HomeMy WebLinkAboutAgr 2001-02-01 (Brian Patric Neary)
TOWN OF TIBURON
TIBURON, CALIFORNIA
OWNER-CONTRACTOR AGREEMENT
ZELINSKY PARK PROJECT
THIS OWNER-CONTRACTOR AGREEMENT ("Agreement") is made and entered into
this ~ of R~...()m~1 '_,2001, by and between the TOWN OF TIBURON, a municipal
corporation, 1505 Tiburon Boulevard, Tiburon, CA 94920, ("Owner"), and BRIAN PATRICK
NEARY, doing business as NEARY LANDSCAPING, Post Office Box 4306, San Rafael, CA
94913 (" Contractor").
In consideration of the mutual covenants and agreements set forth herein, Contractor and
Owner hereby agree as follows:
ARTICLE I
CONSTRUCTION PROJECT
Owner is in the process of constructing improvements known as Zelinsky Park, which improvements
are more particularly described in the drawings and specifications (revised) by Ralph Alexander &
Associates ("Project"), dated August 9, 2000. Said drawings and specifications are attached as
Exhibit A. The Project Site is as identified on Exhibit A ("Site"). The Contractor shall do all the
work and furnish all the labor, services and materials necessary to complete the Project, with the
exclusions described in the Contractor's Proposal attached as Exhibit B ("Work"). The Contractor
shall complete the Project in a good, workmanlike and substantial manner, to the satisfaction of
Owner and in accordance with the terms of this Agreement.
ARTICLE II
CONTRACT SUM
Contractor's compensation under this Agreement shall be known as the "Contract Sum." The
Contract Sum shall be $45,900 (forty-five thousand nine hundred dollars) as full compensation for
the Work. All payments shall be subject to the General Conditions, set forth in Exhibit C.
ARTICLE III
TIME FOR PERFORMANCE
Contractor shall commence performance of the Work on a date to be specified by Owner to
Contractor to proceed ("Notice to Proceed"). Contractor shall diligently proceed with performance of
the Work and agrees to achieve Completion of the entire Work by 120 calendar days after receiving
the Notice to Proceed ("Scheduled Completion Date").
ARTICLE IV
EXHIBITS
This Contract includes the following Exhibits, which are attached hereto and incorporated herein by
reference:
Exhibit A The Project
Exhibit B Contractor's Proposal
Zelinsky Park, Neary Landscaping. doc 1
Exhibit C General Conditions
IN WITNESS WHEREOF, the parties to these presents have hereunto set their hands the
day and year frrst herein above written.
TOWN OF TIBURON
APPROVED AS TO FORM:
/---
By
Alex McIntyre, Town ager , Town Attorney
!
\
"-.--.
:~N~Z~~EARY' NEARY LANDSCAPING
Its .
Contractor's License No.7 - 440
Expiration Date: 10/31/02
Zelinsky Park, Neary Landscaping. doc 2
Exhibit A
THE PROJECT
[Attach drawings and specifications (revised) by Ralph Alexander & Associates ("Project"), dated
August 9, 2000]
Zelinsky Park, Neary Landscaping. doc 3
EXHIBIT B
CONTRACTOR'S PROPOSAL
Zelinsky Park, Neary Landscaping. doc 4
\PROPOSAL
\ Neary Landscape
P.O. BOX 4306
San Rafael, CA 94913
\(415) 492-1444
! CA #755440
Proposal Submitted To: Phone: 388-8777 Date: 11128/00
\Town of Tiburon
C/O Ralph Alexander and Assoc.
\Job Name Location: Zalinsky Park
We Propose hereby to furnish material and labor-complete in accordance with specifications below, for the sum of
IPLEASE SEE BELOW ----------------------------------------------------------------d>llars ($0.00)
Monthly progress payments
All material is guaranteed to be as specified. All work to he completed in a workmanlike manner
according to standard practices. Any alteration or deviation from specifications below involving
extra costs will be executed only upon written orders, and will become an extra charge over and
above the estimate. All agreements contingent upon strikes, accidents or delays beyond our
control. Owner to carry fire, earthquake and other necessary insurance. Our workers are fully
covered by Workmen's Compensation Insurance.
Note: This proposal may be withdrawn by us if not accepted within 30 days.
Authorized Signature: ~~ Date: II/zF/ozJ
I
Furnish and install as per Ralph Alexander revised dlWgs and specifications dated 8/9/00.
-Remove exotic and invasive plants *--DELETED Cost
-Paving (AC path repairs, additional AC, concrete steps at turf) Cost $8,750
-Grading! Topsoil- (remove,6" existing soils to accomadate new topsoil (6")
at turf area. Includes using existing soils to fill areas lower than 6") Cost $8,950
-Site Furnishings-DELETED Cost
-Planting (planting, lawn, soil prep., includes amending existing soils
at outer perimeter planting areas. Cost $17,400
-Irrigation Cost $9,600
-Site clean-up and maintenance Cost $1 200
T otaI $ 45,900
Note: -Excludes bonds, meters, permits, fees. Based on amending existing soils at outer perimeter plant areas.
- Import soil limited to 6" depth at turfarea (approx. 250 c.y.), Decomposed granite paths deleted.
EXHIBIT C
GENERAL CONDITIONS
ARTICLE 1
IN GENERAL
1.1 DEFINITIONS
1.1.1 "Superintendent" shall mean the Owner's Superintendent of Public Works or his designee.
1.1.2 "Owner" shall mean the Town of Tiburon, and its officials, agents and employees.
1.1.3 UContractor" shall mean Marshall Foster Masonry Contractor, Inc. and its officials, agents,
and employees.
1.1.4 "Day" shall mean calendar day unless specifically designated otherwise.
1.1.5 "Excusable Delay" shall mean an actual delay in the performance of the Work by Contractor
caused by events to the extent that such events are not reasonable foreseeable and are beyond the
reasonable control of Contractor, such as fire, flood, earthquake or unusually and unforeseeably
severe and abnormal weather conditions, war, embargo, or sabotage.
1.2 CONTRACT CONDITIONS
The Contractor shall carefully study this Contract and shall at once report in writing to the Owner
any error, inconsistency, omission or lack of coordination that may be discovered. Any discrepancies
between this Contract and conditions of the Site, or in the layout given by stakes, points or
instructions, discovered by the Contractor shall be promptly brought to the attention of the Owner.
1.3 PERFORMANCE OF THE WORK
1.3.1 The Owner shall at all times have access to the Work.
1.3.2 At the time the contract is awarded, all contractors and subcontractors shall be
properly licensed in 'accordance with the provisions of Chapter 9 of Division 3 of the Business and
Professions Code. At the commencement of work, all contractors and subcontractors shall have
obtained business licenses from the Town of Tiburon.
1.3.3 Unless otherwise provided in this Contract, the Contractor shall provide, pay for and
be responsible for all labor and materials necessary for the proper execution of the Work. The
Contractor shall supervise and direct the Work, using the best skill and attention necessary for a
contractor experienced and expert in this type of construction. The Contractor shall employ only
persons skilled in the task assigned to them and only machinery and equipment of suitable capacity
to the task, and operated by an experienced operator. The Contractor shall be responsible to the
Owner for the acts and omissions of the Contractor's employees, subcontractors and their agents and
employees. Notwithstanding the forgoing, nothing in this Contract shall be interpreted to make the
Contractor an agent of the Owner.
1.3.4 The Contractor shall promptly correct all Work rejected by the Owner as defective
or as failing to conform to this Contract. The Contractor shall bear all costs of correcting such Work.
If the Contractor does not, within seven (7) days after receipt of written notice from the Owner,
Zelinsky Park, Neary Landscaping. doc 5
commence and diligently complete correction of any deficient or nonconforming Work, the Owner
may, without prejudice to any other remedy the Owner may have, correct such deficiencies. The
Owner shall be entitled to a credit for the cost of such correction against the Contract Sum.
1.3.5 The Owner reserves the right to perform work related to the Project with the
Owner's own forces, and to award separate contracts in connection with other portions of the Project
or other work on the Site. The Owner and the Contractor shall provide for the coordination of the
work. The Contractor shall afford the Owner and separate contractors reasonable opportunity for the
introduction and storage of their materials and equipment and the execution of their work, and shall
connect and coordinate the Work with theirs as required by this Contract.
1.4 INDEMNIFICA TION
Contractor shall defend, indemnify and hold harmless Owner from any claims or damages, including
attorneys fees, arising from Contractor's performance of this Agreement, with the exception of those
claims or damages arising from the active negligence of Owner. In the event that the Owner's active
negligence accounts for only a percentage of the liability involve, the obligation of Contractor will be
for that portion or percentage of liability not attributable to the active negligence of Owner.
1.5 USE OF SUBCONTRACTS AND OTHER CONTRACTS FOR THE WORK
Contractor shall comply with the California Subletting and Subcontracting Fair Practices Act, Cal.
Pub. Contr. Code S9 4104 - 4114.1 in the use and substitution of subcontractors.
1.6 CHANGE ORDERS
1.6.1 A Change Order is a written order to the Contractor signed by the Owner and
authorizing a change in the Work and/or an adjustment in the Contract Sum and/or the Contract
Time. The Contract Sum and the Scheduled Completion Date may be changed only by specific
Change Order. Adjustments of Contract Time, Work or Sum may be issued without notice to
Sureties, and absence of such notice shall not relieve the Sureties of any responsibilities.
1.6.2 The Owner, without invalidating the Contract, may order changes in the Work
within the general scope of the Contract Change Order. The cost or credit to the Owner resulting
from a change in the work shall be determined, at the Owner's option, by mutual agreement between
the Owner and Contractor, or on the basis of time and material actually and properly incurred, plus a
twenty percentage fee for profit and overhead.
1.7 TERMINA TION OF THE CONTRACT
1.7.1 If the Contractor becomes bankrupt or insolvent or is guilty of a substantial
violation of a provision of this Contract, and fails within seven (7) days after receipt of notice to
commence and continue correction of such default with diligence and promptness, the Owner may,
without prejudice to any other remedy the Owner may have, terminate the employment of the
Contractor and take possession of the Site and of all materials and equipment thereon owned by the
Contractor as necessary to complete the Work.
1.7.2 The Owner may terminate the performance of the Work in whole or in part,
whenever the Owner determines that such termination is in the best interests of the Owner. Any such
termination shall be effected by delivery to the Contractor of a notice of termination specifying the
extent to which the performance of the Work is terminated, and the date upon which termination
becomes effective. Upon such termination for convenience, Contractor shall stop all Work and be
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entitled to reimbursement for its reasonable actual costs for Work performed under this Contract plus
a fee of twenty percent profit; however in no event shall such reimbursement exceed the Contract
Sum. In determining the reasonable cost, Owner shall receive a credit for the cost of materials to be
retained by the Contractor, amounts realized by the sale of materials, other savings realized by the
Contractor because of the termination of the Work and for defective or incomplete Work not
corrected.
ARTICLE 2
PAYMENTS AND COMPLETION
2.1 PAYMENTS
2.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments
thereto, is the total amount payable by the Owner to the Contractor for the performance of the Work
under this Contract.
2.1.2 The Contractor shall submit monthly invoices for Work completed, for the review
and approval of the Superintendent of Public Works. Within 30 days of receipt of each invoice, the
Owner shall either approve the Work covered by the invoice or advise Contractor of the specific
deficiencies that must be corrected prior to approval. Upon approval of the Work covered by the
invoice, Owner pay shall ninety percent (90%) of the amount due. Retained percentages are for the
sole protection and benefit of the Owner and no other person, frrm or corporation shall be entitled to
receive any part thereof. Contractor shall have the option of substituting acceptable securities for the
ten percent (10%) retention, as provided by Public Contract Code 9 22300.
2.1.3 No payment shall constitute an acceptance of any Work not in accordance with this
Contract. The Contractor warrants that title to all components of the Work will pass to the Owner
either by incorporation in the construction or upon receipt of payment by the Contractor, whichever
occurs first, free and clear of all liens, claims, security interests or encumbrances of any kind.
2.1.4 The Owner may withhold payment in whole or in part if the Contractor fails to
perform its contractual obligations to the extent necessary to protect the Owner from damage, injury
or loss. Without limiting the foregoing, Owner may without payment as necessary to correct
defective Work not remedied; defend from existing or likely third-party claims, remedy the failure or
likely failure of payments to subcontractors, or for labor, materials or equipment; or damage to the
Owner or another contractor.
2.1.5 The Contractor following receipt of payment by the Owner shall promptly pay each
subcontractor, out of the amount paid to the Contractor on account of such subcontractor's Work, the
amount to which said subcontractor is entitled. The Contractor shall, by an appropriate agreement
with each subcontractor, require each subcontractor to make payments to their sub-subcontractors in
similar manner. The Owner shall have no obligation to payor to see to the payment of any monies to
any subcontractor or sub-subcontractor.
2.2 FINAL PAYMENT
2.2.1 When the Superintendent of Public Works determines that the Project is
substantially complete, he shall issue a Certificate of Substantial Completion. The Certificate of
Substantial Completion shall include a punch list of items that must be completed before the fmal
completion of the Project, including dates by which the Contractor must complete such items.
Zelinsky Park, Neary Landscaping. doc 7
2.2.2 Upon Final Completion of the Work, Owner shall pay Contractor the fmal payment
and any remaining retainage. Notwithstanding the foregoing, in the event of a dispute between
Contractor and the Owner, the Owner may withhold from the [mal payment an amount not to exceed
150% of the disputed amount. No payment shall be construed to be an approval or acceptance of any
defect in Work or improper materials.
2.2.3 Prior to final payment, if requested by Owner, Contractor shall submit a written
certification that all payrolls, bills for materials and equipment, and other indebtedness connected
with the Work for which the Owner or the Owner's property might in any way be responsible, have
been paid or otherwise satisfied, and if required by the Owner, other data establishing payment or
satisfaction of all such obligations to Owner's satisfaction.
2.2.4 Acceptance by the Contractor of fmal payment shall be and shall operate as a
release to Owner of and from any and all other claims, causes of action, damages or liabilities,
whether or not known or suspected, which Contractor ever had or claims to have had relating to this
Contract or the performance of the Work. No payment, however, fmal or otherwise, shall operate to
release the Contractor or his sureties from any obligations under this contract for the Contractor's
bond for faithful performance and Contractor's payment bond.
2.3 DELA YS AND EXTENSIONS
2.3.1 The Scheduled Completion Date shall not be extended except to the extent that the
Contractor is actually prevented from completing the Work before the Scheduled Completion Date
because of an Excusable Delay.
2.3.2 In the event that Contractor is actually delayed on the performance of the Work by
any Excusable Delay and because of said Delay is unable to complete the work by the Scheduled
Completion Date, Contractor's sole remedy shall be an extension of time for a period equal to the
length of such Excusable Delay. In no event shall it be entitled to a monetary payment over and
beyond the Contract Sum. Actual delays in activities that do not prevent the Contractor from
completing the work by the Scheduled Completion Date will not constitute an "Excusable Delay" nor
be a basis for changing the Scheduled Completion Date.
ARTICLE 3
WORK MANAGEMENT RESPONSIBILITIES
3.1 SAFETY PRECAUTIONS AND PUBLIC CONVENIENCE
3.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the Work. This duty shall extend, without
limitation, to the safety of all employees on the Work and all other persons who may be affected
thereby; all the Work and all materials and equipment to be incorporated therein; other property at
the Site or adjacent thereto, and the work of the Owner or other separate contractors. Without
limiting the foregoing, Contractor, not Owner, shall remain fully responsible for the disposition and
the exposure to persons of materials, whether or not hazardous. Contractor remains fully responsible
for the handling of and the removal of products and systems and shall take necessary measures to
protect employees, subcontractors, general public, design consultants and others.
3.1.2 The Contractor shall so conduct his operations as to offer the least possible
obstruction and inconvenience to the public. The Contractor shall provide for the convenience of
abutting owners along the right-of-way as far as practicable. No material or equipment shall be
stored where it will interfere with the free and safe passage of public traffic.
Zelinsky Park, Neary Landscaping. doc 8
3.2 SITE MANAGEMENT AND CLEAN UP
The Contractor shall confine operations at the Site t9 areas permitted by law, ordinances, permits and
this Contract, and shall not unreasonably encumber the Site with any materials or equipment. The
Contractor shall keep the Site free from accumulation of waste material or rubbish caused by his
operations under the Contract. At completion of the Work, the Contractor shall remove from and
about the Project such waste and rubbish, and the Contractor's tools, construction machinery,
equipment, surplus materials and other property.
ARTICLE 4
INSURANCE
4.1 CONTRACTOR'S LIABILITY INSURANCE
Contractor shall provide and maintain insurance as set forth in this Article on behalf of the Owner.
4.1.1 Commercial General Liability Insurance (primaI)') shall be provided on ISO-CGL
form No. CG 00 01 11 85 or 88. Policy limits shall be no less than one million dollars per
occurrence for all coverages and two million dollars general aggregate. Owner and its employees and
agents shall be added as additional insured using ISO form CG 7057 (03-96). Coverage shall apply
on a primaI)', non-contributing basis in relation to any other insurance or self-insurance, primary or
excess, available to Owner or any employee or agent of Owner. Coverage shall not be limited to the
vicarious liability or supervisory role of any additional insured. Coverage shall contain no
contractors' limitation endorsement. There shall be no endorsement or modification limiting the
scope of coverage for liability arising from pollution, explosion, collapse, underground property
damage or employment-related practices.
4.1.2 Business Auto Coverage shall be written on ISO Business Auto Coverage from CA
00 01 06 92 including symbol 1 (Any Auto). Limits shall be no less than one million dollars per
accident. This policy shall be scheduled as underlying insurance to any umbrella policy required
above for a total limit of no less than five million dollars each accident.
4.1.3 Workers' CompensationlEmployer's Liability shall provide workers' compensation
statutory benefits as required by law. Employer's liability limits shall be no less than one million
dollars per accident Or disease. Employer's liability coverage shall be scheduled under any umbrella
policy described above. Unless otherwise agreed, this policy shall be endorsed to waive any right of
subrogation as respects the Owner.
4.1.4 Contractor and Owner further agree as follows:
.1 All insurance coverage and limits provided pursuant to this Contract shall
apply to the full extent of the policies involved, available or applicable. Requirements of specific
coverage features or limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by any insurance.
Specific reference to a given coverage feature is for purposes of clarification only and is not intended
by any party to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
.2 Unless otherwise approved by Owner, Contractor's insurance shall be
written by insurers authorized to do business in the State of California and with a minimum "Best's"
Insurance Guide rating of "A:VII." Self-insurance will not be considered to comply with these
insurance specifications.
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.3 Contractor shall provide evidence of the insurance required herein,
satisfactory to Owner, consisting of certificate(s) of insurance evidencing all of the coverages
required and an additional insured endorsement to Contractor's general liability and umbrella liability
policies using ISO form CG 7057 (03-96) prior to commencing work under this Contract.
Certificate( s) are to reflect that the insurer will provide 30 days notice of any cancellation of
coverage. Contractor agrees to require its insurer to modify such certificates to delete any
exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes
no obligation, and to delete the word "endeavor" with regard to any notice provisions.
.4 Contractor shall require all subcontractors or other parties hired for this
project to purchase and maintain insurance of the type specified above naming as additional insureds
all parties to this Contract. Contractor shall make reasonable efforts to ensure that such coverage is
provided as required here.
.5 Contractor shall provide immediate notice to Owner of any claim or loss
against Contractor that includes Owner as a defendant. Owner assumes no obligation or liability by
such notice, but has the right (but not the duty) to monitor the handling or any such claim or claims if
they are likely to involve Owner.
.6 In the event of any loss that is not insured due to the failure of Contractor to
comply with these requirements, Contractor shall be personally responsible for any an all losses,
claims, suits, damages, defense obligations and liability of any kind attributed to Owner as a result of
such failure.
.7 Contractor shall not attempt to avoid its defense and indemnity obligations
to Owner by using as a defense Contractor's statutory immunity under workers' compensation and
similar statutes.
.8 Contractor shall ensure that coverage provided to meet these requirements
is applicable separately to each insured and that there will be no cross liability exclusions that
preclude coverage for suits between Contractor and Owner or between Owner and any other insured
or Named Insured under the policy, or between Owner and any party associated with Owner.
4.2 OTHER INSURANCE PROVISIONS
The policies are to contain, or be endorsed to contain, the following provisions:
4.2.1 General Liability and Automobile Liability Coverages
.1 The Owner is to be covered as insureds as respects: liability arising out of
activities performed by or on behalf of the Contractor; products and completed operations of the
Contractor; premises owned, leased or used by the Contractor; or automobiles owned, leased, hired
or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of
protection afforded to the OwneI<
.2 The Contractor's insurance coverage shall be primary insurance as respects
the Owner. Any insurance or self-insurance maintained by the Owner shall be excess of the
Contractor's insurance and shall not contribute with it.
.3 Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the Owner.
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.4 Coverage shall state that the Contractor's insurance shall apply separately
to each insured against whom claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
4.2.2 Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty
(30) days' prior written notice by has been given to the Owner.
4.3 SUBCONTRACTORS
Contractor shall include all subcontractors as insureds under its policies or shall obtain separate
certificates and endorsements for each subcontractor.
ARTICLE 5
PREY AILING WAGE REOUIREMENTS
5.1 GENERAL REQUIREMENTS
5.1.1 The Contractor shall forfeit as penalty to the Owner $25.00 for each calendar day or
portion thereof, for each workman paid less than the stipulated prevailing rates for such work or craft
in which such workman is employed for any work done under the Contract by him or by any
subcontractor under him, in violation of the provisions of the Labor Code of the State of California,
and in particular, Section 1770 to 1780 thereof, inclusive. The general rate of prevailing wages is on
file in the Owner's offices.
5.1.2 The holidays upon which such rates shall be paid shall be all holidays recognized in
the collective bargaining agreement applicable to the particular craft, classification or type of
workman employed on the Project. The difference between such stipulated prevailing wage rates and
the amount paid to each workman for each calendar day or portion thereof for which each workman
was paid less than the stipulated prevailing wage rate shall be paid to each workman by the
Contractor pursuant to the requirements of Section 1775 of the Labor Code of the State of
California.
5.1.3 The Owner will not recognize any claim for additional compensation because of the
payment by the Contractor of any wage rate in excess of the prevailing wage rate set forth in the
Contract.
5.1.4 Notwithstanding any other provision of the Contract to the contrary, the general
prevailing rate of wages in this locality for each craft, classification, or type of workman needed to
execute the Contract for the Work (which rate includes employer payments for health and welfare,
vacation, pension, travel time, and subsistence pay as provided for in Section 1773.8 of the Labor
Code of the State of California, apprenticeship or other training programs authorized by Section
3093 of the Labor Code, and similar purposes) applicable to the work to be done for straight time,
overtime, Saturday, Sunday and holiday work is that ascertained by the Director of the Department of
Industrial Relations of the State of California and determined by the Town, which said rates are made
a part hereof, incorporated herein by reference as though fully set forth. The holiday wage rate listed
shall be applicable to all holidays recognized in the collective bargaining agreement of the particular
craft, classification or type of workman employed on the Project.
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5.1.5 Attention is directed to the provisions of Section 1777.5 and 1777.6 of the
California Labor Code concerning the employment of apprentices by the Contractor or any
subcontractor. The Contractor and any subcontractor shall comply with the requirements of Section
1777.5 and 1777.6 in the employment of apprentices. Information relative to apprenticeship
standards, wage schedules, and other requirements may be obtained from the Director of Industrial
Relations, ex-officio the Administrator of Apprenticeship Standards and its branch offices.
5.1.6 The Contractor shall make such travel and subsistence payments to each workman
needed to execute the Work as are established in the applicable collective bargaining agreements
filed in accordance with Section 1773.8 of the California Labor Code.
5.1.7 The Contractor and each subcontractor shall keep an accurate payroll record
showing the name, address, social security number, work classification, straight time and overtime
hours worked each day and week and the actual per diem wages paid to each journeyman, apprentice,
worker or other employee employed by the Contractor or subcontractor in connection with the Work.
The payroll records shall be kept in accordance with the provisions of Section 1776 of the California
Labor Code and Contractor and each subcontractor shall otherwise comply with all requirements of
such Section 1776.
5.2 HOURS OF LABOR
The Contractor shall forfeit to the Owner, as a penalty, the sum of Twenty-five Dollars ($25.00) for
each workman employed in the execution of the Contract for each calendar day during which such
laborer, workman or mechanic is required or permitted to labor more than eight (8) hours in violation
of the provisions of Sections 1810 to 1816, inclusive, of the Labor Code of the State of California.
ARTICLE 6
DISPUTE RESOLUTION
6.1 MEDIATION
Any Claim arising out of or related to the Contract shall be subject to mediation as a condition
precedent to arbitration or the institution of legal or equitable proceedings by either party. Unless the
parties mutually agree otherwise, mediation shall be in accordance with the Construction Industry
Mediation Rules of the American Arbitration Association currently in effect. The parties shall share
the mediator's fee and any filing fees equally. The mediation shall be held in the place where the
Project is located, unless the parties mutually agree to another location. Agreements reached in
mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
6.2 ARBITRA TION
Claims not resolved by mediation shall be decided by arbitration which, unless the parties mutually
agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the
American Arbitration Association currently in effect. A demand for arbitration shall be made within
30 days after the Claim has arisen, and in no event shall it be made after the date when institution of
legal or equitable proceedings based on such Claim would be barred by the applicable statute of
limitations. The party filing a notice of demand for arbitration must assert in the demand all Claims
then known to that party on which arbitration any party may demand under this Agreement. The
award rendered by the arbitrator or arbitrators shall be fmal, and judgment may be entered upon it in
accordance with applicable law in any court having jurisdiction thereof.
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ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 GOVERNING LAW
7.1.1 The Contract shall be governed by the law of the place where the Project is located.
The Contractor shall conform to and abide by all local, state and federal building, sanitary, health and
safety laws, rules, and regulations, including all Town ordinances and regulations.
7.1.2 All Contractors and subcontractors employed upon the Work shall and will be
required to conform to the provisions of the Labor Code of the State of California, and shall also
comply with all rules, regulations and Labor Laws of the federal government and the various acts
amendatory and supplementary thereto, and all other laws, ordinances and legal requirements.
Without limiting the foregoing, Contractor, will comply with applicable provisions of Section 3700
of the Labor Code, which requires every employer to be insured against liability for Worker's
Compensation or to undertake self-insurance in accordance with the provisions of that Code.
7.2 SUCCESSORS AND ASSIGNS
The Owner and the Contractor, respectively, bind themselves, their partners, successors and assigns
to this Contract. Neither party to the Contract shall assign the Contract or sublet it as a whole
without the written consent of the other.
7.3 RIGHTS AND REMEDIES
The duties and obligations imposed by this Contract and the rights and remedies available thereunder
shall be in addition to, and not a limitation of, any duties, obligations, rights and remedies otherwise
imposed or available by law. No action or failure to act by the Owner shall constitute a waiver of any
right or duty afforded any of them under the Contract, nor shall any such action or failure to act
constitute an approval of or acquiescence in any breach thereunder, except as may be specifically
agreed in writing.
7.4 PENAL TY FOR COLLUSION
If, at any time, it is determined by the Town that the person, frrm or corporation to whom the
Contract has been awarded has, in presenting any bid or bids, colluded with any other party or
parties, then the Contract shall be null and void, and the Contractor and his sureties shall be liable for
loss or damage which the Owner may suffer thereby, and the Owner may advertise for new bids for
said work.
7.5 EQUAL OPPORTUNITY
Contractor shall comply with the provisions of Section 1735 of the Labor Code of the State of
California, which provides as follows:
"No discrimination shall be made in the employment of persons upon public works because of the
race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital
status, or sex of such persons except as provided in Section 12940 of the Government Code, and
every contractor for public works violating this section is subject to all the penalties imposed for a
violation of this chapter."
END OF GENERAL CONDITIONS
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Colonial American Casualty and Surety COlnpany
LABOR & MATERIAL PAYMENT BOND
AlA 311 Equivalent PREMIUM: INCLUDED
Bond No. 08548971
KNOW ALL MEN BY THESE PRES~NTS that: BRIAN PATRICK NEARY dba:
~ NEf\Ry."LANDSCAPING - - .-. -- - -...-. .-- -
-.- .- -- - - -"-"--'--" -.-- -
ns Pl'in~ipal, hcr~in~ftcr called Prilleipalt and Colonial AlnCricElrl Casualty and ~urctyCompany a
c(HforatlOl\ organlzctl under the laws of the State of Marylnnd, as Surely, hcrcmaftcr called Surety, are
hel and firmly bound unto TOWN OF TIBURON
._0.- _._.._ -'- - -" - --" -....-- - -- ---. --- -
-.--....-- .- .- .-. __ .._" - ___ __0' ___0.
us Obligee, hereinafter called Owner, for the use and benefit of claimanls as hereinbelow defined, in th~ amount of
FORTY FIVE THOUSAND NINE ffiJNDRED & OO/loO--D()llar~ ($45,900.00 )7
for the payment whereof Principalanu Surely bind themselves, their heirs, executors, administrators, Sll<.:ccssors and assig.ns,
jointly nad scvernlly, fim1ty by these presents.
WHEREAS, Principal has by written ~grecment dated 1/22/01 (dated no later than this bond)
entered into a contract with Owner for
-.- ___0 -- . .. ~ELIN$KY ~AR.J< _PROJECT .i.IMPROV.EME~SJ_. _. _ _ _ _ _ --
_..... --- .. .-. ..-..-- .--. ..-..-.....- - _0__- _ _,.__ ___ .__
_..... .-.- .-..- - .- -- ..-- .- .- .- - __ - _"._" - .-1 _"0_ -
total contract amount being $45,900.00 in accordance with Dr~wings and Specjfication~ prepared by
RALPH ALEXANDER & ASSOCIATES
- ...-' --. ...-- ..... --.-..- .- _.'._ ..._0._ _" ._0_ _ _0,__.0'0._"
which con(raCL is by reference made a palt hereof, and is hcreinnl\er referred to as the Contract.
NOW, THRRE~\ORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly m4lkc
paYI111.'nt to all claimnrlls as hereinafter derincd, for all IClbur and material used or reasonably rcqtlired for llse in the
h~rform~ncc of the Contract, then this obligation shall be void; othcrwise it shall rem~in in full force Clnd effect, subject,
owevcr, to the following conditions:
1. A claimant is defined as one having a direct contmct with lhe Principal or with a Subcontraclor of the
Principal for labor, materi~l, or both, used or rea.f.jonubly required for uso in thc performance of the Contract, tabor and
m:'ltel'iat being construed 10 include that part of water, gac;, power, light, heat7 oil, gasoline. telephnnc scrvice or rentnl of
equipment directly applicnblc to the Contract.
2. Tho above named Principal and Surety hereby jointly and severally ngrce with the Owner thm cvery
clt~imElnt as hercin defined, who has not been paid in full beforc the cxpiralloll of a period of nincty (90) days nficl' the
date on which the la5t of such claimant's work or lilbor was done or perform~d. or n1nterials were furnished by such
clnimant, may S'lll.~ on th}s bond for the use ()f s,uch claimant, prosecute the Stlilto fi?al ju~gclllcnt for such ~U1n or sums
ns may be jUl;tly due clmmant, and have execution thereon. The Owner shall not be hahle ior the p<Jymcnt 01 Zlny costs or
expenses of illlY such suit.
~t1/J-- Page 1 of 2
3. No suit or action shall be commenced hereunder by any claimant:
n) Unles~ claimant, (.1ther than one having a direct contract with the Principal, shall have civen written notice to any
two of the following: the Principal, the Owner, or the Surety above named. within ninety (90) days nftcr such
claimant did or I?erformed the last of {he work or labor, or fumishcd the last of the matcrials for which said claim is
made, stalins WIth substantial accuracy the amount claimed and the nn11lC of the party to whom the matcrial~ were
furnished, or for whom the work or Jabor was done or performed. Such notice shall bc served by mailing the Same
by registered mail or certified mail, postnge prepaid, in an envelope addressed It) the Principal, Owner Or Surety, at
any place where an office is regularly maintained for the transactions of business) or served in any manner in which
1cgfll proce~s may be scrved In the state in which the aforesaid project is Iocateu, save that sllch service need not be
maLic by a public oflicer.
b) After the expiration of One (1) year following the date on which Principal ceased Work on said Contract, it being
undcrstoou, however, that if <<ny llmit~tion embodied in this bond is prohibited by nny law conlrolling the
con~trtlction hereof such limitation shall be deemed to be amendl:d so as to be equal 10 the minimum period <)f
limitation pemlittcd by such law.
c) Other than in a state court of compcteotjurisdiction in and for the COUrlty or other political subdivision of the state
in which the Project, Or any p~lt thereof, is situated, or in the Unit~d States District Court for the district in which the
Project, or any part. thereof: is situmed, and not elsewhere.
4. Th~ Clmount of this boad sn<<lI he reuuced by and to the extent of any payment or payments made in good faith
hereunder, inclusive of the payment by Surety of Mechanics' liens which may be Ciled of record against ~uid
improvement, wlu.:lher or not claim for tne amount of such lien be presented under and against this bonu.
Signed and sealed this 22ND day of JANUARY ,~2001
BRIAN PATRICK NEARY dba:
NEARY LANDSCAPING
(Principal) (Seal)
(Witness) By:
(Tille)
American Casually and Surety Compan~
/1/JU.e/ K. /u. /
(Witness)
(A tlorney-in-F act)
&4?-J A?-- 6 ~p-~ ~
/f77. ~ J-J/6(
?UfJ/ (
Pa~c 2 of 2
C.ALlFOR.N1A ALL-Pu:RPOSE ACKNOVILEDGEMENT
State of CALIFORNIA
County of SONOMA
On. 1/22/01 before me, KELLY HERMAN .
OATE HALE. nn.e OF OFACSR- E.G.. JANe DOE, NOTARY PUBUC
persoD2Uly appeared BONNIE K. FRYMIRE .------------------------------------~-
~(S) OF SIGNER(:5)
lXiJ personally known to me - OR - 0 proved to me on the basis of satisfactory evidence
to be the person~ whose namet99 ~
subscribed to the within instrument and
acknowledged to me that balsh~
executed the same in bi!!b.er/;t~authori.zed
capacita~)yJ and that by ~JherPt~
si.gnaturef$ on the instrument the person~
or the entity upon .beha1f of . wbich the
personAA ac~ executed the instrument.
WITNESS my hand and official. seal
II ik
\ . . ).
- .. "". '), /'.
'\ (( (( --/' I ./ (. I /VA j/l
SIGNATURE OF NOr AAY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on . the
document and prevent fraudulent reattachment of this fonn.
CAPACITY C~IMED BY SIGNER DESCRlPTION OF ATIACHED DOCUMENT
o INDJVIDUAL
o CORPOAATE LABOR & MATERIAL PAYMENT BOND
nTLE OR 1YPE OF DOCUMENT
nn..E{s)..
o PARTNER(S) 0 LlM1TED
o GENERAL TWO
~ A TIORNEY -IN-FACT
o TRUSTEE(S) NUMBER OF PAGES
o GUARDIAN/CONSERVATOR
O"OTHER: .
1/22/01
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAJ.aE OF ~:S) ORENm"(tE=Tf
COLONIAL AHERICAN CASUALTY AND SURE1Y CONPANY n/ a
SIGNER(S) OTIiER 1HAN N,AJ.,.{ED ABOVE
EXTRACT FROM BY-LAWS OF COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
"'Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice-President, or any of the
Senior Vice-Presidents or Vice-Presidents specially authorized so to do by the Board of Directors or by the Executive
Committee, shall have power, by and with the concurrence of the Secretary or anyone of the Assistant Secretaries, to
appoint Resident Vice-Presidents, Assistant Vice-Presidents and Attorneys-in-Fact as the business of the Company may
require, or to authorize any person or persons to execute on behalf of the Company any bonds, undertaking,
recognizances, stipulations, policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees,
mortgages and instruments in the nature ofmortgages,...and to affix the seal of the Company thereto."
CERTIFICA TE
I, the undersigned, Assistant Secretary of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, do
hereby certify that the original Power of Attorney of which the foregoing is a full, true and correct copy, is in full force
and effect on the date of this certificate; and I do further certify that the Vice-President who executed the said Power of
Attorney was one of the additional Vice-Presidents specially authorized by the Board of Directors to appoint any
Attorney-in-Fact as provided in Article VI, Section 2, of the By-Laws of the COLONIAL AMERICAN CASUALTY
AND SURETY COMPANY.
This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution
of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly
called and held on the 5th day of May, 1994.
RESOL VED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically
reproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore
or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and
binding upon the Company with the same force and effect as though manually affixed."
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the said
Company, this
22ND day of JANUARY , 2001
~"G/: ~
Assistant Secretary
I
ALL-PURPOSE ACKNOWLEDGMENT
r-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.,
· State of CalifOrni~1 j rrJ } ss ·
t County of / /~;f (. t
· ---.'.. .) /'(' ~.T,j(fi.
! On r-ejhru~)~ 100/. before. me, . j~f /~/II-(NOT Yl~1Al ( o,f!
t personall y appe ed j) ^ (1t.1/ f.1/ U ( K, IV t-A f!. ( t
SIGNER(S) /
. .
t D personally known to me - OR- ~ proved to me on the basis of satisfactory t
. evidence to be the person(s) whose name(s) .
t is/are subscribed to the within instrument and t
. acknowledged to me that he/she/they executed .
t the same In his/her/their authorized t
. capacity(ies), and that by his/her/their .
t ,I _DIANE CRANE IACDPI .~ signature(s) on the instrument the person(s), t
Comm. # 1286660
. ffi ~ -. NOT ARY PU~LlC.CALlFORNIA ~ or the entity upon behalf of which the .
t t
Mann County ... person(s) acted, executed the instrument.
~ ' My Comm. Expires Dec. 8, 2004 ~
. .
t t
WITNESS my hand and official seal.
. .
t 7 zf:iA t
. .
t J / jV~ ~-c~i t
. ' vNOTARY'S SIGNATURE .
t t
. OPTIONAL INFORMATION .
~ The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- t
. edgment to an unauthorized document. .
CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT t
D INDIVIDUAL /~t;vV I ~24 tdJ
M CORPORJlh bFFlCIi~
/iAc(j4cf TITLE OR TYf!l~ DOCUMENT I5tit(~
' tITLE(S) ~
D PARTNER(S)
/
D ATTORNEY-IN-FACT OZ
D TR USTEE(S)
NUMBER OF PAGES
D GUARDIAN/CONSERVATOR
D OTHER:
1- ) ) - 0 /
DATE OF DOCUMENT
SIG NER IS REPRESENTING:
NAME OF PER ONeS) OR ENTITY(IES)
n ~
/Y /7 ~~ () Ie ? //f't--- (- OTHER
L U I J ~
.~.~.~.~.~.~.~.~.~.~.~.~.~.~.~.~.~.
AP A 1/94 VALLEY -S IERRA, 800- 362- 3 369
I
Colonial American Casualty and Surety COlnpany
PERFORMANCE BOND
AlA 311 Equivalent PREMIUM: $1,147.50
Bond No. 08548971
KNOW ALL MEN BY THESR PRESENTS that: BRIAN PATRICK NEARY dba:
NEARY LAND~CAPI~R
as Principal, hercina ter en cd Contracto1', nnd Colonial Alncrlcan Casualty ant! Surety COlllPL111Y n
cOfP.orution duly organized \mdcr the laws of the State of Maryhmd. ns Surety, hcreinuftcr called Surety, are held and
firmly bound l.1nlO TOWN OF TIBURON
as Obligee, hereinafter caJled Owncr, in the amount of FORTY-FIVE THOUSAND NINE HUNDRED & 00/100 ---
Dollars ( $45,900.00 ),
for the paymcnt whereof Contractor and Surety bind themselv~s, their heirs, executors, adl1linistrstl)rs, successors and llssigns, jointlytlll'
sevel'alJy by these presents,
WIIEREAS, Contractor hal.i by written agreement dated 1/22/01 (dated no later tnan this bond) entered into n contract witl
Owner for ZELINSKY PARK PROJECT (IMPROVEMENTS)
telal contract nmount being $45,900.00 anti in accordance with Drawings and Specifications prepared by
RALPH ALEXANDER & ASSOCIATES
whkh conlract is by reference made a pnrt hereof, and is hereinafter referre<.l to a~ the C01ltr;lct.
NOW, THEREFORE, THE CONDITION OF THIS ODLIGATION is such that, if Contractor shall prorT)ptly tmd faithfully
perf{)rm snid C01\tract, then this obligation shall be null and void; otherwise it shall remuin in fut 1 force and effect.
The Surcty hereby waives notice of any allcrmion or extension of time made by the Owner.
Whenever Contractor shall be, nnd declared by Owner to be in defa.ult and terminaled under the Contract, the Owner having
p~rrormct.l Owner's obligations thereunder, the Surely may promptly remedy the default, or shall promptly
I. Complele the Contract in accord~nco with its tCnllS and conditions, or
2. Obtnln a bid or bids for completing the Contract in accordance with its terms and conditions and upon detcml ination by Surety
of the lowest responsible bidder, or, if the Owner elects, upon detcnninatiotl by the Owner and thc Surety jointly of the lowest
responsiblc bidder, a1'ran~e for a. contract between such bidder and Owner, and make available as Work progresses (even tho~lgh
lh~re should be a defaulr or a succession of defaults under the contract or contracts of completion arranged unuer thil) paragraph)
sufficient funds to pay the c!ost of completIon less the balance of the con Ll1lct price; but not cxceetiing, inchld ing oth~r costs and
damages for which the Surety may be liable hcreunucl', the amount set forth in the first paragraph hereof. The terl11 "balance of
thc contract price," a~ used. in thkparagraph, shall mean the total amount payable by Owner to Contractor un dcr the Contract
and any amendments thercto, less the am01.lnt properly paid by Owner to Contractor.
Any suit undel' this bond must be instituted before the expiration of two (2) years {three (3) years for projects 111 North CaroHn~} from n-
liMe on which final payment under the Contract falls due.
Nn right of action ~h(ll1 accruc on this bond to or for lhe use of any person or corporation other than the Owner named hcr~in Or the
heirs, executors, adminisrrMors or successors ofth~ OWner.
Signed and sealed this 22NDday of JANUARY I 100c 2001
BRIAN PATRICK NEARYdba:
NEARY LANDSCAPING
(Wirnc!\s) D/l'rinCiP.I~:>1 / ~ (Seal)
(Tille)
Colo American :.SU'lt~urety Compa~y
(Witness) By: lu1U-e/, Y"}~
~ t d. ~ BONNIE K. FRYMIRE (^ tto rncy.inwF~ct)
~ / ~~A r ~~d~r- "'Y1 v0~6u/ \-
CALIFORNIA ALL-PURPOSE ACKNOW'LEDGEMENT
State of CALIFORNIA
County of SONOMA
On. 1/22/01 bef ore me, KELLY HERMAN
.
O,A. TS HALE. nn..e OF OFF=1CSR. E.G.. JANE DOE. NOT MY PVBUC
personally appeared BONNIE K. FRYMIRE .------------------------------------~-
HA.J,.lS(:l) OF SIGNeR{~)
~ personally known to me - OR - 0 proved to me on the basis of satisfacrory evidence
to be the person~ whose nameOO ~
subscribed to the within instrument and
. acknowledged to me that helsh~
executed the same in hUther/;t~authori.zed
capaci~~)y, and that by ~JherPt~
signatu.re~ on the instrument the person~
or the entity upon .behaJf of . which the
personE&} ac~ executed the instrument
WIT.NESS my hand and official. seal
~ ~.. {0-. JQ/Lrv c",,~ ,
SIGw.TUrtE OF NOTARY
OPTIONAL
Though the data below is not required by lawt it may prove valuable to petSOns relying On . the
document and prevent fraudulent reattachment of this fo~
CAPACI1Y CLA.tMED BY SIGNER DESCRIPTION OF ATIACHED DOCUMENT
o INDIVIDUAL
o CORPORATE PERFORMANCE BOND
TITLE OR lYPE OF DOCUMENT
nn.E(s)..
o PARTNER(S) o LIMiTED
o GENERAL ONE
~ ATTORNEY-IN-FACT NUMBER OF PAGES
o TRUSTEE(S)
o GUARDIAN/CONSERVATOR
O'OTHER: .
1/22/01
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
N.AJ.le OF PeRsoN(S) ORENT1it1ES)Y n/a
COLONIAL AHERICAN CASUALTY A!\ID SURETY CONPANY
SIGNER(S) 011-lER THAN NAMED ABOVE
ALL-PURPOSE ACKNOWLEDGMENT
r-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.'
· State of California .. . /. J J} ·
, ,11 A te (IV 55, ,
i On . 2M I before me, /.:) /4;[1;: Ck.1;t1c Iffda i
i 13 ~ /4.{1 11 / !-I (!<TARY) .i?/f41 Y i
, SIGNER(S) I'
. .
, 0 personally known to me - OR- IX proved to me on the basis of satisfactory ,
. evidence to be the person(s) whose name(s) .
, is/are subscribed to the within instrument and ,
i acknowledged to me that he/she/they executed ,.
, the same In his/her/their authorized
· l . . ..... E CRANE IACOPI ( capacity(ies), and that by his/herltheir ·
, _ ~Ol~~mm,' 1286660 III signature( s) on the instrument the person( s), ,
. U) .-. NOTARYPU~L1C.CALlFORNIA - or the entity upon behalf of which the ·
, Malin County ...
, 1 M,Comm.Expire. Dee,8.2D04 I person(s) acted, executed the instrument. ,
. .
I WITNESS myhand and~fficial seal., I
! ;2&~' !
, ,
· OPTIONAL INFORMATION ·
., 1be information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- ,
. edgment to an unauthorized document. ·
, CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT ,
. .
, D INDIVIDUAL ,
D CORPOR'l'E OFFIC.E~ ^ 6rJw.. er(.
I r ( it! u( pcf'
I TITLE(S)
D PARTNER(S)
D ATTORNEY-IN-FACT /
D TRUSTEE(S) NUMBER OF PAGES
D GUARDIAN/CONSERVATOR
D OTHER:
;-)}-Ol
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OPiiSON'S) OR ENTlTy,IES) .
/ ~ ( 2-v;). !... 2ft d J..i: c J 7 ~ OTIlER
L/ / .J
.~.~.~.~.~.~.~.~.~.~.~.~.~.~.~.~.~.
APA 1/94 VALLEY-SIERRA,8oo-362-3369