Loading...
HomeMy WebLinkAboutContract 44007 (2)City Secretary Contract No. Ljt/Oo7 PROFESSIONAL SERVICES AOREE[V1hNT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City" or "Client"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Tom Higgins, its duly authorized City Manager, and THE WHITNEY SMITH COMPANY, INC. ("Consultant" or "Contractor"), a Texas corporation and acting by and through O. WHITNEY SMITH, its duly authorized President and CEO 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional consulting services for the purpose of conducting a professional search for the Director of Communications and Public Engagement for the City of Fort Worth. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Statement of Work, more specifically describing the services to be provided hereunder. If there is any conflict between this Agreement and Exhibit A, the terms and conditions of this Agreement shall control. 2. TERM. This Agreement shall commence on the last day executed below by each party ("Effective Date") and shall expire on June 30, 2013 unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended by the parties. 3. COMPENSATION. The City shall pay Consultant an amount not to exceed $34,000.00 and preapproved related expenses up to $5,000 in accordance with the provisions of this Agreement and the Payment Schedule attached as Exhibit "3," which is attached hereto and incorporated for all purposes herein. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. 4. TERMINATION. 4.1. Convenience. The City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. 4.2 Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Consulting Agreement OFFICIALli&ttURD Revised June 2012 THE WHITNEY SMITH COMPANY, �I lg. SECR ARY Page 1 of 8 i1 , WORVUtiCj 5,I7A 1 2-28-1 2 Ai 0: 45 I N City Secretary Contract No. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant s services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing 5.2 Confidential Information. Consultant, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 5.3 Unauthorized Access. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access modify delete or otherwise corrupt City Information in any way Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event Consultant shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Consultant agrees that the City shall, until the expiration of two (2) years after final payment under this contract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the consultant involving transactions relating to this Contract at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of intended audits. Consultant further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of two (2) years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers agents servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. It is further understood that the City shall in no way be considered a Co -employer or a Joint employer of Consultant or any officers, agents servants, employees or subcontractors of Consultant. Neither Consultant, nor any officers, agents servants, employees or subcontractors of Consultant shall be entitled to any employment benefits from Consulting Agreement THE WHITNEY SMITH COMPANY, INC. Page 2 of 8 Revised June 2012 City Secretary Contract No. the City. Consultant shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 8. LIABILITY AND INDEMNIFICATION. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, P ROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL P ERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES CONSULTANT COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE N EGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract 10. INSURANCE. 10.1 The Consultant shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: (a) Commercial General Liability with a combined limit of not less than $1,000,000 per occurrence. (b) Automobile Liability Insurance with a combined limit of not less that $1,000,000 per occurrence. (c) Professional Liability (Errors & Omissions) in the amount of $1,000,000 per claim and $1,000,000 aggregate limit. (d) Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. (e) Any other insurance as required by City. 10.2 General Insurance Requirements: (a) All applicable policies shall name the City as an additional insured thereon, as its interests may appear The term City shall include its employees officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. Consulting Agreement THE WHITNEY SMITH COMPANY, INC. Page 3 of 8 Revised June 2012 City Secretary Contract No. (c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS. ORDINANCES, RULES AND REGULATIONS. Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations Consultant shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein agrees that in the performance of Consultant's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand -delivered to the other party its agents employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: TO THE CITY: City of Fort Worth Attn.: Tom Higgins 1000 Throckmorton Fort Worth TX 76102-6311 Facsimile. (817) 392-8654 TO CONSULTANT: Name. The Whitney Smith Company, Inc. Attn: G. Whitney Smith Address: 301 Commerce Street, Suite 1950 Fort Worth TX 76102 Facsimile: 14. SOLICITATION OF EMPLOYEES. With Copy to the City Attorney at same address Neither the City nor Consultant shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent Consulting Agreement THE WHITNEY SMITH COMPANY, INC. Page 4 of 8 Revised June 2012 City Secretary Contract No. contractor, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer. This provision shall not apply to an employee who responds to a general solicitation or advertisement of employment by either party. 15. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 16. NO WAIVER. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City s or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW / VENUE. This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. FORCE MAJEURE. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such party. Consulting Agreement THE WHITNEY SMITH COMPANY, INC. Page 5 of 8 Revised June 2012 City Secretary Contract No. 23. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Consultant their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. NETWORK ACCESS. Not applicable to this Agreement. 25. SIGNATURE AUTHORITY. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution ordinance or other authorization of the entity. This Agreement, and any amendment(s) hereto may be executed accordingly. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. (SIGNATURE PAGE FOLLOWS] Consulting Agreement THE WHITNEY SMITH COMPANY, INC. Page 6 of 8 Revised June 2012 By: Executed in multiples this the AGREED: CITY OF FORT WORTH: By: Date: AiTES Mary Kays ►, City Secretary 729 Tom Higgin City Manager /Z/e7 • wt:-9 J City Secretary Contract No. day of 7191/M 2 OLm AGREED: THE WHITNEY SMITH ITH CO., INC. Thk By: G Whitney Sriith President Date: k APjt.C°11r14 �f3t0��4�g�1 � L OQ Q 4 gI Q . 4TTEST: gfrat v 08t1Ci 0 dt % )0(1sE APPROVED_AS:TOYORM-=4ND LEGALITY: Maleshia B Firmer Senior Assistant City Attorney CONTRACT AUTHORIZATION: M&C: Date Approved: Consulting Agreement THE WHITNEY SMITH COMPANY, INC. Page 7 of 8 • • a:J;i o- it ' U®A `L��•• XAS eCir OFFICIAL RECORD CITY SECRETARY F'T. WORTH, TX Name Title AElte)/ Revised June 2012 City Secretary Contract No. EXHIBIT A STATEMENT OF WORK Consulting Agreement THE WHITNEY SMITH COMPANY, INC. Page 8 of 8 Revised June 2012 EXHIBIT Director of Communications & Public Engagement CONDUCTING A SEARCH THROUGH WHITNEYSMITH The WhitneySmith Company was established in Fort Worth, Texas in 1989. To date, we have approximately 1,800 clients across the United States. We serve the profit, municipal government, and nonprofit sectors. In Fort Worth and across Texas, we have a lengthy list of clients that includes a large number of well-known and highly regarded profit, municipal government, and nonprofit clients. Our local clients, as well as national clients, call upon our fine for assistance with human resources audits, employee relations, recruitment, compensation, benefits, and training support. In addition, we are licensed as a private investigation firm through the Texas Department of Public Safety. As a private investigation firm, we offer a unique opportunity to our clients who engage our firm on search assignments to conduct extremely thorough background investigations, including criminal history. This is a unique service that is rarely offered by search consulting firms. WhitneySmith will manage the Director of Communications & Public Engagement search through a team approach. The primary responsibility for screening, interviewing and evaluating candidates will be managed by Ben Perryman. Ben is a seasoned executive search professional with more than 18 years search experience. Supporting the screening and interviewing efforts will be Whit Smith. Whit will provide leads on candidates and networking support. As President of WhitneySmith, Whit has more than 30 years of executive search experience. A unique service provided by WhitneySmith in conducting executive -level searches includes our firm's ability to offer extremely thorough criminal background checks. As a private investigation firm, we are licensed by the Texas Department of Public Safety to research criminal records in any county Jurisdiction across the United States. Our firm also offers at no additional charge personality assessments, including the Pearson's Personality Inventory, which provides both a qualitative and quantitative assessment on an individual through 20 personality characteristics. WhitneySmith has an extremely large database representing thousands of resumes, including a large number of candidates for senior and executive level positions. 1 SEARCH CONSULTANTS Ben Perryman, a Senior Search Consultant, joined our firm in 2001. Mr. Perryman will lead the search for the Director of Communications & Public Engagement. Prior to joining our firm, Mr. Perryman was associated with the intemational search firm of Ray & Berndtson for seven years. Mr Perryman earned a B.A. in Economics from the University of Texas in Austin and an M.H.A. from Texas Christian University. He is actively involved as a board member of the YWCA Resale Shop, Hill School of Fort Worth, and is a member of the Downtown Fort Worth Rotary Club. Whit Smith will also be involved in the search in a supporting role. Mr. Smith is President of WhitneySmith and has over 30 years of experience in human resources consulting, employment - related activities and litigation support. His role in supporting Mr. Perryman will be to provide possible networking ideas, candidates, and any other support deemed necessary. Mr. Smith was born and raised in Fort Worth. He graduated from the University of Texas with a B.A. in Management, and is also a graduate of the Southwestern School of Banking at SMU. He currently serves on the boards of the Fort Worth Chamber of Commerce (currently Chairman of the Board), Fort Worth Museum of Science and History the YMCA of Metropolitan Fort Worth, the Fort Worth Opera, All Saints Health Foundation (currently Chairman of the Board), and Amphibian Productions, Inc. In each of these organizations, he currently serves or previously has served in leadership positions. SEARCH PROCESS Scone of the Position The first step in our search process will be to interview personally members of the Search Committee or key City personnel, to develop a profile of desired traits, skills, experiences, management capabilities and attitudes that are required for the Director of Communications & Public Engagement. After a profile and scope of requirements is determined, the current job description will be revised, if necessary, and will be used for recruiting the best possible candidates. Sourcing of Candidates Our recruiting methods may include, but will not be limited to, the following: Conducting research and networking to determine the best possible recruiting sources for this position. Networking and extensive personal contacts with other city and/or other municipal organizations, regionally, statewide and nationally (if desired). 2 • • Direct mail and/or telephone contact to qualified Director of Communications & Public Engagement throughout Texas and the United States (if desired). Advertising in select industry publications, a variety of targeted websites, and our website www.whitnevsmithco.com. Further our firm assures the City of Fort Worth that our search will involve diversity and gender -based recruitment activities. Screening of Candidates We will screen and Qualify prospective candidates through lengthy telephone conversations detailing the prospect's background and experience, salary history, and educational credentials. Based on the outcome of these discussions, we will identify the most qualified prospects to interview on a personal basis. In Depth Interviews We will conduct in-depth interviews with all qualified candidates. Extensive reference checks, professional certification and licensing verifications, and personality/behavioral testing (if requested) will be conducted on the candidates. Based on these interviews and background verification, appropriate procedures, this group will be reduced to a smaller group of semi- finalists. While we would recommend a maximum of four semi-finalists, we will consult with the Search Committee or appropriate officials to make that determination based upon the field of candidates. Semi-finalist Interviews The Search Committee, or appropriate officials, will interview each of the semi-finalists, either one-on-one, or as a panel. We will assist in arranging the time or times for the interviews, developing questions for the committee's use during the interview process and, of course, we are available to attend each of these interviews if the committee so desires. References on Final Candidates As the search narrows to the final stages, prior to a formal offer, we conduct extensive reference verifications on the preferred candtdates(s). We gather information from subordinates, peers, and supervisors of the candidates to round out the history of his or her management style, demeanor, and performance. Salary and Compensation Negotiations Our firm is available to facilitate the salary and benefits negotiations. If desired, we can assist with the compilation of an offer letter or employment agreement. 3 Notification to Unsuccessful Candidates We will notify all unsuccessful candidates. RECRUITER CONTACT WITH SEARCH COMMITTEE We are prepared to meet with the Search Committee or appropriate officials as frequently as the Committee may deem necessary. There are specific times we will desire a meeting in order to insure that both our firm and the Committee maintain. focus on the search process. An initial meeting with the Search Committee or appropriate officials to establish the parameters of the search and to clarify the key activities and minimum qualifications of the Director of Communication & Public Engagement will be essential. Other meetings we believe to be important during the search process will include: • • • A brief review of all applicants and those identified by our firm as semi-finalists for the position. From the semi-finalist interviews, a finalist will be selected. The process of negotiating an offer will be discussed with the Search Committee or appropriate officials and an offer will be made by our firm if desired. At the Search Committee's request, additional meetings can be held. LENGTH OF THE SEARCH We believe the search for the Director of Communication & Public Engagement may reasonably require between 90 and 120 days. While we would prefer the search to require less time, we cannot guarantee the search will be completed within this time frame. 4 City Secretary Contract No. EXHIBIT B PAYMENT SCHEDULE Consulting Agreement THE WHITNEY SMITH COMPANY, INC. Page 9 of 9 Revised June 2012 EXHIBIT B Director of Communications & Public Engagement FEES AND RELATED EXPENSES Our fee for an executive search on a retained basis is 25% of the base salary of the candidate successfully placed, not including out of pocket expenses. We will not include any bonus provided to the Director of Communications & Public Engagement in the calculation of the fee As an example, if the base salary that was accepted for this position was $100,000, our fee would be $25,000. A deposit of 50% of the estimated fee will be required at the initiation of the search and is nonrefundable. The balance of the fee will be recalculated and billed at the completion of the search. Expenses associated with the search will be billed at the end of each month in which they are incurred. All expenses in excess of $500 will be preapproved by the City Manager. Typical expenses that are incurred for this type of search include long distance telephone charges, advertising (subject to preapproval), and travel, as required. When air travel is necessary, it will be arranged at the lowest possible cost. In addition, lodging and relating expenses may be necessary when overnight travel is required. SEARCH GUARANTEE In the event the selected candidate resigns, or must be replaced during the first three months of employment, we will conduct another search for no additional fee other than out of pocket expenses.