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13-115 California Energy Consultant Services to Replace Window at Blackberry Farm AGREEMENT BETWEEN THE CITY OF CUPERTINO AND CALIFORNIA ENERGY CONSULTANT SERVICE C V --_-� THIS AGREEMENT, for reference dated July 24TH 2013, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and "CALIFORNIA ENERGY CONSULTANT SERVICE", a California corporation whose address is 11367 Trade Center Dr. #115 Rancho Cordova, CA. 95742 hereinafter called the Contractor, and is made with reference to the following: RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. City and Contractor desire to enter into an agreement for Replacement Windows at BBF in accordance with the proposal dated July 24th 2013 NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The Contractor shall begin work within thirty (30) calendar days after receiving notice from the Facilities Supervisor to commence the work, and shall diligently prosecute the work to completion before the expiration of thirty(30) consecutive working days from the date of receipt of notice to begin work. 2. SERVICES TO BE PERFORMED: Contractor agrees, at its own cost and expense, to furnish all labor, tools, equipment, materials, except as otherwise specified, and to do all work strictly in accordance with the proposal dated July 24th 2013 hereby referred to and expressly made a part hereof with the same force and effect as if the same were fully incorporated herein. 3. COMPENSATION TO CONTRACTOR: Contractor shall be compensated for services performed pursuant to this Agreement in an amount not to exceed nine thousand dollars ($9,000.00) based on the rates of payment set forth in exhibit A, attached and incorporated herein by this reference. Payment will be made in the same manner that claims of a like character are paid by the City, with checks drawn on the treasury of the City, to be taken from the general fund. 1 4. TIME IS OF THE ESSENCE: Contractor and City agree that time is of the essence regarding the performance of this Agreement. 5. STANDARD OF CARE: Contractor agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 6. INDEPENDENT PARTIES: City and Contractor intend that the relationship between them created by this Agreement is that of employer-independent contractor. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Contractor's services. None of the benefits provided by City to its employees, including but not limited to unemployment insurance, workers' compensation plans, vacation and sick leave are available from City to Contractor, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Contractor. Payments of the above items, if required, are the responsibility of Contractor. 7. IMMIGRATION REFORM AND CONTROL ACT (IRCA): Contractor assumes any and all responsibility for verifying the identity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Contractor shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Contractor. 8. NON-DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer/employee conduct, Contractor agrees that harassment or discrimination directed toward a job applicant, a City employee, or a citizen by Contractor or Contractor's employee on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Contractor agrees that any and all violations of this provision shall constitute,a material breach of this Agreement. 9. HOLD HARMLESS: Contractor shall, to the fullest extent allowed by law, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liability, claims, stop notices, actions, causes of action or demands whatsoever from and against any of them, including any injury to or death of any person or damage 2 performance of this Agreement by Contractor or Contractor's employees, officers, officials, agents or independent contractors. Contractor shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole negligence or willful misconduct of City, its agents or employees. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in these sections from each and every subcontractor or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this agreement. If Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. 10. INSURANCE: On or before the commencement of the terms of this Agreement, Contractor shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 10A, B, C and D. Such certificates, which do not limit Contractor's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, "Attention: City Manager." It is agreed that Contractor shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Contractor shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $I,OG0,000 each occurrence $2,000,000 aggregate - all other Property Damage: $500.000 each occurrence $1,000,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of $2,000,000 will be considered equivalent to the required minimum limits shown above. 3 (3) Automotive: Comprehensive automobile liability coverage in the following minimum limits: Bodily injury: $500,000 each occurrence Property Damage: $500,000 each occurrence or Combined Single Limit: $1,000,000 each occurrence B. SUBROGATION WAIVER: Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer of said Contractor may acquire against City by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Contractor at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Contractor's name or as an agent of the Contractor and shall be compensated by the Contractor for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. ADDITIONAL INSURED: City, its City Council, boards and commissions, officers, employees, and volunteers shall be named as an additional insured under all insurance coverages, except worker' s compensation insurance. The naming of an additional insured. shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as being sufficient to protect Contractor. Contractor is advised to consult Contractor's insurance broker to determine adequate coverage for Contractor. 11. BONDS: Contractor is not required to provide bonds. 12. PROHIBITION AGAINST TRANSFERS: Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Contractor 4 from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to City by Contractor. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Contractor is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 13. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names are listed in Contractor's bid shall be used in the performance of this Agreement. Requests for additional subcontracting shall be submitted in writing, describing the scope of work to be subcontracted and the name of the proposed subcontractor. Such request shall set forth the total price or hourly rates used in preparing estimated costs for the subcontractor's services. Approval of the subcontractor may, at the option of City, be issued in the form of a Work Order. In the event that Contractor employs subcontractors, such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general and automobile liability insurance in reasonable conformity to the insurance carried by Contractor. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. 14. PERMITS AND LICENSES: Contractor, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City Business License, that may be required in connection with the performance of services hereunder. 15. REPORTS: Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Contractor pursuant to or in connection with this Agreement shall be the exclusive property of City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. No report, information nor other data given to or prepared or assembled by Contractor pursuant to this Agreement shall be made available to any individual or organization by Contractor without prior approval by City. Contractor shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. RECORDS: Contractor shall maintain complete and accurate records with respect to sales, costs, 5 expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Contractor shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts there from as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Contractor shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. 17. NOTICES: All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Contractor to City shall be addressed to City at: City of Cupertino 10555 Mary Avenue Cupertino CA 95014 Attention: Chris Orr All notices, demands, requests, or approvals from City to Contractor shall be addressed to Contractor at: California Energy Consultant Service 11367 Trade Center Dr. #115 Rancho Cordova, CA. 95742 Attention: Lance Newey 18. URBAN RUNOFF MANAGEMENT: The Contractor shall avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, contractor shall use as little as necessary. Contractor shall take all steps necessary to keep wash water out of the streets, gutters and storm drains. The Contractor shall develop and implement erosion and sediment control to prevent pollution of storm drains. Such control includes but is not limited to: A. Use storm drain inlet protection devices such as sand bag barriers, filter fabric 6 fences, block and gravel filters. (Block storm drain inlets prior to the start of the rainy season (October 15), in site de-watering activities and saw-cutting activities; shovel or vacuum saw-cut slurry and remove from the site). B. Cover exposed piles of soil or construction material with plastic sheeting. All construction materials must be stored in containers. C. Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain as well as at the end of the each work day. At the completion of the project, the street shall be washed and the wash water shall be collected and disposed of offsite in an appropriate location. D. After breaking old pavement, Contractor shall remove all debris to avoid contact with rainfall or runoff. E. Contractor shall maintain a clean work area by removing trash, litter, and debris at the end of each work day. Contractor shall also clean up any leaks, drips, and other spills as they occur. The objective is to ensure that the City and County of Santa Clara County-Wide Clean Water Program is adequately enforced. These controls should be implemented prior to the start of construction, up-graded as required, maintained during construction phases to provide adequate protection, and removed at the end of construction. These recommendations are intended to be used in conjunction with the States Best Management Practices Municipal and Construction Handbooks, local program guidance materials from municipalities, Section 7.1.01 of the Standard Specifications and any other appropriate documents on storm water quality controls for construction. Failure to comply with this program will result in the issuance of noncompliance notices, citations, project stop orders or fines. The fine for noncompliance of the above program is two hundred and fifty dollars ($250.00) per occurrence per day. The State under the Federal Clean Water Act can also impose a fine on the contractor, pursuant to Cal. Water Code ' 13385. 19. TERMINATION: In the event Contractor fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Contractor shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days after receipt by Contractor from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Contractor written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Contractor as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 20. COMPLIANCES: Contractor shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 7 21. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities.) Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California. 12. ADVERTISEMENT: Contractor shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 23. WAIVER: A waiver by City of any breach of any term, covenant, or condition contained herein, shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 24. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 25. SAFETY REQUIREMENT All work performed under this Agreement shall be performed in such a manner as to provide safety to the public and to meet or exceed the safety standards outlined by CAL-OSHA. City reserves the right to issue restraints or cease and desist orders to Contractor when unsafe or harmful acts or conditions are observed or reported relative to the performance of the work under this Agreement. Contractor shall maintain the work sites free of hazards to persons and/or property resulting from his or her operations. Any hazardous condition noted by Contractor, which is not a result of his or her operations, shall immediately be reported to City. 26. HOURS OF OPERATION Contractor shall be allowed to operate only for the hours of 7:00 a.m. to 3:30 p.m. unless prior written approval has been secured from City to do otherwise. 8 27. REQUIREMENT TO PAY PREVAILING WAGES Consistent with the City's policy to pay prevailing wage rates, Contractor shall comply with the City's Labor Compliance Program and all other requirements set forth in Labor Code section 1770 et seq. The City shall require payment of the general rate of per diem wages or the general rate of per diem wages for holiday and overtime work. Contractor will submit (monthly or biweekly) certified payroll records to the City for all employees and subcontractors in a preapproved format or a City provided form. Any delay in remitting certified payroll reports to the City upon request from the City will result in either delay and/or forfeit of outstanding payment to Contractor. 28. INSERTED PROVISIONS: Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 9 29. CAPTIONS: The captions in this Agreement are for convenience only, are not apart of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the day and year first above written. CONTRACTOR CITY OF CUPERTINO "CONTRACTOR NAME" A Municipal Corporation B By Tit Title! ('k Date Date /�( ( (3 Soc. Sec. # or Tax I.D. q3 l 1 RECOMMENP KFOR P VAL: By Title r" ayc o,L ...6c�c �� APPROVED AS TO FORM: ./14 4"a wno�— B ity Attorney ATTEST: City-Clerk �_�S�( 3 G v k mcA Amo,,,^ `i cov, pv PURCHASE ORDER NO. 00058181 PURCHASE ORDER 10300 Torre Avenue Cupertino, CA 95014-3255 PAGE NO. 1 (408)777-3219 CUPERTINO V f—5232 S H CITY OF CUPERTINO E CALIFORNIA ENERGY CONSULTANT I N SERVICE P SERVICE CENTER D 10555 MARY AVENUE 0 11367 TRADE CENTER DR #115 T CUPERTINO CA 95014 R L RANCHO CORDOVA CA 9 5 7 4 2 0 L ATTN: CHRIS ORR ORDER DATE:07/23/13 BUYER: CHRIS ORR REQ- NO.: 0.()000977 REQ. DATE: TERMS: NET 3 0 DAYS IF.O.B-: DESTINATION DESC.: QUANTITY UOM DESCRIPTION UNIT PRICE EXTENSION ............... 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ITEM#1 ACCOUNT AMOUNT PROJECT CODE PAGE TOTAL $ 9,000.00 TOTAL $ 9,000.00 01 1108516 9322 9, 000.00 APPROVED BY ,4RECTOR 0,PURCHASING ►tom rr ex k Proposal/ onfrart Q 11 CALIFORNIA ENERGY -7 2c�i;3 CALIFORNIA ENERGY i i� CONSULTANT SERVICE - CONSULTANT SERVICE%i 'i www.calenergye:(teriors.com Date 11367 Trade Center Dr., #115 Page No. of Pages Rancho Cordova, CA 95742 (916) 852.8132 License#627677 PROPOSAL SUBMITTED TO STARTING DATE(approx.) COMPLETION DATE(approx.) City of Cupertino-Cindy 2. 13 JOB ADDRESS MAILING ADDRESS(it different) 21979 San Fernando Ave. CITY,STATE&ZIP CITY,STATE,ZIP SOURCE Cupertino, CA 95014 HOME PHONE WORK PHONE EMAILADDRESS SALESMAN'S REG.# 408-655-0648 We will furnish all the required materials, which we guarantee will be as specified, and we will perform all the labor required for the completion of.1.X0.6x4.... . ......... .......Drop Sill.......... ... .. . . ...... . ............ .............. ....... . ........... .... .... ....... 1.XOX 8x4... ......... .. .....Drop Sill ......... . .. ... ... .. ... .................. .. ...... .......... ............. ........... 1 XO 4x3 Obs. ...... ...... ... .2... .. .. .. ................ . ... .. . ... . .. .. .. .. .. .. . ......... ..... . ... .. ...... . ...... ........................ ... 1 SH x3 . ................. ...... ... ...... .. ......................... 1-X0X U4.. . .................. . ... ........ . ... . .... . . .. ..... .... ...... ...... .. .. .... .... ..... . .......................... ...2-SH-2x3... .. ..... ........... ... ... ......... ... . .... . . .. .... . . ................................ .. ...................... ... ...1.XOX 8x3... ..... ............. .... . ........... ..... .. . ..... . ............... ... .. .. .. ................. ................... 1.X04x2..... . . . .. .... ....... .. ............... . . .. .. . . .... .. . .... . .......... ... .. .... ....... .. ........................ ... 1 XO 4x2 Obs. ....... ... . .. ...... ... .. .. ............. ........ .... . .. .. .. .. .. ... .. . ........... . ... .... .. ....... .. . .. . .. .......... ........ ... 1 XOX 10x4 . .... ...... .... . .. .. .... ...... ... .... .. .. ........ ........... 1'X0'4x4. ....... .. .. .. ...... ....... ........ ... . . .. . . .. .. .... . 1.12'3 panel-OX/O Slider ... . . ...... ... . ... .. .. .. ...... . .. .... .. ...... ..... ..... ..... .. ........... ......... ............. .... ........ .... . .... .. ...... . .................. .. .. .. ............. .. .............. ....... .. .All.Windows are P.ly.Gem.Contractor.Series_All Doors are Ply.Gem.Pra Series... .. ........................... ........... ...Lowe 3 and.Argon.Gase:................... .... . ...... .... ... ... . ....... . ...... .. ....... ........ .............. ........ ... Includes Labor, Tax, Material,and Disposal. "Total for first two windows(as listed above):'$2,088 **"""******Total for all unifs'$8,986 iridl"udM0—th6–dr6p sills ... .. .. .................... ... ........ ...... ........ .... ..... ...... ... ............ ..................... ................ .... ....... Contractors are required by law to be licensed and regulated by the Contractor's State License Board. Any questions concerning a contractor may be referred to the registrar of the board whose address is:Contractor's State License Board,9821 Business Park Dr.,Sacramento,CA 95826 WE PROPOSE to perform the above work in accordance with the drawings and specifications submitted and completed in a workmanlike manner according to standard practices for sum of............ . .............. ....... .. .. ... . .... ................ .. .. .......... ........($.............. with payments to be made as follows....... ............ .............. . ........ ....... . .... .... .. .. .. ..... ......................... ....... ... . .... ....... ...... ................... .... ....... ....... .... ............... ...... ........... ......................... Any Alteration or Deviation from the above specifications or dry rot damage involving extra costs will be made upon written agreement,and will become an extra charge over and above the estimate. All agreements are contingent upon strikes, accidents or delays beyond our control. You are to carry fire,tornado and other necessary insurance upon the above work. Our workers are fully covered by Workmen's Compensation and Public Liability Insurance. Overdue accounts will be charged interest at the rate of %per month. In the event it becomes necessary to enforce this agreement by litigation,the prevailing party shall be entitled to court costs,attorney and collection fees. This proposal may be withdrawn by us at any time before acceptance. Alarms are the responsibility of the homeowner. Authorized signature . .. ........ ..... ......................... You as owner or tenant have the right to require the contractor tD have a performance and payment bond or funding control. ACCEPTANCE OF PROPOSAL: The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above. It is understood and agreed that this is work not provided for in any other agreement and no contractual rights arise until this proposal is accepted in writing. Accepted C N 4Z r'S 0 J� j,- Signature �- Date v 3 —1 3 Signature OFFICE OF THE CITY CLERK CITY HALL 10300 TORRE AVEN!JE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3223• FAX: (408) 777-3366 WEBSITE: www.cupertino.org CUPERTINO August 19, 2013 California Energy Consultant Service 11367 Trade Center Drive, #115 Rancho Cordova, CA 95742 RE: Agreement Enclosed for your records is a fully executed original copy of your agreement with the City of Cupertino. If you have any questions, please contact the Public Works Department at (408) 777-3354. Sincerely, Dorothy Steenfott Senior Office Assistant Enclosure cc: Public Works