Prison Phone Justice

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS

1. PURPOSE: Contractor agrees to provide to State and local agencies or
governmental entities empowered to expend public funds Inmate/Ward Telephone
System (“IWTS”) services as described herein:
•

Contractor will provide non-coin local, intralata, interlata, interstate and
international IWTS services statewide.

•

The State agencies obtaining IWTS services are the California Department
of Corrections (“CDC”), the California Youth Authority (“CYA”) and others
that have joined or may subsequently join this contract. All eligible State
and local agencies and governmental entities may participate in this
Contract by submitting an executed Memorandum of Agreement form
(Attachment I).

2. SERVICE AVAILABILITY: The services shall be provided twenty-four (24) hours a
day, seven (7) days a week. This requirement for service availability may only be
constrained, on an individual location basis, where twenty-four (24) hour access is
restricted and where this access restriction is beyond the control of the Contractor.
3. PROJECT REPRESENTATIVES: The project representatives during the term of
this agreement will be:
State Agency: Department of General
Services
Name:
Phone:
Fax:

Contractor:
Name:
Phone:
Fax:

Direct all inquiries to:
State Agency Department of General
Services
Section/Unit: Telecommunications
Division
Attention: Contracts Unit
Address: 601 Sequoia Pacific Boulevard
Phone:
Fax:

Contractor:
Section/Unit:
Attention:
Address:
Phone:
Fax:

4. APPROVAL: This Agreement is of no force or effect until signed by both parties.
Contractor may not commence performance until such approval has been obtained.
1
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
5. TIMELINESS: Time is of the essence in this Agreement.
6. CONCESSION PAYMENTS
The Contractor shall make concession payments to the State’s General Fund in accordance
with IWTS RFP SECTION 5 – Administrative Requirements 5.27 Concession Fee Payments
and IWTS RFP SECTION 7 – Pricing Proposal 7.4 Concession Fee Reduction Calculation
unless otherwise appropriate per the requirements of California Government Code Section
16301. Unless otherwise approved by the Department of Finance, all concession payments
shall be submitted to the State of California General Fund address as shown below:
State of California General Fund
Box 151
Sacramento, CA 95812-0151
Each non-state agency will be responsible for providing the names of authorized personnel
and account numbers in their agency to their Project Representatives for the purpose of
receiving concession funds.
Payments representing concession payments from contract revenues shall be paid monthly
by the 30th calendar day (or last day of the month if the month has more or less than 30 days)
of the following month. A monthly management report, including a concession payment
summary for each month, will be provided to DGS representative identified in Paragraph 3
above.
For local agencies utilizing this Contract, Contractor must provide two percent (2%) of the
local agency’s annual revenues to DGS by check or electronic deposit as an administrative
fee to cover the DGS Telecommunications Division program management responsibilities and
services under this Contract. However, it is understood that this fee payment provision will
not be instituted without prior notification by DGS Telecommunications Division. See IWTS
RFP SECTION 1 – Introduction.
7. DEFINITIONS

a. Equipment - An all inclusive term which refers either to individual components
or to a complete telecommunications system or subsystem, including all
peripheral telecommunication equipment, enclosures, shelters, etc.
b. Contractor Services - Equipment, Software, and Telephone Services.
c. Equipment Failure - A malfunction in the Equipment, excluding all external
factors, which prevents the accomplishment of the Equipment's intended
function(s). If microcode or Operating Software, residing in the Equipment, is
necessary for the proper operation of the Equipment, a failure of such
microcode or Operating Software which prevents the accomplishment of the
Equipment's intended functions shall be deemed to be an Equipment Failure.
2
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
d. Operational Use Time - For performance measurement purposes, that time
during which Equipment is in actual operation on State owned or leased
premises.
e. Preventive Maintenance - That maintenance, performed on a scheduled basis
by the Contractor, which is designed to keep the Equipment in proper operating
condition.
f. Remedial Maintenance - That maintenance performed by the Contractor
which results from Equipment (including Operating Software) failure, and which
is performed as required; i.e., on an unscheduled basis.
g. Facility Readiness Date - The date specified in the order by which the State
must have the site prepared and available for Equipment delivery and
installation.
h. Installation Date - The date specified in the order by which the Contractor
must have the ordered Equipment installed and ready (certified) for use by the
State at the specified location.
i.

Performance Period - A period of time during which the State, by appropriate
tests and production runs, evaluates the performance of newly installed
Equipment and Software prior to its acceptance by the State.

j IWTS Agent – The IWTS Agent is the State or local agency representative who
is responsible for each agency’s IWTS equipment and services.
k. Service Request Notification - The means for ordering Equipment and
services from the IWTS Contractor. The method of Service Request
Notifications shall be mutually agreed upon by each participating agency and
Contractor.
l.

Software - An all-inclusive term which refers to any computer programs,
routines, or subroutines supplied by the Contractor, including Operating
Software, programming aids, application programs, and program products, all
of which are proprietary to Contractor.

m. Inmate Telephones - Telephones installed in a State correctional facilityfor
inmate use.
n. Ward Telephones – Telephones installed in a CYA facility for ward use.
o. State – Except as to the payment and contract administration terms specified
in this contract – wherein a distinction is made between the State, including its
3
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
constituent agencies and bodies, and agencies of lower political and public
entities and within the State, including municipalities and public institutions –
the term “State” shall include all participating State agencies.
p. Operating Software - Routines, whether or not identified as program products,
that reside in the Equipment and are required for the Equipment to perform its
intended function(s), and which serve as an interface between the operator,
other Contractor- supplied programs, and user programs and the Equipment.
q. Programming Aids - Contractor-supplied programs and routines executable
on the Contractor's Equipment which assist a programmer in the development
of applications (including language processors, sorts, communications
modules, data base management systems, and utility routines, tape-to-disk
routines, disk-to-print routines, etc.).
r. Application Program - A computer program which is intended to be executed
on the Contractor's Equipment for the purpose of performing useful work for the
user of the information being processed.
s. Program Product - Programs, routines, subroutines, and related items which
are proprietary to the Contractor.
t. Software Failure – A malfunction in the Contractor supplied Software, other
than Operating Software, which prevents the accomplishment of work, even
though the Equipment (including its Operating Software) may still be capable of
operating properly. For Operating Software failure, see Paragraph 7c for
definition of Equipment Failure.
u. PCC - Public Contract Code.
v. FCC - Federal Communications Commission.
w. CPUC - California Public Utilities Commission.
x.

Agreement – The word “Agreement” is synonymous with the word “Contract”.
Therefore, these terms are interchangeable throughout this Contract and are to
be interpreted as being identical in meaning.

8. CONTRACTOR COMMITMENTS AND REPRESENTATIONS
a. Commitments
Any written commitment by a duly authorized representative of the Contractor
within the scope of this Agreement shall be binding upon the Contractor.
Failure of the Contractor to fulfill any such commitment shall render the
4
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
Contractor liable for liquidated or other damages due to the State as set forth
herein. Such written commitments include but not limited to (1) any warranty or
representation expressly made by the Contractor as to Equipment or Software
performance, total system performance, or other physical design or functioning
characteristics of a machine or software system, (2) any warranty or
representation expressly made by the Contractor concerning the
characteristics of the items described in (1) above, made in any publication,
drawings, or specifications accompanying or referred to in the Contract, and (3)
any written notification of or affirmation or representation as to the above which
is made by the Contractor in or during the course of negotiations and which is
incorporated into a formal amendment to the Contract.
9.

MAINTENANCE OF EQUIPMENT
The Contractor is responsible to maintain the Equipment under this Contract. The
Contractor shall keep the Equipment in good operating condition and shall be
responsive to the maintenance requirements of the State. Equipment maintenance
shall be provided in accordance with the provisions of RFP SECTION 5 –
Administrative Requirements.

10.

NEED FOR CONTRACTOR SERVICES DUE TO EMERGENCY
a. The contractor shall make every reasonable effort to assist the State in
procuring use of Contractor services compatible with that provided under this
contract to meet emergencies.
b. The State, at its option, may accept or reject the use of emergency Equipment.

11.

RISK OF LOSS OR DAMAGE
The State shall be relieved from all risks of loss or damage to the Equipment
provided under this Contract except when such loss or damage is due to fault or
negligence of the State.

12.

TITLE TO EQUIPMENT
Notwithstanding Attachment 1 to this Contract, Information Technology General
Provisions Paragraph 37.a, call detail records and recordings shall be the property
of the State. Title to other Equipment, accessories, and devices utilized by the
Contractor in performing this Contract shall not vest in the State, unless such
items are purchased by the State. All devices and accessories furnished by the
5
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
Contractor hereunder, except those purchased by the State, shall remain the
property of the Contractor.
13.

CONTRACTOR EVALUATION
In accordance with the California Government Code, Contractor performance
evaluation will be completed within the guidelines of the State Administrative
Manual, Section 1283. The State contracting agency, upon Contract completion,
will complete and forward the Contractor evaluation to the Department of General
Services.

14.

DVBE PARTICIPATION
Contractor shall utilize the services of a certified Disabled Veteran Business
Enterprise (DVBE) as identified in their proposal in response to IWTS RFP
SECTION 5 – Administrative Requirements Part 1, 5.32b DVBE Participation
Goal, to perform installation, maintenance and repair of Inmate Telephones, Ward
Telephones, monitors, recording equipment, and any other related Equipment in
accordance with the terms of this Contract.

15.

CONTINUING
SERVICES

STANDARDS

OF

PERFORMANCE

FOR

CONTRACTOR

a. Applicability
The Contractor agrees that subsequent to completion of the successful
performance period and acceptance of the Contractor Services by the State,
the availability and/or performance requirements and criteria established in the
IWTS RFP SECTION 5 – Administrative Requirements and SECTION 6 –
IWTS Requirements will be met throughout the full term of the contract,
including any extensions. If both the Contractor and the State determine and
agree, after at least six (6) months experience with the measurement method
prescribed below, that the methods and procedures should be modified to
more accurately identify gross system deficiencies, an appropriate contract
amendment shall be executed to effect such modification.
b. Causes and Effects of Contractor Service Malfunctions
(1)

The State recognizes that Equipment Failures do occur, and that Software
is not infallible. Moreover, the State concedes that conditions external to
Equipment may cause it to fail, particularly environmental conditions, that
are outside the Equipment design operating parameters. The State
agrees, therefore, that unsatisfactory Contractor Service performance
which is outside the control of the Contractor will not be considered in a
determination of the level of performance.
6
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
(2)

In the event Contractor Service failure or unsatisfactory performance is a
result of factors external to the IWTS system, the Contractor agrees to
make appropriate recommendations to the State in order that such
external factors may be corrected to preclude future problems of a similar
nature.

(3)

In the event that the precise cause of the failure cannot be readily
determined, both the State and the Contractor shall continue to research
the situation until the probable cause has been identified or until
agreement is reached that the probable cause cannot be identified.

c. Levels of Performance Required
In order to meet the programmatic requirements of the State, the Equipment
must be capable, at a sustained basis, of providing the levels of service detail
as described in IWTS RFP SECTION 6 – IWTS Requirements, Attachments 6A through 6-D.
d. Remedies for Unacceptable Levels of Performance
If a Contractor Service does not meet the minimum level of performance the
State shall promptly notify the Contractor in writing of such unacceptable
performance and the Contractor shall promptly initiate action to remedy the
unsatisfactory performance. Contractor shall, at its option, take one or more of
the following actions to correct the situation:
(1)
(2)
(3)
(4)
(5)

Provide on site Contractor personnel for analysis of the problem;
Replace the faulty Equipment;
Provide substitute Equipment satisfactory to the State;
Modify the Equipment; or
Take any other action with which the State concurs.

If the Contractor fails to correct the situation to the satisfaction of the State
during the thirty (30) calendar days following receipt of written notice from the
State, the State and Contractor can mutually agree to extend the time beyond
30 days to a specified date. If the Contractor fails to correct the situation to the
satisfaction of the State by the end of the specified time period, then the State
may (i) secure from the open market, at the Contractor's expense, replacement
Equipment or service, and/or (ii) terminate that portion of the Contract relating
to the deficient Equipment or service. The above-described remedies are not
intended to constrain either party from any other action mutually agreed to by
the Contractor and the State as being more appropriate.

7
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
e. Replacement or Substitution of Equipment by Contractor
If the Contractor, in an attempt to improve the level of performance, replaces or
substitutes Equipment that meets all of the Contract requirements, such
replacement or substitution shall not decrease any concessions owed to the
State.
f. Audit Reimbursement
In addition to the Examination and Audit rights set forth in Appendix A,
Attachment 1 General Provisions – Information Technology, Effective 1/1/04,
Contractor agrees to reimburse the State for the cost of any audit which finds
that the provisioning of contracted IWTS services by call type or call volume is
inaccurately reported by five percent (5%) as determined by the State or that
rates applied to calls exceed those established in this Agreement by five
percent (5%) as determined by the State. Any such audit shall be conducted
by an experienced auditor and shall follow commercially reasonable and
generally accepted accounting principles. The State may forward audit results
showing call rate discrepancies to the CPUC.
A follow up audit may be
required at Contractor’s expense. Repeated and/or egregious violations may
be grounds for Termination for Default as set forth in Appendix A, Attachment
1- General Provisions – Information Technology.
The State agrees that the hourly rates charged for any such reimbursable audit
shall be in accordance with industry standards. The State further agrees that it
will not seek reimbursement for more than 2 audits per calendar year,
assuming no follow-up audits are required. In no event shall Contractor’s total
audit costs under this section exceed one hundred thousand dollars ($100,000)
in any twelve-month period.
16.

FRAUD AND THEFT
The Contractor shall agree that the State shall bear no responsibility for fraudulent
calls.
Contractor agrees that the State shall bear no responsibility for theft of funds; and
furthermore, that no stolen or lost funds will be deducted from revenues on which
concessions are paid or total calling volumes are determined State.

17.

UNBILLABLE/UNCOLLECTIBLE CALLS
Contractor agrees that the State will bear no responsibility for un-billable or
uncollectible calls. Un-billable or uncollectible calls may not be deducted from
calling volumes that are calculated for rate adjustment or concession payment
purposes for the State.
8
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS

18.

LIQUIDATED DAMAGES
a.

General
The Installation Dates and service level commitments of the Contractor
Services set forth have been fixed so that the utilization of the
concessionaire services is consistent with the timing schedules of the
State’s programs. If any of the units of the concessionaire services are not
installed within the times specified the delay will interfere with the proper
implementation of the State’s programs, to the loss and damage of the
State. From the nature of the case, it would be impracticable and extremely
difficult to fix the actual damages sustained in the event of any such delay.
The State and the Contractor, therefore, presume that in the event of any
such delay, the amount of damage which will be sustained from a delay will
be the amounts set below, and the State and the Contractor agree that in
the event of any such delay, the Contractor shall pay such amounts as
liquidated damages, not as a penalty. Any liquidated damage payment shall
be made by the Contractor within 30 days of notification by the State to do
so. The Contractor will not be allowed to deduct the amounts paid to the
State for liquidated damages from any past or future commissions paid by
the Contractor to the State.

b.

Contractor Services: Installation Delays Caused by the Contractor
1.

If the Contractor does not install the Contractor Services ready for
use as listed under the Authorization to Proceed, on or before the
Installation Date(s) specified in the Authorization to Proceed, the
Contractor may be liable for fixed liquidated damages specified in
this contract, in lieu of all other damages for such non-installation.
Liquidated damages shall accrue for each calendar day between the
Installation Date specified in the Authorization to Proceed and the
date the Contractor Services is certified ready for use or one
hundred eighty (180) calendar days, whichever occurs first.

2.

If some, but not all of the Contractor Services are installed, ready for
use, during a period of time when liquidated damages are applicable,
and the State uses any such Contractor Services, liquidated
damages shall not accrue against the Contractor Services used for
any calendar day the Contractor Services are so used.

9
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
3.

c.

If the delay is more than thirty (30) calendar days from the Statespecified Installation Date then, by written notice to the Contractor,
the State may terminate the right of the Contractor to install
Equipment or service, and may obtain substitute Equipment or
service, in accordance with the Rights and Remedies of the State for
Default provision in this contract. The Contractor shall also be liable
for liquidated damages, in the amounts specified in this Contract until
substitute Equipment or service is installed, ready for use, or for 180
days from the Installation Date, whichever occurs first.

Installation or Delivery Delays Caused by the State
In the event the Contractor Services cannot be installed because the State
has failed to prepare the facility by the requested date of service as
specified in the Authorization to Proceed, or a change directed by the State
requires a later Installation Date of certain Contractor Service and the
State has failed to notify the Contractor of the delay at least fifteen (15)
days prior to the original Installation Date, liquidated damages shall not
accrue.

d.

Liquidated Damages Calculation Matrix
The following chart will be used to calculate the amounts due the State in
the event of a major equipment or service failure that extends beyond the
maximum allowable interval allowable for the Contractor to affect a service
installation or repair.

Service
Component

1- 10
Telephones
11 or more
Telephones
Inmate/ward
recording and/or
monitoring
equipment
Individual site/
Facility
Inmate/Ward
System
Individual site/
Facility
Inmate/Ward
System (entire

Installation
interval
(expressed
in calendar
days) for
New Service
(after receipt
of order)
30 days

Service
Availability
(Operatnal
use time)

Response
Reqmts

Repair/
Restore
Services

Contractor
fee for missed
installation ($
per calendar
day beyond
commitment)

Contractor fee
for missed
repair/restoration
($ per calendar
day beyond
commitment)

99.5%

4 hours

24 hours

45 days

99.5%

4 hours

4 hours

30 or 45 days
(based on
number of
telephones)
60 days

99.5%

4 hours

24 hours

$150. per
affected phone
$250. per
affected phone
$1,000. per
system

$200. per affected
phone
$300. per affected
phone
$1,000.per system

99.5%

N/A

N/A

$1000. per
system

N/A

N/A

99.5%

4 hours

24 hours

N/A

$2,500. per
system

10
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
system affected
by a major
failure)

Note: Liquidated damages for non-compliance with transition plans are set forth in Paragraph
18e.

e.

Transition Plans for Turnover of Contractor Services

Contractor shall prepare and deliver to the State an Initial Transition Phase-In Plan
and a Transition Phase-Out Plan for IWTS II pursuant to IWTS RFP SECTION 5 –
Administrative Requirements, Part 1, 5.21 Transition Phase-In and Transition
Phase-Out of IWTS Equipment.
Contractor shall implement each Transition Plan and perform all tasks in a timely
manner, so that there is no disruption or discontinuity in IWTS service from the
incumbent contractors to Contractor for the Transition Phase-In, or from
Contractor to the State or State’s designee for the Transition-Phase-Out. If the
State determines that Contractor has not complied with any transition or turnover
requirements identified in the Transition Plans, and such non-compliance was a
direct result of Contractor, subcontractor or supplier, and not due to any third party
or situations outside the control of the Contractor, the State shall give written
notice to Contractor of non-compliance. After such notice, Contractor shall have
five (5) days, or longer if agreed to by the State, to achieve compliance. For each
transition or turnover requirement not completed after the notice of noncompliance period, the State may impose liquidated damages up to $10,000 per
day until Contractor is in compliance with the requirements of the Transition Plan
up to a maximum of three hundred thousand dollars ($300,000).
Any duties and obligations of the Contractor under the Contract necessary to
complete transition that have not been performed at the time of contract
termination shall holdover and continue in effect beyond any expiration or
termination of the Contract term.
19.

TRANSFER OF ASSETS
a.

Inventory List

Contractor shall provide a current updated inventory list of all Equipment used at
all sites in the operation and maintenance of IWTS.
b.

Conveyance

Contractor shall convey to the State or a designee such items as the State may
select from the aforementioned inventory list as of the date selected by the State,
at a price equal to the fair market value or the depreciated value.
11
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
c.

Contract Transfer

Contractor shall use commercially reasonable efforts to assist the State in
procuring any third party authorizations or consents necessary to permit the
conveyance or assignment to the State (or its designee) of all leases, licenses,
and other contracts (except those for shared services and facility leases) then
currently being used by Contractor, any affiliate or subcontractor, to perform the
services of the Contract upon Transition Phase-Out pursuant to IWTS RFP
SECTION 5 – Administrative Requirements, Part 1, 5.21b Transition Phase-Out.
Contractor’s obligation to provide the State with contracts transfer assistance as
set forth in this subsection is subject to:
•
•
•

The State's written request;
Contractor's right to assign such contract; and
The State's assumption of all contractual responsibility and liability under
such contract, including payment of any transfer fees, license fees, or other
charges, and the State's agreement to indemnify Contractor against liability
for such assumed contractual obligation.

20. STATEMENT OF WORK
Contractor’s proposal in response to the requirements set forth in IWTS RFP
Section 5 – Administrative Requirements, part 1, 5.2 Statement of Work Process,
after acceptance by the State, shall be considered the Statement of Work (SOW)
and shall become part of this Contract. The SOW may be revised upon mutual
agreement of the State and the Contractor. Such revisions of the SOW shall
become part of this Contract.
This Contract shall not be assignable by the Contractor in whole or in part without
the written consent of the State, which will not be unreasonably withheld.

12
Addendum #13
September 17, 2004

State of California

IWTS RFP-DGS-3037

CONCESSION CONTRACT
ATTACHMENT 2 - SPECIAL PROVISIONS
Exhibit I
INMATE/WARD TELECOMMUNICATIONS SYSTEM (IWTS)
MEMORANDUM OF AGREEMENT (MOA)
The undersigned agency agrees to participate in the State of California, Department of General Services Master
Services Agreement (MSA) and agrees to all terms and conditions thereof. Agency participation begins when the
agency signs this Memorandum of Agreement. This Memorandum of Agreement (MOA) should be sent to:
Contract Manager
Department of General Services
Telecommunications Division
601 Sequoia Pacific Blvd.
Sacramento, CA 95814-0282
For State Agencies, please reference Government Code Section 16301. The signing of this document merely states
that an Agency wants to participate in the MSA for IWTS, DGS-3037. Actual ordering of equipment and/or services will
be in accordance with the RFP requirements and agency communications with the contractor. It is mandatory that an
Agency complete the MOA prior to ordering of equipment and/or services.
__________________________________
(Agency or Organization)

__________________________________
(Signature)
__________________________________
(Printed Name)

__________________________________
(Date)
1.

__________________________________
(Title)

Department/Organization

_____________________________________________________________________________________
2.

Address of Organization

_____________________________________________________________________________________
3.

Address of Requested Service

_____________________________________________________________________________________
4.

IWTS Agent Main Contact Name

5.

Telephone Number

_____________________________________________________________________________________
6.

Alternative IWTS Contact Name

7.

Telephone Number

_____________________________________________________________________________________
8.

Address to Send Concessions to (Include City and Zip Code)

_____________________________________________________________________________________

13
Addendum #13
September 17, 2004