Prison Phone Justice

AGRE.EMENT OS-OiS
FOR INMATE CALLING SERVICES (ICS) TELECOMMUNICATIONS SERVICES
This Agreement is effective on
\, LLVlC i
, 2007, and is entered into by and between
the State of Iowa, Iowa Department of Corrections (DOC) and Public Communications Services, Inc. (PCS).
WHEREAS, PCS desires to provide service to the DOC with the support of provisioning of telecommunications
services to inmates (Inmate Calling) in the correctional institutions of the Iowa Department of Corrections
(DOC) provided by the Iowa Telecommunications and Technology Commission operating the Iowa
Communications Network (ICN), pursuant to an agreement between DOC and the ICN; and
WHEREAS, DOC desires to use the serVices of PCS to support the ICN's provisioning of Inmate Calling to the
DOC, where such PCS services are appropriate and where the parties have agreed to the provision of such
services; and
WHEREAS, the parties desire to set forth a framework for the provisioning of such services by PCS and the
payment therefore by the lCN; and
WHEREAS, the DOC has requested the assistance of the lCN in negotiating and administration the Agreement
with PCS;
NOW, THEREFORE, in the consideration of the mutual covenants contained in this Agreement, the sufficiency
of which is acknOWledged, DOC and PCS agree as follows:
SECTION 1. IDENTITY OF THE PARTIES.
1.1 The Iowa Department of Corrections is an agency of the State of iowa and is responsible for the
management, and operation of the State of Iowa prison system. DOC's principal office address is 510 East
12th Street, Des Moines, Iowa 50319.
1.Z Public Communications Services is a California corporation organized under the laws of the state of
California and is authorized to do business in the State of Iowa. PCS's Address is 11859 Wilshire Blvd" Suite
600, Los Angeles, CA 90025.
SECTION 2. TERM. The term of this Agreement shall commence on the effective date of the Agreement and
continue for three (3) years from the service start date of October 1, 2007, Upon mutual agreement of PCS,
DOC and the lCN the Agreement may be renewed upon the same terms and conditions for three (3) additional
one-year (1 year) periods.
2.1 At the end of the service term or any renewals provided for above, the ICN may extend the
Agreement ona month-to-month basis for up to six months to ensure the ICN and DOC retain an
operational system at all times. PCS shall agree to this possible extension at the same rates and terms
as agreed to in the previously agreed to contract term.
SECTION 3.

DOCUMENTS INCORPORATED BY REFERENCE.

3.1 Incorporation of Bid Proposal Documents. The Request for Proposal RFP #06-015 for Inmate Calling
System (RFP), and PCS Bid Proposal in response to the RFP together with any clarifications, attachments,
appendices, amendments or other writings of the ICN or PCS (collectively "Bid Proposal") are incorporated into
this Agreement by this reference as if fully set forth in the Agreement, except that no objection or amendment
by PCS to the RFP requirements shall be incorporated by reference into the Agreement unless the ICN has
explicitly accepted PCS's objection in writing.
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3.2. Contractual Obligations of pes. The terms and conditions of the Bid Proposal and of the RFP are made
contractual obligations of pes.
3.3 Order of Preference. In the case of any inconsistency or conflict between the specific provisions of this
document, the RFP or the Bid Proposal, any inconsistency or conflict shall be resolved as follows:
3.3.1 First by giving preference to the specific provisions of the Agreement.
3.3.2. Second, by giving preference to the specific provisions of the RFP.
3.3.3 Third, by giving preference to the speCific provisions of the Bid Proposal.
3.4 Intent of ReferenC.M to Bid Docume.nls. The references to the parties' obligations, Which are
cont.ainedinthis document, are intended to change, supplement or clarify the obligations as stated in the RFP
and the Bid Proposal. The failure of the parties to make reference to the terms of the RFP or Bid Proposal in
this document shall not be construed as creating a conflict and will not relieve PCS of the contractual
obligations imposed by the terms of the RFP and the Bid Proposal. Terms offered in the Bid Proposal, which
exceed the requirements of the RFP, shall not be construed as creating an inconsistency or conflict with the
RFP or this document. The cOntractual obligations of the ICN cannot be implied from the Bid Proposal or the
RFP.
SECTION 4. DEFINITiONS. The following words shall have the meanings set forth belOW. Words in the
singular shall be held to include the plural and vice versa, and words of gender shall be held to include the
other gender as the context requires. For the purposes of this Agreement, the follOWing terms and all other
terms defined in this Agreement shall have the meanings so defined unless the context clearly indicates
otherwise.
4.1 "Agreement" or "Contract" shall mean this original Agreement between the ICN and any amendments,
exhibits or attachments to the original Agreement.
4.2 "Canteen" shall mean the area within each DOC institution where inmates may purchase or order goods
and products provided by DOC for sale or acquisition by inmates housed within the institution.
4.3 "CLEC" shall mean a competitive locai exchange carrier.
4.4 "DOC" shall mean the Iowa Department of Corrections.
4.5 "ICN" shall mean the Iowa Telecommunications and Technology Commission operating the Iowa
Communications Network.
4.6 "JFHQ" shall mean Joint Forces Headquarters.
4.7"System", "ICS" or "Inmate Calling System" shall mean the state of the art inmate telephone
management system installed, deployed and operated by PCS for use by the ICN and DOC.
4.8 "Institutions" shall mean the nine DOC institutions in which Iowa inmates are housed and which
cumulatively comprise the Iowa DOC inmate prison system.
4.9 "LEC" shall mean a local exchange carrier.
4.10 "Open Standards" are publicly available specifications for achieving a specific task.
4.11 "PAN" shall mean personal access number.
4.12 "PIN" shall mean personal identification number,

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4.13 "Project" means the installation and deployment of a state afthe art ICS for the ICN.
4.14 "Software" means the programs, related documentation, enhancements, source code, object code, and
copies necessary to operate the PCS System in order to provide the inmate calling services referred to in this
Contract. For the purposes of this Agreement, "Software" also includes third party software necessary for
performing the obligations contained in this Agreement
4.15 "~FP" shall mean Request for proposal.
4.16 "State" shall mean the State of Iowa and all of its departments, agencies, boardS, and commissions,
including the ICN and the DOC.
4.17 "PCS" shall mean the Public Communications Services, Inc.
4.18 "Automated Reporting" is herein defined as allowing the data and supporting rules and processes
required for measuring the RFP Standards in Table 1, #'s 1-7, to be defined within ICN's Service Desk and
reports generated to measure the results.
4.19 "ICN Service Desk" shall mean the ICN network operations center.
SECTION 5.

SCOPE OF WORK.

5.1
Scope of Services. PCS shall perform the services described in Attachment A, attached hereto and
made a part hereof by reference.
5.2
PCS shall cooperate with the ICN and any other vendors with which the ICN may contract to ensure the
smooth operation of the ICS.
5.3
Amendments to Scope of Services and Specifications. The parties agree that the Scope of
services and the specifications in Attachment A may be revised, replaced, amended or deleted at any time
. during the term of this Agreement to reflect changes in service or performance standards via a written
Amendment executed by the parties.
Industry Standards. Services rendered pursuant to this Agreement shall be performed in a
5.4
professional and workmanlike manner in accordance with the terms of this Agreement and with generally
acceptable industry standards of performance for similar tasks and projects. In the absence of a detailed
specification for the performance of any portion of this Agreement, the parties agree that the applicable
specification shall be the generally accepted industry standard.
5.5

Personnel.
5.5.1 Key Personnel. ICN considers Randall Yankee, Anthony Arellano, and Michael Boesenberg
from PCS to be essential to a successful project. PCS shall not remove, reassign or substitute the
individual(s) identified in this section except in the event of death, illness, retirement, disability, or
termination from employment, conditions permitting absence from employment under the Family and
Medical Leave Act of 1993, or in the event of ICN's written consent.
5.5.2 Personnel Changes. If at any time during the term of this Agreement ICN becomes
dissatisfied with the performance of any individual who is part of PCS's personnel, ICN shall notify PCS
of the reasons for such dissatisfaction and may request the replacement of such individual. PCS will
promptly investigate such request and the reasons for such dissatisfaction and report back to ICN on
the corrective action PCS believes is appropriate to address ICN's concerns and dissatisfaction. If PCS
determines that such individual needs to be replaced, the replacement shall be effected promptly with a
substitute individual haVing equal or greater ability, experience and qualifications than the departing
individual.

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5.6
Non Exclusive Rights. This Agreement is not exclusive. The ICN reserves the right to select other
vendors to provide for any portion of the services being performed which may be similar or identical to the
Scope of Services described in this Agreement during the term of the Agreement.
5.6.1 The Parties agree that any services, similar or identical to the ICS Scope of Services that may
require an interface with the PCS system, may be subject to Section 19.4 Change Order Procedure.
SECTION 6.

COMPENSATION.

6.1
Payment shall be made in accordance with Iowa Code Section 8.47, which requires state agencies to
tie payment for services contracts to PCS's performance.
Payment Terms. All invoices submitted by PCS shall contain appropriate documentation as necessary
6.2
to support the fees or charges included on the invoice and shall comply with all applicable rules concerning
payment of such fees, charges or other claims and shall contain all information reasonably requested by ICN.
ICN shall pay all approved invoices in arrears and in conformance with Iowa Code Section 8A.514 and 11 lAC
41.1(2). ICN may in less than 60 days as provided in Iowa Code Section 8A.514. However, an election to pay
in less than sixty (60) days shall not act as an implied waiver of Iowa Code Section 8A.514. Any sums owed to
DOC or ICN by PCS shall be itemized and deducted from PCS's invoice prior to submission. Notwithstanding
anything herein to the contrary, ICN shall have the right to dispute any invoice submitted for payment and
withhold payment of any disputed amount if ICN believes the invoice is inaccurate or incorrect in any way.
Set Off. In the event that PCS owes ICN, DOC or the State of Iowa any sum under the terms of this
6.3
Contract, any other contract, pursuant to any judgment, or pursuant to any law, ICN may set off the sum owed
to ICN or the State against any sum billed to ICN by PCS in ICN's sole discretion unless otherwise required by
law. PCS agrees that this provision constitutes proper and timely notice under the law of setoff.
6.4
Delay of Payment Due To PCS's Failure. If the ICN in good faith determines that PCS has failed to
perform or deliver any ser\iice or product as required by this Agreement, PCS shall not be entitled to any
compensation under this Agreement until such service or product is completed or delivered. In the event of
partial performance, the ICN may withhold that portion of PCS's compensation, which represents payment for
the unsatisfactory services.
SECTION 7.
DOC.

BONDS. Upon execution of this Contract, PCS shall provide the following Bonds to the ICN and

Performance Bond. PCS shall post a Performance Bond in the amount of two hundred thousand
7.1
dollars ($200,000) Which shall be conditioned on PCS's full and faithful performance of this Agreement. The
Bond, or other proof of bond coverage as acceptable to the ICN and DOC, shall be provided to the ICN within
ten (10) days of execution of this Agreement.
7.1.1 PCS shall pay the cost ofthe Bond. In the event PCS fails to perform each material requirement of
this Agreement, including without limitation PCS's obligation to indemnify the ICN and DOC and pay
damages to the ICN and DOC may draw on the Performance Bond to the extent of the damages. PCS
warrants that it will maintain the required Bond coverage at all times during the term of this Agreement
without any lapse in coverage.
7.1.2 The Bond shall be in a forrn customarily used in the teiecommunications industry and shall be
written by a surety authorized to do business in Iowa that is acceptable to the ICN and DOC.
7.1.3 The Bond shall be in effect throughout the term of this Agreement and shall provide that it cannot
be cancelled during the annual term of the Bond. The Bond may, however, be subject to annual renewal.
Failure on the part of PCS to furnish the required Bond in the time stated, or to maintain the Bond in full
force and effect during the term of this Agreement and any extension thereof, shall be material breach of
this Agreement and shall be considered cause for the ICN to declare PCS in default under this Agreement. /

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7.2
Fidelity Bond. PCS shall post a Fidelity Bond of one hundred thousand dollars ($100,000) for the prepaid calling Service, and increase the amount of the Bond to a value to be determined in the event that at any
time during the life of this Contract that the ICN and DOC elect to use an ICS that deviates from a pre-paid
System and that requires PCS to handle any monies or billing. The Bond shall be delivered to the ICN within
ten (1 O)b.usiness days of execution of the Services covered in this Agreement. PCS shall pay the cost of this
Bond. The Bond shall provide funds to the ICN in the event that the ICN or DOC suffers any liability, loss,
damage, or expense as a result of any fraudulent or dishonest act or omission of PCS or any subcontractor or
any officer, employee, or agent of PCS or any subcontractor or any parent or subsidiary corporation of PCS or
any subcontractor. The Bond shall be in a form customarily used in the communications industry and shall be
written by a surety authorized to do business in Iowa that is acceptable to the ICN and DOC. The Bond shall
be renewed annually for the duration of this Agreement or extensions thereof.
7.2.1 The Bond shall be in force throughout the term of this Agreement and shall be renewed annually
for the duration of the Agreement or any extensions thereof. The Bond shall provide that the Bond
cannot be cancelled during the term of the bond or this Agreement or any extension thereof. PCS
warrants that it will maintain the required Bond coverage at all times during the term of this Agreement
or any extensions thereof without any lapse in coverage.
.
7.2.2 The receipt of such Bond or other proof of coverage does not constitute approval of the Bond
coverage nor does the Bond relieve PCS from performing each and every requirement of this
Agreement. PCS remains responsible for determining that its Bond meets each and every requirement
of this Agreement. Failure on the part of PCS to furnish the required Bond in the time stated, or to
maintain the Bond in full force and effect during the term of this Agreement and any extension thereof
shall be cause for the ICN to declare PCS in default under this Agreement.
SECTION 8.

INSURANCE.

8.1
Coverage Requirements. PCS, and any subcontractors performing the services required under this
Agreement, shall maintain in full force and effect, with insurance companies of recognized responsibility, at its
own expense, insurance covering its work during the entire term of this Agreement and any extensions or
renewals thereof. The insurance shall be of the type and in the amounts as reasonably required by the ICN.
PCS's insurance shall, among other things, insure against any loss or damage resulting from or related to
PCS's performance of this Agreement. All such insurance policies should remain in full force and effect for the
entire life of this Agreement and shall not be canceled or changed except with the advance written approval of
the IbN.
8.2
Types of Coverage. Unless otherwise requested by the ICN, pes shall, at its sale cost, cause to be
issued and maintained during the entire term of this Agreement (and any extensions or renewals thereof) the
insurance coverage's set forth below, each naming the State of Iowa, DOC and the ICN additional insureds or
loss payees, as applicable:

Amount

Type
Workers Compensation and Employer Liability

AS REQUIRED BY IOWA LAW

General Liability (inclUding contractual liability) written
on an occurrence basis
GENERAL AGGREGATE
PRODUCT LIABILITY
PERSONAL INJURY
COMPREHENSIVE AGGREGATE
EACH OCCURRENCE
Automobile Liability, including any auto, hired autos and
non owned autos COMBINED SINGLE LIMIT

5

$5
$3
$3
$3
$2
$2

million
million
million
million
million
million

8.3
Coverage for State Property on PCSPrerrlfs€s. The policies shall provide coverage for damages to
the State's property, which occurs on PCS's premises or premises under the control of PCS or PCS's
subcontractors.
8.4
Claims Made Coverage. All insurance policies required by this Agreement must provide coverage for
all claims arising from activities occurring during the term of the policy regardless of the date the claim is filed
or expiration of the policy.
8.5
Notice Regarding Cancellation. Certificates of insurance, which provide that the ICN will be notified
at least thirty (30) days prior to cancellation of the coverage required by this Agreement must be provided by
PCS and any subcontractors to the ICN at the time of execution of this Agreement or at a time mutually
agreeable to the parties.
8.6
No Limitation of Liability. The receipt of insured certificates by the ICN does not constitute approval of
the coverage contained in the certificates, and PCS remains responsible for determining that its insurance
coverage meets each and every requirement of this Agreement. Acceptance of the insurance certificates by the
ICN shall not act to relieve PCS of any obligation under this Agreement. Only companies authorized to transact
business in the State of Iowa shall issue the insurance policies and certificates required by this Section. It shall be
the responsibility of PCS to keep the resr>ective insurance policies and coverages current and in force during the
life of this Agreement Failure on the part of PCS to furnish the required insurance in the time stated, or to
maintain the insurance in full force and effect durinfl the term of this Agreement and any extension thereof,
shall be cause for the ICN to declare PCS in default under this Agreement.
8.7
Warranty. PCS warrants that it has examined its insurance coverage to determine whether the State
of Iowa, DOC and the ICN can be named as additional insureds without creating an adverse effect on PCS's
coverage.
8.8
Waiver of Subrogation Rights. PCS shall obtain a waiver of any subrogation rights that any of its
insurance carriers might have against the State of Iowa, DOC or the ICN. The waiver of subrogation rights
shall be indicated on the certificates of insurance coverage supplied to the ICN.
SECTION 9. CONFIDENTIAL INFORMATION.
9.1
During the course of this Agreement each party may disclose, to the other either directly or indirectly,
certain data which is proprietary which shall be referred to as "Confidential Information" of the disclosing parly
and which must remain confidential. Confidential Information may include without limitation, among other
things, such items as inmate personal information, security information, user information, data, knowledge,
trade secrets and other proprietary information, methodologies, developments, software, software
documentation, inventions, processes, and other nonpublic information in oral, graphic, written, electronic or
machine readable form.
9.2
The parties acknowledge that information and material in the hands of the ICN or DOC is generally
public information unless il is specifically allowed by law to be maintained as Confidential Information.
9.3
The parties acknowledge that some information in the hands of the ICN or DOC is strictly confidential
and is not subject to release as a matter of law. PCS shall abide by all such statutory provisions when
handling sensitive ICN or DOC information identified as confidential.
9.4
All written or electronic Confidential Information shall be clearly marked as Confidential Information by
the party providing the Confidential Information at the time of disclosure to the other party
If the Confidential Information is disclosed orally, and reduced to writing, the receiving party must treat
9.5
Ihe information as Confidential Information.
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9.6
pes shall limit such identification to information it reasonably believes it is entitled to confidential
treatment pursuant to Iowa Code Chapter 22 or other applicable law.
9.7
In the event a public records request is made to the ICN or DOC pursuant to Iowa Code Chapter 22,
regarding the Confidential Information of PCS, the agency in receipt of the request shall immediately notify
PCS of the request by telephone and fax. The agency in receipt of the request will respond to the request for
information within 10 business days thereafter with a release of the information unless PCS has obtained an
injunction preventing release of the requested information.
In the event PCS reCeives a request for information pursuant to Iowa Code Chapter 22 for information
9.8
supplied to it by the ICN or DOC, PCS will immediately notify the agency whose records are being sought of
the request by telephone and fax. PCS may respond to the request for information that has I'\Ot been
designated as confidential by the ICN or DOC in its sole discretion. In the event PCS chooses to release the
informEltion subject to the request, it must provide the agency whose records have been requested with at least
thirty (30) days notice prior to the release of information to allow that agency to obtain an injunction to prevent
the release of information if appropriate and in accordance with the law,
9.9

The obligations of this Agreement do not apply to Confidential Information Which:
9.9.1 Was rightfully in the possession of the receiving party from a source other than the disclosing party
prior to the time of disclosure of the Confidential Information to receiving party;
9.9.2 Was known to the receiving party prior to the disclosure of the Confidential Information from the
disclosing party;
9.9.3 Was disclosed to the receiving party without restriction by an independent third party having a legal
right to disclose the Confidential Information;
9.9.4

Becomes public knowledge, other than through an act or failure to act of the disClosing party;

9.9.5

Is pUbliCly available or in the public domain when provided;

9.9.6

Is independently developed by the disclosing party; or

9.9.7

Is disClosed pursuant to law, SUbpoena or the order of a court or government authority.

9.10

The parties shall have the following duties relating to the Confidential Information:

9.10.1 PCS shall designate one individual who shall remain the responsibie authority in charge of all data
collected, used or disseminated by PCS in connection with the performance of this Contract. PCS shall
accept responsibility for providing adequate supervision and training to its agents and employees to ensure
compliance with the terms of this Contract. The private and confidential data shall remain the property of
the ICN or DOC at all times.
9.10.2 The Confidential Information of either party shall be held in strict confidence by the receiving party
and shall not be disClosed or used by the receiving party without the prior written consent of the disclosing
party, except as provided in this Agreement or as may be required by law pursuant to available
confidentiality restrictions.
9.10.3 The parties shall use their best efforts to protect the Confidential Information in its possession.
9.10.4 The parties shall restrict disclosure of the Confidential Information solely to those of its employees,
agents, consultants and attorneys with a need to know in order to accompiish the purpose of this
Agreement.

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9.10.5 ihe parties shall protect the Confidential Information from disclosure to or access by unauthorized
persons.
9.10.6 The parties shall use the Confidential Information solely for the purpose of this Agreement and for
no other purpose.
9.10.1 The parties shall not duplicate the Confidential Information in any form, except as may be
necessary to accomplish the purpose of this Agreement.
9.10.8 The parties shall advise each of its employees, agents, consultants and attorneys who receive the
Confidential Information of the obligations of confidentiality and restrictions on the use set forth herein.
9.10.9 The parties shall immediately return the Confidential Information and all copies thereof, to each
other upon the earlier of the termination of this Agreement.
9.11
The provisions of this Agreement shall apply to all Confidential Information disclosed by the parties to
each other over the course of this Agreement. The parties' obligations under this provision shall survive
termination of this Agreement and shall be perpetual.
9.12 PCS shall indemnify the ICN and DOC for a violation of this Section. PCS shall notify the ICN or the
DOC prior to the destruction of these materials and shall provide the appropriate agency with the opportunity to
ensure the proper destruction of its confidential materials.
9.13 No Confidential Information will be exported to any country in violation of the United States Export
Administration Act and the regulations thereunder.
SECTION 10. PCS WARRANTIES.
10.1
Construction of Warranties Expressed in this Agreement with Warranties Implied by Law. All
warranties made by PCS in all provisions of this Agreement and the Bid Proposal by PCS, whether or not this
Agreement specifically denominates PCS's promise as a warranty or whether the warranty is created only by
PCS's affirmation or promise, or is cre.ated by a description of the materials and services to be provided, or by
provision of samples to the ICN, shall not be construed as limiting or negating any warranty provided by law,
including without limitation, warranties which arise through course of dealing or usage of trade. The warranties
expressed in this Agreement are intended to modify the warranties implied by law only to the extent that they
expand the warranties applicable to the goods and services provided by PCS.
10.2 PCS warrants that the all the concepts, materials produced, the work product and the information, data,
designs, processes, inventions, techniques, devices, and other such intellectual property furnished, used, or
relied upon by PCS, DOC, or the ICN will not infringe any copyright, patent, trademark, trade dress, or other
intellectual property right of PCS or others. Any intellectual property provided to the ICN and DOC pursuant to
the terms of this Agreement, shall be wholly original with PCS or PCS has secured all applicable interests,
rights, licenses, permits, or other intellectual property rights in such concepts, materials and work.
10.3 PCS represents and warrants that the concepts, materials and the ICN and DOC's use of same as
provided for in this Agreement and the exercise by the ICN and DOC of the rights granted by this Agreement
shall not infringe upon any other work, or violate the rights of pUblicity or privacy of, or constitute a libel or
slander against, any person, firm or corporation and that the concepts, materials and works will not infringe
upon the copyright, trademark, trade name, literary, dramatic, statutory, common law or any other rights of any
person, firm or corporation or other entity.
10.4 PCS warrants that all of the services to be performed hereunder will be rendered using sound,
professional practices and in a competent and professional manner by knowledgeable, trained and qualified
personnel.

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10.5 PCS warrants thatthe deliverables under this Agreement will operate in conformance with the terms
and conditions of this Agreement and that the System will be fully operational and accessible during applicable
operating hours as provided for in this Agreement.
10.6 fOCS warrants that it has full authority to eliter into this Agreement and that it has not granted and will
not grant any right or interest to any person or entity which might derogate, encumber, or interfere with the
rights granted to the ICN.
10.1 PCS warrants that all obligations owed to third parties with respect to the activities contemplated to be
undertaken by PCS pursuant to this Agreement are or will be fully satisfied by PCS so that the ICN will not
have any obligations with respect thereto.

10.B PCS warrants that, except as otherwise provided for in this Agreement, it is the owner of or otherwise
has the right to use and distribute the equipment, hardware, software, all the materials owned by PCS and any
other materials, and methodolClgies used in connection with providing the services contemplated by this
Agreement.
10.9 PCS warrants that any software used in connection with the ICS shall not contain any Trojan horses.
worms. viruses or other disabling devices.
10.10 PCS expressly warrants to the standards in the industry all aspects of the goods and services provided
by it or used by PCS and the ICN in performance of this Agreement.
10.11 PCS warrants that during the term of this Agreement and any extension or renewal term, PCS shall
continually use and integrate the most current and up-to-date technology commercially available into the
System and any components necessary for the System to function subject to the prior written approval of the
leN.
SECTION 11. INDEMNIFICATION BY pes. PCS agrees to defend, indemnify and hold the DOC, ICN. and
the State of Iowa, its employees, agents, board members, appointed officials and elected officials, harmless
from any and all demands, debts liabilities, damages, loss, claims, suits or actions, settlements, judgments,
costs and expenses, including the reasonable value of time expended by the Attorney General's Office, and
the costs and expenses and attorney fees of other counsel required to defend the ICN, DOC, or the State
related to or arising from:
11.1 Any violation or breach of this Agreement inclUding without limitation any of PCS's representations or
warranties; or
11.2

Any acts or omissions, including, without limitation, negligent acts or omissions or willful misconduct of
its officers, employees, agents, board members, PCSs, .subcontractors, or counsel employed by PCS in
the performance of this Agreement, or any other reason in connection with the goods and services provided
under the Agreement; or

pcs.

11.3 Claims for any violation of any intellectual property right including but not limited to infringement of
patents, trademarks, trade dress, trade secrets, or copyrights arising from the any of the goods or service
performed in accordance with this Agreement; or
11.4

PCS's performance or attempted performance of this Agreement; or

11.5

Any failure by PCS to comply with all local, state and federal laws and regulations; or

11.6 Any failure by pcs to make all reports, payments and withholdings required by federal and state law
with respect to social security, employee income and other taxes. fees or costs required by PCS to conduct
business in the State of Iowa.

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11.7 PCS's duty to indemnify as set forth in this section shall survive the expiration or termination of this
Agreement and shall apply to all acts taken in the performance of this Agreement regardless of the date any
potential claim is made or discovered by the ICN,
SECTION 12. INDEMNIFICATION BY STATE.

12.1 The ICN shall, only to the extent consistent with Article VII, Section 1 of the Iowa Constitution and Iowa
Code Chapter 669, indemnify and hold PCS harmless against any and all losses, costs, damages, expenses,
claims, demands, causes of action, jUdgments and settlements arising directly out of the negligence or
wrongful acts or omissions of an employee of the ICN while acting within the scope of the employee's office of
employment in connection with the performance of this Contract
SECTION 13, RESERVED.
SECTION 14. TERMINATION

14.1 Termination For Lack of Authority or Funding. Notwithstanding anything in this Agreement to the
contrary and subject to the limitations, conditions, and procedures set forth below, the ICN or DOC shall have
the right to terminate this Agreement without penalty and without any advance notice as a result of any of the
following:
14.1.1 The Legislature or Governor fails, in the sole opinion of the ICN, to appropriate funds sufficient to
allow the ICN, DOC, or any state agency or department charged with responsibility to perform any of the
ICN's obligations under this Agreement, to either meet its obligations under this Agreement or to operate
as required to fulfill its obligations under this Agreement; or
14.1.2 If funds are de·appropriated,not allocated or if the funds needed by the ICN, or DOC in the ICN's
sole discretion, are inSUfficient for any other reason; or
14.1.3 If the ICN's, DOC's. or any responsible state agency's or department's authorization to conduct its
business is withdrawn or there is a material alteration in the programs or any other program the ICN or
DOC administers; or
14.1.4

If the ICN's duties are SUbstantially modified by statute, executive, court or administrative order.

14.1.5 Written Notice of Cancellation,
pursuant to this section.

The ICN shall provide PCS with written notice of cancellation

14.1.6 Request for Funds, The ICN agrees to make a re.asonable request during the bUdget hearing
process before the Department of Management and the Governor for the necessary funds to complete this
Agreement If any appropriation to cover the costs of this Agreement becomes available within 60 days
subsequent to termination under this clause, the ICN agrees to re-enter the Agreement with PCS, if PCS is
still available to prOVide the goods or services described in this Agreement or any attachments hereto
under the same provisions, terms and conditions as the original Agreement.
14.2 Termination for Cause. The ICN may terminate this Agreement upon written notice for the substantial
breach by PCS of any material term if such breach is not cured by PCS within the time period specified in the
ICN's notice of breach or any subsequent notice or correspondence delivered by the ICN to PCS, with no time
period being less than thirty (30) days, If a cure is feasible and an opportunity to cure is provided, the notice
shall specify the exact date by which the condition must be cured, which shall be a reasonable cure period.
Following expiration of the opportunity to cure or notice from the ICN, the leN may seek any legal or eqUitable
remedy authorized by this Agreement or by law. Should the Contact be terminated for cause, PCS shall
reimburse the leN and DOC for the costs assoCiated with sourCing and contracting a replacement vendor,
implementing tlte replacement system and reasonable damages incurred by the DOC and DOC inmates.
Substantial breach events include, but are not limited to, the following:

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