Ca Cdcr Geo Group Contract for Indiana Beds 11-2006
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Case 2:90-cv-00520-LKK-JFM
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Agreement Number C06.297-0_ _ __
California Oepartment of Corrections and Rehabilitation
Exhibit A
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OFFENDER RELOCATION/HOUSING
AGREEMENT BETWEEN
STATE OF CALIFORNIA
ANO
THE GEO GROUP, INC.
This Contract is entered into effective October 18, 2006, between the State of California
Department of Corrections and Rehabilitation (hereinafter "STATE" or "COCR") and The
GEO Group, Inc., One Park Place, Suite 700, 621 Northwest 53'd Street, Boca Raton, FL 33487
(hereinafter "CONTRACTOR").
WHEREAS, the STATE requires correctional bed space and services for STATE offenders due
to continuing in-state crowding issues and has the lawful authority to enter into this Contract;
WHEREAS, the CONTRACTOR operates or has access to a correctional facility in the state of
Indiana deemed suitable by COCR for the housing and care of COCR offenders (the "Facility")
and has the lawful authority to enter into this Contract and perform or have performed the
required services as set forth herein;
THEREFORE, in consideration of the mutual promises and covenants contained herein, the
parties hereby agree as follow:
Article I.
DEFINITIONS
Additional Services - means those additional operational and management services required
to be furnished by the CONTRACTOR because of changes in ACA Standards, state or federal
laws, government regulations, or judicial decisions that cause an increase in the cost of
operating and managing the facility.
CCR, Title 15 - means the California Code of Regulations, Title 15, "Crime Prevention and
Corrections" .
CDCR Contract Monitor - The designated representative of the COCR or his/her
designee/delegate serving as liaison between COCR and the CONTRACTOR and who monitors
the CONTRACTOR's performance under this Agreement. This shall also apply to any monitor
on behalf of the federally appointed receiver's office in the federal case of Plata v.
Swarzenegger monitoring health care.
Commencement of Services date - means the first day a COCR Offender is housed at the
Facility pursuant to this Agreement.
Contract - means this Agreement.
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Exhibit A
Department/CDCR - means the California Department of Corrections and Rehabilitation.
Day - means calendar day unless otherwise defined in this agreement. If the last day falls on a
weekend or holiday the last day for performance shall be the next regular business day.
DOM - means the CDCR Departmental Operations Manual.
Facility - means a correctional institution operated by the CONTRACTOR in the state of
Indiana, known as the New Castle Correctional Facility.
HIPPA - means the federal Health Insurance Portability and Privacy Act.
IDOC - MEANS Indiana Department of Correction.
Initial Phase-In Period - means the period of time beginning with the first day a CDCR
Offender is received at the Facility and ending on the day that the Facility achieves the Minimum
Normalized Occupancy, or 120 days after the first day a CDCR Offender is received at the
Facility, whichever first occurs.
Indigent Offender - means an offender who is wholly without funds at the time they were
eligible for withdrawal of funds for canteen purchases.
In-patient Care - means care received in a free standing, non-correctional hospital on an inpatient basis, including any and all physician or consulting professional services provided to the
offender in the hospital.
Lockdown - means that a portion of the facility is affected by suspension of required programs
or services, and offenders are not released except as determined by the facility administration
on an individual, case-by-case basis. As determined by the facility administration, under such
circumstances only critical inmate workers in the affected housing units/sub-facilities will be
permitted to attend work assignments under escort, and all but essential functions are
suspended in those affected housing units or sub-facilities, e.g., yard, canteen draws, religious
services, and visiting.
Mandatory ACA Standards - means those standards identified as being mandatory in the
American Correctional Association's Standards for Adult Correctional Institutions, 4th Edition, as
same may be modified, amended, or supplemented in the future.
Minimum Normalized Occupancy - means 90% of the rated (design) capacity of the Facility,
which for this Agreement equates to 1134 CDCR Offenders (90% of 1260).
MRS - means minimum required staffing.
National Commission on Correctional Health Care Standards - those standards of health
care services as defined and established by the National Commission on Correctional Health
Care in the 2003 Edition of Standards for Health Services in State Prisons.
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California Department of Corrections and Rehabilitation
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Exhibit A
Offender - means any adult male person incarcerated pursuant to applicable California laws,
and assigned to the Facility for housing under this Agreement.
Offender Day - means each day, including the first day but not the last, that an offender is
admitted to the Facility as determined by the Midnight Count.
Operating Requirements - means applicable federal, state, and local law and court orders,
constitutional minimum standards, CDCR regulations made applicable to the Facility and this
Agreement.
Title 15 - means Title 15 of the California Code of Regulations, "Crime Prevention and
Corrections"] including all subsequent amendments thereto.
UHR - means Unit Health Record.
Warden - means the Administrative Head who manages operations at the Facility.
Article II
TERM OF THE AGREEMENT
Section 2.01 Initial Term.
The term of this Agreement shall be for three (3) years beginning on the Commencement of
Services date and ending at 5:00 pm on a date which is three (3) full years thereafter, unless
earlier terminated in accordance with the provisions of this Agreement.
Section 2.02 Option to Extend Term.
The parties shall have the right to extend the initial term of this Agreement for successive
periods of up to and including two years each in addition to the initial term by mutual agreement.
The parties agree that should they desire to extend the term of this agreement pursuant to this
option, they shall notify one another of their desire to so extend the term not less than one year
prior to the expiration of the initial term. The provisions of this Contract, as amended if so
amended during that time, shall apply to any extended term, except that the compensation for
the extended term shall be subject to negotiation between the parties. Should the parties not
agree on a new rate of compensation to apply to the extended term, this Agreement shall
terminate on the original termination date.
Section 2.03 Termination for Non-Appropriation.
Notwithstanding anything set forth in the provisions of Article VIII, DEFAULT AND
TERMINATION, this Agreement shall terminate in the event the State does not appropriate
funds for the payments required hereunder.
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Exhibit A
Section 2.04 Responsibility Hearing
If this Agreement is terminated for cause, CDCR reserves the right to conduct a responsibility
hearing to determine if the CONTRACTOR is a responsible bidder before an award of future
Agreements can be rnade.
Section 2.05 State Contacts
Contract Monitor:
Shall be designated by CDCR in writing prior to first occupancy.
California Out-of-State Correctional Facilities
Shall be designated by CDCR in writing prior to first occupancy.
Health Care
Shall be designated by CDCR in writing prior to first occupancy.
Department Administrative Officer of the Day
Shall be designated by CDCR in writing prior to first occupancy.
Escape/lncident Reporting (I.D.lWarrants)
Phone 24 Hour Notification (916) 323-4087
FAX (916) 322-4038
RestitutionNictim Services Unit
Department of Corrections & Rehabilitation
PO Box 1046
Folsom, CA 95763-1046
Office of Correctional Safety
Shall be designated by CDCR in writing prior to first occupancy.
Office of Communications
Oscar Hidalgo
1515 S Street, Suite 502-S
Sacramento, CA 95814
Phone: (916) 323-2637
FAX (916) 442-2637.
CONTRACTOR Contacts
Company Representative
Shall be designated by CONTRACTOR in writing prior to first occupancy.
Facility Contact
Shall be designated by CONTRACTOR in writing prior to first occupancy.
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Exhibit A
Article III
CDCR OFFENDERS
Section 3.01 Offender Housing.
The CONTRACTOR shall confine and supervise adult male CDCR Offenders that are
transferred to the Facility pursuant to the terms and conditions of this Agreement. CDCR
Offenders shall be transferred into the Facility in accordance with the Offender/Staff Phase-In
Schedule, attached hereto and incorporated herein as Attachment "A", beginning on the
Commencement of Services date. If CDCR has not provided Attachment A at the time of the
execution of this agreement, said information shall be provided not less than 15 working days
following execution, and shall be incorporated into this agreement at that time. Nothing in that
schedule shall obligate the CONTRACTOR from accepting or the State from sending more than
280 inmates prior to the first thirty (30) days following execution CDCR Offenders shall only be
housed in housing units consistent with the offenders' classification and security needs, subject
to the prior written approval of the CDCR Contract Monitor or designee. The schedule shall
allow for maximum occupancy to be completed within the allotted 120-day initial phase in
period.
Section 3.02 Selection and Placement Process.
The CDCR Offenders to be housed in the Facility shall be selected on the basis of compliance
with all applicable state statutes or such other applicable laws or regulations of the State of
Indiana relating to the housing of out of state offenders as may apply, and in addition thereto,
the following criteria and conditions:
3.02.1 Offenders assigned to the Facility shall not have known serious or significant mental
health or serious or significant physical problems.
3.02.2 Offenders assigned to the Facility shall be males eighteen years of age or older.
3.02.3 CONTRACTOR may reject any offender found not to meet the receiving state's
criteria.
3.02.4 No sex offenders shall be placed in the Facility.
Prior to transfer, CONTRACTOR will review the classification, medical and conduct records of
those offenders recommended by the CDCR to be housed at the Facility. The parties
understand that the CONTRACTOR'S review shall include classification of the offender under
the law of the state where the offender will be housed, and shall comply with any legal
requirements regarding classification imposed thereby.
Prior to sending any CDCR Offender to the Facility, the CDCR shall provide to the Facility's
Warden, without charge, copies of pertinent data from institutional files, commitment or other
judicial orders, and medical records of each CDCR Offender to be housed at the Facility. In
conjunction with the initial transfer of inmates from CDCR custody to CONTRACTOR,
CONTRACTOR shall have the right to send representatives, at CONTRACTOR's expense, to
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Exhibit A
CDCR Headquarters for the purpose of conducting an on site review of the files of those
inmates proposed by CDCR to be transferred to the CONTRACTOR. If a CDCR offender is
rejected by the CONTRACTOR, the reason for the rejection shall be documented and provided
to the CDCR. All CDCR Offender information shall be subject to statutory limitations on
disclosure, including but not limited to State privacy laws, and provisions of the federal
requirements imposed by the Health Insurance Portability and Accountability Act (HIPAA) or
other Federal privacy laws. The CONTRACTOR shall release information only in accordance
with CDCR direction.
A duly authenticated copy of the CDCR Offender's commitment papers and any other official
papers or documents authorizing detention, case file materials and medical/dental/psychiatric
records shall be delivered at the same time a CDCR Offender arrives at the transfer point.
Section 3.03 TransferfDelivery of Offenders.
The CONTRACTOR shall be responsible for the transporting of offenders to and from CDCR to
the Facility. The parties agree to cooperate and coordinate their procedures regarding transport
so as to minimize the expense associated with such transfers. All required offender local
transportation to and from the Facility (e.g., for offsite medical care) shall also be provided and
paid for by the CONTRACTOR. Upon the request of the CONTRACTOR and with prior written
approval of the CDCR Contract Monitor, CONTRACTOR shall with consent of CDCR be entitled
to transfer a CDCR Offender from one facility to another, provided the facility receiving the
transferred CDCR Offender is operated by CONTRACTOR pursuant to an agreement between
CDCR and CONTRACTOR or between CDCR and an entity with which CONTRACTOR has an
operating contract.
Section 3.04 Costs of Transport of Offenders between Facility and CDCR.
CDCR shall reimburse CONTRACTOR for the cost of transporting offenders between the
transfer point in California and Facility, and between Facility and transfer point in California as
follows:
A. Cost of airframe and crew ("charter costs") at actual cost. CONTRACTOR agrees to provide
CDCR with the cost quote for any transfer and CDCR shall have 48 hours to approve or reject
that quote. If CDCR rejects a quote, CDCR shall cooperate with CONTRACTOR to obtain a
replacement service provider to provide the same service at a rate acceptable to CDCR. If a
better quote cannot be obtained through these efforts, CDCR agrees to allow CONTRACTOR to
utilize the initial provider.
B Costs of guarding to be reimbursed to CONTRACTOR at their cost of salary and fringe
benefits for each guard accompanying the transportation of offenders. Salary and fringe is
defined for this section as actual salary plus 26% of salary in addition thereto to cover the fringe
benefits. In addition, CONTRACTOR shall be entitled administrative overhead on said amounts
calculated for guarding at a rate of 15%. CONTRACTOR shall be reimbursed for vehicle
mileage for ground transportation of offenders from the receiving State drop off point to the
facility at the rate then in effect and used by the Internal Revenue Service for calculation of
mileage.
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Agreement Number C06.297-0
Exhibit A
Section 3.05 Offender Funds.
Funds of an individual COCR Offender shall be provided to CONTRACTOR by COCR within
seven (7) working days of the COCR Offender's transfer. Said funds shall be held, managed
and handled by CONTRACTOR consistent with the policies and procedures utilized by COCR in
its in-state community correctional centers, and which are known to CONTRACTOR by virtue of
their operation of an in-state facility for COCR in California.
Section 3.06 Offender Work/Program Assignment Payment.
The CONTRACTOR shall maintain an offender pay fund for COCR Offenders.
From
compensation received pursuant to Article VI of this Contract, the CONTRACTOR shall fund the
Offender Work program in accordance with the established policy of COCR. COCR Offenders
shall be paid based on the job performed similar to the rates paid to offenders by COCR from
the established fund, when in a work/program assignment of six or more hours per day. When
monies available in the established fund is insufficient to pay COCR Offenders' pay the
CONTRACTOR shall, by separate billing, invoice the COCR for the difference between the
established fund total and amount owing COCR Offenders. COCR shall inform CONTRACTOR
of the applicable pay scales utilized by COCR, and inform CONTRACTOR of any changes
occurring thereto during the term of this agreement.
Section 3.07 Return of Offenders to the CDCR.
3.07.1 Upon demand by the COCR, offenders will be delivered to the custody of the COCR
pursuant to the terms as set forth in Section 3.03 of this Agreement.
3.07.2 Within 14 days of receiving a good faith request (based on the diagnosis of a serious
medical condition, on-going or serious disciplinary reasons, or inability to provide a level of
custody consistent with the safety and security of the inmate and/or staff), the COCR will
accept custody of any offender the CONTRACTOR requests be returned to COCR custody.
3.07.3 No offender who completes his sentence, is released by court order, or is placed on
probation or parole shall be released in a state, other than California, unless that State has a
detainer on the offender or has accepted custody of the offender pursuant to an interstate
compact. In every other case, prior to release from custody, offenders shall be returned to
the COCR or to the custody of such jurisdiction as has agreed to take the offender, pursuant
to the terms as set forth in Section 3.03 of this Agreement.
3.07.4 When a COCR Offender returns to COCR, the CONTRACTOR shall provide that
offender's funds, in the form of a check payable to COCR, in the amount due the COCR
Offender for credit to the COCR Offender's account at the time of transfer.
3.07.5 When a COCR Offender returns to COCR, the CONTRACTOR shall provide a
transfer summary of each COCR Offender's program activities (work, education, etc.),
infraction history, and other items deemed necessary by COCR and/or the CONTRACTOR
staff within ten (10) business days of the COCR Offender's transfer.
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Exhibit A
Article IV
OPERATION OF FACILITY
Section 4.01 General Duties.
The COCR Offenders in the Facility shall be confined and supervised in accordance with the
Operating Requirements. In addition, CONTRACTOR shall ensure that the portion of the
Facility dedicated to use by COCR is fenced off from that portion of the Facility dedicated to use
by IOOC and that the day-to-day supervision of COCR Offenders will be conducted in a manner
that ensures the separation of the COCR Offender population from the IOOC inmate population.
The CONTRACTOR shall maintain staffing levels at the Facility in sufficient numbers and rank
to maintain the safety of the public, staff and offenders and to adequately carry out the
provisions of this Agreement and said staffing schedules are attached hereto as Attachment A
The CONTRACTOR shall provide COCR with staffing schedules for each facility where COCR
Offenders are housed prior to execution of this Agreement, and shall maintain those staffing
levels throughout the term of this Agreement, unless otherwise approved by COCR. In advance
of any change, the CONTRACTOR will exercise authority to ensure that the daily operations of
the Facility are in compliance with the provisions of this Agreement. Subject to the provisions of
this Agreement, the CONTRACTOR shall provide COCR Offenders care and treatment,
including the furnishing of subsistence and routine and emergency medical care consistent with
the requirements of ACA standards, NCCHC standards, CCR Title 15, and constitutionally
appropriate guidelines, provide for their physical needs, make available work, education,
training and treatment programs, retain them in safe, supervised custody, maintain proper
discipline and control, make certain that any applicable court orders are complied with, provide
The
reasonable access to the courts, and otherwise comply with all applicable law.
CONTRACTOR will provide reports to the COCR Contract Monitor on the adjustment of COCR
Offenders consistent with COCR reviews. The case management of COCR Offenders in the
Facility shall be consistent with the case management of other offenders under applicable
COCR case management policies and procedures.
COCR offenders shall be provided with a copy of the Facility rules and procedures (orientation
guide) upon arrival. The orientation information must include the process for obtaining medical
care, disciplinary process, and the offender appeal/grievance process. A verbal orientation shall
also be provided upon arrival.
Section 4.02 Contract Monitors.
4.02.1
In administering this Agreement, the COCR shall deSignate a person, herein
referred to as the COCR Contract Monitor, to monitor the CONTRACTOR's
performance under this Agreement. If this provision is not completed at the time of
contract execution, COCR shall inform CONTRACTOR of the identity of said
monitor, along with the information described below, prior to occupancy of the
facility.
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Exhibit A
i CDCR Contract Monitor
I Name:
Contract
----
Monito~_
]
I Name:
IL
I
I Address:
Address:
I City, State, Zip Code
City, State, Zip Code
I Telephone Number:
Telephone Number:
I Fax Number:
I Fax Number:
1'---------_ _ _._ _1
4.02.2
The CONTRACTOR shall designate a person who shall act as the Facility's
contact person for purposes of the administration of this Agreement.
4.02.3
Any change in the Contract Monitor or the CONTRACTOR's designated contact
person shall be effective upon ten (10) days prior written notice to the other party of
such change.
4.02.4
Unless otherwise provided, the CONTRACTOR shall permit the CDCR and any
other duly authorized agent or governmental agency, to monitor all activities
conducted by the CONTRACTOR pursuant to the terms of the Agreement.
Specifically included in this provision is the right of the federally appointed receiver
in the case of Plata v. Swarzenegger to monitor health care services within the
institution. As CDCR or the Receiver may in their sole discretion deem necessary
or appropriate, such monitoring may consist of internal procedures evaluation,
examination of program data, special analysis, on-site checking, formal audit
examinations or any other reasonable procedures. All such monitoring shall be
performed in a manner that shall not unduly interfere with Agreement work.
4.02.5
Healthcare Monitor
The Receiver appointed in the Federal case of Plata v. Swarzenegger, may, in his
discretion, appoint a Healthcare Monitor to either be housed at the Facility, or to
make periodic inspection visits to the Facility consistent with the provisions of this
section. The same information as is provided by CDCR to CONTRACTOR for its
Contract Monitor shall also be provided to CONTRACTOR for the Healthcare
Monitor.
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Exhibit A
Section 4.03 Medical/Mental HealthlDental.
The CONTRACTOR shall provide essential health services, including medical, dental and
mental health services, while meeting the applicable standards and levels of quality established
by the ACA, NCCHC, and CCR Title 15. In addition, the CONTRACTOR shall provide services
consistent with all applicable Federal, state, and local laws and regulations governing the
delivery of offender health services and any applicable Court orders, and establish the
necessary quality controls to ensure all policies and procedures are designed and implemented
in a manner to promote orderly and efficient delivery and management of health care services to
CDCR Offenders.
•
CDCR Offenders shall be provided health services consistent with the services provided
by the CDCR under applicable CDCR Offender health services policies and procedures.
Services - All offender medical services shall be provided at the Facility when possible. For
cases requiring emergency care or care that is medically necessary but outside the capability of
the providers at the Facility, e.g. specialty physician or hospital-based services, existing
arrangements with local health care providers shall be utilized to obtain the required services. At
the inception of this contract, a listing of all existing contractual arrangements with local
healthcare providers, including but not limited to acute care hospitals and clinics shall be made
available to CDCR by CONTRACTOR. Any change to this list shall be communicated to CDCR.
The CONTRACTOR shall have a written plan supported by policies and procedures for
providing routine and urgent medical, dental and mental health services. The plan shall include,
but not be limited to the following:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
24 hour care, seven days a week emergency medical, dental, and mental health care;
initial health screening;
health appraisal examination;
daily triaging of complaints;
sick call procedures with a health practitioner, including offering this service at least 5
days per week;
outpatient medical, dental, and mental health service, including diagnostics and physical
therapy;
inpatient medical services;
special medical programs and services for, but not limited to, offenders with chronic
needs or requiring convalescent care;
mental health and substance abuse services;
adequate staffing of trained professional health services staff and support staff;
pharmaceutical services and supplies;
no cost to CDCR Offender for medication refills and renewals;
optometric services;
health education;
medical diets;
infection control; and
quality control/peer reviews.
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Exhibit A
Initial/Preliminary Screening - All screening will be conducted by health trained or qualified
health care personnel on all offenders within 48 hours of the offender's arrival at the Facility.
Screening will include, but not limited to:
•
•
•
an inquiry into the offender's health care history, including status of current modalities
and medications;
an observation of the offender's behavior, physical limitations and capabilities and
current physical condition; and
An immediate referral to appropriate health care professionals, for emergency care,
prescription management, or modality authorization.
At initial screening, all offenders will receive orientation about the Health Services Unit, including
the procedures for accessing care.
Full Health Appraisal (Intake) - Ouring the initial occupancy phase of this contract all
offenders will receive a full health appraisal within 30 days of arrival at the Facility. This health
appraisal will include, but not limited to:
•
•
•
•
•
•
•
•
•
•
review of the earlier screening;
review of the COCR health care record, including documented history and problem list,
medications ordered, conditions requiring ongoing treatment, and modalities authorized;
collection of a more detailed health services history;
medical examination, including review of mental health and dental status if not
previously examined at COCR in the previous six months;
laboratory or diagnostic tests to detect communicable disease if not documented in the
previous 12 months;
other tests and diagnostics, as indicated by exam;
initiation of treatment, as indicated;
development and implementation of a treatment plan, including recommendations
concerning physical limitations and restrictions that effect programming, housing and job
assignment;
referral to mental health or dental specialist as indicated; and
offender education, particularly if the treatment plan initiated by COCR treatment plan is
modified or changed. Any change to an existing treatment plan shall be approved by
COCR.
In the event CONTRACTOR's staff are unable to provide the requisite screenings in the time
allowed due to the volume of screenings to be conducted, CONTRACTOR may seek approval
to extend the time for such screenings, consistent with the approval of COCR and the Receiver,
and if such extension of time is disallowed, may utilize outside contracted services to
accomplish said screenings. COCR shall be given advance notification of the identity and
qualifications of said individuals, and review the proposed rate of compensation to be paid to
such persons. COCR shall not unreasonably withhold its consent to such proposed screeners,
and shall reimburse CONTRACTOR for their additional costs incurred in complying with this
provision in such event.
Dental Screening, Examina.tion and Treatment - The CONTRACTOR shall have written
policies and procedures to assure dental screenings, exams, x-rays, and treatment are
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Exhibit A
rendered consistent with the COCR and ACA standards. The COCR records sent to the facility
will be reviewed for dental history and to identify current dental care that should be continued.
Mental Health Screening, Examination and Treatment - The CONTRACTOR shall have
written policies and procedures to assure mental health screenings, evaluations, and treatment
is rendered consistent with the COCR and ACA standards. The COCR records sent to the
facility will be reviewed for mental health history and to identify and current mental health care
needs. Any patient having demonstrated mental health needs shall be identified to COCR, and
COCR shall have the right to request a return of that offender to COCR custody.
Infectious Diseases - The CONTRACTOR shall have written policies and procedures to
support the management and prevent the spread of infectious diseases. A copy of said policies
shall have been provided to COCR prior to the execution of this agreement.
Formulary - The CONTRACTOR shall adhere to the Facility formulary. When the only
medically appropriate and medically necessary pharmaceutical for an offender is not on the
Facility formulary, the Facility Medical Director and/or the Health Services Administrator will
follow the Facility's procedures for obtaining a waiver.
Initial Provisioning Of Medications - At the time of initial transfer, and at the time of any
return of an offender to or from the facility, the COCR or CONTRACTOR, depending on who is
releasing custody at the time of transfer, shall provide at the time the offender is transferred
between the custody of COCR and CONTRACTOR, a fourteen (14) day supply of any
medications prescribed for that offender.
Utilization Review/Prior Authorization - CONTRACTOR shall follow the COCR UHR
procedures and unless the required care is necessitated by an emergency, shall seek advance
approval for any non-routine care outside the facility.
Health Care Records - The CONTRACTOR shall have written policies and procedures to
ensure appropriate and confidential management of offenders' health care records and health
care information. These policies and procedures shall support standardization of preparation,
format, documentation, release and maintenance of the health care record. The health care
record created at the institution is the property of the COCR and shall be forwarded to COCR
when the offender is transferred from the facility. Release of information, including copying
charges, shall be conducted in accordance with COCR policy and only upon approval of COCR.
Staffing - The Health Care Unit shall be adequately staffed with trained health care
professionals and support staff to provide the level and the quality of care defined by the ACA,
NCCHC, CCR Title 15, and any court orders. The responsibilities of these staff shall be clearly
defined in their job description and shall be consistent with any applicable scope of practice for
which they are licensed to function, as appropriate. Appropriate supervisory staff shall monitor
performance of these responsibilities. Ultimate responsibility of staff performance lies with the
Facility Medical Director and/or the Health Services Administrator.
Staff Training - The Health Services Administrator/Manager of the health services unit shall
maintain current copies of licenses, accreditation, and certifications of the professional health
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Exhibit A
care staff as appropriate. All health care services staff shall participate in facility orientation and
training comparable to that provided in COCR.
The Health Care Administrator/Manager shall rnaintain records of staff participation in facility
orientation and annual training and mandatory Continuing and Professional Education
requirements.
4.03.1
Costs - The cost of providing on-site medical, mental health or dental services
(including security for hospital or clinical services off-site for the first seventy-two
(72) hour period with all security guard costs exceeding 72 hours being invoiced to
COCR at full cost of salary plus fringe calculated at 26% of salary) through Facility
staff or contracted services shall be considered normal costs incidental to the
operation of the Facility and is included in the COCR Offender per diem rates,
except that the COCR shall pay for:
a) All expenses in excess of $2,500 annually per inmate for medically
necessary, off site hospital or emergency care. This includes, but is not
limited to medical, surgical, mental health, and dental care delivered in an
Emergency Room, practitioner's office, or inpatient or outpatient hospital
setting. Non-emergency off site care is not subject to this provision and is
included in the per diem rate.
b) All HIV or AIDS related inpatient and outpatient medical costs and the costs
of providing AZT or other medications therapeutically indicated and medically
necessary (as defined in the UHP) for the treatment of offenders with HIV or
AIDS. CONTRACTOR shall notify the COCR of any offender diagnosed with
HIV or AIDS within three (3) working days.
c) Any costs associated with DNA testing of offenders.
Incidental costs associated with routine blood testing done as part of the
disciplinary process or periodic testing required by the CONTRACTOR (or state
where the Facility is located) are included as part of the per diem rate.
4.03.2
A co-pay in the amount of $5.00 may be charged to COCR Offenders for certain
medical, dental and/or vision services requested / initiated by the offender in
accordance with Title 15, Section 3354.2. The co-pay fee will be retained by the
CONTRACTOR.
4.03.3
The COCR shall not be responsible for the payment of elective or experimental
medical procedures or for medical care required as a result of negligence or
intentional misconduct on the part of the CONTRACTOR, its employees, or
subcontractors or for care which could have foreseeably been prevented.
4.03.4
Medical billings from outside vendors which are the responsibility of COCR shall be
submitted to COCR within thirty (30) days of receipt.
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Exhibit A
4.03.5
Upon return of a COCR Offender to the COCR, the CONTRACTOR shall provide
the original of the health records of all health care delivered while under
CONTRACTOR's jurisdiction, including, but not limited to all Facility health records,
community hospital records, radiology reports and films, consultant reports and
laboratory results. In addition, the CONTRACTOR will provide a health summary
prepared by one or more practitioners, appropriate to the complexity of the case.
4.03.6
The parties hereto expressly acknowledge and agree that:
a)
The inmates to be transferred pursuant to this Agreement to the facilities
owned and/or operated by CONTRACTOR (the "Transferee Facilities") are
members of a class of plaintiffs in an action pending in the United States
District Court for the Northern District of California entitled, Marciano Plata
et al. v. Schwarzenegger et al. No. C01-\3Sl TEI-I (the "Plata Action");
b)
The California Department of Corrections and Rehabilitation (the "CDCR") is
a named defendant in the Plata Action;
c)
The plaintiffs in the Plata Action have alleged that the health care delivered to
inmates in the California prison system is constitutionally inadequate and
violates their rights guaranteed by the Eighth and Fourteenth Amendments to
the 1.) .S. Constitution;
d)
By order, dated February 14,2006 (the "February 14 Order"), the Court in the
Plata Action (the "Plata Court") appointed Robert Sillen as the Receiver (the
"Receiver") for the California prison health care system and set forth in detail
the duties and responsibilities ofthe Receiver;
e)
Pursuant to the February 14 Order, the CDCR and "all persons in concert or
participation" with the CDCR are required to cooperate fully with the
Receiver in the discharge of his duties;
t)
The inmate-class members transferred pursuant to this Agreement are entitled
to receive constitutionally adequate health care while housed in the Transferee
Facilities and shall not, by reason of the transfers, lose their status as members
of the plaintiff class in the Plata Action; and,
g)
The transfers of inmates contemplated by this Agreement are not designed or
intended to thwart, delay or interfere with the Plata Court's orders or with the
Receiver's exercise of his duties pursuant to the February 14 Order.
CONTRACTOR expressly acknowledges and agrees that it:
a)
Intends to and will provide constitutionally adequate health care to the inmateclass members while they are housed in the Transferee Facilities;
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Is a "person in concert and participation with" the CDCR within the meaning
and subject to, paragraph Vl.A. of the February 14 Order, and has been
provided with a copy of the February 14 Order; and
oj~
c)
Will cooperate fully with the Receiver and will provide the Receiver access to
the Transferee Facilities and to documents, personnel and inmate-class
members in the Transferee Facilities to the same extent as the Receiver is
provided access to CDCR facilities, personnel and prisoners pursuant to
paragraph ILE. ofthe February 14 Order.
4.03.6 The parties hereto acknowledge and expressly agree that with respect to the provisions
of section 4.03 and all subsections of said section, the Receiver is a third party
beneficiary of this Agreement and hereby consent to the jurisdiction of the United
States District Court for the Northern District of California with respect to any action or
proceeding brought by the Receiver to enforce the provisions of such sections.
4.03.7 The parties agree that in the event a court appearance is required before the Honorable
Thelton Henderson in San Francisco, Calilornia by employees of CONTRACTOR that
the expenses incurred by CONTRACTOR in making the employees available for said
hearing shall be reimbursed to CONTRACTOR by CDCR. Reimbursement shall
include costs of transportation as well as salary costs, accelerated by 26% to cover
fringe beneJit. Should the court impose monetary sanctions against CONTACTOR
CDCR and CONTRACTOR agree to evaluate the circumstances leading to the
imposition of said sanctions and in the event it is determined that CONTRACTOR had
performed within the scope and requirements of this Agreement and that sanctions were
issued in spite thereof, CDCR shall agree to reimburse CONTRACTOR for any
sanctions imposed. Should CDCR not agree that CONTRACTOR's performance,
which resulted in sanctions, was consistent with the obligations imposed under this
contract CDCR may refuse to reimburse CONTRACTOR for the sanctions imposed. In
such event CONTRACTOR may seek a judicial determination of the obligation for the
payment of sanctions pursuant to the provisions set forth in this paragraph.
Section 4.04 Death of an Offender
4.04.1
In the event of the death of a COCR Offender, the CONTRACTOR will immediately
notify the COCR Contract Monitor via telephone and shall have the cause and
circumstances of the death reviewed by the coroner of the local jurisdiction. If
requested by COCR, the CONTRACTOR shall obtain an independent autopsy.
This autopsy shall be paid for by the COCR. A certified copy of the death
certificate and the offender's file and medical records will be forwarded to the
COCR.
4.04.2
The CONTRACTOR shall furnish all information requested by the COCR, and
follow the instructions of the COCR with regard to disposition of the body. The
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CDCR will notify the relatives of the deceased offender, if any, as soon as
practicable after death.
4.04.3
All expenses relative to any necessary preparation and shipment of the body shall
be the responsibility of the CDCR.
Section 4.05 Offender Work and Programs.
4.05.1
All eligible offenders shall be afforded the opportunity to participate in programs,
occupational training, and work at the Facility. Ineligible offenders are those who
are ill, unable to work due to age or handicap, and those in administrative or
disciplinary lockdown. No CDCR Offender shall participate in any program,
training or work outside the fenced Facility unless approved in writing by the CDCR
Contract Monitor or designee.
4.05.2
A minimum of 60% of the eligible CDCR Offenders (based on Minimum Normalized
Occupancy) will be productively occupied for at least 30 hours per week in work, education,
vocational training, and/or life skills training programs as outlined in Attachment D.
4.05.3
Programs shall include: Educational programs (basic literacy, adult basic
education, general educational development, ESL (English as a second language);
recreational programs; cognitive behavioral programs; self-help programs (AAlNA);
and vocational/technical programs, as available.
4.05.4
Offenders shall be required to work or participate in educational or vocational
programs, when ordered to do so by the CONTRACTOR. However, offenders
shall not be allowed or required to participate in any training or work contrary to the
laws of California.
4.05.5
The CONTRACTOR may dispose of or consume all products produced by any
offender participating in work or vocational programs. The CONTRACTOR will
bear all costs and retain all proceeds there from. For CDCR Offenders involved in
work programs the product of which is sold to other agencies or organizations, the
CONTRACTOR shall provide a per diem pay gratuity of $2.00 per day or the
prevailing wage for that job assignment, whichever is higher. Payment for more
than 23 days per month requires approval from CDCR. If the price of the goods
sold includes the cost of offender labor this gratuity shall be excluded from the
provisions of Section 3.05.
4.05.6
The CONTRACTOR shall daily record the actual hours worked/participated for
each offender (those in work/programs/education/training) on the Work
Supervisor's Time Log (CDC Form 1697) in order that work credit can be
calculated by CDCR in accordance with Title 15 (§3045). The forms shall be
provided at CDCR expense. The completed forms (white copy) shall be collected
and mailed to the Contract Monitor by the 15'h of the following month.
4.05.7
In case of craft programs, the crafts may be sold and proceeds of any sale retained
by the offender.
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Exhibit A
Section 4.06 Religious Opportunity.
The CONTRACTOR will provide adequate space and opportunity for religious programs on a
daily basis except for offenders in lockdown status in accordance with Title 15 (§3210-3213).
Section 4.07 Recreation and Canteen - Barber.
Offenders shall be provided indoor and outdoor recreational opportunities on a daily basis
except for offenders in lockdown status. Offenders will be provided with commissary service in
accordance with established COCR policies. Any profits from the commissary operation shall
be deposited in the Offender Welfare Fund, to be administered in accordance with and in a
manner consistent with established COCR policies.
4.07.1
The CONTRACTOR shall enforce all hair grooming standards as established
by COCR policy (Title 15, chapter 1, Article 5). The CONTRACTOR shall also
establish and maintain a plan of operation for on-site inmate barber services.
Barber service procedures must provide for the safety, security and
maintenance of the designated area, tools, solutions, equipment and comply
with all applicable health and sanitation codes. The number of inmate barber
assignments shall be consistent with the need to readily service the inmate
population. The CONTRACTOR should strive to maintain an ethnically diverse
The
barbers service in both inmates assigned and services provided.
CONTRACTOR shall ensure that barber services are directly available and
accessible to the inmate population. Hours of operation must therefore be
scheduled in correlation to other facility programs, activities and other inmate
assignments.
The barber service shall comply with acceptable and applicable codes,
practices, standards and requirements established by the California Board of
Barbering and Cosmetology and COCR mandates. The CONTRACTOR shall
be responsible for developing a plan of operation for inmate barber services
that, at a minimum, must: (a) ensure that tools are properly inventoried,
maintained and accounted for at all times; (b) provide for trained inmate
barbers that are hired consistent with IWTIP; and (c) ensure that inmate
barbers and services are provided to serve an ethnically diverse inmate
population.
The CONTRACTOR shall provide a designated barber area, centrally located
within the facility and adjacent to the inmate population, that is readily
accessible to all inmates for the personal maintenance of hair grooming
standards in accordance with COCR requirements. The CONTRACTOR may
also provide multiple designated inmate barber areas equitably located within
various areas of the facility to achieve the same purpose within the framework
of safety and security. In either case, the barber area(s) shall be centrally
located and of sufficient size and dimensions to adequately service the entire
inmate population. Clear lines of sight shall be provided from designated
staff/posts. The CONTRACTOR shall ensure that COCR principles of proper
tool control is incorporated and adhered to by inmates and staff alike. At a
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minimum, the barber area shall be equipped with a sink, power outlets and a
chair.
Section 4.08 Telephone.
Access to telephone service shall be provided to CDCR Offenders in accordance with Title 15 (§
3018, 3044, 3282) CONTRACTOR agrees that any revenues generated by the inmate
telephone system (Inmate Telephone Revenue Funds) shall be segregated and held in a fund
used to purchase, install and offset operating costs of a telephone videoconferencing system,
as shall be acceptable to CDCR for use by CDCR and the inmates as CDCR may direct. Once
the expense of purchase and installation have been paid, CONTRACTOR may retain 10% of all
future payments as and for administrative and overhead costs associated in operating the
Videoconferencing system. The balance of the funds shall be utilized to defray the operating
costs of said system and reduce the operating costs associated therewith to the inmates and
CDCR. Should there be excess remaining funds said funds may be used for inmate academic
or vocational programs with advance CDCR approval.
Section 4.09 Clothing.
The CONTRACTOR will be responsible for laundry, repair, and replacement of offender clothing
during the CDCR Offender's incarceration at the Facility to ensure clean clothes and bedding on
a weekly basis. Upon admission, a minimum of three (3) sets of clean Facility uniforms and four
(4) sets of undergarments and socks, clean bedding (to include sheets, blanket(s), pillow and
pillow case and mattress), climate appropriate outer wear Uackets, etc.) and deck shoes or
other appropriate footwear shall be provided CDCR Offenders. In addition, offenders shall
receive footwear appropriate to their work assignment. Tennis shoes shall be made available
for purchase in the commissary. CONTRACTOR shall provide laundry services to the offender
at no charge to the offender in accordance with established CDCR policies.
Section 4.10 Meals.
The CONTRACTOR will provide all CDCR Offenders with nutritional meals consistent with
established CDCR policies and Title 15 Sections 3050 and 3054. A Registered Dietician or
Nutritionist shall approve all menus, and meals shall be prepared in compliance with the
approved menus. Menus shall be submitted to the Contract Monitor for approval on a monthly
basis.
Section 4.11 Mail.
Offenders will be provided with mail service consistent with Title 15 Sections 3130 - 3165.
Indigent Offenders shall be provided with supplies for correspondence for up to the price of
twenty (20) one-ounce first class letters per month. However, no request for mailing of verified
legal pleading will be denied under this provision regardless of postage limit or financial status
of the offender The CONTRACTOR is entitled to recoup postage fees when the Offender has
sufficient funds in his account.
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Exhibit A
Section 4.12 Visitation.
The CONTRACTOR shall provide space, opportunity, furniture, and equipment for visitation
consistent with Title 15 Sections 3170 - 3182 inclusive. Contact visitation shall be provided
unless individual security concerns dictate otherwise. The CONTRACTOR shall adopt flexible
visiting policies for visitors traveling from out of state. Visitors on COCR's approved visitors list
shall be approved by the CONTRACTOR unless security concerns indicate otherwise.
Minimum hours of visitation shall be consistent with COCR regulations. CONTRACTOR shall
provide video conference visitation services at the Facility upon the request of COCR. At the
request of COCR, CONTRACTOR shall provide space appropriate for conjugal visits. The
provisioning of said space shall be the expense and obligation of CONTRACTOR.
Section 4.13 Offender Property.
COCR Offenders shall be allowed to possess personal property as outlined in Title 15.
Exclusions may be granted based on facility security requirements. CONTRACTOR shall
provide the COCR allowable property lists prior to the implementation of this agreement.
Section 4.14 Offender Appeals.
The CONTRACTOR will handle all COCR Offender appeals/grievances related to Facility issues
consistent with Facility policy and procedures (with CDCR approval). COCR Offenders shall
file appeals to COCR for non-facility related issues and medical claims. COCR shall retain final
authority on all issues of appeal. A monthly summary of appeals by volume and type will be
provided to the COCR Contract Monitor
Section 4.15 Access to Courts.
The CONTRACTOR will ensure all COCR Offender court related access is in compliance and
consistent with the provisions of Oepartment Operations Manual and California Code of
Regulations, Title 15. The CONTRACTOR will provide opportunity for meaningful access to
federal and California State legal materials at the Facility in accordance with security and
operating needs. Every attempt should be made by the CONTRACTOR to provide COCR
Offenders in segregation and protective custody access to the law library collection established
pursuant to this section providing their participation is consistent with the safety and security of
the Facility. If direct access cannot be provided COCR Offenders in segregation or protective
custody, a process shall be established allowing COCR Offenders in segregation or protective
custody to request reasonable numbers of materials from a law library. The CONTRACTOR
shall provide COCR legal materials required to meet constitutional standards via computer and
appropriate software including California specific legal materials. The CONTRACTOR shall
provide a secure and monitored location to house said computer and associated peripherals.
The CONTRACTOR shall provide federal law material; typewriters, including ribbons, and typing
paper; notary services; copying services, including copier paper; legal size envelopes; sufficient
to meet constitutional standards. Items such as paper and typewriters shall be provided and
shall be available free of charge to indigent COCR Offenders. COCR Offenders need not be
afforded access to copiers; however, the CONTRACTOR shall provide a copy of specific
information, such as a page from a law book, upon request by a COCR Offender. A common
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copy fee shall be set by the CONTRACTOR. The CONTRACTOR shall provide access to law
material when staff has scheduled absences, due to vacations, extended leave or training.
Section 4.16 Offender Records and Progress Reports.
4.16.1 The CONTRACTOR will handle all COCR Offender Records and insure compliance
consistent with the provisions of OOM and Title 15. Offender institutional records
regarding COCR Offenders while at the Facility shall be collected and maintained onsite by the CONTRACTOR in accordance with COCR record keeping practices and
operating requirements governing confidentiality. Upon request, all records, reports,
and documents related to COCR Offenders, including employee records, shall be
made available immediately to the COCR Contract Monitor for review. When an
offender is transferred from the Facility, the record provided by the COCR and
additional information compiled while the COCR Offender was at the Facility will be
forwarded to the COCR. The record consists of reports, timesheets, staff memos,
correspondence, and other documentation relating to behavior of the COCR
Offender.
4.16.2 The CONTRACTOR shall define a local level of case planning, subject to COCR
review and approval. Case planning information will be included in each COCR
Offender's progress report prepared by the CONTRACTOR and submitted to COCR
once per year as designated by the COCR Contract Monitor. The progress report
shall include narrative sections describing the following subjects: programming;
serious infraction record; medical; mental health; community support; counselor
comments; recommended custody and placement changes; and offender comments.
A copy shall be provided to the COCR Offender. COCR Offender'S appeals of the
counselor commentsirecommendations in the progress report shall be appealed to
the COCR.
4.16.3 All warrantsiholdsidetainers received by the CONTRACTOR for a COCR offender
shall be forwarded to the COCR Contract Monitor within 24 hours.
Section 4.17 Transportation & Security.
The CONTRACTOR will provide security for Offenders aSSigned to the Facility whether in the
Facility or elsewhere. The CONTRACTOR will provide transportation (transportation security
proceduresistaffing levels to be provided by CONTRACTOR prior to signing this agreement) to
and from medical appointments, emergency medical care, and state and federal court
appearances within a 150 mile radius of the Facility at CONTRACTOR's cost.
Section 4.18 Removal of Offenders from the Facility.
Except for emergency health care needs, COCR Offenders shall not be assigned from the
Facility without prior written authorization from the COCR Contract Monitor.
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Section 4.19 Use of Force.
The CONTRACTOR's use of force policy and training program for security staff shall be
approved by the COCR prior to offenders being transferred to the Facility and consistent with
the COCR Use of Force Policy as well as any other applicable use of force law applicable to the
Facility or its operations. Following any use of force involving injuries, an incident report shall
be prepared and the COCR staff shall be notified pursuant to Section 4.20 "Notification of
Incidents, Emergencies, and Escapes."
Section 4.20 Escapes. In the event of an escape by a COCR Offender(s) from the Facility's
physical custody, the CONTRACTOR shall, in addition to efforts to apprehend such COCR
Offender, immediately notify the COCR Administrative Officer of the Day, COCR 1.0.NVarrants
Unit, and the local law enforcement agencies as required by state statute in the same manner it
uses for any other Facility escapees.
Section 4.21 Notification of Offender Incidents, Emergencies, Escapes, and Discipline.
4.21.1
The CONTRACTOR will handle all COCR Offender related incidents, emergencies,
and escapes in compliance with the provisions of OOM and Title 15. Incidents
involving/impacting COCR Offenders are to be reported using the established
COCR-approved reporting format. Such incidents are to be reported to the COCR
Contract Monitor within 24-hours of the occurrence. The CONTRACTOR and
COCR will provide each other with a list of names, phone numbers, and fax
numbers for personnel to whom inquiries regarding fiscal, medical, and operations
For incidents involving any offender, the
matters should be directed.
CONTRACTOR will send to the COCR Contract Monitor reports on the incident on
a timely basis.
4.21.2
The CONTRACTOR will handle all COCR Offender disciplinary related matters
according to the applicable provisions of OOM and CCR Title 15. COCR will
provide training regarding their policies and procedures to CONTRACTOR's
personnel at COCR Headquarters in Sacramento, California, as CONTRACTOR
may request. CONTRACTOR shall be responsible for all expenses associated with
the transporting of CONTRACTOR's employees to Sacramento for such training.
COCR shall not charge CONTRACTOR for such training, nor be at any expense in
providing such training to CONTRACTOR's employees.
4.21.3
The CONTRACTOR will notify the COCR Administrative Officer of the Day
immediately (24 hours a day) by telephone for any:
a)
b)
c)
d)
e)
f)
Offender escape;
Use of deadly force;
Use of force in which there is an injury requiring medical treatment;
Assault, including sexual assault, by an employee, offender, or civilian;
Disturbance involving three or more offenders which is not brought under
control within 15 minutes;
Death of an offender;
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h)
i)
j)
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Exhibit A
Rape of an offender;
Property destruction rendering a living unit or support service area unusable;
Hostage situation;
Use of chemical agents.
All other incident reports, medical pre-authorizations, notices of emergency,
medical treatments, and removal of Offenders from the facility shall be faxed to the
CDCR Contract Monitor within 24 hours of the incident. The CONTRACTOR shall
inform the CDCR of all significant incidents involving CDCR Offenders assigned to
the Facility within 24 hours of occurrence. Significant Incidents include serious
infractions, offender deaths, and all non-routine offender movement from the
Facility, including emergency medical moves and removals from population to a
Facility deemed appropriate and operated by the CONTRACTOR, and other such
moves. Incidents described in this section shall be reported to appropriate CDCR
staff as described CDCR.
4.214
Disciplinary reports, reclassification requests, or diagnoses that an offender has a
serious medical condition shall be mailed to the CDCR Contract Monitor and
Receiver's Healthcare Monitor, if designated, weekly.
Additionally, the
CONTRACTOR shall forward to the CDCR Contract Monitor a monthly report
detailing the disciplinary actions taken on CDCR Offenders. The content and form
of the report will be mutually agreed upon by both parties to this Agreement. Daily
offender movement sheets shall be faxed to the Contract Monitor as well.
4.21.5
The CONTRACTOR will provide a quarterly report to the CDCR Contract Monitor
that chronicles/summarizes significant activities occurring during the quarter, and
will be in the following format:
Cover
The standard cover shall identify the Facility, name/rank or title and telephone
number of reporting staff member.
Section 1: Institution Specific Issues
This section will reflect issues related to individual Facility intelligence and
investigation activities, and contain the findings of a trend analysis for the following
items:
1. Rule infractions;
2. Results of significant contraband recoveries, such as the number and type of
weapons found, narcotics, etc.;
3. Urinalysis screening;
4. Requests for protective custody;
5. Offender store orders, e.g. stockpiling;
6. Lockdowns for cause;
7. Visiting program contraband recoveries;
8. Offender/staff confrontations, including threats against staff;
9. Incidents and type of offender violence;
10. Offender deaths; and
11. Staff turnover by type.
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Section 2: Outside Referrals
This section will report each inter-departmental intelligence or investigative contact,
as well as referrals to outside law enforcement agencies. It will also designate the
status of the referral, i.e., investigation being conducted, referral to prosecutor, no
prosecution decision, etc. These cases need to ensure confidentiality of disclosure
consistent with COCR policy.
Section 3: Substance Abuse Activity
This section will provide a general statement concerning drug activity, and a report
of substance abuse testing data within the Facility. It will also include information
on the types of narcotics found, and strategies for dealing with these activities.
Section 4: Analytical Paragraph
This section will represent an analysis of the information that has been gathered,
i.e., any findings related to the analysis of investigative reports and conclusions
drawn from the analysis of problems pertaining to:
•
•
•
4.21.6
Physical plant, to include grounds and work areas;
Operating procedures and post orders; and
Recommendations for corrective action which should be taken in order
to correct the problems, if any, listed above.
The CONTRACTOR shall furnish copies of any regularly generated reports that are
requested by the COCR.
Section 4.22 Earned Time/Good Time.
The CONTRACTOR shall furnish specific information to the COCR in accordance for purposes
of award or forfeiture of earned/good time for eligible offenders. The final decision on awarding
or forfeiture of earned/good time rests with the COCR.
Section 4.23 Sentence Computation.
The CONTRACTOR will furnish the COCR with the following information for sentence
computation purposes: infractions, work assignments, program assignments, and performance.
The final decision with respect to sentence computation rests with COCR.
Sentence
computation will be done by the COCR. The COCR will furnish adjusted release dates to the
CONTRACTOR as necessary.
Section 4.24 Classification.
The CONTRACTOR will handle all COCR Offender classification and ensure compliance
consistent with the applicable provisions of OOM and Title 15. Any offender may be
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administratively transferred to a higher security level pending approval by the CDCR.
offender may be transferred to a lower security level without prior approval of CDCR.
No
Section 4.25 Facility Space for Hearings, Inspections, Audits, and ContractiHealthcare
Monitors.
4.25.1
Adequate facilities for any hearings, inspections, audits, and related CDCR case
management activities, including furniture, equipment, on-site clerical support, and
security staff, shall be made available to CDCR employees or designate
representatives.
4.25.2
Unless required more frequently by law, standard and/or corporate/local policy, the
CONTRACTOR will complete documented formal inspections of the following
areas, according to stipulated schedule:
Security
Sanitation
Fire/Safety
Environmental Health
per shift
monthly
quarterly
annually
Copy of the inspection reports will be submitted to the CDCR Contract Monitor in a
format provided by CDCR, to include action taken to correct noted deficiencies.
Section 4.26 Public Information.
The CONTRACTOR will process all CDCR Offender publicity issues or requests for information
consistent with the applicable provisions of DOM and Title 15 Section 3261 et. seq ..
CONTRACTOR shall not be authorized to release publicity concerning CDCR Offenders. They
shall not release personal histories or photographs of CDCR Offenders or information
concerning their arrivals or departures, except as provided herein. All requests shall be
forwarded to the CDCR Office of Communications (see Section 2.05).
Section 4.27 Inspections. The CDCR and/or the Receiver shall have the right to inspect
and/or audit the Facility at its discretion with or without advance notice. CONTRACTOR
reserves the right to deny access during off hours (defined as the period between 8PM and
8AM) to individuals not identified previously to them either in this contract or otherwise in writing.
In such event, prior to denying authorization, CONTRACTOR shall first contact the CDCR
Contract Monitor for directions and or approval authority. CONTRACTOR reserves the right to
request proper identification prior to admission in all cases.
Section 4.28 Offender Account Deductions (Restitution) Collection and Accounting.
CONTRACTOR shall be responsible for collecting restitution from the wages and account
deposits of inmates who owe restitution, pursuant to Penal Code § 2085.5, as further detailed in
Regulations Title 15 Section 3097.
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As of the date of this contract, that amount is 40%, plus 10% administrative fee, for a total of
44% of the inmate's wages and deposits. Said amount is currently scheduled to increase to the
statutory maximum of 55% on January 1, 2007, pursuant to the above Regulations.
By entering into this agreement, CONTRACTOR acknowledges that CONTRACTOR is
responsible for satisfying CDCR's restitution obligations under such regulations as they
currently exist and as they may be amended in the future.
CONTRACTOR shall collect restitution fines beginning with the oldest first. CONTRACTOR
shall collect direct orders of restitution when notified by CDCR to activate the direct order, in
which case it shall be collected upon as first priority, above any restitution fines, as expressed in
penal code § 2085.5.
CONTRACTOR shall hold such funds in an interest-bearing account in trust for State for the
purposes set forth in said statute and regulations, and shall not commingle such funds with
CONTRACTOR's own funds or with any other funds. The CONTRACTOR shall also ensure
that the restitution collections and administrative fees are not commingled and are submitted to
the Department separately (by separate checks). Note - fines and direct orders may have the
same case number but must be accounted for separately.
CONTRACTOR shall at all times keep an accurate and up-to-date accounting of all such funds
and restitution information, and shall remit the inmate fund collections and associated inmate
case information to CDCR as directed. By the 10th of each month following collections,
CONTRACTOR shall forward the amount of restitution and administrative fees to Inmate Trust
Control Accounting Unit, P.O. Box 1046, Folsom, CA 95763-1046. The remittance shall include
an itemized statement which includes the CDC number, inmate name, case number, sentencing
date, sentencing county, designation of fine or direct order, original fine/order amount, amount
of restitution collected, daters) of deductions, amount of administrative fees collected and
balance still owing. The remittance must be subtotaled by restitution fines and direct order
amounts. In addition, CONTRACTOR shall timely provide an accounting of all such funds to
CDCR at any time upon request.
Any such restitution funds remaining in CONTRACTOR's possession at the end of the contract
shall be remitted to the State for proper disposition pursuant to said Statute and regulations.
CDCR is midway to completion of a new accounting system that will replace and centralize all
restitution, accounting, and canteen records into a single database and system at CDCR
headquarters. This system, called the CDCR Restitution, Accounting, and Canteen System
(RACS) is currently scheduled to be completed in 2008, although CDCR can not provide a
guaranteed completion date due to factors outside of CDCR's control.
Upon completion of the RACS system, the CONTRACTOR shall receive and transmit the
restitution collection data though an electronic interface with CDCR. The design, testing, and
documentation of the CONTRACTOR's interface shall be subject to CDCR's approval and must
be utilized and supported without additional cost to CDCR.
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Section 4.29 Policy and/or Procedure Changes.
The CONTRACTOR will process all policy and procedural changes consistent with the
applicable provisions of OOM and Title 15.
Section 4.30 Quality Assurance and Initial Security Audit.
The CONTRACTOR shall perform customary and usual Quality Control Audits of the facility and
provide those audits to COCR not less than quarterly. At the request of COCR, CONTRACTOR
agrees to include in those audits, such items for review (in addition to those reviewed in the
previous audit,) such items as COCR may reasonably request. In addition, during the initial six
months of this agreement, CONTRACTOR shall, at CONTRACTOR's expense, employ the
services of a competent and qualified individual or company, not associated with
CONTRACTOR, to perform a security audit of the facility. CONTRACTOR agrees to implement,
at CONTRACTOR's sole expense, any recommendations of said audit.
Section 4.31 Tobacco - Prohibitions
Consistent with Title 15, no COCR offender will be allowed to use, possess, or purchase any
tobacco products. Nor shall they be subject to second hand smoke from staff or offenders from
other jurisdictions who may be housed in the Facility.
Section 4.32 Administrative Segregation
Offenders subject to administrative segregation shall be treated in strict accordance with Title 15
Section 3335 - 3345 inclusive. Any variation from these provisions application must be
approved by COCR in writing.
Article V
FACILITY EMPLOYEES
Section 5.01 Independent CONTRACTOR.
The CONTRACTOR and its employees are associated with COCR only for the purposes and to
the extent set forth in this Agreement. With respect to the performance of the services setout
herein, the CONTRACTOR is and shall be an independent CONTRACTOR and, subject to the
terms of this Agreement, shall have the sole right to manage the operations of the Facility. The
CONTRACTOR shall perform its duties hereunder as an independent CONTRACTOR and not
as an employee. Neither the Facility nor any agent or employee of the CONTRACTOR has the
authority, actual or implied, to bind, incur liability, or act on behalf of COCR or the State. Neither
the CONTRACTOR nor any agent or employee of the CONTRACTOR shall accrue leave,
retirement, insurance, bonding or any other benefit afforded to the employees of California as a
result of this Agreement.
Section 5.02 Personnel.
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Personnel shall be retained to. deliver Twenty-four (24) hour care and supervision to
incarcerated individuals, as well as administrative and support service personnel for the overall
operation of the Facility, in accordance with CONTRACTOR operating requirements. All
personnel shall be hired in accordance with CONTRACTOR personnel policies and procedures.
CONTRACTOR shall provide post assignment schedule for all posted positions prior to first
occupancy consistent with staffing schedule and MRS requirements.
Section 5.03 Training.
All personnel shall be trained in accordance with CONTRACTOR personnel policies and
procedures. If desired, COCR agrees to provide such training to CONTRACTOR's personnel on
COCR's policies and procedures as CONTRACTOR may reasonably request. Said training shall
be conducted at COCR Headquarters in Sacramento, unless COCR agrees otherwise. Cost's
associated with said training shall be borne by CONTRACTOR. COCR shall make no charge for
such training, and shall bear no expense in connection therewith.
Section 5.04 Worker's Compensation
CONTRACTOR hereby represents and warrants that CONTRACTOR is currently and shall, for
the duration of this agreement, carry workers' compensation insurance, at CONTRACTOR's
expenses, or that it is self-insured through a policy acceptable to the COCR, for all of its
employees who will be engaged in the performance of this agreement. Such coverage will be a
condition of COCR's obligation to pay for services provided under this Agreement.
Prior to approval of this agreement and before performing any work, CONTRACTOR shall
furnish to the State evidence of valid workers' compensation coverage. CONTRACTOR agrees
that the workers' compensation insurance shall be in effect at all times during the term of this
agreement. In the event said insurance coverage expires or is canceled at any time during the
term of this agreement, CONTRACTOR agrees to give at least thirty (30) days prior notice to
COCR before said expiration date or immediate notice of cancellation. Evidence of coverage
shall not be for less than the remainder of the term of the agreement or for a period of not less
than one year. The State reserves the right to verify the CONTRACTOR's evidence of
coverage. In the event the CONTRACTOR fails to keep workers' compensation insurance
coverage in effect at all times, the State reserves the right to terminate this agreement and seek
any other remedies afforded by the laws of this State.
CONTRACTOR also agrees to indemnify, defend and save harmless the State, its officers,
agents and employees from any and all of CONTRACTOR's workers' compensation claims and
losses by CONTRACTOR's officers, agents and employees related to the performance of this
agreement.
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Section 5.05 CDCR Non-Liability for Injuries Caused by Inmates.
Neither the State nor any State employee will be liable to the CONTRACTOR or its staff for
injuries inflicted by inmates or parolees of the State. The State agrees to disclose to the
CONTRACTOR any statement(s) known to State staff made by any inmate or parolee, which
indicate violence may result in any specific situation, and the same responsibility will be shared
by the CONTRACTOR in disclosing such statement(s) to the State.
Article VI
COMPENSATION AND ADJUSTMENTS
Section 6.01 Compensable Offenders.
The terms of this Agreement apply only to COCR Offenders. Nothing in this Agreement shall be
construed to impose upon the COCR any financial or other obligations for any non-COCR
Offender housed in the Facility. The CONTRACTOR's costs of operations including start-up
expenses, legal services and the risks of physical damage to the Facility incurred as a direct
result of the placement of a COCR Offender in the Facility shall be considered usual costs
incidental to the operation of the Facility and part of the compensation set forth herein.
Section 6.02 Payment.
6021 During the Initial Phase-In Period, COCR shall pay directly to CONTRACTOR a per
offender per day (per diem) rate of $63.00 for each COCR Offender housed at the
Facility.
6.02.2 Following the Initial Phase-In Period and for the remainder of the initial three-year
term of this Agreement, COCR shall pay directly to CONTRACTOR a per diem rate
of $63.00 for each COCR Offender housed at the Facility, based upon the average
daily population per month, with a minimum monthly payment equal to the per diem
rate times the guaranteed Minimum Normalized Occupancy times the number of
days in the billing month.
602.3 Reimbursable Expenses as set forth in Sections 3.03, 3.04, 4.03.1 and 4.03.2 of this
Agreement or such other sections as may set forth a COCR cost reimbursement
obligation.
Section 6.03 Change in Scope of Services.
The parties recognize that they have entered into this Agreement based upon currently existing
operating requirements.
Should a change in any of these requirements occur which
necessitates a change in the scope of services and/or necessitates additional services so as to
increase or decrease the cost of operating or performing other services as contemplated by this
Agreement, either party may present documentation to support an increase or decrease to the
per diem rate. Thereafter, the parties will use their best efforts to arrive at a mutually accepted
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increase or decrease in the per diem rate. Specifically it is understood that COCR may require
additional medical and healthcare staffing above that as shown in the staffing information
provided by CONTRACTOR (Said staffing information is attached hereto as Attachment A, and
is incorporated into this agreement by reference and specifically made a part hereof). In said
event COCR agrees to bear the actual cost incurred by CONTRACTOR in providing those
additional medical and healthcare services.
Section 6.04 Billings.
CONTRACTOR will submit detailed invoices for payment of the compensation payable by
COCR to CONTRACTOR pursuant to the terms of Section 6.02, above, with supporting
documentation to COCR, in arrears on a monthly basis within five business days of month end,
though the failure to do so shall not negate the obligation of COCR to pay such invoice. COCR
will make payment within 45 days of receipt of the invoice.
Section 6.06 Taxes/Utilities.
CONTRACTOR shall pay all local, state, federal taxes and all utilities charged, incurred, or
imposed with respect to the Facility.
Article VII
LEGAL PROCEEDINGS, INDEMNIFICATION & INSURANCE
Section 7.01 Indemnification.
The CONTRACTOR hereby assumes entire responsibility and liability for any and all
damages or injury of any kind or nature whatever (including death resulting there from) to all
persons, whether employees of the CONTRACTOR or otherwise, and to all property caused
by, resulting from, arising out of or occurring in connection with any action of the
CONTRACTOR (including its officers, directors, employees, subcontractors, or agents) in
performance of the duties of this Agreement. If any claims for such damage or injury
(including death resulting there from) be made or asserted, whether or not such claims are
based upon the CONTRACTOR'S (including its officers, directors, employees, subcontractors,
or agents) active or passive negligence or participation in the wrong or upon any alleged breach
of any statutory duty or obligation on the part of the above parties, the CONTRACTOR agrees
to indemnify, defend and hold harmless, the State and COCR, their officers, agents, servants
and employees, and The Receiver appointed in the Federal case of Plata v. Swarzenegger,
from and against any and all such claims, and further from and against any and all loss,
cost expense, liability, damage or injury, including legal fees and disbursements, that the
State and COCR, their officers, agents, servants or employees may directly or indirectly
sustain, suffer, or incur as a result, and the CONTRACTOR agrees to and does hereby
assume, on behalf of the State and COCR, their officers, agents, servants and employees,
the defense of any action at law or in equity which may be brought against the State, COCR
or their contractors (if any), their officers, agents, servants or employees, arising by
reason of such claims and to pay on behalf of the State and COCR, their officers, agents,
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servants and employees, upon demand of either of them, the amount of any judgment that
may be entered against them, individually, jointly or severally, their officers, agents, servants
or employees in any such action.
As part of the CONTRACTOR'S assumption of all responsibility and liability for any and all
damage or injury as detailed above, the CONTRACTOR further agrees to hold harmless,
defend and indemnify the State and CDCR for any loss, expense, recovery or settlement,
including counsel fees and costs of defense, which arise from any demand, claim (whether
frivolous or not) or suit which may be asserted or brought against the State, CDCR or the
CONTRACTOR as a result of any injury or damage to any person or persons (including
death) or property (i) allegedly caused by, resulting from, arising out of, or occurring in
connection with the furnishing of any goods, equipment or services or the performance
or preparation for performance of any of the work or any duties of the CONTRACTOR
hereunder, or incidental or pertaining thereto, and (ii) whether or not such injury or damage
is due to or chargeable to the site owner or any contractor or subcontractor under a
contract for which the goods or services herein ordered are required, including, but not
limited to, any claim based on liability without fault for injury caused by defective
goods supplied by the CONTRACTOR. The CONTRACTOR also agrees to assume
responsibility for, hold harmless, defend and indemnify the State and CDCR for payment of
any expenses, costs (including delay costs), direct and consequentiClI damages,
penalties, taxes or assessments (including punitive damages), including counsel fees and
costs of defense, which may be imposed or incurred (a) under any Federal, State, or local
law, ordinance or regulation upon or with respect to any compensation of any person
employed by the CONTRACTOR, and (b) under any Federal, State, or local law,
ordinance or regulation upon or with respect to discrimination in employment against any
individual employed by the CONTRACTOR on the basis of race, color, religion, sex, or
national origin, and (c) under any Federal, State, or local law, ordinance or regulation upon
or with respect to any compensation of any person for claims or civil actions alleging
deprivation of right, privilege or immunity secured by the United States Constitution and
laws pursuant to 42 USC Section 1983 or similar statutes as well as claims for attorneys fees
brought pursuant to 42 USC Section 1988 or similar statutes.
Section 7.02 Legal Proceedings.
The CONTRACTOR shall not be responsible for defending any post conviction action, including
appeals and writs of habeas corpus by any offender challenging the underlying judgment of
conviction or the administration of the sentence imposed.
Section 7.03 Insurance.
The CONTRACTOR is responsible for obtaining and maintaining adequate insurance coverage
as required herein. The CONTRACTOR shall obtain and provide proof of general liability
insurance coverage (broad form coverage) which shall specifically include fire, and legal liability in
an amount not less than two million dollars ($2,000,000) for each occurrence within a yearly
aggregate of at least ten million dollars ($10,000,000), and civil rights claims in an amount not
less than two million dollars ($2,000,000) for each occurrence within a yearly aggregate
of at least five million dollars ($5,000,000). The State of California and its respective agencies
shall be included as additional insureds under the policy of general liability insurance coverage
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issued to the CONTRACTOR. Coverage for civil rights liability may be issued under a separate
policy but shall also include the State and its agencies as additional insureds. Vehicle liability
coverage for all vehicles used by the CONTRACTOR shall be provided in an amount of not less
than two million dollars ($2,000,000) per occurrence. Coverage shall also specifically be
provided to protect against employee dishonesty in an amount of not less than fifty thousand
dollars ($50,000).
The CONTRACTOR shall obtain and provide proof of workers' compensation
insurance coverage (including employer liability) in the amount and manner required by
law for all employees of the CONTRACTOR.
The CONTRACTOR shall obtain and/or provide proof of professional liability insurance coverage,
including medical malpractice liability and errors and omissions coverage, to cover all professional
services to be provided by the CONTRACTOR to the State under this Contract. The amount
of coverage obtained shall be two million dollars ($2,000,000) per occurrence with a five million
dollar ($5,000,000) yearly aggregate. If occurrence coverage is not available, claims-made
coverage with a three (3) year tail coverage shall be provided for the same amounts and
aggregate as detailed above.
The CONTRACTOR shall obtain and provide proof of contractual liability insurance
coverage to cover all liability assumed by the CONTRACTOR under this Contract and for
which the CONTRACTOR may be liable to the State or CDCR under the indemnification
provisions of this Contract (intermediate form coverage). Such coverage may be provided
by separate coverage or as an additional endorsement to a general liability policy, but shall
be in the same amounts and limits of coverage as that required for general liability coverage.
All insurance coverage shall be obtained by the CONTRACTOR through an insurance agent
licensed in the state where the Facility is located and such coverage shall be provided
by an insurance company licensed to issue such coverage in such state. No "selfinsurance" coverage shall be acceptable unless the CONTRACTOR is licensed or
authorized to self-insure for a particular coverage in the state where the Facility is located, or
is an insured member of a self-insurance group that is licensed to self-insure in such state. All
policies shall include a provision requiring at least thirty (30) days' prior written notice of
cancellation to the State and CDCR.
All insurance coverage required to be obtained by the CONTRACTOR shall continue in full
force and effect during the term of the Contract and any extension thereof. Proof of
insurance policies must be delivered prior to the date on which the services of the
CONTRACTOR shall commence.
All insurance coverage is to be provided by insurance carriers admitted to do business in
the state where the Facility is located and coverage issued by surplus lines companies
shall not be acceptable with the exception of civil rights liability coverage. All insurance
carriers shall be, at the minimum, rated "A VII" by A.M. Best or an equivalent rating by a
similar insurance rating service.
The CONTRACTOR may choose the amount of deductible for any of the insurance
coverage required (above) to be obtained by the CONTRACTOR, but in no event shall
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such deductible for each occurrence exceed five (5) percent of the required yearly aggregate
limit of coverage.
The CONTRACTOR is responsible for first dollar defense coverage. All general liability
and professional liability policies shall provide defense in addition to the policy limits.
The limits required herein are the minimum acceptable. However, these limits are not to be
construed as being the maximum the CONTRACTOR may wish to purchase for its own benefit.
As respects to the total limits of liability required, any combination of primary and/or
umbrella coverage may satisfy those totals. However, if an umbrella is used, coverage
must be at least as broad as the primary coverage.
Section 7.04 Certificate of Insurance and Cancellation.
During the performance of the management services hereunder,the CONTRACTOR shall
maintain the plan of insurance and submit a Certificate of Insurance to COCR for the mutual
protection and benefit of it and COCR, naming COCR as co-insured and entitled to all notices
issued under the policy, to cover claims that may arise out of or result from the
CONTRACTOR'S operation and management services hereunder, whether same be by
the CONTRACTOR or a subcontractor or by anyone directly or indirectly employed by any
of them, or by anyone for whose acts any of them may be liable. COCR shall be notified
at least thirty (30) days in advance of cancellation, non-renewal or adverse change in the
coverage. New Certificates of Insurance are to be provided to COCR at least fifteen (15) days
after receipt by CONTRACTOR.
Section 7.05 Defense/Immunity.
By entering into the Contract, neither the State, COCR nor the CONTRACTOR waives any
immunity defense which may be extended to them by operation of law including limitation of
damages, excepting only that the CONTRACTOR may not assert the defense of sovereign
immunity.
Section 7.06 Notice of Claims.
Within ten (10) business days after receipt by COCR, or of any agent, employee or officer of
COCR, of a summons in any action, or within ten (10) business days of receipt by COCR, or of
any agent, employee or officer thereof, of notice of claim, COCR, or any agent, employee or
officer, shall notify the CONTRACTOR in writing of the commencement thereof. The notice
requirement is intended to ensure that the CONTRACTOR'S defense of the claim is not harmed
by failure to comply with the notice requirements. Failure to comply with the notice requirements
may result in the CONTRACTOR'S refusal to indemnify COCR or any agent, employee or officer,
but only if such failure to notify results in a prejudice to the CONTRACTOR, COCR or any agent,
employee or officer. The CONTRACTOR will provide COCR similar notice of claims.
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Section 7.07 Prior Occurrences.
The CONTRACTOR shall not be responsible for any losses or costs resulting from offender
litigation pending at the effective date of this Agreement or for lawsuits based on acts or
omissions occurring prior to the effective date of the Agreement.
Section 7.08 Waiver.
No waiver of any breach of any of the terms or conditions of the Agreement shall be held to be
a waiver of any other or subsequent breach; nor shall any waiver be valid or binding unless
the same shall be in writing and signed by the party alleged to have granted the waiver.
Section 7.09 Risk of Physical Damage to Facility.
The risks and costs of physical damage to the Facility shall be considered usual costs incidental
to the operation of the Facility and part of the costs reimbursed by the fixed rate per offender
day as provided in Article VI. This does not preclude CONTRACTOR from taking action against
an offender who causes such damages.
Section 7.10 Readiness of Occupancy
Prior to arrival of CDCR Offenders at the Facility CONTRACTOR shall submit to CDCR all
Facility policies, procedures, operational plans, certification for hiring of all MRS positions and
submit all required documents including, but not limited to, workers compensation policy,
certificates of insurance, facility as-built drawings, mutual aid agreements and shall certify that
the Facility is ready to receive CDCR Offenders.
Article VIII.
DEFAULT AND TERMINATION
Section 8.01 CDCR Default.
Failure by CDCR to pay any payment required to be paid pursuant to this Agreement within forty
five (45) days after payment is due shall constitute an Event of Default on the part of CDCR,
provided such failure to pay shall not constitute an Event of Default if CDCR has withheld any
payment to CONTRACTOR pursuant to statutory authority.
Section 8.02 CONTRACTOR Default.
Each of the following shall constitute an Event of Default on the part of the CONTRACTOR:
8.02.1
The failure to keep, observe, perform, meet or comply with any covenant,
agreement, term, or provision of this Agreement to be kept, observed, met,
performed, or complied with by CONTRACTOR hereunder, which such failure
continues for a period of thirty (30) days after CONTRACTOR has received a
written notice of deficiency from the Contract Monitor.
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8.02.2
The failure of CONTRACTOR to meet or comply with any applicable federal
or state requirement or law, which such failure continues for a period of thirty
(30) days after CONTRACTOR has received a written notice of deficiency
from the Contract Monitor.
8.02.3
The failure of CONTRACTOR to comply with any applicable CDCR policy for
which CONTRACTOR has not received a prior written waiver from CDCR,
which such failure continues for a period of thirty (30) days after
CONTRACTOR has received a written notice of deficiency from the Contract
Monitor.
8.02.4
If CONTRACTOR (a) admits in writing its inability to pay its debts; (b) makes
a general assignment for the benefit of creditors; (c) suffers a decree or order
appointing a receiver or trustee for it or substantially all of its property to be
entered and, if entered without its consent, not to be stayed or discharged
within Sixty (60) days; (d) suffers a proceedings under any law relating to
bankruptcy, insolvency, or the reorganization or relief of debtors to be
instituted by or against it and if contested by it, not to be dismissed or stayed
within sixty (60) days; or (e) suffers any judgment, writ of attachment or
execution, or any similar process to be issued or levied against a substantial
part of its property.
8.02.5
The discovery by CDCR that any statement, representation or warranty in this
Agreement on the part of CONTRACTOR is false, misleading, or erroneous
in any material respect.
Section 8.03 Notice of Breach.
No breach of this Agreement by either party shall constitute an Event of Default and no action
with regard to same may be instituted unless and until the party asserting a breach specifies
that a deficiency or deficiencies exist(s) that, unless corrected or timely cured, will constitute a
material breach of this Agreement on the part of the party against which a breach is asserted.
Nothing in this section is intended to prevent any party from terminating this Agreement
pursuant to Section 2.03 of this Agreement.
Section 8.04 Time to Cure.
If any material breach of this Agreement by either party remains uncured more than thirty (30)
days after written notice thereof by the party asserting this breach, this shall be an Event of
Breach, provided, however, if within thirty (30) days after such notice, a substantial good faith
effort to cure breach shall not be an Event of Default if it is cured within a reasonable time
thereafter.
Section 8.05 Remedy for Default.
Upon the occurrence of an Event of Default, either party shall have the right to pursue any
remedy it may have at law or equity, including but not limited to reducing its claim to judgment,
including seeking an award of attorneys fees and costs, taking action to cure the Event of
Default, and termination of the Contract.
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Section 8.05 Waiver.
No waiver of any breach of any terms or conditions of this Agreement shall be held to be a
waiver of any other or subsequent breach; nor shall any waiver be valid or binding unless the
same shall be in writing and signed by the party alleged to have granted the waiver.
Section 8.06 Termination for Cause.
In addition to any other remedies set forth herein, this Agreement may be terminated by either
party for cause or on not less than one hundred-eighty days (180) days prior written notice
delivered to the other party in accordance with the provisions on Notices as set forth in this
Agreement. Within 180 days after the delivery of said notice, or such shorter period of time as
the parties may agree, the COCR shall retake physical custody of COCR Offenders being
housed at the Facility pursuant to this Agreement. The requirement of written notice and time
requirements above will not apply if the COCR, in its sole discretion, determines the cause for
termination creates an immediate threat to public or offender safety, health, or welfare. In such
event the parties shall mutually cooperate for an immediate return of COCR offenders
consistent with the availability of transportation and housing.
Section 8.07 Removal of CDCR Offenders.
If after completion of the first full year of the three-year term of this Agreement, CONTRACTOR
receives notice from the Commissioner of the Indiana Department of Correction (lOOC) that
IOOC requires the use of one or more of the 210-bed housing units then occupied by COCR
Offenders, the COCR Offenders shall, upon not less than sixty (60) days prior written notice
from CONTRACTOR to COCR, be removed at CONTRACTOR's expense to another
CONTRACTOR-operated facility approved by COCR, upon the same terms and conditions,
including compensation, as set forth in this Agreement. Should such removal occur, the then
current fixed monthly compensation payable to CONTRACTOR in Article VI, above, shall be
ratably reduced.
Section 8.08 Termination for Convenience
CDCR reserves the right to terminate this Agreement without cause and in its sole discretion
upon ninety (90) days written notice provided to the CONTRACTOR.
Article IX
MISCELLANEOUS
Section 9.01 integration.
This Agreement is intended as the complete integration of all understandings between the
parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have
any force or affect whatsoever, unless embodied herein by writing. No subsequent innovation,
renewal, addition or other amendment hereto shall have any force unless embodied in a written
agreement executed and approved pursuant to State of California laws, rules and policies.
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Section 9.02 Disputes. Contract or Billing Disputes
As a condition precedent to CONTRACTOR's right to institute and pursue litigation or other
legally available dispute resolution process, if any, CONTRACTOR agrees that all disputes
and/or claims of CONTRACTOR arising under or related to the Agreement shall be resolved
pursuant to the following processes. CONTRACTOR's failure to comply with said dispute
resolution procedures shall constitute a failure to exhaust administrative remedies.
Pending the final resolution of any such disputes and/or claims, CONTRACTOR agrees to
diligently proceed with the performance of the Agreement, including the delivering of goods or
providing of services. CONTRACTOR's failure to diligently proceed shall constitute a material
breach of the Agreement.
The Agreement shall be interpreted, administered, and enforced according to the laws of the
State of California. The parties agree that any suit brought hereunder shall have venue in
Sacramento, California, the parties hereby waiving any claim or defense that such venue is not
convenient or proper.
a.
Final Payment
The acceptance by CONTRACTOR of final payment shall release the California
Department of Corrections and Rehabilitation (COCR) from all claims, demands and
liability to CONTRACTOR for everything done or furnished in connection with this work
and from every act and neglect of CDCR and others relating to or arising out of this work
except for any claim previously accepted and/or in process of resolution.
b.
Informal Appeal
CONTRACTOR and the program or institution contract liaison, or other designated
CDCR employee of the unit for which the goods are being delivered or the service is
being performed, shall first attempt in good faith to resolve the dispute or claim by
informal discussion(s). CONTRACTOR shall identify the issues and the relief sought.
The program or institution contract liaison shall issue an informal written statement to
CONTRACTOR regarding the dispute within fifteen (15) calendar days following
settlement or an impasse in the informal discussion(s) process. The written statement
shall either: (1) document the dispute settlement and what, if any, conditions were
reached; or, (2) document the reason(s) the dispute could not be resolved informally and
provide notification to CONTRACTOR of its option to file a formal appeal within thirty
(30) days of the informal statement. One (1) copy of the informal statement and the
discussion(s) on which it is based shall be forwarded immediately to the Office of
Business Services (OBS) for inclusion in the Agreement file.
c.
Formal Appeal
If the dispute or claim is not resolved to CONTRACTOR's satisfaction by the informal
appeal process, CONTRACTOR may file with the Associate Director, Procurement and
Contracts Branch (PCB), OBS, a formal written appeal within thirty (30) calendar days of
the date of COCR's informal written decision. The formal written appeal shall be
addressed as follows:
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Exhibit A
Karen Smith
Associate Director
Contract Management Branch
Office of Business Services
California Department of Corrections and Rehabilitation
P.O. Box 942883
Sacramento, California 94283-0001
CONTRACTOR shall specify in the formal written appeal the issuers) in dispute, the
particular relief or remedy sought, the factual basis for CONTRACTOR's claim or
dispute, and CONTRACTOR's legal, technical and/or other authority upon which
CONTRACTOR bases its claim or dispute.
The formal written appeal shall include a written certification signed by a knowledgeable
company official under the penalty of perjury according to the laws of the State of
California pursuant to California Code of Civil Procedure Section 2015.5 that the dispute,
claim, or demand is made in good faith, and that the supporting data are accurate and
complete. If an Agreement adjustment is requested, the written certification shall further
state under penalty of perjury that the relief requested accurately reflects the Agreement
adjustment for which the CDCR is responsible.
If CONTRACTOR is a corporation, the written certification shall be signed by an officer
thereof. If CONTRACTOR is a sole proprietorship or partnership, it shall be signed by
an owner or full partner.
If CONTRACTOR is other than a corporation, sole
proprietorship or partnership, it shall be signed by a principal of the company with
authority to bind the company.
The Associate Director, PCB, OBS, shall issue a formal written decision on behalf of
CDCR within thirty (30) calendar days of receipt of the properly addressed formal written
appeal. If mutually agreed by the parties, the date for the issuance of CDCR's final
written decision may be extended.
d.
Further Resolution - If the dispute is not resolved by the formal appeal process to
CONTRACTOR's satisfaction, or CONTRACTOR has not received a written decision
from the Associate Director, PCB, OBS, after thirty (30) calendar days, or other mutually
agreed extension, CONTRACTOR may thereafter pursue its right to institute other
dispute resolution process(es), if any, available under the laws of the State of California.
Section 9.03 Computer Software Management Memo.
CONTRACTOR certifies that it has appropriate systems and controls in place to ensure that
state funds will not be used in the performance of this Agreement for the acquisition, operation
or maintenance of computer software in violation of copyright laws.
Section 9.04 Accounting Principles - No Dual Compensation
The CONTRACTOR will adhere to generally accepted accounting principles as outlined by the
American Institute of Certified Public Accountants. Dual compensation is not allowed; a
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contractor cannot receive simultaneous compensation from two or more funding sources for the
same services performed even though both funding sources could benefit.
Section 9.05 Subcontractor/Consultant Information
CONTRACTOR is required to identify all subcontractors and consultants who will perform labor
or render services in the performance of this Agreement. Additionally, the CONTRACTOR shall
notify the Department of Corrections and Rehabilitation, Office of Business Services, in writing,
within ten (10) working days, of any changes to the subcontractor and/or consultant information.
Section 9.06 Employment of Ex-Offenders
CONTRACTOR cannot and will not either directly, or on a subcontract basis, employ in
connection with this Agreement:
a.
b.
c.
Ex-Offenders on active parole or probation;
Ex-Offenders at any time if they are required to register as a sex offender pursuant to
Penal Code Section 290 or if such ex-offender has an offense history involving a "violent
felony" as defined in subparagraph (c) of Penal Code Section 667.5; or
Any ex-felon in a position which provides direct supervision of parolees.
Ex-Offenders who can provide written evidence of having satisfactorily completed parole or
probation may be considered for employment by the CONTRACTOR subject to the following
limitations:
a.
b.
CONTRACTOR shall obtain the prior written approval to employ any such ex-offender
from the Authorized Administrator; and
Any ex-offender whose assigned duties are to involve administrative or policy decisionmaking; accounting, procurement, cashiering, auditing, or any other business-related
administrative function shall be fully bonded to cover any potential loss to the State of
California.
Section 9.07 Electronic Waste Recycling
The CONTRACTOR certifies that it complies with the requirements of the Electronic Waste
Recycling Act of 2003, Chapter 8.5, Part 3 of Division 30, commencing with Section 42460 of
the Public Resources Code, relating to hazardous and solid waste. CONTRACTOR shall
maintain documentation and provide reasonable access to its records and documents that
evidence compliance.
Section 9.08 Excise Tax
The State of California is exempt from federal excise taxes; no payment will be made for any
taxes levied on employees' wages. The State will pay for any applicable State of California or
local sales or use taxes on the services rendered or equipment or parts supplied pursuant to
this Agreement. California may pay any applicable sales and use tax imposed by another state.
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Section 9.09 Licenses and Permits
The CONTRACTOR shall be an individual or firm licensed to do business in State and shall
obtain at CONTRACTOR's expense all license(s) and permit(s) required by law for
accomplishing any work required in connection with this Agreement.
In the event any license(s) and/or permit(s) expire at any time during the term of this
Agreement, CONTRACTOR agrees to provide the CDCR with a copy of the renewed licensers)
and/or permit(s) within thirty (30) days following the expiration date. In the event the
CONTRACTOR fails to keep in effect at all times all required licensers) and permit(s), the State
may, in addition to any other remedies it may have, terminate this Agreement upon occurrence
of such event.
Section 9.10 Conflict of Interest
The CONTRACTOR and their employees shall abide by the provisions of Government Code
(GC) Sections 1090, 81000 et seq., 82000 et seq., 87100 et seq., and 87300 et seq., Public
Contract Code (PCC) Sections 10335 et seq. and 10410 et seq., California Code of Regulations
(CCR), Title 2, Section 18700 et seq. and Title 15, Section 3409, and the Department
Operations Manual (DOM) Section 31100 et seq. regarding conflicts of interest.
a.
Former State Employees
(1)
(2)
For the two year (2-year) period from the date he or she left state employment,
no former state officer or employee may enter into an Agreement in which he or
she engaged in any of the negotiations, transactions, planning, arrangements or
any part of the decision-making process relevant to the Agreement while
employed in any capacity by any state agency.
For the twelve-month (12-month) period from the date he or she left state
employment, no former state officer or employee may enter into an Agreement
with any state agency if he or she was employed by that state agency in a policymaking position in the same general subject area as the proposed Agreement
within the 12-month period prior to his or her leaving state service.
In addition to the above, the CONTRACTOR shall avoid any conflict of interest whatsoever with
respect to any financial dealings, employment services, or opportunities offered to inmates or
parolees. The CONTRACTOR shall not itself employ or offer to employ inmates or parolees
either directly, or indirectly through an affiliated company, person or business unless specifically
authorized in writing by the CDCR. In addition, the CONTRACTOR shall not (either directly, or
indirectly through an affiliated company, person or business) engage in financial dealings with
inmates or parolees, except to the extent that such financial dealings create no actual or
potential conflict of interest, are available on the same terms to the general public, and have
been approved in advance in writing by the CDCR. For the purposes of this paragraph,
"affiliated company, person or business" means any company, business, corporation, nonprofit
corporation, partnership, limited partnership, sole proprietorship, or other person or business
entity of any kind which has any ownership or control interest whatsoever in the
CONTRACTOR, or which is wholly or partially owned (more than 5% ownership) or controlled
(any percentage) by the CONTRACTOR or by the CONTRACTOR's owners, officers, principals,
directors and/or shareholders, either directly or indirectly. "Affiliated companies, persons or
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businesses" include, but are not limited to, subsidiary, parent, or sister companies or
corporations, and any company, corporation, nonprofit corporation, partnership, limited
partnership, sole proprietorship, or other person or business entity of any kind that is wholly or
partially owned or controlled, either directly or indirectly, by the CONTRACTOR or by the
CONTRACTOR's owners, officers, principals, directors and/or shareholders.
The CONTRACTOR shall have a continuing duty to disclose to the State, in writing, all interests
and activities that create an actual or potential conflict of interest in performance of the
Agreement.
The CONTRACTOR shall have a continuing duty to keep the State timely and fully apprised in
writing of any material changes in the CONTRACTOR's business structure and/or status. This
includes any changes in business form, such as a change from sole proprietorship or
partnership into a corporation or vice-versa; any changes in company ownership; any
dissolution of the business; any change of the name of the business; any filing in bankruptcy;
any revocation of corporate status by the Secretary of State; and any other material changes in
the CONTRACTOR's business status or structure that could affect the performance of the
CONTRACTOR's duties under the Agreement.
If the CONTRACTOR violates any provision of the above paragraphs, such action by the
CONTRACTOR shall render this Agreement void at the option of CDCR.
Section 9.11 CONTRACTOR Employee Misconduct
During the performance of this Agreement, it shall be the responsibility of the CONTRACTOR
whenever there is an allegation of employee misconduct associated with and directly impacting
inmate and/or parolee rights, to immediately notify the CDCR of the incident(s), to cause an
investigation to be conducted, and to provide CDCR with all relevant information pertaining to
the incident(s). All relevant information includes, but is not limited to: a) investigative reports; b)
access to inmates/parolees and the associated staff; c) access to employee personnel records;
d) that information reasonably necessary to assure CDCR that inmates and/or parolees are not
or have not been deprived of any legal rights as required by law, regulation, policy and
procedures; and e) written evidence that the CONTRACTOR has taken such remedial action, in
the event of employee misconduct with inmates and/or parolees, as will assure against a
repetition of the incident(s). Notwithstanding the foregoing, and without waiving any obligation
of the CONTRACTOR, CDCR retains the power to conduct an independent investigation of any
incident(s). Furthermore, it is the responsibility of the CONTRACTOR to include the foregoing
terms within any and all subcontracts, requiring that subcontractor(s) agree to the jurisdiction of
CDCR to conduct an investigation of their facility and staff, including review of subcontractor
employee personnel records, as a condition of the Agreement.
Section 9.12 Equal Employment Opportunity.
CONTRACTOR agrees to comply with all Equal Employment Opportunity laws applicable to the
operation of the facility in State.
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Section 9.13 Binding Nature
Upon its execution by both parties, this Agreement shall be binding on the parties.
Section 9.14 Invalidity and Severability.
To the extent that this Agreement may be executed and performance of the obligations of the
parties may be accomplished within the intent of the Agreement, the terms of this Agreement
are severable, and should any term or provision hereof be declared invalid or become
inoperative for any reason, such invalidity or failure shall not affect the validity of any other term
or provision hereof. In the event that any provision of this Agreement is held invalid, that
provision shall be null and void. However, the validity of the remaining provisions of the
Agreement shall not be affected thereby.
Section 9.15 Jurisdiction and Venue.
The laws of the State of California and rules and regulations issued pursuant thereto shall be
applied in the interpretation, execution and enforcement of this Agreement. Venue for any legal
action related to performance or interpretation of this Agreement shall be in the City of
Sacramento, California.
Section 9.16 Subcontracting and Assignment.
Nothing contained in this Agreement, or otherwise, shall create any contractual relation between
the CDCR and any subcontractors, and no subcontract shall relieve the CONTRACTOR of
CONTRACTOR'S responsibilities and obligations hereunder. The CONTRACTOR agrees to be
as fully responsible to CDCR for the acts and omissions of its subcontractors and of persons
either directly or indirectly employed by any of them as it is for the acts and omissions of
persons directly employed by the CONTRACTOR. The CONTRACTOR'S obligation to pay its
subcontractors is an independent obligation from the CDCR'S obligation to make payments to
the CONTRACTOR. As a result, the CDCR shall have no obligation to payor to enforce the
payment of any moneys to any subcontractor.
Section 9.17 California General Terms and Conditions -Incorporation by Reference.
By reference, all of the State of California's General Terms and Conditions posted on the
California
Department
of
General
Services'
internet
address
at:
http://www.documents.dgs.ca.gov/ols/GTC-306.doc are incorporated herein.
Section 9.18 Notices.
Any notice provided for in this Agreement shall be in writing and served by personal delivery,
designated CDCR electronic mail system, or United States Mail, postage prepaid, at the
addresses listed in Section 2.04, until such time as written notice of change of address is
received from either party. Any notice so mailed and any notice served by electronic mail or
personal delivery shall be deemed delivered and effective upon receipt or upon attempted
delivery. This method of notification will be used in all instances, except for emergency
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situations when immediate notification is required pursuant to the appropriate sections of this
Agreement.
All notices will be sent to:
COCR:
Notice information to be provided prior to occupancy.
CONTRACTOR:
Notice information to be provided prior to occupancy.
Section 9.19 Confidentiality of Records.
COCR and CONTRACTOR agree that all inmate records and inmate/patient medical record
information is identified as confidential and shall be held in trust and confidence and shall be
used only for the purposes contemplated under this Agreement.
CONTRACTOR by acceptance of this Agreement is subject to all of the requirements of the
federal regulations implementing the Health Insurance Portability and Accountability Act of 1996
(Code of Federal Regulations 9cfr) , Title 45, Sections 164.501 et seq.); the California
Government Code Sections 1798, et seq.; regarding the collections, maintenance, and
disclosure of personal and confidential informatiOn, about individuals.
Section 9.20 Ownership
of
Material
Documentation, Studies and Evaluations.
Information,
Data,
Computer
Software
Unless otherwise provided, and when appropriate, CONTRACTOR agrees that all material,
information, data, documentation, studies and evaluations produced in the performance of this
Agreement is the property of COCR and the CONTRACTOR.
Section 9.21 Reporting.
CONTRACTOR shall submit to the COCR Contract Monitor, on a quarterly basis, a written
program report specifying progress made for each activity identified in the CONTRACTOR's
duties and obligations, regarding the performance of the Agreement. Such written analysis shall
be in accordance with the procedures developed and prescribed by the COCR. The preparation
of reports in a timely manner shall be the responsibility of the CONTRACTOR and failure to
comply may result in delay of payment of funds. Required reports shall be submitted to the
COCR not later than thirty (30) days following the end of each calendar quarter, or at such time
as otherwise specified.
Section 9.22 Records.
Unless otherwise provided: CONTRACTOR shall compile and maintain a complete file of each
COCR Offender, including all records, communications, and other written materials which
pertain to the operation of offender programs or the delivery of services to offenders under this
Agreement, including medical, counseling, classification and disciplinary documents, in
individual files.
Further, the CONTRACTOR shall permit the COCR or its deSignated
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representative to audit, inspect, and copy such files and records during the term of this
Agreement to assure compliance with the terms hereof or to verify actual costs. Such files and
records will be deemed to be the property of the COCR and shall be available for inspection by
the COCR and shall be returned to the COCR upon discharge of a CDCR Offender from Facility.
The CONTRACTOR may keep copies of said documents as may be necessary to resolve any
matters that may be pending. Upon resolution of the matter said copied records shall be
destroyed by COCR. No files or records in which a COCR Offender is individually identifiable by
name, shall be released to any third party without express, advance authorization of COCR,
except in medical emergencies.
9.22.1 The CONTRACTOR shall maintain a complete file of all records, documents,
communications and other materials which pertain to the operation of programs or
the delivery of services under this Agreement. Such materials shall be sufficient to
properly reflect all direct and indirect costs of labor, materials, equipment, supplies,
services and other costs of whatever nature for which an Agreement payment was
made.
These records shall be maintained according to generally accepted
accounting principles and shall be easily separable from other Facility records. The
COCR's access to records pursuant to this provision shall be limited to those
documents necessary to monitor contract compliance or to verify specific costs for
which the CONTRACTOR sought reimbursement under this Agreement.
9.22.2 All such records, documents, communications and other materials shall be the
property of COCR and shall be maintained by the CONTRACTOR, in a central
location with a designated custodian, on behalf of CDCR, for a period of three (3)
years from the final payment of this Agreement, or until an audit had been completed
with the following qualification: If an audit by or on behalf of the federal government
had begun but is not completed at the end of the three (3) year period, the materials
shall be retained until the resolution of the audit finding.
9.22.3 CONTRACTOR shall permit the COCR to audit and/or inspect it records during the
term of this Agreement and for a period of three (3) years following the termination
of the Agreement to assure compliance with the terms hereof or to verify actual
costs.
Section 9.23 No Third Party Benefit.
This Agreement shall benefit and burden the parties hereto in accordance with its terms and
conditions and it not intended, and shall not be deemed or construed, to confer rights, powers,
benefits or privileges on any person or entity other than the parties to this Agreement. This
Agreement is not intended to create any rights, liberty interests, or entitlements in favor of any
COCR Offender. The Agreement is intended only to set forth the contractual rights and
responsibilities of the Agreement parties. COCR Offenders shall have only those entitlements
created by Federal or State constitutions, statutes, regulations or case law.
Section 9.24 Survival of Certain Terms.
Notwithstanding anything herein to the contrary, the parties understand and agree that all terms
and conditions of this Agreement and any appendixes or attachments hereto which may require
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continued performance or compliance beyond the termination date of the Agreement shall
survive such termination date and shall be enforceable by the COCR as provided herein in the
event of such failure to perform or comply by CONTRACTOR.
Section 9.25 Counterparts/Facsimile Signature.
This agreement may be executed in counterparts. The parties shall exchange their executed
counterpart to each other, both by first class mail .The parties may treat a facsimile signature as
a valid signature and when both parties have executed this agreement, they may transmit their
signature on the contract to the other, and when mutually exchanged my facsimile, this
agreement may be deemed fully executed.
Section 9.26 Amendment.
This Agreement shall not be altered, changed or amended except by mutual consent of the
parties in writing.
Section 9.27 Governing Standards
In the event of a conflict between any of the governing standards, rules, regulations, policies or
procedures referenced herein, including, but not limited to ACA, NCCHC, Title 15,
CONTRACTOR policy and procedure, COCR OOM, and COCR rules, regulations and policies,
then the CONTRACTOR and COCR shall attempt to reach mutual agreement upon the
standard, rule, regulation, policy or procedure to be followed. In attempting to reach resolution
in such event, the parties shall take into account facility issues such as security and uniformity
of policies, as well as specific needs of COCR Offenders management. If the parties cannot
reach an agreement, CONTRACTOR shall follow the standard, rule, regulation, policy or
procedures as directed by COCR.
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Exhibit A
IN WITNESS WHEREOF, intending to be legally bound, the parties have caused their
authorized representatives to execute this Agreement on the date first written above.
John Dovey,
Director, Division of Adult Institutions
California Department of Corrections and Rehabilitation
1515 S Street, Suite 351-N
Sacramento, CA 95814
John Dovey
Date
Wayne H. Calabrese
Vice Chairman & President
The GEO Group, Inc.
One Park Place, Suite 700
621 Northwest 53,d Street
Boca Raton, FL 33487
Wayne H. Calabrese
Date
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