~ONTRACT

BETWEEN
STATE OF TENNESSEE
DEPARTMEJ','T OF CORRECTION

AND
CORRECTIONS CORPOMTION OF AMERICA

Thi s Contract is made as of the _Z}'
Correction, State of Tennessee,

(" S lat~ ")

qq7~
V
between the'Department 0:

1,_y of r;. 1,,] J

and Corrections Corporation of America.

\nTI\"ESSETH:
Vt1!EREAC;, the State is authorized by law to enter into a Contract for the private
man agement of a correctional facility, pursuant to T.C.A.. § 41-24-101 et seq.; and

WHEREAS , the Con tractor has the experience and resources to manage a correc;;onal
facility;

NOW, THEREFORE, in I msideration ·,r the mutual promises and covenants contained
herein, the State and Contractor hereby agree ,,; follows:

ARTICLEl
DEFlNTI10NS
ACA - means the American Correctional Association.
ACA Standards - means the Standards for Adults Correctional Institutions (Third Edition,

January 1990, as the same may be modified, amended, or supplemented now or in the future)
published by ACA.

Commi ssioner - means the Commissioner of the Tennessee Department of Correction.

Contract - means this Document, together with all written attachments, exhibits, amendments and
modificati ons and incorporating by reference herein, (1) the Request for Proposals, including
exhibits and amendments; and (2) the proposal, including amendments and/or written
clarifications.

Contract Monitorin~ Unit - means the Tennessee Department of Correction unit responsible for
monitoring the quantity and quality of services required and the reporting obligations of the
Contractor, and for carrying out the liaison responsibilities between the State and the Contractor.

Contract Liaison - means a person or persons assigned to the Contract Monitoring Unit and
appointed and paid by the state to monitor the implementation of this Contract and/or to act as
the Commissioner's designee. The Contract Liaison will also be the official liaison between the
State and Contractor on matters pertaining to the operation and management services of the

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.'

facility and may perform other functions described in Department policies. The Contractor shall
be notified of the identity of any Contract Liaison in writing signed by the Commissioner.

Contractor - means Corrections Corporation of America

Court Orders - means any orders, judgments or opinions issued by a court of competent
jurisdiction or any stipulations, agreements or plans entered into in connection with litigation that
are applicable to the operation, management or maintenance of the Facility or relate to the care
and custody of Inmates of the Facility, whether currently existing or as may be rendered in the

future.

Department - means the Tennessee Department of Correction.

Document - means this document with attached appendix, excluding the RFP and Proposal.

Effective Date cf Contract - means the date stated on page one of this Contract,

Facilitv - means the correctional institution in Wayne County, Tennessee, including adjacent real
property described in Section 3.1, for the incarceration of male felony offenders sentenced to the
care, custody and control of the Department, known as the South Central Correctional Center
(SCCC) .

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Indigent Inmates - means Inmates who are deemed indigent as defined by Department Policy
504.04, as said policy may be amended.

Innatient Hospital Costs - means any expenses incurred as a result of an Inmate's admission to a
medical care facility, and expenses incurred as a result of out-patient treatment for emergency
medical services.

Inmate - means any male felony offender sentenced to the Department and assigned to the
Facility by the Department.

Inmate Dav - means each calendar day or part thereof that an Inmate is located at the Facility,
including the first, but not the last day of incarceration at the Facility.

Local Area - means Wayne, Hardin, Lawrence, Giles, Lincoln, Marshall, Maury, Lewis,
Williamson, Hickman, Dickson, Humphreys, Perry, Houston, Benton, Henry, Weakley, Carroll,
Henderson, Decatur, Gibson, Crockett, Madison Haywood, Chester, Fayette, Hardeman, and
McNairy counties in Tennessee.

Per Diem Rate - means cost per Inmate, per Inmate Day.

Partial Default - means default of a portion of the services to be rendered by the Contractor under
this Contract due to Contractor's failure to perform.

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Partial Tak eover. - means the State's discretionary assumption of a portion of the services to be
rendered by the Contractor under this Contract not resulting from Contractor's failure to perform.
Policy Directive - means formal statement of the State's correctional policy on a given subject.
All Policy Directives shall not conflict with administrative rules or statutes or applicable
American Correctional Association standards.

Operating Procedure - means a statement of procedure implementing a policy directive. One is
not to be issued as a substitute for an administrative rule or policy directive. Procedures identify
who does what and when to impl ement a policy or rule.

Post Ord ers - means a written, step-by-step description for an employee on bow to perform a
specific job. A "post order" may be considered a job outline. Post Ord ers are similar to an
operating procedure and may even be a portion of one .

Proposal - means the Contractor's Proposal of October 30, 1996.

RFP - means the Request for Proposals issued by the Department and identified as RFS 97329.44-002, together with the following amendments: Amendment 1 (lOnl96), Amendment 2
(10/1 1/96) and Amendment 3 (10/1 7/96 ).

Service Commencem ent Date - means 12:00 noon February 28, 1997.

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Standards - means the standards to which Contractor's performance under this Contract must
conform pursuant to Section 5.1 of the Contract.

State - means the State of Tennessee, including but not limited to the Department.

TOMIS - means the Tennessee Offender Management Information System, a mainframe
computer system that automates the management of information about offenders under the
supervision of the Tennessee Department of Correction. TOMIS captures all offender related
information at the point of origin to provide accurate and timely information to those who use it.

TRlCOR - means the Tennessee Rehabilitation Initiative in Corrections.

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ARTICLE 2
TERM & SCOPE OF THE CONTRACT

Section 2.1 Term
(a)

The term of this Contract shall be from the Effective Date of Contract until three

(3) years after the Service Commencement Date, February 28,1997, unless terminated earlier
pursuant to the terms hereof. This term requires three (3) years of management service ending at
12:00 noon on February 29,2000.
(b)

The State shall have an option to renew the Contract upon the same terms and

conditions for an additional twenty-four (24) month period by giving the Contractor written
notice of its intent to exercise such option on or before November I, 1999; provided, however,
exercise of the option to renew is solely within the discretion of the State.

Section 2.2 Scope of the A!!Teement
(a)

This Contract, including the documents incorporated by reference, shall constitute

the entire agreement between the parties, and no statements, promises or inducements made by
either party or agents of either party that are not contained in the Contract shall be valid or
binding with the exception of Opinion of Contractor's Counsel described in Section 11.11. No
prior agreement or understandings, verbal or otherwise, of the parties or their agents shall be
valid or enforceable unless embodied in this Contract

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(b)

Contractor agrees to perform all acts and services and comply with all duties and

promises as described in this Contract.
(c)

Slate agrees to perform all of its obligations described in the RFP and this

Document.

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ARTICLE 3

FACILITY AND PROPERTY

Section 3.1 Lease and Possession of Facility.
(a)

The State leases to the Contractor the reaIproperty described in Appendix A

together with all improvements thereon (the Facility), subject to the State's right to the following:
(i)

to enter and inspect; and/or

(ii)

to construct additional buildings or expand the capacity of existing
buildings.

(b)

Contractor shall provide for maintenance, repair, and replacement for the Facility

and shall keep said Facility in good repair, working order and condition, subject to normal wear
and tear. Contractor shall be responsible for all expenses incurred in said maintenance, repair
and replacement, subject to Section 3.9.
(c)

The Contractor shall maintain the Facility in accordance with all applicable fire,

building, life safety, and handicapped accessibility codes .
(d)

The Contractor shall comply with any seller's or manufacturer's recommendations

regarding maintenance of the Facility which are provided to the Contractor.
(e)

The Contractor shall implement the system for vermin and pest control, trash and

garbage disposal, and hazardous waste management described in the Proposal.
(f)

Contractor agrees that the Facility will be used only for the purposes described in

this Contract and shall not allow or suffer any waste at the Facility. Contractor shall not harvest

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any timber at the Facility or extract any other resource at the Facility unless agreed to in writing
by the Commissioner.

Section 3.2 No Warranty. The State leases the Facility to Contractor as is and with all faults and
make no exp ress or implied warranties regarding the Facility, including but not limited to
warranti es regarding fitness for-particular purpose and hereby disclaims any and all express or
implied warranties.

Section 3.3 State Property.
(a)

The State shall furnish the Facility with the property, including telephone and

related wiring, listed in Appendi x B on or before Service Commencement Date.
(b)

All property furnished by the State shall remain at the Facility unle ss its location

must be moved for maintenance, repair or replacement. Any removal of said property shall only
be made with the prior written consent of the Liai son.

(c)

The State shall be responsible for the installation of the property described in

subsection (a).
(d)

Effec tive on the Service Commencement Date, the State hereby leases to the

Contractor said property described on Appendix B.
(e)

The State lease s the property on Appendix B to Contractor as is and with all faults

and makes no express or implied warranties regarding said property including but not limited to
warranties regarding fitness for a particular purpose and hereby disclaims any and all express or
implied warranties .

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Section 3.4 Additional Property.
(a)

Contractor shall provide and install in the Facility any additional equipment as

well as all necessary perishables and other items necessary for Contractor,to comply with its
obligations under this Contract including but not limited to c1eaning/housekeeping equipment
and supplies.
(b)

Upon written agreement by the parties without a Contract amendment, the parties

may agree to revise the State equipment list on Appendix B, Said agreement must be in writing
signed by the Commissioner and the Contractor.

Section 3.5 Insurance. The Contractor shall obtain and keep in force insurance on all property to
be located at the Facility, whether said property is supplied by the Contractor or State.

Section 3,6 Ownership of propertY at termination,
(a)

At the conclusion of the Contract, whether by expiration or termination, all

equipment, peris hables, supplies and any other property, whether real or personal, including but
not limited to Inmate files, fiscal records and any other records used at the Facility or purchased
with state fund s shall become the property of the State, whether initially acquired by the
Contractor or the State.
(b)

At the conclusion of the Contract, whether by expiration of termination, the

facility and property furnished by the State shall be returned to the State in good order and in the
condition received, reasonable use and wear thereof excepted, provided that if any property
provided by the State is destroyed, lost or stolen and has not been replaced, the Contractor shall

t1

be responsible to the State for the residual value of said property at the time of loss and said

value may be withheld from any amounts owed Contractor.
(c)

Contractor agrees that no security interest will attach to any property used at the

Facility whether purchased by State or Contractor. In the event a security interest is created on
any of said property, Contractor agrees to immediately notify the Liaison in writing and cause
said security interest to be extinguished within thirty (30) days.

Section 3.7 Manuals . The State will provide Contractor with a copy of all equipment manuals, a
set of as-built drawings , and any warranties affecting the property leased to Contractor under
Section 3.3 and affecting the Facility.

Section 3.8 Maintenance .
(a)

The Contractor shall be responsible for the maintenance, repair, and replacement

of all property of any nature whatsoever located at the Facility at Contractor's expense whether
said property is furnished by the State or the Contractor, subject to Section 3.9.
(b)

The Contractor shall implement the plan, including the preventive maintenance

program, contained in its Proposal to maintain the Facility and all property contained therein.
(c)

Contractor shall comply with TDOC Policy 108.01 as it may be amended during

the term of the Contract.

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(d)

The Contractor shall comply with any seller's or manufacturer's recommendations

provided the Contractor regarding maintenance of any property leased to the Contractor under
Section 3.3 .

Section 3.9 Exceptions to Contractor Maintenance. Theonly exceptions to the Contractor's
obligation to effect repairs or provide replacements to the facility and property contained therein
at its expense are as follows:
(a)

where repairs or repla cements are covered by a warranty made by a third party to

the State , provided , however;
(i)

if Contractor has caused or contributed to the invalidity of any warranty or
failed to com ply with Section 3.10, the Contractor shall bear the full
expense to effect any repair or replacement; and

(ii)

for purposes of this Article, the decision regarding whether and to what
extent the Contractor has invalidated a warranty, whether the Contractor
has failed to comply with Section 3.10 or whether a defect is included in a
warranty shall be within the sole judgment of the State;

(b)

replacement of entire systems including but not limited to the boiler plant,

heating, air conditioning, security electronics, communications and utility services, and costs to
replace major components thereof which exceed $5,000; pro vided, however,
(i)

decisions regarding whether and to what extent the entire system or a
major component thereof should be replaced shall be within the sole
judgeme nt of the State; and

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(ii)

The Contractor shall be responsible for all costs if in the sole judgement of
the State the replacement is necessary due to any of the following causes:
(a) Contractor's negligence,(b) Contractor's failure to adequately maintain
the systems or portions thereof, or Contractor's failure to comply with the
provisions of the Contract; and

(c)

where repairs or replacements are necessary due to design error or omission or

improper construction of the Facility and not covered by a warranty. The decision regarding
whether and to what extent the repair or replacement is due to design error or omission or
improper construction shall be within the sole judgment of the State.

Section 3.10 Warranties.
(a)

The State shall promptly provide Contractor a copy of any warranty made by a

third party to the State covering property provided by the State or on the Facility; provided,
however, the State is not obligated to acquire or purchase any such Warranties.
(b)

With respect to said warranties, Contractor agrees as follows :
(i)

to maintain the Facility and property located thereon in compliance with
said warranties; and

(ii)

to promptly notify the Liaison in writing of any defects of whatever nature
which are covered by said warranty allowing the State sufficient time
under the warranty to notify the entity providing said warranty.

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Section 3.11 Contractor Failure to Repair. If the State acquires notice of Contractor's failure to
comply with its obligations regarding maintenance, repair or replacement with the Facility or
property thereon, it may so notify the Contractor in writing but is not obligated to do so. Failure
of the State to notify Contractor shall not relieve Contractor of its obligations hereunder. In the
event the State is required to provide written notice of said failure pursuant to Section 9.l(c), the
Contractor shall promptly comply with its obligation within the time specified by the State in the
notice. If Contractor fails to effect said maintenance, repair or replacement within the time
specified in said notice, the State may, but is not obligated, to do the following :
(a)

the state may effect the maintenance, repair, or replacement and withhold the

expense of such main tenance, repair or replacement from amounts due the Contractor; and/or
(b )

avail itself of any or all of the remedies described in Article 9.

Section 3.12 Constructi on and Renov ation.
(a)

Contractor shall not modify, renovate, construct new buildings, add to existing

buildings, or modify any of the systems contained therein including but not limited to the boiler
plant, heating , air conditioning, security electroni cs, communications and utility services without
the prior written approval of the State. Said approval shall include a review of the proposed
modification by the Select Oversight Committee on Corrections and approval of the State
Building Commission where required by law, regulation or policy. All modification,
construction, and renovation requested by Contractor and approved by State shall be at
Contractor's expense, unless otherwise specified.

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(b)

The State reserves the right to construct additional buildings at the Facility and/or

to expand the capacity of existing buildings at the Facility. In the event the State exercises this
right, Contractor agrees:

i.

To cooperate with the State to the fullest extent possible;

ii,

That this Contract shall remain in full force and effect; and

Ill.

That Contractor shall accept an increase in the Inmate population under the
terms of this Contract with additional compensation to the Contractor
being described in Article 7.

Section 3.13 Utilities and Taxes. Contractor shall pay all taxes associated with this Contract
and utility costs of the Facility including but not limited to water, gas, sewage and electric
beginnin g on the Service Commencement Date . In the event ad valorem taxes are assessed
against property at the Facility not owned by the Contractor, the Contractor may seek additional
compensation pursuant to Section 7.5.

Section 3.14 Telecommunications. Contractor will provide, at its expense, all necessary
telecommunications equipment except the telephone system. Such equipment must be capable of
interfacing with the state existing communications and automated information systems and with
any future department systems. Contractor shall enter all required data on TOMIS.
The Contractor may make additions to or rearrange features of the telephone system as it
deems necessary, subject to written approval by the State. The Contractor must assure that the

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quality of workmanship and added components are of equal or greater quality to maintain system
integrity.
All cost incurred in connection with the telephone operations, but including additions,
labor, maintenance, repair, moves and changes.Tocal and long distance service, and training will
be paid directly by the Contractor.

Th e Inmate telephone system Contract will operate as in State's other correctional
facilities . All commissions will be paid to the State in conformance with the terms of the Inmate
telephone system Contract.

Section 3.15 Destruction of Facility.
(a)

If destruction of the Facility is caused in whole or part due to the Contractor's

negligence or due to Contractor's failure to perform its obli gations under this Contract, then the
State may seek reimbursement from Contractor for any damages sustained by the State.
(b)

In the event the Facility is destroyed in part for any reason, then the Contractor

remains obligated to fulfill its obl igati ons under this Contract to the extent such is possible in the
portion of the Facility that remains operational. The Contractor recognizes that the inability to
perform its obli gations due to the destruction may result in the State seeking a compensation
adjustment pursuant to Section 7.5.
(c)

In the event the Facility is destroyed such that the physical damage prevents the

housing and programming of the appropriate number of Inmates as determined by the
Commissioner in his sole judgment, then the State may terminate this Contract without penalty
eithe r immediately or within stages upon wri tten noti ce to the Contractor.

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ARTICLE 4
CONTRACT MONITORING

Section 4.1 Monitoring
(a)

The State has the right and authority under this Contract to monitor Contractor's

performance hereunder. Such monitoring shall include but not be limited to observing and
reporting on the day-to-day operational performance of the Contractor regarding compliance with
all terms and conditions of this Contract. Such monitoring or failure to monitor shall not relieve
Contractor of its responsibility, obligation and liability under this Contract.
(b)

The State, through its Contract Manag ement Unit, shall develop reporting

requirements for the Contractor that shall includ e but not be limited to weekly, monthly, and/or
quarterly reports on the following subjects : Inmate jobs and educati on, incident reports,
disciplinary reports , Inmate grievances , staff turnover, staff trainin g, employee grievances,
employee discipline, health care access, reclassifications, transfers, furloughs, releases, media
contacts, lawsuits, volunteers, drug audit s, cell searches, visitation, and maintenance. Also, an
emergen cy reporting process shall be established that shall address, at a minimum, segregation of
Inmates, use of force, and incidents which involve substantial risk to property, life, or
institutional security.
(c)

Contractor agrees to cooperate with the State, including any representatives of the

State, in the Contract monitoring effort of the State through such means as may be requested
from time to time , including, but not limited to the reportin g of information as requested. The
state and Contractor agree that the information collecting and monitorin g processes described in

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this Section 4.1, will be defined in the policies and procedures of the Tennessee Department of
Correction.

Section 4.2 Comparative Evaluation
(a)

The State has the right and authority under this Contract to compare the Contractor's

performance with comparable State facilities. The State has the right and authority under this
Contract to collect information to compare the cost and quality of services provided by the
Contract or with the cost and quality of service prov ided by the State at its comparable facility.
One purpose of said evaluation may be to collect inform ation to facilitate the State's
comparison of the cost and quality of services provided by Contractor at the Facility with the cost
and quality of services provided by the State at its comparable facilities.
(b)

Contractor agrees to cooperat e with the State, including any representatives of the

State, in any comparison of services unden aken by the state through such means as may be
requested from time to time, including, but not limited to, the provision of information.
(c)

The State and Contractor agree that the information collecting and comparative

evaluation processes, described in this Section, will be defined by the State at the time such a
compara tive evaluation is undertaken,

Section 4.3 Liaison
(a)

The State shall provide Liaison(s) to be located at the Facility. The Liaison(s) will

be an employee(s) of the Department and will be paid by the Department. The Contractor shall
have no contr ol over the activities of the Liaison(s), supervisory or otherwise.

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(b)

The Liaison(s) shall be the representative of the State at the Facility to monitor the

Contractor's compliance with the Contract. The Commissioner may also appoint the Liaison to
act as his designee. The Liaison may also have functions described inDepartment policies. The
Liaison may have other functions as provid ed by the Commissioner in writing.
(c)

Unless otherwise specified by the Commissioner in writing, the Liaison shall be the

designated recipient of all information required of the Contractor.
(d)

The individuals(s) acting as Liaison(s) may be changed during the term of the

Contract, at the discretion of the Commissioner.
(e)

The State hereby expressly disclaims that the Liaison or any other state employee or

official has any authority , apparent or otherwise, to bind the State under this Contract unless
expressly stated herein; provided, however, that the Commissioner shall have the same authority
granted any state employee under this Contract and the Commissioner retain s authority over the
Inmates and Facility which may not be delegated arlaw.

In addition to the Liaison(s) employed by the Department, the State may monitor the
Contract through other representatives of State as it deems appropriate. Such representative(s)
shall have the same right of access to information, the facility, Inmates, and Contractor's
employees and agents as set out herein for Liaison(s).

Section 4.4 Multiple Liaisons.
(a)

In the event that the Commissioner designates more than one (1) individual to act as

Liaison, the State shall provide the Contractor with a description of the Liaisons' levels of
authority in writing executed by the Commi ssioner.

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(b)

In the event the Contractor believes it is receiving conflicting instructions from the

Liaison (s) or that a Liaison is acting beyond his or her level of authority under the Contract or as
provided in subsection (a), the Contractor shall notify the Commissioner in writing. The written
response of the Commissioner shall be fmal.

Section 4.5 Office Space.
(a)

Contractor shall provide adequate office space and local telephone service for the

Liaison(s) and the staff of the Liaison(s), which may include a secretary , in close proximity to
other administrative offices.
(b)

Contractor shall also provide the Liaison and staff with access to all major office

equipment, at Contractor's expense.
(c)

Contractor shall not provide the Liaison(s) or Liaison staff with gifts or any form of

compensation at any time.

Section 4.6 Liaison Access.
(a)

The Liaison(s), shall have immediate, complete, and unrestricted access to all parts

of the Facility at any and all times.
(b)

The Liaison(s), shall have immediate, complete, and unrestricted access to all

documents in any way pertaining to the obligations of Contractor under this Contract, including
but not limited to Facility records , Inmate files, personnel files, and financial records . In the
event that any such document is not located on the facility site, upon request Contractor agrees to
provide the Liaison with a copy of the document within seventy-two (72) bours of the request.

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(c)

The Liaison(s) , shall have immediate, complete, and unrestricted access to all

meetings and hearings which in any way pertain to the obligations of Contractor under this
Contract. Contractor agrees to notify the Liaison of the time, place and agenda at least twentyfour (24) hours in advance of any such meeting or hearing, unless it is not reasonable to provide
said notice in which case the Liaison shall be notified simultaneously with the other participants;
provided, however, the Liaison may not have access to meetings between the Facility staff and
legal coun sel retained by Contractor unless permined by Contractor, but Contractor shall provide
the Liaison with written notice of said meeting identifying the participants within five (5) days
after said meeting.
(d)

The Liaison( s), shall have immediate, complete, and unrestricted access to all

Inmates and access at a reasonable time and place to all employees of Contractor, including but
not limited to the Warden.

Section 4.7 Meetin!!s with Liaison. Contractor agrees to hold regularly scheduled weekly
meetings with the Liaison to report on the operations of the Facility and to respond to any
questions raised by the Liaison. Said regular meetings shall be in addition to interim meetings
requested by the Liaison; provided, however, the frequency of such meetings is subject to
modification at the sole discretion of the State. Contractor agrees that a representative of the
Contractor having supervisory responsibility and authority to address the issues raised shall be in
anendance at said meetings. An agenda shall be developed for said weekly meetings and
Meeting Minute s shall be recorded and filed with the Contract Management Unit of the
Department of Correction.

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.-

Section 4.8 Requests for Information.
(a)

The Contractor shall provide the Liaison with written responses to any information

request ed by the Liaison or Commissioner concerning any aspect of Contractor's performance
under the Contract within the period prescribed in the State's request
(b)

The Contractor shall certify that said information is accurate and if Contractor is

unable to so certify then Contractor shall state the reason therefor.
(c)

Upon written request by the Liaison or Commissioner, the Contractor shall compile

information in the requested form and provide documentation substantiating said information.
(d)

Contractor shall not destroy any document related in any way to the Contractor's

performance under the Contract without the prior written consent of the Liaison .

Section 4.9 Routine Documents. The Contractor shall provide the Liaison upon request with a
copy of, or opporrunity to review, all routine documents generated by the Contractor
cont emporaneously with the dissemination of the docum ent. The Liaison shall notify the
Contractor in writing of the requested routine documents.

Section 4.10 State Inspection. The Commissioner or his/ber designee (s) shall have the same
access as described in Section 4.6, Liaison Access, which access shall include but not be limited
to persons designated by the Commissioner to inspect the facility and/or audit Facility and/or
Contractor's performance under the Contract. Contractor is also obligated to provi de appropriate
access to authoriz ed inspection and regulatory agencies. The Contractor shall exercise due

23

diligence for the safety and welfare of the Liaison, any other State employee, and any visitor at
the Facility.

Section 4.11 Irrunediate Compliance.
(a)

If the Commissioner determines that the Contractor is not operating in complian ce

with a term or cond ition of this Contract which in the opinion of the Commissioner may
adversely affect the security of the Facility or which may present a hazard to the safety or health
of Inmates of other individuals , the Contractor shall be notified in writing (or verbally if it is
belie ved an emergency situation exists). The notice shall direct the Contractor to immediately
correct the noncomplian ce.
(b)

The Contractor shall immediately notify the Commissioner of the proposed

corrective action. If the Commissioner does not object to the proposed corrective action, the
Contractor shall immediately implement said correcti ve action .
(c)

If the Commissioner disagrees with the proposed corrective action or if the

Contractor fails to notify the Commissioner immediately of its proposed correcti ve action, the
Commissioner shall specify corrective action which the Contractor shall immediately implement.
(d)

Notwithstanding any provision contained herein to the contrary, in such a

circumstance, the Contractor shall immediately implement the corrective action specified by the
Department before any appe al is taken .
(e)

In the event the Contractor disagrees with the determination of noncompliance or

designated corrective action, a request for reconsideration may be taken to the Commissioner. In
no event shall the corrective action be delayed pending appe al. Upon examinati on, if the

24

Commissioner determines in his sole discretion that a noncompliance did not exist or that the
corrective action required by the Department was excessive, the Commissioner shall authorize
payment to the Contractor of the actual expense incurred in taking said corrective action or
excessive corrective action upon receipt of appropriate documentation substantiating said
expense from the Contractor. All directions and actions by the Commissioner and actions by the
Contractor shall be recorded and reported in writing as soon as practical and filed with the
Contract Management Unit.

Section 4.12 Incident Reports. Contractor shall implement Department policy regarding the
reporting of incidents.

Section 4.13 Financial Statement. On or before April 1 of each year during the term of this
Contract, Contractor shall provide the Commissione r with a copy of its previous fiscal year's
audited annual financial statements.

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ARTICLES
OPERATION OF FACILITY

Section 5.1 Obli£ations of Contractor. Contractor agrees to perform all acts and services and
comply with all duties and promises as described and in conformance with the following:
(a)

all applicable constitutional standards, federal, state and local laws, court decisions,

and Court Orders and consent agreements, whethe r currently existing or as may be enacted or
rendered in the future;
(b)

all State and Departmental policies specified in Appendix C, as same may be

amended in writing by the Department during the term of this Contract, or in the discretion of the
Commissioner, policies approved by the Department which may not be identical to State or
Department policies;
(c)

such other policies as the Department may make applicable to the Contractor in

writing during the term of the Contract as same may be amended during the term of this
Contract;
(d)

ACA standards;

(e)

the terms of this Document;

(f)

the terms of the RFP; and

(g)

the terms of the Proposal.

The standards articulated in (a) through (g) shall hereinafter collectively be referred to as
"Standards."

26

Section 5.2 Obligations of State. State agrees to perform its obligations as described in this
Document and the RFP. Notwithstanding any provision contained herein to the contrary, the
parties agree that the State incurs no obligations as may be contained

in the Proposal.

Section 5.3 Conflicts.
(a)

In the event of an irreconcilable conflict among the Standards, the Contractor is

required to follo w the Standard as determined by the Liaison.
(b)

In the event of disagreement between the Contractor and the Liaison regarding

which item provides the Standard of service, the Commissioner or his designee shall make the
final decision.
(c)

Appro val by the State of any policy or procedure submitted by the Contractor which

may deviate from the Standards shall not relieve Contractor of the obli gation to follow the
Standards.
(d)

In the event of conflicts between the RFP and this Document regarding the State's

obligations, the State shall comply with this Document.

Section 5.4 Poli cy and Procedure s Manual. The Contractor, on or before January IS, 1997, shall
pro vide the State with a written Policy and Procedures Manual which shall contain policies and
procedures for all services to be rendered by Contractor in accordance with the Standards. Said
manual shall establish the policies and procedures the Contractor shall follow in all areas covered
by this Contract, including the areas covered by the Department policies listed in Appendix C.
Said manual shall be subj ect to the wri tten approval of the State and said manual shal l not be

27

altered, amended, modified, revised or supplemented without the prior written approval by the
State. The Contractor shall implement the provisions of said manual throughout the term of this
Contract.

Section 5.5 Assil!l1IIlent and Transfer of Inmates .
(a)

Inmates will be assigned to the Facility in accordance with Department policies.

Contractor may not refuse to accept any Inmate assigned to the Facility , but if the Contractor
believes that an Inmate has been erroneously assigned to the Facility, it may request his transfer
in writing, through the Liaison citing the appropriate sections of Department policy. Any
decision by the Department on such request shall be final.
(b)

Contractor's requests for reassignment of Inmates from the Facility to another

instituti on for medical, psychiatric, disciplinary or administrative reasons or for Inmate furloughs
will be made in writing through the Liaison and evaluated by the Department. Any decision by
the Depart ment on such request shall be final ,
(c)

The State may transfer Inmates from the Facility with said decision to transfer being

within the State's sole discretion.

Section 5.6 Safety and Emer!!encv Procedures,
(a)

The Contractor, or before January 15, 1997, shall develop and submit (I ) written

riot and disturbance control contingency plans, and (2) disaster preparedness plans to the State.
Contractor shall cooperate with State in preparing contingent Inmate relocation plans .

28

(b)

At a minimum, the Contractor shall implement the written guidelines for the

prevention of fire, safety inspections, maintenance of flre alarm and smoke detection systems,
fire evacuation drills, evacuation plans, a procedure to report job-related injuries, and provisions
for testing equipment to maintain essential lighting, power and communications contained in its
. Proposal. All such procedures will comply with National Fire Protection Association life safety
codes and Department Policies 112.04 and 112.05.
(c)

The Contractor shall develop and submit to the State plans for the search and

apprehension of any escaped Inmate , on or before January 15, 1997. Said plans shall address the
Contractor searching for any escapee off the grounds of the Facility and coordination with local
and State authorities. Contractor shall implement said plans regarding any search off the grounds
of the Facility only if so requested by the Commissioner.
(d)

During the term of the Contract, the Contractor shall develop and submit to the State

in writing any other emergency and control plans as may be requested in writing by the
Department within the time period set out in said request.
(e)

All plans under this Section must be submitted to the State and approved by the

State in writing. Contractor agrees to make any revisions, deletions or additions requested by the
Commissioner or his designee. Upon written approval by the State, Contractor shall begin
immediate implementation of the plans or in the case of contingency plans, certify that
Contractor has the ability and shall implement the plan if the contingency occurs. Said plans may
not be revised, amended, altered, or supplemented without prior written consent of the State.
(I)

All plans must be in conformance with the Standards.

29

Section 5.7 Medical and Mental Health Services.
(a)

Contractor shall provide all physical health services , mental health services and

dental services as specified in this Section and in the Standards utilizing Department health
services medical records forms and mental health service forms, as said forms may be revised or
supplemented during the term of this ContracL
(b)

At a minimum, these services must meet the Standards.

(cl

The physical health, mental health, and dental services shall include but not be

limited to the following:
a.

24 hour-a-day, 7 day-a-week emergency physical health and mental health
care;

b.

24 hour-a-day, 7 day-a-week on-site RN coverage

c.

initial health screening;

d.

health appraisal examination;

e.

daily triaging of complaints;

f.

daily sick call per normal workday schedule;

g.

infirmary operation with at least supervision by an RN twenty-four hours per
day, seven days per week (NOTE: Facility has a 12 bed infirmary, but
inpatient hospital and surgical services will be provided and/or arranged to be
provided outside of the institution.);

h.

use of the Department health record;

1.

special medical programs and services for, but not limited to, Inmates with
chronic needs or requiring convalescent care;

30

j.

mental health, sex offender screening and aftercare, and substance abuse
services:
1.

Mental Health. Provide up to sixty-eight (68) mental health psychiatric

transition beds, single celled (or double celled upon c~cal and administrative
approval), for Inmates who are mentally or emotionally disturbed . This group
of Inmates will encompass those who have completed a more intensive
program at the Lois M. DeBerry Special Needs Facility (DSNF) and are not
yet ready to be assimilated in a general population - step down capability. It
will also include a step up capability for those who cannot function adequately
in a general population but do not require as intensive treatm ent as that

provided at DSNF. Diagnos tic asses sments, psychopharmacological
management, job s, prograrruning activi ties, counseling and support groups
should be provided in this housing unit. This program will serve Inmates from
across the State.
Admission criteria to this unit for Inmates coming out of the DSNF
for step down purposes will include:

1. A comprehensive discharge summary from the sending treatment
providers,
2. Global Assessment of Functional Scale between 31 and 50,
3. Ability to participate in structured activities for longer than two
hours, stabilized on medication,
4. Ability to function in group activity with minimal supervision,

31

5. Ability to participate in some unsupervised movement outside tbe
unit, or
7. Considered by tbe instituti onal psychology staff to be in need of
structured treatment.
Admission criteria to this unit for Inmates utilizing its step up capacity will be
as follows :
J. A comprehensive discharge summary from tbe sending treatment
providers,
2. Inability to participate in structured activities ,
3. Not stabilized on medication, or
4. Inability to participate in unsupervi sed movement.
5. May present periodi c episodes of emotional and/or behavioral
misconduct related to a disorder.
Discharge criteria:
J. Demonstrates ability to remain compliant witb medication (s), if
applicable,
2. Ability to function in a general population environment as
determined by tbe treatment team,
3. Meets criteria for admission into tbe DSNF, or
4. Direct parole/discharge from TDOC custody.
2.

Sex Offender. A sex offender aftercare treatment program tbat

conforms to tbe department 's policies and procedures shall be provided by

32

Contractor. Screens shall be provided for the purpose of placement into the
Department's intensive treatment program.
3. Substance Abuse . Substance abuse programming that emphasizes relapse
prevention and provides for after-care or self-help treatment services shall be
provided by Contractor.
k,

Specialty physician care. Upon the Contractor' s request, the State may in its
sole discretion allow the Contractor to use the on-site specialty services at the
DSNF. The Contractor shall pay the State for sj)t'. dalty care acco rding to the
State's fee schedule for speci alty services.

I.

ancill ary services - radiol ogy, laboratory, etc.

m.

dental services - routine

n.

pharmaceutical services and supp lies. Upon the Contractor' s request, the
State may, in its sole discretion, allow the Contractor to purchase
pharmaceutical services and supplies through the Department's pharmacy.
The Contractor shall pay the State for such items at the State's cost plus a
dispensing fee of $2.50 per prescription.

o.

optometric services (provided on-site)

p.

health education

q.

inpatient hospitalization services (utilizing the 1DOC Contract hospital
wherever possible)

r.

(d)

outpatient hospitaliz ation services

The Contractor shall furnish eyeglasses, bearing aids, and denture s.

33

(e)

In the event it is the opinion of the Contractor's Medical Director that an Inmate's

health or well-being would suffer or be damaged if a needed prosthesis is denied the Inmate, then
said prosthesis shall be provided by the Contractor.
(f)

The Contractor shall be responsible for security services for inpatient care during

confinement period for which the Contractor is financially responsible, other than at a
Departmental facility . Contractor shall provide security at an off site medical facility after the
Department assumes responsibility, if requested to do so by the Department at the following
costs:
Year 1

$14.92 per officer/per hour

Year 2

$ I5.40 per officer/per hour

Year 3

$15.91 per officer/per hour

Year 4 (option)

$16.4 2 per officer/per hour

Year 5 (option)

$16.96 per officer/per hour

(g)

Notwithstanding any provision contained herein to the contrary, the Contractor shall

be responsible for the cost of providing all health, medical, mental health, and dental services,
including but not limited to inpatient hospitalization, any surgery and specialty services,
medications, specialty clinics, medically related transportation and the costs associated with the
provision of services described in this section unless specifically excluded or limited below
under EXCLUSIONS AND LIMITATIONS.
(h)

EXCLUSIONS AND LIMITATIONS. .

a.

If the inmate is hospitalized at a non-Departmental facility, the Contractor
shall not be responsible for Inpatient-Hospital Costs which exceed S4000.00

34

per Inmate per admission or for costs incurred after the third day of
hospitalization, whichever comes first, The Department will decide on the
location of care and confinement following this initial period and may, in
consultation with the Contractor's representative, decide to utilize
Departmental facilities during the initial period of inpatient care. The
Contractor shall not have access to the Department's facilities without the
Department's approval. If an inmate is housed and treated at a Departmental
facility, the Department will assume financial responsibility for expenses
incurred within its facilities. Provided, however, notwithstanding any
provision contained herein to the contrary, any Inmate medical expenses
resulting from the negligence or willful wrongdoing of the Contractor, its
officers, agents or employees, shall be fully paid for by the Contractor.
2.

The Contractor shall not be responsible for Inpatient-Hospital Costs , including
any surgery and specialty services, associated with the treatment of persons
with Acquired Immune Deficiency Syndrome (AIDS), as defined by the
Centers for Disease Control. The Contractor shall be responsible for
hospitalization costs associated with other Human Immunodeficiency Virus
(HIV) infected patients.

3.

The Contractor shall not be responsible for the cost of providing AZT, or other
medications therapeutically indicated for the treatment of Inmates with AIDS
or HJV infection. Such treatment shall be at the Department's discretion and
expense.

35

Section 5.8 Food Service.
(a)

Contractor will provide food service for the Inmates and volunteers in accordance

with the Standards including but not limited to the provision of special diets for medical or
religious requirements and three (3) meals for each Inmate served at regular times during each
twenty-four (24) hour period with no more than fourteen (14) hours between the evening mealand breakfast.
(b)

The Contractor shall not be required to follow the Department's master menu, but

the food service area must comply with State health regulations. At a minimum the amount of
daily calories must conform with the recommended dietary allowances published by the National
Academy of Sciences. Menu s shall be approved by a registered dietician. Menus and dietary
allowances shall be filed with the Contract Management Unit.

Section 5.9 Laund ry. Inmate
(a)

Clothin~

and Hyl!iene.

Contract or will provide complete Inrriate laundry services, Inrriate clothing and bed

linen (including pillows, pillow cases, sheets, blankets), and towels in accordance with the
Standards.
(b)

Contractor shall implement the procedures described in the Proposal to ensure the

issue of clean, usable bed linen, towels , shoes and clothing to all Inmates.
(c)

Contractor shall provide Indigent Inmates with soap, toothbrush, toothpaste, comb,

deodorant, and all other necessary hygiene supplies.
(d)

Inrriate clothing shall meet the Department's specifications, including but not limited

to specifications related to quality and strength of materials.

36

Section 5.10 Recreation.
(a)

Consistent with the Standards, the Contractor shall provide facilities, equipment and

supplies for indoor and outdoor recreational and leisure .time programs for the Inmate population.
(b)

Contractor shall provide for a comprehensive recreational program supervised by a

qualified person and shall set forth the number of hours of outdoor recreation available to each
Inmate. On or before January IS, 1997, Contractor shall submit to the Department written policy
and procedure which shal l provid e the specifics of said program and shall be subject to the prior
written appro val of the State.

Section 5.11 Transportation.
(a)

The Contractor will be responsible for the following Inmate transportation:
I.

All transportation between the Facility and the State's Turney Center located

in Only, Tennessee to connect with central transportation system vehicles, to include
transportation of Inmat es initiall y assigned to the Facility and other Inmates being
transferred to and from the Facility for various reasons.
2.

All transportation within the Local Area; and

3.

Transportation outside the Local Area, as necessary, when the Department's

central tran sportation is unavailable or time restricts interinstitutional transfer,
including but not limited to administrative transfers initiated by the Warden and
approved by the Commissioner's designee, and missed or late notification of court
dates.

37

(b)

The Contractor shall provide security in conformance with the Standards while

transporting Inmates.
(c)

The Department will be responsible for all other Inmate transportation via

connection at Tumey Center Industrial Prison for Department-mandated moves of prisoner
groups for assignment purposes.

Section 5.12 Inmate Commi ssary.
(a)

Contractor will provide a commissary for Inmates which shall supply only those

non-eonsumable items approved by the Department in writing and such consumable items as the
Contractor approves .
(b)

Th e Contractor may not have items in the Commissary which are prohibited by

Departmental policy.
(c)

Commissary items shall be sold at a reason able price subject to the prior wrinen

approval by the Commissioner or his designee. All profits derived from the Commissary
operation shall be retained by Contractor. Contractor shall utilize the automated system for all
commissary transactions.

Section 5.13 Mail. Contractor will provide pick up and delivery of Inmate mail in compliance
with the Standards. Contractor will furnish first class postage to indigent Inmates for the mailing
of legal documents to courts or legal counsel and a reasonable amount of postage for other
purposes .

38

Section 5.14 Religious Services. Contractor will designate adequate space within the Facility
for religious services and pro vide religious programs and/or religious services in compliance
with the Standards.

Section 5.15 Inmate Grievance Procedure. Contractor will utilize Departmental policies
regardin g Inmate grievance procedure and the Department's system for maintaining grievance
related reco rds, as said policies and/or system may be revised during the term of this Contract.

Section 5.16 Security.
(a)

Contractor shall provide Inm ate securi ty in accordance with the Standards at all

times in the Fac ility, and while Contractor is transportin g Inmates and at all other times unles s
relieved of said obligation by the Commissione r in writing. Al l policies and procedures
regarding security shall be provided to the State on or before January I S, 1997. Said policies and
procedures shall be in accordance with the Standards and subject to wri nen approval by the State
prior to implementation. Contractor shall comply with said poli cies and procedures during the
term of thi s Contract. All Inmate program activities in accordance with the Standards shall take
place within the Facility. No Inmate shall leave the Facility except under security escort unless
provided for by Department policy.
(b)

At a minimum, the Contractor shall provide security, perimeter control, facility

control, control center fun ction, post orders, security patrols, security inspections, counting
procedures, key control, procedure for search and control of contraband, tool control, escape plan
detection, appropriate use of securi ty equ ipment, use of restraints, use of firearms and chemical

39

agents, tactical unit procedure, inspections, housing unit assignment plans and internal and
external movement control procedures and periodic shakedowns. Security procedures will be in
compliance with Departmental policy when applicable.

Section 5. I7 Visitation. Contractor shall designate physical space and provide appropriate
security and supervision for indoor and outdoor visitation in accordance with applicable
Standards, no less frequently than at comparable Department facilities . Contractor shall furnish
State with a written attorney visitation policy no later than January 15, 1997.

Section 5. I8 Access to Courts. Contractor shall provide Inmates with constirutionally required
access to the courts as required by the Standards.

Section 5.19 Inmate Discipline.
(a)

The Contract or shall implement Department Inmate disciplinary rules and

procedures as they may be amended by the Department.
(b)

All discipl inary processes and board activities must strictly adhere to Department

Policies 9502-01, 502.01.1, 9502.02, 502.04, and 502.05 .
(c)

Contractor agrees that no Inmate will be disciplined except as in accordance with

this Section.
(d)

The Contractor shall use the present or any future system established by the

Department for recording disciplinary information.

40

Section 5.20 Use of Force.
(a)

The Contractor shall submit to the State written policies and procedures regarding

appropriate use of force in accordance with the Standards on or before January 15,1997. Said
policies and procedures shall be subject to revision and written approval by the Stale.
(b)

Notwithstanding any provision contained herein to the contrary, no use of force shall

be allowed by Contractor except as in accordance with the Standards.
(c)

Contractor's employees shall be allowed to use force only
I.

While on the grounds of the Facility;

2.

While transporting Inmates;

3.

During periods of community hospitalization;

4.

During court proceedings;

5.

While pursuing escapees from the Facility if the Commissioner requests said
pursui t; and

6.

While supervising Inmates off the Facility and then only in accordance with
the policies and procedures described in (a) and (b) above.

(d)

Contractor's employees shall be authorized to use such non-deadly force as the

circumstances require only in the following situations:
1.

To prevent the commission of a felony or misdemeanor, including escape;

2.

To defend themselves or others against physical assault;

3.

To prevent serious damage to property;

4.

To enforce institutional regulations and orders; and

5.

To prevent or quell a riot or disrurbance.

41

(e)

Contractor's employees shall he authorized and trained to use deadly force in

accordance with the Standards. The Contractor's employees authorized to use firearms must at a
minimum meet the qualifications set forth in T.C.A. § 62-35-117. Deadly.force may he used
only as a last resort and then may he used only to prevent escape, to prevent the loss of life or
serious bodily harm, or to quell a mutiny, rebellion, riot, or disturbance in which loss of life or
serious injury to an individual is imminent. Only those employees who are appropriately trained
and , if applicable, authorized by law shall he authorized to carry and use firearms .

Section 5.21 Sentence Reduction Credits.
(a)

Contractor shall submit sentence credit reports to the Contract Liaison monthly.

(b)

The decision on award or forfeiture of sentence credits remains solely with the

Depanment.

Section 5.22 Sentence Computation. Contractor shall provide the State with essential data and
information relating to sentence computation. All sentence computations, including calculation
of Inmate release and parole dates, shall he done by the Department and copies furnished to
Contractor and Inmates. All other record keeping functions (e.g. posting of disciplinary reports.
filing, updating Inmate assignments, custody levels, etc.) are the responsibility of the Contractor.

Section 5.23 Records and Reports.
(a)

Contractor shall provide for comprehensive operations and Inmate record and

reponing systems for the Facility in compliance with the Standards and Department policy

42

-,

r-

including the automated Inmate records and reporting system operated by the Department which
shall include but not be limited to the following:
(i)

Inmate institutional records on each Inmate including, but not limited to,
personal data, personal inventory receipts, disciplinary action reports, incident
reports, release information, classification and counseling records, dental,
psychiatric and medical records.

(ii)

documentation regarding complaints against Contractor's staff, the number
and nature of violent or other disruptive incidents among Inmates or against
staff, the number and nature of disciplinary actions against staff, the rate at
which Inmates complete programs successfully, the number of Inmates
productivel y active and the level of production;

(iii)

identification of all Inmates at the Facility and their actual assigned physical
location within the Facility;

(iv)

identification of Facility staff and other authorized persons who have direct
access to Inmate records; and

(v)

provision of all reports requested by the State in writing for monitoring or
evaluation of the Contract or any court-ordered compliance.

The system shall adhere to the Standards governing confidentiality.
(b)

The Contractor shall maintain a permanent log in addition to shift reports that record

routine and emergency situations. Each shift should maintain records of pertinent information
regarding individual Inmates and groups of Inmates . These records shall be compiled daily and
reviewed by appropriate supervisory staff.

43

(c)

All computer equipment and communication lines necessary to interface with the

Department's Tennessee Offender Management Information System (fOMIS) will be provided
by the Department at no cost to the Contractor.
(d)

Contractor will be required to incorporate into its operation all new systems

developed to report and track Inmate record information designated by the Commissioner.
(e)

Upon requ est, all records, reports and documents will be made available

immediately to the Contract Liaison for review. At the conclusion of the Contract, all records
shall be turned over to the Department.
(f)

The Contractor shall prepare and submit to the Contract Liaison such reports as are

required by the Stat e. Unle ss otherwise notified in writing by the Contract Liaison, these reports
inclu de the followi ng which must be Submitted on a monthly basis:
(i)

Unu sual Occurrence Reports

(ii)

Incident Repo rts

(iii)

Disciplinary Reports

(iv)

Medical Summaries

(v)

Program Activity Summaries

Contractor shal l promptly notify the Contract Liaison wh enever an Inmate leav es the Facili ty on
court order.

Section 5.24 Escapes.
(a)

Th e Contractor shall exercise its best efforts to prevent escapes from the Facility. If

the frequency of escapes or nearly successful attempted escapes shall be in excess of the

44

frequency of escapes or nearly successful escapes from comparable State facilities without good
cause or shall exhibit a disregard for the safety of the general public, the State may declare the
Contractor in Breach pursuant to Article 9. Said determinations shall be within the sole judgment
of the Commissioner.

(b) . In the event of an escape resulting in whole or part from Contractor's failure to
perform pursuant to the provisions of this Contract, the State may seek damages in a court of
competent jurisdiction.

Section 5.25 Post Ord ers.
(a)

Contractor shall develop and submit to the State, as soon as each is available, but no

later than January 15, 1997 , Pos t Orders required by this Contract in compliance with the
Standards.

(b)

Po st Ord ers shall be by post and shift and shall include Post Orders for all security

positions.

Section 5.26 Policy Audit. Contractor shall be audited, using personnel independent from the
Contractor, at least annually, concerning the implementation of at least those policies and
procedures listed in Appendix C. The implementation will be in compliance with Tennessee
Department of Correction Policies 103.07 and the Contractor will respond as required. In the
event the audits reveals a Breach (as defmed in Section 9.1) by the Contractor, the State shall
have available the remedies set out in Article 9.

45

Section 5.27 Inmate Work.
(a)

The Contractor shall establish work programs in accordance with the Standards.

(b)

Inmate programming is subject to the written approval of the .Commissioner

pursuant to T.C .A. § 4 1-24- 110 or as the same may be modified or amended in the future.
(c)

AIty minimum restricted or higher custody Inmate working outside the secured

perimeter must be under armed supervision.
(d)

Th e Contractor will be allowed to use Inmate labor for Facility operations and

maintenance to the same extent Inmate labor is utilized in other State facilities pursuant to State
policy and not for the benefit of the Contractor. The Contractor shall submit Inma te job
descriptions for the State's writte n appro val via TOMIS before assigning jobs to Inmates. Job
assignments and re-assignments shall be made by the Contractor only after the job description
has been approved in writing by the State. No Inmate shall ever be placed in a position of
authority or contro l over another.
(e)

In emergency situations, the Department, in its sole discretion, may require the

Contractor to furni sh Inmates and security for outside work crews. Labor costs of security
services associated therewith shall be compensated as follows:
Year I

$14.92 per officer/per hour

Year 2

$15.40 per officer/per hour

Year 3

$15 .91 per officer/per hour

Year 4 (option)

$16.42 per officer/per hour

Year 4 (option)

$16.96 per officer/per hour

plus expenses and cost of operation.

46

(f)

Inmates shall not perform services or produce goods for use outside the Facility

except upon written consent of the Commissioner.
(g)

The Department shall provide Inmates with sentence reducti<?n credit. The

Contractor shall be responsible for establishing and administering a compensation program at its
expense, which will include Inmate pay in compliance with the Standards.

Section 5.28 Industries. TRICOR currently has in place at the Facility an industry program that
provides approximately 70 Inmate jobs. The Contractor may negotiate with TRICOR for the
conti nuation or expan sion of the TRICOR industry program at the Facility. In the event the
Contractor chooses not to use the Inmate jobs provided through TRICOR industry program, the
Contractor shall be responsible for all costs associated with the transfer of the program to another
facility or the termination of the program at the Facility as elected by the State, including but not
limited to costs of development of a relocation plan, physical relocation of equipment and raw
materials, installation of equipment at new site(s) , lost production, lost sales , relocation of staff,
recruitment of staff, retraining of work force, renovation of new site(s), and vendor contract
costs. Security for such industry program(s) shall be provided by the Contractor. Industry
supervision for TRICOR programs shall be provided by the State.

Section 5.29 Vocational and Academic Training. Contractor shall furni sh vocational and
academic training as set forth in the Standards, at its expense.

47

Section 5.30 Classification and Case Manae:ement.
(a)

Contractor shall comply with Departmental policies regarding classification and

reclassification services.
(b)

Contractor shall be required to maintain classification information which conforms

to the Department's system.

Section 5.32 Inmat e Tru st Fund . Contractor shall maintain an Inmate trust fund according to
Department polici es and shall implement the plan contained in its Proposal governing use of the
Department's trust fund procedures.

Section 5.33 Sanitation and Hvzien e, The Con tractor shal l provide for sanitation and hygiene in
accordance with the Standards.

Section 5.34 Comouter Software. The State shall retain proprietary rights to all State provided
software utilized in connection with this Contract.

Section 5.35 Inmate Drug Testing. Contractor will conduct drug tests in accordance with
Department Policy 506.21. Contractor be will be responsible for all costs. All positive drug
screens shall be confumed through a second methodology. Selection of Inmates to be tested at
random will be the responsibility of the Department.

48

Section 5.36 Resumption of Control.
(a)

Contractor shall review and comm ent on the Department's plan for resumption of

control within 15 days following its receipt by the Contractor. The plan ~ill provide for the
orderly transfer of control of the Facility from the Contractor to the Department, both
temporarily, and under any conditions of termination. Contractor agrees to implement said plan
upon written notice from Commissioner.
(b)

Said plan will also provide for emergency assumption of control by the Department

of whole or part of the Facility under conditions of natural disaster, in the event of riot or
insurrect ion or other emergency circumstances wherein the Commi ssioner deems it necessary for
the State to assume temporary or permanent control of the Facility. The Commissioner shall
determine whether and to what extent an emerge ncy circumstance exists in his sole discretion.
Contractor shall be responsible for any expense the State may incur in the event the Department
assumes emergency control of the Facility and the Contractor's payment shall be reduced
commensurate with the reduction in services provided by Contractor during the emergency
period. The State may withhold these amounts from any other amounts which may otherwise be
due Contractor. The plan shall address Contractor's resumption of control after the
circumstances causing the emergency assumption has ended. Th e plan will provide for the
transfer of all records to the Department.

Section 5.37 Accreditation. The Contractor shall maintain, at its expense, ACA re-accreditation
of the Facility.

49

Section 5.38 Inmate and Staff Identification. Contractor shall comply with the procedures in the
Standards for Inmate and staff identification including but not limited to, uniforms, fingerprinting
and photographing.

Section 5.39 Inmate Personal Propertv Space. Contractor shall follow Department policy on
Inmate personal property.

Section 5,40 Librarv. A general Inmate library will be provided and maintained by Contractor in
accordance with the Standards.

Section 5,41 Volunteer Services. Contractor shall implement the plans provided for volunteer
service programs described in the Prop osal in accordance with the Standards. At a minimum, the
Contractor shal l provide for supervision and monitoring of the program and security background
checks for volunteer applicants. Contractor shall establish and maintain a Local Volunteer
Advisory Board.

Section 5,42 Release Pavrnents for Inmates. The Contractor shall follow Departmental policy
regarding transportation for discharged Inmates and discharge payments to said Inmates. The
Contractor shall make such payments at its own expense without reimbursement from the State.

Section 5,43 Space for Board of ParoJesJInstitutional Parole Officer. Contractor shall provide a
hearing room for the Board of Paroles two (2) days per month or as otherwise requested by the

50

Board. The hearing room shall be large enough to comfortably accommodate three (3) Board
members and fifteen (15) visitors . The Contractor shall provide local telephone service and
furniture for the hearing room. The Contractor shall also provide furnished office space five (5)
days each month, or as otherwi se requested by the Board, for the institutional parole officer.

51

ARTICLE 6
STAFFINGIEMPLOYEES

Section 6.1 Independen t Contractor Contractor is associated with the State only for the purposes
and to the extent set forth in this Contract. With respect to the performance of the management
services set out herein, Contractor is and shall be an independent Contractor. Th e Contractor's
agents and employees shall not accrue leave, retirement, insurance, bonding, use of State vehicles
or any other benefit afforded to the employees of the State as a result of this Contract.
Contractor, its agents and employees shall not be con sidered agents or employees of the State.

Section 6.2 Executive Officer. The Facility and its programs shall be managed by a single
executive officer employed by the Contractor (sometimes referred to herein as "Warden"). The
executive officer shall be subject to the prior written appro val of the State.

Section 6.3 Orzanization. The Facility shall be managed according to the organizational chart
submined with the Proposal. Any modification or alteration to the management plan shown on
said chart shall require the prior written approval of the State .

Section 6.4 Personnel. Notw ithstanding any provision contained herein to the contrary,
Contractor shall provide adequ ate staff to fulfill its obli gations under this Contract, which shall
be at a minimum the number of staff set forth in the Proposal. Security staff vacancies shall be
filled within thirty (30) days and all other vacancies shall be filled in forty-five (45) days;

52

provided, however, that during the period of any vacancy, the services associated with said
position shall be provided by Contractor unless the Commissioner has agreed in writing to the
contrary with a reduction in the per diem rate as defined in Section 7.5. '

Section 6.5 Staffin!! Pattern/Security Post Assi=ent. NOTE: Prior to Contract Execution, the
State retains the unilateral right to require clarifications or revisions to any Proposal regarding
security and said clarifications or revisions shall be at no cost to the State.
(a)

Contractor shall provide sufficient staff to ensure the appropriate supervision of

Inmates at all times and at a minimum shall abide by and fulfill the staffing pattern submitted
with its Proposal.
(b )

At a minimum, Contractor shall abide by and fulfill the security po st assignment

schedule in its Proposal which details by day and shift the security positions and hours of work.
Said security post assignment schedule shall include designation of critical posts. The Contractor
shall submit Post Orders and a security post assignment roster for the prior wrinen approval of
the State.
(c)

Contractor shall develop and submit to the Liaison on or before the twentieth (20th)

of each month , its written monthl y post assignment schedule for the following month.
(d)

After Contract execution, if the State determines at any time that the staffing pattern

andlor security post assignment schedule is inadequate, the Contractor agrees to place additional
employees at the Facility andlor revise and implement the revisions to its staffing pattern and
security post assignment. If Contractor is required to increase staff, it may request an adjustment
in the per diem pursuant to Section 7.5.

53

(e)

Ariy revisions to the staffing pattern and/or security post assignment require the prior

written approval of the State. Contractor shall submit monthly staffmg reports on or before the
fifteenth (15th) of each month describing for the preceding month whether and to what extent
Contractor has complied with the staffmg pattern , security post assignment, and monthly post
assignment. Staffmg patterns are determined by securityand program requirements and
associated workloads. If changed circumstances modify those requirements or workloads the
Contractor and/or the State will review those changed circumstances and a formal review will
determine any changes in staffing requirements at the sole discretion of the State.

Section 6.6 Job Descriptions.
(a)

Contract or shall abide by the written job descriptions for each position in the staffing

pattern as provided in the Proposal, including but not limited to job title, responsibility and
required minimu m experience and education.
(b)

An y revisions or modifications of the job descriptions require the prior written

approval of the State.

Section 6.7 Personnel Records. A personnel record shall be maintained for each employee at the
Facility which at a minimum shall contain the following: application. background investigation,
dates of employment, training, performance evaluations, and disciplinary actions. The
Contractor shall obtain a signed statement from each employee authorizing the State to have
access to the personnel record.

54

Section 6.8 Staffing Reports. On or before the fifth (5th) day of each month, Contractor shall
submit a report to the Liaison providing the following information:
(a)

the number of employees hired, indicating position, the date of termination and the

date the post became unstaffed;
(b)

the number of employees whose employment had been terminated for whatever

reason whether voluntarily or involuntary, including reason for termination and position;
(c)

whether any position on the staffing pattern was vacant and for how many days; and

(d)

types and hours of training provided by position.

Section 6.9 Reduction in Staff.
(a)

Contractor shall immediately notify the Liaison if any positions on the staffing

pattern are vacant.
(b)

If a position described in subsection (a) remains vacant in excess of the time allowed

in Section 6.4, then the State shall have the option of exercising the remedies available in
Article 9.

Section 6.10 Background Checks. Prior to employment with Contractor, applicants shall be
subjected to a thorough background investigation, including criminal , employment, and medical
histories . The background investigation for applicants for correctional officer positions shall also
include psychol ogical history. Criminal and employment histories must go back a minimum of
five (5) years. Said background investigations shall be available to the State upon request. The
State shall not provide NCIC background checks.

55

Section 6.1 1 HiriM Preference. Department employees who have been laid off shall also be
given a hiring preference in the staffing of the Facility according to T.C.A. § 41-24-101, et g;g,
and shal l comply with T.C.A. §§ Sections 41-24-112 and 41-24-113 in' all respects, as those
sections may be modified or amended in the future.

Section 6.12 State Assistance in Training.
(a)

During the term of the Contract, Contractor shall send a repres entative to participate

in periodic meetings regarding Departmental acti vities and shall send a representative to sessions
in which relevant policy modifications are being discuss ed or presented.
(b)

Contractor shall receive written notice of the time, place and agenda of the meetings

or sessions described in subsection (a) at the same time Department employees are provided
notice.
(c)

Said meeting s or sessions shall be held within the State and Contractor shall bear

any and all expense associated with its representative being present.
(d)

The Department shall suppl y Contractor with technical assistance, consultation and

informational support con sistent with that provided other comparable institutions in accordance
with the Standards provid ed, however, said support shall consist solely of advice and
consultation.

Section. 6.13 Training. Contractor shall provide training programs for all employees in
accordan ce with the Standards. All costs incurred for said orientation and training programs

56

shall be born e by Contractor. The Contractor's employees shall receive at leas t the sam e number
of hours of orientation, pre-service, and in-service training as required by AC A standards.

The Co ntractor shall provide documentation to the Co ntract Liais on of all completed
empl oyee trai ning as soon as possible after its completion. The Liaison shall be permitted to
review training curricul a and other training-related records and to audit training classes at any
time.
The Contractor shall comply with T.C. A. § 4-6- 143 inclu ding but not limited to
compensation for teachers.

Section 6.14 Drue Free Wo rk Force. Contractor shall at all times attempt to maintain a drug free
ork force for maintenance of a drug free work force and the employee assistance program

vo/

described in its Proposal.

'--_---- J-sh~l( i""Fl~w·r-t

t he plcN { Dt-I +a ;tI,..J

57

t'.....>

;LI

?r"p-s~1

ARTICLE 7
COMPENSATION AND ADJU STMENTS

Section 7.1 Manal!ement Payment. The State shall pay the Contractor a Per Diem Rate per
Inmate Day as follows :

Period

Rate 1 to 1506 Inmates

02/28/97 to 06130197

$32.26

07/01/97 to 06/30/98

$32.26

07/0 1198 to 06/30/99

$33.31

07/0 1/99 to 02/29/00

$34 .40

03/01/00 to 06/30100*

$34.40

07/01/00 to 06/30101 *

$35.51

07/01101 to 02128/02*

$36 .67

*Opllon Period

In the event the State exercises its right to construct additional buildings at the Facility and/or to
expand the capacity of existing buildings at the Facility, the parties will negotiate a Per Diem
Rate for such additional Inmates, it being the intent of the parties that the State will pay only the
marginal costs for such additional Inmates .

Section 7.2 Per Diem . The Per Diem payment will be made only for Inmates actually
incarcerated at the Facility , except Per Diem payment shall be made for any Inmate hospitalized
at a state departmental Facility during the period whe n the Contractor is responsible for said
hospitalization expense. No Per Diem shall be paid for any Inmate out on court order.
58

Section 7.3 Billinzs. The Contractor shall bill the State for each calendar month , within 30 days
of the end of each month. The invoice shall specify the total number of Inmate Days for the
. month. This total shall then be multiplied by the applicable Per Diem Rate . Payment on said
invoices shall be due within 30 days from receipt of the invoice and shall be made through the
State's automated c1earingbouse wire transfer system. The Contractor shall complete and sign an
•Authorization Agreement for Automated Deposits eACH Credits) form: All payments to the
Contractor under this or any other Contract, shall be made through the State's Automated
Clearing House wire transfer system. The Contractor shall not commence work or invoice the
State for services until it has completed this form and submi tted it to the State. The debit entries
.

.

to correct errors authorized by the "Authorization Agreement for Automatic Deposits Form" shall
be limited to those errors detected prior to the effective date of the credit entry. The reminance

advice shall note that a correcting entry was made . All corrections shall be made within two
banking days of the effective date of the original transaction . All other errors detected at a later
time shall take the form of a refund or, in some instances, a credit mem o if additional payments
are to be made .

Section 7.4 BBlin!! Disputes. If the amount to be paid to Contractor is disputed by the State, the
State, on or before the date the invoice is payable, shall advise the Contractor of the basis for the
dispute and, in the mann er provided above, pay the amount of such invoice which is not in
dispute.

59

Section 7.5 Compensation Adjustment for Change of Services.
(a)

The parties recognize that each has entered into this Contract based upon the

standards in effect as of the Effective Date of the Contract. Contractor agrees to be bound by any
applicable Standard change and said change shall not affect the validity of this Contract. If a
change occurs in an applicable Standard other than as provided in subsection (b) herein, either
party may notify the other in writing if it is believed said change shall affect the services
delivered by the Contractor. The Commissioner shall make the final, binding decision regarding
whether a change has occurred in an applicable Standard and whether said change affects the
services rendered by the Contractor. Any adjustment in compensation due the Contractor shall
be determined in accordance with subsection (d).
(b)

If Contractor desires to make minor revisions to its Proposal which will not affect its

ability to comply with the other Standards, the Contractor shall notify the Commissioner of said
proposed revision in writing. Said minor revisions to the Proposal may occur only upon the prior
written consent of the Commissioner. It shall be within the Commissioner's sole discretion
whether or not to agree to said minor revision and his decision shall be binding. Any adjustment

in compensation resulting from said minor revision shall be determined in accordance with
subsection (d) , This provision is an exception to Section 12.17.
(c)

In the event Contractor may receive payments or compensation of any nature for

services it is obligated to perform under this Contract from any source, including but not limited
to federal, state or local authority, or any third party, other than the compensation described in
this Contract, Contractor shall receive prior written consent and direction from the State prior to
receiving any such additional compensation. The State may withhold a comparable amount from

60

any payments due the Contractor. In the event said additional compensation is used to provide
enhanced or innovative services at the Facility as compared to the services provided by the
Department at comparable facilities, Contractor must still receive prior written consent from the
State prior to receiving said compensation but the Contractor may retain those funds . The
Commissioner shall decide whether the funds will be used to provide enhanced or innovative
servic es at the Facility.
(d)

Within thirty (30) days of the notices required in subsections (a) through (c) above,

Contractor shall provide State with the proposed adjustment in compensation and appropriate .
documentation in support thereof. The Commissioner shall decide whether and to what extent an
adjustment in Per Diem Rate is appropriate. In the event the proposed adjustment decreases the
Per Diem Rate then the Commi ssioner may agree to reduce said Per Diem Rate, provided,
however, in the event the proposed adjustment increases the Per Diem Rate then the Per Diem
Rate may be increased only by amendment to this Contract as described in Section 12.17.

Section 7.6 Failure to Agree on BilIiDl! Dispute or for Add itional or Redu ced Services.
(a)

In the event Contractor disagrees with the State's failure to pay a disputed amount

under Section 7.4, disagrees with the adjustment in compensation determined by the
Commissioner under Section 7.5 or disagrees with any other aspect or amount of payment made
by the State then the Contractor shall submit a claim and the grounds for said disagreement in
writing to the Commissioner within thirty (30) days of the date the State either makes partial
payment of the disputed bill or refuses disputed bill in its entirety. Failure of the Contractor to
submit said clai m and grounds to the Commission er in writing within the tim e period described

6t

herein shall be an ahsolute waiver of said claim. The State shall be afforded a sixty (60) day
period in which to effect a cure or take reasonable steps to effect a cure.
(h)

In the event the Contractor timely provides the notice described in subsection (a),

then Contractor may file a claim against the State before the appropriate forum in Tennessee with
jurisdiction to hear said claim. Failure by the Contractor to file a claim before the appropriate
forum in Tennessee with jurisdiction to hear said claim within one (I) year of the notice
described in subsection (a) shall operate as a waiver of said claim in its entirety. It is agreed by
the parties that this provision establishes a Contractual period of limitation s for any claim
brought by the Contractor. Neither this Section nor any other pro vision of this Contract creates
or expands jurisdiction of any court or commi ssion over the State.

62

ARTICLE 8
INDEMNIFICATION. INSURANCE AND DEFENSE OF CLAIMS

Section 8.1 General Indemnification.
(a)

The Contractor agrees to protect, indemnify, save and hold harmless the State, all

State departments, agencie s, boards, and commissions, as well as officers, agents, servants, and
employees of the State, includin g volun teers, from any and all claims , demands, expenses, and
liability arising out of the performance under the Contract of the Contractor, its agents, servants ,
employees, subcontractors , and independ ent Contractors , and from any and all costs,{expenses,
and attorneys' fees (including costs of wor k done by the Attorney General or his designees
incurred as a result of any claims, demand, lawsuit or cause of action .)
(b)

Th e State shall give the Contractor written notice of such claim or suit, if the State is

notified first, and full right and opportunity to conduct the Contractor's defen se thereof; but the
State does not hereby accord to the Contractor, through its attorn eys, any rights to represent the
State of Tenn essee and all State Departments, agenc ies, boards and commissions, as well as
officers, agents, servants , and employees of the State, including volunteers in any legal matter,
such right being governed byT.C.A. § 8-6-106 .
To e State, its Departments, agencies, boards, and cornmissions.as well as its officers,
agents, servants, and employees of the State, including volunteers shall, at the option of the
Attorney General, be represented by the Attorney Gen eral, his designee , or outside counsel
selected by the State and the Contractor shall be responsible for all fees, costs and expenses
associated with that representation. .

63

Thi s indemnific ation shall include, but not be limited to, the following:
(i)

Any Breach on the part of the Contractor in the perfo~ance of the Contract;

(ii)

Any claims or losses for services rendered by Contractor, by any person or
firm performing or supplying services , materials or suppli es in connec tion
with the performance of the Contract;

(iii)

Any claims or losses, to any person injured or property damaged from the acts
or omissi ons of the Contractor, its officers, agents, employees in the
performance of the Contract;

(iv)

Any claims or losses by any person or fum injured or dam aged by Contractor,
its officers, agents , or emp loyees by the publication transl ation , reproduction,
delivery, performan ce, use, or disposition of any dat a processed und er the
Contract in a manner not authorized by the Contract, or by Federal, State , or
local statutes and regulations ; and

(v)

Any failure of Con tractor, its officers, agents or employees to observe the laws
of the United States and of the State of Tenn essee, including but no t limited to
labor laws and minimum wage laws;

(vi)

Any claims or losses resulting from the escape of an Inmate; and

(vii) Any claims or losses to any person injured or property damaged from the acts
or omissions of any Inmate.

64

Section 8.2 Ind emnification Re~ardin~ Policies.
(a)

Th e indemnification of Section 8.1, includes but is not limited to, any claims or

losses arising from the promulgation or implementation of the Contractor's policies and
procedures whether or not said policies and procedures have been approved by the State.
(b)

The indemnification of Section 8.1 includes, but is not limited to any claims 6 the ~

Contractor's wrongdoing in implementing the Departmental policies listed in APpen w?i
(c)

With regard to any claim that the Departmental policies listed on

~~

APpen/~.

unlawful (i.e., the issue is that the policies and procedures are lawful on their face), if the State is
narned as a party , the Attorney General, his designee or an independent Contractor hired for that
purpose will represent the State. The Contractor will be responsible for its own defense. The
State will be liab le for any judgment against it and the Contractor will be liable for any judgment
against it. However, this sub section shall not apply if the claim in any way arises from
Contractor's failure to app ropriately implement policy.
Th e Contractor agrees to send copies of any and all documents which have been filed in
any law suit narning the Con tractor and/or its employees in which concern the operation of the
Facility under this Contract to the State.
Contractor shall not waive, release, or otherwise forfeit any possible defense the State may
have regard ing claims arising from or made in connection with the operation of the Facility by
Contractor without the consent of the State . Contractor shall preserve all such available defenses
and cooperate with the State to make such defenses available to the maximum extent allowed by
law .

65

Section 8.3 General Provisions. Unle ss otherwise required by the State, all insurance prov ided
by the Contractor shall be in conformance with the General Specifications for Insurance detailed

in Appendix D. Upon written request by the State, Contractor shall revise or supplement the
insurance listed on Appendix D and may seek a compensation adjustment pursuant to Section

7.5.

Section 8.4 TYpes of Insurance. The Contractor shall continuously maintain and pay for
insurance and insurance com pany services meeting the general and specific provisions set forth
in Appendix D during the term of this Contract, for the following types of insurance:
Workman's Compensation
General Liability, excluding products and completed operations
Products and Completed Operations Liability
Business Automobile Liability
Owned and Non-own ed Aircraft Liability
Umbrella/Excess Liability
Director's and Officer's Liability
Profe ssional and Medical Liability covering nurses, attorneys, counselors, psychologists,
and social workers
PropertylBoiler and Mac hinery
Employee Di shonesty

66

Section 8.5 Fire and Prooenv Insurance. The State shall maintain all risk property insurance on
the State's buildings which comprise the Facility. The Contractor shall obtain and keep in force
insurance on all property to be located at the Facility.

Section 8.6 DefenselImmunity. Notwithstanding any provision contained herein to the contrary,
the State does not waive any immunity defenses which may exist by operation of law, including,
but not limited to, limitations on the amount of damages which may be awarded or paid. .

Section 8.7 Financial Strength. The Contractor shall, prior to signing this Contract, m e with the
State an aud ited financial statement showing a net stockholders equity, calculated according to
generally acce pted accounting principles consistently applied, of not less than five million dollars
($5,000 ,000). Th ereafter, the Contractor shall file annually, on or before April 1 of each year, a
current financial statement and if the net stockholders equity of the company shall ever be less
than five million dollars (£5,000,000) , the State may declare the Contractor in default unless the
Contractor provides alternative evidence of equ ivalent financial worth within thirty (30) days of
demand by the State.

Section 8.8 Excepti on to General Indemnification. The indemnification provisions of this
Secti on shall not apply to injury, death or damage to property arising solely out of the negligence
or misconduct of the State, its officers, agents, servants or independent Contractors (other than
Contractor) wh o are directly responsible to the State.

67

ARTI CLE 9
CO Jl,'TR4.CT COMPLIANCE

-,

Section 9.1 Breach.
(a)

A party shall be deemed to have breached the Contract if any of the following

occurs:
(i)

failure to perform in accordance with any term or provision of the Contract ;

(ii)

partial performance of any term or provision of the Contract; and

(iii)

any act prohibited or restricted by the Contract.

For purposes of this Article , items (i) through (iii) shall hereinafter be referred to as "Breach."
(b)

In the event of a Breach by Contractor, the State shall have available the following

remedies as described further herein:

(c)

(i)

actual damages and any other remedy available at law or equity;

(ii)

liquidated damages;

(iii)

Partial Default; and/or

(iv)

termination of the Contract.

In the event of Breach by the Contractor, the Liaison shall provide Contractor

written notice of the Breach and a time period to cure said Breach described in the notice. In the
event the Contractor disagrees with the Liaison's determination of Breach, period to cure, or
initiation of liquidated damages, the Contractor shall notify the Commissioner in writing,
provided, however, any appeal to the Commissioner shall not toll or otherwise affect the period
to cure. The decision by the Commissioner shall be [mal and binding. In the event Contractor

68

fails to cure the Breach within the time period provided, then the State shall have available any
and all remedies described herein . In the event the Breach is not cured and in the event the State
elects to invoke liquidated damages said liquidated damages shall commence on the date the cure
period expires; provided, however, if the Commissioner determines the Contractor's managem ent
team has concealed or mislead the State concerning the Breach, the liquidated damages shall
commence on the date of the Breach. For purposes stated herein, Contractor's management team
is defined as consisting of persons in the rank of shift supervisor or above. Thi s subsection
regarding notice and opportunity to cure shall not be applicable in the event of successive or
repealed Breaches of the same nature, or in the event the liaison or Commissioner invokes the
immediate compliance provisions of Section 4.1O.

Section 9.2 Slale Breach.
(a)

In the event of a Breach of Contract by the State, the Contractor shall notify the State

in writing within thirty (30) days of any Breach of Contract by the Stale. Said notice shall
contain a description of the Breach. Th e Stale shall be afforded a forty-five (45) day period in
which to effecl a cure or in which 10 take reasonable steps to effect a cure; provided, however,
that if the alleged Breach concerns the Stale's failure to make payment under this Contract, the
State shall have sixty (60) days after the notice to effect a cure unless the payment is the subject
of a dispute between the parties.
(b)

Failure by the Contractor to provide the ",'linen notice described in subsection (a)

shall operate as an absolute waiver by the Contractor of the State's Breach.

69

(c)

W ith the exception of the provisions contained in subsection (f) herein, in no event

shall any Breach on the part of the State excuse the Contractor from full performance under this
Contract
(d)

In the event of Breach by the State, the Contractor may itself of any remedy at law in

the forum with appropriate jurisdiction; provided, however, failure by the Contractor to give the
State written notice and opportunity to cure, as described in this Section operates as a waiver of
the State 's Breach.
(e)

Failure by the Contractor to file a claim before the appropriate forum in Tennessee

with jurisdiction to hear such claim within one (I ) year of the notice described in subsection (a)
shall operat e as a waiver of said claim in its entirety. It is agreed by the parties this provision
establishes a Contractual period of limitations for any claim brought by the Contractor.
(f)

In the event the State fails to make any payment due under this Contract within the

cure period spec ified herein and the amount not paid exceeds one hundred thousand dollars
(S100,000 ), the Contractor may terminate the Contract upon 90 days prior written notic e to the
Commissioner, provided, however, Contractor may terminate this Contract only upon the State's
failure to pay an amount which is not in dispute.
(g)

In the event the provisions of this Article are in conflict with the provisions of

Section 7.6, Section 7.6 shall control. The Contractor's waiver of the State's Breach described in
this Section is an exception to Section 12.17 .

70

Section 9.3 Liouidated Damazes.
(a)

In the event of a Breach by Contractor described in Appendix E, the State may

withhold as liquidated damages the amounts designated on Appendix E from any amounts owed
Contractor.
(b)

The State shall notify Contractor in writing of the Breach and the amounts to be

withheld as liquidat ed damages.
(c)

Liquidated damages shall be assessed in conformance with Section 9.I (c).

(d)

Tb ; parties agree that due to the complicated nature of the Contractor's obligations

under this Contract it would be difficult to specifically designate a monetary amount for a Breach
by Contractor designated in Appendix E as said amounts are likely to be uncertain and not easily
proven. Contractor hereby represents and covenants that it has carefull y reviewed the liquidated
damages contained in Appendix E and agrees that said amoun ts are the liqui dated damages
resulting from negotiation between the parties, represent a reasonable relationship between the
amount and what might reasonably be expected in the event of Breach, and are a reasonable
estimate of the damages that would occur from a Breach.
(e)

It is hereby agreed between the parties that the liquidated damages repres ent solely

the damages and injuri es sustained by the State in losing the benefit of the bargain with
Contractor and do not include:
(i)

any injury or damage sustained by a third party and Contractor agrees that the
liquidated damage amount is in addition to any amounts Contractor may owe
the State pursuant to the indemnity provision contained in Article 8 or
otherwise; and

71

(ii)

any damage sustained to the Facility or property located therein as a result of
Contractor's Breach.

(f)

The State may continue to withhold the liquidated damages or a portion thereof until
-,

the Contractor cures the Breach, the State exercises its option to declare a Partial Default, or the
State terminates the Contract.
(g)

The State is not obligated to assess liquidated damages before availing itself of any

other remedy.
(h)

The State may chose to discontinue liquidated damages and avail itself of any other

remedy available under this Contract or at law or equ ity; provided, however, Contractor shall
receive a credit for said liquidated damages previously withheld except in the event of a Partial
Default.

Section 9.4 Panial Default.
(a)

In the event of a Breach by Contractor, the State may declare a Partial Default.

(b)

If the Contractor fails to cure the Breach within the time period provided in the

notice pursuant to Section 9.I (c), then the State may declare a Parti al Default and provide written
notice to the Contractor of the following:
(i)

the date upon which Contractor shall terminate providing the service
associated with the Breach; and

(ii)

the date the State will begin to provide the service associated with the Breach.

Th e State may revise the time periods contained in the notice upon written notice to Contractor.

72

(c)

In the event the State declares a Partial Default, the State may withhold from the

amounts due the Contractor the greater of:
(i)

amounts which would be paid the Contractor to provide the defaulted service
as provided in subsection (e); or

(ii)

the cost to the State of providing the defaulted service, whether said service is
provided by the State or a third party

together with any other damages associated with the Breach.
(d)

To determine the amount the Contractor is being paid for any particular service, the

Department shall review the Contractor's budget. Th e Commissioner or his designee shall make
the final and binding determination of said amount.
(e)

The State may assess liquidated damages against the Contractor pursuant to Section

9.3 for any failure to perform which ultimately results in a Partial Default with said liquidated
damages to cease when said Partial Default is effective.
(I)

Upon Part ial Default, the Contractor shall have no right to recover from the State

any actual, general, speci al, incidental, consequential, or any other damages whatsoever of any
description or amount.
(g)

Contractor agrees to cooperate fuJly with the State in the event a Partial Default is

taken.

Section 9.5 Termination.
(a)

In the event of a Breach by Contractor, the Stat e may terminate the Contract

immediately or in stages.

73

(b)

The Contractor shall be notified of the termination in writing signed by the

Commiss ioner. Said notice shall hereinafter be referred to as Termination Notice .
(c)

The Termination Notice may specify either that the terminati~n is to be effective

immediately, on a date certain in the future , or that the Contractor shall cease operations under
this Contract in stages.
(d)

Contractor agrees to cooperate with the State in the event of a termination, Partial

Default or Partial Takeover.
(e)

In the event of a terminatio n, the State may withhold any amounts which may be due

Contract or without waiver of any other remedy or damages available to the State at law or at
equity.
(f)

In the event of a termination, Contractor shall be liabl e to the State for any and all

damages incurred by the State including but not limited to transponation of Inmates, activation of
the National Guard or any other state agency, expenses incurred by the State to staff the Facility,
and any and all expen ses incurred by the State to run the Facility which exceed the amount the
State would have paid Contractor under this Contract.

Section 9.6 Partial Takeover.
(a)

The State may, at its convenience and without cause, exercise a partial takeover of

any service which the Contractor is obligated to perform under this Contract, including but not
limi ted to any service which is the subjec t of a subcontract between Contractor and a third party,
although the Contractor is Dot in Breach (hereinafter referred to as "Partial Takeover"). Said
Partial Takeover shall not be deemed a Breach of Contract by the State .

74

(b)

Contractor shall be given at least thirty (30) days prior written notice of said Partial

Takeover with said notice to specify the area(s) of service the state will assume and the date of
said assumption.
(c)

Any Partial Takeover by the State shall not alter in any way Contractor's other

obligations under this Contract.
(d)

The State may withhold from amounts due the Contractor the amount the Contractor

would have been paid to deliver the service as determined by the Commissioner. The amounts
shall be withheld effective as of the date the State assumes the service.
(e)

Up on Partial Takeover, the Contractor shall have no right to recover from the State

any actual, general, spec ial, incidental, consequential, or any other damages whatsoever of any
description or amount.

Section 9.7 Terminati on Due to Unavailability of Funds. The Contract is subject to the
appropriation and availability of State and/or Federal funds . In the event that the funds are not
are not appropriated or are otherwise unavailable, the State reserves the righ t to terminate the
Contract upon written notice to the Contractor. Said termination shall not be deemed a breach of
Contract by the State . Upon receipt of the written notice, the Contractor shall cease all work
associated with the Contract. Should such an event occur, the Contractor shall be entitled to
compensation for all satisfactory and authorized services completed as of the termination date.
Upon such termination, the Contractor shall have no right to recover from the State any actual,
general, special, incidental, consequential, or any other damages whatsoever of any description or
amount.

7S

Section 9.8 Termination for Convenience,
(a)

Beginning one Year after the Service Commencement Date, the State may terminate

this Contract without cause for any reason. Said termination shall not be deemed a breach of
Contract by the State. The State shall give the Contractor ninety (90) days written notice prior to
termination of this Contract.
(b)

Contractor shall be enti tled to rece ive compensation for satisfactory authorized

service compl eted as of the termination date , but in no event shall the State be liable to the
Contractor

~f~!iz!P_:-~~;"'~~~;rhpensation for any service which has not

been rendered.
(c)

d

Upon such termination, the Contractor shall have no right to any actual , general,

special , incidental , consequential, or any other damages whatsoever of any description or
amount, exce pt that the State shall pay for all sup plies and equipment on order and not yet
delivered to the Facility as of the date of termination .

Section 9.9 Performance and Pam1ent Bond. Contractor agrees to provide the required
Performance and Payment Bond described in the RFP within 15 days of the execution of this
Contract and to maintain said Performance and Payment Bond throughout the duration of this
Contract.

76

ARTICLE 10

PROHIBmONS

Notwithstanding any other provision of this Contract to the contrary, nothing contained herein
shall be interpreted to authorize, allow or imply authority of the Contractor to do the following:
(a)

develop or implement procedures for calculating Inmate release and parole eligibility

(b)

develop and implement procedures for calculating and awarding sentence credits;

(c)

approve Inmates for furlough and work releas e;

(d)

approve the type of work an Inmate may perform, and the wages or senten ce credits

dates;

which may be given to Inmates engaged in such work; and
(e)

grant, deny or revoke sentence credits ; place an Inmate under less restricti ve custody

or more restrictive custody; or take any disciplinary actions; provided, however, that this Section
shall not prevent Contractor from making recommendations to the State with respect to any of
the above in conformance with Departmental policy. The Commissioner shall determine whether
any action or proposed action violates the provisions of this Article.

77

ARTICLE 11
COl'.TRACTORS REPRESEl'.TATIONS AND WARR.v-.' TIES

Section 11.1 Representations of Contractor. Contractor represents and warrants to and for the
benefit of State, with the intent that State will rely thereon for purposes of entering into this
Contract, as follows :
The Contractor's Proposal, incorporated herein by reference, contains no material
misrepresentations by the Contractor. This Contract contains no factual changes from the
Proposal submitted by the Contractor.

Section 11.2 Or£anization and Oualification. Contractor has been duly incorporated and

iS~)

. . as a corporation
. in
. good stan dimg un der the Iaws 0 fth e State 0 fDela w atL->hJ
validl
1 Yexisting
Wit
power and authority to own its propenies and condu ct its business as presently conducted .
Contractor is duly qualified to do business as a foreign corporation in good standin g in Tennessee
and shall so remain during the term of this Contract.

Section 11.3 Authorization . This Contract has been duly authorized, executed, and delivered by
Contractor and, assuming due execution by the appropriate State officials as indicated on the
signature page of this Contract and delivery by State, constitutes a legal, valid, and bindin g
agreement enforceable against Contractor in accordance with its terms .

78

Section 11.4 No Vio lation ofContracl, Articles of Incorporation or Bylaws. Th e consummation
of the transactions contemplated by this Contract and its fulfillm ent of the terms hereof will not
conflict with, or result in a breach of any of the terms and provisions of, or constitute a default
under any indenture , mort gage, deed of trust, lease, loan agreement, license, securi ty agreement,
Contract, governmental license or permit, or other agreement or instrument to which Contractor
is a party or by which its properties'are bound, or any order, rule, or regul ation of any court or
any regulatory body, admini strative agency, or their governmental bod y applicable to Contractor
or any of its properties, except any such conflict, breach, or default which would not materially
and adverse ly affect Contractor's ability to perform its obligations und er this Contract, and will
not confli ct with, or result in a breach of any of the terms and provisions of, or constitute a
default under, the Articles of Incorporation (or other correspondin g charter document) or Bylaws
of Contractor.

Section 11.5 No Defaults under Agreements. Contractor is Dot in default, nor is there any event
in existence which, with notice or the passage of time or both, would constitute a default by
Contractor, under any ind enture, mortgage, deed of trus t, lease, loan agreement, license, security
agreem ent, Contract, governmental license or permit, or other agreement or instrument to which
it is 2 p'!f!Y or by whi ch any of its properti es are bound and which default would materially and
adversely affect Contractor's ability to perform its obligations under this Contract.

Section 11.6 Comoliance with Laws. Contractor, its officers and directors purporting to act on
behalf of Contractor or such officers and directors have been conducting business in compliance

79

with all applicable laws, rules, and regulations of the jurisdictions in which Contractor is
conducting business including all safety laws and laws with respect to worker's compensation,
discrimination in hiring, promotion or pay of employees. Contractor warrants that Contractor,
and its current and former officers and directors have:
(i)

no convictions regarding criminal activity;

(ii)

no pending charges regarding criminal activity, or

(iii)

to their knowledge, no investigations on-going by any state, local or federal
authorities regarding any possible criminal activity,

except as provided in writing.

Section 11.7 NDLitiaation, There is not now pending or, to the knowledge of Contractor,
threatened, any action, suit, Dr proceeding to which Contractor is or may be a party, before or by
any court or governmental agency or body, which might result in any material adverse change in
Contractor's ability to perform its obligations under this Contract, or any such action, suit, or
proceeding related to environmental or civil rights matters; and no labor disturbance by the
employees of Contractor exists or is imminent which might materially and adversely affect
Contractor's ability to perform its obligations under this Contract

Section 11.8 Financial Statements. Contractor has delivered to State copies of financial
statements provided in its Proposal.
Contractor represents such financial statements fairly present the financial position of
Contractor at the dates shown and the results of the operations for the periods covered, and have

80

been prepared in conformity with generally accepted accounting principles applied on a
consistent basis, except as discussed in the notes to the financial statements.

Section 11.9 No Adverse Chanse. Since the date of Contractor's financial statements described
in Section 11.8 provided to State, there has not been any material adverse change in Contractor's
business or condition , nor has there been any change in the assets or liabilities or finan cial
condition of Contractor from that reflected in such financial statements which is material to
Contractor's ability to perform its obligations under this Contract.

Section 11.10 Disclosure . There is no material fact which materially and adversely affects or in
the future will (so far as Contractor can now reasonably foresee) materi ally and adversely affect
Contractor' s ability to perform its obli gations und er this Contract which has not been accurately
set forth in this Contract or otherwise accurate ly disclo sed in writing to State by Co ntractor prior
to the date hereof.

Section 11.11 Op inion of Contractor's Coun sel. Contractor shall furnish to State an opinion of
couns el in connection with this Contract dated as of the date of the Contract. Such opinion shall
address the Contractor's compliance with applicable law, affirm its authority to enter into this
Contract, indicate that the Contractor is not currently in litigation or have notice of litigation that
could cause the Contractor not to perform the terms of this Con tract, affirm the enforceability of
this Co ntract in accordance with its terms , and affirm that the financial statements provided by
the Contractor were prepared in accordance with generally accepted accounting principles.

81

ARTICLE 12

l\fiSCELLAJI.'EOUS

Section 12.1 Audits. Contractor shall maintain documentation of all charges against the State
under this Contract. The books, records, and documents of the Contractor, insofar as they relate
to work performed or mon ey received under the Contract, shall be maintained for a period of
three (3) full years from the date of the [mal payment, and shall be subject to audit at any
reasonable time and upon reasonable notice, by the State or the Comptroller of the Treasury or
their duly appointed representatives. The se records shall be maintained in accordance with
generally accepted accounting principl es.

Section 12.2 Non-Discrimination. No person on the ground s of disability, age, race, color,
religion, sex , national orig in. or any other classification protected by Federal and/or Tennessee
State constitutional and/or statutory law shall be excluded from participation in, or be denied
benefits of, or be otherwis e subjected to discrimination in the performance under the Contract or
in the employment practic es of the Contractor. The Contractor shall , upon request, show proof
of such non-discrimination, and shall post in conspicuous places, available to all employees and
applicants, notices of non-discrimination.

Section 12.3 Bindin g Nature. This Contract shall not be binding until the State has received a
Payment and Performan ce Bond as required by the RFP and evidence of insurance required by

82

the RFP and it is approved and executed by all the parties indicated on the signature page of the
Contract.

Section 12.4 Invalidity and Severability.
(a)

In the even t that any provision of this Contract shall be held to be unlawful, invalid

or unenforceable, all parties agree that all other tenus and conditions of the Contract shall remain
in full force and effect exc ept as specifically provided in this section.
(b)

With the excepti on of the provisions contained in Article 9, in the event any or all

prov isions of thi s Contract are found to be unlawful , invalid or unenforceable by a commission
or court of competent jurisdiction, both parties agree that neither shall be in Breach of Contract
or liable in any mann er to the other for damages, costs, or expenses of any nature which the other
mi ght sustain due to said finding; provided, however. in the event said finding reduces the
services rendered by Contractor. the State may reduce the Per Diem Rate paid Contractor
pursuant to Se ction 7.6 and said finding shall not excuse a Breach.
(c)

In the event a court of competent jurisdiction finds a provision(s) of this Contract to

be unenforceable the Commissioner may terminate this Contract upon thirty (30 ) days notice
without penalty or liability to the State.

Section 12.5 Headinzs. Th e headings contained in the Contract are for reference purposes only
and shall not affect the meaning or interpretation of this Contract.

83

Section 12.6 TermillOl oE!V and Definitions. All personal pronouns used in this Contract, whether
used in the masculine, feminine, or neuter gender, shall include all other genders; the singular
shall include the plural and the plural shall include the singular.

S".ction 12,7 Interpretation and Venue. The Contract shall be governed by and construed in
accordance with the laws of the State of Tennessee. Any legal proceedings against the State
regarding the Contract shall be brought in the State of Tennessee administrative or j udicial forum
with appropriate j urisdiction. Venue shall be in Davidson County, Tennessee.

Section 12.8 Chan ge in Owners. Contractor shall notify the State in writing of any change of
ownership of the Contractor, through sale or merger , which occurs durin g the term of the
Contract. Contractor shall inform the State fully of the financ ial ability of the new ownership to
fully comply with the terms and conditions of the Contract. The State reserves the right to
terminate the Contract in the event of a change in ownership without penalty to the State or to
consider the failure to comply with the e notification or financial reporting provisions as a Breach
by the Contractor.

Section 12.9 Duration of Services. Contractor agrees that the services and programs set forth in
this Contract will be maintain ed for the duratio n of the Contract period.

84

Section 12. JO Approval of Bond Counsel.
(a)

Because construction of the Facility was funded through the issuance of tax exempt,

general obligations debt, the use and management of the Facility by the Contractor and any and
,

all subcontractors in subject to and constrained by the Federal Tax laws and regulations
governing tax exempt financing. Therefore, this Contract is subject to review by the State's bond
counsel before approval.
(b)

In addition, any use of the Facility by Contractor and all subcontractors, including,

but not limited to, the conduct of an industries program pursuant to Section 5.28 of the Contract,
which result s in any payment to the State, either directly or indirectly, is subject to review by the
State's bond coun sel before approval .

Section 12.11 Release. Contractor, upon final payment of the amount due under this Contrac t,
releases the State, its officers and employees, from all liabilities, claims and obligations
whatsoever arising from or under this Contract. Contractor agrees not to purport to bind the
State to any obligation not expressly assumed herein by the State.

Sectio n 12.12
(a)

Subcontractin ~

and Assignment.

The Contractor shall not assign the Contract or enter into a subcontract for any of the

services performed under the Contract without obtaining the prior written approval of the State.
No subcontract may be executed until the Stat e has reviewed and approved the subcontract for
conformi ty with this Contract.

85

(b)

The Contractor shall provide that all subcontractors are notified in writing prior to

the execution of the subcontract that the Facility is being funded through the issuance of tax
exempt, general obligation debt and that the use and management of the Facility by the
Contractor and any and all subcontractors is therefore subject to and constrained by the federal
tax laws and regulations governing tax exempted financing. The State may consult with its Bond

Counsel to determine whether any assignme nt or subcontract complies with such laws and
regulat ions.
(c)

The Contractor shall provide that all subcontractors warrant that no part of the total

subcontract amount shall be paid directly or indirectly to an employee or official of the State of
Tennessee as wages, compensation, or gifts in exchange for acting as officer, agent, employee,
subcontractor, or consultant to the subcontractor in connection with any work contemplated or
performed relative to the subcontract.
(d)

The Contractor shall provide that all subcontractors agree that no person on the

grounds of disability, age, race, color, religion , sex, national origin, or any other classification
protected by Federal andlor Tennessee State constitutional andlor statutory law shall be excluded
from participation in, or be denied benefits of, or be otherwise subjected to discrimination in the
performance under the subcontract or in the employment practices of the subcontractor. The
subcontractor shall, upon request, show proof of such non-discrimination, and shall post in
conspicuous places, available to all employees and applicants, notice of non-discrirnination.
(e)

The Contractor shall provide that all subcontracts may be assignable to the State at

the State' s sole discretion . Any subcontract shall also provide that the State shall not be
responsible for any outstanding liability to the subcontractors incurred by the Contractor and that

86

the State may terminate such subcontracts upon giving thirty days prior written notice with or
without cause.

Sec tion 12.13 Re search Projects. Contractor shall Dot publish or disseminate any findings based
on data obtain ed from the operation of the Contract or engage in any research projects without
the pri or written con sent of the Department

Section 12.14 Soverei!ffi Immuni tv. The sovereign immunity of the State shall not apply to the
Contractor nor any subcontractor, agent, employee , or insurer of the Contractor, Neither the
Contractor nor any subcontractor, agent, employee, or insurer of the Contractor may plead the
defense of sovereign immunity in any action arising ou t of the perform ance of or failure to
perform any responsibility or du ty under this Contract.

Section 12.15 Prohibited Pavments. Contractor warrants that no part of the total Contract
am ount shall be paid directly or indirectly to an employee or an official of the State of Tennessee
as wages, compensation, or gifts in exchange for acting as officer, agent, employee,
subcontractor, or con sultant to the Contractor in connection with any wo rk contemplated or
performed relative to the Contract

87

Section 12.16 Notices. Addresses: All notices shall be hand-delivered to the Contractor's
Warden, or the State's Liaison or sent certified mail, return receipt requested to:
State:

Commissioner Department of Correc tion
4th Floor, Rachel Jacks on Bldg.
320 6th Aven ue North
Nashville, Tennessee 37243-0465

Contractor. Linda G. Cooper
Vice President, Legal Affairs
Corrections Corporation of America
102 Woodmont Boulevard, Sui te 800
Nashville, TN 37205
The notice shall be deemed to be received on the date of the hand-delivery or on the third day
after mailin g.

Section 12. I7 Amendments. The terms and provisions of this Con tract may be waived , altered,
modifie d, amended, suppl eme nted or revised only by written amendment which has been
executed and approved by the appropriate parties as indicated on the signature page of the
Contract. Neither the Liaison(s) or any other employee or official of the State is authorized to
modify, amend or waive the terms and provi sions of this Contract except as provided in this
Section.
Section 12.18 Waiver. No consent, waiver or excuse of any Breach of any of the terms or
conditions of this Contract shall be held to be a consent, waiver, or excuse of any other or
subsequent Breach; nor shall any such waiver or excuse be valid or binding unless the same shall

be in writin g and approved and executed by the party alleged to have granted the waiver as
indicated on the signature page of the Contract.

88

Section 12.19 Third Panv Beneficiarv. Neither the Contractor nor the State intends to create
rights for any third party by the Contract and no third party beneficiary rights are created hereby.
Third parties shall mean all persons except the State and the Contractor, including but not limited
to employees of Contractor, subcontractors of Contractor and Inmates located at the Facility.

Section 12.20 Laws. The Contractor shall comply with all applicable federal, state, and local
constitutions, laws, and regulations, conn decisions , Conn Orders, and any applicable state and
federal orders in the performance of the Contract including but not limited to the provisions of
T.CA. § 41-24-101, et ~., which may be in effect during the term of this Contract

Section 12.21 Attornev Fees. The Contrac tor agrees that in the event either part)' deems it
necessary to take legal action to enforce an)' provision of the Contract and in the event the State
prevails, the Contractor shall pay all expen ses of such action, including but not limited to the
State's attorney fees and costs of all stages of the litigati on.

Section 12.22 Approvals. Any policies, procedures or other documents contained or referenced

in this Contract subject to the State's approval under the terms this Contract shall remain subjec t
to State prior written approval whenever they are revised, amended, replaced or supplemented.

Section 12.23 Fraud/Misrepresentation. If, in the cours e of any stage under the RFP, Proposal
evaluation, Contract negotiation, Contract execution or term of the Contract, the Contractor
commits fraud, misrep resentation or conspiracy to defraud the State, the State shall have the right

89

to pursu e any remedi es described in An icle 9 andlor pursue any criminal san ctions all owed by
law.

Section 12.24 Financial Te rmin ation. Th e State may terminate the Contract without pe nalty to
the State in the event the Contrac tor.
(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 ord er appointing a rece iver or trustee for it or sub stan tiall y all of

its property to be entered and , if entered without its consent, not to be stayed or discharged within
60 days;
(d)

suffers proceed ings under any law relating to bankruptcy, insolvency, or the

reorganization or relie f of debtors to be instiruted by or agai nst it and, if contested by Contractor,
not to be dismissed or stayed within 60 days; or
(e)

suffers any j udgment, unit of an achm en t or execution, or any simi lar process to be

issued or levied against a substantial part of its property which is not released, stayed , bo nded, or
vacated wi thin 60 days after issue or levy.

Section 12.25 Set-Off. Th e State reserves the right to deduct from amounts whic h are or shall
become due and payable to the Contractor und er this or any Contract between the parties any
amoun ts which are or shall become due and payable to the State by the Contractor. The State
may withhold any amounts whic h m ay otherwise be due the Contractor witho ut wai ver of any
other remedy or damages available to the State under thi s Contract at law or at equi ty.

90

Section 12.26 Maximum Liability. Notwithstanding any provision contained herein to the
contrary, in no event shall the maxim um liability of the State und er thi s Contract exceed
$55,639, 180. The maxi mum liability to the State under this Contract for each respective year of
this Contract is as follows :
Fiscal Year 1996 - 1997

$

Fiscal Year 1997 - 1998

$ 18.069.683

Fiscal Year 1998 - 1999

$ 18,656,075

Fiscal Year 1999 - 2-29-2000

$ 12,875,498

6,037,924

Section 12.27 Confidentiality. Th e Contractor shall maintain the confidentiality of all records
required by the Standards.

Section 12.28 Construction. 10 the eve nt of a dispute about the construction or interpretation of
any provision of the Proposal, said Proposal shall be construed in favor of the State. The parties
agree that shoul d a dispute arise involving the construction or interpretation of the RFP or this
Docume nt, said docum ents shall not be construed or interpreted in favor of either party.

Section 12.29 Wrillen Notices . The necessity of wrirten notices herein shall be strictly
construed.

91

Section 12.30 Implied Covenant s or Agreements. The State shall be bound only by the express,
written terms contained herein and shall not be bound by any implied covenants or agreements.

Section 12.31 Approvals. Contractor agrees to accept and implement any revisions, alterations
or supplements suggested by the State to any document, plan, policy or procedure which requires
State approval .

Section 12.32 Notices. Failure of the State to provide any notice to Contractor described in this
Contract whether or not the State had knowledge of the appropriateness of said notice shall not
relieve the Contractor of its obligation to perform in accordance with the Contract and shall not
be a waiver or excu se of any failure to perform.

Section 12.33 No Contin2:ent Fees. No person or entity shall be employed or retained or given
anything of monetary value on a contingent fee basis to solicit or secure this Contract, except
bonafide employees of Contractor (including proposed subcontractors) or .bonafide established
commercial or professional entities retained by Contractor for the purpose of securing business.
For violation of this Section, in addition to the remedies available pursuant to Article 9, the State
shall have the right to deduct from any amount owed Contractor the amount of such commission,
percentage, brokerage or contingent fee, and other benefit from the Contractor.

IN WITNESS WHEREOF, intending to be legall y bound, the parties have caused their
authorized representatives to execute this Contract as of the

z.g

day of

Fe b

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7\cJ~

, 199

I

92

STATE OF TENNESSEE
DEPARTMENT OF CORRECTION

BY:~

CONTRACfOR

G::tO~~C'\
~

BY:

Donal Campbell , Commissioner

Date:

~'-:L\1'-r-l-

(/Ja:iJ ~~

Date'

J-/~ -rz U

P~J c{p

AITEST:

APPROVED:
STATE OF TENNeSSEE

~~~8t~~ner

Secretary
Date:

Commissioner, Finance
and Administration

Date:

~ -:? .0( 7

Date:

Z - :J....::3..H7-

-

~~X l<alkup
nome)' General and Reporter

Date: 'dIf~'l/q ~

93

_

ci(JJ
y