REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
December 3, 2024
FROM
LYNN FYHRLUND, Chief Information Officer, Innovation and Technology Department
SUBJECT
Title
Non-Financial Agreements with Genetec, Inc., for Comprehensive Technical Training Programs
End
RECOMMENDATION(S)
Recommendation
1. Approve non-financial Professional Services Terms, including non-standard terms, with Genetec Inc., for comprehensive technical training programs for video and access control security systems, in purchase amounts as authorized by County Policy, for the period beginning December 3, 2024, and continuing until terminated by either party.
2. Approve non-financial General Terms of Sale, including non-standard terms, with Genetec Inc., for comprehensive technical training programs for video and access control security systems, in purchase amounts as authorized by the County Policy, for the period beginning December 3, 2024, and continuing until terminated by either party.
3. Authorize the Chief Information Officer, Assistant Chief Information Officer, or IT Division Chief to electronically accept the agreements in Recommendation Nos. 1 and 2 and future updates to the agreements, subject to review by County Counsel, provided that such updated terms do not substantively modify the terms of the original agreements.
4. Direct the Chief Information Officer, Assistant Chief Information Officer, or IT Division Chief to transmit any non-substantive updated terms to the agreements in Recommendation Nos. 1 and 2 to the Clerk of the Board of Supervisors within 30 days of acceptance or execution.
(Presenter: Lynn Fyhrlund, Chief Information Officer, 388-5501)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
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 Professional Services Terms (PST) and General Terms of Sale (GTS) (collectively, Agreements) with Genetec, Inc. (Genetec) for comprehensive technical training programs 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
The County utilizes Genetec video management systems (VMS) throughout most County buildings and facilities. Genetec is a company that specializes in unified physical security, public safety and operations. The County is in the process of continuing to standardize the Genetec platform across any remaining County buildings and facilities that are not currently utilizing the Genetec platform. The primary objective is to standardize the Genetec equipment and software platform for video management and surveillance throughout all County buildings and facilities.
ITD provides staff support to monitor, troubleshoot, and provide customer support for the Genetec VMS used by County departments. Genetec has comprehensive technical training programs available to ensure ITD staff stay current with the latest VMS knowledge.
On November 17, 2020 (Item No. 67) the Board approved Contract Nos. 20-1103 and 20-1104 with Convergint Technologies, LLC (Convergint), and Siemens Industries, Inc. (Siemens), respectively, to provide Genetec VMS, equipment, and software for a term of November 17, 2020, through November 16, 2025. The primary objective of the Board item was to standardize the Genetec equipment and software platform for video management and surveillance throughout County buildings and facilities.
Genetec offers certification courses for their VMS. Genetec provides comprehensive technical certification training programs that allow staff to gain knowledge and obtain Genetec certifications. ITD intends to leverage Genetec’s training and certifications to ensure that the trained staff have the ability to provide the most up-to-date VMS protection for County buildings and facilities.
The GTS is Genetec’s standard commercial contract, which includes terms that differ from the standard County contract and omits certain County standard contract terms. The GTS is a non-negotiable clickwrap accepted by click-to-accept. The PST is Genetec’s standard commercial contract, which includes terms that differ from the standard County contract and omits certain County standard contract terms. The PST is a non-negotiable clickwrap accepted by click-to-accept. To the extent the PST does not address specific terms, the GTS terms will control. The non-standard and missing terms in the PST and GTS include the following:
1. Governing law is the Commonwealth of Massachusetts.
• The County standard contract requires California governing law.
• Potential Impact: The Agreements will be interpreted under Massachusetts law. Any questions, issues or claims arising under the GTS will require the County to hire outside counsel competent to advise on Massachusetts law, which may result in fees that exceed the total GTS amount.
2. There is no provision in either the GTS or the PST 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, Massachusetts 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 contract.
3. Under the GTS, the County is required to defend and indemnify Genetec against all liability resulting from County’s breach of applicable law. Under the PST, the County is further required to defend and indemnify Genetec against all liability resulting from: (a) the County’s breach of warranty that County materials do not infringe any third-party intellectual property rights; (b) specifications or materials supplied by the County; (c) damages of any kind resulting from or related to any accident, abuse, or misapplication of deliverables, or their use in any way incompatible with the PST, the project statement, Master Agreement, or relevant documentation; (d) use of the deliverables in association with products or equipment not specified by Genetec as being compatible with such deliverables; and/or (e) County’s failure to comply with the applicable law.
• The County standard contract does not include any indemnification or defense by the County of a contractor.
• Potential Impact: By agreeing to indemnify Genetec, 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 Genetec without such limitations and the County could be responsible to defend and reimburse Genetec for costs, expenses, and damages, which could exceed the total Agreements amount. County Counsel cannot advise on whether and to what extent, Massachusetts law may limit or expand this term.
4. Neither the GTS nor the PST require Genetec 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 Genetec will be financially responsible for claims that may arise under the Agreements, which could result in expenses to the County that exceed the total Agreement amount.
5. Payment terms are Net 30 days date of receipt of invoice with late payment interest of 9% above the policy interest rate of the Bank of Canada, compounded monthly.
• 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 from receipt of invoice may result in a material breach of the GTS, which could allow Genetec to terminate the GTS and seek other legal remedies, including charging the County interest at a rate of 9% above the policy interest rate of the Back of Canada, compounded monthly, which could exceed the GTS amount.
6. There is no termination for convenience under the GTS. There is no termination for convenience under the PST of fixed budget services without penalty. Termination of a fixed budget project prior to completion is subject to an early termination fee of 50% of the fees if the scope of services does not include customer development, 75% of the fees if the scope of services includes custom development, of 100% for all other fixed budget projects.
• The County standard contract gives the County the right to terminate the contract, for any reason, with a 30-day written notice of termination without any obligation other than to pay amounts for services rendered and expenses reasonably incurred prior to the effective date of termination.
• Potential Impact: Upon termination without cause by the County, the County is required to pay at least 50%, but as much as 100% of the fees of a fixed budget project, which could result in payment liability where no funds are available due to lack of allocation or loss of funding.
7. Venue for disputes under the Agreements is in the courts based in Boston Massachusetts.
• 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 Boston, Massachusetts may result in additional expenses that exceed the amount of the Agreements.
ITD recommends approval of the Agreements, including non-standard terms, for comprehensive technical training programs for Genetec video and access control security systems.
PROCUREMENT
The Purchasing Department concurs with the recommendation for non-competitive procurement of Genetec training programs for County staff due to their specialized training. The County requires technical training for personnel on the standard Genetec platform to enhance security for County buildings and facilities. The Agreements with Genetec will support future purchases, which will be approved as needed in accordance with County Policy 11-04 on the Procurement of Goods, Supplies, Equipment and Services, provided that Genetec does not substantively modify its Agreements.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Bonnie Uphold, Supervising Deputy County Counsel, 387-5455) on October 22, 2024; Purchasing (Jessica Barajas, Supervising Buyer, 387-2065) on October 22, 2024; Risk Management (Gregory Ustaszewski, Staff Analyst II, 386-9008) on October 23, 2024; Finance (Iliana Rodriguez, Administrative Analyst, 387-4052) on November 14, 2024; and County Finance and Administration (Paloma Hernandez-Barker, Deputy Executive Officer, 387-5423) on November 14, 2024.