HomeMy WebLinkAbout12-09-19 City Commission Packet Materials - A4. Delegate Selection of Executive Recruitment Firm to the Interim City Manager
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Greg Sullivan, City Attorney
SUBJECT: Delegate to Interim City Manager Selection of Executive Recruitment Firm for City Manager Recruitment
MEETING DATE: December 9, 2019
AGENDA ITEM TYPE: Action
RECOMMENDATION: Delegate to the Interim City Manager the authority to solicit
proposals from executive recruitment firms, interview and select a firm, and enter into a
professional services agreement with the selected firm. In addition, the Commission may request the interim city manager invite the selected firm attend a Commission discussion on Monday,
January 13, 2020 (or as soon as possible) to review the Commission’s desired attributes and
characteristics of a city manager, to review and finalize a position profile, and approve the
timeline for recruitment and selection of a new city manager.
SUGGESTED MOTIONS: The Commission may consider the following motions:
1. I move to delegate to the interim city manager the authority to solicit proposals from
executive recruitment firms, interview those who submit proposals, select a firm, and negotiate and enter into a professional services agreement with the selected firm.
2. I move to request the interim city manager work with the selected firm to attend a
meeting of the Commission on January 13, 2020 (or as soon as possible) to discuss the
Commission’s desired attributes and characteristics of city manager, provide the Commission a city manager position profile, and discuss the recruitment timeline.
BACKGROUND & MAYOR RECOMMENDATION: Mayor Andrus requested you be
provided an opportunity to decide whether to expedite the selection of a recruitment firm to
conduct the search for a new city manager. Once the recruitment firm is selected, the process between the recruiter and the Commissioner will be as deliberate as in 2017. Obviously, the
decision on how to conduct the recruitment and selection process is a determination of the entire
commission. This agenda item merely provides the opportunity to move that process forward as
soon as possible.
In 2017, the Commission used an executive recruiter to assist the City in finding a new city
manager. See documents in the previous agenda item on the 2017 recruitment process. During
the 2017 process, the Commission spent time interviewing recruiters before finally selecting one.
Mayor Andrus recommends the Commission again use a recruiter and, for the current search,
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expedite the process by delegating to the interim) city manager the responsibilities to solicit
proposals from recruiters, interview and select a firm, and enter into a professional services
agreement with the selected firm. Doing so could expedite the process for releasing a formal
recruitment by at least a month.
The City’s standard professional services agreement is attached and will form the basis for the
negotiation with the selected recruitment firm. Should the Commission delegate the authority to
the interim city manager to enter into a professional services agreement, it will be reviewed and
approved by the City Attorney’s Office prior to formal signing.
In 2017, from the date the Commission first began discussing the process for finding a new city
manager the formal recruitment did not begin for approximately three months. Mayor Andrus
recommends the Commission shorten that time as much as possible.
Should the Commission determine to delegate to the interim city manager the authority to
conduct this initial step, the Commission should meet with the selected recruiter in open sessions
as was done on June 15, 2017 to discuss with the recruiter the desired attributes and
characteristics and to finalize the position profile to be used in the recruitment. At that meeting,
the Commission could also discuss the preferred timeline for the formal recruitment. At this time, it may be possible to have the selected recruiter attend the January 13, 2020 meeting. The
second motion above provides the opportunity for the Commission to request the selected
recruiter do so.
UNRESOLVED ISSUES: None identified. ALTERNATIVES: As determined by the Commission.
FISCAL EFFECTS: In 2017, the costs of the executive recruitment firm was $23,031.00.
Staff anticipates the costs to be similar to 2017. The costs of a recruiter have not been included in the City’s FY2020 budget. According to Assistant City Manager Anna Rosenberry, these costs
could be funded from the city manager contingency amount.
Report compiled on December 4, 2019 City Standard Professional Services Agreement
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Form of Professional Services Agreement
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ____________, 201__,
by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation
organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse
Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771,
hereinafter referred to as “City,” and, ____________, _______________, hereinafter referred to
as “Contractor.”
In consideration of the mutual covenants and agreements herein contained, the receipt
and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Exhibit “A” and by this reference
made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its execution
and will terminate on the _____ day of ______________, 201_.
3. Scope of Services: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement
and the Scope of Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described services that involves additional costs
above the Agreement amount will be performed by Contractor after written request by the City,
and will become an additional charge over and above the amount listed in the Scope of Services.
The City must agree in writing upon any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws, ordinances,
rules, and regulations that in any manner may affect cost, progress or performance of the Scope
of Services.
b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform said services in a professional,
competent and timely manner and with diligence and skill; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this
Agreement shall not infringe upon or violate the rights of any third party, whether rights of
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copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever,
or violate any federal, state and municipal laws. The City will not determine or exercise control as
to general procedures or formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that
Contractor is an independent contractor for purposes of this Agreement and is not to be considered
an employee of the City for any purpose. Contractor is not subject to the terms and provisions of
the City’s personnel policies handbook and may not be considered a City employee for workers’
compensation or any other purpose. Contractor is not authorized to represent the City or otherwise
bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation
Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter
71, MCA. Contractor shall maintain workers’ compensation coverage for all members and
employees of Contractor’s business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
Contractor shall post a legible statement of all wages and fringe benefits to be paid to the
Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be
paid weekly). Such posting shall be made in a prominent and accessible location at the
Contractor’s normal place of business and shall be made no later than the first day of services
provided under this Agreement. Such posting shall be removed only upon expiration or
termination of this Agreement.
In performing the services under this Agreement, Contractor shall give preference to the
employment of bona fide residents of Montana, as required by §18-2-403, MCA, and as such, term
is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use
workers both skilled in their trade and specialized in their field of work for all work to which they
are assigned.
Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits,
and expenses including travel allowances as set forth in the current Montana Prevailing Wage Rate
for Non Construction Services in effective and applicable to Gallatin County, Montana which
schedule is incorporated herein. Contractor shall pay all hourly wage employees on a weekly basis.
Violation of the requirements set forth in the above State of Montana schedule of prevailing wage
rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall
maintain payroll records during the term of this Agreement and for a period of three (3) years
following termination of this Agreement.
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The Contractor shall ensure that any person, firm or entity performing any portion of the
services under this Agreement for which the contractor, subcontractor or employer is responsible,
is paid the applicable standard prevailing rate of wages.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time,
Contractor specifically agrees to take immediate steps, at its own expense and without expectation
of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The
specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however,
that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate
relief to the City so as to permit the services to continue at no additional cost to City.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes and for any claims regarding underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify,
and hold harmless the City, its agents, representatives, employees, and officers (collectively
referred to for purposes of this Section as the City) from and against any and all claims, demands,
actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and
consultants), losses, expenses, liabilities (including liability where activity is inherently or
intrinsically dangerous) or damages of whatever kind or nature connected therewith and without
limit and without regard to the cause or causes thereof or the negligence of any party or parties
that may be asserted against, recovered from or suffered by the City occasioned by, growing or
arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional
misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of
the Contractor’s agents.
For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses,
and expenses, including reasonable defense attorney fees, to the extent caused by the negligence
or willful misconduct of the Contractor or Contractor’s agents or employees.
Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of this
Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of
the indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right
to contribution from any insurance maintained by City.
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Should any indemnitee described herein be required to bring an action against the
Contractor to assert its right to defense or indemnification under this Agreement or under the
Contractor’s applicable insurance policies required below the indemnitee shall be entitled to
recover reasonable costs and attorney fees incurred in asserting its right to indemnification or
defense but only if a court of competent jurisdiction determines the Contractor was obligated to
defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s)
thereof.
In the event of an action filed against City resulting from the City’s performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers,
agents or employees, including the right of contribution for loss or damage to person or property
arising from, growing out of, or in any way connected with or incident to the performance of this
Agreement except “responsibility for his own fraud, for willful injury to the person or property of
another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor’s expense
secure insurance coverage through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and obligations
specifically assumed by the Contractor in this Section. The insurance coverage shall not contain
any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City and Contractor
shall furnish to the City an accompanying certificate of insurance and accompanying endorsements
in amounts not less than as follows:
• Workers’ Compensation – statutory;
• Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability - $1,000,000 property damage/bodily injury per accident; and
• Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The
insurance and required endorsements must be in a form suitable to City and shall include no less
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than a sixty (60) day notice of cancellation or non-renewal. The City must approve all insurance
coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City
within two (2) business days of Contractor’s receipt of notice that any required insurance coverage
will be terminated or Contractor’s decision to terminate any required insurance coverage for any
reason.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
8. Termination for Contractor’s Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or
fails to perform any of its obligations under this Agreement, or otherwise breaches any
terms or conditions of this Agreement, the City may, by written notice, terminate this
Agreement and the Contractor’s right to proceed with all or any part of the work
(“Termination Notice Due to Contractor’s Fault”). The City may then take over the work
and complete it, either with its own resources or by re-letting the contract to any other third
party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
c. Any termination provided for by this Section 8 shall be in addition to any
other remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9. Termination for City’s Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement City may
terminate this Agreement by written notice to Contractor (“Notice of Termination for
City’s Convenience”). The termination shall be effective in the manner specified in the
Notice of Termination for City’s Convenience and shall be without prejudice to any claims
that the City may otherwise have against Contractor.
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b. Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work,
incurring additional expenses or costs under this Agreement and shall immediately cancel
all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only
such work as may be necessary to preserve, protect, and maintain work already completed
or immediately in progress.
c. In the event of a termination pursuant to this Section 9, Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of
the Notice of Termination for City’s Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor’s damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to
the claim. In the event Contractor fails to provide such notice, Contractor shall waive all
rights to assert such claim.
11. Representatives:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be _________________ or such other individual as City shall designate
in writing. Whenever approval or authorization from or communication or submission to
City is required by this Agreement, such communication or submission shall be directed to
_______________________ as the City’s Representative and approvals or authorizations
shall be issued only by such Representative; provided, however, that in exigent
circumstances when City’s Representative is not available, Contractor may direct its
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communication or submission to other designated City personnel or agents as listed above
and may receive approvals or authorization from such persons.
b. Contractor’s Representative: The Contractor’s Representative for the
purpose of this Agreement shall be _____________________ or such other individual as
Contractor shall designate in writing. Whenever direction to or communication with
Contractor is required by this Agreement, such direction or communication shall be
directed to Contractor’s Representative; provided, however, that in exigent circumstances
when Contractor’s Representative is not available, City may direct its direction or
communication to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, and pay all
fees and charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and
disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules,
codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City,
County, and State building and electrical codes, the Americans with Disabilities Act, and all non-
discrimination, affirmative action, and utilization of minority and small business statutes and
regulations.
14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. The Contractor will
have a policy to provide equal employment opportunity in accordance with all applicable state and
federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse
employment to a person, bar a person from employment, or discriminate against a person in
compensation or in a term, condition, or privilege of employment because of race, color, religion,
creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual
orientation, gender identity, physical or mental disability, except when the reasonable demands of
the position require an age, physical or mental disability, marital status or sex distinction. The
Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section
140, Title 2, United States Code, and all regulations promulgated thereunder. The Contractor shall
require these nondiscrimination terms of its subcontractors providing services under this
agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training:
Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol
or illegal drugs, by any employee or agent engaged in services to the City under this Agreement
while on City property or in the performance of any activities under this Agreement. Contractor
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acknowledges it is aware of and shall comply with its responsibilities and obligations under the
U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse
prevention plans and related testing. City shall have the right to request proof of such compliance
and Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing his employees and agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged, modified
or altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound
by all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor’s compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that
the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
18. Non-Waiver: A waiver by either party any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other party’s right to enforce such
term or conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach.
19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to
retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice
required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable
attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City
Attorney.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
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agreement of the parties, the parties may invite an independent, disinterested mediator to
assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from
the date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
22. Survival: Contractor’s indemnification shall survive the termination or expiration
of this Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable,
the balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications, either verbal or written, made prior
to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part
of this Agreement by reference.
30. Extensions: this Agreement may, upon mutual agreement, be extended for a
period of one year by written agreement of the Parties. In no case, however, may this Agreement
run longer than __________________________.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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