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HomeMy WebLinkAboutAgreements/Contracts - Public Defense193 2,0 2022-2023 PROFESSIONAL SERVICES AGREEMENT CONFLICT AND OVERFLOW INVESTIGATOR This Agreement ("Agreement") is made and entered into, by and through the Grant County Commissioner's Office, by and between the following: Grant County ("COUNTY"), a political subdivision of the state of Washington, and Gary T. Way known as WAY INVESTIGATIONS ("INVESTIGATOR"), a Washington State Private Investigative Agency, for the express purposes set forth in the following provisions of this Agreement. WHEREAS, the COUNTY desires to make arrangements to obtain an independent contractor to perform investigation services; and WHEREAS, the purpose of this Agreement is for the retention of investigative services to assist the Grant County Public Defense as they conduct indigent defense services. NOW, THEREFORE, in consideration of the terms and conditions contained herein, or attached and incorporated and made a part hereof, the COUNTY and the INVESTIGATOR mutually agree as follows: 1. SCOPE OF WORK a. The COUNTY intends to retain the services of the INVESTIGATOR to provide conflict and overflow investigative services as directed by the COUNTY through the Director of Grant County Department of Public Defense for investigations in Superior Court, Juvenile Court, and/or District Court cases. Investigative services include, but are not limited to, consultation with public defender, identifying and interviewing witnesses, preparing reports, recorded statements, and related investigative services, as well as testifying in court when required, in a professional manner. b. The INVESTIGATOR represents that it has available all tools necessary to accomplish the investigative services required. i. The INVESTIGATOR shall be available as needed to handle all investigative services to public defenders in Superior Court, Juvenile Court, and/or District Court that he/she agrees to accept from the Director of Public Defense. ii. The INVESTIGATOR shall alert the Director of Public Defense when a conflict of interest arises on the part of Investigator so the COUNTY may obtain the services of another investigative firm or individual. 2022-2023 PSA Investigator—Gary T. Way (Way Investigations) Page 1 of 13 C. Exhibit "A" contains the General Terms and Conditions governing work to be performed under this Agreement, the nature of the working relationship between the COUNTY and the INVESTIGATOR, and specific obligations of both parties. d. Any additional service(s) provided by the INVESTIGATOR must have prior written approval of COUNTY. 2. PERIOD OF PERFORMANCE Subject to other Agreement provisions, the period of performance under this Agreement will be from January 1, 2022 through December 31, 2023. If the COUNTY determines that it wants to extend the Agreement, and if the INVESTIGATOR agrees to extend this Agreement for up to one additional year with no increase to the INVESTIGATOR'S hourly rates and expenses as detailed herein, it may do so through either an amendment to the Agreement or through a Memorandum of Understanding. In the event that the Investigator is hired as a full-time or part-time employee of Grant County this agreement shall be immediately terminated. 3. RIGHTS AND OBLIGATIONS All rights and obligations of the parties to this Agreement shall be subject to and governed by the Special Terms and Conditions contained in the text of this Agreement instrument and the General Terms and Conditions attached hereto as Exhibit "A" incorporated by reference herein. 4. COMPENSATION AND PAYMENT a. Amount of Compensation. i. Total compensation payable to the INVESTIGATOR for satisfactory performance of the work under this Agreement performed by the Investigator is at the rate of Fifty-four and 50/100 Dollars ($54.50) per hour for each hour of investigative services per month. The aforementioned hourly rate is fully loaded and includes all costs for administration, benefits and overhead. ii. Compensation for travel hours are payable at the rate of Fifty-four and 50/100 Dollars ($54.50) per hour for each travel hour related to the investigative services. b. Expenses. Certain out of pocket expenses incurred accomplishing the scope of work will be reimbursable. These expenses are limited to mileage, photographic, transcription services, reproductions costing more than $10, with prior approval by the Director of Public Defense, and recording expenses only. Mileage reimbursement shall be according to Grant County reimbursement rate. Reimbursable out of pocket expenses are to be included in the Investigator's regular billing cycle invoice(s). Non reimbursable expenses include, but are not limited to, 2022-2023 PSA Investigator —Gary T. Way (Way Investigations) Page 2 of 13 reproductions without prior approval, long distance phone calls, supplies, reproductions, postage, and delivery fees. C. Per Diem. Should investigative work require the INVESTIGATOR to travel more than three (3) hours or more than one hundred and fifty (150) miles outside of Grant County, the Investigator shall be eligible for per diem according to Grant County reimbursement rates. When overnight accommodations are required as a part of per diem, the Investigator shall obtain accommodations at the lowest reasonable rate. Requests for reimbursement of Per Diem expense must be accompanied by detailed receipts; credit card slips alone are not sufficient for expense reimbursement. d. Time and Method of Payment. Payment for work performed shall be payable upon receipt of properly completed invoices which shall be submitted to the Director of Public Defense by the INVESTIGATOR on a once monthly basis due by the 15th of each month.. The invoices shall describe and document to the Director's satisfaction, the public defense case by name and case number, the public defender who requested the investigative services, an itemization and description of the work performed with the amount of time listed for each itemization, and a detail of the expenses. Provided, that the description of work done shall be sufficiently general to avoid any disclosure of confidential or privileged information and may exclude the name or other identifying information of any person interviewed. The INVESTIGATOR shall maintain sufficient records that identify the person interviewed and, those records may be reviewed by the Director as needed to verify billings. The rates shall be in accordance with those herein agreed to. Payment shall be considered timely if made by the COUNTY within thirty (30) days after receipt of properly completed invoices. Payment shall be sent to the address designated by the Investigator. The COUNTY may, in its sole discretion, terminate Agreement or withhold payments claimed by the Investigator for service(s) rendered if the Investigator fails to satisfactorily comply with any term or condition of this Agreement. 5. COUNTY OBLIGATIONS The COUNTY agrees to cooperate with the INVESTIGATOR and to provide readily available and pertinent information regarding its requirements for services and work to be performed by the INVESTIGATOR. If the COUNTY observes or otherwise becomes aware of any fault or defect in the services performed by the INVESTIGATOR, the COUNTY shall promptly give notice thereof to the INVESTIGATOR and allow the INVESTIGATOR adequate time to respond. The COUNTY agrees to pay for all services within thirty (30) days of receipt of a bill. 2022-2023 PSA Investigator—Gary T. Way (Way Investigations) Page 3 of 13 6. AGREEMENT REPRESENTATIVES a. The County's Director of the Department of Public Defense shall be representative for Grant County on behalf of the Board of County Commissioners for this contract and responsible for approval for payment of billings and expenses submitted by the INVESTIGATOR. b. The INVESTIGATOR'S representative for this AGREEMENT shall be Karl Calhoun, who will be the contact person for all communications regarding the conduct of work under this AGREEMENT. 7. INTERPRETATION OF AGREEMENT a. Order of Precedence. In the event of an inconsistency in this AGREEMENT, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: i. Applicable Federal and state of Washington statutes and regulations; ii. Special Terms and Conditions as contained in this basic AGREEMENT instrument; iii. Exhibit "A": General Terms and Conditions; iv. Any other provision, term or material incorporated herein by reference or otherwise incorporated. b. Entire Agreement. This AGREEMENT including referenced exhibits represents all the terms and conditions agreed upon by the parties for public information and communications work for COUNTY. No other understandings or representations, oral or otherwise, regarding the subject matter of this AGREEMENT shall be deemed to exist or to bind any of the parties hereto. C. Conformance. If any provision of this AGREEMENT violates any statute or rule of law of the state of Washington, it is considered modified to conform to that statute or rule of law. d. Approval. This AGREEMENT shall be subject to the written approval of COUNTY's duly authorized officials and shall not be binding until so approved. AGREEMENT may be altered, amended, or waived only by a written amendment executed by both parties. THIS AGREEMENT is executed by the persons signing below who warrant that they have the authority to execute AGREEMENT. 2022-2023 PSA Investigator—Gary T. Way (Way Investigations) Page 4 of 13 SIGNED this day of 2021. State of Washington ) ss. County of Grant PO Box t 31 Langley, WA 98260 Phone: (425) 231-6397 E-mail: gtwpi@w'idbey.com TAX ID NUMBER,: 532-54-6409 I hereby certify that I know or have satisfactory evidence that Gary T. Way signed this instrument in his capacity as Owner of WAYINVESTIGATIONS, a Washington State Private Investigative Agency, and acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the instrument. LEELLYN BERG NOTARY PUBLIC #29875 STATE OF WASHINGTON COMMISSION EXPIRES JULY 309 2024 DATED: No Public for My Commission expires: 2022-2023 PSA Investigator —Gary T. Way (Way Investigations) Page 5 of 13 Exhibit "A" GENERAL TERMS AND CONDITIONS 1. Independent Capacity Of The INVESTIGATOR The INVESTIGATOR and its employees or agents performing under this Agreement are not employees or agents of the COUNTY. The INVESTIGATOR will not hold himself/herself out as nor claim to be an officer or employee of the COUNTY or of the state of Washington by reason hereof, nor will the INVESTIGATOR make any claim of right, privilege or benefit which would accrue to an employee under chapter 41.06 RCW or chapter 28B.16 RCW. Identification of the INVESTIGATOR as a Private Investigator contracted to perform services for the County or for the Grant County Public Defense is not a violation of this condition. 2. Subcontracting The INVESTIGATOR shall not enter into subcontracts for any of the work contemplated under this Agreement without obtaining prior written approval of the COUNTY. 3. Indemnification The INVESTIGATOR shall defend, protect and hold harmless the COUNTY, or any COUNTY employees, officers, or officials, from and against all claims, suits or actions arising from the INVESTIGATOR'S acts which are libelous or slanderous, which result in injury to persons or property, which violate a right of confidentiality, or which constitute an infringement of any copyright, patent, trademark or trade name through use or reproduction of material of any kind, or negligence. 4. Covenant Against Contingent Fees The INVESTIGATOR warrants that no person or selling agent has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide established agent maintained by the INVESTIGATOR for the purpose of securing business. The COUNTY shall have the right, in the event of breach of this clause by the INVESTIGATOR, to annul this Agreement without liability or, in its discretion, to deduct from the Agreement price or consideration or recover by other means the full amount of such commission, percentage, brokerage or contingent fee. 5. Conflict Of Interest The COUNTY may, by written notice to the INVESTIGATOR terminate this Agreement if it is found after due notice and examination by the Agent that there is a violation of the 2022-2023 PSA Investigator—Gary T. Way (Way Investigations) Page 6 of 13 Ethics in Public Service Act, chapter 42.52 RCW; or any similar statute involving the INVESTIGATOR in the procurement of, or performance under, this Agreement. In the event this Agreement is terminated as provided above, the COUNTY shall be entitled to pursue the same remedies against the INVESTIGATOR as it could pursue in the event of a breach of the Agreement by the INVESTIGATOR. The rights and remedies of the COUNTY provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which the Agent makes any determination under this clause shall be an issue and may be reviewed as provided in the "Disputes" clause of this Agreement. TREATMENT OF ASSETS A. Title to all property furnished by the COUNTY shall remain in the COUNTY. Title to all property furnished by the INVESTIGATOR, for the cost of which the INVESTIGATOR is entitled to be reimbursed as a direct item of cost under this Agreement, shall pass to and vests in the COUNTY upon delivery of such property by the INVESTIGATOR. Title to other property, the cost of which is reimbursable to the INVESTIGATOR under this Agreement, shall pass to and vest in the COUNTY upon: i. Issuance for use of such property in the performance of this Agreement, or; ii. Commencement of use of such property in the performance of this Agreement, or; Reimbursement of the cost thereof by the COUNTY in whole or in part, whichever first occurs. B. Any property of the COUNTY furnished to the INVESTIGATOR shall, unless otherwise provided herein or approved by the COUNTY, be used only for the performance of this Agreement. C. The INVESTIGATOR shall be responsible for any loss or damage to property of the COUNTY which results from the negligence of the INVESTIGATOR or which results from the failure on the part of the INVESTIGATOR to maintain and administer that property in accordance with sound management practices. D. Upon loss or destruction of, or damage to, any County property, the INVESTIGATOR shall notify the COUNTY thereof and shall take all reasonable steps to protect that property from further damage. E. The INVESTIGATOR shall surrender to the COUNTY all property of the COUNTY prior to settlement upon completion, termination or cancellation of this Agreement. F. All reference to the INVESTIGATOR under this clause shall also include the INVESTIGATOR'S employees, agents or Subcontractors. 2022-2023 PSA Investigator—Gary T. Way (Way Investigations) Page 7 of 13 1. Non-Assi nability Neither this Agreement, nor any claim arising under this Agreement, shall be transferred as assigned by the INVESTIGATOR. 2. Records Documents And Reports The INVESTIGATOR shall maintain books, records, documents and other evidence of accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement. These records shall be subject at all reasonable times to inspection, review, or audit by personnel duly authorized by the COUNTY, the Office of the State Auditor, and federal officials so authorized by law, rule, regulation, or Agreement. The INVESTIGATOR will retain. all books, records, documents, and other materials relevant to this Agreement for six (6) years after settlement, a make them available for inspection by persons authorized under this provision or pursuant to chapter 42.17 RCW. 3. Safeguarding Of Information The use or disclosure by any party of any information concerning the COUNTY for any purpose not directly connected with the administration of the COUNTY'S or the INVESTIGATOR'S responsibilities with respect to service(s) provided under this contract is prohibited except by prior written consent of the COUNTY. 4. Rights In Data Unless otherwise provided, data which originates from this Agreement shall be "works for hire" as defined by the U.S. Copyright Act of 1976 and shall be owned by the COUNTY. Data shall include, but not be limited to, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. Ownership includes the right of copyright, patent, register and the ability to transfer these rights. Data which is delivered under the Agreement, but which does not originate therefrom, shall be transferred to the COUNTY with a nonexclusive, royalty free, irrevocable license to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others to do so; Provided that such license shall be limited to the extent which the INVESTIGATOR has a right to grant such a license. The INVESTIGATOR shall exert all reasonable effort to advise the COUNTY, at the time of delivery of data furnished under this Agreement, of all known or potential invasions of privacy contained therein and of any portion of such document which was not produced in the performance of this Agreement. The COUNTY shall receive prompt written notice of each notice or claim of copyright infringement received by the INVESTIGATOR with respect to any data delivered under this Agreement. The COUNTY shall have the right to modify or remove any restrictive markings placed upon the data by the INVESTIGATOR. 2022-2023 PSA Investigator —Gary T. Way (Way Investigations) Page 8 of 13 5. Registration With Department Of Revenue The INVESTIGATOR shall complete registration with the Department of Revenue, General Administration Building, Olympia, WA 98504, and be responsible for payment of all taxes due on payments made under this Agreement. 6. Licensing Accreditation And Registration The INVESTIGATOR shall comply with applicable local, state, and federal licensing, accreditation and registration requirements/standards, necessary for the performance of this Agreement. The INVESTIGATOR shall assure that the INVESTIGATOR and all the INVESTIGATOR employees are fully licensed Private Investigators in the state of Washington. 7. Liability Insurance Throughout the entire term of this Agreement the INVESTIGATOR shall obtain and continuously maintain, at the INVESTIGATORS sole cost and expense, a policy of commercial liability insurance in an amount not less than Five Hundred Thousand and No/100 Dollars ($500,000.00) per claim nor less than One Million and No/100 Dollars ($1,000,000.00) in the aggregate during the policy term. Said policy shall include coverage as an additional insured for any other Investigators) acting for or on behalf of the INVESTIGATOR in the performance of this Agreement. Said policy shall provide professional liability insurance coverage for any errors and/or omissions by the INVESTIGATOR during the course of performing legal services under this Agreement, and shall further require that the insurance company provide the County with no less than thirty (3 0) days prior written notice in the event the policy is cancelled or materially altered. Said policy shall also comply with all applicable state of Washington insurance requirements and shall be issued by an insurance company authorized to conduct business and issue insurance in the state of Washington. Contemporaneously with the INVESTIGATORS execution of this Agreement, the INVESTIGATOR shall provide the County and its designated Risk Manager (Administrative Services Coordinator) with written proof and confirmation that such insurance policy and coverage has been obtained and the INVESTIGATOR shall provide the Risk Manager with annual written proof and confirmation that such insurance policy and coverage continues to exist no later than by January 15' of each year during the term of this Agreement. 8. Industrial Insurance Coverage Prior to performing work under this Agreement, the INVESTIGATOR shall provide or purchase industrial insurance coverage for the INVESTIGATOR'S employees, as may be required of an "employer" as defined in Title 51 RCW, and shall maintain full compliance with Title 51 RCW during the course of this Agreement. Should the INVESTIGATOR fail to secure industrial insurance coverage or fail to pay premiums, as may be required under Title 51 RCW, the COUNTY may deduct the amount of premiums and any penalties owing from the amounts payable to the INVESTIGATOR under this Agreement and transmit the 2022-2023 PSA Investigator —Gary T. Way (Way Investigations) Page 9 of 13 same to the Department of Labor and Industries, Division of Industrial Insurance. This provision does not waive any right under RCW 51.12.050 to collect from the INVESTIGATOR amounts paid by the COUNTY. The COUNTY will not be responsible for payment of industrial insurance premiums or for any other claim or benefit for this INVESTIGATOR, or any subcontractor or employee of the INVESTIGATOR, which might arise under the industrial insurance laws during performance of duties and service(s) under this Agreement. If the Washington State Department of Labor and Industries, upon audit, determines that industrial insurance payments are due and owing as a result of work performed under this Agreement, those payments shall be made by the INVESTIGATOR; the INVESTIGATOR shall indemnify the COUNTY and guarantee payment of such amounts. Industrial insurance coverage through the Department of Labor & Industries is optional for sole proprietors, partners, corporate, officers and others, per RCW 51.12.020. 9. Advance Payments Prohibited No payments in advance or in anticipation of service(s) or supplied to be provided under this Agreement shall be made by the COUNTY. 10. Savings In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this Agreement and prior to normal completion, the COUNTY may terminate the Agreement under the "Termination for Convenience"' clause, without the five day notice requirement, subject to renegotiation under those new funding limitations and conditions. 11. Limitation Of Authority Only the COUNTY'S duly authorized officials shall have the express, implied or apparent authority to alter, amend, modify, or waive any clause or condition of this Agreement. Furthermore, any alteration, amendment, modification or waiver of any clause or condition of this Agreement is not effective or binding unless made in writing and signed by the duly authorized officials of the COUNTY. 12. Waiver Of Default Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver of breach of any provision of the Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of the Agreement unless stated to be such in writing, signed by the Agent and attached to the original Agreement. 2022-2023 PSA Investigator—Gary T. Way (Way Investigations) Page 10 of 13 Any claim by the INVESTIGATOR for adjustment under this clause must be asserted within thirty (30) days from the date of the INVESTIGATOR'S receipt of the notice of such change; Provided, however, that the Agent may, upon determining that the facts justify such action, receive and act upon such claim asserted at any time prior to final payment under this Agreement. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this Agreement entitled "Disputes" However, nothing in this clause shall excuse the INVESTIGATOR from proceeding with the Agreement as changed. 13. Termination For Default By written notice the COUNTY may terminate the Agreement, in whole or in part, for failure of the INVESTIGATOR to perform any of the provisions hereof. In such event the INVESTIGATOR shall be liable for damages as authorized by law including, but not limited to, any cost difference between the original Agreement and the replacement or cover Agreement and all administrative costs directly related to the replacement Agreement, e.g., cost of the competitive bidding, mailing, advertising and staff time; Provided, that if (i) it is determined for any reason the INVESTIGATOR was not in default, or (ii) the INVESTIGATOR'S failure to perform is without the INVESTIGATOR'S and/or subcontractor's control, fault or negligence, the termination shall be deemed to be a Termination for Convenience. 14. Termination For Convenience If either party terminates this Agreement pursuant to this paragraph, the INVESTIGATOR will be obligated to complete all investigations in files assigned to the INVESTIGATOR at the time of the termination unless the parties mutually agree in writing to the transfer of any assigned cases to another investigator. 15. Termination Procedure Upon termination of this Agreement the COUNTY, in addition to any other rights provided in this Agreement, may require the INVESTIGATOR to deliver to the COUNTY any property specifically produced or acquired for the performance of such part of this Agreement as has been terminated. The provisions of the "Treatment of Assets" clause shall apply in such property transfer. The COUNTY shall pay to the INVESTIGATOR the agreed upon price, if separately stated, for completed work and service(s) accepted by the COUNTY, and the amount agreed upon by the INVESTIGATOR and the COUNTY for (i) completed work and service(s) for which no separate price is stated, (ii) partially completed work and service(s), (iii) other property or services which are accepted by the COUNTY, and (iv) the protection and preservation of property, unless the termination is for default, in which case the Agent shall determine the extent of the liability of the COUNTY. Failure to agree with such determination shall be a dispute within the meaning of the "Disputes" clause of this Agreement. The COUNTY may withhold from any amounts due the INVESTIGATOR 2022-2023 PSA Investigator—Gary T. Way (Way Investigations) Page 11 of 13 such sum as the Project Manager determines to be necessary to protect the COUNTY against potential loss or liability. The rights and remedies of the COUNTY provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. After receipt of a notice of termination, and except as otherwise directed by the Project Manager, the INVESTIGATOR shall: a. Stop work under the Agreement on the date, and to the extent specified, in the notice; b. Place no further orders or subcontracts for materials, services, or facilities except as may be necessary for completion of such portion of the work under the Agreement as is not terminated; C. Assign to the COUNTY, in the manner, at the times, and to the extent directed by the Agent, all of the rights, title, and interest of the INVESTIGATOR under the orders and subcontracts so terminated, in which case the COUNTY has the right, at its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts. d. Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the Agent to the extent the Pro j ect Manager may require, which approval or ratification shall be final for all the purposes of this clause; e. Transfer title to the COUNTY and deliver in the manner, at the times, and to the extent directed by the Agent any property which, if the Agreement had been completed, would have been required to be furnished to the COUNTY; f. Complete performance of such part of the work as shall not have been terminated by the Project Manager; and g. Take such action as may be necessary, or as the Pro ect Manager may direct, for the protection and preservation of the property related to this Agreement which is in the possession of the INVESTIGATOR and in which the COUNTY has or may acquire an interest. 16. Governing Law This Agreement shall be governed by the laws of the state of Washington. In the event of a lawsuit involving this Agreement, venue shall be proper only in Grant County. INVESTIGATOR, by execution of this Agreement, acknowledges the jurisdiction of the courts of the state of Washington in this matter. 2022-2023 PSA Investigator—Gary T. Way (Way Investigations) Page 12 of 13 17. Severability If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision, and to this end the provisions of this Agreement are declared to be severable. 2022-2023 PSA Investigator—Gary T. Way (Way Investigations) Page 13 of 13 GRANT COUNTY DEPARTMENT Off' PUBLIC DEFENSE LJ[J, Date: December 15, 2021 To: Board of County Comniissioners From: Brett Hill, Director Re: PROPOSED PSA FOR INVESTIGATOR — Gary Way Attached please find a proposed Professional Services Agreement (PSA) with Investigator Gary Way. BACKGROUND: Mr. Way has been a contract investigator for the Department of Public Defense. The current contract expires on December 31, 2021. r tf,? BUDGET: This PSA is a renewal of a current contractor. There is an increase as our PSA's are on a two year cycle and there has not been an increase for contractors for the past two years. The proposed PSA and the increase associated was contemplated and is included in the budget for 2022. REQUEST OF THE BOCC: My request is that the BOCC approve and sign the attached Professional Services Agreement.