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HomeMy WebLinkAboutContract 45043 (2)City Secretary Contract No. PROFESSIONAL SERVICES AGREEMENT 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 of the State of Texas, acting by and through Tom Higgins, its duly authorized City Manager, and THE WHITNEY SMITH COMPANY, INC. ("Consultant" or "Contractor"), a Texas corporation, acting by and through G. WHITNEY SMITH, its duly authorized President. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional consulting services for the purpose of conducting a professional search for candidates to fill the position of City Manager of 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 April 30, 2014, unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended by the parties. 3. COMPENSATION; EXPENSES. As full and complete compensation, the City shall pay Consultant a Fee in an amount equal to 25% of the starting Base Salary of the selected candidate. For purposes of this Agreement, "Base Salary" refers solely to the mathematical product of the selected candidate's hourly rate multiplied by two thousand and eighty hours. "Base Salary" does not include any other form of direct or indirect compensation that is offered or provided to the selected candidate, including, but not limited to, additional deferred compensation -plan contribution; special merit pay; bonus; vehicle, parking, fuel, cell phone, or similar allowance; any health care, retirement, medicare, or other premium, contribution, or benefit; or the value of any other perquisite. Consultant's Fee shall be paid in accordance with the provisions of this Agreement and the Payment Schedule in Exhibit "B," 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. In addition to the Fee, the City shall reimburse the Consultant for (i) Consultant's actual expenses incurred in conducting the search provided however that all such expenses must be approved by the City in advance and shall not exceed a combined total of $3,000.00; and (ii) reimbursement for actual expenses incurred for candidates' travel and accommodation provided however that all such expenses must be approved by the City in advance. Reimbursement of expenses shall be made in accordance with the terms of Exhibit "B." The City shall not be liable for Consultant not specified by this expenses in writing in advance. Its TERMINATION. 4.1. Convenience, any additional compensation Agreement unless the City ap to or incurred by such compensatio or OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Either party may terminate this Agreement at any time, with or without cause, 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 Professional Services Agreement — CFW and The Whitney Smith Company, Inc. RECEIVED Page 1 of 8 ACT 2 9 20i� City Secretary Contract No. 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. Such termination shall be without penalty or expense to the City of any kind whatsoever, provided however that the City shall be liable to Consultant for the portions of agreed payments for which funds have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to its expiration, 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. 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 conflict of interest arises 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 ("City Information") 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 Agreement, 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 Agreement 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, Professional Services Agreement — CFW and The Whitney Smith Company, Inc. Page 2 of 8 City Secretary Contract No. 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 of its officers, agents, servants, employees or subcontractors shall be entitled to any employment benefits from 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, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, 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) AND/OR 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 OR ALLEGED TO BE CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S) OR MALFEASANCE OR INTENTIONAL MISCONDUCT 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 either 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. Professional Services Agreement — CFW and The Whitney Smith Company, Inc. Page 3 of 8 City Secretary Contract No. 10.2 General Insurance Requirements: (a) Each policy of insurance required hereunder shall be written so as to provide the City with a minimum of thirty (30) days notice of cancellation or reduction in limits of coverage provided, however, that 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. (b) The insurers for all policies must be licensed and/or approved to do business in the State of Texas or otherwise approved in advance by the City. 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 the City's Risk Management Division. If the rating is below that required, written approval of the City's Risk Management Division is required. (c) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 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 employees, agents, 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 employees, agents, 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 With Copy to the City Attorney at same address . 14. SOLICITATION OF EMPLOYEES. TO CONSULTANT: Name: The Whitney Smith Company, Inc Attn: G. Whitney Smith 301 Commerce Street, Suite 1950 Fort Worth TX 76102 Facsimile: Neither the City nor Consultant shall, during the term of this Agreement and additionally for a period of one year after its termination or expiration, solicit for employment or employ, whether as employee or independent 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. Professional Services Agreement — CFW and The Whitney Smith Company, Inc. Page 4 of 8 City Secretary Contract No, 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 either party 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 that party'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 subject to and 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. If either party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; wars; blockades; insurrections; riots; epidemics; public health crises; earthquakes; fires; floods; restraints or prohibitions by any court, board, department, commission, or agency of the United States or of any state; declaration of a state of disaster or of emergency by the federal, state, county, or City government in accordance with applicable law; issuance of a Level Orange or Level Red Alert by the United States Department of Homeland Security; any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the party's reasonable control (each a "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such Event. 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 had the opportunity to review and revise 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 any exhibit 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. Professional Services Agreement — CFW and The Whitney Smith Company, Inc. Page 5 of 8 City Secretary Contract No, 23. ENTIRETY OF AGREEMENT. This written instrument (together with any exhibits or addenda 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. Consultant does not require access to the City's computer network in providing services under 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 his or her 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 intothisAgreement or any amendment hereto. Executed in multiples this the e' day of „20 11 AGREED: CITY OF FORT WORTH: By: Tom Higgins City Manager Date: la — oZ g ATTEST: By: 'Mary Kayser City Secretary AND LEGALITY: By: L Assistant City A, CONTRACT AUTHORIZATION: M&C: Date Approved: ©C� 2 c1,PI`'� AGREED: THE WHITNEY SMITH.CO., i B A� c y G. Whitney Smith President ti <, ti .lti By: TT Ititf1 I Title jt7K4Fd&4f Le ell Professional Services Agreement — CFW and The Whitney Smith Company, Inc. EVONIA DANIELS Notary Public, State of Texas My Commission Expires July 10, 2017 OFFICIAL RECOR® 61TV SECRE���Xo $ IaTv WORTH, TX City Secretary Contract No. EXHIBIT A STATEMENT OF WORK The Consultant will provide the following services in connection with the search for candidates to fill the position of City Manager of the City of Fort Worth: Development of Recruitment Specifications -The Consultant will meet with the Mayor, City Council, key Staff and other stakeholders to define the position requirements, candidate qualifications and current issues. The information gathered will be used to draft a Recruitment Profile, which will be used to conduct a preliminary screening of job candidates. Recruiting -Consultant shall conduct or ensure completion of a directed campaign to identify candidates whose backgrounds and experiences closely fit the Recruitment Profile. Such campaign shall include but not be limited to performance of the following: 1) Informational mailings to key associations/organizations throughout the country; 2) Selected advertising through national publications and selected professional associations; 3) Network and direct inquiries with professional sources that are knowledgeable in the field; and 4) Use of experience, contacts and file data from previous searches in this field of expertise. In selecting associations, publications, and professional sources to which to direct campaign information, Consultant shall Preliminary Screening -Consultant in coordination with identified City representatives) shall conduct preliminary screening based on the Recruitment Profile and information contained in candidate resumes as well as Consultant's knowledge of the candidates and the organizations in which they work. Consultant shall ensure the completion of interviews and background inquiries for the most promising candidates in order to gain a better understanding of their backgrounds. A progress report listing information on the leading candidates will be developed and submitted to the Mayor and City Council for review and discussion. Semi-finalist candidates will be identified from this group with such candidates continuing on to the next phase of the process. Candidate Evaluation and Reference Check - The Consultant will conduct an in-depth interview with each of the semi-final candidates. Additionally, for each semi-finalist candidate, the Consultant will (i) verify degrees and certifications, (ii) conduct credit/criminal/civil litigation/motor vehicle record checks and (iii) gather and confirm other relevant information as requested by the City or as deemed advisable by Consultant in exercise of its reasonable professional judgment. Consultant shall identify the most promising of the semi-finalist candidates and prepare and present a list of several finalists to the Mayor and City Council Members for review and approval. Final Reporting of Finalists - The Consultant will provide a detailed written report and evaluation of each finalist candidate and assist in the candidate assessment process. Final Interviews - Consultant shall assist the City in the coordination and conduct of interviews with the selected finalists and, if requested, in post -interview evaluations and assessments. Guarantee -Whitney Smith Company, Inc., guarantees its selection process by promising that if the selected candidate should voluntarily resign or be terminated within the first year from the first date the selected candidate begins working at the City or, if an internal candidate is selected, begins working in the City Manager position, Consultant will redo the search for no additional professional fees. If the selected candidate should voluntarily resign or be terminated in the second year from the date the selected candidate begins working at the City or, if an internal candidate is selected, begins working in the City Manager position, Consultant will redo the search for 50 percent of its professional fees. Professional Services Agreement — CFW and The Whitney Smith Company, Inc. Page 7 of 8 City Secretary Contract No. EXHIBIT B PAYMENT SCHEDULE Fee Consultant's Fee shall be divided into in a series of three payments and made as follows: Payment 1: $20,000 paid within 10 days of execution of the Agreement. Payment 2: $201000 within 45 days of execution of the Agreement. Payment 3: Balance due (i) if an external candidate is selected, within 10 days of the date the selected candidate begins working at the City or (ii) if an internal candidate is selected, within 10 days of the date the selected candidate begins working in the City Manager position. Expense Reimbursement Reimbursement for an expense that is incurred in compliance with the terms of the Agreement shall be made within 10 business days of the date the City receives documentation of the expense. Professional Services Agreement — CFW and The Whitney Smith Company, Inc. M&C Review Page 1 of 2 �fficiai site of the city of Fort Worth, Texas COUNCIL ACTION: Approved on 10/29/2013 DATE: 10/29/2013 REFERENCE NO.: C-26544 LOG NAME. SMITH NEY NOW PUBLIC CODE: C TYPE: CONSENT HEAR NG. NO SUBJECT: Authorize Execution of a Contract with the Whitney Smith Company, Inc., for Executive Search Consultant Services for a City Manager for Twenty -Five Percent of the Starting Base Salary for Professional Services and Up to $3,000.00 for Related Expenses (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a contract with Whitney Smith Company, Inc., for executive search consultant services for the recruitment and selection of a City Manager for twenty-five percent of the starting base salary for professional services and up to $3,000.00 for related expenses. DISCUSSION: It is recommended that the professional consultant services of Whitney Smith Company, Inc., be engaged to perform a national executive search for a City Manager. The consultant will provide the following services: Development of Recruitment Specifications -The consultant will meet with the Mayor, City Council, key Staff and other stakeholders to define the position requirements, candidate qualifications and current issues. The information gathered will be used to draft a Recruitment Profile, which will be used to conduct a preliminary screening of job candidates. Recruiting - A directed campaign will be conducted to identify candidates whose backgrounds and experiences closely fit the desired candidate criteria including: 1) Informational mailings to key associations/organizations throughout the country; 2) Selected advertising through national publications and selected professional associations; 3) Network and direct inquiries with professional sources that are knowledgeable in the field; and 4) Use of experience, contacts and file data from previous searches in this field of expertise. Screening -Preliminary screening will be based on the developed criteria and information contained in resumes and the consultant's knowledge of the people and the organizations in which they work. Interviews and background inquiries will be conducted with the most promising candidates to gain a better understanding of their backgrounds. A progress report listing information on the leading candidates will be developed and submitted to the Mayor and City Council for review and discussion. Candidates for the next phase of the process will be identified from this group. Candidate Evaluation and Reference Check -The consultant will conduct an in-depth interview with each of the semi-final candidates. Additionally, the consultant will verify degrees and certifications, conduct credit/criminal/civil litigations/motor vehicle record checks and other relevant information. A list of several http://apps.cfwnet.org/council.packet/mc review.asp?ID=19174&councildate=l0/29/2013 10/29/2013 M&C Review Page 2 of 2 finalists will then be presented to the Mayor and City Council Members for review and approval. Final Reporting of Finalists - The consultant will provide a detailed written report and evaluation of the final candidates and assist in the candidate assessment process. Guarantee - Whitney Smith Company, Inc., guarantees its selection process by promising that if the selected candidate should voluntarily resign or be terminated within the first year from the date of hire, it will redo the search for no additional professional fees. If the selected candidate should voluntarily resign or be terminated in the second year from the date of hire, it will redo the search for 50 percent of their professional fees. Estimate of Time -The in-depth recruitment process takes approximately 90 days to develop the recruiting brochure, conduct a national recruiting campaign, interview and evaluate candidates and conduct final selection interviews. However, the actual timeline may be modified to meet the City's needs. Cost -The professional search fee for the City Manager's position is 25 percent of the starting base salary plus expenses associated with the search, not to exceed $3,000.00 for travel, advertising, long distance telephone charges, postage and such charges as may be approved by the City Council. In addition, Whitney Smith Company, Inc., will be responsible for providing travel and accommodations to candidates to be approved in advance by the City. The City will provide reimbursement to Whitney Smith Company, Inc., for these expenses upon submission of receipts and other appropriate documentation. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated, of the General Fund. TO Fund/Account/Centers Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS FROM Fund/Account/Centers GG01 539120 0021000 Susan Alanis (8180) Harry Anderson (2632) Scott Mitchell (7758) $59.000.00 http://apps.cfwnet.org/council�acket/mc review.asp?ID=19174&councildate=l0/29/2013 10/29/2013