Loading...
Management Consultant for Bass Museum of Art Agreement~ n ~,7_ ~~/s/~ PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND MANAGEMENT CONSULTANTS FOR THE ARTS, INC. ~ ~ Ids- - G 7~' FOR EXECUTIVE SEARCH SERVICES FOR THE POSITION OF EXECUTIVE DIRECTOR OF THE BASS MUSEUM OF ART THIS AGREEMENT made and entered into this ~-~ day of February, 2008, by and between the CITY OF MIAMI BEACH, FLORIDA (hereinafter referred to as City), having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and MANAGEMENT CONSULTANTS FOR THE ARTS, INC., whose address is 132 East Putnam Avenue, Cos Cob, CT, 06807 (hereinafter referred to as Consultant). WHEREAS, the City desires to contract with Consultant to provide executive search services related to the identification and hiring of a new Executive Director for the Bass Museum of Art. NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS CONTAINED HEREIN, THE CITY AND CONSULTANT HERETO AGREE AS FOLLOWS: SECTION 1 DEFINITIONS Agreement: This Agreement between the City and Consultant. City Manager: The Chief Executive Officer of the City. Consultant: For the purposes of this Agreement, Consultant shall be deemed to be an independent consultant, and not an agent or employee of the City. Services: All services, work and actions by the Consultant performed pursuant to or undertaken under this Agreement, as described in Section 2 and Exhibit "A" hereto. Fee: Amount paid to the Consultant to cover the costs of the Services. Risk Manager: The Risk Manager of the City, with offices at 1700 Convention Center Drive, Third Floor, Miami Beach, Florida 33139, telephone number (305) 673-7000, Ext. 6435, and fax number (305) 673-7023. ~~ ~~ ~ ~ ~. ~~ ~t ~~. SECTION 2 SCOPE OF SERVICES (SERVICES) Consultant agrees to perform the following services during the term of this Agreement (collectively, the Services): 2.1 Executive Search Consultant will design and implement an executive search process to identify and hire a new Executive Director for the Bass Museum of Art (the Museum). Linda Sweet will be the key personnel, on behalf of Consultant, in charge of this search. Ms. Sweet may not be replaced by Consultant with regard to the performance of the Services herein without the prior written consent of the City Manager; provided, however, that the foregoing consent shall not apply nor be required if Consultant terminates Ms. Sweet's employment with the firm, or if Ms. Sweet resigns therefrom. The following are the primary components of the Services: 2.1.1 On-site visit: Consultant will meet with the Bass Museum Executive Director Search Committee and other key individuals (as determined by the City) to establish a job profile that accurately reflects current and future needs and expectations; to agree on an appropriate salary range; to establish a schedule and work program for the search; and to become acquainted with the Museum's activities and constituencies. 2.1.2 Promotion: Consultant will share the written profile describing the museum, the position and necessary qualifications, and salary range with key arts and cultural professionals across the country. Consultant will screen all responses and follow-up as necessary. If Search Committee and Consultant jointly determine that advertising would be useful, Consultant will draft ad copy and place it in appropriate publications and on Internet web sites. 2.1.3 Recruitment: Consultant will aggressively recruit candidates who are successful and satisfied in their current positions whether or not they are seeking new employment, utilizing Consultant's extensive network of professional contacts in the arts and humanities, higher education, business, public sector and funding communities 2.1.4 Reference checking: Having developed a list of strong candidates to review, Consultant will then undertake extensive interviews and research into the backgrounds of each candidate. 2.1.5 Client interviewing: Consultant will present only the most qualified candidates to the Search Committee, through written reports, resumes and supplementary materials. Consultant will assist in setting up on-site interviews and will provide objective counsel and any additional information that might be helpful to the interview process. 2 2.1.6 Selection: Consultant will continue to provide information and background assistance as required, and will help negotiate the compensation and benefit package for the candidate selected. If such candidate resigns or is terminated within the first twelve (12) months of employment, Consultant will continue to provide executive search services fora replacement, at no additional fee (reimbursable expenses only would be charged). SECTION 3 3.1 FEE Consultant shall be compensated by the City, for those Services provided and satisfactorily performed during the Term herein, a fee not to exceed fifty thousand dollars ($50,000.00), inclusive of commissions, and any other consultants necessary to complete the Scope of Work described in Section 2, and delivered per the timeline outlined in Exhibit "A" hereto. Additionally, Reimbursable Expenses shall include $375 for each month of the search for phone, postage and photocopying; additional Reimbursable Expenses will be charged if it is determined the position is to be advertised, and/or travel is required. However, any such Reimbursable Expenses exceeding $200 must be approved, in writing, by the City Manager or his designee, prior to Consultant incurring costs for same. The City shall have no duty or responsibility to reimburse Consultant for any unapproved expenses. 3.2 METHOD OF PAYMENT The fee schedule for the Consultant's fee is as follows; - Contract Execution $ 25,000 - Candidate Short List Submitted $ 12,500 - Candidate Selected $ 12,500 Payments shall be made for Services satisfactorily performed, within thirty (30) days of the date of receipt of Consultant's invoice, said invoice in a manner satisfactory to and as approved and received by, the City. Consultant shall mail all invoices to: City of Miami Beach Department of Tourism and Cultural Development 1700 Convention Center Drive Miami, Florida 33139 Attn: Max Sklar, Director SECTION 4 GENERAL PROVISIONS 4.2 PUBLIC ENTITY CRIMES Prior to commencement of the Services, a State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes shall be filed with the City's Procurement Division, prior to commencement of the Services herein. 4.3 DURATION AND EXTENT OF AGREEMENT (TERM) This Agreement shall be deemed effective upon execution by the parties hereto. Consultant's Services shall be completed no later than July 31, 2008, and shall be further subject to the "Timeline for Services" in Exhibit "A", attached hereto. 4.4 EXTENSIONS FOR TIME OF COMPLETION A reasonable extension of time shall be granted in the event the work of the Consultant is delayed or prevented by the City or by any circumstances beyond the reasonable control of the Consultant, including weather conditions or Acts of God, which render performance of the Consultant's duties impracticable. 4.5 INDEMNIFICATION Consultant agrees to indemnify and hold harmless the City of Miami Beach and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, at law or in equity, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other wrongful conduct of the Consultant, its employees, agents, sub-consultants, or any other person or entity acting under Consultant's control, in connection with the Consultant performance of the Services pursuant to this Agreement; and to that extent, the Consultant shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys' fees expended by the City in the defense of such claims and losses, including appeals. The parties agree that one percent (1%) of the total compensation to the Consultant for performance of the Services under this Agreement is the specific consideration from the City to the Consultant for the Consultant's Indemnity Agreement. This indemnity shall survive the term of the Agreement. The Consultant's obligation under this Subsection shall not include the 4 obligation to indemnify the City of Miami Beach and its officers, employees and agents, from and against any actions or claims which arise or are alleged to have arisen from negligent acts or omissions or other wrongful conduct of the City and its officers, employees and agents. The parties each agree to give the other party prompt notice of any claim coming to its knowledge that in any way directly or indirectly affects the other party. 4.6 TERMINATION. SUSPENSION AND SANCTIONS 4.6.1 Termination for Cause If the Consultant shall fail to fulfill in a timely manner, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, the City shall thereupon have the right to terminate the Services then remaining to be performed. Prior to exercising its option to terminate for cause, the City shall notify the Consultant of its violation of the particular terms of this Agreement and shall grant Consultant seven (7) days to cure such default. If such default remains uncured after seven (7) days, the City, upon three (3) days' notice to Consultant, may terminate this Agreement and the City shall be fully discharged from any and all liabilities, duties and terms arising out of/or by virtue of this Agreement. Notwithstanding the above, the Consultant shall not be relieved of liability to the City for damages sustained by the City by any breach of the Agreement by the Consultant. The City, at its sole option and discretion, shall additionally be entitled to bring any and all legal/equitable actions that it deems to be in its best interest in order to enforce the City's right and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorneys' fees. To the extent allowed by law, the defaulting party waives its right to jury trial and its right to bring permissive counter claims against the City in any such action. 4.6.2 Termination for Convenience of Citv THE CITY MAY ALSO, FOR ITS CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE SERVICES THEN REMAINING TO BE PERFORMED AT ANY TIME DURING THE TERM HEREOF BY GIVING WRITTEN NOTICE TO CONSULTANT OF SUCH TERMINATION, WHICH SHALL BECOME EFFECTIVE FIFTEEN (15) DAYS FOLLOWING RECEIPT BY THE CONSULTANT OF THE WRITTEN TERMINATION NOTICE. IN THAT EVENT, ALL FINISHED OR UNFINISHED DOCUMENTS AND OTHER MATERIALS, AS DESCRIBED AND/OR CONTEMPLATED IN SECTION 2 AND EXHIBIT "A" HERETO SHALL BE PROPERLY ASSEMBLED AND DELIVERED TO THE CITY AT CONSULTANT'S SOLE COST AND EXPENSE. IF THE AGREEMENT IS TERMINATED BY THE CITY AS PROVIDED IN THIS SUBSECTION, CONSULTANT SHALL BE PAID FOR ANY SERVICES SATISFACTORILY PERFORMED, AS DETERMINED BY THE CITY AT ITS DISCERTION, UP TO THE DATE OF TERMINATION. 5 4.6.3 Termination for Insolvency The City also reserves the right to terminate the Agreement in the event the Consultant is placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of creditors. In such event, the right and obligations for the parties shall be the same as provided for in Section 4.6.2. 4.6.4 Sanctions for Noncompliance with Nondiscrimination Provisions In the event of the Consultant's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such sanctions as the City or the State of Florida may determine to be appropriate, including but not limited to, withholding of payments to the Consultant under the Agreement until the Consultant complies and/or cancellation, termination or suspension of the Services. In the event the City cancels or terminates the Services pursuant to this Subsection the rights and obligations of the parties shall be the same as provided in Section 4.6.2. 4.7 CHANGES AND ADDITIONS Changes and additions to the Agreement shall be directed by a written amendment signed by the duly authorized representatives of the City and Consultant. No alteration, change, or modification of the terms of this Agreement shall be valid unless amended in writing, signed by both parties hereto, and approved by the City. 4.8 AUDIT AND INSPECTIONS At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City and/or such representatives as the City may deem to act on its behalf, to audit, examine and make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. Consultant shall maintain any and all records necessary to document compliance with the provisions of this Agreement. 4.9 ACCESS TO RECORDS Consultant agrees to allow access during normal business hours to all financial records to the City and/or such authorized representatives as it may deem to act on its behalf, and agrees to provide such assistance as may be necessary to facilitate financial audit by the City or its representatives when deemed necessary to insure compliance with applicable accounting and financial standards. Consultant shall allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance of this Agreement, to those personnel as may be designated by the City. 6 4.10 INSURANCE REQUIREMENTS The Consultant shall not commence any work pursuant to this Agreement until all insurance required under this Section has been obtained and such insurance has been reviewed and approved by the City's Risk Manager. The Consultant shall maintain and carry in full force during the Term of this Agreement the following insurance: 1. Consultant General Liability, in the amount of $1,000,000. 2. Consultant Professional Liability, in the amount of $200,000. 3. Workers Compensation & Employers Liability, as required pursuant to Florida statute. All insurance required hereunder must be furnished by insurance companies authorized to do business in the State of Florida. Original certificates of insurance for the above coverage must be submitted to the City's Risk Manager at the Office of the Risk Manager of the City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139. The Consultant is solely responsible for obtaining and submitting all insurance certificates for its sub-consultants. All insurance policies must be issued by companies authorized to do business under the laws of the State of Florida. The companies must be rated no less than "B+" as to management and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. Compliance with the foregoing requirements shall not relieve the Consultant of the liabilities and obligations under this Section or under any other portion of this Agreement, and the City shall have the right to obtain from the Consultant specimen copies of the insurance policies in the event that submitted certificates of insurance are inadequate to ascertain compliance with required overage. All of Consultant's certificates, as required in the Section 4.8, shall contain endorsements providing that written notice shall be given to the City at least thirty (30) days prior to termination, cancellation or reduction in coverage in the policy. The Consultant shall not commence any Services pursuant to this Agreement until the City's Risk Manager has received, reviewed and approved, in writing, certificates of insurance showing that the requirements of this Section (in its entirety) have been met and provided for. 7 4.11 ASSIGNMENT. TRANSFEROR SUBCONSULTING The Consultant shall not subconsult, assign, or transfer any work under this Agreement without the prior written consent of the City. 4.12 SUB-CONSULTANTS The Consultant shall be liable for the Consultant's services, responsibilities and liabilities under this Agreement and the services, responsibilities and liabilities of sub-consultants, and any other person or entity acting under the direction or controls of the Consultant. When the term "Consultant" is used in this Agreement, it shall be deemed to include any sub-consultants and any other person or entity acting under the direction or control of Consultant. All sub-consultants must be approved of in writing prior to their engagement by Consultant. 4.13 EQUAL EMPLOYMENT OPPORTUNITY In connection with the performance of this Agreement, the Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, sex, age, and national origin, place of birth, marital status, sexual orientation or physical handicap. The Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, color, religion, ancestry, sex, age, national origin, place of birth, marital status, physical handicap, or sexual orientation. 4.14 CONFLICT OF INTEREST The Consultant herein agrees to adhere to and be governed by all applicable Miami-Dade County Conflict of Interest Ordinances and Ethics provisions, as set forth in the Miami-Dade County Code, and as may be amended from time to time; and by the City of Miami Beach Charter and Code; both of which are incorporated by reference herein as if fully set forth herein. The Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirectly which should conflict in any manner or degree with the performance of the Services. The Consultant further covenants that in the performance of this Agreement, no person having any such interest shall knowingly be employed by the Consultant. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Agreement or to any benefits arising there from. 4.15 PATENT RIGHTS: COPYRIGHTS: CONFIDENTIAL FINDINGS All reports, documents, articles, or other deliverables produced in whole or in part under this Agreement shall be the sole and absolute property of the City. 8 No reports, other documents, articles or deliverables produced in whole or in part under this Agreement shall be the subject of any application for copyright or patent by or on behalf of the Consultant or its employees or subconsultants, without the express prior written permission of the City. Further, in the event the Consultant incorporates or otherwise uses previously (or pending) copyrighted, trademarked, and/or patented material(s) pursuant to its performance of the Services, Consultant shall be solely responsible for having obtained any and all required approvals, permissions, and or authorization(s) for such use. The Consultant agrees to indemnify and hold harmless the City of Miami Beach and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, attorney's fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, which may arise or be alleged to have arisen from Consultant's use of any copyrighted, trademarked, and/or patented material pursuant to this Subsection 4.14. 4.16 NOTICES All notices and communications in writing required or permitted hereunder may be delivered personally to the representatives of the Consultant and the City listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO CONSULTANT: Louise Kane, Managing Director Management Consultants for the Arts, Inc. 132 East Putnam Avenue Cos Cob, CT 06807 Linda Sweet, Managing Director Management Consultants for the Arts, Inc. 132 East Putnam Avenue Cos Cob, CT 06807 TO CITY: Max Sklar, Director City of Miami Beach Department of Tourism and Cultural Development 1700 Convention Center Drive Miami Beach, Florida, 33139 Tel/fax 305-673-7577/305-673-7262 Notices hereunder shall be effective: 9 If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. 4.17 LITIGATION JURISDICTION/VENUE This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND CONSULTANT EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. 4.18 ENTIRETY OF AGREEMENT This writing and the Services embody the entire Agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written with reference to the subject matter hereof that are not merged herein and superseded hereby. 4.19 LIMITATION OF CITY'S LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of $1,000. Consultant hereby expresses its willingness to enter into this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $1,000. Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to the Consultant for damages in an amount in excess of $1,000 for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Section 768.28, Florida Statutes. 10 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first entered above. FOR CITY: CITY OF MIAMI BEACH, FLORIDA ATTEST: Robert Parcher City Clerk By: ti errera Bower Mayor FOR CONSULTANT: ATTEST: Management Consultants for the Arts, Inc. By: ~ 444 By. ~-~.e5©~~ "7((~~~ Secretary President Print Name Print Name Corporate Seal APPROVED AS TO FORM & LANGUAGE & FOR UTION F:Vn(o1SALL\Natasha\Pmfessional Seances-Tertps\HRMC Contrect- 34th Miam Beach Festival of Atls.000 1t. 2l~ 07 ome~ ~'~'~-. 11 EXHIBIT "A" TIMELINE FOR SERVICES 1) Executive Search The executive search process would move forward as outlined below: 1.1 Contract executed (February 15, 2008) 1.2 Consultant meets with Search Committee, staff and other key people (2 - 3 weeks) - (March 3- March 4, 2008) 1.3 Job profile written and approved (1 - 2 weeks) - (March 7 -March 21, 2008) 1.4 Candidates researched, screened and interviewed (4 - 8 weeks) - (March 22 -May 15, 2008) 1.5 Consultant meets with Search Committee, presents short list and determines which candidates to interview (May 19-May 20, 2008) 1.6 Interviews scheduled and conducted (2 - 4 weeks) - (June 2 -June 27, 2008) 1.7 Second interviews scheduled and conducted as necessary (1 - 3 weeks) - (June 27 -July 15, 2008) 1.8 Selection made, agreement negotiated with finalist (1 - 2 weeks) - (August, 2008) 1.9 Announcement of new Executive Director (August, 2008) Please note the timeline is provided to delineate a desired timeframe for completing the search. A number of factors will impact the timeline and may shorten or lengthen the search process. 12