Prison Phone Justice

AGREEMENT FOR PAY TELEPHONE LOCAL AND INTRALATA
LONG DISTANCE SERVICE
FOR
THE STATE OF INDIANA
DEPARTMENT OF ADMINISTRATION
INFORMATION SERVICES DIVISION
WHER.EAS, the State of Indiana ("State") desires to enter into this Agreement for Pay
Telephon~ Local and Long Distance Voice and related Facilities Maintenance Services for certain

designated pay telephones in return for receiving apercentage of billed revenues generated from
pqxtelephonf;luse;'and
WHERI:AS, AT&T Corp., on its own behalfandon behalf of itsaffiliates and subsidiaries,
including but notlimited to TCGPu91ic Cornmunications,lnc. Qointly, "Contractor") agreesto provide
to the State of Indiana PayTelephone Local and Longbistance Services and paya mutually agreed
to percentage of billed revenues generated from use to the State;
NOW THER.E:FO~E, the pa~iesagreethatthe terms andconditions specified below will
f}oyerri'the~ervic~s tope df:llivered arl~thepaymentof commissions;

1.

Duties()f Contractor

'.orheG()ntf~ctor'shallpro¥ige~erVi(;esihJhe.~rea.· ()fIOCC;lI, • • intraLAIAC;lpd .intraLAT,Along
distance payphOneservice}orlr:tdiana State governmental facilities. (the. "Payphone Services;') as
such, are listed .in The Proposal("Statement of Work"), RFP, and all Attachments, wh.ich are attached
and hereby incorporated into this Contract.'
'
2.

Term

"", •.. . •. This ,90ntractshall commenFe uPOn execu,tion bylhe GontractorC;lnd,all thef~pre~entCltives
of the State of Indianaas requireCl'underJa""toenterinto mi~Contract. Th~GoritracttermshClllbe
forty-eight (48) consecutive months. The term shall endat midnight EST of the same month and
same day forty-eight (48) months following Contract ~xecution.There may be. two additional
,r~ne'vValsof t~~nty-fpur (21) monthseach.,forqtotalrnax.irnurTl.termof eight (~}year~. TpreJ:}e"" the
contract,ttieState mu'st give written 'notice to AT&T no later than thirty {3.o}9ay~.pri?rto the
expiration of the initiaJ tenn. or.any renewal term. Jntheevent that the State does not give timely
notice of its desire to renew the Agreement, the Agreement shall continue on a month-to-month
basis, terminable by~itherpartyupon thirty (3Q)days notice, subjectto the provisions of Section 23.
3.

Contractor's Role and Responsibility

A.
The contractor, in consideration of the terms and conditions contained in this Contract,
agrees tp proyide the payph()n~ Servic~s tp the§tate.

B: . The Contractor agrees to pay the State a percentage ofrevenues generated fromthe use of
the payphone §ervic.es inaccqrdance with tb~cornlJlission rqte selforth belowin$ectipn 40.
C.
Contractor also af}reestocooperate with the State's vendor for.interLATA long distance
services to be provided tousers of the Payphone Services. Any charges payable to Contractor by
Rage1of16

the State's vendor for such calls and associated services shall not be subject to the payment of the
commission fees specified in Section 40.
4.

Local Operating Company Charges

The Contractor shall pay, without limitation, any and all tariffed Local Operating Company
charges applicable to Contractor inc,urred, as a result of converting the State's public telephones lines
and/or circuits to the Contractor's service.
5.

Contract Administration

Contractor acknowledges that the Indian<;l D~partment of Administration,pivision of
Inform<;ltionTeGhnqlogy is the StCite'~sole repre~~ntative for (;onducting busines's with Gont~actor
concerning the Payphone Services. Contractor expressly agrees to. mCik~Ciqy pre$entCitipn,
proposal, negotiation, discussion, written contact or any other business correspondence or matter
relatingtpthe State VtJith the Pivj~ion of Inform,ation, Technology but this shall not exclude the
ContractorJrom dealing directly with the Department of Corr~ctions regarc:iing operationCiI matters
affecting Inmate Services without involving the Division of Inf8rm~tion Technology.
6.

Faithful Performance Bond

A.
The Contractoragrees to flJmish to the lncliana Department of Admin,istration a Berformance
Bond in the amount of $1;000,000 which must be delivered to the 'State concurrent with' the
Contractor's execution of this Contract. The performance bond m~yp~in.thef9rrrota cashi~r's
check, a certified check, or a surety bond. If a surety bond is executed, the surety company must be
authorized)o do bus.in~ss ,in the State of Indiana ,a$ apgro"ed by thelpdiana Dtpartment of
Insurance, The performance bond shall be made 'paY~ble to the ,Indiana Dep~rtment of
Administration and shCilibe effectiv~throughoutthe life ofthegontract inchJging any exteqsion ofthe
Contract term. Individual performance bonds may have annual terms and will be renewed or
replaced for subsequent years.
B.
Any change in work, extension of time, or termination of this Contract, if any, made pursuant
to this Contract" shaH in no way release the Contractor or anyof its sureties from any of their
opligations .rel~tingtpany~ctv.thich occ.urspripr to"twrninationofthis.Contract.$uch bong shall
contCiina waiver Of noticeof~nY changetoJhis ContrCict.
'
C.
Notwithstanding any otherprpvisions relating to'the b~ginning ofth~term, this COntract will
not become effective until the performance bond required by th,is Contracti$delivered in the correct
form and amount to:
"
Indiana Department ofAdministration
Procurement Division
Room W468, Indiana Government Center
402 W. Washington Stre~t
Indianapolis, IN 462()4"2263
Attn: Shelley .Harris
D.
If there be any conflict between this COntract, the RFP,and/or theC6ntractor!sresponse to
the RFP,the order of>priority shall be (1) this Contract, (2) Contractor's RFP ResP9nse and all
attachments thereto, aqd (3) the RFP and all attachments thexeto. Contractor's RFP Response and
its attachments, and the State's RFP and its attachments, are hereby incorporated by reference.
E.
Notwithstanding the foregoing, it is understood that the State has relied upon th~ truthfulness
of the Contractor:'s proposal and its various parts, including but not Iimitedto,proprietaryinformation,
Page 20f16

and confidential information submitted by the Contractor, which is not reproduced herein,in entering
into this Contract and should said materials prove to be false or misleading, the State may seek
appropriate remedies at law and in equity and may produce and disclose in court proceedings said
.
materials.
7.

Changes

A.
All changes to this Contractshall be by formal amendment and shall be signed byall parties
requiredt9affix their signatures th~reto by Indiana law.

B.
. SubJect to the provisions of Section l.C, the StatelTIay from time to timereqllestthat
Contractor add or delete service locations andrriake minorchange? to the phone systems without
such requiring the execution of a formal amendment as required under this Section 7. Change
notification may be given by telephone, fax, written letter, or email.
(;, . . Contractor ~ndSt~teagree. to Jeaspn.a9Iyn.~~otiate re9arding th~initialnurnber and location
9fpUbl.ic paytelephppe!3,~nd~nyadditions8r.cleleti?n!3 ofpubl.i8payt~lephones.suqh negotiations
shallconsid~rfa.ctors such as:(i)VJh~th~r~public pay telephone should remain inpl~ceorbeadcled
in ordwtorn~~t publiC safetyorcony~ni~nce requirements; (ii)VJh~therthepllblic pa;,telephqnes at
a State location m~y be reducedciueJ() insufficient demand.;an.dlqf(iii)whet/:ler the t9t~lnurnber of
public pay telephones in an individual bank of telephones can be reduced without unreasonably
inconveniencing the public. The Contractor and State shall seek to minimize the numb~r of public
pay telephones (other than public safety telephones) which generate less than $SO.OOin monthly
gross rev~nues for Contractor. Th~ultimate decision as to whether to remove, addormove any
public PClyt~lephones shall be at tpf:}sole discretion of the Sta,!€'; Contractor shall not,hQ,wever, be
obligated to pay commissions on any State location in any m(}nth in which the average mopthly gross
revenuest9 the Contractor from all the public pay telephones at that location are less than $50.00.

8.

Communication Charges
All costs and expenses incurred by Contractor in providing the Payphone SerVices shall be
Contractor.

bornebyth~

9.

Implementation

The.. CpntraqtoT!3hallbe resppnsiblefq(fl/llilllplE;mentation of th~e~yphone Services anq in
~lIotller r~spectsl11Clkingme seryic~s and~9Uipnwnt . ready for oper<,di9naluse.
.
>.,

1O.

F(iillJr~to

,',

[)eliver Conf()rrning .Services

Thecutove~ dates of InmciteService at individuallo8~tions as mut'ually agreedupon from
time to time. between the parties wHlbe fixed so that the utilization of services is consist~nt with the
timing schedules,of the State's prowams. If any portion of th~Jnmate Service is not insta.lled by the
date agreed by the parties, the dE;lay could result in loss <.wddamage to the State. Jtwould be
impractic:~I:>Je and extremely difficylt}o fix the actual damag~sustained in the evenfpfany such
delay. Th~State and the Contraclpr,therefore, presume thCltin the event of any suclldelay, the
amountof(iamage which will be sl1stained from a delay wiHbe.the amount set forth inlhis Section
10, andth~y agree that in the eVE;nt\of any such delay calJ!3~d by any failure on thepClrt of the
Contract()f, ContraCtor shall pay s~cbamount as liquidated cJalllClges and not as a penalty.,-he State
shall notify Contractor in Viritipg otanyqlaim for liquidat~d da.rnClg~s pursu,ant to t~isparagfClph on or
beforetheQ~te that the State de811c:t§s.uchsums from mon~YPClyable tq the Con'tractor()r~~mands
paymE;ntfromthe Contractor,b.ytnotl~tertha.n sixty (60) day? after the originaldu~date ..f(}r the
delayed installation. The amount of damages as it pwtains to thispar~graphsh~.llb~anarrJounto f
Page 3 of 16

$60 per day per telephone for each calendar day of delay in completing installation for a location, but
not for more than 30 calendar days per location. Provided, however, that delays outside the direct
control of the Contractor, such as due to the site not being ready, changes in the State's orders or
requirements, delays by the incumbent local exchange carrier, delays due to actions by the State, or
delays due to force majeure, shall not be subject to the payment of liquidated damages. Additionally,
the maximum amount of liquidated damages payable under this Section 10 from all causes shall not
exceed the sum of ten thousand dollars ($10,000.00) per location over the term (including any
extensions or renewals) of this Contract, or one hundred thousand dollars ($100,000) in total over
the term (including any extensions or renewals) of this Contract. The payment of liquidated damages
under this Section 10 shall be the State's sole and exclusive remedy for any failure of Contractor to
meet cutover date objectives, unless the failure to meet cutover date objectives is so severe that
termination for cause is justified under Section 50.

11.

Notice to Proceed

The Contractor will be expected to start active and continuous work on the Contract after
receiving a written notice to proceed. In no case shall the Contractor begin work prior to the receipt
of the notice to proceed. In the event that any Contract is canceled after an award has been made
but prior to the issuing of the notice to proceed, no reimbursement will be made to the Contractor for
any expenses that may have been accrued, relative to the Contract prior to that time.

12.

Warranty

The Contractor warrants, represents and assures that the Payphone Services to be provided
hereunder shall conform in all aspects to the specifications contained in the RFP Response, which
Contractor and State believe will meet the functional and performance standards contained therein
and will meet or exceed the representations contained in the Proposal during the entire term of the
Contract.

13.

Service Degradation

A.
Contractor warrants that the communications network providing the Inmate Services under
this Contract will perform in accordance with the statements of the RFP Response for the network.
This warranty shall be in effect throughout the term of this Contract.
B.
If the communications network providing the Inmate Services fails to perform as specified
above, and the State notifies Contractor, Contractor shall correct such service degradations promptly
and without charge to the State. The State may report and Contractor shall commence repair of all
service degradations seven (7) days a week, twenty-four (24) hours per day. For the purpose of this
provision, a service degradation shall be defined as any loss of service as defined in the RFP.
C.
When an Inmate Service is interrupted and interruption exceeds four (4) hours, as measured
from the time interruption is reported to or is detected by the Contractor, whichever occurs first,
Contractor will reimburse the State for the loss of commission revenue. The reimbursement
payment will be based on the actual length of time of the outage and will be calculated based on the
actual reduction in commissions for the affected telephone unit compared to the previous month's
actual commission from the same telephone unit. Additionally, the maximum amount of liquidated
damages payable under this Section 10 from all causes shall not exceed the sum of ten thousand
dollars ($10,000.00) per location over the term (including any extensions or renewals) of this
Contract, or one hundred thousand dollars ($100,000) in total over the term (including any extensions
or renewals) of this Contract. The payment of liquidated damages under this Section 13 shall be the
State's sole and exclusive remedy for any service interruptions, unless the interruptions are so
severe that termination for cause is justified under Section 50.
Page 4 of16

14.

Access to Records

The Contractor and its subcontractors, if any, shall maintain all books, documents, papers,
accounting records, and other evidence pertaining to all costs incurred under this Contract. They
shall make such materials availableattheir respective offices at all reasonable times during the
contract period, and for three (3) years from the date of final payment under the contract,for
inspection by the State or by any other authorized. representative of State government. Gopies
thereofshallbe furnished at no cost to the State if requested.
15.

Assignment

The Contractor shall not assign or subcontract the whole or any part of this Contract without
the State's prior.writtenconsent, which consent shall·noFbeunreasonably withheld. Provided,
however, that Contractor may assign and transfer this Contract initsentiretywithoutsuchconsent to
any successor-in-interest ofContractorwith or into whichiContractormaymerge or consolidate or
which may succeed to the assets ofContractor ora major portion thereof related to its inmate and
paytelephoneoperations,ortoany.parent,sUbsidiaryoraffiliatecorporation. Additionally, the
Contractor may assign .its· right to. receive payments to such third parties as the Contractor may
desire· without the prior written consent of the· State,provided· that Contractor gives written notice
(includingevidenceofsuchassignment)to the State thirty (30) days in advance of any payment so
assigned.Suchassignmentofits right to receive payments shall cover all unpaid amounts underthis
Contract and shall not be made to more than one party.
16.

Audits

Contractor acknowledges that it may berequiredto submitto an audit of funds paid through
this Contract. Any such audit shall be conducted in accordance with IC 5-11-1, and audit guidelines
specified by the State.
17.

Authority to Bind Contractor

Notwithstanding anything in the contract lothe contrary,. the signatory for the Contractor
represents thathe/she has been duly authori.zed .to execute. contracts on behalf of the Contractor
designated above.and has obtained all necessary orappliGable approvals from the home office ofthe
Contractor to make this Contract fully binding upon theContrCictorwhenhis/hersignature is affixed
and is not subject to home office acceptance hereto when accepted by the State of Indiana.
18.

Changes in Work

In theeventthe State requires.arnajor.Ghange .in the scope, charCicter or complexity of the
worka.ft€)rth€)workhCis b€)gun, c:l<:Jjustmentsin cOrnpensation to the GontractorshaU be deterrnined
by th€) State in. theexerGise.. oLitshonest and rel'.lsonable judgment. The Contrl'.lctorshall not
commence any additional work or change the scope of the work. until Ciuthorized .in writing.py the
State. No claim for additional compensation shall be made in the absence of a prior written approval
executed by all signatories hereto.
19.

Compliance with Laws

The Gontractoragreesto.comply with all. applicable .federl'.ll,stateandJpcal '.l'.lWS, rules,
regulations and ordinances, and all provisionsrequirecLther€)bylo be includeqherein are hereby
incorporated. by r€)ferenc.e. The enactment of .anystate.. or fe.deral statute or the. promulgation. of
regulations thereunder after execution of this Contract shalLbe revieweq. by. theState.anq the
Contractor to determine whether the provisions of the contract require formal modification.
Page 5 of 16

20.

Confidentiality of Data, Property Rights in Products, and Copyright Prohibition

A.
The Contractor agrees that all of the State's proprietary information, which may include
specifications, designs, plans, data,findings, recommendations, proposals, software, computer
systems orother Confidential Information which may be disclosed to the Contractor in furtherance of
this Contract shall be the property of the State. The Contractor shall take such action as is
necessary under law to preserve such property rights in and of the State while such property is within
the control and/or custody of the Contractor.
B. .
Any and all inventions, improvements, developments or innovations made, conc:~iv~dor
devisedbyContrac:torin th~course of provicHng Paypbone Services b~r~unqer,<:!r~<:!nq shall. be the
sole and .~xclusivE;propE;rtyotContractor,inc:luqjng<:!11rights to p<:!t~ntcppyrights,tr<:!qemarks. <:!nd
trade· secrets ·inherentth~rein.• <:!nd. appurtenanttb~reto .. Neith~rown~rshipofLnor title to<:!ny
invention,' • . improvement,·.·.qevelopment. or .innoy<:!tipn(includ ingaIlJigbtstopat~nts, • copyrights,
trademarks andtrade secretsinherenUherein anq appurtenanHhereto) provided ormade<:!vailable
to the State bythe Contractor inthe.course of providing Paypbone Services ·hereund~rshalltbereby
pass to the State. Subject to the foregoing, if, in the course. of providing PaypholleServices
hereunder,the Contractor shall develop ,content or materials that are specific and unique to.the
State, and which content or materials are not applicable to other customers of the Contractor, then
the Contractor shall assign all rights to such content or materials to the State.
C.
The Contractor hereby grants to the State the non-exclusive, personal and non-transferable
limited right(including patent and cppyright licenses) to use.all Payphone Services delivE;red to the
State under this Contract solely forthe internal business purposes of the State, or for such other
purposes as may be mutually agreed in writing by the parties, Except as otherwise specified herein,
no other right or license to any of Contractor's intellectual property rights is either granted or implied
under this Contract.
D.
ThedE;liverablesto be provi9E;dby the ContractortptheSt<:!te under this Contrastor may be
in the form.ofanorigin<:!1 dpcum~nt, orqpcumE;nt(s),in paperorsirnilar fprm,reprE;senting.the
prpfessional<:!dvip~.()f ttl~Contractpr... AII.origipClls <:!ndcopi~s of tbe .doC:LJm~nt( s)shallpe the
Pfop~rty.ofthE;StClt~~I)ppndeli,,~ryofth~qoP.LJm~nt(s).
totb~ Stat~,thE;CpntrClc:torsh<:!1Ihave no
ownership right orjntE;restin the. docurn~nt.
..
.
E.
Nothing contained in this Contract shall restrict either party from th~useof any idE;las,
concepts, know-how, or techniques relating to the Payphone S~rvicesoutliried in this Contract,
which~itherparty, individually orjoi.nt1y, develops or discloses under this Contract, except to the
extentsuch..use infringes any ofeitherparty's patent rights or.popyrights or would resiJltipa breach
of the conficl~ntiality provisions ofthi.~.Contract. However, excE;pt for the licenses expressly granted
hereunder,neither this Contract nor C3ny disclosure made her~under grants any license to either party
under any patents or copyrights ofthe other party.
..

21.

Confidentiality of State Information

Th~.Gontractor understands.Clnd agrees that data, materials, and informationd.isclosed to
C()ntrac,torrnay contain confidentiCl'Clnd protected data. Th.wefore, .the Contractor prolllises and
as'sur~sthatdatCl' material, and infprrnation gathered,:basepypon or disclosed to the. yontractor for
the purpose ofthis Contract, willnotbedisclosed to others.ordiscussedwith otherparties.without
the prior written consent of the State.
'

Page 6 of 16

22.

Conflict of Interest

A. As used in this section:
"Immediate family" means the spouse and the unemancipated children of an individual.
"Interested Party," means (i) the individual executing this Contract; (ii) an individual who has an
interest of three percent (3%) or more of Contractor, if Contractor is not an individual; or (iii) any
member of the immediate family of an individual specified under subdivision 1 or 2.
"Department" means the Indiana Department of Administration.
"Commission" means the State Ethics Commission.
B. The Department may cancel this Contract without recourse by Contractor if any Interested Party
is an employee of the State of Indiana.
C. TheDepartment will not exercise its right ofcancellation under section B above if the Contractor
gives the Departmentan opinion by the Commission indicating that the existence ofthis Contract
and the employment by the State of Indiana of the Interested Party does not violate any statute
or code relatingJoethical conduct of State employees. The Department may take action,
including cancellation oUhis Contract consistent with an opinion of the Commission obtained
under this section.
D. Contractor has an affirmative obligation under this Contract to disclose to the Department when
anlnterestedPartyis or becomes an employee ofthe State of Indiana. The obligation underthis
section extends only to those facts that the Contractor knows or reasonably couldl<now.

23.

Continuity of Services

A.
The Contractor recognizes that the services under this Contract are vital to the State and
must be continued without interruption and that, upon contract expiration ,asuccessor,either the
State or another Contractor, may continue them. The Contractor agrees to (i)Furnishphase-in
training, and (ii)Exerciseits commerciallyreasonableefforts and cooperation toeffectan orderly and
efficient transition to.a successor.
B.
The Contractor shall, upon the State's written notice (i) furnishphase-in,phase..out services
for up to six (6) months after this·. Contract expires, •and. (ii) • negotiate in good .faith. a plan. with a
successor to determine the nature and extent of phase-in, phase-outservices required. The plan
shall specify a training program and a date for transferring responsibilities for each division of work
described in .theplan,andshallbesubject lothe State's approval. . The Contractor shall provide
sufficient. experiencedpersonneldu ring the phase-in ,.phase-outperiodtoensu re· that the services
called for bythis Contract are maintainedatthe required level ofproficiency.
C.
The Contractor shall allow a reasonable number of personneltoremain on the jobto help the
successor maintain the continuity and consistency of the services required by this Contract.
D.
The Contractor shall be reimbursed for all reasonable phase-in, phase-out costs (Le., costs
incurred. within. the agreed period. (3ftercontract •expiration that result from· phase..in, phase-out
operations).

24.

Debarment and Suspension
Page 7of16

Contractor certifies, by entering into this Contract, that neither it nor its principals are
presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded
from entering into this Contract by any federal agency or department, agency or political subdivision
of the Stateotlndiana. The term "princip;:ll'for purposes of this Contract is defined as an officer,
director, owner, partner, key employee, or other person with primary management or supervisory
responsibilities, or a person who has acritical influence on or substantive control overthe operations
of Contractor.

25.

Default by State

If the State, sixty (60) days after written notice, fails to correct or cure any breach of this
Contract, then the Contractor may cancel and terminate this Contract and collect all monies due up
to and including the date of termination.

26.

Disputes

A.
Should any disputes arise with respect to this Contract, Contractor and the State agree to act
immediately to resolve such disputes. Time is of the essence in the resolution of disputes.
B.
The Contractor agrees that, the existence of a dispute notwithstanding, it will continue
without delay to carry out all its responsibilities under this Contract that are not affected by the
dispute. Should the Contractor fail to continue to perform its responsibilities regarding all nondisputed work, without delay, any additional costs incurred by the State or the Contractor as a result
ofsuch failuretoproceedshaHbe horne bythe Contractor, and theContractorshallmake no claim
against the State for such costs. If the State and the Contractor cannot resolveadisputewithin ten
(10) working days following notification in writing by either party of the existence of a dispute then the
following procedure shall apply:
C.
The parties agree to resolve such matters through submission of their dispute to the
Commissioner of the Indiana Department of Administration. The Commissioner shall reduce a
decision to writing andmail or otherwise furnish a copy thereolto the Contractor and the State within
ten (10) working days after presentation of such dispute for action. The Commissioner's decision
shall be final and conclusive unless either party mails or otherwise furnishes to the Commissioner,
within ten (10) working days after receipt of the Commissioner's decision,a written appeal. Within
ten (10) working days of receipt by the Commissioner of a written request for appeal, the decision
may be reconsidered.lfnoreconsideration is provided within ten (1 0) working days, the parties may
mutually agree to submit the 'dispute to arbitration for a determination,'or otherwise the dispute may
be submitted to an Indiana court of competent jurisdiction.
D.
The State or Contractor maywithhold payments on disputed items pending resolution of the
dispute. The unintentional nonpayment by the State or Contractor of one or more invoices not in
dispute in accordance with the terms of this Contract will not he cause for either party to terminate
this Contract, and the unpaid party may bring suit to collect these amounts without following the
disputes procedure contained herein.

27.

Drug-Free Workplace Certification

A.
The Contractor hereby covenants and agrees to make a good faith effort to provide and
maintain a drug-free workplace. Contractor will give written notice to the State within ten (10) days
after receiving actual notice that the Contractor or an employee of the Contractor has been convicted
of a criminal drug violation occurring in the Contractor's workplace. This policy is limited to
Contractor's employees within the State of Indiana and employees located outside the State of
Indiana who perform services pertaining to the Contract.
Page 8 of 16

B.
False certification or violation of the certification may result in sanctions including, but not
limited to, suspension of contract payments, terminationof·the contract or agreement and/or
debarment of contracting opportunities with the State of Indiana for up to three (3) years.
C.
In addition to the provisions of the above paragraphs, if the total contract amount set forth in
this Contract is in excess of $25,000.00, Contractor hereby further agrees that this Contract is
expressly subject to the terms, conditions, and representations of the following certification:
This certification is required by Executive Order No. 90-5, April 12, 1990,jssued by the
Governor of Indiana.. Pursuant to its delegated authority, the Indiana Department of
Administration is requiring the inclusion of this certification in all contracts with and grants
from the State of Indiana in excess of $25,000.00. No award of a contract shall be made,
and no contract, purchase order or agreement, the total amoyntof Which exceeds
$25,000.00, shall be valid, unless and until this certification has been fully executed by the
Contr~c:tor;;mci m~ci~.Ci part of thecoJltraclor~greementas p~rtofth~c:qntract documents.
This certification is Iimit~dtqContr~ctor'$~mplqyees. within theState.oflndi~na. and
employees located outside the State of Indiana who perform services pertaining to the
Contract.
The

Contr~ctor

certifies and agrees that it .will provide a drlJg:-free workplace by:

(i)
Publishing and providing to all of its employees a statement notifying emploYees that the
use of a controlled supstance is
unlawfuL ll1 anufacture, distribution, dispensing, possession
prohibit~din the Contractor's workplace and specifying the8ctions that will be takEm against
employees for violations of such prohibition;

or

(ii)
Establishing a drug-free awareness program to inform employees of (1) the dangers of drug
abuse in the workplace; (2) the Contractor's policy of maintaining a drug-free workplace; (3) any
availabledrug counseling, rehabilitation, and employee assist~nce programs; and (4)the penalties
imposed
upon
an employee for drug abuse violations
occurring in the workplace;
that maybe
,
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(iii)
Notifying .all. employeesinthe statement re'quiredbysubparagraph (A) above that as a
c9ndition of continy~demploymenttheemploye.e~iII(1).~bidebytheterm~ofJhestatement; and.(2)
notify the Contractor of any criminal drugstatLJte c:onviction for a viqlation occurring in the workplace
no later than five (5) days after such conviction;
(iv)
Notifying in writing the State withinten" (10) daysafter receiving notice from an employee
under subdivision (C)(2) above, or otherwise receiving actual notice of such conviction;
(v)
Within thirty (30) days after receiving notice under subdivision (C)(2) above of a conviction,
imposing the following sanctions or remedial measures on any employee who is convicted of drug
abuse violations occurring in the workplace: (1) take appropriate personnel action against the
employee, up to and including termination; or (2) require such employee to satisfactorily participate in
a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State or
local health, law enforcement, or other appropriate agency; and
(vi)
Making a good faith effort to maintain a drug-free workplace through the implementation of
subparagraphs (A) through (E) above.

28.

Force Majeure
Neither party shall be liable for delays or performance failures resulting from and caused by
Page 9 of16

acts beyond the control of such party. Such acts shall include, but not be limited to, acts of God,
acts or war, epidemics, act of Federal or State agencies or other disasters or events. But, in every
case, the delays must be beyond the control and without the fault or negligence of the nonperforming
party.

29.

Funding Cancellation·,

When the Director of the State Budget Agency makes a written determination that funds are
not appropriated or otherwise available to support continuation of performance of a contract, the
contract shall be canceled. A determination by the Budget Director that funds are not appropriated
or otherwise available t05uPPOrt continuation of performance shall be final and conclusive.

30.

Governing Laws

This contr~ct shall be construedinaccordancevv'ith and governed by th~laws of the State of
Indiana and suit, ifany,"must be brought in the State of Indiana.
31.

Indemnification

Contractor agrees to indemnify, defend, and hold harmless the State of Indiana and its
agents, o~icials, and employees frorn all claims and suits inclyding court costs, attorney's fees, and
other exp~nses forbodilyinju,ry (ipcluding death) a l1 d cfamagelorealCind ta l1 gible personalproperty
tothe extent that~uch los~ v.ta~ proximC3t~ly caus,ed byth~ neglig~nce: gross negligence" orwillful
misconduct of the Contractor or any person for who~~c:onductth~ Contractorisr~sponsiblecmd
which arises from the performance or receipt of work under this Contract, if any.
32.

Independent <;ontractor

A.
Both parties hereto, in the performanceqf this ContraGt, shall act in an individual capacity
and not as agents, employees, partners, joint venturers or associates of one another. The
employe~sor agents ofone party shall not be de~med or construed to bethe employees or agents
of theoth~rparty for any purp()se.sWhatsoev~r.",Neither party will assume liability.for~ny injury
(incluqing death)t()anyp~r~9nS, ordam~gE:}to anypr()p~rty arisiQg .out of the~ct$or omissions of
the agents, employees or subcontractors of the otherp~rty.
B.
The Contractor shall be responsible forproviding,all necessary unernployment and workers'
compensation insurance for the Contractor's employees.

Page 10 of16

33.

Information Technology Accessibility

The contractor acknowledges and agrees that all hardware, software and services provided
to or purchased by the State must be compatible with the principles and goals contained in the
electronic and information technology accessibility standards adopted by the Architectural and
Transportation Barriers Compliance Board under Section 508 of the Federal Rehabilitation Act of
1973 (29 U.S.C. 749d), as amended.

34.

Key Person(s)
The parties agree that no individual or individuals are essential to the Payphone Services.

35.

Licensing Standards

The parties agree that Contractor and its employees and subcontractors win comply with all
applicable licensing standards, certification standards, accrediting standards and any other laws or
regulations governing services to be provided by the Contractor pursuant to this. Contract. State
shall not be required to reimburse Contractor for any services performed when Contractor or its
employees. or subcontractor~ .are not incompliance with such C3Pplicable standards, laws, or
regulations. If licensure, certification or accreditation expires or is revoked, Contractor agrees to
notify State immediately thereof.
36.

Nondiscrimination

A... • pursuant toIGg2-9-t-1 Oa.ndthe Civil Rights Actof1964,Contractorand.itssubcontractors
shaH not discriminate against C3nyemployeeorapplicant for employment in the performC3nce of this
Cpntract.. TheContra9tofshali notdiscrimincMe VIIith respect to the hire, tenure, terms, conditions. or
privileges ofemploYIl1entorany matter dir~ctly or indirectlyr~IGltedto employment, because of race,
cplor, religion,sex,disqbility, national origin or ancestry. Breachofthiscovenant ll1aybe regarqed
as .a. material.bree:tCh pfcpntract. .• AGceptance of this ContrC3ctals()signifies •compliance with
applicable federal laws, regulations, and executive orders prohibiting discrimination in the provision
of services based on race, color, national origin, age, sex, disability or stC3tus .as a veteran.
B.
The Contractor understand~ that the. State. is a recipient of federal funds Pursljant to that
understC3nding, the C()ntractor and its subcontractor, ifany, a9reethC3tifthe Contractor employs fifty
(50) or more e.mployees C3nddoes.qt least$50,000.00 worth.of business with .the State anqis •not
exempt, the .c0ntrC3ctorwill complywith the affirmative C3ction reportin9Jequirernentsof41 CFR 601.7. The Contractor shall comply with Section 202 of Executive Order 11246, as amended, 41CFR
60-250, and 41 CFR 60-741, as amended, which are incorporated herein by specific reference.
Breach of this covenant may be regarded as a material breach ofcontract.
37.

Notice to Parties

Notices to either party shall be in writing to the address indicated below or at such other address as
either party may later designate for itself in writing. Notices shall be deemed effective when
received, or 24 hours following the date of postmark, if sent by prepaid certified mail, return receipt
requested.

Page 11 of16

Notices to the State shall be sent to:
Product Service Mcmager,
DolT
RoomN551
100 North Senate Ave.
Indianapolis, IN 46204
Notices to the Contractor shall be sent to:
AT&T Corp.
Public Communications
100 Baylis Road
Melville,N.Y. 11747
Attention: John Hyland
38.

Order of Precedence

Anyinconsistencyorambiguityin this Contr(;lct shall be resolved by giving prec~d~nce in the
order set forth in Section 6.0 above.

39.

Ownership of Documents and Materials

All reports.to be.9~velop~dand deliv~redtothe St(3te under the Contr(3ct, which are unique to
the State, sh<3l1b~ the ~xclusi~e property of the St(;lte. Use ofthe r~portsoth~r than related to
Contrapt performance by the Contractor, \Nithout th~. prior \Nritten cons~ntof th~ Stelte is prohibited.
During the perforrl1anceoftheservicesspecified herein,the Contractor shall be. r~sponsiblefor any
loss or .<:Iall1(;lg~.toth~Jep()rtswhil~th~y are. in the poss~ssion qfthe Contractor.. Thisprovisionshall
in no way grant (;lny proP~rtY rights to. anypropri~taryS0ftware program, or any partther~of, licensed
(;lnd used by contractor oritssubcontr(;lctor, if any, in provisioning reportsh~reunder to.the State.
40.

Commissi<)O Payments and Rates

State has selected Contractor's rate and commission option number two(2) as stated in its
RFP Response. Accordingly, Contractor shall provide to the State an eighteen percent (18%) rate of
commission for billed revenues that are generated for the Contractor from all public pay telephone
stations and inmate pay telephone stations used to provide the Payphone Services.
41.

Contractor Personnel

A.
The Contractor shall at all times employ qualified and sufficienLp~rsonnelto<perform the
contracted services in the manner and within the period of time requested by the State.
B. . Any person (3ssignedby the Contractor sha",at the written r~qu~stof the State, be J~mc>ved
forthwithbyth~ Contractor. . . If the person is. not removed or i.f r~placem~nt p~rsonn~1 ar~<:Ieemed
unsuitable for proper completion of the work, the work may be suspended by written notice until the
requirements have been met or if such request by the State is not met, the State will not be
responsible for any charges associated with work performed by non-approved personnel.

Page 120f16

42.

PenaltiesJlnterestlAttorney's Fees

The State will in good faith perform its required obligations hereunder and does not agree to pay any
penalties, liquidated damages, interest, or attorney's fees, except as required by Indianalaw, in part,
Ie 5-17-5,IC 34-54-8, and IC 34-13-1.

43.

Progress Reports

The Contractor shall submit progressreports to the State upqn request. The report shaU be oral,
unless th~§tate, upon receipt ofthe, oral report, should deernitnecessary to have it in v~ritten form.
The prqgressreports shall servet/:lepurpose of assuring the State that work is progressing in line
with the schedule, and that completion can be r~asonablyassuredon the scheduled date:

44.

Renewal Optiqn

This contract may be renewed as stated in Section 2.
45.

Severability

The invalidity of any section, subsection, clause 'or provision of the Contract shalll10taffect the
validity of the remaining sections, subsections, clauses or provisions of the Contract.

46.

Substantial Performance

This Contract shall be deemed to be substantially performed only when fullyperformed
according to its terms and conditions and any modification thereof.

47.

Successors and Assignees

The Contractor binds its successors, executors,administrators, and assignees to all
covenants ofthis Contract.

.48.

Taxes

The State of Indiana is exempt from state, federal, and local taxes. The State will not be
responsible for any taxes levied on the Contractor asa result of this Gpntrac;t,
49.

Termination for Convenience.

Thisc~ntract~ay be termin;:ited, in whole 'or in part,byth~ State whenever, for <.3nyreason,
the State determines that such t~rl1'lination is in the bestir1tE~rest of the State. Termipation of
services~hf]1I be effected by deliv~ryto the Contractor of a Termination Notice at leastthirty (30)
days pri()rto the termination effectiv~date, specifying the extent to which performance ofservices
under sugl1.Jermination becomes~ffective. The Contractor.~hall be compensated }orservices
properly rendered prior to the effective date of termination. The State will not be liable for services
performed after the effective dateoftermination. The Contractor shall be compensated for services
herein provided but in no case shall total payment made to Contractor exceed the original contract
price or s,hall any price increase be allowed on individual line items if canceled only in part prior to
the originaltermination dat~.
.
50.

Termination for Default
Page 13 of 16

A
The State may terminate this Contract in whole or in part, if, after receiving at least thirty (30)
days advance written notice of an alleged default, the Contractprfails, within that thirty dayperiod, or
such longer period as may be reaspnably required to remedy the default using due diligence, to: (i)
correct or cure any material breach of this Contract; (ii) perform material services within the time
specified in this Contract or any extension; (iii) make progress in providing the Payphone Services so
as to endanger Contractor's reasonable ability to perform this Contract; or (iv) perform any of the
other material provisions of this Contract.
B.
..Iftlle State terminates this ~()(ltract in whole or in p~it,itmay acquire, underJhet~.rms and in
the m~n(lertfle State considers appropriate, supplies or seNi(;~s.silT!ilar to ,those termi(lated,and ~he
ContractprW;illbe liClble.to the Stat~forany excess cpsts fprthosesupplies or services. However,
the Contractor shall continue the work not terminated.
C,
The rights and remedies of the State in this clause are in addition
remedies provided by law or under this Contr<;1ct
51.

Travel
Expenditures made by the Contractor for travel willnolbe

52.

to any other rights and

reimbur~ed by

theStCite.

Waiver of Rights

No right conferred on either party under this Contract shall be deemed waived and no breach
of this Contract excused, unless SlJ.ch waiver or excuse shal/be in writing and signedby the party
.
claimed to have waived such righL\
53.

Work Standards

Thr<::ontractor agrees toe)(ecute its responsibilities by fpllowing and applyingcommercially
reasonably professional and technical guidelines and standards, as are typically ClPplied in the
industry in the provision of such services. If the State becomes dissatisfied with the work product of
or the working relationship with those individuals assigned to work on this Contract, the Statern8Y
request in writing the replacement of any or all such individuals and Contractor shall grant such
r~quest.

54.

Non-Collusion and Acceptance

The undersigned attests, subject to the penalties for perjury, that he/she is thecontracting
party, oJth~the/she is the representCitive, agent, memberoro,fficer of the contractin9party, that
'he/sheha~not; nor'has any othermember, employee, representative: agent or officerQfthe firm,
company, corporation or partnerslliprepresented by him/her, directly or indirectly, tpthe best of
his/her knowledge, entered into or offered to enter into anycornbination, collusion or a9Jrement to
receiveOrpay, and that he/she has not received or paid, any sum of money or other cpnsideration
for the e)(~yution of this Contractqther than that which appeClfs upon the face of theClgr~ement.
55.

Termination due to Reguli':ltory Changes.

Either party may terminate or renegotiatE? this Contract if the Federal Communications
Commission, a State Public Utility Commission or a Court of competent jurisdiction issues an order
or ruling which materially and adversely affects this Contract, of the party's ability to perform its
responsibilities as set forth herein. Such termination shall not give rise to any claims for damages,
provided, however, that the parties shall comply with their obligations hereunder up to the date of
termination. Any order requiring AT&T to reducei~~ rates for the services provided to the public
Page 14 of16

using the Payphone Services shall be deemed to be a material and adverse ruling for purposes of
this Section.

56.

Limitation of Liability.

EXCEPT IN CASES INVOLVING WILLFUL OR WANTON MISCONDUCT, AND
NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT,AT&TS LIABILITY TO THE
STATE IS LIMITED TO ITS OBLIGATIONS TO PAY COMMISSIONS AS SET FORTH HEREIN.
AT&T SHALL NOT BE LIABLE FOR INTERRUPTION OF SERVICE FOR ANY CAUSEOR FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF
ANY KIND, INCLUDING LOST PROFITS (WHETHER OR NOTAI&T HAD BEEN AOVI$ED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE), BY REASON OF ANY ACT'OROMISSIONIN ITS
PERFORMANCE UNDER THIS AGREEMENT. AT&T'S RIGHTS "NDOBLIGATIONSRI;GARDING
ITS PROVISION OF COMMUNICATIONS SERVICES TO END USERGALLERSISAS SET FORTH
IN ITS APPLICABLE TARIFFS. ADDITIONALLY, THERE ARE NO AGR~I;MENTS, WARRANTIES,
OR REPRESENTATIONS, EXPRESS OR IMPLIED EITHER IN FACT ORBY OPERATION OF LAW,
STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE OR USE, EXCEPT THOSE EXPRESSLY SET FORTH
HEREIN.

57.

No Third Party Beneficiaries

This Contract shall not provide any person not a party to this Contract with any remedy,
claim, liability, reimbursement, commission, cause of action or,other right in excess ofth()se
existing without reference to this Contract.

58.

Subcontractors.

A.
Contractor must obtain the approval of the State before subcontracting all or any portion of
this Contract. Notwithstanding theJore,going, the parties agr~~Jhat AT&T may subcontractportions
of the Payphone Services work under this Contract to Cooper Communications Group Cll1dPublicall
without further authorization or approval from the State. Additionally, Contractor may freely
subcontract the purchase of standard commercial supplies, raw materials, or general
telecommunications services.
B.
The Contr,,!ctorwillbe responsible for Contract performance, compliance with terms and
conditions of the Contract and the •requirements of FederalandStateequClI opportunity<and
affirmative action statutes, rules and regulations in all $ubcontracts, if subcontractors are used.

59.

Blocking; Fraud.

State acknowledges and agrees that calls to certain numbers, countries or locations may be
blockedby.AT&T for security reasons or to reduce fraud or theft of service. AT&T will also block
access tonumbers as reasonably requested by State.

60.

Regulatory Tariffs

Any regulated telecommunications services provided pursuant to this Contract are, as to
intrastate services, subject to the Contractor's tariffs on file with the Indiana Utility Regulatory
Commission, and, as to interstate services, subject to the Contractor's service guide as published on
its web site at att.com. In the event of Clny conflict between the terms and conditions of this Contract
and such tariff(s) with respect to such services, the provisions of the tariff(s) or service guide will
control. Contractor reasonably believes at the time of entering into this Contract that no conflict
Page 15 of16

exists between the tariff(s) and service guides and this Contract.
In Witness Whereof, Contractor and the State of Indiana have, through duly authorized
representatives, entered into this Contract. The parties having read.and understand the. foregoing
terms of the contract do by their respective signatures dated below hereby agree to the terms
.
thereof.

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Page 16 of16