HomeMy WebLinkAboutRes 2021-07-940 Master Agreements for Professional Services Including Architectural Design, Design-Build, etc.CITY OF ANNA, TEXAS
RESOLUTION NO. anal • 0?- 9140
A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE MASTER AGREEMENTS FOR PROFESSIONAL
SERVICES INCLUDING ARCHITECTURAL DESIGN, DESIGN -BUILD, LAND
PLANNING & ZONING, AND LANDSCAPE ARCHITECTURE AND PARK PLANNING
SERVICES IN A FORM APPROVED BY THE CITY ATTORNEY; AND PROVIDING
FOR AN EFFECTIVE DATE.
WHEREAS, the City of Anna conducted a public Request for Qualifications process to
seek qualified professional service firms for future projects in the City of Anna; and,
WHEREAS, the City of Anna Request for Qualifications Process included the review and
scoring of all submittals received in order to identify the most qualified firms; and,
WHEREAS, the City of Anna is seeking to enter into Master Agreements with the highest
scoring firms in order to create a list of qualified firms for future projects; and,
WHEREAS, the City of Anna will select from the list of qualified firms within each specific
professional service category to award projects and enter into project -specific
agreements as new projects arise; and,
WHEREAS, project specific agreements and funding for new projects shall be subject to
the approval of the City Council of the City of Anna as required by City policies and
procedures; and,
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS THAT:
Section 1. Recitals Incorporated
The recitals above are incorporated herein as if set forth in full for all purposes.
Section 2. Authorization of Master Agreements.
That the City Council of the City of Anna authorizes the City Manager to enter into a
Master Agreement for Professional Services with the firms identified in Exhibit "A"
attached hereto on behalf of the City of Anna, Texas, in a form approved by the City
Attorney as shown in Exhibit "B" attached hereto.
That an executed Master Agreement is not a guarantee of award of a specific project or
sum of money for professional services to any individual firm which enters into a Master
Agreement. Project Specific Agreements shall be used to award a qualified firm with a
project and shall be subject to the approval of the City Council of the City of Anna as
required by City policies and procedures.
PASSED AND APPROVED by the City Council of the City of Anna, Texas on this
day of July 2021.
ATTEST: APPROVED:
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City Secretary, Carrie Land V:. * Mayor, Nate Pike
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Exhibit A
(following. Page)
Exhibit A- RFQ Selection for Professional Services -Planning, Facilities, & Parks Group
FIRMS
CATEGORIES
Land Planning & Landscape Architecture and
Zonig Architecture Design -Build Perk Planning
A
D
E
F
AGCM
Allana Buick & Bers
Brinkley Sargent Wiginton
D
BRW Architects
D
Byrne
E
CCA
Conduit Architecture
Core
Crossland
E
DCBA
Dunkin Sims Soffels
F
Eikon
FNI
F
Gensler
GHC Architects
GSBS Architects
Halff
HP Engineering
Huitt Zollars
F
HWGC
Jacobs
F
JE Dunn
K[mley Horn
A
Kirkpatrick Architecture Studio
LaTerra Studio
Lee Lewis & Randall Scott
LPA
Mesa Group
A
Parkhill Smith & Cooper
PGAL
D
Randall Scott Architects
Smith Group
Spaw Glass
Speed Fab -Crete
E
TN P
F
VAI Architects
Wright Group
Legend
Submitted in Category
D Selected In Category
Exhibit B
(following Page)
THE CFFY OF
Anna
Professional Service Project Order #
Pursuant to and subject to the referenced Master Agreement for Professional Services ("Master PSA')),
between the City and Firm, City hereby requests that Firm perform, and Firm agrees to perform, the work
described below upon the terms and conditions setforth in said Master PSA, which are incorporated herein
by reference for all purposes, and in this"Professional Service Project Order" (PSPO).
MAPES # MASTER PSA CATEGORY:
ANNA PROJECT CODE:
FIRM NAME
Project Name:
Consultant Project #:
# Of Consecutive Business
Days to Complete Project:
Original Project Fee:
OWNER OPTIONAL INFORMATION:
1. Date and Time to Commence: Upon Receipt of Signed Professional Services Project Order,
City's purchase order and Notice to Proceed
2. Other: Architectural Barrier Requirements: Yes_ No
INVOICE SUBMITTAL
Billincl Period:
Monthly -Through the and of each month, billed by the 10th of the
followina month.
Mail to: City of Anna
Accounts Payable
P.O. Box 776
Anna,TX 75409
Include work order number, PO number, billing period, and project
Invoice Mailing Instructions:
name.
M.rt.r PSA
PSM #
Documents:
The "PSPO DOCUMENTS" as that term Is used herein, shall mean and Include the following
documents, and expressly Incorporates the following by reference for all purposes.
a. Master Agreement for Professional Services / Category: effective ;
and
b. This Professional Services Project Order (PSPO) # ; and
This PSPO shall incorporate the terms of all the documents in their entirety. To the extent that
there are any conflicts with provisions of the Master PSA, this PSPO or each other, the provisions
of the Master PSA, then the provisions of this PSPO shall prevail in that order.
Scope of Services (describe in detail):
Schedule of Work and Completion Deadline(s):
Acceptance:
The Individuals executing this Agreement on behalf of the respective parties below represent to each other that all
appropriate and necessary action has been taken to authorize the individual who is executing this Agreement to do
so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities
required to execute this Agreement In order for the same to be an authorized and binding agreement on the other
party for whom the individual is signing this Agreement and that each individual affixing his or her signature hereto
is authorized to do so, and such authorization is valid and effective on the date hereof.
CITY OF ANNA, TEXAS FIRM:
Signature
Jim Proce - City Manager
Printed Name & Title
Date
Master psA
Pspo p
Signature
Printed Name & Tine
Date
MASTER AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF ANNA, TEXAS, AND TERRACON CONSULTANTS, INC.
2021-2026
Made as of the 27th day of July 2021 ("Effective Date")
Between the City: The City of Anna, Texas
101 S. Powell Parkway
Anna, Texas 75409
Telephone: (972) 924-3325
and the Firm: TERRACON CONSULTANTS, INC.
5908 STONE CREEK DR. SUITE 120
THE COLONY, TX 75056
for the following Project: Master Agreement for Category B: Materials Testing
THIS MASTER AGREEMENT FOR PROFESSIONAL SERVICES (this "Agreement') is made
and entered into by and between the City of Anna, Texas, a home -rule municipality ("City"),
and TERRACON CONSULTANTS, INC. (Material Testing] ("Firm'), to be effective from
and after the date as provided above. City and Firm are at times each referred to herein
as a "party" or collectively as the "parties."
WHEREAS, the City desires to engage the services of the Firm to provide professional services
as describe for Category B — Materials Testing on an on -call basis ("Project'); and
WHEREAS, the Firm desires to render such professional services for the City upon the terms and
conditions provided herein.
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS:
That for and in consideration of the covenants contained herein, for the mutual benefits to be
obtained hereby and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
ARTICLE 1
FIRM'S SERVICES
1.1 Engagement of the Firm — At City's request and in City's sole discretion, City is entitled
to engage Firm from time to time to perform professional services in accordance with the
terms and conditions of this Agreement ("Services'). Firm agrees to perform such Services
in accordance with the terms and conditions of this Agreement and with any individual
written Project Order issued pursuant to Article 1.2 hereof. City reserves the right, in its
sole discretion, to hire other firms or Firms for any reason and for any purpose. If any
employee of Firm, who is performing the day-to-day Services under this Agreement, is
separated, for any reason, from employment with Firm, Firm shall provide City with written
notice thereof at least five (5) business days' prior to said separation unless circumstances
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reasonably warrant a shorter notice period, which shall not exceed two (2) business days
following the separation.
1.2 Scope of Services — The Services to be provided by Firm to City shall be as mutually
agreed to in a separate written Project Order, in the format as stated in Exhibit A,
executed by City and Firm ("Scope of Services"). Whenever used in this Agreement, the
term Services shall mean those services specified in this Agreement and in a Project Order
issued pursuant to this Agreement and all related work. Each Project Order shall include,
directly or by reference, appropriate cost and pricing data and such other documentation
as required by the City. Each Project Order shall be subject to and integrated into this
Agreement, and the terms of this Agreement are incorporated into and made a part of
each Project Order by reference to this Agreement. All Services within the Scope of
Services shall be performed by the employees of Firm or Firm's officers, employees,
agents, representatives, sub -contractors or sub -Firms unless otherwise provided in a
Project Order. Firm shall be wholly and solely responsible for any Services or
subcontracted Services provided by any officer, employee, agent, representative, sub-
contractors or sub -Firms of Firm (collectively, "Firm's Personnel'). If at any time after
entering into this Agreement, City has any objection to Firm's representative or to any of
Firm's Personnel, or any objection to any personnel of sub -Firm retained by Firm and
assigned to perform the Services, Firm shall promptly propose substitutes to whom City
has no objection. The parties understand and agree that deviations or modifications to
the Scope of Services, in the form of written change orders, may be authorized from time
to time by City ("Change Order(s)").
1.2.1 Requirement of Written Change Order — "Extra" work, or 'claims" invoiced as
"extra" work, or "claims" that have not been issued as a duly executed, written
Project Order or Change Order issued by the Anna City Manager, will not be
authorized for payment and/or shall not become part of the subcontracts. A duly
executed written Change Order shall be preceded by the Anna City Council's
authorization for the Anna City Manager to execute said Change Order.
1.2.2 FIRM SHALL NOT PERFORM ANY "EXTRA" WORK AND/OR ADDITIONAL
SERVICES WITHOUT A DULY EXECUTED WRITTEN CHANGE ORDER
ISSUED BY THE ANNA CITY MANAGER. Firm acknowledges that Project
Managers, Superintendents, and/or Inspectors of the City are not authorized to
issue verbal or written change orders.
1.3 Schedule of Work — Firm agrees to commence work immediately upon the execution of
a Project Order, and to proceed diligently with said work to completion as described in
such Project Order.
1.4 Standard of Care — Firm shall perform the Services required hereunder: (1) with the
professional skill and care ordinarily provided by competent professionals practicing under
the same or similar circumstances and professional license; and (2) as expeditiously as is
prudent considering the ordinary professional skill and care of a competent professional
under the same professional license.
1.5 Term — The term of this Agreement shall begin on the Effective Date and shall continue
until 8/1/2021 - 9/30/2026 , unless sooner terminated as provided herein.
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1.6 Subcontracted Services — When necessary, subcontracted services shall be procured
by Firm in connection with the Services provided pursuant to this Agreement, subject to
City's prior written consent. Firm shall issue subcontracts for such subcontracted services
in Firm's own name. Firm shall be compensated for subcontracted services for the actual
amount invoiced by the subcontractor. Except as set forth in this Agreement, neither Firm
nor City may assign, sublet, transfer, or otherwise convey (together, an "Assignment'),
and neither Firm nor City has the power to enter into an Assignment of any or all of the
rights, duties and obligations or interest in this Agreement without the prior written consent
of the other party. Unless specifically stated to the contrary in any written consent to an
Assignment, no Assignment will release or discharge the assignor from any duty or
responsibility under this Agreement.
ARTICLE 2
THE CITY'S RESPONSIBILITIES
City shall use reasonable efforts to not delay the Services of Firm as follows:
2.1 Protect Data — The City shall furnish information that is reasonably requested by Firm and
that City has in its possession at the time of Firm's request as expeditiously as necessary
for the orderly progress of the Services, and Firm shall be entitled to rely upon the
accuracy and completeness of the information furnished by City under this Article 2.1.
2.2 City Protect Manager — The City shall designate, when necessary, a representative
authorized to act on City's behalf with respect to the Services ("Proiect Manager'). City,
or the authorized Project Manager, shall on an as -needed basis, issue Project Orders to
Firm in accordance with the Scope of Services, in the format as stated in Exhibit A. City,
or the authorized Project Manager shall examine the documents submitted by Firm and
shall render any required decisions pertaining thereto as soon as practicable to avoid
unreasonable delay in the progress of Firm's Services. Firm understands and agrees that
the Project Manager and his or her authorized designee are not authorized to issue verbal
or written Change Orders for "extra" work or "claims" invoiced as "extra" work.
ARTICLE 3
FIRM'S COMPENSATION
3.1 Compensation for Firm's Services— Compensation by the City to Firm for Services shall
be on a fixed fee or a time and materials basis as specified in the applicable Professional
Services Project Order ("Firm's Fee'). All time shall be billed at Firm's labor billing rates
agreed upon by City. Said rates shall only be adjusted in writing as may be agreed to
between the Parties.
3.1.1 Completion of Record Documents — City and Firm agree that the completion of
any Record Documents and/or "As -Built" Documents, including hard copy
formatting and electronic formatting, shall be completed, submitted to, and
accepted by the City prior to payment of the final five percent (5%) of the Firm's
Fee, unless expressly stated otherwise in the applicable Project Order. The
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electronic formatting shall be consistent with the standards established in Exhibit
D, City of Anna Guidelines for Computer Aided Design and Drafting ("CADD").
Completion of the Record Documents and/or "As -Built" documents shall be
included in the Firm's Fee and considered to be within the Scope of Services
defined under this Agreement.
3.1.2 Disputes between City and Construction Contractor — If the Scope of Services
involves the Firm performing Construction Administration Services relating to an
agreement between a Construction Contractor (the "Contractor") and the City, and
upon receipt of a written request by City, Firm shall research previous and existing
conditions of the Services, and make a determination whether or not to certify that
sufficient cause exists for the City to declare the Contractor in default of the terms
and conditions of the agreement. Firm shall submit his findings in writing to the
City, or submit a written request for a specific extension of time (including the basis
for such extension), within fifteen (15) calendar days of receipt of the written
request from the City. City and Firm agree that if requested by the City, completion
of this task shall be included in the Firm's Fee and considered to be within the
Scope of Services as defined under this Agreement.
3.1.3 Consultation and Approval by Governmental Authorities and Franchised
Utilities — Firm shall be responsible for identifying and analyzing the requirements
of governmental agencies and all franchise utilities involved with the Scope of
Services, and to participate in consultation with said agencies in order to obtain all
necessary approvals and/or permissions. The Firm shall be responsible for
preparation and timely submittal of documents required for review, approval,
and/or recording by such agencies. The Firm shall be responsible for making such
changes in the Construction Documents as may be required by existing written
standards promulgated by such agencies at no additional charge to City.
3.1.4 Substantial Compliance with Architectural Barriers Act — Should the Scope of
Services fall within the regulatory requirements of the Texas Architectural Barriers
Act (the "Barriers Act,), as solely determined by the City, Firm shall comply with
the Barriers Act. As part of the Scope of Services, it is the sole responsibility of
the Firm to identify and analyze the requirements of the Barriers Act and to become
familiar with the governmental authorities having jurisdiction to approve Firm's
design and/or construction Services. Firm shall participate in consultations with
said authorities in order to obtain approval for such design and/or construction. As
part of the Services, the Firm shall obtain the Notice of Substantial Compliance for
the Services from the Texas Department of Licensing and Regulation (the "TDLR").
The Firm shall, without additional compensation, immediately correct any errors,
omissions, or deficiencies in the design services and/or construction documents
identified by TDLR and/or a Registered Accessibility Specialist ("RAS") at any
phase of the Services, either by review of the construction documents, or
inspection of the design at the commencement of construction, during the
construction of the work, or at the completion of construction.
3.1.4.1 Submission of Construction Documents to TDLR — The Firm shall
mail, ship, or hand -deliver the construction documents to TDLR not
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later than five (5) calendar days after the Firm issues the construction
documents for the work.
3.1.4.2 Completion of Registration Form to TDLR — Firm shall complete an
Elimination of Barriers Project Registration Form for each subject
building or facility within the Scope of Services, and submit the
registration form(s) along with the applicable fees not later than
fourteen (14) calendar days after the Firm completes the submittal of
the construction documents to TDLR.
3.1.4.3 TDLR Approval of Construction Documents — After review of the
construction documents by TDLR, the Firm shall be notified in writing
of the results; however, it is the Firm's responsibility to obtain TDLR's
written comments. The Firm shall address all comments that prevent
TDLR approval of the construction documents, including comments
relating to Conditional Approval that must be addressed in the design
and construction of the work. Firm shall resubmit construction
documents to TDLR for review prior to the commencement of
construction of the work.
3.1.4.4 TDLR Proiect Inspection — Firm shall request an inspection from
TDLR or a TDLR locally approved RAS no later than thirty (30) calendar
days after the completion of construction of the work. The Firm shall
advise the City in writing of the results of each inspection. City reserves
the right to verify the written results with TDLR at any time during
design, construction, or at the completion of the work.
3.1.4.5 Corrective Modifications following TDLR Project Inspection -
When corrective modifications to achieve substantial compliance are
required, the TDLR inspector or the RAS shall provide the Firm a list of
deficiencies and a deadline for completing the modifications. Firm shall
provide the City with this list within five (5) calendar days of receipt. It
is the sole responsibility of the Firm to completely address the
deficiencies by the stated deadline or to obtain a written notice of
extension from the TDLR. When the corrective measures have been
completed, Firm shall provide the TDLR (and/or the RAS who
completed the inspection) and the City with written verification of the
corrective measures completed.
3.1.4.6 TDLR Notice of Substantial Compliance — TDLR shall provide a
Notice of Substantial Compliance to the City after the newly constructed
work has had a satisfactory inspection, or Firm has submitted
verification of corrective modifications. City and Firm agree that the
final five percent (5%) of Firm's Fee, unless expressly stated otherwise
in a Project Order, shall not be paid until the City is in receipt of the
TDLR's Notice of Substantial Compliance for all components and/or
phases of the work.
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3.2 Direct Expenses — Direct Expenses are included in the Firm's Fee as described in Article
3_1 and include actual reasonable and necessary expenditures made by the Firm and the
Firm's Personnel in connection with the Services. All submitted Direct Expenses are to
be within the amounts as set forth in the applicable Project Order, and consistent with
Exhibit E, City of Anna Guidelines for Direct Expenses, General and Administrative
Markup, and Travel and Subsistence Expenses. The Firm shall be solely responsible for
the auditing of all Direct Expenses prior to submitting to the City for reimbursement, and
shall be responsible for the accuracy thereof. Any over -payment by the City for errors in
submittals for reimbursement may be deducted from the Firm's subsequent payment for
Services; provided, however this shall not be the City's sole and exclusive remedy for said
overpayment.
3.3 Invoices — No payment to Firm shall be made until Firm tenders an invoice to the City.
Invoices are to be submitted to City immediately upon completion work as set forth in the
applicable Project Order. On all submitted invoices, Firm shall include appropriate
background materials and sufficient detail for the City to verify the Services performed and
Direct Expenses incurred in support of the submitted charges on said invoice. Such
background material shall include employee timesheets, invoices for work obtained from
other parties, and receipts and/or log information relating to Direct Expenses. Each
invoice shall constitute a representation of the Firm that the proportion of the Services has
been fully performed in accordance with this Agreement, that the Direct Expenses have
been actually incurred and that payment of the indicated amount has been earned by, and
is properly due and payable to, the Firm in accordance with this Agreement.
Notwithstanding the presentation of any invoice to the City, the amount reflected thereon
shall be due and payable to the Firm only to the extent earned by the Firm in accordance
with the terms of this Agreement. All invoices for payment shall provide a summary
methodology for administrative markup and/or overhead charges.
3.4 Timing of Payment— City shall make payment to Firm for said invoices within thirty (30)
days following receipt and acceptance thereof. The parties agree that payment by City to
Firm is considered to be complete upon mailing of payment by City. Furthermore, the
parties agree that the payment is considered to be made and mailed on the date that the
payment is postmarked. If the City makes any payment by electronic means, the payment
is considered to be made on the date that the City requests and authorizes the payment
to be made.
3.5 Disputed Payment Procedures — In the event of a disputed or contested invoice by City,
only that portion so contested may be withheld from payment, and the undisputed portion
will be paid. City shall notify Firm of a disputed invoice, or portion of an invoice, in writing
by the twenty-first (2111) calendar day after the date the City receives the invoice. The
written notice shall include a detailed statement of the amount of the invoice which is
disputed and the City shall provide Firm an opportunity to cure the basis of the dispute. If
a dispute is resolved in favor of the Firm, City shall proceed to process said invoice, or the
disputed portion of the invoice, within the provisions of Article 3.4. If a dispute is resolved
in favor of the City, Firm shall submit to City a corrected invoice, reflecting any and all
payment(s) of the undisputed amounts, documenting the credited amounts, and
identifying outstanding amounts on said invoice to aid City in processing payment for the
remaining balance. Such revised invoice shall have a new invoice number, clearly
referencing the previous submitted invoice. City agrees to exercise reasonableness in
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contesting any invoice or portion thereof that has background materials supporting the
submitted charges.
3.6 Failure to Pay — Failure of the City to pay an invoice, for a reason other than upon written
notification as stated in the provisions of Article 3.5 to the shall grant the Firm the right, in
addition to any and all other rights provided, to, upon written notice to the City, suspend
performance under this Agreement, and such act or acts shall not be deemed a breach of
this Agreement. However, Firm shall not suspend performance under this Agreement
prior to the tenth (101) calendar day after the Firm gives written notice of suspension to
the City, in accordance with Chapter 2251, Subchapter "D" of the Texas Government
Code. The City shall not be required to pay any invoice submitted by the Firm if the Firm
is in breach of any provision(s) of this Agreement.
3.7 Adjusted Compensation — If the Scope of Services or if the Firm's Services are materially
changed due to no error on behalf of Firm in the performance of Services under this
Agreement, the amounts of the Firm's compensation shall be equitably adjusted as
approved by City. Any additional amounts paid to the Firm as a result of any material
change to the Scope of the Services shall be authorized by written change order duly
executed by both parties before the services are performed.
3.8 Project Order Suspension — If the Firm's work is suspended or abandoned in whole or
in part for more than three (3) months for reasons that are not wholly or partially the Firm's
fault, Firm shall be entitled to compensation for any and all work completed to the
satisfaction of City in accordance with the provisions of this Agreement prior to suspension
or abandonment. In the event of such suspension or abandonment, Firm shall deliver to
City all finished or unfinished documents, data, studies, surveys, drawings, maps, models,
reports, photographs, and/or any other items prepared by Firm in connection with this
Agreement prior to Firm receiving final payment. If the work is resumed after being
suspended for more than three (3) months, the Firm's compensation shall be equitably
adjusted as approved by the City. Any additional amounts paid to the Firm after the work
is resumed shall be agreed upon in writing by both parties before the services are
performed.
ARTICLE 4
OWNERSHIP OF DOCUMENTS
4.1 Documents Property of the City — The Firm's work in connection with the Services is
the property of the City, and Firm may not use the documents, plans, data, studies,
surveys, drawings, maps, models, reports, photographs, and/or any materials for any
other purpose not relating to the Services without City's prior written consent. City shall
be furnished with such reproductions of the plans, data, documents, maps, and any other
information as defined in the applicable Project Order. Upon completion of the work, or
any earlier termination of this Agreement under Article 3 and/or Article 7, Firm will revise
plans, data, documents, maps, and any other information as defined in the applicable
Project Order to reflect changes while performing the Services and promptly furnish the
same to the City in an acceptable electronic or other format. All such reproductions shall
be the property of the City who may use them without the Firm's permission for any
purpose relating to the Services, including, but not limited to, completion of the Services,
and/or additions, alterations, modifications, and/or revisions to the Services.
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4.1.1 Work for Hire —The agreements and obligations set forth in this Article 4.1.1
are supported by the mutual considerations and covenants set forth in this
Agreement and also by consideration of the payment of $10.00 by the City to Firm,
and other good and valuable consideration, the payment and sufficiency of which
is hereby acknowledged.
4.1.1.1 The term "Work" as used in this Section 4.1.1 means the materials
created by Firm as part or in furtherance of the Services including without
limitation any and all documents, plans, data, studies, surveys, drawings,
maps, models, reports, photographs, assessments, memorandums,
appraisals and/or any other materials or copies thereof in any reproducible,
tangible, or electronic form or medium. The Work conceived, or originated
by Firm or others for the Firm, or on behalf of the Firm, or performed in
connection with the Services is and will be of original development by Firm
and are to be considered works made for hire as that term is defined in the
Copyright Act (17 U.S.C. §101) and shall be the sole and exclusive property
of the City, without any consideration paid to Firm beyond that set forth
under this Agreement. All rights of Firm with respect to all designs and
copyrights, trademarks, trade names, and other proprietary rights relating
to the Work are by this Agreement assigned to the City. Firm agrees to
promptly support and give all reasonable assistance to enable the City to
prepare, file and prosecute any United States or foreign application for all
types of design trademark or copyright registrations related to the Work that
the City deems appropriate, and Firm will execute all appropriate
documents and assignments for such. The City shall have the sole right to
determine the treatment of information received from Firm, including but
limited to the right to keep the same as a trade secret, to use, disclose, and
publish the same with or without prior copyright registration and to file,
license or share the same in its own name or the name of an affiliate or to
follow any other procedure that the City may deem appropriate.
4.1.1.2 To the extent that any material produced under this Agreement
may not be considered works made for hire, or to the extent that Article
4.1.1 or any portion thereof is declared invalid either in substance or
purpose, in whole or in part, Firm agrees to irrevocably transfer, grant,
convey, assign, and relinquish exclusively to the City all of Firm's right, title,
and interest, including ownership of copyright and patent rights, to any
material developed by Firm under this Agreement, without the necessity of
further consideration. Firm shall have no right to disclose or use any of the
Work for any purpose whatsoever except as expressly set forth in this
Agreement. Further, the rights conveyed by this instrument include the right
and authority of the City, at its expense, to make timely application for the
renewal and extension of any copyright of the Work as allowed by the laws
now or later in force in the United States and in any other country. Firm
irrevocably constitutes and appoints the City "attorney in fact" to apply for
renewal within one year before the expiration of the initial copyright term,
and covenants to execute any further instruments that may be necessary
to perfect the City's full enjoyment of the renewal right.
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4.1.1.3 No rights or licenses, expressed or implied, in any other work or
other information is granted to Firm by this agreement, and no license,
partnership, or assignment of any right, title, or interest is created, granted
or implied by the City under this Agreement.
4.1.1.4 Furthermore, Firm acknowledges and agrees that the Work —to
the extent permitted by applicable law —is confidential and proprietary trade
secret information of the City, and of substantial value to the City. Firm
agrees that it will not use the Work in any way, for its own account or the
account of any third parry, except as expressly permitted by, or required to
achieve the purposes of, this Agreement. Firm also agrees not to disclose
to any third party any part of the Work except as is necessary to perform
the Services. Firm will take reasonable precautions at least as stringent as
it takes to protect its own most highly confidential and proprietary
information to protect the confidentiality of the Work. Firm's breach of this
obligation will result in irreparable and continuing damage to the City for
which there will be no adequate remedy at law, entitling the City to
injunctive relief and a decree for specific performance, and such other relief
as may be proper (including monetary damages if appropriate).
4.1.1.5 Firm affirms that the Work is original, that all statements asserted
as facts are based on careful investigation and research for accuracy, that
the Work does not, in whole or part, infringe any copyright or violate any
right or privacy or other personal or property right whatsoever, that it has
not been published or used in total or in part and is not being submitted or
considered for publication or use in total or in part elsewhere, and that Firm
has full power and authority to enter into this Agreement and to make the
grants and transfers contained herein. Subject to any limitations stated in
Article 10 of this Agreement, Firm will indemnify, and hold harmless the
City, its officials, officers, agents, representatives and anyone directly or
indirectly employed by it against damages, losses, and expenses, including
attorney's fees and related expenses, arising out of infringement of any
rights during or after completion of the Work, and will defend all claims in
connection with any alleged infringement of those rights utilizing legal
counsel approved by the City.
4.1.1.6 The obligations imposed by this Article 4.1.1 shall remain in effect
indefinitely and shall survive any termination or expiration of the
Agreement, whether by expiration of time, operation of law or otherwise.
4.2 Documents Subject to Laws Regarding Public Disclosure — Firm acknowledges that
City is a governmental entity and that all documents, plans, data, studies, surveys,
drawings, maps, models, reports, photographs, and/or any items prepared or furnished by
Firm (and Firm's Personnel) under this Agreement are property of the City and upon
completion of the Services shall thereafter be subject to the Texas Public Information Act
(Texas Government Code, Chapter 552) the ("PIA") and exceptions to the PIA and any
other applicable laws requiring public disclosure of the information contained in said items.
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ARTICLE 5
FIRM'S INSURANCE REQUIREMENTS
5.1 Required General Liability Insurance — Consistent with the terms and provisions of
Exhibit F, City of Anna Contractor Insurance Requirements, Firm shall maintain, at no
expense to City, a general liability (errors and omissions) insurance policy with a company
that maintains a minimum rating of "A" by A.M. Best's Key Rating Guide, or other
equivalent rating service(s), authorized to transact business in the State of Texas, in an
amount not less than One Million and 00/100 Dollars ($1,000,000.00) for each occurrence,
and Two Million and 00/100 Dollars ($2,000,000.00) in the aggregate. Such policy shall
name the City, its past, present and future officials, officers, agents, representatives, and
employees as additional insureds as to all applicable coverage. Such policy shall provide
for a waiver of subrogation against the City for injuries, including death, property damage,
or any other loss to the extent that same is covered by the proceeds of the insurance.
Such policy shall require the provision of written notice to City at least thirty (30) days prior
to cancellation or non -renewal of any policies. In the event that there is a material
modification to such policy, Firm shall provide written notice of such modification to City at
least thirty (30) days prior to such material modification. Firm shall furnish City with
certificates evidencing such coverage prior to commencing work on the Services.
5.2 Required Professional Liability Insurance — Consistent with the terms and provisions
of Exhibit F, City of Anna Contractor Insurance Requirements, Firm shall maintain, at no
expense to City, a professional liability (errors and omissions) insurance policy with a
company that maintains a minimum rating of "A" by A.M. Best's Key Rating Guide, or other
equivalent rating service(s), authorized to transact business in the State of Texas, in an
amount not less than One Million and 00/100 Dollars ($1,000,000.00) for each occurrence,
and Two Million and 00/100 Dollars ($2,000,000.00) in the aggregate. Such policy shall
name the City, its past, present and future officials, officers, agents, representatives, and
employees as additional insureds as to all applicable coverage. Such policy shall provide
for a waiver of subrogation against the City for injuries, including death, property damage,
or any other loss to the extent that same is covered by the proceeds of the insurance.
Such policy shall require the provision of written notice to City at least thirty (30) days prior
to cancellation or non -renewal of any policies. In the event that there is a material
modification to such policy, Firm shall provide written notice of such modification to City at
least thirty (30) days prior to such material modification. Firm shall furnish City with
certificates evidencing such coverage prior to commencing work on the Services.
5.3 Required Workers Compensation Insurance— Consistent with the terms and provisions
of Exhibit F, City of Anna Contractor Insurance Requirements, Firm shall maintain, at no
expense to City, all Statutory Workers Compensation Insurance as required by the laws
of the State of Texas. Such insurance policy shall be with a company that maintains a
minimum rating of "A" by A.M. Best's Key Rating Guide, or other equivalent service(s),
and authorized to transact business in the State of Texas. Such policy shall provide for a
waiver of subrogation against the City for injuries, including death, property damage, or
any other loss to the extent that same is covered by the proceeds of the insurance. Such
policy shall require the provision of written notice to City at least thirty (30) days prior to
cancellation, non -renewal, or material modification of any policies. Firm shall furnish City
with certificates evidencing such coverage prior to commencing work on the Services.
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5.4 Required Umbrella Coverage or Excess Liability Coverage — Firm shall maintain, at
no expense to the City, an umbrella coverage or excess liability coverage insurance policy
with a company that maintains a minimum rating of "A" by A.M. Best's Key Rating Guide,
or other equivalent rating service(s), authorized to transact business in the State of Texas,
in an amount of Two Million and 00/100 Dollars ($2,000,000.00). Consistent with the terms
and provisions of Exhibit F, such policy shall name the City, its past, present and future
officials, officers, agents, representatives, and employees as additional insureds as to all
applicable coverage. Such policy shall provide for a waiver of subrogation against the City
for injuries, including death, property damage, or any other loss to the extent that the same
is covered by the proceeds of the insurance. Such policy shall require the provision of
written notice to the City at least thirty (30) days prior to cancellation, non -renewal, or
material modification of any policies, evidenced by return receipt or United States Certified
Mail. Firm shall furnish City with certificates evidencing such coverage prior to
commencing work on the Services.
5.5 Circumstances Requiring Explosion, Collapse, Underground Property Coverage —
If the Scope of Services warrant, and if identified on the checklist located in Exhibit F, City
of Anna Contractor Insurance Requirements, Firm shall maintain, at no expense to the
City, an explosion, collapse, underground coverage policy with a company that maintains
a minimum rating of "A" by A.M. Best's Key Rating Guide, or other equivalent rating
service(s), authorized to transact business in the State of Texas, in an amount of Two
Million and 00/100 Dollars ($2,000,000.00). Consistent with the terms and provisions of
Exhibit F, such policy shall name the City, its past, present and future officials, officers,
agents, representatives, and employees as additional insureds as to all applicable
coverage. Such policy shall provide for a waiver of subrogation against the City for
injuries, including death, property damage, or any other loss to the extent that the same
is covered by the proceeds of the insurance. Such policy shall require the provision of
written notice to the City at least thirty (30) days prior to cancellation, non -renewal, or
material modification of any policies, evidenced by return receipt or United States Certified
Mail. Firm shall furnish City with certificates evidencing such coverage prior to
commencing work on the Services.
ARTICLE 6
FIRM'S ACCOUNTING RECORDS
Records of Direct Expenses and expenses pertaining to work performed in conjunction with the
Services shall be kept on the basis of generally accepted accounting principles. Invoices will be
sent to the City as indicated in Article 3. Copies of employee time sheets, receipts for direct
expense items and other records of expenses will be included in the monthly invoices.
ARTICLE 7
AUDITS AND RECORDS /
COMPLIANCE WITH FEDERAL, STATE, LOCAL LAWS AND CITY CHARTER
The Firm agrees that at any time during normal business hours and as often as the City may
deem necessary, Firm shall make available to representatives of the City for examination all of its
records with respect to all matters covered by this Agreement, and will permit such
representatives of the City to audit, examine, copy and make excerpts or transcripts from such
records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel,
conditions of employment and other data relating to all matters covered by this Agreement, and
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for a period of four (4) years from the date of final settlement of this Agreement or for such other
or longer period, if any, as may be required by applicable statute or other lawful requirement.
The Firm agrees that it is aware of the Compliance with Federal, State, Local Laws and City
Charter requirements as set forth in Exhibit G, and is in compliance therewith. Firm agrees that
it is further aware of the vendor disclosure requirements set forth in Chapter 176, Local
Government Code, as amended, and will abide by the same. In this connection, a lawful
representative of Firm shall execute the Conflict of Interest Questionnaire, Form CIQ, attached
hereto as Exhibit H and incorporated herein for all purposes.
ARTICLE 8
TERMINATION OF AGREEMENT / REMEDIES
City may, upon thirty (30) days written notice to Firm, terminate this Agreement or any individual
Project Order, for any reason or no reason at all, before the termination date hereof, and without
prejudice to any other remedy it may have. If City terminates this Agreement or a Project Order
due to a default of and/or breach by Firm and the expense of finishing the Services exceeds the
Firm's Fee at the time of termination, Firm waives its right to any portion of Firm's Fee as set forth
in Article 3 herein and agrees to pay any costs over and above the fee which the City is required
to pay in order to finish the Services. On any default and/or breach by Firm, City may elect not to
terminate the Agreement or a Project Order, and in such event it may make good the deficiency
in which the default consists, and deduct the costs from the Firm's Fee that would otherwise be
due to Firm as set forth in Article 3 herein. If City terminates this Agreement and Firm is not in
default of the Agreement or a Project Order, Firm shall be entitled to compensation for any and
all work completed to the satisfaction of the City in accordance with the provisions of this
Agreement prior to termination.
In the event of any termination, Firm shall deliver to City all finished and/or unfinished documents,
data, studies, surveys, drawings, maps, models, reports, photographs and/or any items prepared
by Firm in connection with this Agreement prior to Firm receiving final payment.
The rights and remedies provided by this Agreement are cumulative, and the use of any one right
or remedy by either party shall not preclude or waive its rights to use any or all other remedies.
These rights and remedies are given in addition to any other rights the parties may have by law,
statute, ordinance, or otherwise.
ARTICLE 9
DISPUTE RESOLUTION / MEDIATION
In addition to all remedies at law, the parties may resolve/mediate any controversy, claim or
dispute arising out of or relating to the interpretation or performance of this Agreement, or breach
thereof, by voluntary, nonbinding mediation to be conducted by a mutually acceptable mediator.
ARTICLE 10
INDEMNITY
FIRM SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS CITY AND ITS PAST, PRESENT AND
FUTURE OFFICIALS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES (COLLECTIVELY,
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"INDEMNIFIED PARTIES") FROM AND AGAINST ALL DAMAGES, INJURIES (INCLUDING DEATH), CLAIMS,
PROPERTY DAMAGES (INCLUDING LOSS OF USE), LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS,
INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES (INCLUDING ATTORNEYS' FEES AND
EXPENSES INCURRED IN ENFORCING THIS INDEMNITY), CAUSED BY THE NEGLIGENT, GROSSLY
NEGLIGENT, AND/OR INTENTIONAL ACT AND/OR OMISSION OF FIRM, ITS OFFICERS, AGENTS,
REPRESENTATIVES, EMPLOYEES, SUBCONTRACTORS, LICENSEES, INVITEES OR ANY OTHER THIRD
PARTIES FROM WHOM FIRM IS LEGALLY RESPONSIBLE, IN ITS/THEIR PERFORMANCE OF THIS
AGREEMENT AND/OR ARISING OUT OF GOODS AND/OR SERVICES PROVIDED BY FIRM PURSUANT TO
THIS AGREEMENT, REGARDLESS OF THE JOINT OR CONCURRENT NEGLIGENCE OF THE CITY
(COLLECTIVELY, "CLAIMS"). THIS INDEMNIFICATION PROVISION AND THE USE OF THE TERM "CLAIMS"
IS ALSO SPECIFICALLY INTENDED TO APPLY TO, BUT NOT LIMITED TO, ANY AND ALL CLAIMS, WHETHER
CIVIL OR CRIMINAL, BROUGHT AGAINST CITY BY ANY GOVERNMENT AUTHORITY OR AGENCY RELATED
TO ANY PERSON PROVIDING SERVICES UNDER THIS AGREEMENT THAT ARE BASED ON ANY FEDERAL
IMMIGRATION LAW AND ANY AND ALL CLAIMS, DEMANDS, DAMAGES, ACTIONS AND CAUSES OF ACTION
OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, EXISTING OR CLAIMED TO EXIST, RELATING TO
OR ARISING OUT OF ANY EMPLOYMENT RELATIONSHIP BETWEEN FIRM AND ITS EMPLOYEES OR
SUBCONTRACTORS AS A RESULT OF THAT SUBCONTRACTOR'S OR EMPLOYEE'S EMPLOYMENT AND/OR
SEPARATION FROM EMPLOYMENT WITH THE FIRM, INCLUDING BUT NOT LIMITED TO ANY
DISCRIMINATION CLAIM BASED ON SEX, SEXUAL ORIENTATION OR PREFERENCE, RACE, RELIGION,
COLOR, NATIONAL ORIGIN, AGE OR DISABILITY UNDER FEDERAL, STATE OR LOCAL LAW, RULE OR
REGULATION, AND/OR ANY CLAIM FOR WRONGFUL TERMINATION, BACK PAY, FUTURE WAGE LOSS,
OVERTIME PAY, EMPLOYEE BENEFITS, INJURY SUBJECT TO RELIEF UNDER THE WORKERS'
COMPENSATION ACT OR WOULD BE SUBJECT TO RELIEF UNDER ANY POLICY FOR WORKERS
COMPENSATION INSURANCE, AND ANY OTHER CLAIM, WHETHER IN TORT, CONTRACT OR OTHERWISE.
FIRM IS EXPRESSLY REQUIRED TO DEFEND CITY AGAINST ALL SUCH CLAIMS; PROVIDED, HOWEVER, IF
A COURT OF COMPETENT JURISDICTION DETERMINES THAT THE CITY (WITHOUT WAIVING ANY
GOVERNMENTAL IMMUNITY) HAS JOINT, CONCURRENT OR SOLE NEGLIGENCE FOR THE CLAIMS, IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS ("JUDGMENT"), THEN FIRM IS NOT REQUIRED
TO INDEMNIFY OR DEFEND THE CITY TO THE EXTENT OF THE NEGLIGENCE APPORTIONED TO THE CITY.
IN THE EVENT THE JUDGMENT PROVIDES THAT CITY IS JOINTLY, CONCURRENTLY OR SOLELY
NEGLIGENT FOR THE CLAIMS REFERRED TO THEREIN, CITY AGREES TO REIMBURSE FIRM FOR ALL
REASONABLE AND NECESSARY COSTS INCURRED AND PAID BY FIRM THAT ARE ATTRIBUTABLE TO
CITY'S PERCENTAGE OF JOINT, CONCURRENT OR SOLE NEGLIGENCE, AS SET FORTH IN THE JUDGMENT,
INCLUDING REASONABLE AND NECESSARY ATTORNEY'S FEES AND EXPENSES, WITHIN SIXTY (60) DAYS
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OF THE DATE THE JUDGMENT BECOMES FINAL AND NON -APPEALABLE. NOTWITHSTANDING THE
FOREGOING, IF THIS AGREEMENT IS A CONTRACT FOR ENGINEERING OR ARCHITECTURAL SERVICES,
THEN FIRM'S INDEMNITY AND DEFENSE OBLIGATIONS UNDER THIS ARTICLE 10 ARE LIMITED BY, AND
TO BE READ AS COMPLYING WITH, SECTION 271.904 OF THE TEXAS LOCAL GOVERNMENT CODE, SUCH
THAT THE FIRM SHALL: (1) DEFEND, INDEMNIFY, AND HOLD HARMLESS THE INDEMNIFIED PARTIES
AGAINST LIABILITY FOR DAMAGE TO THE EXTENT THAT THE DAMAGE IS CAUSED BY OR RESULTS FROM
AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE
TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE FIRM OR THE FIRM'S AGENT,
CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE FIRM EXERCISES CONTROL;
AND (2) REIMBURSE THE CITY'S REASONABLE ATTORNEY'S FEES IN PROPORTION TO THE FIRM'S
LIABILITY.
IN ITS SOLE DISCRETION, CITY SHALL HAVE THE RIGHT TO APPROVE OR SELECT DEFENSE COUNSEL TO
BE RETAINED BY FIRM IN FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY CITY,
UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY CITY IN WRITING. CITY RESERVES THE RIGHT TO
PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER, CITY IS UNDER NO OBLIGATION TO DO
SO. ANY SUCH ACTION BY CITY IS NOT TO BE CONSTRUED AS A WAIVER OF FIRM'S OBLIGATION TO
DEFEND CITY OR AS A WAIVER OF FIRM'S OBLIGATION TO INDEMNIFY CITY PURSUANT TO THIS
AGREEMENT. FIRM SHALL RETAIN CITY -APPROVED DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS
DAYS OF CITY'S WRITTEN NOTICE THAT CITY IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS
AGREEMENT. IF FIRM FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, CITY SHALL HAVE THE
RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND FIRM SHALL BE LIABLE FOR ALL COSTS
INCURRED BY CITY. THE RIGHTS AND OBLIGATIONS CREATED BY THIS ARTICLE SHALL SURVIVE
TERMINATION OF THIS AGREEMENT.
ARTICLE 11
NOTICES
Firm agrees that all notices or communications to City permitted or required under this Agreement
shall be delivered to City at the following addresses:
Jim Proce
City Manager
City of Anna
P.O. Box 776
Anna, TX 75409-0776
Mandatory copy to:
Wolfe, Tidwell & McCoy, LLP
City of Anna Attorney
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2591 Dallas Pkwy, Suite 300
Frisco, Texas 75034
City agrees that all notices or communication to Firm permitted or required under this Agreement
shall be delivered to Firm at the following addresses:
TERRACON CONSULTANTS, INC.
ATTN: HUSSEIN ABUSAAD
5908 STONE CREEK DR. SUITE 120
THE COLONY, TX 75056
Any notice provided in writing under the terms of this Agreement by either party to the other shall
be in writing and may be effected by registered or certified mail, return receipt requested.
All notices or communication required to be given in writing by one party or the other shall be
considered as having been given to the addressee on the date such notice or communication is
postmarked and deposited in the U.S. mail with proper postage by the sending party. Each party
may change the address to which notice maybe sent to that party by giving notice of such change
to the other party in accordance with the provisions of this Agreement.
ARTICLE 12
MISCELLANEOUS
12.1 Complete Agreement —This Agreement, including the exhibits hereto labeled "A" through
"H," all of which are incorporated herein for all purposes, constitute the entire Agreement
by and between the parties regarding the subject matter hereof and supersedes all prior
and/or contemporaneous written and/or oral understandings. This Agreement may not be
amended, supplemented, and/or modified except by written agreement duly executed by
both parties. The following exhibits are attached below and made a part of this Agreement:
12.1.1 Exhibit A, Professional Services Project Order Form
12.1.2 Exhibit B, City RFQ Category B — Material Testing and Firm Responsedated:
7/27/2021
12.1.3 Exhibit C, City of Anna Benchmarks (as amended)
http://www.Annatexas.gov/departments/planning/benchmarks.pho .
12.1.4 Exhibit D, City of Anna Guidelines for Computer Aided Design and Drafting
(CADD). Per industry standards.
12.1.5 Exhibit E, City of Anna Guidelines for Direct Expenses; General and
Administrative Markup; Travel and Subsistence Expenses.
12.1.6 Exhibit F, City of Anna Contractor Insurance Requirements.
12.1.7 Exhibit G, City of Anna Compliance with Federal, State, Local Laws and City
Charter
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12.1.8 Exhibit H, Conflict of Interest Questionnaire, Form CIQ.
To the extent that Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit E, Exhibit F,
Exhibit G or Exhibit H are in conflict with provisions of this Agreement or each other, the
provisions of this Agreement, then the provisions of Exhibit A, Exhibit C, Exhibit D,
Exhibit E, Exhibit F, Exhibit G, Exhibit H or Exhibit B shall prevail in that order.
12.4 Severability — In the event of a term, condition, or provision of this Agreement is
determined to be invalid, illegal, void, unenforceable, or unlawful by a court of competent
jurisdiction, then that term, condition, or provision, shall be deleted and the remainder of
this Agreement shall remain in full force and effect as if such invalid, illegal, void,
unenforceable or unlawful provision had never been contained herein.
12.5 Governing LawNenue — This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to conflict of law principles.
The exclusive venue for any action arising out of this Agreement shall be a court of
appropriate jurisdiction in Collin County, Texas.
12.6 Execution / Consideration — This Agreement is executed by the parties hereto without
coercion or duress for any substantial consideration, the sufficiency of which is forever
confessed.
12.7 Authority — The individuals executing this Agreement on behalf of the respective parties
below represent to each other that all appropriate and necessary action has been taken
to authorize the individual who is executing this Agreement to do so for and on behalf of
the party for which his or her signature appears, that there are no other parties or entities
required to execute this Agreement in order for the same to be an authorized and binding
agreement on the other party for whom the individual is signing this Agreement and that
each individual affixing his or her signature hereto is authorized to do so, and such
authorization is valid and effective on the date hereof.
12.8 Waiver — Waiver by either party of any breach of this Agreement, or the failure of either
party to enforce any of the provisions of this Agreement, at any time, shall not in any way
affect, limit, or waive such party's right thereafter to enforce and compel strict compliance.
12.9 Headings — The headings of the various sections of this Agreement are included solely
for convenience of reference and are not to be full or accurate descriptions of the content
thereof.
12.10 Multiple Counterparts — This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all purposes. An electronic
mail and/or facsimile signature will also be deemed to constitute an original if properly
executed and delivered to the other party.
12.11 Immunity — The parties acknowledge and agree that, in executing and performing this
Agreement, City has not waived, nor shall be deemed to have waived, any defense or
immunity, including governmental, sovereign and official immunity, that would otherwise
be available to it against claims arising in the exercise of governmental powers and
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functions. By entering into this Agreement, the parties do not create any obligations,
express or implied, other than those set forth herein.
12.12 Attorney's Fees — If either party files any action or brings any proceeding against the
other arising from this Agreement, then as between City and Firm, the prevailing party
shall be entitled to recover as an element of its costs of suit, and not as damages,
reasonable and necessary attorney's fees and litigation expenses both at trial and on
appeal, subject to the limitations set forth in TEx. Loc. GOV'T CODE § 271.153, as it exists
or may be amended, if applicable.
12.13 Additional Representations — Each signatory represents this Agreement has been read
by the party for which this Agreement is executed and that such party has had the
opportunity to confer with its counsel.
12.14 Independent Contractor— In performing this Agreement, Firm and Firm's Personnel shall
act as an independent contractor with respect to City. In no event shall this Agreement
be construed as establishing a partnership, joint venture or similar relationship between
the parties and nothing herein shall authorize either party to act as agent for the other.
Firm shall be liable for its own debts, obligations, acts and omissions, including the
payment of all required withholding, social security and other taxes and benefits with
respect to all of Firm's officers, directors, partners, employees and representatives, who
shall not be considered City employees and shall not be eligible for any employee benefit
plan offered by City. At no time shall the City have any control or direction, direct or
indirect, over the Firm's means, methods, sequences, techniques, procedures,
supervision, subcontractors or other undertakings utilized to perform the Services.
12.15 Miscellaneous Drafting Provisions — This Agreement shall be deemed drafted equally
by all parties hereto. The language of all parts of this Agreement shall be construed as a
whole according to its fair meaning, and any presumption or principle that the language
herein is to be construed against any party shall not apply.
12.16 No Third Party Beneficiaries — Nothing in this Agreement shall be construed to create
any right in any third party not a signatory to this Agreement, and the parties do not intend
to create any third party beneficiaries by entering into this Agreement.
12.17 Duty to Facilitate Compliance with Public Information Act
(a) The obligations in this section apply if this Agreement (1) has a stated expenditure
of at least $1 million in public funds for the purchase of goods or services by City;
or (2) results in the expenditure of at least $1 million in public funds for the
purchase of goods or services by City in a fiscal year of the Anna City Council.
(b) If this Agreement is described in subsection (a) above, Firm shall comply with the
following obligations, which are set forth in Subchapter J, Chapter 552, Texas
Government Code:
(1) preserve all contracting information related to this Agreement as provided
by the records retention requirements applicable to Anna for the duration
of this Agreement;
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(2) promptly provide to Anna any contracting information related to this
Agreement that is in the custody or possession of Firm on request of Anna;
and
(3) on completion of this Agreement, either: (1) provide at no cost to City all
contracting information related to the contract that is in the custody or
possession of Firm; or (2) preserve the contracting information related to
this Agreement as provided by the records retention requirements
applicable to City.
(c) As used in this provision, the term "contracting information" shall have the same
meaning as that term is defined in Section 552.003, Texas Government Code, as
amended.
(d) The requirements of Subchapter J, Chapter 552, Texas Government Code, may
apply to this Agreement and the Firm agrees that this Agreement can be
terminated if the Firm knowingly or intentionally fails to comply with a requirement
of that subchapter.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused this Agreement
to be effective on the latest day as reflected by the signatures below.
Effective Date: July 27, 2021.
CITY:
City of
Proce, City Manager
Date:
FIRM: TERRACON CONSULTANTS, INC.
By:
Nath & Title Kevyn Gunn, Office Manager
Date: 10/18/22
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STATE OF TEXAS
COUNTY OF COLLIN
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared Jim Proce, known to me to be the person whose name is subscribed
to the foregoing instrument and acknowledged to me that he executed the same for the purpose
and consideration expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this oAy of . 16�,
20,.
Notary Public In and For the State of Texas
CARRIEL LAND
My commission expires:
My Notary ID 1t 11419404
FVkwF&mW4,2023
STATE OF TEXAS
COUNTY OF WALLAS
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared kEVYNgUNN , known to me to be the person
whose name is subscribed to the foregoing instrument and acknowledged to me that he/she
executed the same for the purpose and consideration expressed, and in the capacity therein
stated.
20 22 .
GIVEN UNDER MY HAND A`t;JD SEAL OF OFFICE this lath day of October
t
a 'ar a JENNIFER RENEE CRUMBY
r �A Notary ID #129237324
y My Commission Expires
'ho December 18, 2024
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EXHIBITS to MASTER AGREEMENT FOR PROFESSIONAL SERVICES
EXHIBIT A
PROFESSIONAL SERVICES PROJECT ORDER FORM:
Individual "Professional Services Project Orders" will be issued for each project.
Sample PSPO is included in the City's RFQ.
EXHIBIT B
CITY RFQ and FIRM RESPONSE
Exhibit B-1: City RFQ (on file with the City Purchasing Department)
Exhibit B-2: Firm's Response (on file with the City Purchasing Department)
EXHIBIT C
CITY OF ANNA GUIDELINES FOR SURVEYING AND BENCHMARKING
City of Anna Benchmarks (as amended)
EXHIBIT D
CITY OF ANNA GUIDELINES FOR COMPUTER AIDED DESIGN AND DRAFTING (CADD)
Per industry standards
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EXHIBIT E
CITY OF ANNA GUIDELINES FOR DIRECT EXPENSES; GENERAL AND ADMINISTRATIVE
MARKUP; TRAVEL AND SUBSISTENCE EXPENSES
I. FIRM'S RESPONSIBILITY. The Firm shall be solely responsible for the auditing of all direct expense,
approved markup (general and/or administrative), and approved travel and/or subsistence charges,
including those to be included under a sub -contract, prior to the City for reimbursement, and Firm shall
be responsible for the accuracy thereof. Any overpayment by the City for errors in submittals for
reimbursement may be deducted from the Firm's subsequent payment(s) for services; however, this
shall not be the City's sole and exclusive remedy for said overpayment.
Il. GUIDELINES FOR DIRECT EXPENSES.
A. Local Transportation — Transportation in connection with the Services, when such transportation
is not a function of routine performance of the duties of the Firm in connection with the Services,
and when such transportation exceeds beyond fifty (50) miles from the Services site, shall be
reimbursed at a standard mileage rate consistent with that as issued, and periodically revised, by
the United States Internal Revenue Service (IRS). Under no circumstances shall City reimburse
Firm at a higher standard mileage rate or pay additional markup on charges for local transportation.
Completion of City's Standard Mileage Log is required for submittal of these charges for
reimbursement, including justification for each submitted expense.
Under no circumstances are charges associated with rental cars for local transportation eligible for
reimbursement by City. Toll road subscriptions or toll plaza receipts are not reimbursable. Firm
agrees to place these standards in all subcontracts for work on the Services.
B. Supplies, Material. Equipment — City shall reimburse the actual cost of other similar direct
Services -related expenses, which are duly presented in advance and approved by City's Project
Manager in writing.
C. Commercial Reproduction — City shall reimburse the actual cost of reproductions, specifically
limited to progress prints prepared for presentation to City at each phase of progress, and final
Construction Documents prepared for distribution at bidding phase, provided that the Firm has duly
obtained at least three (3) quotations from commercial firms and has chosen the best value for the
City. Firm shall provide such documentation to City for review prior to submitting these expenses
for reimbursement. Firm agrees to place these standards in all subcontracts for work on the
Services.
D. In -House Reproduction - Firm shall make arrangements with the City for prior approval of in-
house reproduction rates prior to submitting these expenses for reimbursement. City shall provide
Firm with a standard format for documenting these charges. Completion of the City's reproduction
log is required as a prerequisite for payment, including the number or reproductions, the date, time,
description, the approved standard rate, and a justification for each submitted expense for
reimbursement. Firm agrees to place these standards in all subcontracts for work on the Services.
E. Commercial Plotting — City shall reimburse the actual cost of plots, specifically limited to final
documents, provided the Firm has duly obtained at least three (3) quotations from commercial firms
and has chosen the best value for the City. Firm shall provide such documentation to City for
review prior to submitting these expenses for reimbursement. Firm agrees to place these standards
in all subcontracts for work on the Services.
F. In -House Plotting — Firm shall make arrangements with City for prior written approval of in-house
plotting rates prior to submitting these charges for reimbursement. City shall provide Firm with a
standard format for documenting these charges. Completion of the City's reproduction log is
City of Anna, Texas— Master Professional Services Agreement Page 21 of 28
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required as a prerequisite for payment, including the number of plots, the date, time, description,
the approved standard rate, and a justification for each submitted charge for reimbursement.
G. Communications — Reimbursement for expenses relating to electronic communications shall be
limited to long-distance telephone or fax toll charges specifically required in the discharge of
professional responsibilities related to the Services. Telephone service charges including office or
cellular phones, WATTS, or Metro line services or similar charges are not reimbursable.
H. Postage, Mail, and Delivery Service— City shall reimburse the actual cost of postage and delivery
of Instruments of Service, provided the Firm duly considers all circumstances (including available
time for assured delivery) of the required delivery and selects the best value for the City, which may
require comparison of delivery costs offered by three (3) or more sources or methods of delivery,
which at a minimum shall include U.S. Mail. Courier service is acceptable only in circumstances
requiring deadline -sensitive deliveries and not for the convenience of the Firm and/or the Firm's
employees. Firm agrees to place these standards in all subcontracts for work on the Services.
I. Meals and Other Related Charges — Meals or any other related expenses are not reimbursable
unless incurred outside a fifty (50) mile radius of the Service site, and then only reimbursable for
the actual cost subject to compliance with the City's currently adopted policy. Non -allowable costs
include, but are not limited to, charges for entertainment, alcoholic beverages, and gratuities.
III. GUIDELINES FOR GENERAL AND ADMINISTRATIVE MARKUP.
1. Requirement of Prior Approval — Firm may be allowed to charge a General and/or Administrative
Markup on work completed if Firm can clearly define to City specifically what costs are included in
the markup calculation. To apply General and/or Administrative Markup, Firm must also document
to City what costs would be considered direct costs. City shall issue approval in writing to allow
Firm to charge General and/or Administrative Markup. City reserves the right to reject any and all
requests for General and/or Administrative Markup.
IV. GUIDELINES FOR TRAVEL AND SUBSISTENCE EXPENSES.
1. Requirement of Prior Approval —City shall reimburse the actual cost of travel and/or subsistence
expenses upon prior written approval by the City's Project Manager.
2. Adherence to Currently Adopted City Travel Policy — Reimbursements shall be governed by
the same travel policies provided for City employees according to current adopted policy. Prior to
the event, Firm shall request, and the City's Project Manager shall provide the provisions and the
restrictions that apply to out-of-town reimbursements.
END OF SECTION
City of Anna, Texas — Master Professional Services Agreement Page 22 of 28
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EXHIBIT F
CITY OF ANNA CONTRACTOR INSURANCE GUIDELINES
I. Requirement of Insurance —
A. All required insurance policies shall name the City, its past, present, and future officials,
officers, agents, representatives, and employees as additional insured as to all applicable
coverage with the exception of workers compensation insurance and professional liability
insurance.
B. Such policies shall require the provision of written notice to City at least thirty (30) days
prior to cancellation, non -renewal, or material modification of any policies
C. Such policies shall provide for a waiver of subrogation against the City for injuries,
including death, property damage, or any other loss to the extent the same is covered by
the proceeds of the insurance.
II. Insurance Company Qualification — All insurance companies providing the required
insurance shall be authorized to transact business in the State of Texas, and shall have a
minimum rating of "A" by A.M. Best's Key Rating Guide, or other equivalent rating service(s).
III. Certificate of Insurance — A Certificate of Insurance and applicable endorsements
evidencing the required insurance shall be submitted with the contractor's bid or response to
proposal. If the contract is renewed or extended by the City a Certificate of Insurance and
applicable endorsements shall also be provided to the City prior to the date the contract is
renewed or extended.
Insurance Checklist—"X" means that the following coverage is required for this Agreement.
Copies of all endorsements for each policy required.
Coverage Required
X 1. Worker's Compensation
Employer's Liability
X 2. General Liability
3. XCU Coverage
X 4. Professional Liability
X Umbrella Coverage or
Excess Liability Coverage
Limits
• Statutory Limits of the State of Texas
Minimum $ 1,000,000.00 each occurrence;
• Minimum $ 1,000,000.00 per occurrence;
• Minimum $ 2,000,000.00 aggregate.
• Minimum $ 1,000,000.00 each occurrence;
Minimum $ 2,000,000.00 in the aggregate.
• An amount of $ 2,000,000.00.
X 6. City and its past, present, and future officials, officers, agents, representatives, and
employees named as additional insured on General Liability Policy and Umbrella
or Excess Liability Coverage. This coverage is primary to all other coverage the
City may possess.
City of Anna, Texas — Master Professional Services Agreement Page 23 of 28
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X 7. General Liability Insurance provides for a Waiver of Subrogation against the City
for injuries, including death, property damage, or any other loss to the extent that
same is covered by the proceeds of the insurance. All insurance policies that are
required to name the City as an additional insured must be endorsed to read as
primary and non-contributory coverage regardless of the application of other
insurance.
X 8. Thirty (30) days notice of cancellation, non -renewal, or material change required.
X 9. Insurance company has a minimum rating of "A" by A.M. Best's Key Rating Guide,
or other equivalent rating service(s).
X 10. Each Policy and Certificate of Insurance must state the project title and Professional
Service Project Order number.
11. Other Insurance Requirements (State Below):
END OF SECTION
City of Anna, Texas — Master Professional Services Agreement Page 24 of 28
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EXHIBIT G
COMPLIANCE WITH FEDERAL, STATE, LOCAL LAWS and CITY CHARTER
By submitting a response to the solicitation and entering into a contract with the City, the Firm
hereby verifies and certifies that he/she/it is in compliance with all applicable federal, state and
local laws, and the City Charter. The Firm also certifies the following:
CERTIFICATION OF ELIGIBILITY
The bidder/proposer certifies that at the time of submission, he/she/it is not on the Federal
Government's list of suspended, ineligible, or debarred contractors.
In the event of placement on the list between the time of bid/proposal submission and time
of award, the bidder/proposer will notify the City of Anna Purchasing Agent. Failure to do
may result in terminating this contract for default.
DISCLOSURE OF INTERESTED PARTIES (Form 1295)
By submitting a bid or proposal in response to this solicitation, the bidder/proposer agrees to
comply with Texas Government Code Section 2252.908. Bidder/proposer agrees to provide
the City of Anna Finance Department, and/or requesting department, the "Certificate of
Interested Parties," FORM 1295 as required, with in ten (10) business days from notification
of award, renewal, amended or extended contract.
Visit httos://www.ethics.state.tx.us/whatsnew/elf info form1295.htm for more information.
CERTIFICATION OF COMPLIANCE WITH IMMIGRATION LAWS
The bidder/proposer certifies that he/she/it is in compliance with all provisions of Immigration
and Nationality Act ("INA") and Immigration Reform and Control Act of 1986 ("IRCA") in
regards to his/her/its employees/laborers and that employment eligibility has been verified
by the bidder/proposer for all persons who will provide services to City.
COMPLIANCE INDEMNIFICATION: IN CONSIDERATION FOR THE AGREEMENT BETWEEN
CONTRACTOR AND THE CITY OF ANNA, VENDER AGREES TO RELEASE, DEFEND, INDEMNIFY AND
HOLD HARMLESS THE CITY OF ANNA AND ITS PAST, PRESENT, AND FUTURE OFFICIALS,
OFFICERS, COUNCIL MEMBERS, REPRESENTATIVES, AGENTS AND EMPLOYEES ("INDEMNIFIED
PARTIES") FROM ANY AND ALL CLAIMS, WHETHER CIVIL OR CRIMINAL, BROUGHT AGAINST THE
CITY OF ANNA BY ANY GOVERNMENT AUTHORITY OR AGENCY RELATED TO ANY PERSON OR
ENTITY PROVIDING SERVICES BY, THROUGH OR UNDER VENDOR'S AGREEMENT WITH THE CITY OF
ANNA THAT ARE BASED ON ANY FEDERAL IMMIGRATION LAW, INCLUDING BUT NOT LIMITED TO
INA AND IRCA. NOTWITHSTANDING THE FOREGOING, IF THE AGREEMENT IS A CONTRACT FOR
ENGINEERING OR ARCHITECTURAL SERVICES, THEN VENDOR'S INDEMNITY AND DEFENSE
OBLIGATIONS UNDER ARE LIMITED BY, AND TO BE READ AS COMPLYING WITH, SECTION 271.904
OF THE TEXAS LOCAL GOVERNMENT CODE, SUCH THAT THE VENDOR SHALL: (1) DEFEND,
INDEMNIFY, AND HOLD HARMLESS THE INDEMNIFIED PARTIES AGAINST LIABILITY FOR DAMAGE TO
THE EXTENT THAT THE DAMAGE IS CAUSED BY OR RESULTS FROM AN ACT OF NEGLIGENCE,
INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A
SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE VENDOR OR THE VENDOR'S AGENT,
CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE VENDOR EXERCISES
CONTROL; AND (2) REIMBURSE THE CITY'S REASONABLE ATTORNEY'S FEES IN PROPORTION TO
THE VENDOR'S LIABILITY.
NO PROHIBITED INTEREST
City of Anna, Texas — Master Professional Services Agreement Page 25 of 28
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3199870
EXHIBIT G
COMPLIANCE WITH FEDERAL, STATE, LOCAL LAWS and CITY CHARTER
I, the undersigned, declare and affirm that no person or officer of the submitting firm or its
partners are either employed by the City of Anna or is an elected official of the City of Anna
and who has a financial interest, direct or indirect, in any contract with the City of Anna or
has a financial interest, directly or indirectly, in the sale to the City of Anna of any land, or
rights or interest in any land, materials, supplies or service. As per Section 11.02 of the
Anna City Charter, interest represented by ownership of stock by a City of Anna employee
or official is permitted if the ownership amounts to less than one (1) per cent of the
corporation stock.
I further understand and acknowledge that the existence of a prohibited interest at any time
during the term of this contract will render the contract voidable.
DISCLOSURE OF CERTAIN RELATIONSHIPS
Chapter 176 of the Texas Local Government Code requires that any vendor or person
considering doing business with a local government entity disclose in the Questionnaire
Form CIQ, the vendor or person's affiliation or business relationship that might cause a
conflict of interest with a local government entity. By law, this questionnaire must be filed
with the records administrator of The City of Anna no later than the 7th business day after
the date the person becomes aware of facts that require the statement to be filed. See
Section 176.006, Local Government Code. A person commits an offense if the person
violates Section 176.006, Local Government Code. An offense under this section is a Class
C misdemeanor. By submitting a response to this request, the vendor represents that it is
in compliance with the requirements of Chapter 176 of the Texas Local Government Code.
Form is attached to the bid specifications and to this Agreement as Exhibit H.
DISCLOSURE OF COMMERCIAL OR SOCIAL RELATIONSHIP WITH ISRAEL
Section 2271.002, Texas Government Code: the Firm entering into a contract with the City
verifies that it (1) does not boycott Israel; and (2) will not boycott Israel during the term of
the contract and any subsequent renewals.
DISCLOSURE OF BUSINESS RELATIONSHIPS WITH IRAN, SUDAN, OR A FOREIGN
TERRORIST ORGANIZATION
Section 2252.153 or Section 2270.0201, Texas Government Code: provides that the City
may not enter into a governmental contract with" (1) a Firm that is identified on a list
prepared and maintained by the comptroller and that does business with Iran, Sudan, or a
foreign terrorist organization; or (2) a company that the United States government
affirmatively declares to be excluded from its federal sanctions regime relating to Sudan, its
federal sanctions regime relating to Iran, or any federal sanctions regime relating to a
foreign terrorist organization is not subject to contract prohibition under this subchapter.
Authorized Representative:
Company Name: Terracon Consultants, Inc.
Date: 10118i22
Printed Name: _ Kevyn Gunn
City of Anna, Texas — Master Professional Services Agreement Page 26 of 28
Category B — Material Testing
3199870
EXHIBIT G
COMPLIANCE WITH FEDERAL, STATE, LOCAL LAWS and CITY CHARTER
Title: Office
Signature:
SWORN AND SUBSCRIBED to be rem this _ a , 20 2�Yo
certify with witness my hand and offici I se
.�n
for
ot�sr rp¢ JENNIFER RENEE CRUMBY r
+®� Notary ID #129237324 E
y My Commission Expires
'�or� December 18, 2024
City of Anna, Texas — Master Professional Services Agreement Page 27 of 28
Category B — Material Testing
3199870
EXHIBIT H
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO
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City of Anna, Texas— Master Professional services Agreement Page 28 of 28
Category B — Material Testing
3199870