REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
February 11, 2025
FROM
LYNN FYHRLUND, Chief Information Officer, Innovation and Technology Department
SUBJECT
Title
Agreements with Singlewire Software LLC for the Informacast Software Maintenance Subscription
End
RECOMMENDATION(S)
Recommendation
1. Approve the following non-financial agreements, including non-standard terms, with Singlewire Software LLC, for the Informacast software maintenance subscription, for purchase amounts authorized by County Policy, for the period of February 11, 2025, through March 14, 2027, and simultaneously terminate Contract Nos. 22-189 and 22-190:
a. Master Terms and Conditions
b. End User License Agreement
c. Informacast Fusion and Informacast Mobile SaaS Service Schedule
2. Authorize the Chief Information Officer or Assistant Chief Information Officer to electronically accept the agreements in Recommendation No. 1, with Singlewire Software LLC, and any subsequent non-substantive updates to the agreements, as they pertain to changes to the Informacast software maintenance subscriptions, subject to County Counsel review.
3. Direct the Chief Information Officer or Assistant Chief Information Officer to transmit printed copies of any subsequent non-substantive updates to the agreements, that are electronically accepted, to the Clerk of the Board of Supervisors within 30 days of execution.
(Present: Lynn Fyhrlund, Chief Information Officer, 388-5501)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Improve County Government Operations.
Operate in a Fiscally-Responsible and Business-Like Manner.
FINANCIAL IMPACT
Approval of this item will not result in the use of Discretionary General Funding (Net County Cost). The Master Terms and Conditions (Master Agreement), End User License Agreement (EULA), and Informacast Fusion and Informacast Mobile SaaS Service Schedule (collectively, Agreements) with Singlewire Software LLC (Singlewire) are non-financial in nature and do not commit the County to make any purchases. If future purchases are made under the Agreements, the Innovation and Technology Department (ITD) will adhere to County purchasing policies and return to the Board of Supervisors (Board) for approval, if necessary.
BACKGROUND INFORMATION
ITD maintains the countywide Cisco Voice over Internet Protocol (VoIP) network. One of the features used in this network is Informacast paging. Informacast is a single platform that allows mass notifications in the form of paging for both routine and emergency communications. Additionally, Informacast is also able to integrate with legacy paging systems still in use by some County departments, which allows the County to capitalize on existing equipment and run a hybrid digital paging environment. Informacast is fully integrated with the Cisco Call Manager (Call Manager) currently utilized by County departments. ITD utilizes Singlewire’s maintenance services to troubleshoot and assist with Informacast software upgrades as it relates to integration with the Call Manager. Singlewire maintenance services have been in place since December 2011.
On March 15, 2022 (Item No. 32), the Board approved Singlewire’s Master Terms and Conditions Contract No. 22-189 and Informacast Fusion and Informacast Mobile SaaS Service Schedule Contract No. 22-190 (collectively, 2022 Contracts) with Singlewire, including non-standard terms, for Informacast software maintenance and subscription, in purchase amounts as authorized by County Policy, for the period March 15, 2022, through March 14, 2027. Upon approval of the 2022 Contracts, ITD purchased a multi-year subscription for the Informacast platform, which remains in place through 2027.
The 2022 Contracts were updated online in October 2023, without notification to the County, to incorporate the EULA that accompanied the release of an updated version of the Fusion platform. ITD reviews online terms and conditions months in advance of renewal or purchase. ITD’s review of the terms and conditions for 2024 identified the inclusion of the EULA from October 2023, which is a new set of terms and conditions requiring Board approval. Further, the Board is required to reapprove the Master Terms and Conditions and the Informacast Fusion and Informacast Mobile SaaS Service Schedule, simultaneously terminating the 2022 Contracts, as the terms are packaged together as the full set of applicable online terms. ITD purchased a five-year maintenance subscription that was paid fully upfront, so the terms were not reviewed until an upgrade to the platform was identified, per the usual process. Approval of the Agreements will allow County departments to continue use of the Informacast system to page employees in the event of emergencies or for day-to-day operations.
The Agreements are Singlewire’s standard commercial agreements, which include terms that differ from the standard County contract and omit certain County standard contract terms. The Agreements are non-negotiable, accepted when placing an order. The non-standard and missing terms include the following:
1. Governing law is the State of Wisconsin.
• The County standard contract requires California governing law.
• Potential Impact: The Agreements will be interpreted under Wisconsin law. Any questions, issues or claims arising under this Agreements will require the County to hire outside counsel competent to advise on Wisconsin law, which may result in fees that exceed the total Agreement amount.
2. Singlewire may propose amendments to the Master Agreement at any time by providing notice. Such proposed amendments are deemed accepted and become part of the Master Agreement 30 days after the date of notice. Singlewire may amend the EULA at any time by posting a revised version on the website, and such amendment becomes effective upon accessing the service after such posting.
• County Policy 11-06 requires that any changes to the contract be reduced to writing, executed and attached to the original contract and approved by the person(s) authorized to do so on behalf of the contractor and County.
• Potential Impact: The County could be agreeing to new terms without review by anyone, including County Counsel, and without approval of the new terms by the Board. County Counsel cannot advise on whether and to what extent Wisconsin law may affect the enforceability of unilateral changes to the terms.
3. Singlewire may assign the Agreements without notice to the County and without the County’s approval.
• The County standard contract requires that the County must approve any assignment of the contract.
• Potential Impact: Singlewire could assign the Agreements to a third party or business with which the County is legally prohibited from doing business due to issues of Federal debarment or suspension and conflict of interest, without the County’s knowledge. Should this occur, the County could be out of compliance with the law until it becomes aware of the assignment and terminates the Agreements. County Counsel cannot advise on whether and to what extent Wisconsin law may permit or restrict a party’s right to assign without an express provision in the Agreements.
4. The prevailing party in any legal action is entitled to recover attorneys’ fees and costs.
• The County standard contract requires each party to bear its own costs and attorney fees, regardless of who is the prevailing party.
• Potential Impact: If either party institutes any legal proceedings related to the Agreements, the prevailing party will be entitled to recover reasonable attorneys’ fees, which could exceed the total Agreements amount.
5. All disputes arising under the Agreements must be settled by binding arbitration. Disputes of $10,000 or less will be conducted telephonically, online, and/or through written submission; disputes in excess of $10,000 will take place in Milwaukee, Wisconsin.
• The County standard contract does not require arbitration.
• Potential Impact: Binding arbitration decisions are not appealable. In addition, disputes that might otherwise be settled in small claims court would incur arbitration costs that could exceed the costs of a small claims action, and the Agreement amount. County Counsel cannot advise on whether and to what extent such arbitration provisions may be enforceable against a government entity under Wisconsin law.
6. Under the Master Agreement, the County is required to indemnify Singlewire against claims arising from the County’s: (1) negligence; (2) breach of any representation, warranty or covenant made under the Agreements; (3) access to, use of or receipt of the products or services in a manner not authorized by the applicable Agreements; (4) use of the products or services in combination with any software, hardware, equipment or technology not provided or authorized in writing by Singlewire; (5) modifications to the products or services not made by Singlewire; or (6) data or access to, use of or receipt of the products or services, infringes or constitutes a wrongful use of any third party’s Intellectual Property rights, any right of publicity or privacy, or is libelous or defamatory. In addition, under the EULA the County is required to indemnify Singlewire against third party claims arising out of the County’s use of Singlewire’s services, violation of applicable service agreements, or the County’s infringement of any third party’s intellectual property rights.
• The County standard contract does not include any indemnification or defense by the County of a contractor.
• Potential Impact: By agreeing to indemnify Singlewire, the County could be contractually waiving the protection of sovereign immunity. Claims that may otherwise be barred against the County, time limited, or expense limited could be brought against Singlewire without such limitations and the County could be responsible to defend and reimburse Singlewire for costs, expenses, and damages, which could exceed the total Agreements’ amount. County Counsel cannot advise on, whether and to what extent, Wisconsin law may limit or expand this Agreements term.
7. The Agreements do not require Singlewire to meet the County’s insurance standards as required pursuant to County Policies, 11-05, 11-07 and 11-07SP.
• County policy requires contractors to carry appropriate insurance at limits and under conditions determined by the County’s Risk Management Department and as set forth in County policy and in the County standard contract.
• Potential Impact: The County has no assurance that Singlewire will be financially responsible for claims that may arise under the Agreements, which could result in expenses to the County that exceed the total Agreements’ amount.
8. Singlewire’s maximum liability to the County under the Master Agreements is limited to the amount actually paid in the 12 months preceding the event giving rise to the claim, excluding Singlewire’s gross negligence or willful misconduct. Singlewire’s maximum liability to the County under the EULA is limited to $100 without exclusions.
• The County standard contract does not include a limitation of liability.
• Potential Impact: Claims could exceed the liability cap and the Agreements amount leaving the County financially liable for the excess. County Counsel cannot advise on, whether and to what extent, Wisconsin law may limit or expand the exclusion of limits to the extent prohibited by applicable law.
9. Payment terms are Net 30 days from receipt of invoice. Singlewire may suspend services until payment is received and/or terminate future services for failure to timely make payments.
• County standard payment terms are Net 60 days with no interest or late payment penalties.
• Potential Impact: County standard processing time is 60 days or more. Failing to pay within 30 days may result in a material breach of the Agreements, which could allow Singlewire to terminate the Agreements and seek other legal remedies, including suspending County’s access to the service until payment is made.
10. Venue for disputes arising under the Agreements is in the U.S. District Court for the Eastern District of Wisconsin or the courts of the State of Wisconsin covering Dane County, Wisconsin.
• County Policy 11-05 requires venue for disputes in Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: Having a venue in Dane County, Wisconsin may result in additional expenses that exceed the amount of the Agreements.
ITD recommends approval of the Agreements with Singlewire, including non-standard terms, to continue to utilize Singlewire’s software maintenance subscriptions for critical paging software for the continued period of February 11, 2025, through March 14, 2027.
PROCUREMENT
Purchasing supports the non-competitive procurement of Singlewire, as it is the sole source provider of Informacast software and its associated maintenance subscription. This software has been in use since March 2022 and has continued to meet the County’s needs. Transitioning to a similar product would involve significant time and additional costs, as well as the challenge of mitigating potential communication impacts, many of which are critical. The Agreements, including non-standard terms, will be used to accompany future purchases to be approved, as necessary, per County policy 11-04 Procurement of Goods, Supplies, Equipment and Services.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Bonnie Uphold, Supervising Deputy County Counsel, 387-5455) on January 7, 2025; Purchasing (Monica Centeno, Lead Buyer, 386-8046) on December 23, 2024; Risk Management (Gregory Ustaszewski, Staff Analyst II, 386-9008) on December 16, 2024; Finance (Ivan Ramirez, Administrative Analyst, 387-4020) on January 17, 2025; and County Finance and Administration (Paloma Hernandez-Barker, Deputy Executive Officer, 387-5423) on January 17, 2025.