected the Mediaworld team members to sign.
Para. 4.2: This paragraph admonishes Mediaworld not to share any Confidential Information with third parties. Again, no such paragraph exists in the StoneTurn Group contract.
Certain Acknowledgements and Agreements. Consultant and Consultant Team Members shall not disclose to any third party any Confidential Information of the Association obtained by Consultant in the course of performing the consulting services. The Consultant may, as appropriate and necessary, use Confidential Information in their review, research and in preparation of their draft and final report to the Association. Neither Consultant nor Consultant Team Members shall use to his own advantage, or to the advantage of any other person or entity, any Confidential Information gained from the files or business or employees of the Association.Para. 5: This paragraph addresses ownership of the Mediaworld product, stating that it belongs to RA. In part, it addresses a concern raised in earlier drafts of the Mediaworld contract in which RA claimed to own the "work products" (notes, e-mails, etc.) developed in the course of the contract. (For more on this dispute, see the Reston 20/20 notes on the December 7 special meeting of the RA Board to address contract issues between Mediaworld and RA.) No such claim is made in any shape or form in the StoneTurn Group contract.
Para 10.11: This paragraph requires Mediaworld to pay liquidated damages of $2,000 per breach or threatened breach of various terms and conditions in the contract as determined by RA. The analogous paragraph in the StoneTurn Group contract (para. 9.11) calls for injunctive relief as determined by a court. Here are the two paragraphs side-by-side:
5. OWNERSHIP OF IDEAS, COPYRIGHTS AND PATENTS5.1 Property of the Association. All deliverables, including the draft and final reports of the Consultant are the sole and exclusive property of the Association. The Consultant hereby assigns to the Association all of the Consultant’s right, title and interest in and to all of the Deliverables, including the draft and final report. The Consultant further represents that, to the best of the Consultant’s knowledge and belief, none of the Deliverables shall violate or infringe upon any right, patent, copyright, trademark or right of privacy, or constitute libel or slander against or violate any other rights of any person, firm or corporation, and that the Consultant shall use the Consultant’s best efforts to prevent any such violation.5.2 Property of the Consultant and Consultant Team Members: All work products, records, notes, e-mails and documents prepared or created by the Consultant and Consultant Team shall be and remain the property of the Consultant and subject to the confidentiality provisions contained in Section 4.
10.11 Liquidated Damages. The Consultant hereby expressly acknowledges that any breach or threatened breach of any of the terms and/or conditions set forth in Section 4 or 5 of this Agreement shall result in substantial, continuing and irreparable injury to the Association. Therefore, in addition to any other remedy that may be available to the Association, in the event of a breach of Section 4 or 5 of this Agreement by either Consultant or Consultant’s Team, Consultant shall pay Liquidated Damages to the Association in the amount of Two Thousand Dollars per breach. Such Liquidated Damages shall be deemed to be a genuine pre-estimate of the foreseeable damages incurred by the Association due to breach and shall be Association’s sole recourse for late breach of Sections 4 and 5 of the Agreement.
9.11 Injunctive Relief. The Consultant hereby expressly acknowledges that any breach or threatened breach of any of the terms and/or conditions set forth in Section 4 or 5 of this Agreement shall result in substantial, continuing and irreparable injury to the Association. Therefore, in addition to any other remedy that may be available to the Association, the Association shall be entitled to injunctive or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of Section 4 or 5 of this Agreement. The period during which the covenants contained in Section 4 shall apply shall be extended by any periods during which the Consultant is found by a court to have been in violation of such covenants.Statement of Work, Para. 1: The Mediaworld draft contract limits its access to people for interviews, including a specified list of individuals in Schedule C of the draft contract. Given the terms of the contract, it is likely Mediaworld would have had to negotiate an amendment to the contract to interview anyone else or be found in violation of its terms. In contrast, StoneTurn Group is not constrained in any way, including meeting members of the community (such as Reston 20/20). Again, we present the two contrasting paragraphs for your information.
The Consultant will conduct interviews with certain Association staff, Board members, committee members, and the contractors substantially involved in the Tetra/Lake House Project as designated and set forth in Schedule C to this Agreement.
The Consultant will conduct interviews with all Association staff, Board members,Schedule B: This is the Confidentiality Agreement that each member of the Mediaworld team would have been required to sign, holding them "jointly and severally" responsible for any confidentiality breaches as determined by RA. There is no such schedule and no similar language in the StoneTurn Group contract.
committee members, and other third parties substantially involved in the Tetra/Lake House Project as well any other individuals (including members of the Reston community), as the Consultant deems necessary and appropriate.
SCHEDULE BCONFIDENTIALITY AGREEMENTThe undersigned, ______________________________an individual, (Undersigned Individual) as a material inducement for Mediaworld Ventures, LLC (the “Consultant”), to submit the undersigned’s name and resume as a Consultant Team Member pursuant to the Consulting Agreement (the “Consulting Agreement”), between RESTON ASSOCIATION (“Association”) and the Consultant, does acknowledging said Consulting Agreement and agrees to be specifically bound by and specifically agrees to comply with Sections 4 and 5 of the Consulting Agreement, which Sections are attached hereto as Exhibit A and incorporated by reference herein.The undersigned individual acknowledges and agrees as follows: (a) that the undersigned is being granted the privilege and being permitted to perform services for Consultant and will be working on a contract project for which Consultant has been hired by the Association; and (b) that while the Consultant and the undersigned, as a Consultant Team Member, performs services under the Agreement, the Association shall furnish, disclose or make available to the Consultant and the undersigned Confidential Information (as such term is defined in the Section 4 of the Agreement) related to the business of the Association; and (c) the undersigned will receive the benefit of providing valuable assistance to the Consultant by providing his or her knowledge and expertise to the Association in evaluating the operations of the Association and that the opportunity is adequate and sufficient consideration for the undersigned’s agreement to join in and be bound with the Consultant to the same confidentiality provisions as the Consultant in Section 4 of the Agreement, which undersigned hereby acknowledges, and agrees to be bound by; and (d) the undersigned has consulted with, or has had the opportunity to consult with, independent, legal counsel regarding the undersigned’s rights and obligations under the Agreement and this Confidentiality Agreement and that the undersigned fully understands the Confidentiality Agreement’s intent, purpose and terms..The undersigned individual during the term of the Consulting Agreement and this Confidentiality Agreement, and at all times thereafter, agrees that he or she will not disclose to others outside of the Board of Directors of the Reston Association or the Tetra/Lake House Committee, use for his or her own benefit, or otherwise appropriate or copy any Confidential information, except as otherwise provided in Section 4 and 5 of the Consulting Agreement. In addition, the Undersigned Individual further agrees to retain in the strictest confidence any Confidential Information he or she learns in performing work for the Consultant unless and until such information has been made generally available other than by breach of the Agreement.IN WITNESS WHEREOF, the parties intending to be legally bound, have set their signature and seal and executed this Confidentiality Agreement as of December ___, 2016._______________________________(Seal)Undersigned Individual_______________________________Mediaworld, Ventures, LLC_______________________________RESTON ASSOCIATION
Schedule C: This schedule identifies the people Mediaworld may interview in fulfilling its contract. As noted above, StoneTurn Group is unconstrained in whom it may interview in carrying out the contract.
List of Persons Identified By Consultant To Be Interviewed1) Cate Fulkerson;2) Larry Butler;3) Robert Wood;4) Other Reston Association Staff, as requested;5) Current Board of Directors members;6) Ken Knueven;7) David Harris;8) Companies which conducted the two (2) Appraisals on the Lake House Property;9) General Contractor which performed the renovations of the Lake House Property;10) Land Use Counsel for the Association;11) General Counsel for the Association.12) The Design Firm utilized to develop plans for the renovations of the Lake House Property.The Association will use its best efforts to make available the Board members and current staff in the list above, pursuant to an agreed upon schedule by which the interviews will be conducted. The Association will assist but will not be responsible for whether or not interviews will or can be conducted with former Board members or former Association employees. The Association will also provide space for the interviews to be conducted, presumably, unless otherwise specified at the time, at the Association’s offices. Consultant will use it best efforts to conduct any interviews, especially of Bpard members and employees of the Association at the Association’s offices. Consultant will use its best efforts to coordinate the interviews in such a way as to minimize the impact of these interviews on the Association’s Board members and staff, including but not limited to insuring that the Consultant and Consultant’s Team Members, as necessary and required, are aware of the schedule of interviews and coordinate their schedules as necessary to be there for the designated dates and times of interviews to avoid the necessity of duplication of efforts.