CM-10-07-149CITY OF ROUND ROCK AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES FOR
CITY MANAGER EXECUTIVE SEARCH SERVICES
WITH AFFION PUBLIC, LLC
This Agreement (hereinafter referred to as the "Agreement") is made by and between the
CITY OF ROUND ROCK, TEXAS, a home -rule municipal corporation with offices located at
221 East Main Street, Round Rock, Texas 78664-5299 (hereinafter referred to as the "City"), and
AFFION PUBLIC, LLC, a Pennsylvania limited liability company with offices located at 20
North Second Street, Harrisburg, Pennsylvania 17101 (hereinafter referred to as the "Consultant"
or "Affion").
This Agreement shall recite the contractual terms whereby City engages Consultant to
perform, by way of illustration and not limitation, the following services: professional consulting
services in relation to City Manager Executive Search Services.
RECITALS:
WHEREAS, City has determined that there is a need for the delineated services; and
WHEREAS, City desires to contract for such professional services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date it has been signed by each party hereto, and
shall remain in full force and effect unless and until it expires by operation of the term indicated
herein, or is terminated or extended as provided herein.
The term of this Agreement shall be until full and satisfactory completion of the services
specified herein is achieved, but in no event later than one hundred eighty (180) days fi•om the
effective date of this Agreement.
At City's sole and unfettered option, this Agreement may be renewed for additional
twelve (12) month periods from the expiration date of the initial term, only upon the express
written agreement of both parties and only provided Consultant has performed each and every
contractual obligation specified in this Agreement.
City reserves the right to review this Agreement and contractual relationship at any time,
and may elect to terminate same with or without cause or niay elect to continue.
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1.02 CONTRACT AMOUNT; REIMBURSABLE EXPENSES AMOUNT
In consideration for the professional consulting services to be performed by Consultant,
City agrees to pay Consultant a total sum not to exceed Eighteen Thousand and No/100 Dollars
($18,000.00), in payment for services as delineated in Exhibit "A" and herein in Section 1.03.
Additionally, City agrees to pay Consultant a total sum not to exceed Four Thousand Five
Hundred and No/100 Dollars ($4,500.00) for allowable reimbursable expenses, at actual
documented cost only.
1.03 SCOPE OF SERVICES
For purposes of this Agreement, Consultant has issued its Scope of Services for the
assignments delineated herein, and such Scope of Services is delineated in Exhibit "A" attached
hereto and incorporated herein by reference for all purposes. This Agreement, and its
accompanying exhibit, shall evidence the entire understanding and agreement between the
parties and shall supersede any prior proposals, correspondence or discussions. Consultant shall
satisfactorily provide all services and deliverables described under the referenced Scope of
Services within the contract term specified in Section 1.01. Consultant's undertakings shall be
limited to performing services for City and/or advising City concerning those matters on which
Consultant has been specifically engaged. Consultant shall perform its services in accordance
with this Agreement and in accordance with the referenced Scope of Services. Consultant shall
perform its services in a professional and workmanlike manner.
Consultant shall not undertake work that is beyond the Scope of Services set forth in
Exhibit "A" and in this Section 1.03. However, either party may make written requests for
changes to the Scope of Services. To be effective, a change to the Scope of Services must be
negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental
Agreement as described in Section 1.05 hereof.
1.04 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES
Payment for Services: In consideration for the professional consulting services to be
performed by Consultant, City agrees to pay Consultant the following in accordance with the
terms set forth below:
Payments shall follow delivery of each of the following Phase Deliverables, as more fully
delineated in "Fee Breakdown for Conducting Search" contained in incorporated Exhibit "A":
Phase I
Phase II
Phase III
Phase IV
Phase V
Phase VI
TOTAL:
(Position Analysis)
(Recruitment, Marketing, Advertising,
Developing Screening Criteria)
(Screening and Review)
(Evaluation of Finalists)
(Interview Process)
(Offer and Contract)
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$ 3,000.00
$ 6,000.00
$ 6,000.00
$ 5,000.00
$ 2,500.00
$0
$22,500.00
Payment for Reimbursable Expenses: Reimbursable expenses authorized in writing in
advance by City shall be paid to Consultant at actual cost, upon Consultant properly invoicing
for same and providing documentation for same. The total not -to -exceed amount for allowable
reimbursable expenses shall be $4,500.00.
Not -to -Exceed Total for Services and Reimbursables: Unless subsequently changed
by Supplemental Agreement, Consultant's total compensation for professional consulting
services shall not exceed $18,000.00, and allowable reimbursable expenses shall not exceed
$4,500,00. These amounts represent the absolute limit of City's liability to Consultant unless
same shall be changed by Supplemental Agreement, and City shall pay, strictly within the not -to -
exceed sums recited herein, Consultant's professional fees for work done on behalf of City.
Deductions: No deductions shall be made for Consultant's compensation on account of
penalty, liquidated damages or other sums withheld from payments to Consultant.
Additions: No additions shall be made to Consultant's compensation based upon any
claims, whether paid by City or denied.
L05 SUPPLEMENTAL AGREEMENT
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or by the City Manager, if City determines that there has
been a significant change in (1) the scope, complexity, or character of the services to be
performed; or (2) the duration of the work. Any such Supplemental Agreement must be
executed by both parties within the period specified as the term of this Agreement. Consultant
shall not perform any work or incur any additional costs prior to the execution, by both parties,
of such Supplemental Agreement. Consultant shall make no claim for extra work done or
materials furnished unless and until there is full execution of any Supplemental Agreement, and
City shall not be responsible for actions by Consultant nor for any costs incurred by Consultant
relating to additional work not directly authorized by Supplemental Agreement.
1.06 INVOICE REQUIREMENTS; TERMS OF PAYMENT
Invoices: To receive payment, Consultant shall prepare and submit detailed invoices to
City, in accordance with the delineation contained herein, for services rendered. Such invoices
for professional services shall track the referenced Scope of Services, and shall detail the
services performed, along with documentation for each service performed. Payment to
Consultant shall be made on the basis of the invoices submitted by Consultant and approved by
City, Such invoices shall conform to the schedule of services and costs in connection therewith.
Should additional backup material be requested by City relative to service deliverables,
Consultant shall comply promptly. In this regard, should City determine it necessary,
Consultant shall make all records and books relating to this Agreement available to City for
inspection and auditing purposes.
If City has any dispute with work performed, then City shall notify Consultant within
thirty (30) days after receipt of invoice. In the event of any dispute regarding the services
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performed, then and in that event Consultant shall either (a) satisfactorily re -perforin the disputed
services or (b) provide City with an appropriate credit.
Payment of Invoices: City reserves the right to correct any error that may be discovered
in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of an invoice, City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 1.09 herein. Under no circumstances shall Consultant be entitled to
receive interest on payments which are late because of a good faith dispute between Consultant
and City or because of amounts which City has a right to withhold under this Agreement or state
law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the
services, but not for taxes based upon Consultant's net income.
Offsets: City may, at its option, offset any amounts due and payable under this
Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of
whether the amount due arises pursuant to the terms of this Agreement or otherwise and
regardless of whether or not the debt due to City has been reduced to judgment by a court.
1.07 LIMITATION TO SCOPE OF SERVICES
Consultant and City agree that the Scope of Services to be performed is delineated in
Exhibit "A" and in Section 1.03 herein, and may not be changed without the express written
agreement of the parties. Notwithstanding anything herein to the contrary, the parties agree that
City retains absolute discretion and authority for all funding decisions, such to be based solely on
criteria accepted by City which may be influenced by but not be dependent on Consultant's
work.
1.08 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Consultant a written notice of termination at the end of its then -current fiscal year.
1.09 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be
made by City to Consultant will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed, or the date City receives a correct invoice for the goods or services, whichever is
later. Consultant may charge interest on an overdue payment at the "rate in effect" on September
1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by City in the event:
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(a) There is a bona fide dispute between City and Consultant, a contractor,
subcontractor, or supplier about the goods delivered or the service performed
that cause the payment to be late; or
(b)
There is a bona fide dispute between Consultant and a subcontractor or
between a subcontractor and its supplier about the goods delivered or the
service performed that causes the payment to be late; or
(c) The terms of a federal contract, grant, regulation, or statute prevent City from
snaking a timely payment with federal funds; or
(d) The invoice is not mailed to City in strict accordance with any instruction on
the purchase order relating to the payment.
1.10 TERMINATION; DEFAULT
Termination: It is agreed and understood by Consultant that City may terminate this
Agreement for the convenience of City, upon written notice to Consultant, with the
understanding that immediately upon receipt of said notice all services being performed under
this Agreement shall cease. Consultant shall invoice City for services satisfactorily completed
and shall be compensated in accordance with the terms hereof for services accomplished prior to
the receipt of said notice of termination. Consultant shall not be entitled to any lost or
anticipated profits for work terminated under this Agreement. Unless otherwise specified in this
Agreement, all data, information, and work product related hereto shall become the property of
City upon termination of this Agreement, and shall be promptly delivered to City in a reasonably
organized form without restriction on future use. Should City subsequently contract with a new
consultant for continuation of services, Consultant shall cooperate in providing information.
Termination of this Agreement shall extinguish all rights, duties, and obligations of City
and the terminated party to fulfill contractual obligations. Termination under this section shall
not relieve the terminated party of any obligations or liabilities which occurred prior to
termination.
Nothing contained in this section shall require City to pay for services which it deems
unsatisfactory or which are not performed in compliance with the terms of this Agreement.
Default: Either party may terminate this Agreement, in whole or in part, for default if
the party provides the other party with written notice of such default and the other fails to
satisfactorily cure such default within ten (10) business days of receipt of such notice (or a
greater time if agreed upon between the parties).
If default results in termination of this Agreement, then City shall give consideration to
the actual costs incurred by Consultant in performing the work to the date of default. The cost of
the work that is useable to City, the cost to City of employing another firm to complete the
useable work, and other factors will affect the value to City of the work performed at the time of
default. Neither party shall be entitled to any lost or anticipated profits for work terminated for
default hereunder.
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The termination of this Agreement for default shall extinguish all rights, duties, and
obligations of the terminating Party and the terminated Party to fulfill contractual obligations.
Termination under this section shall not relieve the tertninated party of any obligations or
liabilities which occurred prior to termination.
Nothing contained in this section shall require City to pay for services which it deems
unsatisfactory, or which are not performed in compliance with the terms of this Agreement.
1.11 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not City's employee. Consultant's
employees or subcontractors are not City's employees. This Agreement does not create a
partnership, employer-employee, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. Consultant and City agree to the following rights
consistent with an independent contractor relationship:
(1) Consultant has the right to perform services for others during the term hereof.
(2) Consultant has the sole right to control and direct the means, manner and method
by which it performs its services required by this Agreement.
(3)
Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and City shall not hire, supervise, or pay assistants to help Consultant.
(5)
Neither Consultant nor its employees or subcontractors shall receive training from
City in skills necessary to perforin services required by this Agreement.
(6) City shall not require Consultant or its employees or subcontractors to devote full
time to performing the services required by this Agreement.
(7)
Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of City.
1.12 NON -SOLICITATION
Except as may be otherwise agreed in writing, during the term of this Agreement and for
twelve (12) months thereafter, neither City nor Consultant shall offer employment to or shall
employ any person employed then or within the preceding twelve (12) months by the other or
any affiliate of the other if such person was involved, directly or indirectly, in the performance of
this Agreement. This provision shall not prohibit the hiring of any person who was solicited
solely through a newspaper advertisement or other general solicitation.
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1.13 CITY'S RESPONSIBILITIES
Full information: City shall provide full information regarding its requirements. City
shall have the responsibility of providing Consultant with such documentation and information
as is reasonably required to enable Consultant to provide the services called for. City shall
require its employees and any third parties who are otherwise assisting, advising or representing
City to cooperate on a timely basis with Consultant in the provision of its services. Consultant
may rely upon written information provided by City and its employees and agents as accurate
and complete. Consultant may rely upon any written directives provided by City or its
designated representative concerning provision of services as accurate and complete.
1.14 CONFIDENTIALITY; AND MATERIALS OWNERSHIP
Any and all programs, data, or other materials furnished by City for use by Consultant in
connection with services to be performed under this Agreement, and any and all data and
information gathered by Consultant, shall be held in confidence by Consultant as set forth
hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any
proprietary or confidential information relative to this Agreement, and to not make any use
thereof other than for the performance of this Agreement, provided that no claim may be made
for any failure to protect information that occurs more than three (3) years after the end of this
Agreement.
The parties recognize and understand that City is subject to the Texas Public Information
Act and its duties run in accordance therewith.
All data relating specifically to City's business and any other information which
reasonably should be understood to be confidential to City is confidential information of City.
Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries,
inventions, know-how, and any other information which reasonably should be understood to be
confidential to Consultant is confidential information of Consultant. City's confidential
information and Consultant's confidential information is collectively referred to as "Confidential
Information." Each party shall use Confidential Information of the other party only in
furtherance of the purposes of this Agreement and shall not disclose such Confidential
Information to any third party without the other party's prior written consent, which consent
shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the
confidentiality of the other party's Confidential Information and to advise their employees of the
confidential nature of the Confidential Information and of the prohibitions herein.
Notwithstanding anything to the contrary contained herein, neither party shall be
obligated to treat as confidential any information disclosed by the other party (the "Disclosing
Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing
Party; (2) is released by the Disclosing Party to any other person or entity (including
governmental agencies) without restriction; (3) is independently developed by the recipient
without any reliance on Confidential Information; or (4) is or later becomes publicly available
without violation of this Agreement or may be lawfully obtained by a party from any non-party.
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Notwithstanding the foregoing, either party will be entitled to disclose Confidential
Information of the other to a third party as may be required by law, statute, rule or regulation,
including subpoena or other similar form of process, provided that (without breaching any legal
or regulatory requirement) the party to whom the request is made provides the other with prompt
written notice and allows the other party to seek a restraining order or other appropriate relief.
Subject to Consultant's confidentiality obligations under this Agreement, nothing herein
shall preclude or limit Consultant from providing similar services for other clients.
Neither City nor Consultant will be liable to the other for inadvertent or accidental
disclosure of Confidential Information if the disclosure occurs notwithstanding the party's
exercise of the same level of protection and care that such party customarily uses in safeguarding
its own proprietary and confidential information.
Notwithstanding anything to the contrary in this Agreement, City will own as its sole
property all written materials created, developed, gathered, or originally prepared expressly for
City and delivered to City under the terms of this Agreement; and Consultant shall own any
general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software,
or other similar information which may have been discovered, created, developed or derived by
Consultant either prior to or as a result of its provision of services under this Agreement.
1.15 LIMITATION OF LIABILITY
Should any of Consultant's services not conform to the requirements of City or of this
Agreement, then and in that event City shall give written notification to Consultant; thereafter,
(a) Consultant shall either promptly re -perform such services to the City's satisfaction at no
additional charge, or (b) if such deficient services cannot be cured within the cure period set
forth herein in Section 1.10, then this Agreement may be terminated for default.
In no event will Consultant be liable for any loss, damage, cost or expense attributable to
negligence, willful misconduct or misrepresentations by City, its directors, employees or agents.
In no event shall Consultant be liable to City, by reason of any act or omission relating to
the services provided under this Agreement (including the negligence of Consultant), whether a
claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit, punitive,
special or similar damages relating to or arising from the services, or (b) in any event, in the
aggregate, for any amount in excess of the total professional fees paid by City to Consultant
under this Agreement, except to the extent determined to have resulted from Consultant's gross
negligence, willful misconduct or fraudulent acts relating to the services provided hereunder.
1.16 INDEMNIFICATION
Consultant agrees to indemnify, defend and hold harmless City from and against amounts
payable under any judgment, verdict, court order or settlement for death or bodily injury or the
damage to or loss or destruction of any real or tangible property to the extent arising out of the
indemnitor's negligence in the performance of this Agreement.
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To the extent allowable by law, City agrees to indemnify, defend and hold harmless
Consultant from and against amounts payable under any judgment, verdict, court order or
settlement for death or bodily injury or the damage to or loss or destruction of any real or
tangible property to the extent arising out of the indemnitor's negligence in the performance of
this Agreement.
Consultant agrees to indemnify, defend and hold harmless City from and against any and
all amounts payable under any judgment, verdict, court order or settlement for Third Party claims
of infringement of any trade secrets, copyrights, trademarks or trade names alleged to have
occurred and arising from the deliverables provided by Consultant to City in connection with the
performance of this Agreement. Should City's use of such deliverables be determined to have
infringed, Consultant may, at its option: (i) procure for City the right to continue using such
deliverables provided or (ii) replace or modify them to make their use non -infringing while
yielding substantially equivalent results. If neither of the above options is or would be available
on a basis that is commercially reasonable, then Consultant may terminate this Agreement, City
shall return such deliverables provided, and Consultant will refund to City the fees paid for the
deliverables provided. This infringement indemnity does not cover claims arising from the
combination of such deliverables with products or services not provided by Consultant; the
modification of such deliverables by any person other than Consultant; deliverables complying
with or based upon (1) designs provided by or at the direction of City or (2) specifications or
other information provided by or at the direction of City; or use of systems, materials or work
performed in a manner not permitted hereunder or by another obligation of City to Consultant.
The indemnities in this section are contingent upon: (1) the indemnified party promptly
notifying the indemnifying party in writing of any claim which gives rise to a claim for
indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense
and settlement of such claim; and (3) the indemnified party cooperating with all reasonable
requests of the indemnifying party (at the indemnifying party's expense) in defending or settling
a claim. The indemnified party shall have the right, at its option and expense, to participate in
the defense of any suit or proceeding through counsel.
1.17 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties under this Agreement without the other party's prior
written approval, which approval shall not be unreasonably withheld.
1.18 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
(1) Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
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(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
(3) Withhold state or federal income tax from any of Consultant's payments.
If requested, City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
1.19 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant, its consultants, agents, employees and subcontractors shall use best efforts to
comply with all applicable federal and state laws, the Charter and Ordinances of the City of
Round Rock, as amended, and with all applicable rules and regulations promulgated by local,
state and national boards, bureaus and agencies. Consultant shall further obtain all permits,
licenses, trademarks, or copyrights required in the performance of the services contracted for
herein, and same shall belong solely to City at the expiration of the term of this Agreement.
1.20 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials or equipment that will be recommended or required hereunder.
1.21 DESIGNATION OF REPRESENTATIVES
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Howard Baker, Project Manager
221 East Main Street
Round Rock, TX 78664
E-mail: howardb@round-rock.tx.us
Consultant hereby designates the following representatives authorized to act in its behalf
with regard to this Agreement:
Scott Reilly, CEO
Affion Public
20 North Second Street, Suite 200
Harrisburg, PA 17101
888-321-4922
Gina Sprowls, Recruiting Manager
Affion Public
20 North Second Street, Suite 200
Harrisburg, PA 17101
888-321-4922
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Lisa Pursel, Executive Recruiter
Affion Public
20 North Second Street, Suite 200
Harrisburg, PA 17101
888-321-4922
1.22 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
(1) When delivered personally to recipient's address as stated herein; or
(2) Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
Affion Public
20 North Second Street, Suite 200
Harrisburg, PA 17101
Notice to City:
City Manager, City of Round Rock
221 East Main Street
Round Rock, TX 78664
AND TO:
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
1.23 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to enforcement of any or all of the terms or conditions,
exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be
governed by and construed in accordance with the laws and court decisions of the state of Texas.
1.24 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including exhibits, constitute the entire
agreement between the parties and supersede all previous communications, representations, and
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agreements, either written or oral, with respect to the subject matter hereof. The parties
expressly agree that, in the event of any conflict between the terms of this Agreement and any
other writing, this Agreement shall prevail. No modifications of this Agreement will be binding
on either of the parties unless acknowledged in writing by the duly authorized governing body or
representative for each party.
1.25 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator,
City shall select one mediator and Consultant shall select one mediator and those two mediators
shall agree upon a third mediator. Any costs and fees, other than attorneys fees, associated with
the mediation shall be shared equally by the parties.
City and Consultant hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
1.26 FORCE MAJEURE
Notwithstanding any other provisions to the contrary, no failure, delay or default in
performance of any obligation hereunder shall constitute an event of default or breach of this
Agreement, only to the extent that such failure to perform, delay or default arises out of causes
beyond the control of and without the fault or negligence of the party otherwise chargeable with
failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war,
insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters or other
casualties, strikes or other labor troubles, which in any way restrict the performance under this
Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to City if its failure to
perform or its substantial delay in performance is due to City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to timely
perform its obligations hereunder.
1.27 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion or
provision held to be void. The parties further agree to amend this Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this section shall not prevent this entire Agreement from
being void should a provision which is of the essence to this Agreement be determined to be
void.
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1.28 STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities, and duties specified herein and that such services,
responsibilities, and duties shall be performed by Consultant in a manner acceptable to City and
according to generally accepted industry practices.
1.29 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only
and shall have no substantive effect on construction of this Agreement.
No delay or omission by either party in exercising any right or power shall impair such
right or power or be construed to be a waiver. A waiver by either party of any of the covenants
to be performed by the other or any breach thereof shall not be construed to be a waiver of any
succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in
writing and signed by an authorized representative of the party against whom such waiver or
discharge is sought to be enforced.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered one original. City agrees to provide Consultant with one fully executed original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
City of Round Rock, Texas
By:
Printed
Title:
Date Signe
ame�I g
u
For City, Attest:
By:
Sara L. White, City Secretary
For City, roved as to orm:
By:
Steph
L. Sheets, City Attorney
Affion Public, LLC
a Pennsylvania limited Iiarlity company
By:
Printed,i ame: > . i .73
J t1
Title:
Date Signed: -11c; ; 11;
13
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Affion Public
20 North Second Street
Suite 200
Harrisburg, PA 17101
Executive Search Services
City Manager
City of Round Rock
07/09/2010
EXHIBIT
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■
Objectives and Approach
r. Establishing the Timeline — we will work closely with you to determine your ideal start date for
your executive and then work to make sure that we agree on all target dates and activities.
2. Input from Key Decision Makers — we will meet with all parties who will be impacted by this
executive to seek input, which will also help us understand the company, the people and the working
environment. This can include setting up Public Forunrs to engage the community in assisting in the
process.
3. Developing the Candidate Profile — through extensive interviews we will gain a complete
understanding of the mission and goals of the company and begin to create the profile of the executive you
are seeking.
4. Candidate Pool and Search Techniques — we will use our own extensive internal database, our
personal and professional connections, competitor intelligence, targeted recruiting, industry specific
sourcing and other recruiting tools to begin to identify the perfect candidate.
5. Screening Process — we will conduct interviews to qualify each candidate, whether it is an internal
candidate or an external one, prior to presentation to you, and will conduct an extensive background
check on each potential candidate.
6. Selecting Candidates for Client Review -- we will present the key decision makers with a portfolio
of candidates for consideration and will discuss each candidate's skills and qualifications in detail.
7. Choosing the Finalists and the Interview — once the client has reviewed the candidates and has
selected the finalists, interviews with the key decision makers or the Selection Committee will begin.
8. Hiring — all candidates will have been pre -qualified on the salary range, benefits and we will assist in
all final employment matters.
Developing the Candidate Profile
Affion's approach to executive searches is a very personal and systematic one. Our success is dependent
on the access and information granted to us by the client organization, so that we can gather all the
information possible to have a true understanding of the client's needs. Only if we know the organization
intimately and develop a very thorough and detailed profile of the ideal candidate, can we be assured of
the right match for the organization and the individual who is ultimately selected.
We pride ourselves in the value we bring to the table by working with the client to develop the profile of
the ideal candidate from which to conduct our search. We do this by spending a great deal of time with
the chief decision makers, elected officials, etc. at the very beginning, learning the history of the position,
the mission and goals of the Organization, the past successes and failures of the position, staff, budget and
virtually everything the selected candidate would need to have experience and success addressing. In
order for us to locate the ideal leader for an organization, we must know where that organization wants to
go and what it will take to get it there.
Each search is different and we invest as much time in getting to know the style and organizational culture
of our client as we do getting to know each candidate under consideration. We develop a strong
relationship with the decision makers and people with whom the potential candidates would be working
to ensure the right match. We spend tune with the decision maker(s) to understand their idea of the
"ideal" candidate, their own management style, and what the position means to them and to the
organization. We learn and adopt the Organization's vision, so that we are able to recruit candidates who
will embrace those goals and lead a strategy that will support that vision.
We prefer to interview other successful executives at the peer level of the vacant position to get an
understanding of the kind of leaders who are successful in the Organization. We also find it valuable to
interview some subordinate level staff, if possible, to assess some of the challenges or strengths within the
current resources that the incoming executive would find.
These early stages of the search are, in our mind, the most important. Our entire search team, including
our assigned recruiter(s), is involved in this information gathering/ relationship process from the
beginning so we all know exactly what our client is seeking in applicants and are qualifying candidates on
the client's organizational culture.
For national searches, our team also investigates the community in which the position resides. We
investigate the public and private school options, and even spend time with a realtor to get a feel of the
local housing market for relocation. All of this helps us when we screen and sell candidates on the
position.
From the interviews and fact gathering, we will prepare a comprehensive Candidate Recruitment Profile
for the position, with the desired qualifications and characteristics, for approval by the Client's
designee(s). It is from this customized Profile that we conduct our systematic search.
Input from Stakeholders
The first steps in any search begin with our onsite stakeholder meetings. The purpose of the stakeholder
interviews is to allow Affion an intimate understanding of the organization, the people and the
environment. These interviews are how we develop the two key profiles in which the search is built
around. The first profile is the position profile. The position profile includes not only the requirements
the successful individual will possess but also what they will be doing on a daily, weekly and monthly
basis. This profile is critical in analyzing the potential candidate's previous experience. The second profile
is the candidate profile in which we spoke previously about. This profile allows Affion to define the type of
individuals that will be successful in your organization.
The stakeholder meetings begin with developing the list of individuals that will be working directly with
this person. This list should include whomever the individual is responsible for reporting to and anyone
who may be directly involved with the hiring and interview process. Affion is committed to spending as
much time as necessary on the stakeholder meeting to ensure a successful placement.
The stakeholder meetings are approximately one-hour interview session in which our team will ask
probing questions to what will make the candidate successful. These are generally done on an individual
basis.
Additional stakeholder meetings including public input will be scheduled at the discretion of the selection
team. We have a long history of being very inclusive with our stakeholder process and often meet with
community leaders, business leaders, civic and religious leaders as well as neighborhood associations.
Candidate Pool
Affion is a relationship driven, select targeting firm. We use our own internal database to draw upon
potential candidates with whom we have built relationships and/or referrals. We use the telephone to
reach out to referrals and candidates initially. We use the Internet as well as select research firms to
investigate credit, criminal and other background checks and to obtain any written publications authored
by, or regarding, the candidates. Beyond this limited use of technology, our efforts are all carried out in
person. We post the job on the Internet or advertise in print as required by the client organization. Even
our utilization of networks of professional or trade associations, is done in person. This personal
approach is how we have been most successful in targeting and attracting the best and most diverse
selection of candidates.
Each Affion recruitment effort is customized specifically to the client organization's needs and
preferences. One of the additional values achieved from the time we spend in the beginning is getting to
know the client organization and its culture and obtaining mutual agreement on a process that works for
both of us. While we have a very strict and systematic internal qualifying/screening process, it is only
visible to the client in the result it produces. Any processes external to our qualifying/screening process
may be modified to accommodate the client's organizational needs.
Affion Process in Screening
While the general steps outlined herein are the basis of the Affion search, flexibility is built into our model
to accommodate a particular client's preferences. Our search is customized to best meet the needs of our
client and as long as we are not asked to forego steps to ensure quality, modifications or additions can be
made.
Sourcing/Recruiting Candidates
Our Senior Executive Recruiters (too % dedicated to this search) will identify candidates who have been
successful in like organizations in similar positions. We search from a variety of sources to ensure
development of a broad representative pool in terms of affirmative action efforts and experience;
including our own network of contacts and files; public or private entities, professional and other
associations and organizations related to the position and referrals. We do targeted advertising in
publications specific to the position.
Targeted Recruiting
Affion maintains a national database through extensive networks in industry specific business groups,
trade and professional organizations. To further ensure a diverse candidate pool, we also source
candidates from professional organizations and networks that are ethnic and gender specific. We reach
out to a variety of sources to collectively find the best talent available.
As a result of our previous and ongoing recruiting efforts within government and quasi -government
organizations, (Iocal, city, county, and state) Affion has, and continues to build, an expansive network of
candidates that includes the best and the brightest in the public sector. That network of candidates
exemplifies our professional commitment to building valued relationships, knowing the individuals'
experience and leadership styles, and understanding their needs and career goals. By operating within
these guidelines, our deliverable to our client results in being a known and trusted entity.
Screening/Qualifying Candidates
Our Senior Executive Recruiter conducts preliminary screening interviews of all in-house candidates and
the most promising candidates to determine their qualifications, pertinent accomplishments, experience,
ability to meet special needs of the position and their interest in being considered. Preliminary screening
will be based on a resume rating instrument developed from criteria contained in the customized
Candidate Recruitment Profile, information contained in the resumes submitted to Affion, and Affion's
knowledge of the people and organizations with whom and in which we work. At this point in the search,
our recruiter is also securing preliminary, confidential reference information on the most promising
candidates (as available and appropriate) to verify experience and qualifications; i.e., to ensure that it is
worthwhile proceeding with them.
After qualifying the best candidates into our process, those individuals are subjected to two more rounds
of interviews by additional Affion Executive staff. The same criteria are used, but the emphasis here, is on
organizational and cultural fit, and political acumen. This process assures the quality we demand of the
short list of semi-finalists that are selected.
All candidates are niet face-to-face when possible. If the face-to-face interviews cannot be arranged then
video conferencing is arranged to ensure that the recruiters and executives within Affion are comfortable
with the candidates they are presenting for consideration.
Bacicground Investigation
When all members of the Affion qualifying team have agreed that the candidate fits the desired profile we
begin extensive background checks to include: criminal, education, and financial investigations.
Reference calls are completed. Political Internet searches are conducted. This entire procedure is intended
to further eliminate unqualified candidates, and to validate the credentials of the final candidates in
process.
Selecting Finalists for Promotion to Client
From our rigorous qualifying process and investigation, Affion typically narrows the field of qualified
candidates to the top 6-8. We present all of the Client's designated representatives with a comprehensive
book of material on each of the selected individuals. These books contain summary profiles, resumes,
applications, articles by or regarding the candidate, pertinent work product, and photographs of those
candidates whose qualifications, work experience, achievements, and/or other special qualities qualify
them for the position. This comprehensive Confidential Report on each candidate covers not only the
candidate's working career and those personal aspects that are relevant to the position, but also our
appraisal of how the candidate's competencies compare to your specific needs and environment. Affion
and the Client's representatives will meet to review the detailed contents of the book.
Internal Candidates
Affion always screens and evaluates those applications and resumes received by the Client from in-house
or outside applicants to insure, on the client's behalf, that the process is considered fair to all applicants
and to determine if any of these individuals are qualified, viable candidates. Often, at the client's
preference we keep all in-house applicants in process until the final qualifying phases of the search
process, unless it is clearly established that certain individuals are not qualified.
We review, evaluate and acknowledge in writing all applications and resumes received. Additionally, we
ask that all solicitations for consideration made directly to the client be forwarded to Affion immediately
to avoid duplication of efforts and take work off the client's shoulders.
Client Selection of Candidates for Interview
Affion would work closely with the hiring team for selecting the finalist. Affion will make a portfolio
presentation to the key stakeholders which will include; the resume, a brief bio written by the candidate, a
description of the candidate's strengths and weaknesses, and an answer to the questions "Why Should I be
the Next..." Upon our face-to-face presentation of the finalists, with our recommendations and
comprehensive background information, we require that the Client select the number and names of the
candidates it wishes to interview in person.
Upon the Client's direction, Affion personnel will coordinate with Client personnel to arrange interviews
with the top candidates selected for consideration. Affion will work with the client to coordinate any travel
or accommodation details that may be needed for each outside candidate.
Client Interviews and Final Selection
The finalist interviews would be conducted in conjunction with the wishes of the hiring team. Affion
typically suggests that the hiring team utilize panel interviews and also perhaps a candidate presentation.
The candidate presentation would be an oral presentation accompanied .by a visual presentation. We
typically ask all candidates to prepare a twenty -minute presentation in a power -point format. This
presentation can be on a topic agreed upon by Affion and the client. The purpose of this presentation is to
allow the selection committee to see how the candidates communicate their thought process and the
candidate's ability to effectively express those thoughts to their audience.
The formal interview would involve the same set questions asked to each candidate by the same panel
member. This allows the selection committee to evaluate each candidate on a fair and equal field. These
questions are agreed upon in advance with Affion and the selection committee. Affion will be involved
throughout the entire interview process to facilitate the interviews.
Hiring
Once it is time for a hiring decision, Affion will provide assistance on final employment matters, such as
the negotiation process with successful candidates and notification to unsuccessful candidates.
Any candidate that is presented for consideration will have been pre -qualified on the salary range,
benefits and relocation package. Once the finalist has been selected it is our standard practice that the
client sends a formal offer letter to Affion on behalf of the successful candidate. Affion will facilitate the
signature and closing of the process.
Statement of Diversity
Diversity is one of our core values, as well as part of our heritage. It acknowledges and celebrates the
richness and value created by the differences among our employees, our customers, our service offerings,
and our businesses. It is about people, backgrounds, lifestyles, ideas and balance between our work and
personal lives. It is about maximizing the contributions from all members of our team so that we deliver
greater value to our customers. It is about valuing differences. It is not a code word for affirmative action.
It is much larger than that. It is about valuing differences. It is about inclusion. It relies on standards of
performance and behavior, which lead to mutual respect. Diversity is about effectively using our collective
talent to create a competitive advantage that leads to success — both for our internal support staff and
contract workforce. Arcus is truly committed to effectively recruiting and maintaining a diverse
workforce.
Affion maintains an Affirmative Action Program and policy to afford equal employment opportunity to all
without regards to race, color, religion, sex, national origin, sexual orientation, handicap or disability or
status as a disabled veteran or a veteran of the Vietnam War era. We take affirmative action to ensure
applicants for employment and employees are treated without regard to these characteristics. The sole
basis for decisions regarding employment status has been, and will continue to be, an individual's
qualifications, and based only on valid, non -biased job requirements in positions being filled. To carry out
our policy, the commitment includes, but is not limited to: recruitment, hiring, promotions, transfers,
compensation, benefits, layoffs, terminations, educational tuition assistance and company sponsored
training and recreational programs.
Affion employs responsible reporting and monitoring procedures to ensure that all personnel actions are
in strict compliance with the Equal Opportunity Policy and our Affirmative Action program. We are
further committed to being an Equal Opportunity Employer by various federal, state and city laws on fair
employment practices. All of Affion's advertising reflects these same important standards.
Our HR Consulting Division is proud of our success in ensuring a diverse candidate pool and is thrilled to
have placed diverse candidates with public sector organizations nationwide.
Proposed Project Timeline:
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July 16
•
_ .wiYom..�,
Affion to negotiate and finalize contract
July 16 -30
•
•
•
•
Facilitate a meeting to discuss timelines, recruitment process and
plan for completing the Position and Candidate Profiles
Affion to meet with identified stakeholders to begin the due
diligence process
Conduct Public Forums if needed
Simultaneous industry research taking place
•
Affion presents draft of Profile
•
Finalize Profile
August 1 - September 17
•
Search Firm conducts recruitment to include:
o Journals, personal contacts, Websites, etc.
o Place advertisements
o Review resumes
Conducted on a weekly basis
•
Progress Report—check for quality and diversity of applicants.
Determine need to target any specific group or area.
September 18 -30
•
Review and qualify all potential candidates
•
Affion concludes the recruitment campaign
•
Review and finalize candidate selection to be presented
•
•
Presentation of 6-8 candidates to the Selection Panel
Affion will facilitate a review of the final candidates
October 1-18
•
•
•
•
Affion conducts reference checks of finalists to include:
References for finalists are contacted and background checks
completed
Newspaper search conducted on finalists
October 25 - November 30
•
Conduct first round of candidate interviews with the Search
Commnittee and key stakeholders
December 1- December 7
•
Finalize decision on the candidate of choice and negotiate
employment agreement with the candidate
•
Successful Candidate accepts offer of employment
Cost
Full Executive Search:
Affion executive searches are full-service searches conducted by senior executives within our firm. The
fee we have outlined herein is all inclusive of all phases of the search including stakeholder meetings,
profile development, job postings, sourcing, recruitment, interviewing, reference checking, background
checks and candidate offer negotiation.
Fee for City Manager:
Expenses for the search will not exceed:
$t8,000
$4,500
Expenses will be billed at actual cost and include all Affion personnel travel, brochure development and
printing, job posting, background checking, community meetings and video conferencing as required.
Additional expenses, which are not included in the overall fee butare expected to be reimbursed by the
City of Round Rock, include all candidate travel expenses for the purpose of interviews with the City of
Round Rock. This will vaiy depending on the location of the finalist selected.
on the hiring of the dcaircd
Caudidat Adjustments to our payment and billing processes are negotiable in order to best
accommodate our Clients' needs. With regards to expenses, the actual, approved expenses will be billed
upon completion of the search services. These expenses typically include all Affion travel, hotel,
advertisements and brochures proposed for the executive search.
Guarantee
As with all of our executive searches, we are prepared to offer our standard professional service guarantee.
If the hired candidate is asked to leave for reasons of non-performance, or leaves of his/her own volition
in the first 12 months of employment, we will re -launch a search for a new candidate, under the original
position specifications. In such a case, we will do so for no additional professional fee, though charging
expenses as provided for in the original agreement. It is our commitment to partner with you from the
initial signing of the contract until the candidate accepts and offer and begins employment.
Fee Breakdown for Conducting Search
PHASE I
POSITION ANALYSIS
JULY 16 - JULY 31
PHASE I COST
ADDITIONAL COSTS, IF ANY, NOT TO EXCEED
EXPLAIN Developing candidate Profile and input from stakeholders
PHASE II
RECRUITMENT, MARKETING, ADVERTISING AND
DEVELOPING SCREENING CRITERIA
AUGUST 1 — SEPTEMBER 17
$3,000.00
PHASE II COST $6,000.00
EXPLAIN: Create brochure and job postings. Identify potential candidates, national recruitment
and targeted recruitment
PHASE III
INITIAL SCREENING AND REVIEW
SEPTEMBER 18 — SEPTEMBER 30
PHASE III COST $6,000.00
EXPLAIN: Conduct candidate screening, candidate interviews
PHASE IV
EVALUATION OF FINALISTS
OCTOBER 1 -- OCTOBER 18
PHASE IV COST
$5,000.00
EXPLAIN: Conduct reference checks, background checks and present binder of candidates as
semi finalist
PHASE V
INTERVIEW PROCESS
OCTOBER 25 — NOVEMBER 30
PHASE V COST
EXPLAIN: Facilitate finalist interviews
PHASE VI
OFFER AND CONTRACT
DECEMBER 1 — DECEMBER 7
THERE ARE NO ANTICIPATED COSTS FOR PHASE VI
TOTAL COST FOR ALL PHASES
MAXIMUM TOTAL COST
Affion Public, LLC
NAME OF RESPONDING ENTITY
BY:
Scott Reilly, CEO 7/7/2010
NAME AND TITLE DATE
$2,500.00
$ 22,500
$ 22,500
*Please review our cost section of the proposal for a detailed explanation of our services. Our
Searches are all inclusive and we do not typically break out each phase, this is our best
estimation of what that breakdown would look like, we do guarantee the cost of our services not
to exceed $22,500.
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY
Item Caption:
City Manager Approval Summary Sheet
Consider executing a Professional Consulting Services Agreement for City Manager
Executive Search Services with Affion Public, LLC.
Approval Date: July 16, 2010
Department:
Project Manager:
Human Resources
Teresa Bledsoe, Director, Human Resources
Item Summary:
The City Council desires to utilize the services of an Executive Search firm to manage the recruitment of the next City
Manager.
Strategic Plan Relevance: 39.0 — Increase City of Round Rock's capability to hire and retain talent
Cost: Not to exceed $22,500.00
Source of Funds: General Fund
REV. 3/8/10