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MASTER SERVICES AGREEMENT
PHASE 2 OF PROJECT.
THIS MASTER SERVICES AGREEMENT ("Agreement") is entered into as of February 7,
2024 ("Effective Date") between MGT of America Consulting, LLC ("MGT"), with offices
located at 4320 West
Kennedy Boulevard, Tampa, FL 33609, and City of Muskegon ("Client"), located at 933
Terrace Street, Muskegon, MI 4944(), collectively referred to herein as the "Parties."
WHEIREAS, MGT offers global technological, educational, organizational and staffing
consulting solutions services to the public and private sectors;
WHEREAS, Client anticipates a need within its organization for MGT's.services; and.
WHEREAS, the Parties intend for this Agreement to serve as the governing, contractual basis
of MGT's provision of future project-level services to Client.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
THIS AGREEMENT AND STATEMENTS OF WORK. The Parties enter into this
Agreement
to set forth the general terms and conditions that will govern MGT's provision of services to
Client. Such services will be subsequently agreed upon by the Parties in individual Statements
of Work ("SOW").
Each SOW will state all details required for the proper provision of project-level services,
including scope, pricing, period of performance, and other required information ("Services")
and each SOW shall be attached hereto and incorporated herein as Exhibit A, Statement(s) of
Work. Unless otherwise stated in an SOW, all Services shall be performed remotely. Each SOW
will require signature by both parties to be effective.
CONTRACT DOCUMENTS AND ORDER OF PRECEDENCE. The contract documents
consist of this Agreement and all exhibits, attachments, amendments, and SOWS subsequently
executed by the Parties and all exhibits, attachments, amendments, and other documents made
a part of the SOW ("Contract Documents"). Upon signature by the Parties, all SOWS executed
during the Term shall be considered incorporated into and made a part of this Agreement.
In the event of a conflict among the terms and conditions in this Agreement and any SOW,
unless that SOW expressly states the intention for the SOW to control with regard to the
conflicting term or condition, then this Agreement shall control. Any terms or conditions
contained in documents issued by Client other than the Contract Documents, including
purchase orders, shall be voidable at MGT's discretion.
TERM. The term of this Agreement shall commence on the Effective Date and will continue
for a period of two (2) years or until terminated in accordance with this Agreement.
TERMINATION. This Agreement or any individual SOW may be terminated with cause by
either party: (a) if the other party materially breaches the terms of this Agreement and fails to
cure the breach within thirty (30) calendar days following written notice specifying the breach,
or (b) immediately upon written notice if the other party fails to comply with applicable law or
regulation.
INSURANCE. During the Term of this Agreement and any SOW, MGT will maintain the
minimum insurance coverages below. MGT shall provide Certificates of Insurance to Client
upon request and as required under SOWS.
a. Commercial General Liability $1,000,000 per occurrence
$2,000,000 annual aggregate
b. Business Automobile liability $1,000,000 combined single-limit, non-owned
and hired. (MGT does not own autos.)
c. Umbrella/Excess Liability $10,000,000 per occurrence & aggregate,
follows form
d. Worker’s Compensation Per Statute
e. Employer’s Liability $1,000,000 each accident
f. Professional Liability $6,000,000 aggregate
6. LIMITATION OF LIABILITY. MGT shall not be held liable for factors outside of
its reasonable control, including losses or damages as a result of Client's provision of
inaccurate data, or changing laws, regulations, or political conditions.
TO THE EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF
PROFITS, REVENUE, DATA OR DATA USE, OR LOSS OR INTERRUPTION OF
BUSINESS, ARISING OUT OF ANY OF THE TERMS OR CONDITIONS OF THIS
AGREEMENT OR WITH RESPECT TO ITS PERFORMANCE HEREUNDER, WHETHER
ARISING OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR ANY
OTHER THEORY. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION
OF DAMAGES APPLIES EVEN IF A PARTY HAD OR SHOULD HAVE HAD
KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
To the extent permitted by law, except for actions or claims resulting from MGT's gross
negligence or intentional or willful misconduct, MGT's total aggregate liability to Client shall
be limited to the amount of compensation paid by Client to MGT under this Agreement in the
twelve (12) months prior to the action giving rise to liability.
GOVERNING LAW, JURISDICTION AND CONSENT TO SUIT. This Agreement shall
be governed by and construed and interpreted in accordance with the laws of the state of
Florida, irrespective of the choice of laws principles of the state of Florida, as to all matters
including validity, construction, effect, enforceability, performance, and remedies. Client
submits itself and its property in any legal action or proceeding relating to this Agreement to
the exclusive jurisdiction of any state or federal court within Hillsborough County, Florida and
Client hereby accepts venue in each such court.
DISPUTE RESOLUTION PROCEDURE. In the event of a dispute, controversy or claim by
and between the Parties arising out of matters related to this Agreement, the Parties will first
attempt in good faith to resolve through negotiation any such dispute, controversy, or claim.
Either party may initiate negotiations by providing written notice to the other party setting forth
the subject of the dispute and the relief requested. The recipient of such notice will respond in
writing within five (5) business days with a statement of its position on, and recommended
solution to, the dispute. If the dispute is not resolved by this exchange of correspondence, then
senior management representatives of each party with full settlement authority will meet at a
mutually agreeable time and place within fifteen (15) business days of the date of the initial
notice to exchange relevant information and perspectives and to attempt to resolve the dispute.
If the dispute is not resolved by negotiation, either party may commence mediation by written
request to the other party. The Parties will cooperate in selecting a mediator and in scheduling
the mediation proceedings. The mediation shall take place in Tampa, Florida. The Parties will
participate in the mediation in good faith and will share equally in its costs. All offers,
promises, conduct and statements, whether oral or written, made in the course of the mediation
by either of the parties, their agents, employees, experts or attorneys, or by the mediator, are
confidential, privileged and inadmissible for any purpose, including impeachment, in any
litigation or other proceeding involving the parties; provided, however, that evidence that is
otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable
as a result of its use in the mediation.
Either party may seek equitable relief prior to the mediation to preserve the status quo pending
the completion of that process. Except for such an action to obtain equitable relief, neither party
shall commence a civil action with respect to the matters submitted to mediation until after the
completion of the initial mediation session, at which time suit may be brought in any court of
competent jurisdiction. The prevailing party shall be entitled to an award of all reasonable
costs, expenses, and attorneys’ fees. In addition, should the dispute under this Agreement
involve the failure to pay fees, and the matter is not resolved through negotiation or mediation,
Client shall pay all costs of collection, including, but not limited to, MGT's legal fees and costs
should MGT prevail.
CONFIDENTIALITY. Each party shall maintain in confidence and protect from unauthorized
disclosure all information exchanged between the Parties that is reasonably understood under
the circumstances to be confidential, whether disclosed orally, in writing or marked as
confidential ("Confidential Information").
The receiving party shall make all reasonable efforts to protect Confidential Information from
disclosure to unauthorized third parties. Confidential Information may be disclosed to third
parties with a need-to-know under the circumstances and who are bound by confidentiality
obligations no less restrictive than those herein. Neither party shall use such Confidential
Information except in performance of the Services. MGT may, however, disclose Client's name
and the general nature of MGT's work for client sales proposals.
The above obligations of confidentiality shall not apply to the extent that the receiving party
can show that the relevant information (a) was at the time of receipt already in the receiving
party's possession; (b) is, or becomes in the future, public knowledge through no fault or
omission of the receiving party; (c) was received from a third-party having the right to disclose
it; or (d) is required to be disclosed by law.
10. FORCE MAJEURE. Neither party shall be liable or considered at fault for any delay (except
for payment) resulting from circumstances beyond the party's reasonable control, including but
- not limited to fire, flood, earthquake, elements of nature, epidemics, global pandemics,
quarantines, acts of God, acts of war, labor disputes, and supply chain disruptions ("Excusable
Delays"). The delayed party shall notify the other party in writing upon the discovery of any
significant Excusable Delay. During an Excusable Delay, the delayed party shall use reasonable
efforts to mitigate costs and damages and to resume performance under this Agreement.
The Parties recognize that MGT's ability to timely perform under a SOW is contingent upon
Client's timely provision of any agreed-upon data, personnel access, or other requirements. If
Client's failure to provide to such data, access or other requirements causes significant delays
to MGT's progression of Services, and MGT incurs losses or damages as a result, then the
Parties shall negotiate and execute a SOW amendment for an equitable adjustment to the
schedule and for additional costs. MGT shall provide all substantiating documentation of costs
reasonably requested by Client in consideration for any equitable adjustment. Excusable
Delays shall not give rise to an equitable adjustment.
11. FEES AND PAYMENT. Unless otherwise set forth in a SOW, all correct invoices
submitted by MGT to Client shall be due and payable upon receipt. If Client disputes an invoice
or portion thereof in good faith, then Client shall pay any undisputed portion and provide MGT
with written notice of the dispute, in reasonable detail, and the Parties shall promptly meet to
resolve such dispute. MGT may stop work after sixty (60) days of Client's non-payment of
undisputed invoiced amounts.
12. MODIFICATION. This Agreement and any SOW shall only be modified by written
amendment signed by the Parties. All signed amendments shall be deemed incorporated into
this Agreement by reference.
13. NON-SOLICITATION. During the term of this Agreement and for a period of two (2) years
following termination or expiration, neither party shall knowingly, directly or indirectly, solicit
nor encourage the solicitation of any person who is, or was within a 12-month period prior to
such solicitation, an employee of' the other party or its affiliates that became known to the other
party as a result of this Agreement, except with the prior written consent of the other party. This
provision shall not restrict the right of either party to solicit by public advertisement.
14, ASSIGNMENT. Neither party may assign any rights nor delegate any duties or obligations
under this Agreement without the express written consent of the other party. Notwithstanding
the foregoing, MGT, or its permitted successive assignees or transferees, may assign or transfer
this Agreement or delegate any rights or obligations hereunder without consent: (i) to any entity
controlled by, or under common control with, MGT, or its permitted successive assignees or
transferees; or (ii) in connection with a merger, reorganization, transfer, sale of assets or change
of control or ownership of MGT, or its permitted successive assignees or transferees.
15. INDEPENDENT CONTRACTOR. It is expressly understood that at all times, while
rendering the Services, MGT is acting as an independent contractor and not as an officer, agent,
or employee of the Client. MGT shall not be required to keep specific work hours (except in
the case of specific hours required under employee leasing contracts), equipment, or a specific
office, and shall use independent means and methods for performing the Services. For all
purposes, including Medicare, Social Security taxes, the Federal Unemployment Act
("FUTA"), income tax withholding, worker's compensation, and unemployment insurance,
MGT, its personnel and contractors will be treated and deemed independent contractors and
not employees of Client.
16. NON-DISCRIMINATION/EQUAL EMPLOYMENT PRACTICES. Neither party shall
unlawfully discriminate or permit discrimination against any person or group of persons in any
matter prohibited by federal, state, or local laws. During the performance of this Agreement,
neither party or their employees, agents, or subcontractors, if any, shall discriminate against
any employee or applicant for employment because of age, marital status, religion, gender,
sexual orientation, gender identity, race, creed, color, national or ethnic origin, medical
conditions, physical disability, or any other classifications protected by local, state, or federal
laws or regulations. The parties further agree to be bound by applicable state and federal rules
governing equal employment opportunity and nondiscrimination.
17. NOTICES. All legal notices required by this Agreement are deemed to have been given when
notices are both (1) delivered by email to the email address below, and (2) following such email
delivery, a mailed copy of the notice is delivered to the mailing address below.
To MGT: To Client:
Name: MGT of America Consulting, LLC Name: City of Muskegon
ATTN: Legal Notice/Contracts ATTN: Leigh Ann Mikesell
Address: 4320 West Kennedy Blvd. Address: 933 Terrace Street
Tampa, FL 33609 Muskegon, MI 49440
Email: contracts@metconsulting.com Email: leighann.mikesell@shorelinecity.com
If the email address and mailing address is incomplete for a party, then notice shall be mailed
to the address on the first page of this Agreement.
19. SEVERABILITY. If any provision of this Agreement shall be declared illegal or
invalid for any reason, said illegality or invalidity shall not affect the remaining provisions
hereof, but such illegal or invalid provision shall be fully severable, and this Agreement shall
be interpreted and enforced as if such illegal or invalid provision had never been included
herein.
20. COUNTERPARTS AND EXECUTION. This Agreement and any SOW may be
executed in counterparts, each of which when so executed shall be deemed an original and all
of which together shall constitute one and the same instrument. The counterparts may be
executed by electronic signature and delivered by scanned signature or other electronic means
by any of the parties to any other party and the receiving party may rely on the receipt of this
Agreement so executed and delivered as if the original had been received.
21. SURVIVAL. The sections Term, Termination, Insurance, Indemnification, Limitation
of Liability, Governing Law, Jurisdiction, Consent to Suit, Dispute Resolution Procedure,
Confidentiality, and Non-Solicitation, of this Agreement and the payment obligations described
in any SOW shall survive the termination or expiration of the Agreement or SOW.
22. ENTIRE AGREEMENT. This Agreement and all exhibits constitute the entire and
only agreement between the Parties. Each party acknowledges that in entering into this
Agreement it has not relied on any representation or undertaking, whether oral or in writing,
except for those expressly stated herein. Any purchase order provided by the Client will be
limited by, and subject to, the terms and conditions of this Agreement.
23. NON-EXCLUSIVITY. This Agreement is non-exclusive, and both Parties remain free
to enter into similar agreements with third parties. During the term of this Agreement, MGT
may perform Services for any other entities, so long as the performance of such services does
not interfere with MGT's performance of obligations under this Agreement and does not create
a conflict of interest.
24. THIRD PARTY BENEFICIARIES. Except as specifically set forth herein, nothing
in this Agreement is intended or shall be construed to confer upon any person or entity, other
than the parties hereto and their successors or assigns, any rights or remedies under or by reason
of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Master Services Agreement.
MGT OF AMERICA CONSULTING, LLC CITY OF MUSKEGON
Y
NameA. Trey Traviesa Name: / tinAna Mikepvell
Title: CEO Title: Popuke Lite, MUBONG
i J J
Date: 7/12/2024 Date: VE I/p nef
EXHIBIT A
PROFESSIONAL CONSULTING STATEMENT OF WORK
PHASE 2
As of February 7, 2024 ("Effective Date"), MGT of America Consulting, LLC ("MGT") and
City of Muskegon ("Client") execute these Statements of Work ("SOW") pursuant to the
Master Services Agreement between the Parties dated February 7, 2024 ("Agreement").
SCOPE: MGT will provide services in accordance with MGT's Phase 2 Proposed Workplans
A and B listed below. All terms of the Phase 2 Proposal are incorporated herein by reference.
Phase 2 Proposed Work Plan A and B
SCOPE: MGT will provide services in accordance with MGT's Phase 2 Proposed Workplans
listed below. All terms of the Phase 2 Proposal are incorporated herein by reference.
Task 1.0: Client Engagement
1.1 Project Kickoff
Similar to Phase 1, MGT will facilitate an initial meeting for key members of the project team
to meet each other, identify desired communication strategies, ensure mutual understanding of
the project goals and outcomes, identify potential barriers, and establish consensus regarding
activities, timelines, deliverables, and mutual expectations.
DELIVERABLES
* Finalized work plan and project schedule
* Description of deliverables
* Identification of key stakeholders, engagement expectations, responsibilities, and
project roles
* Logistics for project management meeting schedule, agenda, and reporting
protocols
* List of potential stakeholders who might advise the project and provide valuable
insight
[ Attach Phase 2 A Proposed Work Plan —- SOW]
[ Attach Phase 2 B Proposed Work Plan -SOW]
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