080-19 - Beckwith Consulting Group - ContractCITY OF PORT ORCHARD PERSONAL SERVICES AGREEMENT
THIS Agreement is made effective as of the26th day of November, 2019, by and between the City
of Port Orchard, a municipal corporation, organized under the laws of the State of Washington, whose
address is:
CITY OF PORT ORCHARD, WASHINGTON (hereinafter the *CITY')
216 Prospect Street
Port Orchard, Washington 98366
Contact: Mayor Robert Putaansuu Phone: 360.876.4401 Fax: 360.895.9029
and Beckwith Consulting Group, an individual/sole proprietor, doing business at:
P.O. Box 704
LaConner, WA 98257
Contact: Thomas Beckwith
(hereinafter the "CONSULTANT")
Phone: 360 466 3536 Email:beckwith@beckwithconsult.com
for personal services in connection with the following Project:
2019 Parks Plan Update
TERIVIS AND CONDITIONS
1.Services by Consultant
A. The Consultant shall perform the services described in the Scope of Work attached to this
Agreement as Exhibit "A." The services performed by the Consultant shall not exceed the Scope of Work
without prior written authorization from the City.
B. The City may from time to time require changes or modifications in the Scope of Work.
Such changes, including any decrease or increase in the amount of compensation, shall be agreed to by the
parties and incorporated in written amendments to the Agreement.
2. Schedule of Work.
A. The Consultant shall perform the services described in the Scope of Work in accordance
with the tasks identified within Exhibit "A" and the terms of this Agreement. If delays beyond the
Consultant's reasonable control occur, the parties will negotiate in good faith to determine whether an
extension is appropriate.
B. The Consultant is authorized to proceed with services upon receipt of a written Notice to
Proceed.
Terms. This Agreement shall commence on November 27 , 2019 ("Commencement Date") and
shall terminate May 31,2020 unless extended or terminated in writing as provided herein.
3.
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4.
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Compensation.
LUMP SUM. Compensation for these services shall be a Lump Sum of $
TIME AND MATERIALS NOT TO EXCEED. Compensation for these services shall not exceed
$ without written authorization and will be based on the list of billing rates and
reimbursable expenses attached hereto as Exhibit "_."
TIME AND MATERIALS. Compensation for these services shall be on a time and materials basis
according to the list of billing rates and reimbursable expenses attached hereto as Exhibit"_."
OTHER. Consultant shall invoice the City at the end of each month. Each invoice shall
indicate the percentage of each task that is being billed that month, and the total percentage
of each task that has been billed to date. The cost billed per task, and total project cost of
$441084.00, shall not exceed that shown on the Gantt chart on page 2 of the Scope of Work
(Exhibit "A"), unless previously agreed in writing by the Consultant and the City.
5.Payment.
A. The Consultant shall maintain time and expense records and provide them to the City
monthly after services have been performed, along with monthly invoices in a format acceptable to the City
for work performed to the date of the invoice.
B. All invoices shall be paid by City warrant within thirty (30) days of receipt of a proper
invoice. If the City objects to all or any portion of any invoice, it shall so notifr the Consultant of the same
within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in dispute, and
the parties shall immediately make every effort to settle the disputed portion.
C. The Consultant shall keep cost records and accounts pertaining to this Agreement available
for inspection by City representatives for three (3) years after final payment unless a longer period is
required by a third-party agreement. Copies shall be made available on request.
D. On the effective date ofthis Agreement (or shortly thereafter), the Consultant shall comply
with all federal and state laws applicable to independent contractors, including, but not limited to, the
maintenance of a separate set of books and records that reflect all items of income and expenses of the
Consultant's business, pursuant to Revised Code of Washington (RCW) 51.08.195, as required by law, to
show that the services performed by the Consultant under this Agreement shall not give rise to an employer-
employee relationship between the parties, which is subject to Title 5l RCW, Industrial Insurance.
E. If the services rendered do not meet the requirements of the Agreement, the Consultant will
correct or modifu the work to comply with the Agreement. The City may withhold payment for such work
until the work meets the requirements of the Agreement.
6. Discrimination and Compliance with Laws
A. The Consultant agrees not to discriminate against any employee or applicant for
employment or any other person in the performance of this Agreement because of race, creed, color,
national origin, marital status, sex, age, disability, or other circumstance prohibited by federal, state, or
local law or ordinance, except for a bona fide occupational qualification.
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B. Even though the Consultant is an independent contractor with the authority to control and
direct the perforrnance and details of the work authorized under this Agreement, the work must meet the
approval of the City and shall be subject to the City's general right of inspection to secure the satisfactory
completion thereof. The Consultant agrees to comply with all federal, state and municipal laws, rules and
regulations that are now effective or become applicable within the term(s) of this Agreement to the
Consultant's business, equipment and personnel engaged in operations covered by this Agreement or
accruing out of the performance of such operations.
C. The Consultant shall obtain a City of Port Orchard business license prior to commencing
work pursuant to a written Notice to Proceed.
D. Violation of this Paragraph 6 shall be a material breach of this Agreement and grounds for
cancellation, termination, or suspension of the Agreement by the City, in whole or in part, and may result
in ineligibility for further work for the City.
7. Relationship of Parties. The parties intend that an independent contractor-client relationship
will be created by this Agreement. As the Consultant is customarily engaged in an independently
established trade which encompasses the specific service provided to the City hereunder, no agent,
employee, representative or sub-consultant of the Consultant shall be or shall be deemed to be the
employee, agent, representative or sub-consultant of the City. In the performance of the work, the
Consultant is an independent contractor with the ability to control and direct the perforrnance and details
of the work, the City being interested only in the results obtained under this Agreement. None of the
benefits provided by the City to its employees, including but not limited to compensation, insurance, and
unemployment insurance, are available from the City to the employees, agents, representatives or sub-
consultants of the Consultant. The Consultant will be solely and entirely responsible for its acts and for
the acts of its agents, employees, representatives and sub-consultants during the perforrnance of this
Agreement. The City ffiay, during the term of this Agreement, engage other independent contractors to
perform the same or similar work that the Consultant performs hereunder.
8. Suspension and Termination of Agreement
A. Termination without cause. This Agreement may be terminated by the City at any time for
public convenience, for the Consultant's insolvency or bankruptcy, or the Consultant's assignment for the
benefit of creditors.
B. Termination with cause. This Agreement may be terminated upon the default of the
Consultant and the failure of the Consultant to cure such default within a reasonable time after receiving
written notice of the default.
C. Rights Upon Termination.
1. With or Without Cause. Upon termination for any reason, all finished or unfinished
documents, reports, or other material or work of the Consultant pursuant to this Agreement shall
be submitted to the City, and the Consultant shall be entitled to just and equitable compensation for
any satisfactory work completed prior to the date of termination, not to exceed the total
compensation set forth herein. The Consultant shall not be entitled to any reallocation of cost,
profit or overhead. The Consultant shall not in any event be entitled to anticipated profit on work
not performed because of such termination. The Consultant shall use its best efforts to minimize
the compensation payable under this Agreement in the event of such termination. Upon
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termination, the City may take over the work and prosecute the same to completion, by contract or
otherwise.
2. Default. If the Agreement is terminated for default, the Consultant shall not be
entitled to receive any further payments under the Agreement until all work called for has been
fully performed. Any extra cost or damage to the City resulting from such default(s) shall be
deducted from any money due or coming due to the Consultant. The Consultant shall bear any extra
expenses incurred by the City in completing the work, including all increased costs for completing
the work, and all damage sustained, or which may be sustained, by the City by reason of such
default.
D. Suspension. The City may suspend this Agreement, at its sole discretion. Any
reimbursement for expenses incurred due to the suspension shall be limited to the Consultant's reasonable
expenses, and shall be subject to verification. The Consultant shall resume performance of services under
this Agreement without delay when the suspension period ends.
E. Notice of Termination or Suspension. If delivered to the Consultant in person, termination
shall be effective immediately upon the Consultant's receipt of the City's written notice or such date as
stated in the City's notice of termination, whichever is later. Notice of suspension shall be given to the
Consultant in writing upon one week's advance notice to the Consultant. Such notice shall indicate the
anticipated period of suspension. Notice may also be delivered to the Consultant at the address set forth in
Section l5 herein.
9. Standard of Care. The Consultant represents and warrants that it has the requisite training, skill
and experience necessary to provide the services under this Agreement and is appropriately accredited and
licensed by all applicable agencies and governmental entities. Services provided by the Consultant under
this Agreement will be performed in a manner consistent with that degree of care and skill ordinarily
exercised by members of the same profession currently practicing in similar circumstances.
10. Ownership of Work Product.
A. All data, materials, reports, memoranda, and other documents developed under this
Agreement whether finished or not shall become the property of the City, shall be forwarded to the City at
its request and may be used by the City as it sees fit. Upon termination of this Agreement pursuant to
paragraph 8 above, all finished or unfinished documents, reports, or other material or work of the Consultant
pursuant to this Agreement shall be submitted to City. Any reuse or modification of such documents,
reports or other material or work of the Consultant for purposes other than those intended by the Consultant
in its scope of services under this Agreement shall be at the City's risk.
B. All written information submitted by the City to the Consultant in connection with the
services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at
least the same extent as the Consultant safeguards like information relating to its own business. If such
information is publicly available or is already in the Consultant's possession or known to it, or is rightfully
obtained by the Consultant from third parties, the Consultant shall bear no responsibility for its disclosure,
inadvertent or otherwise. The Consultant is permitted to disclose any such information only to the extent
required by law, subpoena or other court order.
11. Work Performed at the Consultant's Risk. The Consultant shall take all precautions necessary
and shall be responsible for the safety of its employees, agents and sub-consultants in the performance of
the work hereunder, and shall utilize all protection necessary for that purpose. All work shall be done at
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the Consultant's own risk, and the Consultant shall be responsible for any loss of or damage to materials,
tools, or other articles used or held by the Consultant for use in connection with the work.
12. Indemnification. The Consultant shall defend, indemnifu and hold the City, its officers, officials,
employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits,
including all legal costs and attorneys' fees, arising out of or resulting from the negligent acts, errors or
omissions of the Consultant in performance of this Agreement, except for injuries or damages caused by
the sole negligence of the City.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.1 15, then,
in the event of liability for damages arising out of bodily injury to persons or damages to property caused
by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials,
employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the
Consultant's negligence. The provisions of this section shall survive the expiration ortermination of this
Agreement.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HERETN CONSTITUTES THE CONSULTANT'S WAIVER OF
IMMUNITY UNDER INDUSTRIAL TNSURANCE, TITLE 5I RCW, SOLELY FOR THE PURPOSES
OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE
MUTUALLY NEGOTIATED THIS WAIVER.
13. Insurance. The Consultant shall procure and maintain for the duration of this Agreement,
insurance against claims for injuries to persons or damage to property which may arise from or in
connection with the perforrnance of the work hereunder by the Consultant, its agents, representatives, or
employees.
A. Minimum Scope of Insurance
Consultant shall obtain insurance of the types described below:
l. Automobile Liability insurance covering all owned, non-owned, hired and leased
vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 0l
or a substitute form providing equivalent liability coverage. If necessary, the policy
shall be endorsed to provide contractual liability coverage.
2. Commercial General Liability insurance shall be written on ISO occurence form CG
00 0l or a substitute form providing equivalent liability coverage and shall cover
liability arising from premises, operations, independent contractors and personal injury
and advertising injury. The City shall be named by endorsement as an additional
insured under the Consultant's Commercial General Liability insurance policy with
respect to the work performed for the City.
3. Workers' Compensation coverage as required by the Industrial Insurance laws of the
State of Washington.
4. Professional Liability insurance appropriate to the Consultant's profession
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B. Minimum Amounts of Insurance
Consultant shall maintain the following insurance limits:
l. Automobile Liability insurance with a minimum combined single limit for bodily
injury and property damage of $1,000,000 per accident.
2. Commercial General Liability insurance shall be written with limits no less than
$ 1,000,000 each occurrence, $2,000,000 general aggregate.
3. Workers' Compensation Employer's Liability each accident $1,000,000, Employer's
Liability Disease each employee $1,000,000, and Employer's Liability Disease -
Policy Limit $ 1,000,000.
4. Professional Liabilit_v insurance shall be written with limits no less than $1,000,000
per claim and $1,000,000 policy aggregate limit.
C. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions for
Automobile Liability, Professional Liability and Commercial General Liability insurance:
l. The Consultant's insurance coverage shall be primary insurance as respect the City.
Any insurance, self-insurance, or insurance pool coverage maintained by the City shall
be excess of the Consultant's insurance and shall not contribute with it.
2. The Consultant's insurance shall be endorsed to state that coverage shall not be
cancelled by either party, except after thirty (30) days prior written notice by certified
mail, return receipt requested, has been given to the City.
3. The City will not waive its right to subrogation against the Consultant. The
Consultant's insurance shall be endorsed acknowledging that the City will not waive
their right to subrogation. The Consultant's insurance shall be endorsed to waive the
right of subrogation against the City, or any self-insurance, or insurance pool coverage
maintained by the City.
4. If any coverage is written on a "claims made" basis, then a minimum of a three (3) year
extended reporting period shall be included with the claims made policy, and proof of
this extended reporting period provided to the City.
D. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII.
E. Verification of Coverage
The Consultant shall furnish the City with original certificates and a copy of the amendatory
endorsements, including but not necessarily limited to the additional insured endorsement,
evidencing the insurance requirements of the Consultant before commencement of the work.
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14. Assigning or Subcontracting. The Consultant shall not assign, transfer, subcontract or encumber
any rights, duties, or interests accruing from this Agreement without the express prior written consent of
the City, which consent may be withheld in the sole discretion of the City.
15. Notice. Any notices required to be given by the City to the Consultant or by the Consultant to the City
shall be in writing and delivered to the parties at the following addresses:
CONSULTANT
Thomas Beckwith
Beckwith Consulting Group
P.O. Box 704
LaConner, WA 98251
Phone: 360.876.4407
Fax: 360.895.9029 Phone: 360.466.3536
16. Resolution of Disputes and Governing Law.
A. Should any dispute, misunderstanding or conflict arise as to the terms and conditions
contained in this Agreement, the matter shall first be referred to the Mayor, who shall determine the term
or provision's true intent or meaning. The Mayor shall also decide all questions which may arise between
the parties relative to the actual services provided or to the sufficiency of the performance hereunder.
B. If any dispute arises between the City and the Consultant under any of the provisions of
this Agreement which cannot be resolved by the Mayor's determination in a reasonable time, or if the
Consultant does not agree with the Mayor's decision on a disputed matter, jurisdiction of any resulting
litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington.
C. This Agreement shall be governed by and construed in accordance with the laws of the
State of Washington. In any suit or action instituted to enforce any right granted in this Agreement, the
substantially prevailing party shall be entitled to recover its costs, disbursements, and reasonable attorneys'
fees from the other party.
17. General Provisions.
A.-waiver of Breach. The failure of either party to insist upon strict performance of any
of the covenants and agreements contained herein, or to exercise any option herein contained in one or more
instances, shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options,
and the same shall be in full force and effect.
B. Modification. No waiver, alteration, modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and
the Consultant.
C. Severabililv. The provisions of this Agreement are declared to be severable. If any
provision of this Agreement is for any reason held by u court of competent jurisdiction to be invalid or
unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of
any other provision.
Robert Putaansuu
Mayor
216 Prospect Street
Port Orchard, WA 98366
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D. Entire Agreement. The written provisions of this Agreement, together with any Exhibits
attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City,
and such statements shall not be effective or be construed as entering into or formingapart of or altering
in any manner whatsoever, the Agreement or the Agreement documents. The entire agreement between
the parties with respect to the subject maffer hereunder is contained in this Agreement and the Exhibits
attached hereto, which may or may not have been dated prior to the execution of this Agreement. All of
the above documents are hereby made apart of this Agreement and form the Agreement document as fully
as if the same were set forth herein. Should any language in any of the Exhibits to this Agreement conflict
with any language contained in this Agreement, then this Agreement shall prevail.
18. Title VI
The City of Port Orchard, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252,
42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation
subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the
Department of Transportation issued pursuant to such Act, must affirmatively insure that its contracts
comply with these regulations.
Therefore, during the perforrnance of this Agreement, the Consultant, for itself, its assignees, and
successors in interest agrees as follows:
Compliance with Regulations: The Consultant will comply with the Acts and the Regulations
relative to Nondiscrimination in Federally-assisted programs of the U.S. Department of
Transportation, Federal Highway Administration (FHWA), as they may be amended from time to
time, which are herein incorporated by reference and made apart of this Agreement.
2. Nondiscrimination: The Consultant, with regard to the work performed by it during this
Agreement, will not discriminate on the grounds of race, color, national origin, sex, age,
disability, income-level, or LEP in the selection and retention of subcontractors, including
procurements of materials and leases of equipment. The Consultant will not participate directly or
indirectly in the discrimination prohibited by the Acts and the Regulations as set forth in
Appendix A, attached hereto and incorporated herein by this reference, including employment
practices when this Agreement covers any activity, project, or program set forth in Appendix B of
49 C.F.R . part 2l .
3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all
solicitations, either by competitive bidding, or negotiation made by the Consultant for work to be
performed under a subcontract, including procurements of materials, or leases of equipment, each
potential subcontractor or supplier will be notified by the Consultant of the Consultant's
obligations under this Agreement and the Acts and the Regulations relative to Non-discrimination
on the grounds of race, color, national origin, sex, age, disability, income-level, or LEP.
4. Information and Reports: The Consultant will provide all information and reports required by
the Acts, the Regulations and directives issued pursuant thereto and will permit access to its
books, records, accounts, other sources of information, and its facilities as may be determined by
the City or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and
instructions. Where any information required of the Consultant is in the exclusive possession of
another who fails or refuses to furnish the information, the Consultant will so certifr to the City
or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information
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5. Sanctions for Noncomp iance: In the event of the Consultant's noncompliance with the Non-
discrimination provisions of this Agreement, the City will impose such contract sanctions as it or
the FHWA may determine to be appropriate, including, but not limited to:
l. withholding payments to the Consultant under the Agreement until the Consultant
complies; and/or
2. cancelling, terminating, or suspending the Agreement, in whole or in part.
6. Incorporation of Provisions: The Consultant will include the provisions of paragraphs one
through six in every subcontract, including procurements of materials and leases of equipment,
unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Consultant
will take action with respect to any subcontract or procurement as the City or the FHWA may
direct as a means of enforcing such provisions including sanctions for noncompliance. Provided,
that if the Consultant becomes involved in, or is threatened with litigation by a subcontractor, or
supplier because of such direction, the Consultant may request the City to enter into any litigation
to protect the interests of the City. In addition, the Consultant may request the United States to
enter into the litigation to protect the interests of the United States.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year set forth
above
CITY OF PORT ORCHARD,
WASHTNGTON
By:
Robert Putaans Mayor
ATTEST/A CATE:
By:
MMC
City Clerk
APPROVED AS TO FORM:
)
By:
ates, City
CONSULTANT
By:
Name: Tom Beckwith FAICP
Title: Principal, Beckwith Consulting Group
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APPENDIX A
During the perforrnance of this Agreement, the Consultant, for itself, its assignees, and successors in
interest agrees to comply with the following non-discrimination statutes and authorities; including but not
limited to:
Pertinent Non-Discrimination Authorities:
Title VI of the Civil Rights Act of 1964 (42U .S.C. $ 2000d et seq., 78 stat. 252), (prohibits
discrimination on the basis of race, color, national origin); and 49 C.F.R. Part 2l .
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42
U.S.C. $ 4601), (prohibits unfair treatment of persons displaced or whose property has been
acquired because of Federal or Federal-aid programs and projects);
Federal-Aid Highway Act of 1973, (23 U.S.C. S 324 et seq.), (prohibits discrimination on the
basis of sex);
Section 504 of the Rehabilitation Act of 1913, (29 U.S.C. S 794 et seq.), as amended, (prohibits
discrimination on the basis of disability); and 49 C.F.R. Part27;
The Age Discrimination Act of 1975, as amended, (42 U .S.C. $ 6l0l et seq.), (prohibits
discrimination on the basis of age);
Airport and Airway lmprovement Act of 1982, (49 USC$ 471, Section 4 7123), as amended,
(prohibits discrimination based on race, creed, color, national origin, or sex);
The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and
applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and
Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs
or activities" to include all of the programs or activities of the Federal-aid recipients, sub-
recipients and contractors, whether such programs or activities are Federally funded or not);
Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis
of disability in the operation of public entities, public and private transportation systems, places
of public accommodation, and certain testing entities (42 U.S.C. $$ I 2l3l- l2l 89) as
implemented by Department of Transportation regulations at 49 C.P.R. parts 37 and38;
The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. $ 47123) (prohibits
discrimination on the basis of race, color, national origin, and sex);
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low-lncome Populations, which ensures discrimination against minority
populations by discouraging programs, policies, and activities with disproportionately high and
adverse human health or environmental effects on minority and low-income populations;
Executive Order 13166,lmproving Access to Services for Persons with Limited English
Proficiency, and resulting agency guidance, national origin discrimination includes discrimination
because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take
reasonable steps to -ensure that LEP persons have meaningful access to your programs (70 Fed.
Reg. at 7 4087 to 7 41 00);
Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating because of sex in education programs or activities (20 U.S.C. l68l et seq).
EXHIBITS: Exhibit A, Scope of Work
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