SUPERINTENDENT SEARCH A GREEMENT T his Agreement is entered into a nd effective as of the th day of S eptember, 2011, a nd is by a nd b etween THE CHARLOTTE- MECKLENBURG BOARD OF EDUCATION ( CLIENT ) and P ROACT SEARCH, LLC ( PROACT ). CLIENT is seeking to retain the services of an experienced and reputable search organization to a ssist it in its search for a new superintendent. PROACT has the requisite qualifications and experience to assist CLIENT and is willing to provide such assistance. Accordingly, the parties desire to reduce their a greement to engage in writing. T herefore, the parties agree as follows: 1. Term: The term of this Agreement shall begin on September, 2011 and shall continue until the e arlier of Client s hiring of a candidate or June 30, 2012. 2. D uties: PROACT s duties, shall be as set forth in Exhibit A, attached hereto and incorporated herein b y reference, and which may be amended upon the mutual agreement of the parties from time to t ime. S uch duties and a timeline for completing such duties shall be listed specifically in Exhibit A. 3. W ritten Reports: CLIENT may periodically r equest and PROACT shall provide upon such reques t p roject plans, progress reports and a final results report. Notwithstanding anything to the contrary h erein, PROACT shall provide weekly progress reports to CLIENT. 4. C onfidentiality: As provided and permitted by law, PROACT shall maintain in strictest confidence any information obtained in the course of the transaction set forth in this Agreement. Any breach of t his provision shall enable CLIENT to terminate this Agreement for cause as set forth in Section 18. 5. Independent Consultant: This Agreement shall not render PROACT an employee, partner, agent of, or joint venture with CLIENT for any purpose. PROACT is and shall remain an independent consultant in his/her relationship to CLIENT. CLIENT shall not be responsible for withholding taxes w ith respect to PROACT s compensation hereunder. PROACT shall have no claim against CLIENT hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker s c ompensation, health or disability benefits, unemployment insurance benefits, or employee benefits o f any kind. 6. I nsurance: PROACT shall carry general liability and auto insurance relative to any service that it performs for CLIENT, and shall add the CLIENT as an additional insured. As well, PROACT shall c arry workers compensation insurance covering the activities of its officers, managers and employees d uring its performance of this Agreement. 7. S uccessors and Assigns: All of the provisions of this Agreement shall be binding upon and inure to t he benefit of the parties hereto and their respective heirs, if any, successors, and assigns. PROACT shall not assign any of his/her rights under this Agreement, or delegate the performance of any of h is/her duties hereunder, without the prior written consent of CLIENT. 8. C hoice of Law; Right to Injunction; Arbitration. T he laws of the state of N orth Carolina and in the county of M ecklenburg shall govern the validity of this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties hereto. T he part ies f urther acknowledge that the services to be rendered by PROACT under this Agreement and the rights and privileges granted P ROACT CMS SUPERINTENDENT SEARCH CONTRACT - 1
to CLIENT under the Agreement are of a special, unique, unusual, and extraordinary character which g ives them a peculiar value, the loss of which cannot be reasonably or adequately compensated by damages in any action at law, and the breach by PROACT of any of the provisions of this Agreement s hall c ause CLIENT irreparable injury and damage. PROACT expressly agrees that CLIENT shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by PROACT. Resort to such equitable relief, however, shall not be c onstrued to be a waiver of any other rights or remedies that CLIENT may have for damages or otherwise. The various rights and remedies of CLIENT under this Agreement or otherwise shall be construed to be cumulative, and no one of the them shall be exclusive of any other or of any right or r emedy allowed by law. Any controversies arising out of the terms of this Agreement or its i nterpretation shall be settled in M ecklenburg County in accordance with the rules of the American A rbitration Association, and the judgment upon award may be entered in any court having j urisdiction thereof. 9. W aiver: Waiver by one party hereto of breach of any provision of this Agreement by the other shall n ot operate or be construed as a continuing waiver. 10. C ompliance with Laws. B oth parties agree to comply with all Federal and North g overning their relationship or the transaction contemplated under this Agreement. Carolina laws 11. N otices: Any and all notices, demands, or other communications required or desired to be given h ereunder by any party shall be in writing and shall be validly given or made to another party if personally served or if deposited in the United States mail. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such n otice, demand, or other communication is given by mail, such notice shall be conclusively deemed given five days after deposit thereof in the United States mail addressed to the party to whom such n otice, demand, or other communication is to be given as follows: I f to PROACT: G ary Solomon or Tom Vranas P ROACT SEARCH, LLC 1215 Washington Avenue S uite 300 W ilmette, IL 60091 I f to CLIENT: The Charlotte-M ecklenburg Board of Education 600 East Fourth Street, Fifth Floor C harlotte, NC 28202 Daniel Habrat, Chief Human Reso ATTN: urce Officer E ither party hereto may change its address for purposes of this paragraph by written notice given in t he manner provided above. 12. M odification or Amendment: No amendment, change, v alid unless in writing signed by the parties hereto. or modification of this Agreement shall be P ROACT CMS SUPERINTENDENT SEARCH CONTRACT - 2
13. E ntire Understanding: This Agreement and any exhibit attached constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations a re hereby terminated and canceled in their entirety and are of no further forc e and effect. 14. U nenforceability of Provisions: If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full f orce and effect. 15. Non-solicitatio n: PROACT shall n ot engage in any activity resulting in either the direct or indirect r ecruiti ng of t he placed s u perintendent for as long as CLIENT employs placed su perintendent. Further, PROACT a grees not to actively solicit any of CLIENT s employees for a period of 1 year f rom the date the placed superintendent begins work with CLIENT. 16. M edia: PROACT s hall engage (or not engage) with the media as determined by CLIENT and P ROACT Search in the initial planning meetings. 17. A dditional Research: P ROACT Search s hall provide ample research materials for the CLIENT to determine best practices in s uperintendent c ontracts and associated terms. These materials and other m aterials shared with CLIENT may be determined to be confidential in nature. 18. T ermination: a. W ithout Cause. PROACT or CLIENT may terminate this contract at any time for any reason by giving at least seven (7) days notice in writing. If the contract is terminated by CLIENT as provided herein, PROACT s hall b e paid a fair payment as negotiated with C LIENT for the work c ompleted as of the date of termination. b. For C ause. Either party may terminate this Agreement immediately upon the occurrence of a ny of the following: i. Material b reach of this Agreement. ii. Prospective inability of either party to complete i ts r esponsibilities as set forth in this A greement. iii. Intentional, w illful or wantonly reckless misconduct that jeopardizes the integrity of t he search for a superintendent. I f this Agreement is terminated for caus e, CLIENT shall not be obligated to compensate P ROACT for any fees or expenses payable after such termination. 19. F ee Structure: CLIENT s hall p ay PROACT by the following schedule for services: a. U po n Execution of the Agreement $ 11,500. 00 b. Upon Delivery of F in alist C andidates $ 11,500. 00 c. U pon Successful Hire of Candidate $ 11,500. 00. All additional expenses, including consultant travel, candidate travel, advertisement and recruitment s hall b e subject to approval by CLIENT. E xcept as expressly approved in writing by CLIENT, the t otal a mount paid for such expenses d uring the term of this Agreement, exclusive of candidate t ravel, shall not exceed $15,000.00. Approved expenses s hall b e paid within 30 days of CLIENT s r eceipt o f an i nvoice f rom PROACT. 20. G uarantee: PROACT s hall guarantee these services. Should the hired Superintendent leave the district within 12 months of his/her contract date, PROACT agrees to complete a new search for no a dditional service fees. All ancillary fees (travel, advertisement, recruitment) would apply, but be s ubject to approval by CLIENT. P ROACT CMS SUPERINTENDENT SEARCH CONTRACT - 3
IN WITNESS WHEREOF the undersigned have executed this Agreement as of the day and year first w ritten above. The parties hereto agree that facsimile signatures shall be as effective as if originals. C LIENT P ROACT B y: B y: Eric Davis, Board Chairperso n T homas Vranas, President P ROACT CMS SUPERINTENDENT SEARCH CONTRACT - 4
E XHIBIT A : PROPOSAL P ROACT CMS SUPERINTENDENT SEARCH CONTRACT - 5