CM-12-01-008EXECUTIVE SEARCH AGREEMENT
THIS EXECUTIVE SEARCH AGREEMENT ("Agreement") made effective as of this -
15th day of November, 2011 by and between Affion Public, LLC (hereinafter "FIRM"), with
offices at 20 North 2"d Street, Suite 200, Harrisburg, Pennsylvania 17101 and the City of Round
Rock, a home -rule municipal corporation (hereinafter "Client") with offices at 221 East Main
Street, Round Rock, Texas 78664.
WITNESSETH:
WHEREAS, FIRM is in the business of locating executive personnel candidates for
clients according to the client's specifications; and
WHEREAS, Client from time to time desires the services of one or more of such
candidates; and
WHEREAS, FIRM and Client wish to enter into an exclusive agreement pursuant to
which FIRM will qualify and arrange such candidates for Client;
NOW, THEREFORE, in consideration of the promises and of the mutual covenants set
forth herein, FIRM and Client, intending to be legally bound, agree as follows:
1. Services Provided Under Agreement. For any candidate who will be placed with
Client, FIRM has issued a proposal to Client, dated October 12, 2011 which defines the search
and evaluation strategy. In the event of a conflict between the terms of this Agreement and the
terms of the proposal, the terms of this Agreement shall control unless the proposal specifically
identifies the conflicting terms of this Agreement and explicitly states that such terms shall not
apply.
2. Billing and Payment. FIRM will bill Client through invoices issued to Client
beginning upon the execution of this Agreement. FIRM's fee shall be $20,000.00 for any
candidate placed by FIRM with Client. FIRM will invoice Client in three installments: a non-
refundable one-third upon signing this Agreement; one-third upon acceptance of the candidate
and the final third upon filling the position. FIRM's invoices are payable by Client upon receipt.
In the event that the candidate does not meet the Client's reasonable expectations within the first
twelve (12) months of hire, FIRM will use its best efforts to provide a replacement. In the event
Client hires its own candidate during the term of this Agreement, FIRM shall still be entitled to
its full fee. Further, if Client, within one (1) year of the date of hire for any position covered by
this Agreement, should hire a candidate presented by FIRM, FIRM shall be entitled to a fee
equal to the contract fee, which shall be due and payable to FIRM upon hiring. Client is
obligated to notify FIRM of any candidate presented to Client who is hired by Client within five
(5) business days of such hire.
3. Confidentiality. Each Party agrees that it will not disclose to any third party any
information learned by it which has been clearly marked "Confidential" by the other party,
except as such disclosure is necessary on an individual basis to candidates whom FIRM has
located for Client. Client may request the candidate to execute a separate agreement not to
disclose the Client's confidential information.
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4. Excise, Sales, Etc. Taxes on Services. There shall be added to any charges
payable by Client under this Agreement amounts equal to any and all applicable taxes, however
designated, levied or based on any charges payable under this Agreement or the services
rendered hereunder, including without limitation state and local privilege, excise, sales, and use
taxes and any taxes or amounts in lieu thereof paid or payable by FIRM, but excluding taxes
based upon the net income of FIRM. Client shall be billed by FIRM before or within a
reasonable time following payment of such taxes by FIRM, and such amounts shall be due and
payable by Client promptly following billing.
5. Exclusivity. Client agrees that, upon execution of this Agreement, it will not
advertise nor use a competing organization for executive search services during the term of this
Agreement.
6. Expenses. In addition to the fee referenced in Paragraph 2 of this Agreement,
Client agrees to reimburse FIRM for all expenses incurred by FIRM in its fulfillment of the
obligations placed upon it by this Agreement up to a not -to -exceed amount of $0. Those
expenses to be paid by FIRM shall include, but not be limited to, all travel and related costs of
FIRM's clients, consultants incurred in connection with this engagement, and advertisements;
expenses for contracted research, background checks, and other means of reviewing a candidate's
qualifications. For purposes of expense reimbursement, FIRM will bill Client on a monthly basis
for such expenses, and Client will reimburse FIRM within 30 days of receiving the invoice.
Candidate travel for the purpose of interviewing with the Client is not included in the expense.
7. Liability and Indemnification. FIRM shall indemnify, defend and hold harmless
Client, its directors, officers and employees from any and all claims, liabilities, causes of actions,
losses and expenses (collectively, "Claims") arising out of the gross negligence or willful
misconduct of FIRM, its directors, officers, employees, agents and representatives (collectively,
the "FIRM Parties"). Notwithstanding the foregoing, the FIRM shall not be liable for any
Claims arising out of or related to any act or omission of a candidate that was beyond its control.
FIRM shall not be liable for any special or consequential damages or lost profits, and in no event
shall FIRM's liability under this Section 7 be greater than the total amount paid to FIRM by
Client pursuant to this Agreement.
8. Termination of this Agreement. This Agreement shall continue in effect until
terminated by Client or FIRM at any time upon the terminating party giving no less than thirty
(30) days notice to the non -terminating party. In the event Client terminates the Agreement prior
to the acceptance of a candidate, FIRM shall still be entitled to its second one-third payment.
9. Assignment. Neither this Agreement nor any interest hereunder may be assigned
or otherwise transferred by either party to third parties other than affiliates of either party without
the prior written consent of the other party. This Agreement shall be binding upon and inure to
the benefit of the heirs, successors, assigns, and delegates of the parties hereto.
10. Notices. Any requirement to "notify", or for "notice" or "notification", in
connection with the subject matter of this Agreement shall be in writing and shall be effective
when delivered personally (including by Federal Express, Express Mail, or similar courier
service) to the party for whom intended, or five (5) days following deposit of the same into the
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United States mail, certified mail, return receipt requested, first class postage pre -paid, addressed
to such party at the address set forth below its signature to this Agreement. Either party may
designate a different address by notice to the other given in accordance with this Section.
11. Severability. If any term or provision of this Agreement shall be found to be
illegal or otherwise unenforceable, the same shall not invalidate the whole of this Agreement, but
such term or provision shall be deemed modified to the extent necessary by the adjudication to
render such term or provision enforceable, and the rights and obligations of the parties shall be
construed and enforced accordingly, preserving to the fullest permissible extent the intent and
agreements of the parties herein set forth.
12. Complete Agreement and Amendment. This Agreement and the proposal
presented to Client by FIRM contain the entire agreement between the parties hereto with respect
to the matters covered herein. Client acknowledges that it is entering into this Agreement solely
on the basis of the agreements and representations contained herein. This Agreement shall not
be modified in any way except in writing signed by both parties and stating expressly that it
constitutes a modification of this Agreement.
13. Governing Law and Disputes. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Texas. Venue shall lie exclusively in Williamson
County, Texas. All claims against either party to this Agreement shall be brought by the other
party no later than one (1) year after such claims have arisen (except for claims for non-payment
for services, which may be brought within two (2) years after the last date of services for which
payment is sought). IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on this day and year first above written.
FIRM:
Affion Public, LLC
By:
Title: CEO
CLIENT:
City of Round Rock, TX
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