HomeMy WebLinkAboutC7. PSA Link LLC Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Carson Taylor, Mayor
SUBJECT: Professional Services Agreement with Performance Link, LLC. to Provide Leadership Assessment of the City Manager and Benchmarked Feedback Services.
MEETING DATE: March 21, 2016
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Approve Professional Services Agreement with Performance Link,
LLC.
BACKGROUND: The City would like to engage the Performance Link, LLC to provide
leadership assessment and benchmarked feedback services. A detailed explanation is contained
in the agreement’s Scope of Services (Attachment A.)
UNRESOLVED ISSUES: None. ALTERNATIVES: Do not approve the contract.
FISCAL EFFECTS: The contract will cost $4,500, to be funded by the General Fund
contingency budget, which has funds available. Any travel expenses are in addition to the contract amount.
Attachments: PSA – Performance Link, LLC
Report compiled on: March 10, 2016
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ____________, 2016, by
and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation
organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse
Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771,
hereinafter referred to as “City,” and, The Performance Link, LLC hereinafter referred to as
“Contractor.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Attachment “A” and by this reference
made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its execution
[and will terminate upon the fulfillment of the Scope of Services.
3. Scope of Work: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services attached as Exhibit A. For conflicts
between this Agreement and the Scope of Services, unless specifically provided otherwise, the
Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described services that involves additional costs
above the Agreement amount will be performed by Contractor after written request by the City, and
will become an additional charge over and above the amount listed in the Scope of Services. The
City must agree in writing upon any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
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Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules,
and regulations that in any manner may affect cost, progress or performance of the Scope of
Services.
b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform said services in a professional,
competent and timely manner and with diligence and skill; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this
Agreement shall not infringe upon or violate the rights of any third party, whether rights of
copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever,
or violate any federal, state and municipal laws. The City will not determine or exercise control as
to general procedures or formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that
Contractor is an independent contractor for purposes of this Agreement and is not to be considered
an employee of the City for any purpose. Contractor is not subject to the terms and provisions of
the City’s personnel policies handbook and may not be considered a City employee for workers’
compensation or any other purpose. Contractor is not authorized to represent the City or otherwise
bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation
Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter
71, MCA. Contractor shall maintain workers’ compensation coverage for all members and
employees of Contractor’s business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes and for any claims regarding underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and
hold harmless the City, its agents, representatives, employees, and officers (collectively referred to
for purposes of this Section as the City) from and against any and all claims, demands, actions, fees
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and costs (including attorney’s fees and the costs and fees of and expert witness and consultants),
losses, expenses, liabilities (including liability where activity is inherently or intrinsically
dangerous) or damages of whatever kind or nature connected therewith and without limit and
without regard to the cause or causes thereof or the negligence of any party or parties that may be
asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or
resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the
Contractor; and (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s
agents.
For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and
expenses, including reasonable defense attorney fees, to the extent caused by the negligence or
willful misconduct of the Contractor or Contractor’s agents or employees.
Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of this Section
must not be construed to negate, abridge, or reduce any common-law or statutory rights of the
indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against the Contractor
to assert its right to defense or indemnification under this Agreement or under the Contractor’s
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
costs and attorney fees incurred in asserting its right to indemnification or defense but only if a
court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or
was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof.
In the event of an action filed against City resulting from the City’s performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers, agents
or employees, including the right of contribution for loss or damage to person or property arising
from, growing out of, or in any way connected with or incident to the performance of this
Agreement except “responsibility for his own fraud, for willful injury to the person or property of
another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA.
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These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor’s expense
secure insurance coverage through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and obligations
specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any
exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City and Contractor
shall furnish to the City an accompanying certificate of insurance and accompanying endorsements
in amounts not less than as follows:
• Workers’ Compensation – statutory;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate; and
• Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000
annual aggregate;
•
The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The
insurance and required endorsements must be in a form suitable to City and shall include no less
than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance
coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City
within two (2) business days of Contractor’s receipt of notice that any required insurance coverage
will be terminated or Contractor’s decision to terminate any required insurance coverage for any
reason.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
8. Termination for Contractor’s Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or
fails to perform any of its obligations under this Agreement, or otherwise breaches any terms
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or conditions of this Agreement, the City may, by written notice, terminate this Agreement
and the Contractor’s right to proceed with all or any part of the work (“Termination Notice
Due to Contractor’s Fault”). The City may then take over the work and complete it, either
with its own resources or by re-letting the contract to any other third party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
c. Any termination provided for by this Section 8 shall be in addition to any
other remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9. Termination for City’s Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement City may terminate
this Agreement by written notice to Contractor (“Notice of Termination for City’s
Convenience”). The termination shall be effective in the manner specified in the Notice of
Termination for City’s Convenience and shall be without prejudice to any claims that the
City may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work, incurring
additional expenses or costs under this Agreement and shall immediately cancel all existing
orders or contracts upon terms satisfactory to the City. Contractor shall do only such work
as may be necessary to preserve, protect, and maintain work already completed or
immediately in progress.
c. In the event of a termination pursuant to this Section 9, Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of
the Notice of Termination for City’s Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to
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Contractor for its performance of this Agreement. Contractor shall, under no circumstances,
be entitled to claim or recover consequential, special, punitive, lost business opportunity,
lost productivity, field office overhead, general conditions costs, or lost profits damages of
any nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor’s damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights
to assert such claim.
11. Representatives:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Carson Taylor (Mayor) or such other individual as City shall designate
in writing. Whenever approval or authorization from or communication or submission to
City is required by this Agreement, such communication or submission shall be directed to
James Goehrung as the City’s Representative and approvals or authorizations shall be issued
only by such Representative; provided, however, that in exigent circumstances when City’s
Representative is not available, Contractor may direct its communication or submission to
other designated City personnel or agents as listed above and may receive approvals or
authorization from such persons.
b. Contractor’s Representative: The Contractor’s Representative for the
purpose of this Agreement shall be _____________________ or such other individual as
Contractor shall designate in writing. Whenever direction to or communication with
Contractor is required by this Agreement, such direction or communication shall be directed
to Contractor’s Representative; provided, however, that in exigent circumstances when
Contractor’s Representative is not available, City may direct its direction or communication
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to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, and pay all
fees and charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and disposal
of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County,
and State building and electrical codes, the Americans with Disabilities Act, and all non-
discrimination, affirmative action, and utilization of minority and small business statutes and
regulations.
14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. The Contractor will
have a policy to provide equal employment opportunity in accordance with all applicable state and
federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse
employment to a person, bar a person from employment, or discriminate against a person in
compensation or in a term, condition, or privilege of employment because of race, color, religion,
creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation,
gender identity, physical or mental disability, except when the reasonable demands of the position
require an age, physical or mental disability, marital status or sex distinction. The Contractor shall
be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United
States Code, and all regulations promulgated thereunder. The Contractor shall require these
nondiscrimination terms of its sub-Contractors providing services under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training:
Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or
illegal drugs, by any employee or agent engaged in services to the City under this Agreement while
on City property or in the performance of any activities under this Agreement. Contractor
acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S.
Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse
prevention plans and related testing. City shall have the right to request proof of such compliance
and Contractor shall be obligated to furnish such proof.
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The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing his employees and agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound
by all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor’s compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that the
reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
18. Non-Waiver: A waiver by either party any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other party’s right to enforce such term
or conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach.
19. Attorney’s Fees and Costs: That in the event it becomes necessary for either Party
of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement
or to give any notice required herein, then the prevailing Party or the Party giving notice shall be
entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel
to include City Attorney.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
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personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to
assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22. Survival: Contractor’s indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable,
the balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications, either verbal or written, made prior
to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of
this Agreement by reference.
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**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN, MONTANA ____________________________________
CONTRACTOR (Type Name Above)
By________________________________ By__________________________________
Carson Taylor, Mayor
Print Name:
Print Title: ____________________________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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The Performance Link, LLC | 4399 S. Meadow Drive | Boulder, Colorado
The Performance Link, LLC
SCOPE OF SERVICES – ATTACHMENT A Part I: 360-degree Leadership Assessment The process we employ includes full implementation of a proven 360-degree tool powered by The Booth Company, whose elements are statistically validated for measuring key leadership behaviors impacting organizational performance. It is a system used with Performance Link clients across sectors of all organizational types and sizes. The assessment is role-specific, enabling us to focus on effective leadership behavior for, in this case, the City Manager role, providing actionable feedback on trainable skills. The resulting feedback is detailed and comprehensive, and is also benchmarked against over 1 million responses. The 360 Process delivered by Erin Hirschland and The Performance Link includes:
• The Assessment Portal
o Complete end-to-end online experience for the participant and the raters
o Implemented by a third-party partner (The Booth Company) that provides systematic methods for maintaining anonymity of raters and confidentiality of survey results o Interactive web-based reporting, with development tips and action planning
Part II: Interviews with a sample of the City Manager’s colleagues and Commission Individual, 1:1 phone interviews with a sample (8 total) of the City Manager’s direct reports, peers and the Commission will provide qualitative support offering additional detail and insight into the quantitative feedback of the above 360-degree process. The output will be an anonymized synthesis of both the 360-degree assessment results and interview feedback, summarized for both the City Manager and the Commission, providing insight into the most effective ways to support the City Manager’s professional development and leadership impact.
Process Steps: 1. Administer 360-degree Leadership Assessment 2. Conduct phone interviews with 8 of the City Manager’s colleagues and Commission 3. 1st Session -- 1:1 Feedback Results Coaching Session with Erin Hirschland and the City Manager (90 minutes, in-person)
o This confidential session is designed to understand the current context, feedback results, and begin the framework for an action-plan around the City Manager’s greatest strengths and opportunities for improvement.
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The Performance Link, LLC | 4399 S. Meadow Drive | Boulder, Colorado
4. Facilitated discussion with City Manager and Commissioners, sharing 360 results and framing action steps for development (details below under Optimizing this Investment) 5. Six additional coaching sessions – 1:1 coaching sessions with Erin Hirschland (60 minutes, via Skype or similar), approximately 6-8 weeks apart
o These confidential sessions are designed to support the City Manager’s growth and development as he/she integrates the feedback and action plan into his/her business and performance objectives. The sessions will focus on amplifying those leadership behaviors that will have the greatest impact on the City Manager’s results and the organization.
Optimizing this investment Separate from the City Commission, Brock Anderson and the H2A Partners team will offer assistance on a pro-bono basis to help ensure the investment in the 360 Process is both beneficial to the City Manager as well as the City Commission and their oversight of his leadership. Assuming the City Manager is open to discussing his 360 feedback with the Commissioners, Brock and Erin will help to facilitate a group meeting with the Commissioners and the City Manager to build transparency around the 360 process with the goal of helping the Commission to determine the best ways to support and invest in the City Manager’s professional development. Note that this should not be viewed as a part of formal or informal job performance assessment but aimed at creating the right environment for the City Manager to improve his contributions to the City of Bozeman. These meetings will start with an open dialogue between the entire commission and the City Manager as well as 1:1 meetings between Brock and the Commissioners as needed to help them identify ways to support the City Manager. We would propose that this process take place roughly between the first and second coaching sessions as outlined above.
Best Practices for an Effective 360 Process 1. The purpose of a 360 is to develop more effective leadership behavior: Development is the fundamental purpose of 360 feedback surveys. Survey results should not affect performance assessments or incentive compensation. The 360 process is not designed to be used for performance reviews or appraisals, but rather to provide an individual with feedback on their demonstration of leadership competencies and skills. 2. Do the Pre-Work: Communication internally around why you are embarking on a 360 process, what is expected of the participants and raters, and how it will benefit the organization is critical to the success of the process. State that the 360 process provides leaders with a way to solicit feedback from peers, colleagues, direct reports, and their own leader, and that the feedback will be used to help the participant be the best leader he/she can be. 3. The Role of the Participant: The participant identifies the stakeholders that work directly with him/her, and is encouraged to invite as many raters as possible to receive a full range of perspectives, as well as maintain anonymity in the process. Along with gathering feedback from others, the participant completes the survey him/herself.
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The Performance Link, LLC | 4399 S. Meadow Drive | Boulder, Colorado
4. The Role of the Raters: The role of the raters is to provide honest and constructive feedback on their colleague's leadership development. Raters should feel they can provide feedback without fear of identification or retaliation. The knowledge that their identity is confidential can allow the raters to focus on each question individually and think about specific work-related examples to justify ratings.
Professional Fees The professional fee for the engagement outlined above is $4500 payable to The Performance Link. The payment schedule is as follows:
Amount of Payment Payment Schedule $2250 Upon initiation of engagement $1125 May 1, 2016 $1125 October 1, 2016 Travel, lodging and meal costs will be invoiced separately. Thank you, again, for reaching out. We are grateful for the opportunity to contribute to the continued success of the City of Bozeman. If the arrangements described in this letter are consistent with your understanding of the engagement, please sign an acknowledgement copy of this letter and return it to me. By signing this, you are also agreeing to The Booth Company’s Terms of Use Agreement found here. ____________________________________________________ Erin Hirschland, Principal The Performance Link Brock Anderson H2A Partners LLC Acknowledged and accepted by: _____________________________________________________ Printed name and title _____________________________________________________ Signature and Date
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The Performance Link, LLC | 4399 S. Meadow Drive | Boulder, Colorado
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