REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
June 27, 2023
FROM
SHANNON D. DICUS, Sheriff/Coroner/Public Administrator
SUBJECT
Title
End User License Agreement with Attachmate Corporation, a Micro Focus Company, for Desktop Software Licenses and Support Services
End
RECOMMENDATION(S)
Recommendation
1. Authorize the Purchasing Agent to issue a Purchase Order to Attachmate Corporation, a Micro Focus Company, for the provision of Reflection Desktop terminal emulation software licenses, for a 12-month period, including support services, in an amount not to exceed $137,400, effective on the date that the Sheriff/Coroner/Public Administrator commences use of the software, estimated to be in July 2023.
2. Authorize the Purchasing Agent to sign the non-financial End User License Agreement and incorporated Addendum to Micro Focus End User License Agreement, including non-standard terms, and Additional License Authorizations, with Attachmate Corporation, a Micro Focus Company, for future purchases as authorized by County Policy, for the period set forth in each invoice or purchase document.
3. Direct the Purchasing Agent to transmit the executed End User License Agreement and incorporated Addendum to Micro Focus End User License Agreement, and Additional License Authorizations, to the Clerk of the Board of Supervisors within 30 days of execution.
(Presenter: Ernie Perez, Deputy Chief, 387-3760)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
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 this item will not result in the use of Discretionary General Funding (Net County Cost). The cost of Reflection Desktop terminal emulation software licenses in the amount of $137,400 will be funded within the Sheriff/Coroner/Public Administrator’s (Department) existing 2022-23 budget (4430001000).
BACKGROUND INFORMATION
The Department’s Technical Services Division (TSD) is responsible for all computer-related technology, data, and communication systems within the Department, and provides direct end-user support, ongoing maintenance, enhancements, and upgrades to departmental systems through four working groups: System Support/Development, Operations Infrastructure, Service Desk, and Administration. Advancements to law enforcement technology require that TSD continually enhance current systems to help improve investigations, provide secure data storage and accurate information in a timely manner.
Approval of Recommendation No. 1 will authorize the Purchasing Agent to issue a non-competitive Purchase Order to Attachmate Corporation (Attachmate), a Micro Focus Company, for Reflection Desktop terminal emulation software licenses, and 12-months of support services, that will increase user productivity and provide Department safety and professional personnel with secure and reliable access to the Department’s Jail Information Management System (JIMS).
The End User License Agreement (EULA) is Attachmate’s standard contract and incorporates the Addendum to the Micro Focus EULA (Addendum), which includes the following terms that differ from the standard County contract:
1. The EULA requires Attachmate to only name the County and its officers, employees, and agents as additional insured; it does not require Attachmate’s insurance policies to contain additional insured endorsements.
• County Policy 11-07 requires that contractor’s insurance policies, except for Worker’s Compensation, Errors and Omissions, and Professional Liability policies, shall contain additional endorsements naming the County and its officers, employees, agents, and volunteers as additional names insured with respect to liabilities arising out of the performance of services.
• Potential Impact: While Attachmate agreed to name the County and its officers, employees and agents as additional insured, they rejected including the County’s volunteers. By Attachmate not agreeing to provide additional insured endorsements, the County has limited assurance that Attachmate will be financially responsible for claims that may arise from the County’s use of the software, which could result in expenses to the County that exceed the total contract amount.
2. The EULA does not allow for periodic review of Attachmate’s insurance policies by the County.
• County Policy 11-07 requires that the contractor’s insurance requirements are subject to periodic review by the County.
• Potential Impact: The County will have no assurance that Attachmate’s insurance policies have not been amended during the course of the contract. The County may be financially responsible for any claims that may arise from the County’s use of the software, which could result in expenses that exceed the total contract amount.
While these are notable exceptions to the County’s standard contract language, the Department recommends approval of the EULA and incorporated Addendum, including non-standard terms, for the provision of Attachmate’s Reflection Desktop software to allow Department personnel secure access to JIMS. County Counsel and Risk Management have reviewed and provided input on the proposed agreement with Attachmate.
PROCUREMENT
Attachmate is the developer and creator of the Reflection Desktop software and holds proprietary rights for maintenance and software updates. The terms in the EULA, and incorporated Addendum, including non-standard terms, may be used to accompany future purchase orders issued to Attachmate as necessary. The Reflection Desktop software is intrinsically bound and accepted as a part of the JIMS, therefore, no other software products can be used in its place. The Purchasing Department concurs that a non-competitive proprietary justification exists with Attachmate as the developer and creator of the Reflection Desktop Software.
County Policy 11-05 requires departments to obtain Board approval for the procurement of goods and services with non-standard terms and conditions.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Richard D. Luczak, Deputy County Counsel, 387-5455) on May 30, 2023; Purchasing (Michael Candelaria, Lead Buyer, 387-0321) on June 2, 2023; Risk Management (Victor Tordesillas, Director, 396-8621) on May 31, 2023; Finance (Erika Rodarte, Administrative Analyst, 387-4919) on June 8, 2023; and County Finance and Administration (Robert Saldana, Deputy Executive Officer, 387-5423) on June 11, 2023.