AGB+Search+Contract.pdf

CONTRACT

The parties to this contract (Contract) are the state of North Dakota, acting through its Office of Management and Budget, State Procurement Office (STATE), and AGB Search, a limited liability corporation (LLC), having its principal place of business at 1133 20th St N.W., Suite 300, Washington, DC 20036 (CONTRACTOR);

1. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide executive recruitment services on an as-needed basis which may include:

Category 1 – Executive Level Entities requesting CONTRACTOR to perform a recruitment search in this category will complete a Participating Work Order (Exhibit A).

2. COOPERATIVE PURCHASE

The contract resulting from this solicitation is a cooperative purchasing contract established pursuant to North Dakota Century Code (NDCC) sections 54-44.4-13. The contract is made available to state entities, institutions under the jurisdiction of the State Board of Higher Education, other government entities (including counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C chapter 39-04.2, and the International Peace Garden.

3. COMPENSATION

a. Contractual Amount STATE shall pay for the accepted services provided by CONTRACTOR under this Contract for each category awarded at an amount no greater than the hourly rates (Contractual Amount) listed below:

Category 1:

Does not include CONTRACTOR travel. Candidate travel will be handled by STATE.

Minimum flat fee $60,000 for all non-presidential searches. See table below.

33% Percent of base salary for all presidential searches. If 33% of the president’s base salary falls below $60,000, the minimum fee of $60,000 will be charged.

President/Chancellor/CEO 33% of Base Salary

Provost/Vice President for Academic Affairs $80,000 - $85,000

Vice President/ Chief Financial Officer/ General Counsel/ CIO/ Advancement & Development Leaders

$75,000 - $80,000

Dean/ Director/ Department Chair $70,000 - $75,000

Associate/Assistant VP, Director, Dean / Chief Diversity Officer $65,000 - $70,000

Other Administration and Academic Positions $60,000 - $65,000

Advertising will be billed at cost.

AGB institutional members (North Dakota University System) will receive a 3% fee reduction.

The cost of each Participating Work Order is firm for the duration of the Work Order and is not http://www.legis.nd.gov/cencode/t54c44-4.pdf?20130131153805 http://www.legis.nd.gov/cencode/t39c04-2.pdf?20130131161514 subject to escalation for any reason, unless this Contract is amended, or a valid amendment is processed in accordance with this Contract.

The Contractual Amount is firm for the first two years of the Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract, unless amended, regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs incurred by CONTRACTOR, except as provided by an amendment to this Contract. After the completion of the first two years, the Contractor may make a written request to the STATE for a price increase. The request must include the basis for the cost increase, such as evidence that the price increase applies to all customers.

b. Payment

1) Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables and work(s) provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

2) STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of a correct invoice.

3) Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE, on the basis of audits conducted in accordance with the terms of this Contract, not to constitute allowable costs. At STATE’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

4) For any amounts that are or will become due and payable to STATE by CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

c. Travel STATE shall reimburse CONTRACTOR for expenses related to CONTRACTOR travel at amounts not to exceed those outlined below, unless otherwise agreed to in the Participating Work Order.

1) Lodging: Reimbursement shall not exceed the then current, published GSA rate for the travel location. Copies of receipts are required for lodging reimbursement. STATE shall not reimburse for incidental and miscellaneous expenses charged to the room, including, but not limited to, alcohol, telephone charges, or entertainment (e.g., movies, room service).

2) Transportation: Air travel shall be reimbursed by STATE at the actual cost of air fare for coach class travel only. CONTRACTOR shall make air travel arrangements at least fourteen

(14) days in advance whenever possible. Reimbursement for rented, chartered, or contracted vehicle transportation shall be limited to reasonable rates as determined by

STATE.

3) Meals: Meals shall be paid on a per diem basis for each day of travel at then current, published GSA per diem rate for the travel location. Per diem for the first and last day of travel shall be paid at seventy five percent (75%) of the GSA per diem rate. Requests for per diem payments must include the start and end dates of travel, the location where the services are performed, and the allowable per diem amount for each trip on the billing/invoice.

Payment for any travel expenses that exceed the travel budget as agreed upon by the parties must be approved by STATE’s project manager.

d. Prepayment

STATE will not make any advance payments before performance by CONTRACTOR under this Contract.

e. Payment of Taxes by STATE STATE is not responsible for and will not pay local, state, or federal taxes. STATE sales tax exemption number is E 2001. STATE will furnish certificates of exemption upon request by the

CONTRACTOR.

f. Taxpayer ID CONTRACTOR’S federal employer ID number is: 27-1963417.

4. EMPLOYMENT GUARANTEE

CONTRACTOR guarantees continued employment of the individual hired for one year. If the individual leaves prior to the employment guarantee timeframe from the date of hire, the CONTRACTOR must reengage in one equivalent replacement search on an expenses-only basis (no additional fee), unless the candidate’s departure has been caused by significant changes in reporting structure or responsibility. The STATE will not reimburse CONTRACTOR for expenses exceeding the maximum specified amount unless the CONTRACTOR obtains prior written approval from the STATE in an amendment to the Participating Work Order.

5. TERM OF CONTRACT

This Contract begins on its effective date, and ends on December 31, 2021.

a. No Automatic Renewal This Contract will not automatically renew.

b. Extension Option STATE reserves the right to extend the Contract for an additional period of time, not to exceed twelve months, beyond the current termination date of the Contract.

c. Renewal Option STATE may renew this Contract upon satisfactory completion of the initial Contract term.

STATE reserves the right to execute up to three options to renew this Contract under the same terms and conditions for a period of twelve months each.

6. TERMINATION

a. Termination by Mutual Agreement This Contract may be terminated by mutual consent of both parties executed in writing.

b. Early Termination in the Public Interest STATE is entering into this Contract for the purpose of carrying out the public policy of the State of the North Dakota, as determined by its Governor, Legislative Assembly and Courts.

If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to the CONTRACTOR, may terminate this Contract in whole or in part.

c. Termination for Lack of Funding or Authority STATE by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

3) If any license, permit, or certificate required by law or rule, or by the terms of this

Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either party already accrued prior to termination.

d. Termination for Cause

STATE may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

1) If CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by STATE; or

2) If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

The rights and remedies of STATE provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

7. FORCE MAJEURE

Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, acts of God or war if the event is beyond the party’s reasonable control and the affected party gives notice to the other party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default.

8. INDEMNIFICATION

The STATE and CONTRACTOR each agrees to assume its own liability for any and all claims of any nature including all costs, expenses and attorneys' fees which may in any manner result from or arise out of this Contract.

9. INSURANCE

CONTRACTOR shall secure and keep in force during the term of this Contract, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

a. Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $1,000,000 per occurrence.

b. Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $250,000 per person and $1,000,000 per occurrence.

c. Workers compensation coverage meeting all statutory requirements.

The insurance coverages listed above must meet the following additional requirements:

d. This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by the STATE. The policies shall be in form and terms approved by the STATE.

e. The CONTRACTOR shall furnish a certificate of insurance to the undersigned STATE representative prior to commencement of this Contract.

f. Failure to provide insurance as required in this agreement is a material breach of Contract entitling STATE to terminate this Contract immediately.

g. CONTRACTOR shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

10. WORKS FOR HIRE

CONTRACTOR acknowledges that all work(s) under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to STATE all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE.

CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section.

11. WORK PRODUCT

All work product, equipment or materials created for STATE or purchased by STATE under this Contract belong to STATE and must be immediately delivered to STATE at STATE'S request upon termination of this Contract.

12. NOTICE

All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date mailed when addressed to the parties at the following addresses:

STATE CONTRACTOR

Tricia Opp Dr. Roderick J. McDavis

Procurement Officer II Managing Principal

600 East Boulevard Ave, 14th Floor 1133 20th Street NW, Suite 300

Bismarck, ND 58505 Washington, DC 20036-3402

Notice provided under this provision does not meet the notice requirements for monetary claims against the State found at N.D.C.C. § 32-12.2-04.

13. CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by STATE. STATE shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44-04.

The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the term of this Contract.

14. COMPLIANCE WITH PUBLIC RECORDS LAWS

CONTRACTOR understands that, STATE must disclose to the public upon request any records it receives from CONTRACTOR. CONTRACTOR further understands that any records obtained or generated by CONTRACTOR under this Contract, except for records that are confidential under this Contract, may, under certain circumstances, be open to the public upon request under the North Dakota public records law. CONTRACTOR agrees to contact STATE promptly upon receiving a request for information under the public records law and to comply with STATE’s instructions on how to respond to the request.

15. INDEPENDENT ENTITY

CONTRACTOR is an independent entity under this Contract and is not a STATE employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR’S activities and responsibilities under this Contract, except to the extent specified in this Contract.

16. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’S express written consent. However, CONTRACTOR may enter into subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

17. SPOLIATION – PRESERVATION OF EVIDENCE

http://www.legis.nd.gov/cencode/t44c04.pdf

CONTRACTOR shall promptly notify STATE of all potential claims that arise or result from this Contract. CONTRACTOR shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to STATE the opportunity to review and inspect the evidence, including the scene of an accident.

18. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Contract, including the following documents, constitutes the entire agreement between the parties.

There are no understandings, agreements, or representations, oral or written, not specified within this Contract. This Contract may not be modified, supplemented or amended, in any manner, except by written agreement signed by both parties.

Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

a. The terms of this Contract as may be amended;

b. STATE’s Solicitation Amendment #2 to Request for Proposal (“RFP”) number 110.7-19-078 dated December 19, 2019;

c. STATE’s Solicitation Amendment #1 to Request for Proposal (“RFP”) number 110.7-19-078 dated December 18, 2019;

d. STATE’s Request for Proposal (“RFP”) number 110.7-19-078, dated December 9, 2019;

e. CONTRACTOR’s proposal dated January 13, 2020 in response to RFP number 110.7-19-078.

f. All terms and conditions contained in any automated end-user agreements (e.g., click-throughs, shrink wrap, or browse wrap) are specifically excluded and null and void, and shall not alter the terms of this Contract.

19. SEVERABILITY

If any term of this Contract is declared by a court having jurisdiction to be illegal or unenforceable, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the parties are to be construed and enforced as if the Contract did not contain that term.

20. APPLICABLE LAW AND VENUE

This Contract is governed by and construed in accordance with the laws of the State of North Dakota.

Any action to enforce this Contract must be adjudicated exclusively in the state District Court of Burleigh County, North Dakota. Each party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

21. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

STATE does not agree to any form of binding arbitration, mediation, or other forms of mandatory alternative dispute resolution. The parties have the right to enforce their rights and remedies in judicial proceedings. STATE does not waive any right to a jury trial.

22. ATTORNEY FEES

In the event a lawsuit is instituted by STATE to obtain performance due under this Contract, and STATE is the prevailing party, CONTRACTOR shall, except when prohibited by N.D.C.C. § 28-26-04, pay STATE’S reasonable attorney fees and costs in connection with the lawsuit.

EXHIBIT A

PARTICIPATING WORK ORDER

State Contract # 004, Recruitment Services Contractor Name (CONTRACTOR)

And Agency/Entity Name (PARTICIPATING ENTITY)

1. Reference:

This Participating Work Order and the Master Contract together with any attachments set forth the entire agreement between the parties. This Participating Work Order may not be modified, supplemented or amended, in any manner, except by written agreement signed by both parties.

2. Effective Date and Contract Period:

The contract resulting from this Participating Work Order will follow the same contract period and renewal options as in the State Contract #004.

3. Scope of Work: This Participating Work Order authorizes CONTRACTOR to provide the deliverables described below in accordance with the Scope of Work specified in the Master Contract.

Describe the work to be performed under this Participating Work Order (Delete if not used)

OR

Select from the list below (Delete entire list if not used or any specific ones if not applicable):

A. Acquire a basic understanding of the requesting entity and the community (location of position);

B. Assistance in identifying desired skills and qualifications and if applicable, refinement of compensation package;

C. Assistance with preparation of a search timeline;

D. Identification and recruitment of local and nationwide candidates;

E. Candidate appraisals, reference checks, mining of public domain information on the Internet, interviews and preparation of experience summaries, cultural fit assessment, and in-depth evaluations;

F. Engage the candidate (and spouse/others) prior to any in-person meeting to learn more about the candidate and asses the level of interest;

G. Development and implementation of a process to narrow the candidate list;

H. Assist in the development of the interview questions used by the search committee with the narrowed candidate list;

I. Provide requested documents such as job application, documentation of special training, licensure in the State of North Dakota, evidence of immunizations and most recent drug screen, driver’s license, social security card, I-9 or other documentation allowing employment, applicable accreditation documents;

J. Assistance with arrangements for search committee interviews (including coordinating travel and accommodations if needed);

K. Responsible for finalists’ background checks, including Credit Bureau Checks and assisting in conducting Criminal Background Checks in accordance with NDCC 12-60-24;

L. Required board certifications/eligibility requirements;

http://www.legis.nd.gov/cencode/t12c60.pdf

M. Assistance negotiating a compensation package and employment terms and other customary or requested assistance in connection with the search;

N. Assist with relocation and licensing of selected candidate;

O. Provide requesting entity with progress reports.

4. Applicable Law and Rules:

Is this position being requested exempt from Veterans’ Preferences: Yes or No

Are there any other laws and rules that apply to this position: Yes or No If yes, please describe: Describe

(Note- Veterans’ Preference applies to both classified and unclassified positions. See N.D.C.C 37-19.1-02 Contact HRMS at 701-328-3290 or hrms@nd.gov if you have any questions about Veterans’ Preferences or other laws and rules that may apply to the position.

5. Project Deliverable Payment Schedule:

The following table defines all payment points. After completion of the Scope of Work above, use this table to identify any start/finish dates and any deliverable payment values utilizing the contract maximum hourly rates. The STATE will not make a payment for executing the Participating Work Order as the payments must be tied to items being delivered. For example, the first task might be to agree on the timeline of the search. A partial payment can be made for that task. The parties can also agree to only one payment after the completion of candidate hiring.

# Deliverable Start Finish Invoice 1 Insert deliverable for payment Insert Date Insert Date $ 2 Insert deliverable for payment Insert Date Insert Date $ 3 Add more rows as necessary Insert Date Insert Date $ Project Deliverable Total $

6. Travel Reimbursement:

CONTRACTOR Travel: Will CONTRACTOR be reimbursed for CONTRACTOR travel as per the Master Contract? Yes or No

CANDIDATE Travel: Will CONTRACTOR coordinate CANDIDATE travel per the Master Contract? Yes or No

CANDIDATE Travel: Will CONTRACTOR be reimbursed for CANDIDATE travel per the Master Contract? Yes or No

What is the maximum agreed upon amount for CONTRACTOR and/or CANDIDATE travel?

Insert amount if reimbursed

7. Position Details: The following describes the position details.

Position Name: Insert Name https://www.legis.nd.gov/cencode/t37c19-1.pdf https://www.legis.nd.gov/cencode/t37c19-1.pdf

Describe the Job Duties: Add description or you can state “See Attached Details” and attach the job description

Salary Details: Insert Details

Add any other details needed:

8. Primary Contacts for this Participating Work Order:

PARTICIPATING ENTITY CONTRACTOR

Contact Name: Contact Name:

Address: Address:

Phone: Phone:

Email: Email:

9. State Furnished Property/Services:

Is onsite space being provided to CONTRACTOR: Yes or No

10. Contractor Staff

If applicable, add any specific CONTRACTOR team members that you expect to work on your recruiting effort. If not used, this item can be deleted.

11. Termination:

PARTICIPATING ENTITY may terminate this Participating Work Order with 30 days’ notice to CONTRACTOR and OMB, State Procurement Office contact.

IN WITNESS WHEREOF, the parties have executed this Participating Work Order as of the date of execution by both parties below.

PARTICIPATING ENTITY CONTRACTOR

Signed: Signed:

Printed Name: Printed Name:

Title: Title:

Date: Date: