REPORT/RECOMMENDATION TO THE BOARD OF DIRECTORS
OF SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
AND RECORD OF ACTION
December 3, 2024
FROM
DAN MUNSEY, Fire Chief/Fire Warden, San Bernardino County Fire Protection District
SUBJECT
Title
Non-Financial Agreement with Limble Solutions, Inc. for Limble Work Order Software
End
RECOMMENDATION(S)
Recommendation
Acting as the governing body of the San Bernardino County Fire Protection District:
1. Approve non-financial Terms of Service and Modification to Terms of Service, including non-standard terms, with Limble Solutions, Inc., for Limble Work Order Software, beginning upon download, installation, or use of the services and continuing until terminated by either party.
2. Authorize the Fire Chief/Fire Warden to electronically accept the Terms of Service and Modification to Terms of Service Agreement identified in Recommendation No. 1.
(Presenter: Dan Munsey, Fire Chief/Fire Warden, 387-5779)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Improve County Government Operations.
Operate in a Fiscally-Responsible and Business-Like Manner.
Provide for the Safety, Health and Social Service Needs of County Residents.
FINANCIAL IMPACT
Approval of the recommended actions will not result in the use of Discretionary General Funding (Net County Cost). The Limble Solutions, Inc. (Limble) Terms of Service (Agreement) and Modification to Terms of Service are non-financial in nature and do not commit the San Bernardino County Fire Protection District (SBCFPD) to make any purchases. If future purchases are made in conjunction with the Agreement, SBCFPD will adhere to purchasing policies and return to the Board of Directors (Board) for approval, if necessary.
BACKGROUND INFORMATION
On December 7, 2021 (Item No. 80), the SBCFPD Board of Directors (Board) approved a 25-year Lease Agreement with the Inland Valley Development Agency, for the new SBCFPD headquarters facility. SBCFPD’s previous headquarters facility was a County owned building whose maintenance requests were processed through the County’s maintenance system. Since SBCFPD’s new headquarters facility is a leased building, SBCFPD is no longer able to use the County’s maintenance system for its work orders.
Limble Work Order Software is a web-based program that allows for the management of maintenance requests, scheduling and monitoring of work orders, and assignment of tasks to individual staff. This program will allow SBCFPD to manage maintenance requests and work orders for the Fire Headquarters building.
The Agreement is Limble’s standard commercial contract, which includes terms that differ from the standard County contract and omits certain County standard contract terms. The Agreement is a non-negotiable clickwrap agreement accepted upon downloading, installing, or using the services. The non-standard and missing terms include the following:
1. Limble may change the Agreement terms at any time by posting changes on the website without providing notice. SBCFPD’s continued use of the services constitutes acceptance of the modified terms.
• The County standard contract 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: SBCFPD 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 Utah law may affect the enforceability of unilateral changes to the terms.
2. There is no provision in the Agreement addressing each party’s responsibility for paying attorneys’ fees.
• The County standard contract requires each party to bear its own costs and attorney fees, regardless of who is the prevailing party.
• Potential Impact: County Counsel cannot advise on whether and to what extent Utah law may affect a party’s requirement to pay the prevailing party’s attorneys’ fees and costs in a legal action where no specific provision is provided in the Agreement.
3. The Agreement does not require Limble to indemnify SBCFPD, as required by County Policy 11-07, including for intellectual property infringement claims.
• The County standard contract indemnity provision requires the contractor to indemnify, defend, and hold the County harmless from third party claims arising out of the acts, errors or omissions of any person. The standard contract provision for intellectual property indemnity is: Contractor will indemnify, defend, and hold harmless County and its officers, employees, agents and volunteers from any and all third party claims, costs (including without limitation reasonable attorneys’ fees), and losses for infringement of any United States patent, copyright, trademark or trade secret (Intellectual Property Rights) by any goods or services.
• Potential Impact: Limble is not required to defend, indemnify or hold SBCFPD harmless from any claims, including indemnification for claims arising from Limble’s negligent or intentional acts and intellectual property infringement. If SBCFPD is sued for any claim, including intellectual property infringement based on its use of Limble’s software or services, SBCFPD may be solely liable for the costs of defense and damages, which could exceed the total Agreement amount. County Counsel cannot advise on whether and to what extent Utah law may allow the County to require Limble to defend or indemnify it absent an express provision in the Agreement.
4. The Agreement does not require Limble to meet SBCFPD’s insurance standards as required pursuant to County Policy 11-07.
• County Policy requires contractors to carry appropriate insurance at limits and under conditions determined by the County’s Risk Management Department and set forth in the County standard contract.
• Potential Impact: SBCFPD has no assurance that Limble will be financially responsible for claims that may arise from SBCFPD’s use of the service, which could result in expenses to SBCFPD that exceed the total amount paid to Limble.
5. Limble limits its aggregate maximum liability to the amount of fees paid to Limble for the applicable services during the twelve-month period prior to the date the cause of action arose.
• The County standard contract does not include a limitation of liability.
• Potential Impact: Claims could exceed the liability cap and the Agreement amount, leaving SBCFPD financially liable for the excess.
6. Venue for disputes arising under the Agreement is in the federal and state courts in Salt Lake City or County, Utah.
• The County standard contract requires venue for disputes in the Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: Having a venue in Salt Lake City or County, Utah, may result in additional expenses that exceed the amount of the Agreement.
Notwithstanding the non-standard provisions, SBCFPD is recommending that the Board approve the Agreement associated with Limble Work Order Software licenses, as it will allow SBCFPD to manage maintenance requests and work orders.
PROCUREMENT
The recommended Agreement will be used to accompany future purchase orders 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 Counsel (Richard Luczak, Deputy County Counsel, 387-5455) on November 5, 2024; Risk Management (Greg Ustaszewski, Staff Analyst II, 386-8623) on November 7, 2024; Purchasing (Alberto Cazares, Lead Buyer, 387-3376) on November 20, 2024; Finance (Ivan Ramirez, Administrative Analyst, 387-4020) on November 7, 2024; and County Finance and Administration (Valerie Clay, Deputy Executive Officer, 387-5423) on November 13, 2024.