01-083 Kreines & Kreines
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ACCOUNT NO.
CONTRACT AMOUNT $29,785_
PURCHASE ORDER NO.
AGREEiYIENT
THIS AGREEMENT, made and entered into this L}'~~ay of QG`~ ~P~ L~ ~~- , by and between the
CITY OF CUPERTINO, a municipal corporation of California, hereinafter referred to as "CITY", and), Kreines &
Kreines, Inc. a consulting firm with offices at 58 Paseo M;irasol, Tiburon, California, 94920 hereinafter referred to
as "CONTRACTOR' ;
WiTNF.SSF.TH~
WHEREAS, CITY desires to retain consulting services to assist CITY by providing technical expertise in
wireless communications facilities planning and reviewing; a to-be-prepared by CITY, draft, wireless master plan,
and
WHEREAS, CITY desires to engage CONTRACTOI: to provide these services by reason of its qualifications
and experience for performing such services, and CONTRACTOR has offered to provide the required services on
the terms and in the manner set forth herein;
NOW, THEREFORE, in consideration of their mutual. covenants, the parties hereto agree as follows:
DEFINIT1nNS_
(a) The word "City" as used in this agreement :;hall mean and include all the territory lying within the
municipal boundaries of the City of Cupertino, Californi~i, as presently existing, plus all territory which may be
added thereto during the term of this agreement by annexation or otherwise.
(b) The term "City Manager" shall mean the duly appointed City Manager of the City of Cupertino,
California, or his designated representative.
(c) The term "City Attorney" shall mean the duly appointed City Attorney of the City of Cupertino,
California, or his designated representative.
(d) The term "City Clerk" shall mean the duly appointed City Clerk of the City of Cupertino, California, or
her designated representative.
PROJECT COORDINATION.
(a) Cam. The City Manager shall be representative of CITY for all purposes under this .
agreement. COLIN JUNG hereby is designated as the PR~~JECT MANAGER for the City Manager,
and shall supervise the progress and execution of this agreement.
(b) Contractor. CONTRACTOR shall assign a single PROJECT DIRECTOR to have
overall responsibility for the progress and execution of this agreement for CONTRACTOR. TED
ICREINES hereby is designated as the PROJECT DIRECTOR for CONTRACTOR. Should
circumstances or conditions subsequent to the execution of this agreement require a substitute
PROJECT DIRECTOR for any reason, the PROJECT DI]ECTOR designee shall be subject to the
prior written acceptance and approval of COLIN JUNG the PROJECT MANAGER.
DUTIES OF CONTRACTOR.
(a) Services to be Furnished. CONTRACTOR shall provide all specified services as set
forth below:
(1) See attached proposal (Exhibit A: Sc~~pe of Work)
(b) Laws to be Observed. CONTRACTOR shall:
(1) Procure all permits and licenses, pa;~ all charges and fees, and give all notices
which may be necessary and incident to the due and lawful prosecution of the services to be
performed by CONTRACTOR under this agreement;
(2) Endeavor to comply with federal, suite and local laws, ordinances, regulations,
orders and decrees in effect and publicly announced at the time services are rendered under this
agreement;
(3) Immediately report to the PROJECT MANAGER in writing any discrepancy or
inconsistency it discovers in said laws, ordinances, regulations, orders, and decrees mentioned above
in relation to any plans, drawing, specifications, or provisions of this agreement.
(c) Release of Reports and Information. Any reports, information, data, or other material
given to, or prepared or assembled by, CONTRACTOR or its subcontractors, if any, under this
agreement shall be the property of CITY and shall not be made available to any individual or
organization by CONTRACTOR or its subcontractors, if .any, without the prior written approval of
the City Manager.
The CITY acknowledges that the CONTRACTOR'S white paper and memoranda and other
documents are instruments of professional service, not products. The CITY recognizes that no such
documents should be subject to unauthorized re-use, that is, re-use without written authorization of
the CONTRACTOR to do so. Such authorization is essential because it requires the CONTRACTOR
to evaluate the document's applicability to new circumstances, not the least of which is passage of
time.
Notwithstanding the above, the CONTRACTOR acknowledges that City documents may be available
to the public under the Public Records Act.
(d) Copies of Reports and Information. If CITY requests additional copies of reports,
drawings, specifications or any other material which CONTRACTOR is required to furnish in limited
quantities as part of the services under this agreement, CONTRACTOR shall provide such additional
copies as are requested and CITY shall compensate CONTRACTOR for the costs of duplicating such
copies at CONTRACTOR'S cost.
(e) Qualifications of Contractor. CONTRACTOR represents that it is qualified to furnish
the services described under this agreement.
COMPENSATION.
(a) For the full performance of the services described herein by CONTRACTOR, CITY
shall pay CONTRACTOR based on fees shown in Exhibit ~~.
(b) Consultant shall submit monthly requisitions to City specifying the amount due for
services performed by Consultant's staff and a list of incw~red expenses for the past calendar month.
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Upon approval of the services performed and the requisition, City shall pay Consultant in accordance
with such requisition up to the agreed-upon maximum.
(c) Monthly billings will be payable within thirty (30) days of invoice date. A charge of 1%
per month will be added to all past due accounts.
(d) CONTRACTOR shall, at its sole discretiory have the right to suspend work on the
services specified in Exhibit A hereunder, if after written notice, the CITY has not paid any
requisition described above within 60 (sixty) days from sul:~mittal of requisition.
due.
CONTRACTOR shall recommence work upon payment of all requisitions then past
TERM.
The services to be performed hereunder shall commence on September _, 2001. The
completion date is dependent upon the length of the wireless planning process and schedule of
hearings. Therefore, this Agreement will continue u~rtil terminated by either party or until
completion.
6. TEMPORARY SUSPENSION.
The City Manager shall have the authority to suspend this agreement, wholly or in part, for
such period as he deems necessary due to unfavorable cor-ditions or to the failure on the part of the
CONTRACTOR to perform any provision of this agreement.
SUSPENSION; TERMINATION.
(a) Right to Suspend or Terminate. Either parry may suspend or terminate this agreement
for any reason by giving thirty (30) days' written notice. Upon receipt of such notice,
CONTRACTOR shall immediately discontinue his performance under this agreement.
(b) Payment. Upon such suspension or termination, CONTRACTOR shall be paid for all
services actually rendered to CITY to the date of such susF~ension or termination; provided, however,
if this agreement is suspended or terminated for fault of CONTRACTOR, CITY shall be obligated to
compensate CONTRACTOR only for that portion of CON'TRACTOR'S services which are of benefit
to CITY.
(c) Return of Materials. Upon such suspension ~~r termination, CONTRACTOR shall turn
over to the City Manager immediately any and all copies of studies, sketches, drawings,
computations, and other data, whether or not completed, prepared by CONTRACTOR or its
subcontractors, if any, or given to CONTRACTOR or its subcontractors, if any, in connection with
this agreement. Such materials shall become the permanent property of CITY. CONTRACTOR,
however, shall not be liable for CITY's use of incompletf; materials or for CITY's use of complete
documents if used for other than the project contemplated by this agreement.
8. INSPECTION. CONTRACTOR shall furnish CITY with every reasonable
opportunity for CITY to ascertain that the services of CONTRACTOR are being performed in
accordance with the requirements and intentions of this agreement. All work done and all materials
furnished, if any, shall be subject to the PROJECT MANAGER'S inspection and approval. The
inspection of such work shall not relieve CONTRACTOR of any of its obligations to fulfill its
agreement as prescribed.
9. INDEPENDENT JUDGMENT. Failure of CITY to agree with CONTRACTOR's
independent findings, conclusions, or recommendations, if the same are called for under this
agreement, on the basis of difference in matters of judgment shall not be construed as a failure on the
part of CONTRACTOR to meet the requirements of this agreement.
10. ASSIGNMENT; SUBCONTRACTORS; EMPLOYEES.
(a) Assignment. Both parties shall give their personal attention to the faithful performance
of this agreement and shall not assign, transfer, convey, or otherwise dispose of this agreement or any
right, title, or interest in or to the same or any part thereof without the prior written consent of the
other party, and then only subject to such terms and conditions as the other party may require. A
consent to one assignment shall not be deemed to be a consent to any subsequent assignment. Any
assignment without such approval shall be void and, at thy; option of the other party, shall terminate
this agreement and any license or privilege granted herein. This agreement and any interest herein
shall not be assignable by operation of law without the prior written consent of the other party.
(b) Subcontractors. It is agreed that this agreement is for the personal services of Kreines &
Kreines, Inc. and cannot be performed by any other person or organization.
(c) Subcontractors; Employees. CONTRACTOR shall be responsible for employing or
engaging all persons necessary to perform the services of CONTRACTOR hereunder. No
subcontractor of CONTRACTOR will be recognized by CITY as such; rather, all subcontractors are
deemed to be employees of CONTRACTOR, and it agrees to be responsible for their performance.
CONTRACTOR shall give its personal attention to the fulfillment of the provisions of this agreement
by all of its employees and subcontractors, if any, and shall keep the work under its control. If any
employee or subcontractor of CONTRACTOR fails or r~;fuses to carry out the provisions of this
agreement or appears to be incompetent or to act in a disorderly or improper manner, he shall be
discharged immediately from the work under this agreement on demand of the PROJECT
MANAGER.
11. NOTICES. All notices hereunder shall be given in writing and mailed, postage
prepaid, by certified mail, addressed as follows:
TO CITY: Office of the City Clerk
10300 Torre Avenue
Cupertino, CA 95014-0580
TO CONTRACTOR: Attention of the PROJECT DIRECTOR
at the address of
CONTRACTOR recited above.
12. INTEREST OF CONTRACTOR. CON~CRACTOR covenants that it presently has
no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would
conflict in any manner or degree with the performance of the services hereunder. CONTRACTOR
further covenants that, in the performance of this agreement, no subcontractor or person having such
an interest shall be employed. CONTRACTOR certifier that no one who has or will have any
financial interest under this agreement is an officer or employee of CITY. It is expressly agreed that,
in the performance of the services hereunder, CONTR~~CTOR shall at all times be deemed an
independent contractor and not an agent or employee of CI'['Y.
13. INDEMNITY. CONTRACTOR hereby agrees to indemnify and hold harmless
CITY, its officers, agents, and employees of and from:
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(a) Any and all damage to or destruction of the property of CITY, its officers, agents, or
employees occupied or used by or in the care, custody, or control of CONTRACTOR, caused by any
act or omission, negligent or otherwise, of CONTRACTOR or any subcontractor under this
agreement or of CONTRACTOR'S or any subcontractor's employees or agents.
(b) Any all claims and demands which may be made against CITY, its officers, agents, or
employees by reason of any injury to or death of or damage suffered or sustained by any employee or
agent of CONTRACTOR or any subcontractor under this agreement, however caused, excepting,
however, any such claims and demands which are the result of the sole negligence or willful
misconduct of city, its officers, agents, or employees;
(c) Any and all penalties imposed or damages sought on account of the violation of any law
or regulation or of any term or condition of any permit arising out of the negligent performance of its
services under this agreement.
(d) The CONTRACTOR is not responsible for the accuracy of data from sources other than
his/her own or from conclusions reached as a result of utili;:ing information supplied by third persons.
(e) The City agrees to provide legal defense to challenges to the adequacy and completeness
of the services provided. The CONTRACTOR shall assist the CITY in responding to such
challenges. If it is subsequently ruled by a court of juri:;diction that errors of facts, procedures or
scope have occurred and that these errors and/or omissions were the result of the CONTRACTOR'S
own work, then the CONTRACTOR shall be responsible for providing whatever remedies that may
be required to make the analysis adequate and complete.
14. WORKERS' COMPENSATION. CON7RACTOR certifies that it is aware of the
provisions of the Labor Code of the State of California which require every employer to be insured
against liability for workers' compensation or to undertake self-insurance in accordance with the
provisions of that code, and it certifies that it will comply with such provisions before commencing
the performance of the work of this agreement.
15. INSURANCE. CONTRACTOR, at its sole cost and expense, shall obtain and
maintain in full force and effect throughout the entire term of this agreement the insurance coverage
of at least a "B" rating as determined in accordance with the insurance industry standard, insuring not
only CONTRACTOR, but also (with the exception of worb:ers' compensation and employer's liability
insurance), CITY, its officers, agents, and employees, and each of them with respect to activities and
services performed by CONTRACTOR for or on behalf of CITY under the provisions of this
agreement.
Certificates of such insurance, preferably on the forms provided by CITY, shall be filed with
CITY concurrently with the execution of this agreement or, with CITY's approval, within ten (10)
days thereafter. Said certificates shall be subject to the approval of the City Attorney and shall
contain an endorsement stating that said insurance is primary coverage and will not be canceled or
altered by the insurer except after filing with the City Clerk thirty (30) days' written notice of such
cancellation or alteration, and that the City of Cupertino i:~ named as an additional insured. Current
certificates of such insurance shall be kept on file at all times during the term of this agreement with
the City Clerk.
16. AGREEMENT BINDING. The terms, covenants, and conditions of this agreement
shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns, and
subcontractors of both parties.
17. WAIVERS. The waiver by either parh~ of any breach or violation of any term,
covenant, or condition of this agreement or any provision, ordinance, or law shall not be deemed to be
a waiver of any other term, covenant, condition, ordinance, or law or of any subsequent breach or
violation of the same or of any other term, covenant, condition, ordinance, or law. The subsequent
acceptance by either party of any fee or other money whit:h may become due hereunder shall not be
deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant,
or condition of this agreement or of any applicable law or ordinance.
18. COSTS AND ATTORNEYS FEES. Th~~ prevailing party in any action brought to
enforce the terms of this agreement or arising out of this agreement may recover its reasonable costs
and attorneys' fees expended in connection with such an action from the other party.
19. EQUAL OPPORTUNITY EMPLOYMI3NT. Consultant represents that it is an
equal opportunity employer and it shall not discriminatf; against any subcontractor, employee or
applicant for employment because of race, religion, color natural origin, handicap, ancestry, sex or
age. Such non-discrimination shall include, but not be limited to, all activities related to initial
employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or
termination. Consultant shall also comply with all relevant provisions of City's Minority Business
Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in
effort or hereinafter enacted.
20. AGREEMENT CONTAINS ALL UNDERSTANDINGS. This document
represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all
prior negotiations, representations, or agreements, either written or oral. This document may be
amended only by written instrument, signed by both CI'I'~t and CONTRACTOR. All provisions of
this agreement are expressly made conditions. This agreement shall be governed by the laws of the
State of California.
IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this agreement the day
and year first above written.
CITY OF CUPERTINO
~°-~-~(
City Manager
ATTEST:
c~7'~'YLvU/~
City Clerk
APPROVED AS TO FORM:
City Attorney
CONTRACTOR
Kreines & Kreines, Inc.
~-I^ _
Name:
Ted Kreines, President
58 Paseo Mirasol, Tiburon, CA 94920
Address
415-435-9214
Telephone
Social Security number
or
Tax I.D. number
94-2689571
g/planning/misc/kreinescontract
Exhibit A: Kreines & ICreines, Inc. Scope of Work
Kreines & Kreines, Inc. proposes to undertake the tasks described below from a
wireless planning perspective except for tr.ose identified as being undertaken by
City staff.
A. Prepare "white paper" on City of Cupertino (City) scope of authority to
review health and safety issues involving radio frequency radiation
(including radiation of collocated facilities).
1. Product of this task: A White Paper (one camera-ready copy)
B. Prepare memorandum on:
1. City's scope of authority to regulate wireless facilities
2. Industry trends
3. Independent evaluation of ir-dustry-provided information
4. Product of this task: A memorandum (one camera-ready copy)
C. Prepare memorandum on:
1. A defensible foundation for ~~ermit denial
2. Mechanisms for obtaining collocation of facilities
3. 5-year evaluation of wireless facilities
4. Cost recovery
5. Product of this task: A memorandum (one camera-ready copy).
D. Prepare memorandum on market lease rates for facility sites.
1. Product of this task: A memorandum (one camera-ready copy)
E. Review Draft Plan prepared by City staff and prepare memorandum on
review of Draft Plan
1. Product of this task: A memorandum (one camera-ready copy).
F. Attend the following meetings in City of Cupertino
1. Two meetings with City staff=
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2. Two work sessions with City Commissions (4 hours each)
3. One Commission public hearing
4. City staff to provide location, arrangements and notice for all
meetings -
G. Prepare visual presentations for meetings described above
H. Telephone conferences with City staff (up to 20 hours of time).
Kreines & Kreines, Inc. would not be invol~~ed with, responsible for, or providing
any services other than those listed in Tasks A through H above.
Kreines & Kreines, Inc. assumes that the City of Cupertino will obtain legal
advice and engineering advice from other Experts retained by the City of
Cupertino, should the City believe such advice to be necessary.
It is understood that other tasks, including (but not limited to): additional trips to
the City of Cupertino; additional reports or memorandum; revisions to reports or
memorandum; and/ or additional telephone consultations may be necessary, but
they are not included in the above cost estimate. These tasks could be provided
on atime-and-materials basis.
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Cost Estimate
The following fixed fee is for Tasks A thro~zgh H in the Scope of Work.
T. S. Word- Total
Kreines Kreines rocessin Gra hits Estimated Cost
A. Prepare "white paper' on City of 7 2 4 2
Cupertino (City) scope of authority to
review health and safety issues
involving radio frequency radiation
(including radiation of collocated
facilities
B. Pre are memorandum on: 4
1. City's scope of authority to regulate 4 1 1
wireless facilities
2. Industr trends 7 2 1
3. Independent evaluation of 7 4 2
industr - rovided information
C. Pre are memorandum on: 4
1. A defensible.foundation for permit 5 3 1
denial
2. Mechanisms for obtaining 2 1 1
collocation of facilities
3. 5-year evaluation of wireless 2 1 1
facilities
4. Cost recover 3 1 1
D. Prepare memorandum on market lease 3 2 1 1
rates for facili sites
E. Review Draft Plan prepared by City 14 5 4 2
staff and prepare memorandum on
review of Draft Plan
F. Attend the following meetings in City
of Cu ertino
1. Two meetin s with Ci staff 12
2. Two work sessions with City 16
Commissions 4 hours each
3. One Commission ublic hearin 6
G. Prepare visual presentations for 4 4 2 5
meetin s described above
H. Tele hone conferences with Ci staff 20
Total Hours 112 26 19 18
Hourl Rate $200 $150 $65 $125
Total Estimated Cost $22,400 $3,900 $1,235 $2,250 $29,785
Timetable
The following timetable gives the length of time to complete a task from the
receipt by I<reines & ICreines, Inc. of an agreement to begin work on this project.
From Recei t of A reement
A. Prepare "white paper" on City of Cupertino (C:ity) scope
of authority to review health and safety issues involving
radio frequency radiation (including radiation of
collocated facilities Three weeks
B. Pre are memorandum on: Three weeks
1. Ci 's sco e of authori to re late wireless facilities
2. Industr trends
3. Independent evaluation of industry-provided
information
C. Pre are memorandum on: Four weeks
1. A defensible foundation for ermit denial
2. Mechanisms for obtainin collocation of facilities
3. 5- ear evaluation of wireless facilities
4. Cost recover
D. Prepare memorandum on market lease rates for facility
sites Four weeks
E. Review Draft Plan prepared by City staff and }prepare -
memorandum on review of Draft Plan Two weeks from receipt of Draft Plan
F. Attend the followin meetin sin Ci of Cu ertino
1. Two meetin s with Ci staff To be mutuall a reed u on
2. Two work sessions with City Commissions (4 hours
each To be mutually agreed upon
3. One Commission ublic hearin To be mutuall a reed u on
G. Prepare visual presentations for meetings described
above
H. Tele hone conferences with Ci staff To be mutuall a reed u on
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