REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
December 5, 2023
FROM
LUTHER SNOKE, Chief Executive Officer, County Administrative Office
SUBJECT
Title
Agreement with ESi Acquisition, Inc., for WebEOC Services
End
RECOMMENDATION(S)
Recommendation
1. Approve Agreement with ESi Acquisition, Inc. for WebEOC migration from a local environment to a hosted environment, in the amount of $377,112, plus a one-time migration fee of $15,000, for a total of $392,112, for the period of January 1, 2024 to June 30, 2028.
2. Authorize the Chief Executive Officer, Deputy Executive Officer, or the Director of Emergency Management to execute the Agreement with ESi Acquisition, Inc.
3. Authorize the Deputy Executive Officer to execute Statements of Work or Quotes, and electronically accept the non-standard terms of the Agreement in Recommendation No. 1 with ESi Acquisition, Inc., and any future amendments, as they pertain to changes to the use of software, subject to review by County Counsel, provided that the Statements of Work, Quotes, and amended terms do not substantially change the terms of the Agreement with ESi Acquisition, Inc., the cost, or extend the contract period .
4. Direct the Deputy Executive Officer or the Director of Emergency Management to transmit the executed Agreement and any amendments to the Clerk of the Board of Supervisors within 30 days of execution.
(Presenter: Daniel Muñoz, Deputy Executive Officer, 388-5807)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Improve County Government Operations.
Operate in a Fiscally-Responsible and Business-Like Manner.
Ensure Development of a Well-Planned, Balanced, and Sustainable County.
Pursue County Goals and Objectives by Working with Other Agencies and Stakeholders.
FINANCIAL IMPACT
Approval of this item will not result in the use of additional Discretionary General Funding (Net County Cost). Sufficient appropriation has been included in the Office of Emergency Services (OES) 2023-24 budget and will be included in future recommended budgets. The one-time migration cost of $15,000 to be applied in 2023-24 and annual costs for services are reflected in the following table:
|
Service Period |
Cost |
|
One-Time Cost for Migration to Cloud |
$15,000 |
|
January 1, 2024 - December 31, 2024 |
$79,453 |
|
January 1, 2025 - December 31, 2025 |
$81,836 |
|
January 1, 2026- December 31, 2026 |
$84,291 |
|
January 1, 2027 - December 31, 2027 |
$86,820 |
|
January 1, 2028- June 30, 2028 |
$44,712 |
|
Total |
$392,112 |
BACKGROUND INFORMATION
OES administers the WebEOC system that has been designated as the County’s disaster communication platform. During the activation of the County’s Emergency Operations Center (EOC), this platform is utilized by all County departments and the 24 Cities and Towns throughout the region. WebEOC allows stakeholders a real-time platform to report critical information, which creates a common operating picture and increases situational awareness. ESi Acquisition, Inc. (Esi) will migrate the WebEOC system from a local environment over to a hosted environment.
The WebEOC Agreement includes terms that differ from the standard County contract and omits certain County standard contract terms. ESi is unwilling to negotiate these terms. The non-standard and omitted terms are:
1. ESi requires payment prior to the hosting subscription being made available, versus 60 days from invoice.
• The County’s standard payment term is Net 60 days with no interest or late payment penalties, in accordance with County Policy 11-05.
• Potential Impact: The County will need to make payment per the terms of the agreement, versus 60 days from invoice.
2. ESi charges a late fee of 1.5% or less, which will accrue on unpaid invoices 30 days after their submission date and for each additional 30-day late period.
• The County’s standard payment term is Net 60 days with no interest or late payment penalties, in accordance with County Policy 11-05.
• Potential Impact: The County will need to pay a late fee if invoices are not paid in accordance with the terms of the agreement.
3. ESi may assign the agreement without the County’s advance written approval.
• The County’s standard assignment term is that the County must approve any assignment of the contract, in accordance with County Policy 11-05.
• Potential Impact: The County, without its prior approval and the advance notice that it requires, may face assignment of the contract that is not due to operation of law, corporate reorganization, consolidation, merger, or sale of all of its assets.
4. ESi provides a 60-day warranty during which it will make reasonable efforts to resolve software issues and, if it cannot, the County can cancel the agreement without penalty, but ESi disclaims any warranty in connection with the use of the software for high-risk activities.
• The County’s standard warranty term is that the contractor fully warrants its services and product, in accordance with County Policy 11-05.
• Potential Impact: The County could incur additional costs due to the limited nature of the warranty.
5. ESi’s liability is limited to the actual money paid to ESi by the County during a 12-month period.
• The County’s standard limitations of liability term is that the contractor may not limit its liability in performance of the contract, in accordance with County Policy 11-05.
• Potential Impact: The limitation of liability reduces the type and amount of claims the County may pursue against ESi.
6. The County agrees to indemnify, defend, and hold harmless ESi for liability, etc., arising out of or in connection with the County’s use or modification of the software.
• The County’s standard indemnification term is to require the contractor to indemnify and hold harmless the County, and there is no mutual indemnification, in accordance with County Policy 11-07.
• Potential Impact: The indemnity obligations, as well as the limited indemnification and insurance obligations imposed on ESi, could result in additional costs to the County; although, the likelihood of this occurring is low.
7. ESi indemnifies the County for any claims by a third party that the software provided by ESi infringes the third party’s U.S. patent or copyright, but ESi has no additional indemnification or insurance obligations.
• The County’s standard indemnification term is to require the contractor to indemnify and hold harmless the County, and there is no mutual indemnification, in accordance with County Policy 11-07.
• Potential Impact: The indemnity obligations, as well as the limited indemnification and insurance obligations imposed on ESi, could result in additional costs to the County; although, the likelihood of this occurring is low.
8. The County will need to pay for ESi’s costs, expenses, and attorney’s fees in any arbitration, suit, or action brought by the County against ESi to enforce the terms of the agreement, any Exhibits or Quotes or Statement of Work thereto, or any rights or obligations thereunder.
• The County’s standard term for attorney’s fees and costs is that neither party is responsible to pay for the other party’s attorney fees and costs, except for indemnity obligations, in accordance with County Policy 11-05.
• Potential Impact: This provision could result in additional costs for the County.
9. The agreement does not include the County’s standard insurance terms for Additional Insured, Waiver of Subrogation Rights, Policies Primary and Non-Contributory, Severability of Interests, Proof of Coverage, Acceptability of Insurance Carrier, Deductibles and Self-Insured Retention, Failure to Procure Coverage, Insurance Review, Worker’s Compensation/Employers Liability, Commercial/General Liability Insurance, Automobile Liability Insurance, Umbrella Liability Insurance, or Cyber Liability Insurance.
• The County standard contract requires contractors and subcontractors to carry appropriate insurance limits and under conditions determined by the County’s Risk Management Department, in accordance with County Policy 11-07SP.
• Potential Impact: The County has no assurance that ESi will be financially responsible for claims that may arise from the County’s use of its software, which could result in expenses to the County that exceed the total cost of the agreement.
10. The agreement indemnifies the contractor if there is any breach of confidentiality.
• The County’s standard indemnification clause does not provide for mutual indemnification, in accordance with County Police 11-07SP.
• Potential Impact: The County has no assurance that ESi will act in the interest of the County to protect its confidential information.
On July 26, 2016 (Item No. 14), the Board of Supervisors (Board) authorized the Purchasing Agent to issue a Purchase Order for the WebEOC software. OES recommends the Board approve the Agreement with ESi as it is a requirement for the WebEOC services to migrate to a hosted environment and for the services to continue. WebEOC is the primary reporting software during emergency incidents and is the familiar tool to all stakeholders in the county.
PROCUREMENT
Purchasing continues to support this non-competitive procurement based on the proprietary nature of the software as there are no other known providers which offer compatible hosting solutions for WebEOC.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Miles Kowalski and Grace Parsons, Deputies County Counsel, 387-5455) on November 22, 2023; Purchasing (Ariel Gill, Supervising Buyer, 387-2070) on November 21, 2023; Risk Management (Gregory Ustaszewski, Staff Analyst, 386-8623) on November 1, 2023; Innovation and Technology Department (Cody Barnes, IT Finance Officer, 388-5524) on November 1, 2023; Finance (Carl Lofton, Administrative Analyst, 387-5407) on November 22, 2023; and County Finance and Administration (Robert Saldana, Deputy Executive Officer, 387-5423) on November 16, 2023.