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CITY COUNCIL AGENDA ITEM NO. 8

Meeting Date: September 25, 2007

Subject/Title: Adopt a Resolution approving and authorizing the City Manager or designee to execute a Professional Services Agreement with GIS Planning Inc. in an amount not to exceed $29,900 for a web-based site selection and property locator tool called ZoomProspector.

Prepared by: Courtland Holman, Economic Development Project Manager

Submitted by: Howard Sword, Director of Community Development

RECOMMENDATION
Adopt a Resolution approving and authorizing the City Manager or designee to execute a Professional Services Agreement with GIS Planning Inc. in an amount not to exceed $29,900 for a web-based site selection and property locator tool called ZoomProspector.

PREVIOUS ACTION
None

BACKGROUND
In 2003, the City was looking for an ‘off the shelf’ web-based property locator to assist the development and business community in locating their business within the City of Brentwood. At that time, the existing web-based property locator tools were limited in scope, data and not user friendly.

In 2004, the City contracted with a local firm to create a web-based property locator tool. This system was designed to allow for external users to easily locate properties (land or buildings) by zone, price, and size for both lease and purchase. It also provided a link to updated demographics, as well as identified brokers representing specific properties, and provided a method for maintaining property information by area brokers and city staff.

During the past few years, staff has realized that this system was limited in terms of its technology, and required a significant amount of staff time to maintain over the long term. Rather than invest in updating this system, staff researched more up-to-date, turnkey solutions to provide this offering to site selectors and businesses. The research and reference checks led staff to turn to GIS Planning, Inc., the leader in providing online site selection solutions to government agencies.

GIS Planning’s ZoomProspector software is a web-based application that many cities and regional economic development groups use, including Silicon Valley, San Francisco, Sacramento, Vallejo, Stockton and Pleasant Hill. Following are some of its main features:

• Available Property Site Selection Query – users will be able to search for available commercial property based on user-defined information such as minimum and maximum size and type of use.

• Property Reports – users will be able to generate available property reports.
• Dynamic Demographic Analysis – users will be able to generate user-defined demographic analysis from any available property within the Project Geography.
• License of Demographic Data from Applied Geographic Solutions – data will include demographics, consumer expenditures and business/workforce data.
• Dynamic Business Reports – users will be able to generate user-defined business reports from any available property within the Project Geography.
• Dynamic Mapping – users will have the ability to zoom in/out, pan and identify information on the map.
• Online Management system for Real Estate Professionals to list Properties – users who are authorized real estate professionals marketing available commercial property will be able to add, delete and update information about their properties through a user-friendly web page or site using a login and password system.
• Staff Online Management System – City staff will have complete access to the property data for addition, deletion and maintenance via a web-hosted system. Staff will also use the application services and/or web site to give real estate professionals access to use the application services for the purpose of reviewing, adding, deleting and updating information about their properties.
• Application Interface – The application interface will include color customization and insertion of the City of Brentwood logo.

GIS Planning’s ZoomProspector will be hosted and maintained at GIS Planning Inc. location and linked to the City’s web site.

FISCAL IMPACT
The development and hosting of the initial term (one year) through this professional services agreement will not exceed $29,900. This amount has been included in the adopted 2007/08 Economic Development Operating Budget. The City Manager may extend the Agreement for an additional one year period at the renewal fee of $26,800, as specified in the professional services agreement. At the end of the one year extension, the City Manager may extend the Agreement for up to four more additional one (1) year periods in an amount not to exceed fifty thousand dollars ($50,000) per Agreement year, with renewal fees to be agreed upon by the parties. Renewals will be based upon a satisfactory review of Consultant's performance, City needs, and appropriation of funds by the City Council. Except as to the first extension period, the parties will prepare a written amendment indicating the effective date and length of each extension period. The annual renewal fee associated with this product has been included in the 2008/09 Economic Development Operating Budget. If adopted, future annual renewals will be budgeted as part of the bi-annual City budget process.

Attachment:
Resolution
Professional Services Agreement

RESOLUTION NO.

APPROVE, AND AUTHORIZE THE CITY MANAGER OR DESIGNEE TO EXECUTE, A PROFESSIONAL SERVICES AGREEMENT WITH GIS PLANNING INC. IN AN AMOUNT NOT TO EXCEED $29,900 FOR A WEB-BASED SITE SELECTION AND PROPERTY LOCATIOR TOOL CALLED ZOOMPROSPECTOR.

WHEREAS, in 2004, the City contracted with a local firm to create a web based property locator tool;

WHEREAS, this system was designed to allow for the external users to easily locate properties (land or buildings) by zone, price, and size for both lease and purchase. It also provided a link to updated demographics, as well as identified brokers representing specific properties, and provided a method for maintaining property information by area brokers and city staff;

WHEREAS, during the past few years, staff has realized that this system was limited in terms of its technology, and required a significant amount of staff time to maintain over the long term. Rather than invest in updating this system, staff researched more up-to-date, turnkey solutions to provide this offering to site selectors and businesses. The research and reference checks led staff to turn to GIS Planning Inc., the leader in providing online site selection solutions to government agencies;

WHEREAS, GIS Planning’s ZoomProspector software is a web based application that many cities and regional economic development groups use, including Silicon Valley, San Francisco, Sacramento, Vallejo, Stockton and Pleasant Hill. Following are some of its main features:
• Available Property Site Selection Query – users will be able to search for available commercial property based on user-defined information such as minimum and maximum size and type of use.
• Property Reports – users will be able to generate available property reports.
• Dynamic Demographic Analysis – users will be able to generate user-defined demographic analysis from any available property within the Project Geography.
• License of Demographic Data from Applied Geographic Solutions – data will include demographics, consumer expenditures and business/workforce data.
• Dynamic Business Reports – users will be able to generate user-defined business reports from any available property within the Project Geography.
• Dynamic Mapping – users will have the ability to zoom in/out, pan and identify information on the map.
• Online Management system for Real Estate Professionals to list Properties – users who are authorized real estate professionals marketing available commercial property will be able to add, delete and update information about their properties through a user-friendly web page or site using a login and password system.
• Staff Online Management System – City staff will have complete access to the property data for addition, deletion and maintenance via a web-hosted system. Staff will also use the application services and/or web site to give real estate professionals access to use the application services for the purpose of reviewing, adding, deleting and updating information about their properties.
• Application Interface – The application interface will include color customization and insertion of the City of Brentwood logo;
WHEREAS, the GIS Planning’s ZoomProspector will be hosted and maintained at GIS Planning Inc. location and linked to the City’s web site;

WHEREAS, the development and hosting of the initial term (one year) through this professional services agreement will not exceed $29,900, this amount has been included in the adopted 2007/08 Economic Development Operating Budget. The City Manager may extend the Agreement for an additional one year period at the renewal fee of $26,800, as specified in the professional services agreement. At the end of the one year extension, the City Manager may extend the Agreement for up to four more additional one (1) year periods in an amount not to exceed fifty thousand dollars ($50,000) per Agreement year, with renewal fees to be agreed upon by the parties. Renewals will be based upon a satisfactory review of Consultant's performance, City needs, and appropriation of funds by the City Council. Except as to the first extension period, the parties will prepare a written amendment indicating the effective date and length of each extension period. The annual renewal fee associated with this product has been included in the 2008/09 Economic Development Operating Budget. If adopted, future annual renewals will be budgeted as part of the bi-annual City budget process;

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood hereby approves, and authorizes the City Manager or designee to execute a Professional Services Agreement with GIS Planning Inc. in an amount not to exceed $29,900 for a web-based site selection and property locator tool called ZoomProspector.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the_____________ 2007 by the following vote:

AGREEMENT FOR PROFESSIONAL SERVICES

THIS AGREEMENT, made and entered into this ____ day of __________, 2007 by and
between the CITY OF BRENTWOOD, a municipal corporation existing under the laws of the State of California, hereinafter referred to as “City”, and GIS Planning, Inc, a California Corporation hereinafter referred to as "Consultant or GIS Planning.”

RECITALS

A. City desires certain integration of the City of Brentwood’s local GIS data and information in connection with the work referred to as GIS Planning’s ZoomProspector 6.0 Product (the "Project").

B. City desires to engage Consultant to provide these services by reason of its qualifications and experience performing such services and Consultant has offered to provide the required services on the terms and in the manner set forth herein.

C. Consultant represents that it is fully licensed and qualified with all professional skills necessary to perform the services described in this Agreement and has special expertise in the performance of GIS Based Economic Development Website Products and services for public agencies of similar scope and complexity as the Services to be performed under this Agreement.

NOW, THEREFORE, City and Consultant agree as follows:

SECTION 1 – SCOPE OF SERVICES

The scope of services subject to this Agreement and to be performed by Consultant for the Project is described in Exhibit “A”, Scope of Services, attached hereto and incorporated herein (the “Services”).

SECTION 2 – CONSULTANT'S REPRESENTATIONS AND RESPONSIBILITIES

A. Consultant acknowledges that in entering into this Agreement the City is relying upon Consultant's special skills and experience to do and perform the services in accordance with best standards of professional practice in the GIS Based Economic Development Website Products and services for public projects of similar size, scope and complexity. Consultant agrees to perform the services in accordance with these standards. The acceptance of Consultant's services by City does not operate as a release of Consultant from these obligations.

B. Consultant accepts the relationship of trust and confidence established between it and City by this Agreement. Consultant shall use its best efforts, skill, judgment, and abilities to assist and work with City to perform the Services, to produce the necessary online site-selection, business attraction, and GIS based analysis tools, and to further the interests of City in accordance with City's requirements and procedures, each in accordance with professional standards that apply to Consultant.

C. Consultant shall perform the Services in full compliance with applicable federal, state and local laws and regulations in effect at the time such services are rendered (collectively, "Applicable Laws").
D. Consultant shall be responsible for employing or engaging all persons necessary to perform the Services. All of Consultant's staff shall be qualified by training and experience to perform their assigned tasks. Consultant shall give its personal attention to the fulfillment of the provisions of this Agreement by all of its employees and sub-Consultants, if any, and shall keep the Services under its control. If any employee or sub-Consultant of Consultant fails or refuses to carry out the provisions of this Agreement or appears to be incompetent or to act in a disorderly or improper manner, he or she shall be discharged immediately from the work under this Agreement on reasonable demand of City.

E. Consultant shall submit, for City's approval, a team or staffing proposal for the Services, complete with job descriptions, names and previous experience of all personnel. Consultant has designated the personnel for the Services as stated in Exhibit “B” - Key Personnel - which exhibit is incorporated herein by this reference. Consultant shall not change or reassign Key Personnel without prior notice to City, and shall not replace any Key Personnel with individuals to whom City has a reasonable objection.

F. Consultant's services are unique and personal. Consultant shall not assign or transfer any of its interest or obligation under this Agreement without the City's written consent; provided, however, that after initial implementation, GIS Planning may assign this Agreement if GIS Planning is acquired or merges with another entity or if GIS Planning outsources the hosting services to a third party provided that the third party is obligated to provide the same or substantially similar level of services as described in this Agreement. Consultant shall not subcontract its duties under this Agreement without the City's written consent. No sub-consultant will be recognized by City as such; rather, all sub-consultants are deemed to be the agents of Consultant, and Consultant agrees to be responsible for their performance. This Agreement is not assignable or transferable by City without GIS Planning written consent, and any such attempted assignment or transfer shall be void and without effect

SECTION 3 - INDEPENDENT CONTRACTOR

The services to be provided to the City as set forth in this Agreement shall be provided by Consultant as an independent contractor as defined in Labor Code 3353, under the control of the City as to the result of the work but not the means by which the result is accomplished, and nothing herein contained shall be construed to make Consultant an agent or employee of the City while providing these services. Consultant shall be entitled to no other benefits or compensation except as provided in this Agreement.

SECTION 4 - DUTIES OF CONSULTANT

A. Consultant's Services shall be furnished as described below and as more particularly described in Exhibit “A”, Scope of Services. Any changes in the Scope of Services must be approved in advance, in writing, by the City Manager or her designee, or if verbally requested by City, confirmed in writing by Consultant within five (5) working days.

B. Consultant shall be responsible for the professional quality, technical accuracy and coordination of all Services. Consultant shall, without additional compensation, correct or revise any errors or deficiencies in its Services.

C. Consultant shall furnish City with every reasonable opportunity for City to ascertain that the Services are being performed in accordance with the requirement and intentions of this Agreement.
SECTION 5 - TERM, PROGRESS AND COMPLETION

A. Unless earlier terminated, the term of this Agreement will be effective for a period of one (1) year from the date first above written. The City Manager may extend the Agreement for an additional one year period at the renewal fee specified in Exhibit C. At the end of the one year extension, the City Manager may extend the Agreement for up to four more additional one (1) year periods in an amount not to exceed fifty thousand dollars ($50,000) per Agreement year, with renewal fees to be agreed upon by the parties. Renewals will be based upon a satisfactory review of Consultant's performance, City needs, and appropriation of funds by the City Council. Except as to the first extension period, the parties will prepare a written amendment indicating the effective date and length of each extension period.

B. Consultant shall promptly commence performance of the Services upon execution of this Agreement, and shall diligently pursue performance of the Services until completion.

C. Consultant shall perform the Services in accordance with the schedule attached hereto as Exhibit “A” Section 3, which Exhibit is incorporated herein by this reference, and any updates to the Schedule. Consultant shall work such overtime or engage such personnel and equipment as necessary to maintain the Schedule, without additional compensation.

D. Time is of the essence in the performance of this Agreement.

SECTION 6 - PAYMENT

A. Basic Services.

1. City shall pay Consultant for full and faithful performance of Basic Services, a not to exceed fee in the amount of Twenty-Nine Thousand Nine Hundred Dollars ($29,900.00) as outlined in Exhibit C. The City Manager may amend the Agreement to increase the total payment to a not to exceed yearly amount of fifty thousand dollars ($50,000.00). Said amendment will be based upon a satisfactory review of Consultant's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the amended payment amount.

2. The fees for a specific project shall be specified in Exhibit C. Client shall pay GIS Planning fifty percent (50%) of the initial project fee upon entering into this Agreement and before commencement of Services by GIS Planning, and the remaining balance no later than thirty (30) days from the completion of the data integration and start of application services. Additional fees may be incurred on a time and materials basis for consulting services in accordance with the rates set forth on the applicable Statement of Work. GIS Planning’s fees are based on information provided by Client. Client accepts full responsibility for additional fees incurred based on the inaccuracy of such information.

3. Payments for various items of service may be modified with approval of City so long as there is no change in the maximum contract amount.

B. Additional Services.

1. City shall pay Consultant for authorized Additional Services on an hourly basis, in accordance with the schedule of fees attached hereto as Exhibit “C.” City shall pay only for Additional Services authorized by the City Manager or her designee in writing or requested verbally by City and confirmed in writing by Consultant within five (5) working days.
2. Consultant and City shall agree upon an estimated not-to-exceed cost for any proposed Additional Services or, in the case of a verbal request, Consultant shall provide City with a written estimated not-to-exceed cost for such Additional Services at least one (1) working day prior to commencing the additional Services. In no event shall City pay for Additional Services made necessary by Consultant's errors or oversights.

C. Reimbursable Expenses.

In addition to compensation for Basic Services and Additional Services, City shall reimburse Consultant for Reimbursable Expenses Consultant incurs in the course of performing Services under this Agreement. Reimbursable Expenses include only the following items:

1. Reproduction and handling of Documents prepared in connection with the Project;

2. Fees paid for securing government approvals for the Project; and

3. Other expenses as City may approve in writing in advance.

C. If City disagrees with any portion of a billing, the City shall promptly notify Consultant of the disagreement, and the City and the Consultant shall attempt to resolve the disagreement. City’s payment of any amounts shall not constitute a waiver of any disagreement and City shall promptly pay all amounts not in dispute.

D. Consultant shall maintain complete and accurate records of the number of hours worked by persons and Reimbursable Expenses on the Project during each phase under this Agreement. All such records shall be maintained on a generally accepted accounting basis and shall be clearly identified and readily accessible. City shall have the right to examine and copy such books and records at all times. Consultant shall permit the City to examine and audit those books and records, shall permit the City to make copies of those books and records, and shall permit the City to inspect all work data, documents, proceedings and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. All accounting records shall provide an understandable breakdown of costs charged to this Agreement.

SECTION 7 - CONFLICT OF INTEREST

Consultant understands that its professional responsibility is solely to City. Consultant warrants that it presently has no interest, and will not acquire any direct or indirect interest, that would conflict with its performance of this Agreement. Consultant shall not knowingly, and shall take reasonable steps to ensure that it does not, employ a person having such an interest in the performance of this Agreement. If after employment of a person, Consultant discovers that it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly disclose the relationship to the City and take such action as the City may direct to remedy the conflict.

SECTION 8 - TERMINATION

A. Termination by City. In the event of the Consultant's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Consultant in writing pursuant to the notice provisions of this Agreement. City shall provide written notice of such nonperformance, and Consultant shall have seven (7) days thereafter to cure the nonperformance. If Consultant fails to cure, then upon request by City, Consultant has five (5) business days thereafter to deliver any documents owned by City and all non-confidential or non-proprietary 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 Consultant has performed which is usable and of worth to City in having the services completed. Based upon that finding City will determine the final payment to Consultant. In the event City elects to terminate, City will have the right to immediate possession of all non-confidential or non-trade secret Work Product and non-confidential or non-trade secret work in progress delivered to City, as stated above, provided the City pays Consultant reasonable fees for such work. Nothing herein obligates Consultant to provide any confidential or trade secret information or material, including any software code

B. Termination by Consultant. Consultant may immediately terminate this Agreement if Consultant determines that City has: (i) failed to pay any amount due under this Agreement within thirty (30) days after written notice of such nonpayment, or (ii) commits a material breach of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days of written notice of termination.

C. Termination for Convenience. Either Party, upon tendering thirty (30) calendar days written notice to the other Party, may terminate this Agreement for convenience. In this event and upon request of City, Consultant will assemble the work product without charge and put it in order for proper filing and closing and deliver it to City. Consultant 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.

D. Effect of Termination. Termination by any means will not affect the provisions of this Agreement relating to the payment of amounts due, or the provisions of Sections 9, 10, 11, 18 and 19 of this Agreement, all of which will survive termination of this Agreement, regardless of the reason for termination. Upon termination, all licenses and rights granted hereunder shall terminate, and Client shall immediately return to Consultant, Consultant’s proprietary and confidential information, including the Software, if any, and all copies and documentation of the foregoing, along with a signed, written statement certifying that Client has returned to Consultant, and is no longer in possession of the foregoing items. Upon termination Consultant will return immediately to Client any proprietary data or information of Client

SECTION 9- OWNERSHIP OF DOCUMENTS & CONFIDENTIAL INFORMATION

A. As between the parties, title to and ownership of the Zoom Prospector software and Services, methods, technology, and all proprietary rights therein, any accompanying printed materials and all copies and portions thereof including but not limited to source and object code, specifications, designs, processes, techniques, concepts, improvements, discoveries, and inventions made or developed in connection with the Services (collectively “Work Product”) shall be and at all times remain with GIS Planning. Nothing in this Agreement shall grant to Client any ownership or title to the Work Product, nor limit GIS Planning’s ability to use Work Product for other projects. Work Product does not include content provided by Client, such as information about physical properties or brokers.


B. Each party (“Receiving Party”) agrees to keep confidential and not disclose or use except in performance of its obligations under this Agreement, confidential or proprietary information related to the other party’s (“Disclosing Party”) technology or business, including, but not limited to: information relating to products or technology of the Disclosing Party or the properties, composition, structure, use or processing thereof, computer programs, code, algorithms, schematics, data, know-how, processes, ideas, inventions, and other technical, business, financial, and product development plans, forecasts, strategies and information (all of the foregoing, “Confidential Information”). Each party shall use reasonable precautions to protect the other’s Confidential Information. Confidential Information shall not include information that (a) is in or enters the public domain including in reasonably available public or government databases through no improper action or inaction by the Receiving Party; (b) was rightfully in the Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to the Receiving Party by another person without restriction; or (d) was independently developed by the Receiving Party by persons without access to such information and without use of any Confidential Information of the Disclosing Party. Each party may disclose Confidential Information that is required to be disclosed by state public record laws, a court or other adjudicative body provided that reasonable measures are taken to minimize disclosure and guard against further disclosure, and also provided that the party gives the other party prior written notice of the proposed disclosure to allow the other party to seek protection for the Confidential Information.

SECTION 10 – INDEMNITY

GIS Planning shall defend, indemnify and hold Client harmless from any and all claims, injuries, damages, losses or suits arising out of a claim that the Services provided infringe any copyright of a third party. GIS Planning shall be released from the above indemnification obligation unless Client provides GIS Planning with: i) reasonably prompt written notification of the claim or action; ii) sole control and authority over the defense or settlement thereof; and iii) at no cost to GIS Planning, all reasonably available information and assistance reasonably necessary to settle or defend any such claim or action. Notwithstanding the foregoing, GIS Planning shall have no obligation for a claim or action based on an alteration or modification to any software of Services that are not made or approved by GIS Planning, or the combination, operation or use of any products and Services furnished under this Agreement with products and services not furnished by GIS Planning if infringement or injury would have been avoided by the use of the products or Services without such other products or services.

GIS Planning will hold harmless, defend and indemnify City and its officers, agents and employees from and against any and all claims, demands, costs or liability including attorney fees arising out of or in any way connected with the performance of this Agreement, caused in whole or in part by any negligent or reckless act or omission of the Consultant or any of its subcontractors, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, except where caused by the active negligence, sole negligence, or willful misconduct of City.

SECTION 11 – INSURANCE

A. Consultant shall, at all times it is performing Services under this Agreement, provide and maintain insurance in the following types and with limits no less than the following amounts:

1. Commercial General Liability Insurance, occurrence form, with a limit of not less than $2,000,000 each occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit;

2. Automobile Liability Insurance, occurrence form, with a limit of not less than $1,000,000.00 each occurrence. Such insurance shall include coverage for owned, hired, and non-owned automobiles.

3. Professional Liability (errors and omissions) insurance in the minimum amount of $2,000,000.00 aggregate.

4. Workers Compensation in at least the minimum statutory limits.

5. Employers Liability Insurance, with minimum limits of $1 million per occurrence.

B. General Provisions:

1. Consultant's general and automobile liability insurance policies shall be endorsed to name the City of Brentwood, its elected and appointed officers, employees, and volunteers as additional insureds with respect to this Agreement and the performance of services in this Agreement. The coverage shall contain no special limitations on the scope of its protection to the above-designated insureds except for Workers Compensation and errors and omissions insurance.

2. Consultant's general and automobile liability insurance policies shall be endorsed so that they are primary with respect to any insurance or self-insurance programs of City, its officers, employees, and volunteers.

3. Before performing any services under this Agreement, Consultant shall provide evidence of the required coverage and limits, and properly executed policy endorsements satisfactory to City.

4. No changes in insurance may be made without the written approval of the City.

SECTION 12 - WAIVERS

The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of same or of any other term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which 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 of any applicable law or ordinance.

SECTION 13 - COSTS AND ATTORNEYS FEES

Except for breach of Section 9 or a willful breach of this Agreement, attorney fees in an amount not exceeding Eighty Five Dollars ($85.00) per hour per attorney, and in total amount not exceeding Five Thousand Dollars ($5,000.00), shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of the Agreement. The above $5,000 limit is the total of attorneys’ fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this Agreement that neither party shall have to pay the other more than $5,000 for attorneys’ fees arising out of an action, or actions to enforce the provisions of this Agreement.

SECTION 14 - NON-DISCRIMINATION

Consultant warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.

SECTION 15 - MEDIATION

Should any dispute arise out of this Agreement, either party may request that it be submitted to mediation within 45 days of any notice of the dispute. The parties shall meet in mediation within 30 days of a request. The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first requesting mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties. Nothing in this Section shall prevent any party from seeking preliminary injunctive relief in court, and the time spent arranging and conducting mediation shall not be counted for purposes of determining laches or any applicable statute of limitations.

SECTION 16 - LITIGATION

Consultant shall testify at City's request if litigation is brought against City in connection with Consultant's services under this Agreement. Unless the action is brought by Consultant, or is based upon Consultant's actual or alleged negligence or other wrongdoing, City shall compensate Consultant for time spent in preparation for testimony, testimony, and travel at Consultant's standard hourly rates at the time of actual testimony.

SECTION 17 - NOTICES

All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:

To City: City of Brentwood
150 City Park Way
Brentwood, CA 94513

To Consultant: Anatalio Ubalde
Chief Operation Officer
GIS Planning, Inc.
333 Bryant St., Suite 340
San Francisco, CA 94107

SECTION 18 – WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
GIS Planning will use reasonable commercial efforts to provide the Services in a professional and workmanlike manner. GIS PLANNING MAKES, AND CLIENT RECEIVES, NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ARISING IN ANY WAY OUT OF, RELATED TO, OR UNDER THIS AGREEMENT OR THE PROVISION OF MATERIALS OR SERVICES THEREUNDER, AND GIS PLANNING SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR PERSONAL INJURY OR PROPERTY DAMAGE, CLIENT AGREES THAT GIS PLANNING’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT PAID FOR SERVICES. IN NO EVENT SHALL GIS PLANNING HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION.

SECTION 19 – REFERENCE
Client agrees that GIS Planning may identify Client as a customer on its brochures, websites, and other marketing materials, and describe the project and Services provided by GIS Planning to Client. Client agrees to the inclusion of the following statement in the application "Website Developed by GIS Planning" with the GIS Planning logo (225 pixels wide by 55 pixels high), copyright, and a link to the GIS Planning and ZoomProspector websites.

SECTION 20 – AGREEMENT CONTAINS ALL UNDERSTANDINGS; AMENDMENT

This document represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, and agreements, either written or oral.

This document may be amended only by written instrument signed by both City and Consultant.

All exhibits referenced in or attached to this Agreement are incorporated herein by this reference.

SECTION 21 – GOVERNING LAW

This Agreement shall be governed by the laws of the State of California.

IN WITNESS WHEREOF, City and Consultant have executed this Agreement the day and year first above written.

CONSULTANT:

GIS Planning Inc.

By:
Printed Name: Anatalio Ubalde
Title: Chief Operating Officer

CITY OF BRENTWOOD

By:
Donna Landeros, City Manager

ATTEST:

By:
Margaret Wimberly, City Clerk

APPROVED AS TO FORM:

By:
Damien B. Brower, City Attorney

EXHIBIT "A"

SCOPE OF SERVICES
1. Application Services:

The application services shall be defined as a web-based application service that offers ZoomProspector software functionality on a hosted or outsourced basis. ZoomProspector will be hosted on servers with an Internet service provider or hosting facility that GIS Planning uses.

ZoomProspector functionality will include the following features:

• Available Property Site Selection Query – web site users will be able to search for available commercial property based on user-defined information such as minimum and maximum size and type of use.
• Property Reports – web site users will be able to generate property reports for available properties.
• Dynamic Demographic Analysis – web site users will be able to generate user-defined demographic analysis from any available property within the Project Geography.
• License of Demographic Data from Applied Geographic Solutions – data will include demographics, consumer expenditures and business/workforce data.
• Dynamic Business Reports – web site users will be able to generate user-defined business reports from any available property within the Project Geography.
• Dynamic Mapping – web site users will have the ability to zoom in/out, pan and identify information on the map.
• Online Management system for Real Estate Professionals to list Properties – web site users who are authorized real estate professionals marketing available commercial property will be able to add, delete and update information about their properties through a user-friendly web page or site using a login and password system.
• Staff Online Management System – web site users who are Client staff will have access to application services, namely, use of the ZoomProspector software on a hosted basis, that will provide them with complete access to the property data for addition, deletion and maintenance. Client staff will also use the application services and/or web site to give real estate professionals access to use the application services for the purpose of reviewing, adding, deleting and updating information about their properties.
• Application Interface – the application interface will be created following a design similar to that shown as Exhibit B. The application interface will include color customization and insertion of the Client logo.

Several of the above features are described in more detail below:

Available Property Site-Selection Query

ZoomProspector will give the web site user the ability to search and select available property or buildings in the Project Geography based on size and type (e.g. office, retail, industrial, vacant land, etc.) of space. As a result of this search the ZoomProspector software will compile a list of locations which match the identified characteristics and display them to the web site user. When the web site user clicks a hyperlink for the property in which s/he is interested, the selected property will be shown on the map and a property report will appear with the characteristics of the space (e.g. size, address, zoning, contact information, description, etc.).

Property Reports

After a property is found through the site selection process and the web site user selects it, ZoomProspector will generate a property report that can include real estate professional-submitted graphics. Web site users will be able to select any available property in the Project Geography and be able to view a map depicting the available property. Information in the property report can include, but is not limited to:

• Commercial Property or Project Name
• Picture submitted by real estate professional or staff
• Address
• Property Type (e.g. office, industrial, retail, warehouse, vacant land, etc.)
• Land Use
• Total Site Size
• Other Tenants
• Property description
• Broker Property contact information (as a link this will show the broker name, company, address, telephone, fax and e-mail)
• Web Page Links

The data described in the property reports may need to be entered when a property is added to the database. Some data can be generated automatically if it is included in the Project Geography’s GIS database.

The Dynamic Demographic Engine

ZoomProspector services will give the web site user the capability to dynamically generate demographic reports for any available property within the Project Geography. Web site users can create demographic reports based on their own user-defined distance from a property. Demographic reports can include demographic, income, consumer-expenditure and workforce information.

The location-specific demographic radius reports can include radii distances of up to 50 miles around the available property. The drive-time demographic reports can include commensurate drive-times distances around the available property.

Thematic Mapping of Demographic Variables

Website users will be able to select and display Thematic Mapping of demographic variables on the application’s map interface. This will show the spatial distribution and concentrations of specific variables across a geographic view. Demographic variables that can be mapped will include population, income, retail spending and workforce characteristics and will come from the Applied Geographic Solutions demographic databases.

Website users will be able to select a specific demographic variable and the number of categories (between 3 and 6) in which the variable is to be shown. This will account for the color variation on the map. Website users will also be able to select the range of the category breaks by equal interval or quartile. Based on the user-defined parameters the application will return a thematic map showing demographic concentrations by geography. The program will also generate a Map Legend that defines the demographic ranges as quantifiable numbers.

The Dynamic Business Report Engine

ZoomProspector services will give the web site user the capability to dynamically generate business reports for any available property within the Project Geography. Web site users will be able to see the locations of businesses on the map color-coded by industry. Website users will also be able to view tabular business data in the business report by number of businesses by industry.

Online Management system for Real Estate Professionals to list Properties

The real estate professionals’ site is a web page where real estate professionals (like brokers or property owners) may add an available property, delete a property that has been leased or purchased, and modify information for a property. To help avoid conflicts between brokers, ZoomProspector will provide for individual security logins and passwords so that only the real estate professional who added the property, and who has the appropriate login and password, should be able to view or delete the property. ZoomProspector will also check for the ID of the broker before deleting information. A login and a password will also be required in order to add or delete a property. A user-friendly web site or interface will be used to make adding, deleting or modifying a property relatively easy for the broker.

Both the Broker's login database and Property Listing database will be maintained on a server running the Application Services.

Brokers can also add one photo that will appear on the property report. In addition they will be able to add up to 2 more digital files related to the property which can include photos or documents. The supported file extensions for these two additional files are *.gif, *.jpg, or *.pdf. A file size limit of 1 MB will be required for each file.

The Staff Online Management System
ZoomProspector provides a web-based interface for the system administrator(s). This Staff Online Management System page will allow the operator to add and delete real estate professionals who may list properties on Client’s site, and assign them logins and passwords from any computer connected to the Internet. All logins and passwords will be stored in a secure database. Client will be able to monitor all properties through the Administration Page.

“Web site users” refers to end users accessing Client’s website who have the necessary and adequate hardware, software and Internet connection services to access and use most commercial Internet sites.

2. Service Level

GIS Planning will use commercially reasonable efforts to make ZoomProspector Application Services available and online at least ninety-five percent (95%) of the time. Customer agrees and understands that routine maintenance by GIS Planning or its internet service provider or hosting facility may cause temporary downtime, and that loss of connectivity by Client to the hosted system due to reasons which are beyond GIS Planning's control, such as problems with Client's personal computers or the network between Client and GIS Planning's internet server hosting facility, may arise and that GIS Planning shall not be responsible for such loss of connectivity or any other loss of connectivity that is beyond GIS Planning's reasonable control.

3. Timeline:

The timeframe for developing the Software shall be three months from the Effective Date of this Agreement and all Data To Be Provided By Client (Section 6) has been delivered to GIS Planning.

GIS Planning will use its management process to ensure smooth and rapid implementation. GIS Planning will work closely with Client to design and formally capture all the specifications before Software integration starts. GIS Planning will then track any modifications needed and their completion across two review cycles that lead to the final Software.

Developing the Software in three months is dependant on Client’s ability to turn around information requests in a timely manner. Delays in Client feedback may delay the Timeline.

The application services will be provided after development of the Software.

4. Additional Services

Except for services identified above in this Exhibit A, any additional custom functionality, data preparation, design of complementary web pages, changes to the existing interface, maintenance, new services requested, travel and time (“Additional Services”) will be charged at a consulting fee rate of $150 per hour (or $250 per hour for GIS Planning Principals) plus expenses for calendar year 2007. Client shall make any request for Additional Services in writing and the parties shall agree to additional services in writing (including by e-mail) prior to performance of the Additional Services. The hourly rate for service is subject to change, in which case client shall be notified and approve of change before work is performed by GIS Planning.

5. Project Geography

The content of the application services will cover the geographic boundaries of the City of Brentwood, California, which is an area with a population of no more than 50,000 according to the 2000 US Census people.

6. Data To Be Provided By Client

The following is a list of the minimum data that needs to be provided by the Client to GIS Planning at the initiation of project work.

GIS Data

• The Major Streets, Streets, Highways and Freeways street centerline GIS should be sent as one (1) Shapefile format digital file with all roadways that are to be included in the project geography. This must be a geocodable file.
• GIS layers (up to 6) should also be submitted as Shapefiles. The GIS layers you select are up to you. Some recommended layers which have been used by other economic development organizations include zoning, parks, utilities, traffic counts, and incentive areas. These should cover only the project area geography.
• Aerial photographs for the project area (if available). Aerial orthographic photos should be sent in Mr. SID format or TIFF with a resolution of 1 or more feet per pixel.
• City, county or regional boundaries

Graphic Images

• Any graphic images such as a logo, photos, or illustrations which can be used in the application interface.

Any data manipulation or changes to the data are not included in this scope of work.

GIS Planning will provide the following data:

Business Data

• Database of businesses including the businesses’ names, addresses and industries from Claritas. This data will be used for the Dynamic Business Report Engine.

Client may update data such as Shapefiles and data two (4) times per year. This data must be placed on a CD-ROM and mailed to GIS Planning. The new files will be uploaded to the server. Client may use up to 1 GB of total storage on the server. Client understands and agrees that Data may be used in connection with regional, state, or national GIS applications and services that are provided by GIS Planning to promote GIS Planning’s clients’ available properties.

EXHIBIT "B"

KEY PERSONNEL

Project Manager for Implementation & Training:
Mario Ubalde – Senior Account Manager
Mr. Ubalde joined GIS Planning having formerly served as Director of Operations for Infotecture Solutions, a consulting firm specializing in web-based information management applications for venture capital firms. Prior to that, he served as Windows CE (now Windows Mobile) Integration Specialist at ThinAirApps a mobile computing solutions provider based in New York City that has since been acquired by Palm. Mr. Ubalde has worked in the field of web-based GIS for economic development for over five years. Mario has been an instructor multiple times for International Economic Development Council (IEDC) Professional Development training courses and has taught “Fundamentals of Economic Development Web Site Design & Content” and “Advance strategies for Economic Development Online Marketing”. At GIS Planning Inc. he has managed projects for Milwaukee Development Corporation, Forward Greensboro, Charlotte Regional Partnership, Southern Oregon Regional Economic Development Inc., Upstate Colorado EDC, Placer County, York County, San Luis Obispo County and the cities of Las Vegas, Corpus Christi, Kennewick (IEDC award-winner), Mansfield (IEDC award-winner), Georgetown (IEDC award-winner), Ponca City, Burleson, South Lake Tahoe, Santa Clarita, Waller County, Woodland, Hemet, and Danville. A project of his was featured in the Los Angeles Times. He is a Corenet Global and Southern Economic Development Council member. An avid computer user since his introduction of the Commodore PET in 1984 and an Internet user since before there was a World Wide Web, he is gifted at translating end-user needs into functional technical specifications. This year he was the highest-rated speaker at the California Association for Local Economic Development Conference. Mario is an alumnus of the University of California at Berkeley and Harvard University where he received his Bachelor of Liberal Arts in Government. He participated in the University of Oklahoma’s Economic Development Institute and is a graduate of the Northwest Economic Development Training Course. Mario is a stand-up comedian having performed at the Punchline, Kimball’s East and Sony Metreon; he has an open-invitation to perform at the Hollywood Improv and is working on new material for that performance. During the 2005 and 2006 IEDC Annual Conferences he performed stand-up comedy about economic development.

Project Manager for Development & Integration
Ray DeLeon, MCP – Senior Project Manager
Mr. DeLeon has 11 years of experience in GIS and City and Regional Planning as well as extensive project management experience within state and local government, economic development and redevelopment agencies. He is responsible for directing the management of projects, from design through implementation, as well as managing the continued customer support for these clients. Mr. DeLeon was selected as one of five international GIS professionals to work with the United Nations on disaster relief efforts in Indonesia following the 2004 Indian Ocean Tsunami as well as FEMA and local authorities on Hurricane Katrina disaster relief efforts. He serves on professional GIS committees and volunteers his time as a speaker and presenter at statewide, regional, national and international conferences and universities. Prior to joining GIS Planning he worked for the City of San Jose Redevelopment Agency. Mr. DeLeon has a BA in Environmental Design and a Masters of City and Regional Planning from the University of Texas at Austin.

Team Members
Anatalio Ubalde, MCP – Chief Operating Officer
Mr. Ubalde’s work in geographic information systems, economic development and the Internet has been featured in The Wall Street Journal, ABC News and American City & County magazine. He is the recipient of the International Economic Development Council 2002 Outstanding New Economic Developer of the Year Award. He is a member of the Board of Directors for IEDC. In 2003 Mr. Ubalde accepted the CoreNet Global Economic Development Leadership & Accomplishment Award for GIS Planning. He has received additional awards from the Council for Urban Economic Development, American Economic Development Council, CALED, American Planning Association, and was featured in the U.S. Department of Commerce “Innovative Local Economic Development Programs” publication. Mr. Ubalde is a highly sought-after speaker on the subject of Internet and GIS strategies for effective economic development and has made presentations on these subjects throughout North America, Asia and Europe. In the United States he has been a keynote speaker or presenter for the International Economic Development Council, Texas Economic Development Council, California Association for Local Economic Development, Mid-American Economic Development Council, Oklahoma Economic Development Council, Oregon Economic Development Association, American Planning Association, Northwest Economic Development Games and other organizations. He is the author of publications including a book about urban planning and articles in Economic Development Commentary and the Canadian Economic Development and Technology Journal. Before joining GIS Planning he worked in local economic development with a focus on downtown revitalization, waterfront redevelopment, business attraction/expansion, business retention, and site selection assistance. Mr. Ubalde is an instructor for the IEDC Economic Development Marketing & Attraction course and the Tech-Led Marketing to High-Tech Companies course. He is recognized by IEDC as a top-ranked instructor based on attendee rankings and has developed coaching strategies to improve the teaching of other instructors. Mr. Ubalde is the author of sections of the Technology-led Economic Development and Economic Development Marketing & Attraction professional development manuals. He is on the IEDC AEDO team that approves the certification of economic development organizations and formerly served on the IEDC Communications Committee. Mr. Ubalde is a seven-time United States Master’s Diving National Champion in springboard diving. Most recently he swept the springboard events winning three goal medals at the 2006 USA National Championships and was named a member of the USA Master’s All-American Team. In August of 2006 he won a bronze medal in springboard diving at the Masters World Championships. He has a Masters degree in City Planning from U.C. Berkeley and a Bachelor’s degree in Architecture.

Pablo Monzon, MCP – Chief Technology Officer
Mr. Monzon has over a decade of GIS experience including application development, Internet-based GIS, web page development, GIS training and database management. He is highly proficient in ArcIMS, MapObjects IMS, Active Server Pages, Java, Java Script, XML, DHTML, HTML, .NET, ArcView, ArcInfo, Internet Map Server, Spatial Analyst, Visual Basic and Avenue. He is the developer of a number of award-winning Internet-based GIS applications including TVAsites.com, WashingtonProspector, SacSites, Tucson’s Commercial Properties Online, Oklahoma Economic Development Information System, Vallejo Economic Development Information System, Mansfield iSites, KennewickProspector, INside Rancho, Fujitsu's INFOFORUM GIS, and New Mexico Biz Sites. His work has appeared in The Wall Street Journal, CNN, NBC News, and numerous GIS-related publications. Mr. Monzon has lectured about Internet GIS in Europe, the United States, and Latin America and has been published in magazines such as ArcUser. He is recognized as one of the finest experts in ArcIMS application development in the industry. His work has twice received the Special Achievement in GIS award. Prior to GIS Planning Mr. Monzon worked for Vectiv, an online GIS site selection company focused on the retail industry. He is an avid enthusiast of the electric organ and has performed original compositions in international music competitions. He was also a Fulbright Scholar, during which time his pioneering GIS tools and research included affordable housing, urban growth, disaster recovery costs, and economic development. Mr. Monzon has a Master in City Planning from the University of California at Berkeley and a Bachelor’s degree in Civil Engineering.

Kevin Knapp – Senior Software Architect
Mr. Knapp is a highly experienced database architect and internet software developer. He has uniquely combined that background with the evolving technologies of internet GIS systems. In 2004, Mr. Knapp received the Center for Digital Government “Best of the Web” national award for his work in developing innovative web-based software systems for law enforcement. In 2003, he was featured in the Colorado Springs Gazette Telegraph for a custom web-based software system he built for the City of Colorado Springs. During his tenure in law enforcement IT, Mr. Knapp developed many award winning GIS internet mapping systems for offender tracking and trend analysis. Mr. Knapp has developed and implemented many web-based software and database systems. His experience integrating spatial map databases with tabular data such as the demographic data used in economic development is unique in the industry. He also brings ten years of successful technical project management experience to GIS Planning. Mr. Knapp received his B.A. from the University of Colorado in Boulder, and recently completed his Masters thesis in Applied Geography and GIS. An accomplished elite bicycle racer on the track and the road, he won the Pro Rider of the Year award in Colorado in 2003.

Jeff Suneson – Internet GIS Programmer
Mr. Suneson is part of the GIS Planning team which is responsible for website GIS development, cartography, client service, and support. He brings over a decade of GIS experience to his position. Most recently he was the GIS Coordinator for the City of Hayward, California where he built and maintained an enterprise GIS; developed and maintained GIS web applications; installed and implemented ArcSDE, ArcIMS and ArcGIS applications for staff; and provided support and training. He taught GIS at the California State University, Hayward GIS Lab. He is an expert in ArcINFO 7, multiple ArcGIS extensions, AML, Avenue & ArcINFO. Mr. Suneson has a Bachelor’s Degree with an emphasis in Natural Resources & Environmental Geography from California State University, San Diego and has completed all of his coursework leading to his Master of Arts in Geography & GIS from California State University, East Bay.


Some additional staff may be brought in for this project as needed, although it is not anticipated.

Eric Zhang, MLA – GIS Application Developer
Alex Rocco – GIS Application Developer
Jonathan Relucio, MA – Special Projects Analyst
Russell C. Riblett – Senior Account Manager
Peter M. Julius – Account Manager
Brad Tocher, Director of Sales & Client Management
Eric Simundza – Projects Associate
Angelo DeVigal – Senior Graphic Designer

EXHIBIT "C"

FEES

Initial Project Fee (development and hosting for initial term): $29,900

Deliverables & Services Budget
ZoomProspector set up for economic development and site selection $2,100
Annual subscription & license services $17,400
ZoomDemographicMapping Setup $1,000
ZoomDemographicMapping Annual License $4,800
Use of online GIS mapping software on GIS Planning server Included
Use of GIS Planning Web Server Included
Application and server maintenance Included
Demographic data from Applied Geographic Solutions
• Demographics $300
• Consumer Expenditures $100
• Business/Workforce $200
Annual License for Extension of Demographic Analysis to 50-Miles $3,000
Business Database Internet Display License from Claritas on or before September 30, 2007 $1,000†
Business Database Internet Display License from Claritas after September 30, 2007 $1,615†
Total $29,900 - $30,515

† This budget is based on a count of 9,049 businesses as of August 2007 within 15 miles of the 104 Oak St, Brentwood, CA; actual budget will be based on actual business counts on date of license purchase. Only necessary if list of categorized businesses (SIC, NAICS, or custom) unavailable from local sources or if the City of Brentwood wishes to extend business cluster analysis beyond the boundaries of the City Limits.

(Optional)
Annual Renewal Fee for Application Services: $ 26,800

Except for services identified above in this Exhibit A, any additional custom functionality, data preparation, design of complementary web pages, changes to the existing interface, maintenance, new services requested, travel and time (“Additional Services”) will be charged at a consulting fee rate of $150 per hour (or $250 per hour for GIS Planning Principals) plus expenses for calendar year 2007. Client shall make any request for Additional Services in writing and the parties shall agree to additional services in writing (including by e-mail) prior to performance of the Additional Services. The hourly rate for service is subject to change, in which case client shall be notified and approve of change before work is performed by GIS Planning.

 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov