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
Agreement with LexisNexis Risk Solutions FL Inc. for the Use of Accurint Virtual Crime Center Enterprise Software Services
End
RECOMMENDATION(S)
Recommendation
1. Authorize Agreement with LexisNexis Risk Solutions FL Inc., as follows:
a. Approve the Enterprise/Consortium Subscription - Schedule A, including Consortium Lead-Agency Addendum, for the provision of Accurint Virtual Crime Center Enterprise Software Services to the Sheriff/Coroner/Public Administrator, acting as the Lead Agency, in a total aggregate amount not to exceed $1,824,456, for the period of July 1, 2023, through March 31, 2028, with the option to extend the Agreement up to five additional one-year periods, upon 30 days’ advance written notice to LexisNexis Risk Solutions FL Inc. prior to the end of the initial term or then-current renewal term.
b. Accept Master Terms and Conditions - Government, including non-standard terms, for the use of data products, data applications and other software-related services, effective upon execution of the Enterprise/Consortium Subscription - Schedule A listed in Recommendation No. 1.a., and continuing until terminated by either party.
2. Approve the San Bernardino County Data Sharing Initiative, Memorandum of Understanding template, for use of the Accurint Virtual Crime Center, to allow for data sharing collaboration amongst the Sheriff/Coroner/Public Administrator and local law and justice agencies to improve the effectiveness of the San Bernardino County Criminal Justice System, effective upon execution by all parties through March 31, 2028, with the option to extend the Memorandum of Understanding template up to five one-year periods upon written agreement between the Sheriff/Coroner/Public Administrator and LexisNexis Risk Solutions FL Inc.
3. Authorize the Sheriff/Coroner/Public Administrator, or Undersheriff, acting as the Lead Agency, to execute the San Bernardino County Data Sharing Initiative, Memorandum of Understanding, for use of the Accurint Virtual Crime Center agreements with Participating Agencies and/or Associate Members, including non-substantive changes and any extensions to the term of the agreement, on behalf of the County, subject to review by County Counsel.
4. Authorize the Chief Probation Officer and District Attorney, acting as a Participating Agency or Associate Member, to execute the San Bernardino County Data Sharing Initiative, Memorandum of Understanding, and Consortium Sub-Agency Addendum, for the use of the Accurint Virtual Crime Center, including non-substantive changes and any extensions to the term of the agreement with LexisNexis Risk Solutions FL, Inc., referenced in Recommendation No.1, on behalf of the County, subject to review by County Counsel.
(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.
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). The prorated first-year costs for Accurint Virtual Crime Center (AVCC) software subscription services (Services) in the amount of $277,350 will be funded through the United States Department of Homeland Security Grant Program (HSGP) Fiscal Year 2020 award ($108,704) and the Sheriff/Coroner/Public Administrator’s (Department) existing 2023-24 budget allocation (4430001000) ($168,646). Of the $168,646 due for the first year of Services, $54,710 is the Department’s assessment and $113,936 will be reimbursed by the remaining Participating Agencies in the San Bernardino County Data Sharing Initiative (SBCDSI). Sufficient appropriation is included in the Department’s 2023-24 budget and will be included in future recommended budgets as noted:
|
Year |
Period |
AVCC Subscription Fee |
HSGP |
Department Assessment |
Participating Agencies’ Assessment |
|
1 |
July 1, 2023 - March 31, 2024 |
$277,350 |
$108,704 |
$54,710 |
$113,936 |
|
2 |
April 1, 2024 - March 31, 2025 |
$369,800 |
$369,800 |
$0 |
$0 |
|
3 |
April 1, 2025 - March 31, 2026 |
$380,894 |
$380,894 |
$0 |
$0 |
|
4 |
April 1, 2026 - March 31, 2027 |
$392,321 |
$392,321 |
$0 |
$0 |
|
5 |
April 1, 2027 - March 31, 2028 |
$404,091 |
$404,091 |
$0 |
$0 |
|
Total |
$1,824,456 |
$1,655,810 |
$54,710 |
$113,936 |
The Department anticipates receiving HSGP funding for future AVCC Services; however, if HSGP funding is unavailable, each Participating Agency and/or Associate Member will reimburse the Department a percentage of the yearly AVCC Service fee as assessed by the SBCDSI Association. Future and necessary purchases will be processed within the requirements in County Policy, including seeking Board of Supervisors (Board) approval and budget appropriation, if necessary.
BACKGROUND INFORMATION
After the events of September 11, 2001, law enforcement agencies at all levels around the country recognized the need for more extensive and expedited information sharing between agencies. In 2009, the County law and justice agencies formed the SBCDSI to collaborate on data sharing to improve the effectiveness of the County Criminal Justice System.
On December 7, 2021 (Item No. 74), the Board accepted Grant Award No. 2020-0095 in the amount of $2,323,837, from the California Governor’s Office of Emergency Services (CAL OES) for the Fiscal Year 2020 HSGP, of which $477,264 was allocated to the Department. The HSGP requires that a minimum of 25 percent of the total subaward amount ($119,316) must be dedicated to Law Enforcement Terrorism Prevention Activities (LETPA). The AVCC software meets the requirements of LETPA.
The Master Terms and Conditions - Government (GMTC), as noted in Recommendation No. 1.b., is the standard contract for use of all data products, data applications, and other related services offered by LexisNexis Risk Solutions FL Inc. (LexisNexis) and incorporates references to the Enterprise/Consortium Subscription - Schedule A (Agreement), which delineates the specific services and additional terms and conditions provided in the Agreement. The GMTC includes non-standard terms that differ from the County’s standard contract, which include the following:
1. The GMTC is for any services rendered and shall be in effect for any term provided on an incorporated Schedule A; however, if the Schedule A expires and LexisNexis still provides services, the GMTC shall continue for an indefinite term until the services are no longer being utilized by the County.
• County Policy 11-06SP does not permit indefinite contracts unless approved by the Board.
• Potential Impact: There is no end term to the GMTC and the County is indefinitely bound by the terms and conditions until the County terminates use of the provided services.
2. The County may not assign the license or GMTC without prior written consent of LexisNexis; however, the GMTC is silent on any assignment by LexisNexis.
• County policy requires that the County approve any assignment of a contract.
• Potential Impact: LexisNexis may assign the Agreement to another entity without the County’s knowledge or approval; however, the Department believes access to the data provided by the software services negates any potential risk associated with transfer of the Agreement.
3. The GMTC does not require LexisNexis to meet the County’s Insurance standards as required pursuant to County Policy 11-07; however, insurance standards are met within Schedule A.
• County Policy requires contractors to carry appropriate insurance limits and under conditions determined by the County’s Risk Management Department as set forth in the County standard contract.
• Potential Impact: If the Schedule A term expires and the County continues to utilize LexisNexis’ services, the County would have no assurance that LexisNexis would be financially responsible for claims that may arise from the County’s continued use of the software services, which could result in expenses to the County that exceed the total Agreement amount.
4. Regardless of the cause of loss or injury, and regardless of the nature of the legal or equitable right claimed to have been violated, LexisNexis’ aggregate liability shall never exceed the amount of fees actually paid by the County during the six month period preceding the event that gave rise to such loss or injury.
• The County standard contract does not permit the Contractor to limit its liability in the performance of a contract.
• Potential Impact: The County could potentially not recover all damages incurred during the Agreement period; however, the Department believes access to the software services negates any potential risk associated with the use of the software provided by LexisNexis.
5. To the extent permitted by applicable law, the County is required to indemnify LexisNexis from and against any and all costs, claims, demands, damages, losses, and liabilities (including attorneys’ fees and costs) related to any third-party claim based on use of information received from LexisNexis, breach of any terms and conditions of the GMTC, and any security event.
• The County standard contract does not include any indemnification or defense by the County of a contractor.
• Potential Impact: The County may have immunities that may not apply to a private entity, so the County’s risk exposure is broader.
6. The GMTC does not contain the standard contract provisions regarding Government Code Section 84308 (Senate Bill 1439) and the disclosure of campaign contributions to a member of the Board or other County elected officer.
• Under the County standard contract, the contractor states it has disclosed campaign contributions of more than $250 to any member of the Board or other County elected officer and completed a form providing additional information.
• Potential Impact: The County may have difficulty gathering information about campaign contributions made by LexisNexis.
While these are notable exceptions to the County’s standard contract language, the Department recommends approval of the GMTC, including non-standard terms; Agreement and included Consortium Lead Agency Addendum, as noted in Recommendation No. 1, to provide law and justice agencies within the SBCDSI access to the AVCC enterprise software services through March 31, 2028. County Counsel and Risk Management have reviewed and provided input on the proposed agreement with LexisNexis.
Recommendation No. 2 allows the Department to execute the AVCC Memorandum of Understanding (MOU) with Participating Agencies and Associate Members of the SBCDSI. As part of the Agreement, all Participating Agencies and Associate Members will be required to execute the AVCC MOU to determine financial contributions and responsibilities of using the AVCC system. The MOU outlines SBCDSI expectations, formalizes relationships between parties, and outlines the commitments necessary for the successful continuance of the SBCDSI.
Approval of Recommendation No. 3 will authorize the Sheriff/Coroner/Public Administrator, or Undersheriff, to execute, as the Lead Agency, the Initiative AVCC MOU with all Participating Agencies and Associate Members.
Approval of Recommendation No. 4 will authorize the Chief Probation Officer and District Attorney to execute the Consortium Sub-Agency Addendum and MOU, acting as a Participating Agency or Associate Member, on behalf of the County.
PROCUREMENT
LexisNexis holds proprietary rights to the AVCC software subscription and support services and is the single source provider for the features and capabilities of AVCC software. The Purchasing Department concurs that a non-competitive justification exists with LexisNexis as the creator and owner of AVCC software and support services.
The terms in the GMTC, including non-standard terms, may be used to accompany future purchase orders issued to LexisNexis, as necessary. Per County Policy 11-04 Procurement of Goods, Supplies, Equipment and Services, non-competitive procurements in excess of $200,000 require Board approval. Additionally, 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 June 22, 2023; Purchasing (Michael Candelaria, Lead Buyer, 387-0321) on June 1, 2023; Risk Management (Victor Tordesillas, Director, 396-8621) on May 31, 2023; District Attorney (Claudia Walker, Chief of Administration, 382-3669) on May 31, 2023; Probation (Thomas Kamara, Director of Administration, 387-9631) on June 2, 2023; Finance (Erika Rodarte, Administrative Analyst, 387-4919) on June 9, 2023; and County Finance and Administration (Robert Saldana, Deputy Executive Officer, 387-5423) on June 11, 2023.