2. 09/01/2020 Agreement ATTACHMENT D.6
COUNTY ADMINISTRATOR
CONTR ACT SUMMARY FORM FOR CONTRACTS LESS THAN $50,000.00
Contract with: Smarsh. Contract# NIA
Effective Date: 9/1/2020
Contract Purpose/Description: Expiration Date- 911/2021
Smarsh is a test messilwe capture and archNi solution that captures cellular text
Messag2§_4irectl from the cellular 2E2yider. This ro uct assures co li is with
Public Records FS 119 reggests. and Document Retention law.
Contract is Original Agreement Contract Amendment/Extension Renewal
Contract Manager: Brian Bradley 3177 County Attorney I Stop#7
(Name) (Ext.) (Department/Stop#)
CONTRACT COSTS
Total Dollar Value of Contract: $ Current Year Portion: S
(niust W less than S50,000) (if multiyear agrecinent then
rquires B(X'C approval,unless the
mal cumulative ainouni is less than
$22,025.05 S50,()()O 0(.)) $22,025,05
Budgeted? Yes X No [I Account Codes. 001 00101 530524
Grant: S We
County Match: S n1a
ADDITIONAL COSTS
Estimated Ongoing Costs: S /yr For: n/a
(Not included in dollar value above) (e.g. maintenance,utilities,janitorial®salaries,etc.)
CONTRACT REVIEW
Changes Date Out
ra In Needed viewer
r---I/
Department Head Yes E] No
Lei +
Risk Management Yes D No Maria L.Stavik 9-28-2020
D2 q
O.M.B./Purchasing q4t C, Yes[:] Na
mmm19
County Attorney Yeso NO Christine U mben-Barrows 117120mX
Comments: insurance is not required,
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Client Information
Company Name Monroe County,FL
Address 1100 S rnomon St Reis 2 105 city Key West
State FL Zip 33040-3110
Primary Contact Name Brian Bradley Title RMLO
(Authorized User) Phone (305)292-3470 Email bradley-brian@monroecounty-fl.gov
Technical Contact Name Brian Bradley Title RMLO
Phone J30S)292 3470 Email bradley-brian@monroecounty.fl gov
Billing Contact Name Brian Bradley Title RMLO
Phone (30S)292.3470 Email bradley-brian@monroecounty-fl gov
Address 1100 Simonton St City Key West
State FL zip 33040-3110
Quote Date 04/29/2020 16 34:34 Quote Expiration 09/30/2020
Smarsh Sales Executive Shana Houlton Subscription Term 12 Months
Activation Date Upon Grant of Access to Service Historical Import Billing In Arrears
Setup Fee Billing Upon Contract Execution
Services and Fees
Rate per Quantity Minimum Minimum
Quantity
Professional Archive=SMG 200-Annual $354.24 1 $354.24
Professional Archive-SMG 200 Capture&Archive-Annual $4189 329 $14,110ZI
Professional Archive-SMG 200 Premium Ad(-Annual $28.00 270 $7,56000
Professional Archive-Extended Retention Fee(Per GO)-Annual $2.50 0 $000
Recurring Subtotal $22,025,05
One-Time Subtotal $ 0,00
Case 1712035
The Connections covered by this Order Form are allocated for the following Channel(s)
AT&T Messaging-Professional Archive 250
Notes Verizon Messaging-Professional Archive-22
Client may change how its licensed Connections are allocated with Smarsh's assistance.
if Client uses more Connections than It has licensed,Smarsh will bill for that use at$140 00 per connection plus$28.00 for each premium
Connection
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Terms & Conditions
On a date following the execution of this Order Form, Smarsh will provide Client with a license key for the Software or with login
credentials to the applicable Service("Activation Date").Service Descriptions are available at www.swnarsh.com e The Services are
Jjggal, rvi s
subject to the Smarsh Service Agreement-General Terms available atwww.smarsh.com le altServiceA —, as amended by
Exhibit A. The Services purchased by Client are also subject to the Information Security Addendum available
athILLs wwwsmarsh.co le I lnfoSec and the following Service Specific Terms:
I-L......................m_L &aj
The Professional Archive Service Specific Terms available
The following Premium Channels Service Specific Terms,as applicable-
Mobile Channels Service Specific Terms available at bt3ps 8.. ._emersh.ggmAeaai','SSTMgtileChannels and
Twitter Service Specific Terms available at Mips,/ .smarsh comfiggaVSSTTwdtgr
The Smarsh Service Agreement—General Terms(as amended by Exhibit A to this Order Form),the Information Security Addendum,the
Service Specific Terms,and this Order Form are,collectively,the"Agreement."The Initial Term of the Services shall begin on the date
this Order Form is executed and continue for the Subscription Term specified above, unless Client is adding the above Services to an
existing Service account, in which case,the above Services will sync to and co-terminate with Client's existing subscription Term. The
Services will be subject to renewals as specified in the Agreement.
For AT&T mobility subscribers,your signature below represents your acceptance of the AT&T Wireless Terms and Conditions available
at www.smarsh.com LL eLaIIATT as they apply to AT&T messages that are archived by Smarsh.
_ _
Smarsh will invoice Client for recurring Services on an annual,up-front basis or a monthly basis in arrears,as specified on page 1 of this
Order Form, Client agrees that the Recurring Subtotal above is Client's minimum commitment during each year or month, as
applicable,of the Term. Smarsh will invoice Client for any usage over the minimum quantities at the applicable rate indicated in this
Order Form. If applicable,Smarsh will invoice Client for nboarding Fees upon execution of this Order Form,unless a different billing
schedule is specified in the associated SOW.
Client authorized s tore
By ............................... ..........
Name: Title: Date:
MONROECOUNTY ATTORnY
P PR�Y;!:V AS TO FO&
CHMSTME LOOISERT 13ARROWS
ASSISTANT COUNTY ATTURNMY
nATE� ---9L2-V2Q—
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EXHIBITA
Amendment to the Smarsh Service Agreement—General Terms
This first amendment("Amendment")to the Smarsh Service Agreement-General Terms amends the Agreement between Smarsh Inc.
and Monroe County,FL This Amendment is effective on the date the Client signs the Order Form,to which this Amendment is attached
as Exhibit A.
The parties agree:
1) Replace Section I in Its entirety,as follows:
1. Services.
1.1. Smarsh will provide the Services specified in each Order Form("Services"),according to the Agreement,the
Service Specific Terms(including the applicable Service Level Agreement(s)),and the Service Descriptions,which
describe the features and functionality of each Service.The Service Specific Terms and Service Descriptions are
located atwww.simarsh.cori/1,-g al,Smarsh grants Client a revocable,non-exclusive,non-transferable,limited
license to access and use the Services purchased by Client during the Term(as defined in Section 12).
1.2. Public Records. To the extent required by the Florida Public Records Act,Chapter 119,Florida Statutes,
Smarsh shall maintain and allow access to(via Client)Public Records made or received in conjunction with the
Agreement. The Agreement may be terminated for cause by Client for Smarsh's refusal to allow access(via
Client)to Public Records. "Public Records"means and includes those items specified in Florida Statutes
Section 119.011(12),as amended from time to time,and currently defined as:All documents,papers,letters,
maps,books,tapes,photographs,films,sound recordings,data processing software,or other material,
regardless of the physical form,characteristics,or means of transmission,made or received pursuant to law or
ordinance or in connection with the transaction of official business. Public Records under this Agreement
include emails exchanged between Smarsh and Client representatives,the terms of this Agreement,all Client
invoices,and,if applicable to the Services purchased by Client,supplier and subcontractor invoices and
contracts. During the Term,and for a period of 7 days following any expiration or termination of the
Agreement,Client may,at no additional cost,export records via self-service within the Archiving Platform.if
instead,the Client's custodian of public records requests that Smarsh complete the export on Client's behalf,
Smarsh shall provide the Client with a copy of the requested records for export within a reasonable time at a
cost that does not exceed Smarsh's then-current hourly professional services rate for data extraction and
exportation plus any hardware costs for portable media. All data so provided to Client may be provided in PST,
EML,or native format,at Client's option:. Smarsh is not a pubic-facing company and does not receive or
process Public Records requests,
IF THE VENDOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE VENDOR'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRAC'T, CONTACT
THE CUSTODIAN OF PUBLIC RECORDS AT: BRIAN BRADLEY A
PHONE# 305-292-3470; EMAIL: BRADLEY-
BRI ONROECOUNTY-FL.GOV. ADDRESS: MONROE COUNTY
ATTORNEY'S OFFICE 1111 12TH Street, SUITE 408, KEY WEST, FL
33040.
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2) Replace Section 4.3 In its entirety,as follows:
As between Client and Smarsh,Client is solely responsible for the content of Client Data.Client represents and warrants that
(a)Client Data will not(I)infringe any third party right,including third party rights in patent,trademark,copyright,or trade
secret,or(6)constitute a breach of any other right of a third party,including any right that may exist under contract or tort
theories;(b)Client will comply with all applicable local,state,national,or foreign laws,rules,regulations,or treaties in
connection with Client's use of the Services,including those related to data privacy,data protection,communications,SPAM,
or the transmission,recording,or storage of technical data,personal data,or sensitive information;and(c)Client will comply
with the Acceptable Use Policy available at wwwsmarsh. Smarsh may update the Acceptable Use Policy from
time to time.
3) Replace Section 6.1 In its entirety,as follows:
Term.The Agreement will begin on the Effective Date and will remain in effect for the term specified in the Order Form or,if
no term is specified,12 months("Initial Term").The Initial Term may be renewed by Client for additional,successive 12-
month terms(each a"Renewal Term")upon the execution of a Renewal Order Form.The initial Term plus any Renewal Term
are,collectively,the"Term."Any Order Form executed after the Effective Date will co-terminate with Client's then-current
Term.
4) Replace Section 6.2 In Its entirety,as follows:
Termination for Breach.Either party may terminate this Agreement if the other party materially breaches its obligations
under this Agreement and such breach remains uncured for a period of 30 days following the non-b reaching pa rty's written
notice thereof.Smarsh may suspend Client's access to the Services in the event Client falls to pay undisputed Fees within 60
days after the due date,and Smarsh will not be liable for any damages resulting from such suspension.
5) Replace Section 7 In Its entirety,as follows:
Fees&Payment.Client will pay the fees for the Services as set forth in the Order Form("Fees").Following execution of the
Order Form,Smarsh will activate or otherwise make available the Services listed in the Order Form by either delivering the
software(if on-premise software is purchased)or providing Client with access to an account within the applicable Service
("Activation Date").Beginning on the Activation Date,Client will be invoiced for the recurring Fees per the invoice schedule
in the Order Form.One-time fees and fees for professional serv>ces will be invoiced per the terms of the Order Form,or the
applicable statement of work..Client will pay undisputed Fees within forty4lve(45)days of the date of the invoice in
accordance with Section 218.74,Florida Statutes(the"Prompt Payment Act").If Client disputes any Fees,Client must notify
Smarsh within 120 days of the date of invoice.Invoices not disputed within 120 days from the date of invoice will be deemed
accepted by Client.in accordance with the Prompt Payment Act,beginning 30 days after the payment due date,Smarsh may
charge a late fee of 1%per month on any unpaid Fees.Smarsh may suspend Client's access to the Services in the event Client
fails to pay undisputed Fees within 60 days after the due date,and Smarsh will not be liable for any damages resulting from
such suspension.Smarsh may increase Fees at any time after the Initial Term,provided that the increased Fees will only
become effective upon the commencement of the next Renewal Term following Smarsh's notice to Client of the Fee
increase."
6) Replace Section 9 In its entirety,as follows:
Taxes.All Fees payable by Client under this Agreement are exclusive of taxes and similar assessments.Smarsh acknowledges
that Client is tax-exempt.
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7) Replace Section 10.2 In Its entirety,as follows:
Obligations with Respect to Confidential Information.Each party agrees:(a)that it will not disclose to any third party,or use
for the benefit of any third party,any Confidential Information disclosed to it by the other party except as expressly permitted
by this Agreement;and(b)that it will use at least reasonable measures to maintain the confidentiality of Confidential
Information of the other party in its possession or control but no less than the measures it uses to protect Its own confidential
information.Either party may disclose Confidential Information of the other party:(i)pursuant to the order or requirement of
a court,administrative or regulatory agency,or other governmental body,provided that the receiving party,if feasible and/or
legally permitted to do so,gives reasonable notice to the disclosing party to allow the disclosing party to contest such order
or requirement;(I!)to the parties'agents,representatives,subcontractors or service providers who have a need to know such
information provided that such party shall be under obligations of confidentiality at least as restrictive as those contained in
this Agreement;or(W)pursuant to a Florida public records request,provided that the Client gives notice to Smarsh in a
reasonable amount of time to allow Smarsh the opportunity to seek a protective order preventing such disclosure.Each party
will promptly notify the other party In writing upon becoming aware of any unauthorized use or disclosure of the other
party's Confidential Information.
8) Replace Section 13.1 In Its entirety,as follows;
Client Indemnification.To the extent permitted by Section 768.28 Florida Statutes,and without in any manner waiving its
rights to sovereign immunity or increasing the limits of liability thereunder,Client will defend,indemnify and hold harmless
Smarsh,its officers,directors,employees and agents,from and against all claims,losses,damages,liabilities and expenses
(including fines,penalties,and reasonable attorneys'fees),arising from or related to the content of Client Data and Client's
breach of the Service Specific Terms or Sections 4.2,4.3,4.4,4.5,or 15.1 of this Agreement.Smarsh will(a)provide Client
with prompt written notice upon becoming aware of any such claim,except that Client will not be relieved of its obligation
for Indemnification if Smarsh fails to provide such notice unless Client is actually prejudiced in defending a claim due to
Smarsh's failure to provide notice In accordance with this Section 13.1(a),(b)allow Client sole and exclusive control over the
defense and settlement of any such claim;and(c)if requested by Client,and at Client's expense,reasonably cooperate with
the defense of such claim
9) Replace Section 15.4 In Its entirety,as follows,
Governing Law.This Agreement will be governed by and construed in accordance with the laws of the State of Florida,
without regard to conflict/choice of law principles.Any legal action or proceeding arising under this Agreement will be
brought exclusively in the federal or state courts located in Monroe County,in the State of Florida,and the parties hereby
irrevocably consent to the personal jurisdiction and venue therein.
10) Replace Section 15.9 In Its entirety,as follows:
Entire Agreement,Electronic Signatures.This Agreement is the entire agreement between the parties with respect to its
subject matter,and supersedes any prior or contemporaneous agreements,negotiations,and communications,whether
written or oral,regarding such subject matter.Smarsh expressly rejects all terms contained In Client's purchase order
documents,or in electronic communications between the parties,and such terms form no part of this Agreement.The parties
agree that electronic signatures,whether digital or encrypted,give rise to a valid and enforceable agreement.This Agreement
may only be modified,or any rights under it waived,by a written document executed by both parties.
11) Delete Section 16,concerning alternative Jurisdiction,In its entirety.
12) Insert new Section 16 as follows:
State and County Required Contractual Clauses
(a) E-Verify System.Beginning January 1,2021,in accordance with F.S.448.095,Smarsh and any subcontractor assigned to
Client's account shall register with and shall utilize the U.S.Department of Homeland Security's E-Verify system to verify
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the work authorization status of all new employees hired by Smarsh during the term of the Agreement and shall
expressly require any subcontractors performing work or providing services to Client pursuant to the Agreement to
likewise utilize the U.S.Department of Homeland Security's E-Verify system to verify the work authorization status of all
new employees hired by the subcontractor during the Term.Any subcontractor shall provide an affidavit stating that the
subcontractor does not employ,contract with,or subconstruct with an unauthorized alien.Smarsh shall comply with and
be subject to the provisions of F.S.448,095
(b) MAINTENANCE OF RECORDS.Smarsh shall maintain all books,records,and documents directly pertinent to
performance under this Agreement in accordance with generally accepted accounting principles consistently applied.
(c) INVOICES.Smarsh shall submit invoices to the Client with supporting documentation that is based an generally accepted
accounting principles.
(d) PUBLIC ENTITY CRIME STATEMENT PER F.S.287.133.A person or affiliate who has been placed on the convicted vendor
list following a conviction for public entity crime may not submit a bid,proposal,or reply on a contract to provide any
goods or services to a public entity,may not submit a bid,proposal,or reply on a contract with a public entity for the
construction or repair of a public building or public work,may not submit bids on leases of real property to public entity,
may not be awarded or perform work as a contractor,supplier,subcontractor,or consultant under a contract with any
public entity,and may not transact business with any public entity in excess of the threshold amount provided in Section
287.017,for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list.
(e) ETHICS CLAUSE.Smarsh shall not employ,retain or otherwise have act on its behalf any former County officer or
employee In violation of Section 2 of Ordinance No.010-1990 or any County officer or employee in violation of Section 3
of Ordinance No.010-1990. For breach or violation of this provision the County may terminate this Agreement without
liability.
(f) NONDISCRIMINATION/EQUAL EMPLOYMENT OPPORTUNITY.Smarsh and Client agree that there will be no
discrimination against any person,and it is expressly understood that upon a determination by a court of competent
jurisdiction that discrimination has occurred,this Agreement automatically terminates without any further action an the
part of any party,effective the date of the court order. Smarsh and Client agrees to comply with all Federal and Florida
statutes,and all local ordinances,as applicable,relating to nondiscrimination. These include but are not limited to: 1)
Title Vil of the Civil Rights Act of 1964(PIL 88.352)which prohibits discrimination on the basis of race,color or national
origin;2)Title IX of the Education Amendment of 1972,as amended(20 USC ss.1681-1683,and 1685-1686),which
prohibits discrimination on the basis of sex;3)Section 504 of the Rehabilitation Act of 1973,as amended(20 USC s.794),
which prohibits discrimination on the basis of handicaps;4)The Age Discrimination Act of 1975,as amended(42 USC ss.
6101.6107)which prohibits discrimination on the basis of age;5)The Drug Abuse Office and Treatment Act of 1972(PL
92-255),as amended,relating to nondiscrimination on the basis of drug abuse;6)The Comprehensive Alcohol Abuse and
Alcoholism Prevention,Treatment and Rehabilitation Act of 1970(PL 91-616),as amended,relating to nondiscrimination
on the basis of alcohol abuse or alcoholism;7)The Public Health Service Act of 1912,ss.523 and 527(42 USC ss.690dd-3
and 290ee-3),as amended,relating to confidentiality of alcohol and drug abuse patient records;8)Title Vill of the Civil
Rights Act of 1968(42 USC s,3601 et seq.),as amended,relating to nondiscrimination in the sale,rental or financing of
housing;%The Americans with Disabilities Act of 1990(42 USC s-12101 Note),as may be amended from time to time,
relating to nondiscrimination on the basis of disability;10) Monroe County Code Chapter 14,Article 11,which prohibits
discrimination on the basis of race,color,sex,religion,national origin,ancestry,sexual orientation,gender identity or
expression,familial status or age;11)Any other nondiscrimination provisions in any Federal or state statutes which may
apply to the parties to,or the subject matter of,this Agreement-
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s BOARDCOUNTY COhIhIISS1 S
Uounty of Monroed Mayor Heather Carruthers.District 3
Mayor Pro Tcm Michelle Coldiron,Districl2
The Flonda Keys Cram Cates,District I
Da kid Race.Distrct d
Sy'via J. Murphy,District 5
Robert B.Sillinger,County Attorney**
Pedro J.Mercado.Assistant County Attorney" Office of the County Attorney
Cynthia L.Hall,Assistant County Attorney" 1 I 1 1 12"Street.Suite 408
Christine Limbert-Barrows,Assistant County Attorney' Key West.FL 33040
Derek V.Howard,Assistant County Attorney*' (305)292-3470- Phone
Peter H.Morris,Assistant County Attorney** (305)292-3516-Fax
Patricia E:ables,Assistant County Attorney*
Puuncec Scull,Assistant County Attorney
Jostph X.DiNovo,Assistant County Attorney
**Board Certified in City,County S.Local Govt Law
MEMORANDUM
Brian Bradley, Senior Coordinator
Monroe County Atta ey's Office
DATE: September 2 , 220
Text Message Capture and Archive Software-soul source supplier
Over the last two years, I have searched for a text message capture and archiving solution. There is
only one company that provides this product and they have exclusivity contracts with AT&T and
Verizon-- Smarsh. Smarsh is a soul source sunnGer of this type of solution. No other companies
have the ability to capture texts directly from the cellular provider. This will provide the County
with an archive that cannot be altered by the individual phone user and allows compliance with
records retention and records request law.
If you have any questions, or need further information, please feel free to contact me at 292-3470.
Thank you