REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
October 8, 2024
FROM
LYNN FYHRLUND, Chief Information Officer, Innovation and Technology Department
SUBJECT
Title
Non-Financial End User License Agreements with GEO Jobe GIS Consulting, LLC for Administrative Software and Support
End
RECOMMENDATION(S)
Recommendation
1. Approve the following non-financial End User License Agreements, including non-standard terms, with GEO Jobe GIS Consulting, LLC for administrative software and support, simultaneously terminating Contract Nos. 20-982 and 20-983, retroactively effective February 27, 2023 and continuing until terminated by either party.
a. Clean My Org
b. Admin Tools for ArcGIS
c. Backup My Org
2. Authorize the Chief Information Officer or Assistant Chief Information Officer to electronically accept the End User License Agreements in Recommendation No. 1, with GEO Jobe GIS Consulting, LLC, and any future updates to the End User License Agreements, as they pertain to changes to the administrative software and support, subject to County Counsel review, provided that such updated terms do not substantively modify the terms of the original End User License Agreements.
3. Direct the Chief Information Officer or Assistant Chief Information Officer to transmit printed copies of any updated terms to the End User License Agreements in Recommendation No. 1, 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 Clean My Org End User License Agreement, Admin Tools for ArcGIS End User License Agreement, and Backup My Org End User License Agreement (collectively, “EULAs”) with GEO Jobe GIS Consulting, LLC (GEO Jobe) are non-financial in nature and do not commit the County to make any purchases. If future purchases are made under the EULAs, 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’s Geographic Information System (GIS) team provides geographical data products and services to County departments and other regional entities. Many County departments utilize GIS to optimize their services to the public by using maps and spatial representations of data that show where things are located and how they relate to each other geographically. The County utilizes the Environmental Systems Research Institute (Esri) ArcGIS Online and ArcGIS Enterprise platforms to provide mapping and data visualization applications.
GEO Jobe is a GIS-centric company that provides administrative tools for the management of Esri’s ArcGIS Online and ArcGIS Enterprise platforms. These platforms are used daily to solve complex problems, collect data and present spatial data for analysis by both the public and staff, which requires them to be managed efficiently. GEO Jobe’s Clean My Org and Admin Tools are software products that will allow the County’s GIS platform administrators to continue managing users, content and processes on the GIS platforms to ensure optimum performance. Back Up My Org is an application that creates backups of the entire organization and can restore specific content for an individual department or on an organizational level.
On October 6, 2020 (Item No. 21), the Board approved Contract Nos. 20-982 and 20-983 (Contracts) with GEO Jobe, including non-standard terms, for administrative software and support for an indefinite term, terminable at any time.
The Contracts were updated on February 27, 2023, and a new product has been added, called Back Up My Org, and both changes require Board review and approval. The updates to the Contracts became known to ITD on June 3, 2024, as part of ITD’s annual terms review before renewal and requires Board approval of a retroactive effective date of February 27, 2023, and will supersede the previously approved Contracts. Not getting the EULAs approved will mean ITD can not effectively manage the County’s GIS platforms.
The EULAs are GEO Jobe’s standard commercial licenses and provide nearly identical terms, which include terms that differ from the standard County contract and omit certain County standard contract terms. The EULAs are non-negotiable clickwrap agreements accepted when placing an order. The non-standard and missing terms include the following:
1. Governing law for all EULAs is the State of Tennessee.
• The County standard contract requires California governing law.
• Potential Impact: The EULAs will be interpreted under Tennessee law. Any questions, issues or claims arising under any of the EULAs will require the County to hire outside counsel competent to advise on Tennessee law, which may result in fees that exceed the total EULAs amount.
2. GEO Jobe may assign any of the EULAs 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: GEO Jobe could assign any of the EULAs 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 EULAs. County Counsel cannot advise on whether and to what extent Tennessee law may permit or restrict a party’s right to assign without an express provision in the contract.
3. There is no provision in any of the EULAs 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, Tennessee 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.
4. None of the EULAs require GEO Jobe to indemnify the County, as required by County Policies 11-05 and 11-07, including for intellectual property infringement claims.
• The County standard contract indemnity provision requires the contractor to indemnify, defend, and hold 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: GEO Jobe is not required to defend, indemnify or hold the County harmless from any claims, including indemnification for claims arising from GEO Jobe’s negligent or intentional acts and intellectual property infringement. If the County is sued for any claim, including intellectual property infringement based on its use of GEO Jobe’s software or services, the County may be solely liable for the costs of defense and damages, which could exceed the total EULAs amount. County Counsel cannot advise on whether and to what extent Tennessee law may allow the County to require GEO Jobe to defend or indemnify it absent an express provision in the contract.
5. None of the EULAs require GEO Jobe 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 GEO Jobe will be financially responsible for claims that may arise under any of the EULAs, which could result in expenses to the County that exceed the total EULAs amount.
6. There is no stated venue in the EULAs.
• County Policy 11-05 requires venue for disputes in Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: GEO Jobe is registered in the State of Tennessee, with its principal office listed in Harrison County, Mississippi. Having no express venue in the EULAs means that venue anywhere in the State of Tennessee or Harrison County, Mississippi, could be applied to disputes arising under the EULAs, which may result in additional expenses that exceed the amount of the EULAs.
7. GEO Jobe provides the services and/or products “AS IS” and disclaims all warranties of any kind.
• County Policy 11-05 requires a contractor to fully warrant its services and products.
• Potential Impact: The County’s use of the software or services is solely at its own risk. County Counsel cannot advise on, whether and to what extent, Tennessee law may limit or expand the disclaimers of warranty to the extent prohibited by applicable law.
ITD recommends approval of the EULAs with GEO Jobe, including non-standard terms, to allow ITD to continue to access software enhancements designed for Esri’s ArcGIS platform. The perpetual agreement is a vendor requirement though it can be terminated by the County at any time. The administrative software will allow ITD to effectively manage the County’s GIS platforms by detecting and deleting inactive users, unused content, and ensure consistent functionality for users and the public.
PROCUREMENT
The EULAs, 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.
GEO Jobe has been in use since 2021 and offers a comprehensive suite of tools that allows for administration of the County’s enterprise GIS platforms that are not otherwise available. GEO Jobe’s set of tools is unique and the complete functionality cannot be found with any other vendor. The Purchasing Department supports the non-competitive justification with GEO Jobe based on functional specifications.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Bonnie Uphold, Supervising Deputy County Counsel, 387-5455) on September 6, 2024; Purchasing (Jessica Barajas, Supervising Buyer, 387-2065) on September 6, 2024; Risk Management (Loretta Acuna, Staff Analyst II, 386-9039) on September 6, 2024; Finance (Iliana Rodriguez, Administrative Analyst, 387-4205) on September 19, 2024; and County Finance and Administration (Paloma Hernandez-Barker, Deputy Executive Officer, 387-5423) on September 23, 2024.