4.3 SR 06-03-2024The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional service, and community
engagement that encourages and inspires prosperity
Request for Action
To
City Council
Item Number
4.3
Meeting Date
June 3, 2024
Prepared By
Cal Portner, City Administrator
Item Description
Executive Recruitment Contract Agreement 24-15
Reviewed by
Cal Portner
Lauren Wipper
Tina Allard
Action Requested
Approve, by motion, a services agreement with MGT/GovHR for executive recruitment services.
Background/Discussion
Upon the retirement of Chief Nierenhausen, the City Council expressed a consensus to go to market to fill
the vacancy utilizing an executive recruiting firm.
On May 20, 2024, the Council selected MGT/GovHR to conduct the search.
Financial Impact
The firm's fee is not to exceed $25,000.
Mission/Policy/Goal
The Elk River Mission
Attachments
1. GovHRMGT Exec Rec. MSA
Page 27 of 464
1 | Page
Confidential
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“Agreement”) is entered into as of May 23, 2024,
(“Effective Date”) between GovHR USA, a division of MGT of America Consulting, LLC (“GovHR”),
with offices located at 4320 West Kennedy Boulevard, Tampa, FL 33609, and the City of Elk River, MN
(“Client”), located at 13065 Orono Parkway, Elk River, MN 55330, collectively referred to herein as the
“Parties.”
WHEREAS, GovHR 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 GovHR’s services; and
WHEREAS, the Parties intend for this Agreement to serve as the governing, contractual basis of GovHR’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:
1. THIS AGREEMENT AND STATEMENTS OF WORK. The Parties enter into this
Agreement to set forth the general terms and conditions that will govern GovHR’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”) each an Exhibit A,
Statement of Work, attached hereto and incorporated into the Agreement. Unless otherwise stated in an
SOW, all Services shall be performed remotely. Each SOW will require signature by both parties to be
effective.
2. 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 GovHR’s discretion.
3. TERM. The term of this Agreement shall commence on the Effective Date and will continue for
a period of one (1) year or until terminated in accordance with this Agreement. This Agreement will
automatically renew for additional one (1) year terms unless terminated by either party at least thirty (30)
days prior to the expiration date.
4. 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
Page 28 of 464
2 | Page
Confidential
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.
5. INSURANCE. During the Term of this Agreement and any SOW, GovHR will maintain the
minimum insurance coverages below. GovHR 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
c. Business Automobile Liability $1,000,000 combined single-limit, non-owned
and hired. (GovHR does not own autos)
d. Umbrella/Excess Liability $10,000,000 per occurrence & aggregate,
follows form
e. Worker’s Compensation Per Statute
f. Employer’s Liability $1,000,000 each accident
f. Professional Liability $6,000,000 aggregate
6. INDEMNIFICATION. To the extent permitted by law, each Party shall fully defend, indemnify
and hold harmless the other Party and its officers, directors, employees, agents, representatives,
successors and assigns (collectively, “Indemnified Parties”) from any and all claims, demands, causes of
actions, costs, expenses, liability, losses, or damages including attorney’s fees and expenses (“Claims”),
whether in law or in equity, for bodily injury, death or property damage arising out of, relating to or
caused by, in whole or part, the negligence, errors, omissions or willful misconduct of the indemnifying
party or its officials, officers, employees, subcontractors, consultants or agents, relating to or connected
with performance under this Agreement, unless Claims are caused wholly by the sole negligence or
willful misconduct of the Indemnified Parties.
A Party’s indemnity obligations under this Section are contingent upon the indemnified party: a) promptly
notifying indemnifying party of each claim; provided, however, that the indemnified Parties failure to
give prompt notice to the indemnifying party of any such claim shall not relieve the indemnified party of
any obligation under this Section except and to the extent that such failure materially prejudices the
indemnifying party’s ability to defend against such claim; b) providing the indemnifying party with sole
control over the defense and/or settlement thereof, provided however, that indemnifying party shall not
settle any claim that includes an admission of wrongdoing by indemnified parties or otherwise adversely
affects indemnified parties’ interests without prior consent; and c) at the indemnifying party’s request and
expense, providing full information and reasonable assistance to the indemnifying party with respect to
such claim.
7. LIMITATION OF LIABILITY. GovHR 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, 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
Page 29 of 464
3 | Page
Confidential
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 GovHR’s gross negligence or
intentional or willful misconduct, GovHR’s total aggregate liability to Client shall be limited to the
amount of compensation paid by Client to GovHR under this Agreement in the twelve (12) months prior
to the action giving rise to liability.
8. 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 Illinois,
irrespective of the choice of laws principles of the state of Illinois, 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 Cook County, Illinois and Client hereby accepts venue in each such court.
9. 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, GovHR’s legal fees and costs should GovHR prevail.
10. 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”).
Page 30 of 464
4 | Page
Confidential
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.
GovHR may, however, disclose Client’s name and the general nature of GovHR’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; or (d) is required to be disclosed by law.
11. 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 GovHR’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 GovHR’s progression of
Services, and GovHR 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. GovHR 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.
12. FEES AND PAYMENT. Unless otherwise set forth in a SOW, all correct invoices submitted
by GovHR 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 GovHR with written notice of the
dispute, in reasonable detail, and the Parties shall promptly meet to resolve such dispute. GovHR reserves
the right to impose an interest charge equal to the lesser of one and one-half percent (1.5%) per month or
the maximum allowable by law in respect of any invoice which is outstanding for more than thirty (30)
days. GovHR may stop work after sixty (60) days of Client’s non-payment of undisputed invoiced
amounts.
13. 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.
14. 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.
15. ASSIGNMENT. Neither party may assign any rights nor delegate any duties or obligations under
Page 31 of 464
5 | Page
Confidential
this Agreement without the express written consent of the other party. Notwithstanding the foregoing,
GovHR, 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, GovHR, 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 GovHR, or its
permitted successive assignees or transferees.
16. INDEPENDENT CONTRACTOR. It is expressly understood that at all times, while rendering
the Services, GovHR is acting as an independent contractor and not as an officer, agent, or employee of
the Client. GovHR 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, GovHR, its personnel and contractors will be treated and deemed independent
contractors and not employees of Client.
17. 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 non-discrimination.
18. 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 GovHR: To Client:
Name: GovHR, A division of MGT of Name: Elk River, Minnesota
America Consulting, LLC
ATTN: Legal Notice/Contracts ATTN: Calvin P. Portner
Address: 4320 West Kennedy Blvd. Address: 13065 Orono Parkway
Tampa, FL 33609 Elk River, MN 55330
Email: contracts@mgtconsulting.com Email: cportner@elkrivermn.gov
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
Page 32 of 464
6 | Page
Confidential
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, GovHR may perform
Services for any other clients, persons, or companies as GovHR sees fit, so long as the performance of
such Services does not interfere with GovHR’s performance of obligations under this Agreement, and do
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.
GOVHR, A DIVISION OF MGT OF ELK RIVER, MINNESOTA
AMERICA CONSULTING, LLC
___________________________________ __________________________________
Name: A. Trey Traviesa Name: John Dietz
Title: CEO Title: Mayor
Date: Date:
__________________________________
Name: Tina Allard
Title: City Clerk
Date:
Page 33 of 464
7 | Page
Confidential
EXHIBIT A
EXECUTIVE RECRUITMENT STATEMENT OF WORK
As of May 23, 2024 (“Effective Date”), GovHR, a division of MGT of America Consulting, LLC
(“GovHR”) and Elk River, MN (“Client”) execute this Statement of Work (“SOW”) pursuant to the
Master Services Agreement between the Parties dated May 23, 2024 (“Agreement”).
1. PROJECT-
Executive Recruitment for the position of Chief of Police.
2. SCOPE
GovHR will provide recruitment services in accordance with GovHR’s proposal dated May 15,
2024. All terms of the Proposal are incorporated herein by reference and supersede in
the event of a conflict.
3. COMPENSATION AND REIMBURSABLE EXPENSES
A. Fee. The flat fee for the Services described above is $21,500.
B. Expenses. $3,500 (not to exceed)
If GovHR is required to travel for provision of Services, GovHR must obtain prior written
authorization from Client for reimbursement of actual expenses.
5. INVOICING AND PAYMENT
Recruitment Fee and advertising expenses incurred will be billed as follows:
1st Invoice: Contract Award (40% of the Recruitment Fee).
2nd Invoice: Presentation of Candidates (40% of the Recruitment Fee & expenses incurred to
date).
Final Invoice: Completion of Recruitment (20% of the Recruitment Fee plus all remaining
expenses).
Payment of invoices is due within thirty (30) days of receipt.
GOVHR, A DIVISION OF MGT OF ELK RIVER, MINNESOTA
AMERICA CONSULTING, LLC
__________________________________ __________________________________
Name: A. Trey Traviesa Name: John Dietz
Title: CEO Title: Mayor
Date: Date:
__________________________________
Name: Tina Allard
Title: City Clerk
Date:
Page 34 of 464