Item O06 06
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE Mayor Craig Cates,District 1
The Florida Keys Mayor Pro Tern Holly Merrill Raschein,District 5
Michelle Lincoln,District 2
James K.Scholl,District 3
David Rice,District 4
Board of County Commissioners Meeting
July 19, 2023
Agenda Item Number: 06
2023-1225
BULK ITEM: No DEPARTMENT: County Attorney
TIME APPROXIMATE: STAFF CONTACT: Brian Bradley
N/A
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$26,473.86 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:
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.
PREVIOUS RELEVANT BOCC ACTION:
7/20/2020 approval of Marsh Contract for $22,025.05
7/20/2021 approval of Marsh Contract for $23,827.00
7/20/2022 approval of Marsh Contract for $24,552.00
CONTRACT/AGREEMENT CHANGES:
N/A
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STAFF RECOMMENDATION: Approval
DOCUMENTATION:
Smarsh Order Form- Monroe County FL 302899 (Updated 6.23.23).pdf
Single Source OMB letter 2023.docx
FINANCIAL IMPACT:
Effective Date: 9/1/2023
Expiration Date: 9/1/2024
Total Dollar Value of Contract: $26,473.86
Total Cost to County: $26,473.86
Current Year Portion: $26,473.86
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:
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Order Form - Monroe County, FL
Account Rep Shelby Phelan Customer Monroe County,FL
Email shelby.phelan@smarsh.com Service Address 1100 Simonton St Rm 2-205
Quote prepared on 30-May-2023 Key West, Florida 33040-3110
Quote valid until 3-Sep-2023 Billing Contact Jaclyn Flatt
Contact Phone 305-292-3470
Start Date 4-Sep-2023 Contact Email flatt-jaclyn@monroecounty-fl.gov
Renewal Date 4-Sep-2024 Technical Contact Brian Bradley
Billing Frequency Annual
Order Type: Renewal
Services Unit Price Quantity Contract
Commitment
Unified
Platform-Professional Archive-SMG $399.00 1 $399.00
AT&T Mobile Message-Professional Archive Capture $76.02 342 $25,998.84
Verizon-Professional Archive Capture $76.02 1 $76.02
Smarsh Support 1
Professional Support-Basic 1
Annual Subtotal $26,473.86
One-Time Subtotal $0.00
Notes
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smarsK
. 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.%nnnnno.srnarsh.corn/Iegal. The Services are
subject to Smarsh Service Agreement-General Terms available at www.smarsh.com/legal/ServiceAgreement.The Services purchased by
Client are also subject to the Information Security Addendum available at NTt s ��nnno�no.srnarsNT.carnJ1egajJ1 �foSec and the following
Service Specific Terms:
the Professional Archive Service Specific Terms available at https://www.smarsh.com/legal/SSTProfessionalCloud;
Mobile Channels Service Specific Terms available https://www.smarsh.com/legal/SSTMobileChannels;.
The Smarsh Service Agreement—General Terms,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
%AAAAA.srnarsh.corn[IepalATT 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&
Archive Fees"are the Fees that are charged for capture and archive of a bundle of Connections within the Professional Archive."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."Set-up Fees"
are the one-time Fees that are charged to implement a Service. "Professional Services Fees"are the Fees charged for hourly, monthly,
or flat rate professional services.
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.
Third Party API Usage.In the event that any Third-Party Service charges any API usage fees,service fees,or pass through costs to Smarsh
that are(i) in connection with the Client's use of the Services set forth in this Order Form and such Third Party Service,and(ii)Smarsh
can reasonably demonstrate that such costs are directly allocated to the Client,Smarsh reserves the right to pass those costs along to
the Client("Third Party Fees"). Client agrees to pay all such Third-Party Fees when Smarsh invoices the Client for such fees,which will
include a breakdown and description of each such cost.
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:
Data Imports-One-time $10/GB
Import Data Conversion fees $3/GB
Data Storage—Annual $2.50/GB
Information about Smarsh data privacy compliance is available at www.smarsh.com/legal.
The following entities are fully owned subsidiaries of Smarsh: Digital Reasoning,Entreda,Privva,Actiance,MobileGuard
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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 1 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 at ,.si ai sh,,,c,.c.rn.111,,f„,,II,.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 public-facing company and does not receive or
process Public Records requests.
IF THE VENDOR S QUESTIONS REGARDING THE APPLICATION
CHAPTER ® FLORIDA STATUTES, TO THE VENDOR'S
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT
THE CUSTODIAN OF PUBLIC RECORDS T: ( 05) 5- 177 (telephone
number), brad ley- rian @ monroocounty-fL ov (email address), 1100
Simonton St
Key West, Florida 040- 110
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United States (mailing address)
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2) Replace Section 4.4 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(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
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.
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-breaching party's written
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.
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 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(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;(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(iii)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,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.
ii) Delete Section 16,concerning alternative jurisdiction,in its entirety.
12) Add the following language as Section 17:
A. For Contracts of any amount,if the County determines that the Contractor/Consultant has submitted a false
certification under Section 287.135(5),Florida Statutes or has been placed on the Scrutinized Companies that Boycott
Israel List,or is engaged in a boycott of Israel,the County shall have the option of(1)terminating the Agreement after it
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has given the Contractor/Consultant written notice and an opportunity to demonstrate the agency's determination of
false certification was in error pursuant to Section 287.135(5)(a),Florida Statutes,or(2)maintaining the Agreement if
the conditions of Section 287.135(4),Florida Statutes,are met.
B. For Contracts of$1,000,000 or more,if the County determines that the Contractor/Consultant submitted a false
certification under Section 287.135(5),Florida Statutes,or if the Contractor/Consultant has been placed on the
Scrutinized Companies with Activities in the Sudan List,the Scrutinized Companies with Activities in the Iran Petroleum
Energy Sector List,or been engaged in business operations in Cuba or Syria,the County shall have the option of(1)
terminating the Agreement after it has given the Contractor/Consultant written notice and an opportunity to
demonstrate the agency's determination of false certification was in error pursuant to Section 287.135(5)(a),Florida
Statutes,or(2)maintaining the Agreement if the conditions of Section 287.135(4),Florida Statutes,are met."
C. E-Verify. Upon written request by Client(not to exceed once every 12 months),Smarsh agrees to provide a certification
to Client which certifies that(i)Smarsh is registered with and uses the E-Verify system operated by the United States
Department of Homeland Security to electronically verify the employment eligibility of Smarsh's newly hired
employees;and(ii)Smarsh will contractually require that all subcontractors contracted to provide services under any
Florida state contract utilize and comply with the E-Verify system.
D. Scrutinized Companies. Smarsh certifies that(i)Smarsh is not participating in a boycott of Israel,Smarsh is not on the
Scrutinized Companies that Boycott Israel list,not on the Scrutinized Companies with Activities in Sudan List,and not on
the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List,nor has Smarsh been engaged in
business operations in Syria.Subject to limited exceptions provided in state law,the Client will not contract for the
provision of goods or services with any scrutinized company referred to above.The Client may terminate the
Agreement upon written notice to Smarsh in the event that Smarsh submitted a false certification stating that it was
not(1)on the Scrutinized Companies that Boycott Israel List or engaged in a boycott of Israel;or(2)was not on the
Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum
Energy Sector List.
E. Smarsh certifies and agrees that Smarsh nor any Affiliate has been placed on the convicted vendor list within the last 36
months of the date of this Renewal.
F. Violation of Section 287.133,Florida Statutes shall result in termination of this Agreement.
G. In addition to the foregoing,Smarsh further represents that there has been no determination,based on an audit,that it or
any subcontractor has committed an act defined by Section 287.133,Florida Statutes,as a"public entity crime"and that it
has not been formally charged with committing an act defined as a"public entity crime" regardless of the amount of
money involved or whether Smarsh has been placed on the convicted vendor list.
H. Smarsh will promptly notify the Client if it or any subcontractor is formally charged with an act defined as a"public entity
crime"or has been placed on the convicted vendor list.
I. Smarsh warrants that Smarsh has not employed,retained or otherwise had act on his/its behalf any former county officer
or employee subject to the prohibition of section 2-149 or any county officer or employee in violation of section 2-150.For
breach or violation of this provision the county may,in its discretion,terminate this contract without liability and may also,
in its discretion,deduct from the contract or purchase price,or otherwise recover,the full amount of any fee,commission,
percentage,gift,or consideration paid to the former county officer or employee or county officer or employee."
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Purchase Order Information
Client to Complete:
Is a Purchase Order(PO)required for the purchase of the Services on this Order Form?
[ ] No
[ ] Yes—Please complete below
PO Number:
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(iii)the signatory
does not have authority to bind Client to this Order Form.
Client authorized signature
By: Name:
Title: Date:
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BOARD OF COUNTY COMMISSIONERS
%-Iounty of MonroeN Mayor Craig Cates,District 1
The Florida Keys Mayor Pro Tem Holly Merrill Raschein,District 5
y ,.. , Michelle Lincoln,District 2
f James K.Scholl,District 3
Robert B.Shillinger,County Attorney** David Rice,District 4
Pedro J.Mercado,Sr.Assistant County Attorney** ��
Cynthia L.Hall,Sr.Assistant County Attorney**
Christine Limbert-Barrows,Assistant County Attorney** Office of the County Attorney
Derek V.Howard,Assistant County Attorney** 1111 12a'Street,Suite 408
Peter H.Morris,Assistant County Attorney** Key West,FL 33040
Patricia Fables,Assistant County Attorney (305)292-3470 Office
Joseph X.DiNovo,Assistant County Attorney** (305)292-3516 Fax
Kelly Dugan,Assistant County Attorney
Christina Cory,Assistant County Attorney
Nathalia Archer,Assistant County Attorney
**Board Certified in City,County&Local Govt.Law
MEMORANDUM
TO: OMB
FROM: Brian Bradley, Risk Manager/ Records Manager
Monroe County Attorney's Office
DATE: June 29, 2023
SUBJECT: 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 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.
If you have any questions, or need further information, please feel free to contact me at 292-3470.
Thankyou
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