Common use of AND TERMINATION Clause in Contracts

AND TERMINATION. A. The State shall provide information and training so that all current and future employees at the facilities understand and implement the terms of this Agreement. B. The State shall implement all measures reasonably necessary to achieve substantial compliance with this Agreement. C. This Agreement shall constitute the entire integrated Agreement of the parties. With the exception of DOJ’s findings letter referenced in Section I.F of the Introduction hereof, and any DOJ technical assistance recommendations, no prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions herein in this litigation or in any other proceeding. D. This Agreement is enforceable only by the parties and is binding upon the parties, by and through their officials, agents, employees, and successors. E. Upon execution of this Agreement, the DOJ shall file a complaint in the United States District Court for the Southern District of Indiana, and file contemporaneously a Joint Motion for Conditional Dismissal of the complaint pursuant to Federal Rule of Civil Procedure 41(a)(2). A copy of this Agreement shall be attached to the Joint Motion for Conditional Dismissal and that motion shall: (1) request that the court dismiss the complaint upon the passage of three (3) years from the date of its filing or the State’s earlier substantial compliance with the terms of this Agreement; (2) request that the court place the case on its inactive docket; and (3) retain jurisdiction over the case until three (3) years have passed or an earlier final dismissal is entered. The parties expressly declare that this provision shall not be interpreted to provide for active judicial supervision. F. If the DOJ believes that the State has failed to fulfill a significant obligation under this Agreement, the DOJ will, prior to instituting judicial action to enforce the terms of this Agreement, give written notice of the failure to the State. The State shall have sixty days from the date of such notice to cure the failure, or such additional time as is reasonable due to the nature of the issue and agreed upon by the parties, and provide the DOJ with sufficient proof of its cure. At the end of the sixty day period, or such additional time as is reasonable due to the nature of the issue and agreed upon by the parties, in the event that the DOJ determines that the failure has not been cured, the DOJ may institute judicial action without further notice. However, in case of an emergency posing an immediate threat to the health or safety of youths, the United States will notify the State, and the cure period described herein will be truncated to forty-eight (48) hours, before instituting judicial action. The DOJ commits to work in good faith with the State to avoid enforcement actions. G. If the United States institutes judicial enforcement of this Agreement, the State reserves the right to raise as a defense exigent circumstances in the State, including, but not limited to: economic recession, necessary diversion of resources and personnel in the event of widespread threat to public health, or act of war. H. Nothing in this Agreement shall be construed as an acknowledgment or admission by the United States that any defense raised by the State relieves the State of its obligation under this Agreement. I. This Agreement resolves the United States’ current investigation of the Logansport, South Bend, and Plainfield pursuant to CRIPA and Section 14141. The United States shall not seek additional measures or requirements in enforcing this Agreement. J. Failure by any party to enforce this entire Agreement or any provision thereof with respect to any deadline or any provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions in this Agreement. K. To the extent that the State’s implementation of any provision of this Agreement requires the exercise of professional judgment, the standard articulated in ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇ ▇.▇. ▇▇▇ (1982), shall be applied. L. The State shall appoint an Agreement Coordinator to coordinate and oversee compliance with this Agreement. M. This Agreement shall terminate definitively and unconditionally no later than three years from the effective date. 1. The Agreement may end on a section-by-section, and facility-by-facility basis earlier than three years from the effective date if the State has substantially complied with the provisions of that section of the Agreement at a facility for at least twelve months. 2. The burden shall be on the State to demonstrate that it has complied substantially with the Agreement. A finding of substantial compliance may not be unreasonably withheld. 3. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute failure to maintain substantial compliance. At the same time, temporary compliance during a period of sustained noncompliance shall not constitute substantial compliance. 4. The parties agree that the standards against which substantial compliance will be monitored are those that are constitutionally required and required by Federal statute. The State’s unilateral implementation of best practices will not modify the standard. N. The parties agree to defend the provisions of this Agreement. The parties shall notify each other of any court challenge to this Agreement. In the event any provision of this Agreement is challenged in any local or state court, removal to a federal court may be sought. O. If any unforeseen circumstance occurs which causes a failure to timely carry out any requirements of this Agreement, the State shall notify the DOJ in writing within a reasonable time after the State becomes aware of the unforeseen circumstance and its impact on the State’s ability to perform under this Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The State shall implement all reasonable measures to avoid or minimize any such failure. P. No person reporting conditions which may constitute a violation of laws or the Constitution of the United States or this Agreement shall be subjected to retaliation in any manner for so reporting. See 42 U.S.C. 1997d. Q. All subheadings in this Agreement are written for convenience of locating individual provisions. If questions arise as to the meanings of individual provisions, the parties shall follow the text of each provision. R. In the event any provision of this Agreement is declared invalid for any reason by a court of competent jurisdiction, said finding shall not affect the remaining provisions of this Agreement.