HomeMy WebLinkAbout2004-06-22; City Council; Resolution 2004-2001
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RESOLUTION NO. 2004-200
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT
BETWEEN THE CITY OF CARLSBAD AND ESGIL
CORPORATION FOR BULDING PLAN CHECK SERVICES
AND AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT.
The City Council of the City of Carlsbad, California, does hereby resolve as ,,llows:
1. That the previous agreement between the City of Carlsbad and ESGIL Corporation,
approved by Resolution 99- 175 adopted May 18, 1999 will terminate on June 30,2004.
2. That the agreement between the City of Carlsbad and ESGIL Corporation for
building plan check services, a copy of that is attached hereto and made a part hereof, is hereby
approved.
3. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute
said agreement for and on behalf of the City of Carlsbad.
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PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the
City of Carlsbad, California, held on the 22nd dayof June , 2004
by the following vote, to wit:
AYES:
NOES: None
Council Members Lewis, Finnila, Kulchin, Hall and Packard
ABSENT: None
ATTEST:
.<OW2 M. WOOD, City Clerk
(SE 1
Resolution No. 2004-200 page 2
-2- 3
AGREEMENT FOR BUILDING PLAN CHECK SERVICES
J ESGIL CORP
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THIS AGREEMENT is made and entered into as of the d3 day of
, 20-, by and between the CITY OF CARLSBAD, a municipal J Vc7e
co rpo ra t io n , ("City" ) , and ES G I L Corporation ("Contractor") .
RECITALS
A. City requires the professional services of a plan review contractor to
provide the necessary plan review services for proposed construction projects that is
experienced in current building codes as adopted by the City.
B. Contractor has the necessary experience in providing professional
services and advice related to plan review.
C. Selection of Contractor is expected to achieve the desired results in an
expedited fashion.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
I. CONTRACTOR'S OBLIGATIONS
office by meetings or by telephone.
a. Perform traditional preliminary plan review consultations in Contractor's main
b. Perform traditional initial plan review of submitted plans to determine
compliance with City adopted Uniform Building Code, Uniform Plumbing Code, Uniform
Mechanical Code, National Electric Code, and California State, Title 24 (Energy
Conservation; Disabled Access; and Noise Attenuation).
c. Provide the applicant's designee and the City, a typed list of items needing
clarification or change to achieve conformance with the above regulations.
d. Perform all necessary liaison with the applicant's designee, either by
telephone, mail or meeting in ESGIL Corporation's main office, and perform all
necessary rechecks to achieve conformance to the regulations.
e. Perform all necessary liaisons with the Building Official or his designee, either
by mail, or telephone or in ESGIL Corporation's main office, to ensure compliance with
U.B.C. Section 106 and to ensure compliance with local policy interpretations.
f. Perform plan reviews of revisions to plans that have previously been
approved for permit issuance, or perform plan reviews of major changes to plans prior
to such approval, when such major changes are not required to achieve code
conformance.
g. Attend meetings related to proposed building projects at the request of the Building Official at locations other than ESGIL Corporation's Plan Check office.
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2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional
care and skill customarily exercised by reputable members of Contractor‘s profession
practicing in the Metropolitan Southern California Area, and will use reasonable
diligence and best judgment while exercising its professional skill and expertise.
3. CITY OBLIGATIONS
The City shall perform the following work:
a. Obtain from the applicant, at the time of the project submittal, the necessary
items to allow plan checking to be completed in the shortest overall time frame.
Necessary items include, but are not limited to, complete plans, construction
specifications, soil reports, Title 24 energy calculations, structural calculations, the
name and address and telephone number of the applicant’s designated contact person
and similar items that may be unique to a particular project.
b. Provide the valuation for the proposed construction or instruct the Contractor
to calculate the valuation in accordance with the City’s adopted valuation schedule.
c. Provide the Contractor with copies of any City ordinances that modify the
regulations listed in 1 .b.
d. Collect sufficient plan check fees or deposits from project applicants to ensure
the City will not suffer a loss if the applicant decides to abandon the permit process after
the Contractor has completed the initial plan check.
4. PROGRESS AND COMPLETION
The Contractor agrees to provide adequate resources to achieve the following
service delivery goals for timely performance of the work over which the Contractor has
decision authority.
ITEM SERVICE GOAL -
A. Buildings less than four stories A. Complete initial plan review in
and of normal complexity. Fifteen work days or less.
B. Buildings four or more stories B. As agreed by the City’s Building
in height or of unusual
complexity.
Official and Contractor.
5. TERM
The term of this Agreement will be effective for a period of one (I) year from the date
first above written. The City Manager may amend the Agreement to extend it for three
(3) additional one (I) year periods or parts thereof. Extensions will be based upon a
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satisfactory review of Contractor's performance, City needs, and appropriation of funds
by the City Council,. The parties will prepare a written amendment indicating the
effective date and length of the extended Agreement.
6.
Time is of the essence for each and every provision of this Agreement.
TIME IS OF THE ESSENCE
7. COMPENSATION
a. Compensation for each plan reviewed under Sections 1, a-e shall be 56% of
the building permit fee calculated per Section 107 of the latest published edition of the
Uniform Building Code as adopted by the City for each building plan checked. The
construction valuation shall be based on the most recent valuation multiplier adopted by
the City or on the architect's estimated construction cost, or on the Building Official's
cost estimate. The Building Official shall have final decision authority over the value
used.
Plan check fee for repetitive identical buildings shall be 56% of the building
permit fee as noted above for the first, or basic building, and 14% of the plan check fee
as noted above for each additional building. The single fee includes all rechecks and
there are no additional charges for preliminary plan check conferences at our office,
expedited processing, checking plans that are eventually found to be incomplete or for
the mailing of plans back to the jurisdiction.
b. Compensation under Section 1, f. shall be calculated either the same as 4, a.
or shall be based on Contractor's current Labor Rates Schedule. The method to be
used will be at the discretion of the Contractor with the approval of the Building Official.
c. Compensation for work performed under 1, g. shall be based on the attached
Labor Rates Schedule (Attachment A) as modified each January I" and July 1"with
approval of the Building Official.
d. The Contractor shall not perform extra work without written authorization
from the Building Official.
8. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent
contractor and in pursuit of Contractor's independent calling, and not as an employee of
City. Contractor will be under control of City only as to the result to be accomplished,
but will consult with City as necessary. The persons used by Contractor to provide
services under this Agreement will not be considered employees of City for any
purposes.
The payment made to Contractor pursuant to the Agreement will be the full and
complete compensation to which Contractor is entitled. City will not make any federal or
state tax withholdings on behalf of Contractor or its agents, employees or
subcontractors. City will not be required to pay any workers' compensation insurance or
unemployment contributions on behalf of Contractor or its employees or subcontractors.
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Contractor agrees to indemnify City within thirty (30) days for any tax, retirement
contribution, social security, overtime payment, unemployment payment or workers’
compensation payment which City may be required to make on behalf of Contractor or
any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City’s election, City may deduct the indemnification amount from any
balance owing to Contractor.
9. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval
of City. If Contractor subcontracts any of the Services, Contractor will be fully
responsible to City for the acts and omissions of Contractor’s subcontractor and of the
persons either directly or indirectly employed by the subcontractor, as Contractor is for
the acts and omissions of persons directly employed by Contractor. Nothing contained
in this Agreement will create any contractual relationship between any subcontractor of
Contractor and City. Contractor will be responsible for payment of subcontractors.
Contractor will bind every subcontractor and every subcontractor of a subcontractor by
the terms of this Agreement applicable to Contractor’s work unless specifically noted to
the contrary in the subcontract and approved in writing by City.
IO. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
11. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses
including attorneys fees arising out of the performance of the work described herein
caused in whole or in part by any willful misconduct or negligent act or omission of the
Contractor, any subcontractor, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney’s fee, costs or expense City
incurs or makes to or on behalf of an injured employee under the City’s self-
administered workers’ compensation is included as a loss, expense or cost for the
purposes of this section, and that this section will survive the expiration or early
termination of this Agreement.
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12. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property
which may arise out of or in connection with performance of the services by Contractor
or Contractor's agents, representatives, employees or subcontractors. The insurance
will be obtained from an insurance carrier admitted and authorized to do business in the
State of California. The insurance carrier is required to have a current Best's Key Rating
of not less than "A-:VI'.
10.1 Coveraqes and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below,
unless City Attorney or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Contractor's
indemnification obligations under this Agreement. City, its officers, agents and
employees make no representation that the limits of the insurance specified to be
carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If
Contractor believes that any required insurance coverage is inadequate, Contractor will
obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined
single-limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits will apply
separately to the work under this Agreement or the general aggregate will be twice the
required per occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily
injury and property damage.
10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers'
Compensation limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if Contractor has no employees and
provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must
be maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions. Contractor will ensure that the policies of insurance
required under this Agreement contain, or are endorsed to contain, the following
provisions:
10.2.1 The City will be named as an additional insured on General
Liability.
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10.2.2 Con tractor wil I obtain occu rren ce coverage, excl ud ing Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior written notice
to City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3
of this Agreement, Contractor will furnish certificates of insurance and endorsements to
City.
Providinq Certificates of Insurance and Endorsements. Prior to City's execution
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these
insurance coverages, then City will have the option to declare Contractor in breach, or
may purchase replacement insurance or pay the premiums that are due on existing
policies in order to maintain the required coverages. Contractor is responsible for any
payments made by City to obtain or maintain insurance and City may collect these
payments from Contractor or deduct the amount paid from any sums due Contractor
under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and
endorsements.
13. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of
the Agreement, as may be amended from time-to-time.
14. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. Contractor will allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of records and any other documents created pursuant to this
Agreement. Contractor will allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
15. OWNERSHIP OF DOCUMENTS
All work products produced by Contractor or its agents, employees, and subcontractors
pursuant to this Agreement is the property of City. In the event this Agreement is
terminated, all work products produced by Contractor or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to City. Contractor
will have the right to make one (1) copy of the work product for Contractor's records.
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16. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City
and Contractor relinquishes all claims to the copyrights in favor of City.
17. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of City and on behalf of Contractor under this Agreement.
For Citv: For Contractor:
Title Building & Code Enforcement Mqr Title %?€.SZD€AJT
Department Building Department Address 9320 cH&S pEf?CG J&‘? -J)
City of Carlsbad SHA) VZE60, c& 42/23
Address 1635 Faradav Avenue Phone No. €358 -5LO-
Carlsbad, CA 92008
Phone No. (760) 602-2716
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
18. CONFLICT OF INTEREST
City will evaluate Contractor’s duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City’s Conflict of Interest Code is required
of Contractor or any of Contractor’s employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor’s affected employees,
agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor’s agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
Contractor further warrants that neither Contractor, nor Contractor’s agents, employees,
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subcontractors and consultants have any ancillary real property, business interests or
income that will be affected by this Agreement or, alternatively, that Contractor will file
with the City an affidavit disclosing this interest.
19. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way
affect the performance of the Services by Contractor. Contractor will at all times observe
and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act
of 1986 and will comply with those requirements, including, but not limited to, verifying
the eligibility for employment of all agents, employees, subcontractors and consultants
that the services required by this Agreement.
20. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment. -
21. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following
procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of Contractor or City will
reduce such questions, and their respective views, to writing. A copy of such
documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative
receiving the letter will reply to the letter along with a recommended method of
resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City
Manager. The City Manager will consider the facts and solutions recommended by each
party and may then opt to direct a solution to the problem. In such cases, the action of
the City Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
22. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services,
City may terminate this Agreement for nonperformance by notifying Contractor by
certified mail of the termination. If City decides to abandon or indefinitely postpone the
work or services contemplated by this Agreement, City may terminate this Agreement
upon written notice to Contractor. Upon notification of termination, Contractor has five
(5) business days to deliver any documents owned by City and all work in progress to
City address contained in this Agreement. City will make a determination of fact based
upon the work product delivered to City and of the percentage of work that Contractor
has performed which is usable and of worth to City in having the Agreement completed.
Based upon that finding City will determine the final payment of the Agreement.
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Either party upon tendering thirty (30) days written notice to the other party may
terminate this Agreement. In this event and upon request of City, Contractor will
assemble the work product and put it in order for proper filing and closing and deliver it
to City. Contractor will be paid for work performed to the termination date; however, the
total will not exceed the lump sum fee payable under this Agreement. City will make the
final determination as to the portions of tasks completed and the compensation to be
made.
23. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or
person, other than a bona fide employee working for Contractor, to solicit or secure this
Agreement, and that Contractor has not paid or agreed to pay any company or person,
other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift,
or any other consideration contingent upon, or resulting from, the award or making of
this Agreement. For breach or violation of this warranty, City will have the right to annul
this Agreement without liability, or, in its discretion, to deduct from the Agreement price
or consideration, or otherwise recover, the full amount of the fee, commission,
percentage, brokerage fees, gift, or contingent fee.
24. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to
City must be asserted as part of the Agreement process as set forth in this Agreement
and not in anticipation of litigation or in conjunction with litigation. Contractor
acknowledges that if a false claim is submitted to City, it may be considered fraud and
Contractor may be subject to criminal prosecution. Contractor acknowledges that
California Government Code sections 12650 et seq., the False Claims Act applies to
this Agreement and, provides for civil penalties where a person knowingly submits a
false claim to a public entity. These provisions include false claims made with deliberate
ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is
entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges
that the filing of a false claim may subject Contractor to an administrative debarment
proceeding as the result of which Contractor may be prevented to act as a Contractor
on any public work or improvement for a period of up to five (5) years. Contractor
acknowledges debarment by another jurisdiction is grounds for City to terminate this
Agree men t .
25. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
other county.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT NO. 51!
Es Es#PT. fa- J26€..# personally appeared- HO mm
NAME(S) OF%IGNER(S) czszsnb'
personally known to me - OR - proved to me on the basis of satisfactory evidence
to be the person@ whose name"are
subscribed to the within instrument and ac-
knowledged to me that be/s#e/tQ# executed
capacity(ies), and that by tyVlyw/u
signature@ on the instrument the person@,
or the entity upon behalf of which the
c
# the same in t)&/hsV/tm authorized
ed, executed the instrument.
hand and official seal.
- OPTIONAL SECTION - CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below, doing so may prove
invaluable to persons relying on the document. 0 INDIVIDUAL
CORPORATE OFFICER(S) JR~s :CFO TITLE(S) P4F-
0 PARTNER(S) 0 LIMITED 0 GENERAL 0 ATTORNEY-IN-FACT
TRUSTEE(S)
0 GUARDIAN/CONSERVATOR 0 OTHER:
SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES)
I OPTIONAL SECTION
THIS CERTIFICATE MUST BE ATTACHED TO
THE DOCUMENT DESCRIBED AT RIGHT
TITLE OR TYPE OF DOCUMENT&T$' &F emfwwD e-&- &,@ doc ss-es I NUMBER OF PAGES 1' DATE OF DOCUMENTW'RW +w-o a I Though the data requested here is not required by law,
it could prevent fraudulent reattachment of this form. SIGNER(S) OTHER THAN NAMED ABOVE H@dg H7-g @# d!*mh
01992 NATIONAL NOTARY ASSOCIATION 8236 Remmet Ave., P.O. Box 7184 Canoga Park, CA 91309-7184
I
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24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor
any monies due or to become due under it may be assigned by Contractor without the
prior consent of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
entire Agreement and understanding between the parties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and condifins of this Agreement.
S;aREn/hAELCSf\%Z c .COn/l (e-mail address)
If required by City, proper notarial acknowledgment of execution by contractor
must be attached. If a Corporation, Agreement must be signed by one corporate
officer from each of the following two groups.
*Group A.
Chairman,
President, or
Vice-president
**Group B.
Secretary,
Assist ant Secretary ,
CFO or Assistant Treasurer
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Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind the
corporation.
APPROVED AS TO FORM:
ROmR. BALL, City Attorney
By:
Bep&y City Attorney
6[”3 IOq.
.
ARTICLES OF INCORPORATION
OF
ESGIL CORPORATION
ONE: The name of this corporation is Esgil
Corporation.
TWO: The purpose of this corporation is to engage
in any lawful act or activity for which a corporation may
be organized under the general Corporation Law of Calif-
ornia other than the banking business, the trust company
business or the practice .of a profession permitted to be
incorporated by the California Corporations Code.
THiiEE: The name and address in this state of the
corporation's initial agent for service of process is:
James Gilshian 4601 Mt. Abernathy Avenue San Diego, California, 92117
FOUR: This corporation is authorized to issue only
one class of shares of stock which shall be designated
common stock. The total number of shares it is author-
ized to issue is 10,000.
FIVE: This corporation is a close corporation. All
of the corporation's issued shares of all classes shall be
held of record by not more than two persons.
SIX: The names and addresses of the persons who
are appointed to act as the initial directors of this
corporation are:
game Address
Richard James Esgate 731 Avalon Court San Diego , Calif. 92109
James Joseph Gilshian 4601 Mt. Abernathy Ave. 'San Diego, Calif. 92117
IN WITNESS WHEREOF. the undersigned, being all the
persons named above as the initial directors, have
executed these Articles of Incorporation A
James Joseph Gilshian
The undersigned, being all the persons named above
as the initial directors, declare that they are the
persons who executed the foregoing Articles of Incor-
poration, which execution is their .act and deed. -c
DATED: November 27, 1979
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,/.e .. :.+ ..A&&. , /: .;'
Richard Ja&s Esgaie