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delays in the progress of the work from any cause, and Consultant agrees to accept in full
satisfaction of such hindrances and delays any extension of time that the City of Nashua may
provide.

INSURANCE Consultant shall carry and maintain in effect during the performance of services
under this contract:

> General Liability insurance in the amount of $1,000,000 per occurrence; $2,000,000
aggregate;
> $1,000,000 Combined Single Limit Automobile Liability;
*Coverage must include all owned, non-owned and hired vehicles.
> $1,000,000 Profession Liability;
> and Workers' Compensation Coverage in compliance with the State of New
Hampshire statutes, $100,000/$500,000/$100,000.

Consultant shall maintain in effect at all times during the performance under this contract all
specified insurance coverage with insurers. None of the requirements as to types and limits to be
maintained by Consultant are intended to and shall not in any manner limit or qualify the
liabilities and obligations assumed by Consultant under this contract. The City of Nashua shall
not maintain any insurance on behalf of Consultant. Consultant shall require Subcontractors to
carry appropriate and lawful amounts of insurance for the services they are providing. Consultant
will ensure compliance with this section and shall receive valid certificates of insurance from all
Subcontractors as proof that coverage is in place.

Consultant will provide the City of Nashua with certificates of insurance for coverage as listed
below and endorsements affecting coverage required by the contract within ten calendar days
after the City of Nashua issues the notice of award. The City of Nashua requires thirty days
written notice of cancellation or material change in coverage. The certificates and endorsements
for each insurance policy must be signed by a person authorized by the insurer and who is
licensed by the State of New Hampshire. General Liability and Auto Liability policies must
name the City of Nashua as an additional insured and reflect on the certificate of
insurance. Consultant is responsible for filing updated certificates of insurance with the City of
Nashua's Risk Management Department during the life of the contract.

> All deductibles and self-insured retentions shall be fully disclosed in the certificate(s) of
insurance.
> If aggregate limits of less than $2,000,000 are imposed on bodily injury and
property damage, Consultant must maintain umbrella liability insurance of at least
$1,000,000. All aggregates must be fully disclosed on the required certificate of
insurance.
> _ The specified insurance requirements do not relieve Consultant of its responsibilities
or limit the amount of its liability to the City of Nashua or other persons, and Consultant is
encouraged to purchase such additional insurance, as it deems necessary.
>» The insurance provided herein is primary, and no insurance held or owned by the City
of Nashua shall be called upon to contribute to a loss.
> Consultant is responsible for and required to remedy all damage or loss to any
property, including property of the City of Nashua, caused in whole or part by
Consultant or anyone employed, directed, or supervised by Consultant.

INDEMNIFICATION Regardless of any coverage provided by any insurance, Consultant agrees
to indemnify and shall hold harmless the City of Nashua, its officials, employees and authorized
representatives and their employees from and against any and all actions, legal or administrative
proceedings, arbitrations, damages, liabilities, interest, reasonable attorney’s fees, costs and

GC 6 of 11

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expenses of any kind or nature in any manner caused, occasioned, or contributed by reason of any
negligent act, omission, or fault or willful misconduct, whether active or passive, of Consultant or
of anyone acting under its direction or control or on its behalf in connection with or incidental to
the performance of this contract. Consultant’s indemnity and hold harmless obligations, or
portions thereof, shall not apply to liability caused by the sole negligence or willful misconduct of
the party indemnified or held harmless. Notwithstanding the above, under no circumstances shall
Consultant be responsible for the negligence or intentional acts of City of Nashua.

FISCAL CONTINGENCY All payments under this contract are contingent upon the availability to
the City of Nashua of the necessary funds. This contract shall terminate and the City of Nashua's
obligations under it shall be extinguished at the end of any fiscal year in which the City of Nashua
fails to appropriate monies for the ensuing fiscal year sufficient for the performance of this
contract.

Nothing in this contract shall be construed to provide Consultant with a right of payment over any
other entity. Any funds obligated by the City of Nashua under this contract that are not paid to
Consultant shall automatically revert to the City of Nashua’s discretionary control upon the
completion, termination, or cancellation of the agreement. The City of Nashua shall not have any
obligation to re-award or to provide, in any manner, the unexpended funds to Consultant.
Consultant shall have no claim of any sort to the unexpended funds.

The City of Nashua shall provide notice to Consultant in the event the City of Nashua fails to
appropriate funds, and in such event Consultant’s obligations under the contract shall
immediately cease, except for completion of any services paid in advance if any.

COMPENSATION Review by the City of Nashua of Consultant's submitted monthly invoice forms
and progress reports for payment will be promptly accomplished by the City of Nashua. If there
is insufficient information, the City of Nashua may require Consultant to submit additional
information. Unless the City of Nashua, in its sole discretion, decides otherwise, the City of
Nashua shall pay Consultant in full within 30 days of approval of the submitted monthly invoice
forms and progress reports.

COMPLIANCE WITH APPLICABLE LAWS Consultant, at all times, shall fully and completely
comply with all applicable local, state and federal laws, statutes, regulations, ordinances, orders,
or requirements of any sort in carrying out the obligations of this contract, including, but not
limited to, all federal, state, and local accounting procedures and requirements, all immigration
and naturalization laws, and the Americans With Disabilities Act. Consultant shall, throughout
the period services are to be performed under this contract, monitor for any changes to the
applicable laws, statutes, regulations, ordinances, orders, or requirements, shall promptly notify
the City of Nashua in writing of any changes to the same relating to or affecting this contract, and
shall submit detailed documentation of any effect of the change in terms of both time and cost of
performing the contract.

NONDISCRIMINATION If applicable or required under any federal or state law, statute, regulation,
order, or other requirement, Consultant agrees to the following terms. Consultant will not
discriminate against any employee or applicant for employment because of physical or mental
handicap in regard to any position for which the employee or applicant for employment is
qualified. Consultant agrees to take affirmative action to employ, advance in employment, or to
otherwise treat qualified, handicapped individuals without discrimination based upon physical or
mental handicap in all employment practices, including but not limited to the following:
employment, upgrading, demotion, transfer, recruitment, advertising, layoff, termination, rates of
pay, or other forms of compensation and selection for training, including apprenticeship.

GC 7 of 11

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Without limitation of the foregoing, Consultant's attention is directed to “Title 41”Public
Contracts and Property Management” C.F.R. Subtitle B “Other Provisions Relating to Public
Contracts” Section 60 “Cffice of Federal Contract Compliance Programs, Equal Employment,
Department of Labor” which, by this reference, is incorporated in this contract.

Consultant agrees to assist disadvantaged business enterprises in obtaining business opportunities
by identifying and encouraging disadvantaged suppliers, consultants, and sub consultants to
participate to the extent possible, consistent with their qualification, quality of work, and
obligation of Consultant under this contract.

In connection with the performance of work under this contract, Consultant agrees not to
discriminate against any employee or applicant for employment because of race, creed, color,
national origin, sex, age, or sexual orientation. This agreement includes, but is not limited to, the
following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising,
layoff or termination, rates of pay or other forms of compensation, and selection for training,
including apprenticeship.

Consultant agrees, if applicable, to insert these provisions in all subcontracts, except for
subcontracts for standard commercial supplies or raw materials. Any violation of any applicable
provision by Consultant shall constitute a material breach of the contract.

ENDORSEMENT Consultant shall seal and/or stamp and sign professional documents including
drawings, plans, maps, reports, specifications, and other instruments of service prepared by
Consultant or under its direction as required under the laws of the State of New Hampshire.

ASSIGNMENT, TRANSFER, DELEGATION, OR SUBCONTRACTING Consultant shall not assign,
transfer, delegate, or subcontract any rights, obligations, or duties under this contract without the
prior written consent of the City of Nashua. Any such assignment, transfer, delegation, or
subcontracting without the prior written consent of the City of Nashua is void. Any consent of
the City of Nashua to any assignment, transfer, delegation, or subcontracting shall only apply to
the incidents expressed and provided for in the written consent and shall not be deemed to be a
consent to any subsequent assignment, transfer, delegation, or subcontracting. Any such
assignment, transfer, delegation, or subcontract shall require compliance with or shall incorporate
all terms and conditions set forth in this agreement, including all incorporated Exhibits and
written amendments or modifications. Subject to the foregoing provisions, the contract inures to
the benefit of, and is binding upon, the successors and assigns of the parties.

CITY INSPECTION OF CONTRACT MATERIALS The books, records, documents and accounting
procedures and practices of Consultant related to this contract shall be subject to inspection,
examination and audit by the City of Nashua, including, but not limited to, the contracting
agency, the Board of Public Works, Corporation Counsel, and, if applicable, the Comptroller
General of the United States, or any authorized representative of those entities.

DISPOSITION OF CONTRACT MATERIALS Any books, reports, studies, photographs, negatives or
other documents, data, drawings or other materials, including but not limited to those contained in
media of any sort (e.g., electronic, magnetic, digital) prepared by or supplied to Consultant in the
performance of its obligations under this contract shall be the exclusive property of the City of
Nashua and all such materials shall be remitted and delivered, at Consultant's expense, by
Consultant to the City of Nashua upon completion, termination, or cancellation of this contract.
Alternatively, if the City of Nashua provides its written approval to Consultant, any books,
reports, studies, photographs, negatives or other documents, data, drawings or other materials
including but not limited to those contained in media of any sort (e.g., electronic, magnetic,
digital) prepared by or supplied to Consultant in the performance of its obligations under this

GC 8 of 11

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contract must be retained by Consultant for a minimum of four years after final payment is made
and all other pending matters are closed. If, at any time during the retention period, the City of
Nashua, in writing, requests any or all of the materials, then Consultant shall promptly remit and
deliver the materials, at Consultant's expense, to the City of Nashua. Consultant shall not use,
willingly allow or cause to have such materials used for any purpose other than the performance
of Consultant's obligations under this contract without the prior written consent of the City of
Nashua.

PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS Consultant expressly agrees that all
documents ever submitted, filed, or deposited with the City of Nashua by Consultant (including
those remitted to the City of Nashua by Consultant pursuant to paragraph 20), unless designated
as confidential by a specific statue of the State of New Hampshire, shall be treated as public
records and shall be available for inspection and copying by any person, or any governmental
entity.

No books, reports, studies, photographs, negatives or other documents, data, drawings or other
materials including but not limited to those contained in media of any sort (e.g., electronic,
magnetic, digital) prepared by or supplied to Consultant in the performance of its obligations
under this contract shall be the subject of any application for a copyright or patent by or on behalf
of Consultant. The City of Nashua shall have the right to reproduce any such materials.

Consultant agrees to indemnify and to hold harmless the City of Nashua, its representatives, and
employees from any claim or action seeking to impose liability, costs, and reasonable attorney
fees incurred as a result of or in connection with any claim, whether rightful or otherwise, that
any material prepared by or supplied to Consultant infringes any copyright or that any equipment,
material, or process (or any part thereof) specified by Consultant infringes any patent.

Consultant shall have the right, in order to avoid such claims or actions, to substitute at its
expense non-infringing materials, concepts, products, or processes, or to modify such infringing
materials, concepts, products, or processes so they become non-infringing, or to obtain the
necessary licenses to use the infringing materials, concepts, products, or processes, provided that
such substituted or modified materials, concepts, products, or processes shall meet all the
requirements and be subject to all the terms and conditions of this contract.

FINAL ACCEPTANCE Upon completion of all work under the contract, Consultant shall notify the
City of Nashua in writing of the date of the completion of the work and request confirmation of
the completion from the City of Nashua. Upon receipt of the notice, the City of Nashua shall
confirm to Consultant in writing that the whole of the work was completed on the date indicated
in the notice or provide Consultant with a written list of work not completed. With respect to
work listed by the City of Nashua as incomplete, Consultant shall promptly complete the work
and the final acceptance procedure shall be repeated. The date of final acceptance of a project by
the City of Nashua shall be the date upon which the Board of Public Works or other designated
official accepts and approves the notice of completion.

TAXES Consultant shall pay all taxes, levies, duties, and assessments of every nature due in
connection with any work performed under the contract and make any and all payroll deductions
required by law. The contract sum and agreed variations to it shall include all taxes imposed by
law. Consultant hereby indemnifies and holds harmless the City of Nashua from any liability on
account of any and all such taxes, levies, duties, assessments, and deductions.

NON-WAIVER OF TERMS AND CONDITIONS None of the terms and conditions of this contract
shall be considered waived by the City of Nashua. There shall be no waiver of any past or future
default, breach, or modification of any of the terms and conditions of the contract unless
expressly stipulated to by the City of Nashua in a written waiver.

GC 9 of 11

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RIGHTS AND REMEDIES The duties and obligations imposed by the contract and the rights and
remedies available under the contract shall be in addition to and not a limitation of any duties,
obligations, rights, and remedies otherwise imposed or available by law.

PROHIBITED INTERESTS Consultant shall not allow any officer or employee of the City of
Nashua to have any indirect or direct interest in this contract or the proceeds of this contract.
Consultant warrants that no officer or employee of the City of Nashua has any direct or indirect
interest, whether contractual, noncontractual, financial or otherwise, in this contract or in the
business of Consultant. If any such interest comes to the attention of Consultant at any time, a
full and complete disclosure of the interest shall be immediately made in writing to the City of
Nashua. Consultant also warrants that it presently has no interest and that it will not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the performance of
services required to be performed under this contract. Consultant further warrants that no person
having such an interest shall be employed in the performance of this contract. If City of Nashua
determines that a conflict exists and was not disclosed to the City of Nashua, it may terminate the
contract at will or for cause in accordance with paragraph 8.

In the event Consultant (or any of its officers, partners, principals, or employees acting with its
authority) is convicted of a crime involving a public official arising out or in connection with the
procurement of work to be done or payments to be made under this contract, City of Nashua may
terminate the contract at will or for cause in accordance with paragraph 8. Upon termination,
Consultant shall refund to the City of Nashua any profits realized under this contract, and
Consultant shall be liable to the City of Nashua for any costs incurred by the City of Nashua in
completing the work described in this contract. At the discretion of the City of Nashua, these
sanctions shall also be applicable to any such conviction obtained after the expiration or
completion of the contract.

Consultant warrants that no gratuities (including, but not limited to, entertainment or gifts) were
offered or given by Consultant to any officer or employee of the City of Nashua with a view
toward securing a contract or securing favorable treatment with respect to the awarding or
amending or making of any determinations with respect to the performance of this contract. If
City of Nashua determines that such gratuities were or offered or given, it may terminate the
contract at will or for cause in accordance with paragraph 8.

The rights and remedies of this section shall in no way be considered for be construed as a waiver
of any other rights or remedies available to the City of Nashua under this contract or at law.

THIRD PARTY INTERESTS AND LIABILITIES The City of Nashua and Consultant, including any
of their respective agents or employees, shall not be liable to third parties for any act or omission
of the other party. This contract is not intended to create any rights, powers, or interest in any
third party and this agreement is entered into for the exclusive benefit of the City of Nashua and
Consultant.

SURVIVAL OF RIGHTS AND OBLIGATIONS The rights and obligations of the parties that by their
nature survive termination or completion of this contract shall remain in full force and effect.

SEVERABILITY — In the event that any provision of this contract is rendered invalid or
unenforceable by any valid act of Congress or of the New Hampshire legislature or any court of
competent jurisdiction, or is found to be in violation of state statutes or regulations, the invalidity
or unenforceability of any particular provision of this contract shall not affect any other provision,
the contract shall be construed as if such invalid or unenforceable provisions were omitted, and
the parties may renegotiate the invalid or unenforceable provisions for sole purpose of rectifying
the invalidity or unenforceability.

GC 10 of 11

30. MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT This contract constitutes the entire

31.

contract between the City of Nashua and Consultant. The parties shall not be bound by or be
liable for any statement, representation, promise, inducement, or understanding of any kind or
nature not set forth in this contract. No changes, amendments, or modifications of any terms or
conditions of the contract shall be valid unless reduced to writing and signed by both parties.

CHOICE OF LAW AND VENUE This contract shall be governed exclusively by the laws of the
State of New Hampshire and any claim or action brought relating to this contract, the work
performed or contracted to be performed thereunder, or referable in anyway thereto shall be
brought in Hillsborough County (New Hampshire) Superior Court Southern Judicial District or in
the New Hampshire 9th Circuit Court—Nashua and not elsewhere.

Neither the City of Nashua nor Consultant shall be liable to the other or shall make any claim for
any incidental, indirect or consequential damages arising out of or connected to this contract or
the performance of the services on this project. This mutual waiver includes, but is not limited to,
damages related to loss of use, loss of profits, loss of income, unrealized energy savings,
diminution of property value or loss of reimbursement or credits from governmental or other
agencies.

GC 11 of 11

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\ THE CITY OF NASHUA “The Gate City’

Administrative Services

Purchasing Department

August 8, 2019
Memo #20-020

TO: MAYOR DONCHESS
FINANCE COMMITTEE

SUBJECT: DPW FACILITY — CONSTRUCTION MANAGER (VALUE: $25,000)
DEPARTMENT: 161 STREETS; FUND: CAPITAL

Please see the attached communication from Stephen Dookran, P.E., City Engineer, dated August 8,
2019 for information related to this contract.

Pursuant to § 5-78 Major purchases (greater than $10,000) A. All supplies and contractual services,
except as otherwise provided herein, when the estimated cost thereof shall exceed $10,000 shall be
purchased by formal, written contract from the lowest responsible bidder, after due notice inviting bids.
The City Engineer, Board of Public Works (July 27, 2019 Special BPW meeting) and the Purchasing

Department recommend the award of this contract in an amount of $25,000 to Harvey Construction
Corporation of Bedford, NH.

Respectfully,

Dan Kooken
Purchasing Manager

Cc: S Dookran L Fauteux

229 Main Street e Nashua, New Hampshire 03061 e Phone (603) 589-3330 e Fax (603) 589-3233 |

Motion:

Discussien:

City of Nashua, Public Works Division

Dan Kookan, Purchasing Manager Meeting Date: August 8, 2019

Lisa Fauteux, Director Public Works
Administration

DPW Facility Construction Manager

To approve the contract for professional services for the Division of Public Works Facilities
Construction Management Services with Harvey Construction Corporation for a
preconstruction fee payment of $25,000, to be deferred until a project is defined and
approved by the Board of Public Work and a construction management fee of 2.9% of the
cost of the work. Funding for this contract will be through Department: 161 Streets; Fund:
Capital: Activity: Infrastructure Improvements

On June 27, 2019 at a Special Board of Public Works meeting the Board voted to support an
RFQ for the provision of Construction Management Services for consulting expertise in
constructing a DPW facility or renovating existing facilities. The initial phase of this multi-
phased contract will be to actively participate as part of the working group to develop a
project with a corresponding plan that will allow the leaders of the City of Nashua to be
comfortable in authorizing a City Bond.

In response to the RFQ three firms were selected for interview by the DPW Facilities
Building Committee. The Committee selected Harvey Construction Corporation for
Construction Manager Services. The Board of Public Works voted to approve the contract
with Harvey Construction Corporation at its July 30, 2019 meeting

The Contract Manager will work in a highly collaborative manner with stakeholders to help
provide pre-construction services and ultimately oversee the construction to deliver the
project per the approved schedule and budgetary requirements without sacrificing quality of
product and scope.

The rational of bringing on a Construction Manager now is to help the Division of Public
Works develop a proposal using accurate cost data and having a third party expert outline the
best possible means and methods to achieving the City of Nashua’s goals; therefore, having a
strong Pre-Construction Services component is integral for the Construction Manager. The
City of Nashua is seeking technical expertise early on in the process to help evaluate the best
pathway to move forward both from a life cycle perspective as well as an operations and
maintenance perspective. The Construction Manager will play an active role from the very
beginning to ensure a project advances to a construction phase.

Harvey Construction Corporation is believed to be the best qualified firm for this project.
Division of Public Works is requesting approval of the Contract for Professional Services
with Harvey Construction Corporation for the Division of Public Works Facilities
Construction Management Services.

CONTRACT FOR PROFESSIONAL SERVICES

DIVISION OF PUBLIC WORKS FACILITIES
CONSTRUCTION MANAGEM ENT SERVICES

A. CONTRACT BETWEEN

AO

THE CiTY OF NASHUA, 229 MAIN STREET, CITY HALL, Nastia, NW 03060
AND

HIARVEY CONSTRUCTION CORPORATION
and its successors, transferees and assignees
NAME AND TITLE OF SERVICE PROVIDER

10 HARVEY ROAD, BEDFORD, MH 03116
ADDRESS OF SERVICE PROVIDER

WHEREAS, the City of Nashua, a political subdivision of the State of New Hampshire, from time
to time requires the services of a Service Provider ; and

WHEREAS, it is deemed that the services of a Service Provider herein specified are both necessary
and desirable and in the best interests of the City of Nashua; and

WHEREAS, Service Provider represents they are duly qualified, equipped, staffed, ready, willing
and able to perform and render the services hereinafter described;

Now, THEREFORE, in consideration of the agreements herein made, the parties mutually agree as
follows:

i. DOCUMENTS INCCRPGRATED. The following exhibits are by this reference incorporated herein and
are made part of this contract:

Exhibit A: General Conditions for Contracts
Exhibit B: Timeline
Exhibit C: Certificate of Insurance

The Contract represents the entire and integrated agreement between the parties and supersedes prior
negotiations, proposals, representations or agreements, either written or oral. Any other documents which
are not listed in this Article are not part of the Contract.

In the event of a conflict between the terms of the Proposal and the terms of this Agreement, a written
change order and/or fully executed City of Nashua Purchase Order, the terms of this Agreement, the
written change order or the fully executed City of Nashua Purchase Order shall control over the terms of
the Proposal.

2, WGRK TO BE PERFORMED Except as otherwise provided in this contract, Service Provider shall

furnish all services, equipment, and materials and shall perform all operations necessary and required to
carry out and perform in accordance with the terms and conditions of the contract the work described.

AG 1 of3

Pre-Construction Phase Services
The Construction Manager (CM) shall be an integra! team member, along with the A/E firm and city
stakeholders. The detailed pre-construction services shall include the following:

@

Meet with the Owner and A/E team to review the program, material, design and operational intent
of the project.
Review Current DPW facilities and provide cost estimates on bringing the facilities up to a state
of good repair including providing a life cycle cost analysis
Attend project meetings, as required. Attend public meetings as required with the Gwner and
A/E team and/or assist in developing presentations and any supporting documents required for the
meetings.
Review design drawings and specifications for constructability and provide written comments of
conflicts, interference and other potential problems. Notify Owner and A/E team of ary items
that do not meet building code(s) and/or that may be technically deficient. !t should be assumed
there will be reviews of the following deliverables:

o Conceptual Design

o Schematic Design

0 Design Development

o Construction Documents
Provide recommendations on construction feasibility to minimize effects on labor and material,
including estimates on alternative designs or materials.
Provide cost estimates as required. The cost estimates shall solicit subcontractor input. Assume
the following A/E team submissions to be estimated.

o Conceptual Design

o Schematic Design

o Design Development
Participate in budget reconciliation meeting with Owner and A/E team for each estimate.
Provide a list of proposed subcontractors for each portion of the work prior to bidding.
Produce bid packages for all subcontractors, arrange pre-bid conferences, obtain a minimum of
three (3) bids for each major division of work and de-scope bidders.
Respond to bidder questions, submit RFI’s to the Owner and A/E team, and issue
clarifications/addenda to bidders as necessary.

Construction Phase Services

The Construction Manager (CM) will be providing management, quality control and administrative tasks
needed to construct the building in an expeditious and economical manner. The CM shall assist the
Owner and A/E team in delivering a project that is on schedule, budget, scope and quality. The detailed
Construction Services shall include the following:

Prepare, monitor and update a site utilization plan and project phasing plan. The plans should
include, but not be limited te the following:
o Site limit fencing enclosure
Gate locations
Delivery routing
Site trailer location
Lay-down, site storage and dumpster locations
o Pedestrian access routes
Develop, monitor and update a site specific safety program. Report deficiencies or issues to the
Owner immediately.
Develop, monitor and update a construction schedule including major activities, equipment lead
times, shop drawing review periods, installation times and accompanying dates.

Qaooo°o0

AG Zz of 3