HomeMy WebLinkAbout2023 Agreement (Attorney SearchSERVICES CONTRACT
THIS CONTRACT is made this 9thday of February 2023 by and between the City of
Sebastian, Florida, a Florida municipal corporation (hereinafter, the "CITY'), and COLIN
BAENZIGER, a sole proprietor doing business as COLIN BAENZIGER & ASSOCIATES,
hereinafter the "CONTRACTOR" OR `CB & A".
WITNESSETH: For and in consideration of the payments and agreements mentioned
hereinafter:
I. The CONTRACTOR will provide EXECUTIVE SEARCH SERVICES FOR THE
SELECTION OF THE CITY ATTORNEY in accordance with the Contract Documents.
2. The CONTRACTOR will furnish all of the material, supplies, tools, equipment, labor and
other services necessary for the completion of the services described in the Contract
Documents. Time is of the essence in the performance of this Contract.
3. The CONTRACTOR will commence work as required by the CONTRACT
DOCUMENTS within 10 calendar days after the receipt of the written Notice to Proceed
and will complete the same in 120 days unless an extension is granted by City
4. SCOPE OF SERVICES: The services to be performed are specified in the Attachment.
These services are briefly summarized below but the proposal will be the governing
document.
a. Assist the City to develop a strategy and process for carrying out the recruitment
of a City Attorney, including outreach to the community and to a diverse pool of
potential applicants.
b. Identify potential contacts and conduct personal outreach recruiting to include
posting the position through national channels. Preparing and placing
advertisements for the position in appropriate publications.
C. Review resumes for background and qualifications followed by telephone and/or
video interviews to clarify each applicant's experience and to prepare a written
summary of candidates with the most promising qualifications for the position.
d. Evaluate candidates for serious consideration by verifying selected candidates'
educational background, and conducting in depth reference checks (with
individuals who are or have been in a position to evaluate the candidate's
performance on the job), criminal, financial, media and civil litigation check. The
goal will be to ascertain the candidate's strength in personal dimensions identified
by the job description as well as the contractor's interviews with stakeholders.
Page 1 of 7
e. In the event politically sensitive or potentially embarrassing issues arise from the
candidates' background, conduct in-depth interviews with the principal parties to
clarify and to provide adequate background and explanation of the event to the
City.
f. Finalize and participate in a process with the City for interviews and coordinate
candidates' participation in interviews.
g. Debrief with the City following interviews and identify additional candidates if
necessary.
i. Notify rejected applicants.
The Scope of Services set forth in Contractor's Proposal is attached as Attachment A and
made a part of Contract Documents and is incorporated as if fully set forth herein.
5. The Contractor agrees to perform all of the work described in the contractor's documents for
the following prices:
Project / Contract Phase Fee.
Phase 1: Needs Analysis / Information Gathering $4,000
Phase II: Recruitingof City Attorney $14000
Phase III: Full Bacground Checks ($creening) $14:000
Phase IV: Interview Process Coordination / Selection $1,500 1
Phase V: Negotiation and Continuing Assistance $1,000 1
Total — Firm, Fixed Fee * $34,500 1
The fee for each phase is inclusive of all the Contractor's expenses and costs.
Invoices shall be rendered for each phase after completion of the phase and payment shall
be made by the City to the Contractor within 14 days of receipt of the invoice.
*Additional services outside Phase I - V will be charged at $150 per hour. No such
services are anticipated and none will be performed without prior approval from the City.
6. WARRANTY: Provided the Contractor conducts the full search (Phases I - V — see the
preceding contract section) and the City selects from among the candidates recommended
by the Contractor, the Contractor will warrant the following:
a. The Contractor will not approach the selected candidate concerning any other
position as long as the individual is employed by the City
b. if the selected individual leaves for any reason other than an act of God (for example,
total incapacitation or death) within the first year, Contractor will repeat the search
for the reimbursement of expenses only.
c. If City is not satisfied with any of the candidates Contractor presents, Contractor will
repeat the search until the City is satisfied, at no additional charge.
Page 2 of 7
d. The price is guaranteed and will not be exceeded for any reasons, even if conditions
change after the contract is executed.
7. This Contract may be terminated by the City for its convenience upon thirty (30) days
prior written notice to the Contractor. In the event of termination, the Contractor shall be
paid as compensation in full for work performed to the day of such termination, an
amount prorated in accordance with the work substantially performed under this Contract
as determined by the City. Such amount shall be paid by the City after inspection of the
work to determine the extent of performance under this Contract, whether completed or
in progress.
8. The Term "Contract Documents" shall include this Contract, the synopsis of our
methodology (included as Attachment A) and the Project Schedule (included as
Attachment B). In the event of conflict between any provision of any other document
referenced herein as part of the contract and this Contract, the terms of this Contract shall
control.
9. Assignment: This Contract may not be assigned except with the written consent of the
City, and if so assigned, shall extend and be binding upon the successors and assigns of
the Contractor.
10. Disclosure: The Contractor warrants that it has not employed or retained any company
or person, other than a bona fide employee working solely for the Contractor to solicit or
secure this Contract and that it has not paid or agreed to pay any person, company,
corporation, individual or Contractor, other than a bona fide employee working solely for
the Contractor, any fee, commission, percentage, gift, or other compensation contingent
upon or resulting from the award or making of the Contract.
11. Administration of Contract: City of Sebastian City Manager, Paul Carlisle, shall
administer this Contract for the City.
12. Governing Law. Venue and Attornev's Fees: The validity, construction and effect of
this Contract shall be governed by the laws of the State of Florida. Venue for any
disputes arising under this Contract shall be exclusively in the State Courts in and for
Indian River County, Florida. In the event of any litigation arising out of this Contract,
the prevailing party shall be entitled to recover from the non -prevailing party reasonable
costs and attorney's fees.
13. Amendments: No Amendments or variation of the terms or conditions of this Contract
shall be valid unless in writing and signed by the parties and approved by the City's
governing body.
14. Payments: City shall make payment within ten (10) days of the City's receipt of an
invoice from the Contractor unless, within that time period the City notifies Contractor in
writing of its objection to the amount of such invoice, together with City's determination
of the proper amount of such invoice. The Parties shall resolve or undertake to resolve
any disputed portion of such invoice within thirty (30) days after said date of notification
Page 3 of 7
by the City. If after thirty (30) days from the date of notification by the City there is no
resolution between the parties, the City's determination shall be final.
15. Contractor's Representations: In order to induce City to enter into the Contract, the
Contractor represents that it has demonstrated knowledge and experiences in performing
executive searches for key personnel for local governments.
16. Indemnity: To the extent permitted by law, the Contractor shall indemnify and hold
harmless the City, its officers, elected and appointed officials, employees and agents,
from liabilities, damages, losses and costs, including, but not limited to, reasonable
attorney's fees, to the extent caused by the negligence, recklessness, or intentional
wrongful misconduct of the Contractor and any persons employed or utilized by
Contractor in the performance of this Contract. Nothing in this agreement shall be
construed as the City waiving its sovereign immunity pursuant to 768.28, et seq., Florida
Statutes, or any other sovereign or governmental immunity.
17. Invalid Provision: The invalidity or unenforceability of any particular provision of this
Contract shall not affect the other provisions hereof, and the Contract shall be construed
in all respects as if such invalid or unenforceable provisions were omitted.
18. Proieet Records: The Contractor shall maintain auditable records concerning the
procurement adequate to account for all receipts and expenditures, and to document
compliance with the specifications. These records shall be kept in accordance with
generally accepted accounting principles, and the City reserves the right to determine the
record -keeping method in the event of non -conformity. These records shall be
maintained for a minimum of five (5) years after final payment has been made, and shall
be readily available to City personnel with reasonable notice, and to other persons in
accordance with the applicable state statutes. This provision shall survive the
termination, expiration and/or cancellation of this Contract.
19. Comoliance with Aoolicable Laws Includine But Not Limited To Public Records Laws
a. The Contractor agrees to comply with all federal, state, and local laws or
ordinances applicable to all of the provisions of this Contract and specifically
acknowledges the applicability of the Public Records provisions of Florida law found in
Chapter 119, Florida Statutes and as more specifically set forth in this Paragraph below.
The Contractor represents and warrants unto the City that no elected official, officer,
employee, or agent of the City has any interest, either directly or indirectly, in the
business of the Contractor to be conducted hereunder. The Contractor further represents
and warrants to the City that it has not employed or retained any company or person,
other than a bona fide employee working solely for the Contractor, to solicit or secure
this Contract, and that it has not paid, or agreed to pay, or given or offered any fee,
commission, percentage, gift, loan, or anything of value to any person, company,
corporation, individual, or firm, other than bona fide Personnel working solely for the
Contractor, in consideration for or contingent upon, or resulting from the award or
making of this Contract. Further, the Contractor also acknowledges that it has not
agreed, as an expressed or implied condition for obtaining this Contract, to employ or
retain the services of any person, company, individual or firm in connection with carrying
Page 4 of 7
out this Contract. It is absolutely understood and agreed by the Contractor that, for the
breach or violation of this Paragraph, the City shall have the right to terminate this
Contract without liability and at its sole discretion, and to deduct from any amounts
owed, or to otherwise recover, the full amount of any value paid by the Contractor. The
Contractor shall also require, by contract, that all subcontractors shall comply with the
provisions of this Paragraph.
b. Public Records. Contractor agrees to:
1. Keep and maintain public records required by the public agency to
perform the service.
2. Upon request from the public agency's custodian of public records,
provide the public agency with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the cost
provided in Chapter 119 of the Florida Statutes or as otherwise provided by law.
3. Ensure that public records that are exempt or confidential and exempt
from public records disclosure requirements are not disclosed except as authorized by law
for the duration of the contract term and following completion of this Contract if the
Contractor does not transfer the records to the public agency.
4. Upon completion of the contract, transfer, at no cost, to the public agency
all public records in possession of the Contractor or keep and maintain public records
required by the public agency to perform the service. If the Contractor transfers all
public records to the public agency upon completion of the contract, the Contractor shall
destroy any duplicate public records that are exempt or confidential and exempt from
public records disclosure requirements. If the Contractor keeps and maintains public
records upon completion of the contract, the Contractor shall meet all applicable
requirements for retaining public records. All records stored electronically must be
provided to the public agency, upon request from the public agency's custodian of public
records, in a format that is compatible with the information technology systems of the
public agency.
If the Contractor does not comply with a public records request, City shall enforce the
contract provisions which may include immediate termination of this Contract.
19. Insurance: Unless otherwise specified, Contractor shall, at its own expense, carry and
maintain the following minimum insurance coverage, as well as any insurance coverage
required by law:
a. These insurance requirements shall not limit the liability of the Contractor. The
City does not represent these types or amounts of insurance to be sufficient or adequate to
protect the Contractor's interests or liabilities, but are merely minimums.
b. Except for professional liability. the Contractor's insurance policies shall be
endorsed to name the City as an additional insured to the extent of the City's interests
arising from this Contract.
C. The Contractor waives its rights of recovery against the City, to the extent
permitted by its insurance policies. The Contractor's deductibles/self-insured retention
Page 5 of 7
shall be disclosed and may be disapproved by the City. They shall be reduced or
eliminated at the option of the City. The Contractor is responsible for the amount of any
deductible or self -insured retention.
d. The City recognizes that under Florida law the Contractor is not required to carry
Workers' Compensation Insurance since it has less than three employees.
e. Broad Form Commercial General Liability Insurance (on an occurrence basis),
with a minirnum combined single limit for Bodily Injury, including Death of $1,000,000
per occurrence and for Property Damage of at least $1,000,000 per occurrence.
f. Business Auto Liability Insurance with minimum Bodily Injury and Death Limit
per accident of $1,000,000 and a minimum Property Damage Limit per accident of
$1,000,000.
g. Within ten days of commencing any Work under this Contract, Contractor shall
submit to City a certificate or certificates of insurance evidencing that such benefits have
been provided, and that such insurance is being carried and maintained. Such certificates
shall stipulate that the insurance will not be cancelled or materially changed without
thirty (30) days prior written notice by certified mail to City, and shall also specify the
date such benefits and insurance expire. Contractor agrees that such benefits shall be
provided and such insurance carried and maintained until the Work has been completed
and accepted by City.
h. Such benefits and such coverage as are required herein, or in any other document
to be considered a part hereof, shall not be deemed to limit Contractor's liability under
this Contract.
20. Unauthorized Aliens: The employment of unauthorized aliens by any Contractor is
considered a violation of Section 274A (e) of the Immigration and Nationality Act. If the
Contractor knowingly employs unauthorized aliens, such violation shall be cause for
unilateral cancellation of this Contract. This applies to any sub -contractors used by the
Contractor as well.
21. Entire Aereement: This Contract and Contract Documents constitute the entire and
exclusive agreement between the parties and supersedes any and all prior
communications, discussions, negotiations, understandings, or agreements,
whether written or verbal.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed, by their
duly authorized officials this Contract in two 2 counterparts which shall be deemed an original
on the date last signed as below written:
Page 6 of 7
FOR THE CITY O%FF SSSEEBBAAS/TIIAAN, FL
Signature: l
J%u1 E. Carlisle
Title: City Manager
Date: ;?-1712.3
CONTRACTOR: COLIN BAENZIGER & ASSOCIATES
Signature: / t y • 1\ Date:
Typed Name: Colin Baenziger
Title: Owner and Principal
Colin Baenziger & Associates..
Page 7 of 7
Attachment A
Section 1: Work Plan for Citv Attornev Search
The following outlines the process Colin Baenziger & Associates will undertake to find
Sebastian's next City Attorney.
Phase 1: Needs Assessment /Information Gatherine
Conduct discussions (in person or by telephone) with the elected and other key officials
to:
➢ Develop a description of the ideal candidate,
➢ Learn the issues the next City Attorney will face,
➢ Gather materials and information to share with potential candidates,
➢ Understand what compensation package the City is prepared to offer, and
➢ Develop and finalize a project schedule.
Develop materials we can utilize to recruit candidates.
Phasell: Candidate Recruitment
D Actively search for, identify, and recruit outstanding candidates whom we feel are best
suited for the position.
➢ Distribute the recruiting materials to appropriate publications and websites, including our
own.
➢ Consult our database of strong candidates, contact them and encourage them to apply.
➢ E-mail the advertisement to our listsery of local government attorneys.
➢ Resumes will be screened, and we will narrow the fist to the approximately six to eight
semi-finalists who we believe are most qualified.
We will conduct thorough reference and background investigations on the selected semi-
finalists. It should be noted that, when we conduct aminvestigations, we do not simply
accept the references the candidates suggest. We tell the candidates whom we want to
speak with. These might include elected officials, representatives of the local press,
community leaders, peers, and subordinate employees. Our goal is to get comments from
six to ten references. We also conduct criminal, civil, driver license, media (traditional
and social), and credit checks, and we verify employment history and education. We
believe these should be done early in the process to avoid embarrassment after a selection
has been made.
Attachment A (continued)
We will verify that the candidates are licensed or can readily obtain a license to practice
law in Florida.
➢ We will recommend three to seven top candidates to the City. We will review these
candidates with the Council. Along with our recommendation, we will provide the
results of our background work electronically.
➢ We will coordinate the process the Council uses to select the candidates it desires to
interview.
Phase IV.- Interviews and Selection
➢ We will coordinate the interview process and attend the actual interviews.
➢ We will suggest a series of interview questions to assist the Council in evaluating the
finalists.
➢ Once the interviews are completed, we will provide any additional information the City
may wish and assist in any way the City desires in making the final determination.
Phase V.- Emolovment Neeotiation
➢ If requested, we will provide assistance in the negotiation of a contract with the selected
candidate.
Timeframe
➢ The above described process takes approximately 90 days. A proposed project schedule
follows.
Section II: Princinal Staff to Be Assiened to the Recruiting Effort
➢ Colin Baenziger, Principal and Owner,
Lynelle Klein, Senior Vice President for Operations, and
➢ Steve Sorrell, Senior Vice President,
Possible Project Schedule -Sebastian Citv Attornev Search
DRAFT As aJ I/JI/LUZJ
Phase I. Needs Assessment IInformation Gathering
February 16, 2023 CB&A begins meeting with the City Officials and other suggested stake
holders to understand the job and its challenges.
CB&A submits the draft of the tuft recruitment profile to the City for its
February 23, 2023 review.
February 28, 2023 City provides comments on the proposed recruitment profile.
Phase 17: Recruiting
March 2, 2023 CB&A posts the hull recruitment profile on its website and begins
recruiting.
March 31, 2023 Deadline for Submissions.
April 5, 2023 CB&A reports on the results of the recruitment.
Phase 111. Screening, Reference Checks and Credential Verification
April 28, 2023 CB&A forwards its candidate reports and materials to the City
electronically.
May 3, 2023 City selects finalists to interview.
Phase IV. Interview Process Coordination and City Attorney Selection
May 12, 2023 City interviews finalists and makes its selection
Phase V. Negotiation, Warranty & Continuing Assistance
Sec. 2-10. Procurement of goods and services.
(a) Applicability. Except as specifically set forth herein, all procurements for goods and services for the city shall
fall under the ultimate responsibility of the charter officer utilizing the goods or services (hereinafter called
the "purchasing officer"), and shall be effected in accordance with this section.
(b) Purchasing thresholds. Any request for the purchase of materials, equipment, services and supplies unless
otherwise exempt under this section is subject to competitive bid procedures as follows:
(1) Up to$2500.00—Purchasing officer or their designee may authorize purchase.
(2) $2500.01 to$5,000.00—Two or more verbal quotes where practical; purchasing officer or designee
may authorize purchase.
(3) $5,000.02 to $15,000.00—Three or more written quotes; purchasing officer or designee may authorize
purchase.
(4) $15,000.01 to $25,000.00—Three or more written quotes; city council authorization required.
(5) Over $25,000.00—Formal sealed bids and city council authorization required.
(c) Exceptions to thresholds.
(1) Joint bid., The purchasing officer shall have the authority to cooperate with other local governments or
other public entities in the development and use of mutually cooperative procurement contracts or
master agreements. Such contracts shall require council approval,
(2) Piggyback.- The purchasing officer shall have the authority to utilize contracts or master agreements of
state, federal or other local governments or other public entities to procure goods and services, if the
contract or agreement has been awarded through procedures substantially equivalent to the
requirements of this section. The purchasing officer shall have the authority to procure goods and
services If the purchase Is with a person, firm, organization, or corporation whose offer to sell to the
city is at sale price for that commodity equal to or lower than the existing piggyback price for the same
or equal commodity being sought. All such purchases over $15,000.00 shall continue to require council
approval.
(3) Sole source. A contact may be awarded for goods or services without competitive bids when the
purchasing officer determines in writing that there is only one practical source for the required Item.
Approval shall be in accordance with the dollar threshold established by this section.
(4) Emergency purchase. Where the purchasing officer finds it to be in the best interest of the city, they
may declare the existence of an emergency procurement condition and suspend any or all provisions of
this section. Spending authority under this provision shall not exceed $25,000.00, however, if a state of
emergency covering the city has been declared the limit shall be raised to $50,000.00. All emergency
purchases over $15,000.00 shall be reported to council as soon as practical. As used in this section, the
term "emergency" means a sudden unexpected turn of events that causes:
a. An immediate danger to the public health or safety;
b. An immediate danger of loss of public or private property;
C. An interruption in the delivery of an essential governmental service; or
d. An interruption in the normal function and operation of any city department that would result in
a work stoppage or other substantial monetary loss.
(SupP.No. 68)
Page 1 of 2
cnrt.x: xexa-ssaz sss.a Inn]
(5) Change orders. The purchasing officer may approve cumulative changes of up to 15 percent of the total
contract price. Changes In excess of 15 percent of the total contract price or any change in excess of
$15,000.00 must have the prior approval of the city council.
(6) Contract renewals. Any contract containing a provision for renewal may be renewed In accordance
with Its terms. Authorization for approval shall be In accordance with the dollar threshold established
by this section.
(d) Exemptions to applicability. This section shall not apply to:
(1) Purchases between the council and nonprofit organizations, other governments, or other public
entities, and intragovernmental services.
(2) Purchases of advertising, works of an for public display, medically related professional services,
employee benefit related purchases, water, utility services, postage, shows/displays/cultural events
sponsored by the city.
(3) Purchase of real property.
(4) Professional and personal service contracts Including but not limited to attorney services, appraisers
and expert witnesses services, which shall be approved by the city council if In excess of $15,000.00.
(5) Procurement of goods and services when the same Is governed by a mandatory procedure established
by statute.
(6) Franchise, sponsorship or joint enterprise agreements.
(7) Any situation where compliance with this code will place the city In conflict with mandatory provisions
of state law, federal law or the terms of any grant.
(e) Prohibitions. No contract or purchase shall:
(1) Be purposely subdivided to circumvent any requirements of this section.
(2) Be made in excess of the amounts allocated from the general fund for the general classification of
expenditures in the budget for the then current budget year, nor shall any expense of a special fund
exceed the amount of money available to that fund.
(f) Waiver. City council may waive or modify the bidding requirements for good cause.
(Ord. No. 0-06-01, § 1, 2-22-06)
(Supp. No. 68)
Page 2 of 2
rwtM: UU-1213 SS:H:U (MI
Ma
SE�TaN
NOME OF PELICAN ISLAND
CITY COUNCIL AGENDA TRANSMITTAL
Council Meetine Date: February g, 2023
Agenda Item Title: City Attorney Recruitment Process
Recommendation: Approve hiring Colin Baenziger as outside consultant for the City
Attorney Recruitment Process and authorizing the City Manager to
execute the Service Agreement.
Background: The City of Sebastian City Attorney has negotiated a contract with
the City of Melbourne to serve as their City Attorney. In lieu of this, on January 25, 2023, City
Council directed the City Attorney to bring a contract for its review with Colin Baenziger. I have
asked Procurement to coordinate with Mr. Baenziger and put together a Professional Service
Contract Agreement for the Recruitment of the City Attorney. IAW Section 2-10 (d) (4); (f), this
is permissible and an exemption to the procurement process which states "Professional and
personal service contracts including but not limited to attorney services, appraisers and expert
witnesses services, which shall be approved by the city council if in excess of
$15,000.00." Since this is in excess of $15,000.00, it will require a majority vote of City Council
for final approval. Also, keep in mind that "City Council may waive or modify the bidding
requirements for good cause". See Section 2-10 (f). As council stated during the meeting, due to
the short timeframe, time is of essence. Thus, this hiring becomes urgent and is for good cause.
If Agenda Item Reauires Exnenditure of Funds: $34,500.00
Attachments:
1. Service Contract Agreement
2. Synopsis of methodology (Attachment A)
3. Project Schedule (Attachment B)
4. City Code Section 2-10 (d) (4)
Administrative Services Department R ew:
City Attorney Review:
Procurement Division Revi , if apph abler
City Manager Authorization:
Date: ?/-2lJ3