Item C11 C.11
Coty f � ,�� ,' BOARD OF COUNTY COMMISSIONERS
�� Mayor David Rice,District 4
The Florida Keys � Mayor Pro Tem Craig Cates,District 1
y Michelle Coldiron,District 2
James K.Scholl,District 3
Ij Holly Merrill Raschein,District 5
County Commission Meeting
July 20, 2022
Agenda Item Number: C.11
Agenda Item Summary #10771
BULK ITEM: Yes DEPARTMENT: Risk Management
TIME APPROXIMATE: STAFF CONTACT: Brian Bradley (305) 295-3177
No
AGENDA ITEM WORDING: Approval to enter into a 1 year Agreement with Smarsh, the sole
source provider of cellular text message archiving solution, in the amount of$24,552.00 and exempt
this procurement from the competitive solicitation process as a sole source provider and
authorization for the County Attorney to sign the agreement and related documents.
ITEM BACKGROUND: Smarsh is a cellular text message archiving solution that captures cellular
text messages directly from the provider. The solution helps mitigate the risk of potential non-
compliance lawsuits by assuring compliance with document retention laws. The County has been
utilizing Smarsh for two years. Currently Smarsh is a sole source supplier as it is the only archiver to
work with both Verizon and AT&T networks. The County has been utilizing the Smarsh software
since 2020. Since the Smarsh is a sole source supplier we seek a waiver of the competitive
solicitation process in accordance with the Monroe County Code and Purchasing Policy. This
software technology was procured and purchased in 2020 in accordance with existing procurement
requirements.
The prior contracts were approved via the County's small contract process. The County will be
exceeding the small contract signatory authority threshold of$49,999.99, when adding the total
cumulative value all prior agreement, and so County staff now seeks approval by the Board of this 1-
year agreement.
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
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C.11
Quote for Monroe County FL (Next Renewal Date- 2022-09-04)_preview
Sole Source OMB letter 2022
FINANCIAL IMPACT:
Effective Date: 9/1/2022
Expiration Date: 9/1/2023
Total Dollar Value of Contract: $12,097.18
Total Cost to County: 24,552.00
Current Year Portion: 24,552.00
Budgeted: Yes
Source of Funds: 001-00101-530520-00084
CPI: No.
Indirect Costs: N/A
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: No. If yes, amount:
Grant: No
County Match:
Insurance Required: No.
Additional Details:
04/20/22 001-00101 - BOCC ADMINISTRATIVE $12,097.18
REVIEWED BY:
Brian Bradley Completed 06/29/2022 1:55 PM
Christine Limbert Completed 06/30/2022 8:43 AM
Bob Shillinger Completed 06/30/2022 8:56 AM
Purchasing Completed 06/30/2022 9:16 AM
Budget and Finance Completed 07/05/2022 4:47 PM
Lindsey Ballard Completed 07/05/2022 4:54 PM
Board of County Commissioners Pending 07/20/2022 9:00 AM
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Client lnformation U)
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Company Name Monroe County,FL
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Address 1100 Simonton St Rm 2-205 city Key West
State Florida Zip 33040-3110
Primary Contact Name Brian Bradley Title RMLO
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(Authorized User) Phone (305)295-3177 Email bradley-brian@monroecounty-fl.gov
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Technical Contact Name Brian Bradley Title RMLO M
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Phone (305)295-3177 Email bradley-brian@monroecounty-fl.gov U)2
Billing Contact Name Brian Bradley Title RMLO
Phone (305)295-3177 Email bradley-brian@monroecounty-fl.gov
Address 1100 Simonton St city Key West
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State Florida Zip 33040-3110 U
Quote Date 06/01/2022 11:33:13 Quote Expiration 08/31/2022
Smarsh Sales Executive Shan@ Houlton Term of Agreement 12 Months
Activation Date Upon Grant of Access to Service Historical Import Billing In Arrears CL I
Setup Fee Billing Upon Contract Execution C?
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Services and Fees CD
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Minimum
Rate per Quantity Minimum
Quantity
Professional Archive-SMG 200-Annual $380.00 1 $380.00
Professional Archive-SMG 200 Capture&Archive-Annual $45.47 329 $14,960.00
Professional Archive-SMG 200 Premium Adj-Annual $28.00 329 $9,212.00 X
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Professional Archive-Extended Retention Fee(Per GB)-Annual $2.50 0 $0.00
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Recurring Subtotal $24,552.00
One-Time Subtotal $ 0.00 :3
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Notes
If Client uses more Connections than it has licensed,Smarsh will bill for that use at$45.47 per connection plus$28.00 for each premium 0
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Terms Conditions
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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 wvwvwv.srvrarsh_.00l Legal. Smarsh Service
Agreement-General Terms located here:www.smarsh.com/legal/ServiceAgreement.The Services purchased by Client are also subject qs
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to the Information Security Addendum available at.h.tLps://wvvvv smarsh.com Ia�;aonfoSec and the following Service Specific Terms:
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the Professional Archive Service Specific Terms available at https://www.smarsh.com/legal/SSTProfessionalCloud;the following Premium Channels Service
Specific Terms,as applicable:Mobile Channels Service Specific Terms available at https://www.smarsh.com/legal/SSTMobileChannels,and Twitter Service _
Specific Terms available at https://www.smarsh.com/legal/SSTTwitter.
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The Smarsh Service Agreement—General Terms,the Information Security Addendum,the Service Specific Terms,and this Order Form �y
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 E
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.
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For AT&T Mobility subscribers,your signature below represents your acceptance of the AT&T Wireless Terms and Conditions available
at wwvv.smarsh,com_[I�MaVAJT as they apply to AT&T messages that are archived by Smarsh.
"Archive Fees" are the Fees charged for access to the Connected Archive(i.e., Professional Archive or Enterprise Archive). "Capture & 3
Archive Fees" are the Fees that are charged for capture and archive of a bundle of Connections within the Professional Archive. qs
"Capture Fees"are the per-Connection Fees that are charged for the capture of Connections by Connected Capture(i.e.,Cloud Capture
or Capture Server). "Premium Adj. Fees" are the additional Fees that are charged for capture of Connections from premium Channels. CL
"Set-up Fees" are the one-time Fees that are charged to implement a Service. "Professional Services Fees" are the Fees charged for I
hourly,monthly,or flat rate professional services.
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The Platform Fees,the Capture&Archive Fees,the Capture Fees,and the Premium Adj. Fees,as applicable,are invoiced 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.
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The Platform Fees, the Capture & Archive Fees, the Capture Fees, and the Premium Adj. Fees, as applicable, are invoiced upon _
execution of this Order Form. Client agrees that the Recurring Subtotal above is Client's minimum commitment during the Term.
Smarsh will invoice Client for any usage over the minimum quantities at the applicable rate indicated in this Order Form. qy
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If not priced above,data import,conversion (if applicable),and storage Fees for Client's historical data and storage Fees for data from
Connected Capture or other external capture mechanisms ingested into the Professional Archive are as follows:
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Data Imports-One-time $10/GB
Import Data Conversion fees $3/GB
Data Storage—Annual $2.50/GB
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Information about Smarsh data privacy compliance is available at www.smarsh.com/`Lgg��1.11
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Purchase Order Information
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Client to Complete:
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Is a Purchase Order(PO)required for the purchase of the Services on this Order Form?
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[ ] No
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[ ] Yes—Please complete below
PO Number: qs
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PO Amount:
Upon signature by Client and submission to Smarsh,this Order Form shall become legally binding unless Smarsh rejects this Order Form
for any of the following reasons:(i)changes have been made to this Order Form(other than completion of the purchase order
information and the signature block);or(ii)the requested purchase order information or signature is incomplete;or(ill)the signatory
does not have authority to bind Client to this Order Form.
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Client authorized signature
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EXHIBIT A (s
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Amendment to the Smarsh Service Agreement—General Terms
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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 1 in its entirety,as follows:
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1. Services.
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1.1. Smarsh will provide the Services specified in each Order Form("Services"),according to the Agreement,the �s
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 at ,.srn..a ar.aalrp.,.a apart./Il.rc.. a ll.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).
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1.2. Public Records. To the extent required by the Florida Public Records Act,Chapter 119,Florida Statutes, 2!
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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
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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, 04
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maps,books,tapes,photographs,films,sound recordings,data processing software,or other material, CD
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regardless of the physical form,characteristics,or means of transmission,made or received pursuant to law or
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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 qs
Agreement,Client may,at no additional cost,export records via self-service within the Archiving Platform. If qs
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 qs
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 public-facing company and does not receive or
process Public Records requests.
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IF THE VENDOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER ® FLORIDA STATUTES, TO THE VENDOR'S
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Phone:PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT CD
THE CUSTODIAN OF PUBLIC RECORDS AT: 3 5®2 ®3 7
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Email: is c s v® Mail: Monroe County
Attorney's Office 1111 12thStreet, Suite 408 KeyWest, FL 33040 E
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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 U)
secret,or(ii)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 E
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 www.smarsh.com/legal/AUP.Smarsh may update the Acceptable Use Policy from
time to time.
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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. U
4) Replace Section 6.2 in its entirety,as follows: 0
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-breaching party's written qs
notice thereof.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. CL
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S) Replace Section 7 in its entirety,as follows: CD
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Fees&Payment.Client will pay the fees for the Services as set forth in the Order Form("Fees").Following execution of the 04
Order Form,Smarsh will activate or otherwise make available the Services listed in the Order Form by either delivering the 04
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software(if on-premise software is purchased)or providing Client with access to an account within the applicable Service qs
("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 services will be invoiced per the terms of the Order Form,or the
applicable statement of work.Client will pay undisputed Fees within forty-five(4S)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 qs
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."
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6) Replace Section 9 in its entirety,as follows:
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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: qy
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 qs
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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 qs
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or requirement;(ii)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(ill) pursuant to a Florida public records request,provided that the Client gives notice to Smarsh in a E
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. U
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 qy
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 CL
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
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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 04
defense and settlement of any such claim;and(c) if requested by Client,and at Client's expense,reasonably cooperate with 04
the defense of such claim 04
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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,in the State of Florida,and the parties hereby irrevocably qs
consent to the personal jurisdiction and venue therein.
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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 O
documents,or in electronic communications between the parties,and such terms form no part of this Agreement.The parties (s
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. O
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11) Delete Section 16,concerning alternative jurisdiction,in its entirety. qy
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C.11.b
p ) BOARD OF COUNTY COMMISSIONERS
�� onro�.+ Mayor Heather Carruthers,District 3
J� Mayor Pro Tem Michelle Coldiron,District 2
CountyThe Florida Keys � +�����'�� ��� Craig Cates,District 1
David Rice,District 4
r Sylvia J.Murphy,District 5
Robert B.Shillinger,County Attorney**
Pedro J.Mercado,Senior Assistant County Attorney** Office of the County Attorney
Cynthia L.Hall,Senior Assistant County Attorney** 1111 12'Street,Suite 408
Christine Lhnbert-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 Fables,Assistant County Attorney
Joseph X.DiNovo,Assistant County Attorney*
James Molenaar,Assistant County Attorney 0
Kelly M.Dugan,Assistant County Attorney t)
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**Board Certified in City,County&Local Govt.Law
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MEMORANDUM
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TO: OMB
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FROM: Brian Bradley, Risk Manager/Records Manager
Monroe County Attorney's Office
DATE: June 27, 2022
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SUBJECT: Text Message Capture and Archive Software - sole source supplier 0
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Over the last two years, I have searched for a text message capture and archiving solution. There is N
only one company that provides this product and they have exclusivity contracts with AT&T and
VerizonSmarsh. Smarsh is a sole source supplier 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.
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If you have any questions, or need further information,please feel free to contact me at 292-3470. W
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Thank you W
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