HomeMy WebLinkAboutRES 170 Draft 01 2006-2008 Ntv os M
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COUNTY OF HAWAII STATE OF HAWAII
.~f. tee..'`
T~ Oi~N~~`
RESOLUTION NO. 1?0 07
RESOLUTION AUTHORIZING THE OFFICE OF THE MAYOR TO ENTER INTO
AN AGREEMENT WITH THE STATE OF HAWAI`i DEPARTMENT OF
AGRICULTURE, PURSUANT TO HRS 46-7, FOR THE COUNTY OF HAWAI`I'S
COQUI FROG ERADICATION AND CONTROL PROGRAM
WHEREAS, the State of Hawaii Legislature enacted Act 160, Session Laws of Hawaii
2006, which appropriated, in part, funding to the State Department of Land and Natural Resources,
the State Department of Agriculture, and the County of Hawaii for their coqui frog eradication and
control efforts, including research; and
WHEREAS, the Department of Agriculture, which previously had provided funds to the
County of Hawaii for its purchase of citric acid anhydrous, proposes to enter into another contract
with the County for the administration of acost-sharing program; and
WHEREAS, this program is to assist qualified nurseries and landscape companies on the
Island of Hawaii to finance the construction of hot water treatment facilities for the treatment of
plants and plant parts for coqui frog disinfestation; and
WHEREAS, at the end of the project period, the County of Hawaii shall submit to the State,
a final report summarizing the project services completed and a final fiscal report summarizing all
costs-sharing expenditures made under the contract; and;
WHEREAS, Hawaii Revised Statutes, Section 46-7, requires that county departments
obtain the consent of the council to enter into agreements with the federal or state governments
respecting action to be taken pursuant to any of the powers granted by law to furnish, expend, and
receive any funds or other assistance in connection with projects being or to be undertaken
pursuant to those powers.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF
HAWAII, in accordance with section 46-7, Hawaii Revised Statutes, that the Mayor of the County
of Hawaii is authorized to execute, on behalf of the County, a Contract for Goods and Services
with the State of Hawaii Department of Agriculture, attached hereto and incorporated herein by
reference as Exhibit "1", to enable the County of Hawaii to administer acost-sharing program to
assist qualified nurseries and landscape companies on the Island of Hawaii to finance the
construction of hot water treatment facilities.
BE IT FURTHER RESOLVED that the Mayor of the County of Hawaii is authorized to sign
the above-referenced agreement and any related documents on behalf of the Office of the Mayor
and the County of Hawaii pursuant to the Hawaii County Charter.
BE IT FURTHER RESOLVED that the County Clerk of the County of Hawaii shall transmit
copies of this resolution to the Office of Management and the Finance Department.
Dated at Hilo ,Hawaii, this 16th day of May , 2007.
INTRQQUCED BY:
COUNCIL MEMBER, C UN Y F HAWAII
COUNTY COUNCIL ROLL CALL VOTE
County of Hawaii AYES NOES ABS EX
Hilo, Hawaii FORD X
I hereby certify that the foregoing RESOLUTION was by RIGA g
the vote indicated to the right hereof adopted by the HOFFMANN X
COUNCIL of the County of Hawaii on May 16 2007 tKEDA g
JACOBSON X
ATTEST: NAEOLE
PILAGO X
YAGONG X
YOSHIMOTO g
9 0 0 0
Reference: C-350/FC-48
CO N, CLERK CHAIRMA R~$IDING OFFICER RESOLUTION NO. ~7Q o7
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° ~ " STATT. OF HAWAII
hi •L
CQNTRACT FQR CODS AND SERVICES
~ f (tN TH6 FOLLOWfNG CA'PEGORI$S: EXEMPT; $MAr,T, PUR('t1ASS;
_ ~ SOLE 80URCE; OR EM ER(rF.NCV)
This Contract, executed on the respective dates indicated below, is effective as of
,between Department of Agricukure ,
(/Hart Home a/aosedybneon, b°oMorcEmmiwn,tl
Slate of klawaii ("STATE"), by its Chairperson, Department of Agriculture ,
(b+nrl life °fyrnn, s4v~byl/w moo)
(hcrcutlur also referred to as the HEAD OF"CH& PURCHASING AGPNCY Ur designee ("HOPA")),
whose address is 1428 South I{inS Street, I-Ionolulu, Hawaii 96814
_ and County of Hawaii
("CONTRACTOR"), a tuunicipal corporation
(HNerf tr°ry,mliun, Pormnl7uAJu~f rmfuru, mle,b,q,rtin>xahip oroAer(egMf°rm °/!M: (inl,acf°rJ
under Che laws of tfie State of Hawaii ,whose business addt+eas and federal
and state taxpayer identification numbers are as follows: 25 Aupuni Street, Hilq Hawaii 96720
Fuderal Identification No. 99.6000,567, State Ideitti6catioa No. 30016002
RI!:CITAI.S
A. The STATE is in need of the goods and services, or both, described in this
Contract and its attachments. The CON'l'1tACTOR is agreeable to providing the goods and services,
or Mth, as the case may be.
B. "Phis Contract is for (check one box):
® (1)A procuremem expenditure of public fundv for t~s or services,
or both. first is otherwise exempt frotu public bidding as set forth in section 1 p3D-102, Hawaii
Revised Statutes ("HRS'~, and chapter 3-120, 'Hawaii AdminisGative Rules ("HAR'~; or
; ~
? (2) A small purchase procurement of goods or services, nr both, as set forth
in section 1 U3l?-305, HRS, and subchapter 8, chaptcr 3-122, IIAR; or
? (3) A sole source prowremeni of goods or scrvlces, or both, as set forth
in section 103ll-306, >•IItS, and subchapter 9, chaptcr 3-122, IIAR; or
? (4) Aa euu:rgeacy procurement of goods or services, or both, as set forth
in section 1 U3D-307, HRS, and subchapter t0, chaptcr 3-122, ITAR.
C. Money i3 available to fund this Contract pursuant to:
('1) Act 160, SLH 2006, Section 19.5
(7.fwrry,edvswraraJ
or (2) _ -
/Irds.tlyJndrml xnn°rsJ
or both, in the following aalounla: State $ 125,000,0(1
Federal $
T). T~ursuant to _ 5eetion 1.41-1(3~= I~IlZS ,the STA'L'K
(l;ryal mM°rMy b mmr bun ~i,Ca"nxv)
is authorized to enter into this Contract.
G_ The agency's Chief Procurement (7fYicer is Aaron Fuiioka
who ? has approved this procurement or ®is not required to approve thin procurement.
NOW, THEREFORE, in eoasideration of the promisee contained in this Contract, the
STATE and the CON`1'RACTOR agree as follows:
1. Serape of Services. The CON"['RACTOR sha11, in a proper and satisfactory
manner as determined by the STATE, provide all dte goods or sorviccs, ar both, set forth in Attachment-
S 1, which is made a part of this C:untract.
I ~ EXHIBIT " 1 "
AG-002 tier o7nanuun
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2. Comcensatlon. The CONTRACTOR. shall be wmpansated for goods
supplied or services performed, or both, under this Contract in a total amount not to txceed
ONE HUNDRED`I'WEN'I'YFIVF..TNOUSANDAND00/l0U _ DOf_~ARS
125,000.00 irtcluding approved costs ineurrcd :md faxes, according to the Compensation and
Payment Schedule set forth in Attachment-$2, which is made a part of this Coutract.
3. Time of Performance, The services or goods required of the CONTRACTOR
under this Contract shall be performed a>1d completed in accordance wiW the Time of Yerfomance set
forth in Attachment-S3, which is made a p8rt of this Contract.
4, fonds. Thn CONTRACTOR is required lv provide or ®is not required to
provide: ? a perfotrnnnce bond, ? a payment bond, ? a performance and payment bond in the
amoutrtof DOLLARS
5. Standards of Cond fleet i The Standards of Conduct Declaration of the
CONTRACTOR is attaehcd to and made a part of this Contract.
6. Qth~~Terms and Conditions. The General Conditions and any Special
Conditions arc attached to and made a part of this Conhzrct. In the event of a Conflict between the
General Cvndiriotrs and the Special Conditions, Chc Special Conditions shall control.
7, Liquidated Damttfres. Liquidated damages shall be as.9essed in the amount of
NIA f>U1,I,PtRS
U.00 ,)par day, in accordance with the terms of paragraph 9 of the General Conditions.
8, tices. Any written ncrtice required tv be given try any party to this Contract
shall ba (a) delivered personally, or (b} sent by United States first elaas mail, postage prepaid. Notice to
the STATE slurll be stunt to the T-TOPA'S address indicated in the Contract. Notice to the
CONTRACTOR shall be sent to the CONTRACTOR'S address indicated in the Contract. A nvtico shall
be deemed to have balm rawived three (3) days a8er' mailing or at the time of actual receipt, whichever
is tearliar. The CONTRACTOR is responsible for notifying the STATE in writing of any change of
address,
1N VIEW OF THF.. ABOVE, The partiaa execute this Contract by thmie signatures, on the
dates below, to be elTcv;tive as ofthe date first above written.
STATE
r~J -
~ySandraLee Kutrimuto
(PrMr Nmm)
/hMe 95nq
f~J
CONTRACTOR
;dt :o! ,id,~ County of Hawaii
R,Yme.~'C'wrcuerorJ
(.Py;rohrnel
(Prim M.ma•)
(Yrinf 7&Ia9 '
(lMte1
APPROV1r:D Ai3 TO FORM:
Deputy Allomey General
F.vidm,~x: !dRUfhoriiy orthe WNTRACTnR'S n:p~acntativa t0 sign titia Conuac[ for the CONI'ttACTOR muxt he attached.
2
A(i-(MY1 Rev 0784/1006
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4~' ~ ~~N
STATE OF iiAWAii
6
STATE UB )
SS.
COUNTY OF )
On this day of v , before me appeared
_ anA _ , t0 me
known, to be the person(s) described in and, who, being by me: duly om, did say that he/shelihey is/are
and of
,the
CONTRACTOR named in the foregoing ins d that he/she/they is/are authorized to sign said
instrument on behalf of the CONTRACTOR. d acknowlalges that he/shehhey executed said
instrument aq the free act and deed of the CO CTOR.
rs+xl
s:
Notary Public, State of
My commission expires:
no-oo7 tuv unsrzuus 1
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4f se
STATE OF 1;IAWAI[
' CONTRACTOR'S
STANDARDS Off' CONDUCT DECLARATION
For the purposes of this declaration:
"Agency" means anA includes the State, the legislature and its committees, all executive
dcpartmegts, boards, commissions, committees, btueaus, offices; and all independent
commissions and other establishments of tho state government but excluding the courts.
"Controlling interest" means an interest in a business or other undertaking which is sufficient in
fact to control, whctltcr the interest is gteatnr or less than fifty per cent (50%).
"Employee" means a,ty nombwled, appointed, or elected officer or employee of the 51nte,
including members of boards, commissions, and committees, aqd employees under contract to
the State or oY t}te eoustitutional convention, but excluding legislntnrs, delegates to the
wnstitutional convention, justices, and judges. (Section 84-3, HRS).
Oq behalf of County of Hawaii ,CONTRACTOR, the
undersifined does declare as follows:
I. CONTRAC'fUR ? is ®is nut a legislator or an employe; or a business in which a legislator
or an employee has a cogtrollittg interest, (Sec:tion 84-15(a), HRS).
2. CONTRACTOR has not been representul or assisted personally in the matter by an individual
who has been an employee ol'the agency awarding this Conbract within the preceding two years
and who participated while so employed in the matter with wbich the Gontroct is directly
concerned. (Section 84-15(b), HRS).
3. CONTRACTOR has not been assisted or represented by a legislator or employee for a fee or
other compensation to ohtain this Coutrect and will not be assisted nr reptesertted by a legislator
or employee for a fee or other compensation in the performance of this Contract, if the legislator
or employee had peen involved in the development or award of the Contract (Section 84-14 (d),
HRS).
4. CONTRACTOR has not been represented on matters related to this Contract, for a fee or otter
consideration by an individual who, within the pact twelve (12) months, has been art agency
employoa, or in the case of rte Legislature, a legislator, and participated while an employee or
legislator on matters related to tbia Contract. (Sections 84-18(b) and (c), HRS).
CONTRACTOR understands that the Contmct to which this document is attached is voidable on behalf
of the STATE if this Contract was entered into in violation of any provision of chapter 84, hiawaii
Revised statutes, commonly referred to as the Code of fithics, includmg the provisions which are the
source of the declarations about. Additionally, any fee, compensation, gi#I, or profit reccivexl by any
person oA a result of a violation of the Coda of Ethics may be recovered by the STATE.
CONTRACTOR
I3y
~i~~
1'ritrt Name
Print "Cille
Name of Conlrxc:tor CAunty of FIawaii
Date
AGA10 Rev 11/15/2005 1
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~ Attachment A
,
ILrry Klm DiYic Kaehu
M~xrr MwWlinlt Uhsdro~
,
Bprbm'a J. Knxsow
County of Mawai`i !kJ>uryManaXMRUtrecrnr
BYl uwi.,i stroer • Hib, Hawei`i%7203982• (808)%I•tl21t FAx (808)%Ib553
KONA: 75-5706 Kuukiwi HiBbwuy, Suite 107. Keiha•Knna, M[nvei`i %740
(808)729-522M1 • f:uc(808)32G-Sb63
County of Wawaii
Treatment Facility
Cost-Sharing Program
March 28, 2007
Potted foliage, flowering end landscape plants are a potential pathway for the
movement of the coqui frog on the Island of Hawaii and from one island to another.
Commercial nurseries have been identified as a potential source of the frog infestation
and various proposals have been presented to stop the movement of the frog through
the commercial plant trade.
The 2006 Legislature through Act 160, SLH 2006 has made funds available to expand
program efforts to control, contain and eradicate the coqui frog.
For commercial nurseries, a promising technology is the application of hot water (113
degree Fahrenheit for a minimum of 5 minutes) in a chamber for the disinfestation of
potted foliage plants and other plant materials and artlclea of the coqui frog.
The technology has been researched and developed to a commercial application by
researchers with the University of Hawaii College of Tropical r~gricukure and Human
Resources and with the University of Hawaii -Hilo, Department of Agricultural
Engineering.
A hot water treatment facility has been installed by one grower an the Island of Oahu for
the treatment of plants received from the Island of Hawaii and for the treatment of plants
in production at the nursery prior to release to markets.
A second treatment iacitilty was recenNy constructed by the Hawaii Department of
Agriculture, Plant Quarantine Branch, at its main office complex on Oahu at 1&49 Auiki
Street, Honolulu, Hawaii. The treatment facility will be used to treat plants found to be
infested with the frog prior to the release of the plants to markets.
State and County officials have met with representatives of the nursery industry on the
Island of Hawaii to discuss proposed quarantine measures to prevent the movement of
County Of Hawni'i iv m, tfqupl Cpponudty Pravidor and Empluyrx.
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Treatment Facility
Cost-Sharing Program
Page 2
the coqui frog on the Island of Hawaii and from the Island of Hawaii to markets on other
islands and the mainland.
Nursery industry representatives were supportive of the project for the HDOA to
construct a second hot water treatment facility on the Island of Hawaii, at or close to
Hilo Harbor for the treatment of plants prior to movement from Hilo to other islands. The
discussions, however, note serious logistics problems for nurseries with only a single
Treatment facility for East Mawaii. The use of me single facility would require additional
handling and transportation costs; uncertainties regarding timing of services (relative to
barg® schedules), possibility of reinfestation of plants, and the need to find secured
storage to allow plants to dry prior to final sleeving and loading into containers for
shipment to markets.
Alternative programs that have been suggested include:
1. Establishing a program for construction of facilities in key growing areas for use
by growers in those areas.
2. Assistance to industry with design details and technical support for the
construction of custom units at individual nurseries.
3. Cost sharing in the construction of facilities.
4. Technical assistance to minimize redundancies, e.g., HDOA, University or
County could provide the resources (personnel and equipment) to calibrate
systems at no or minimum costs to growers to assure quality assurance and
quality control (gAlQC) in the use of hot water as a quarantine treatment and to
assure the application of the technology in a manner that assure the maximum
benefit to growers,
5. The need for the State, County and Industry to establish a program with support
working groups far coqui frog and other pest of quarar~ine concern.
The County of Mawaii currentty shepherds a mini rant program (maximum of $5,000)
to support lacat neighborhoods control the coqui frog. Funds can be used for the
purchase of chemicals (e.g., citric acid and hydrated lime), safety supplies, and other
equipment for the treatment of infested areas to minimise the nuisance levels of the frog
in neighborhoods.
The County of Hawaii believes acost-sharing program for nurseries to cover allowable
expenses in the construction of hot water treatment facilities is a program that should be
pursued given the importance of the nursery industry to the overall economy of the
County of Hawaii.
County atlinwiri'i ev un i?gnal Oppo,wniq~ Ruvider anA Gmpbyer.
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Treatment Facility
Cost~harting Program
Page 3
The County proposes the following scope of services that can be provided by the
County of Hawaii with funding support from the Hawaii Department of Agriculture:
1. The County of Hawaii will administer acost-sharing program to assist qualified
nurseries and landscape companies on the Island of Wawaii to finance the construction
of hot water treatment chambers for the disinfestation of plants and plant parts of the
coqui frog,
2. Qualfied nurseries and landscape companies are companies that have a
recorded place of business and a current Excise Tax License to conduct business,
3. The County of Hawaii will enter into agreements with qualified nursery and
landscape companies to reimburse the companies up to Z5% of the approved cost of
construction of facilities, not to exceed $10,000 per facility or project, that meet
minimum specifications for the treatment of plants, plant parts, and other articles for
Caribbean frog disinfestation.
4. Minimum specifications shall inGude the delivery of heated water at a minimum
temperature of 113 dagrr~s Fahrenheit for 5 minutes within the treatment space in a
manner with minimum negative effects on the market qualify of plants.
5. Approved costs are costs incurred for heaters, thermostats, controls, piping,
noales, pumps and chambers for treatment facilities that are installed and fully
operational for the treatment of plants for coqui frog disinfeamtion to specvfication noted
above (113 degrees Fahrenheit for a minimum time period of 5 minutes within a
treatment chamber).
6. The County of Hawaii will utilize the support of an independent third party agreed
tq by the State to verify that hot water treatment chambers perform to specification.
7. Funding for this project is proposed at a lump sum of $125,000, at no ovefiead
costs applied by the County of Hawaii ko administer the program.
S. A two year expenditure time period is proposed for the administering of the
program from the date of execution of a contrdct with the Hawaii Department of
Agriculture.
Cn~nty MHawxi i is Equal (1pM+rtnniry Ptovidor oud Emptrrycn
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~•OY H,
• • , Attachment - Sl
STA'I'R OF IiAWAii
SCOPE OF SER'VYCES
The GUN"1'KACTOR shalt, in a satiyfactnry and proper mamter as determined by the STATE and in
accordance with the terms and conditions of the Contract, administer acost-sharing program to assist
gttaGfied nurseries and landscape companies on the Island of Hawaii to finance the copstmction of hot
water treatment facilities for the treatment of plants and plant parts for coqui frog (Elcutherodtrctylus
coqui) disinfestation..
The CUNTRAC'fOR shall administer a wsl-sharing program for fire construction of hot-water treatment
facilities for coqui frog contml in accordance with the project objectives and scups of work of the
project entitled, "County of Hawaii Treatment Facility Cost-Sharing Progam", herein relerred to as the
Project, as described in Attachment A, attached hereto, which is incorporated herein and made a part of
this Conlr.ua.
The CONTRACTOR shall enter into written agreements with yualifi~l nursery and landscape
~impanies to reimburse the companies Up to 25% of the qualified cvsts of construction of treatment
facilities, not to exceed $10,000 reimbursement per facility that meets minimum specifications for the
hot-water treatment of plank, pl:mt park and other articles for coqui frog disinfestation. Minimum
specifications shall include the delivery of heated water at a minimum temperature of 113 degrees
E'ahrenheit for five (5) minutes within the treatment space in a manner that results in minimum negative
cli'ects on the market quality of plants.
The CONTRACTOR shall employ an independent third party agreed w by the STATE to verify that a
hot water Irealment facility as a condition for reimbursement performs to specifieatioas and that
qualified coscs-items have been installed and are operational within the systems. Qualified costs-items
are limited to the following component parts of hot water treatment facilities: heaters, thermostats,
controls, piping, nozzles, pumps and chamber.
The CONTRAC'fUR shall submit to the STATE by Tuly 30, 2009 a linal report sununarizing all costs-
sharing expenditures made under the Conttuct tp qualified nurseries and landscape companies by
recipients finm date of execution of the Contract to June 30, 2009.
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~av h,~
¢ Attachment-SZ
3TATF. OF HAWAII
s COMPENSATION AND PAYMENT SCHEDULE
"1'he STATE agrees to pay the CONTRACTOR. for services rendered under this Contract , a tnml stun of
not to exceed ON6liUNllltED TWENTY FIVE-TH017SA7V1) AND 00/100 DOLLARS ($12$,000.00).
The total payment 1'ur services rendered shall he in n Iwup sum payment to the CONTRACTOR due upon
raiwulion of this Contract.
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t~0Y h1
• s ~ STATE OF HAWAii Attachment-53
4~~
Ti1VE rERFORMANCl'r
1. Services: The task described in Attachment S 1 shall be performcnl between the date of execution of this
Contrnct and Jw~e 30, 2009.
2. Repcrt:
The CONTRACTOR shall suhmit to the State a £mal ralmrt as described in Attachment SI on or hofore
July 30, 2009,
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•°f
as , Attachment - S.5
. STAfI~ OF HAWATT
m ~ SPECIAL CONDITIONS
The CONTRACTOR agctes to: (n) mention the S'1'ATB, as outlined below, on all news releases and
other information materials and publications re6*arding the service propoacd under the Contract and (b) send the
STATE wpius of all such materials simuitaneously with their rolease to the public. in any such promotional
material, ilia STATE shall he mentioned with such terms as "in cooperation with tho State of Hawaii Department
of Agriculture" or "co•spenaorcd with the State of Hawaii Departrnent of Agriculture" or "produced with funds
from the Slate of Hawaii Department of Agriculture", or variants lhureof.
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U)?NEKAL CUNDITIUNS
Table o!'Cnntents
Pa e s
1. Coordination of Services by the STATE ........................................................................................................2
2. Relationship of Parties; Independent Contractor Status and Responsibilities, Including Tax
Rrspvnsibilities
2
3. Personnel Requuemonti .....3
.
4. Nondiscrimination - ....3
5. Conflicts of Tnterest ......................3
G. Subeontracls and Assignments ...._......................,......,....3
7. Lndcmnification and Defense ..........................................................................................................................4
8. Cost of Litig¢tinn .....4
9. Liquidated Datnages ........................................................................................................................................4
10. STATE'SRiKhtofOffset ......................4
11. Disputes - - ...4
12. Suspensio¢ of Contract ...4
l3. Ternvnation for Default - ....5
14. 'I'cm~inalion !'or Convcnience .........................................................................................................................6
15. Claims Based on the Agency Procurement Officer's Actions ur Omissions ..................................................7
l6. Costs and F.xpensea......,,..~
R
17. Payment Procedures; Pinal Payment; Tax Clearance .....................................---................................._..........9
18. Federal Funds
9
19. Modifications of C:nntracc - ...........................9
20. Change Ordcr ................................................................................................................................................10
21. PriceA[Ijuslment
I I
22. Variation in (Zuantiry fur Definite Quantity Contracts l l
23. Changes in Cuss-Reimbursement Crnrtracl ..............................................................................-...................11
24. Confidentiality Of M¢teri¢1 - -.........,..,...................._,,........-..........................................12
25. Puhlicity ......................12
2ti. Ownership Rights and Copyright .............................._-__.............................................................._............-12
27. Liens and Warranties .....................................................................................................................................12
28. Audit of Bunks and Records of rho CON`1'RACTOR t2
29. ('ost or Pricing Data ......................................................................................................................................1.2
311. Audis of Cost or Pricing D¢ta ....13
31. Records Retention........,_ l3
32. Antitlvst C;laims .............,1.3
33. Patented Articles ......13
34. Governing Law ................................................._........_.........................,.........,,..................._......................13
35. Compliance with Laws ......13
36. Conflict between General CouJitions and Procurement Rules .....................................................................13
37. Entire C.'antracl 13
38. Scvcrability ........13
39. Waiver - ......,..........................._.._.....-................-.,,..13
40. Pollution Control 14
41. CampalgnCnntrihul.ions ..............................................................................................._......_........-.-...........14
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GENERAL CONDITIONS
1. r i~tion of Services by the STATE. The head of the purchaairtg agency ("HOPA") (which term
includes the designee of the HOPA) shall coordinate the services w be provided by the CONTRACTOR in
order to wmplete the performance requircd in the Contract. The CONTRACTOR shall maintain
contmunicationswith HOPA at all stages of the CONTRACTOR'S work, and submit to HOPA for resolution
any questions which may arise a, tv the performance of this Contract. "Purchasing agency" ns uecd in Chace
Genetnl Conditions rncans and includes any governmental body which is authori2ul under chapter 103D,
I-RtS, or its implementing roles and procedures, or by way of Delegation, to enter into contracts 1'vr the
procurement of goods or services or both,
2. Rolalionshin of Pnr[ies: independent C:ouuaclor Status and Rcspunsibiiities. Ineludin>ti Tax Re nsihili ' •s.
a. In the performance of services required unDcr this Contract, the CONTRACTOR is an "independenC
contractor," with the authority and responsibility to control and direct the perfomtmtce and details of
the work and services required under this ('nntract; however, the STATE shall have a general right to
inspect wmk in progress W Determine whether, in the STATE'S opinion, the services are being
performed by the CONTRACTOR in compliance wish This Contract. Unless otherwise providcD by
special condition, it is understood that the S9'A'fE dues nut agree to use the CONTRACTOR
exclusively, and that the CUN1'RACTOR is free to contract to provide services to other individuals
or entities while under contract with the STATE,
h. The CONT1tAC"I'OR and the CONTRACTOR'S employees and agents are not by reason of this
Contract, agents or employees of the State for arty purpose, and the CONTRACTOK and the
CONTRACTOR'S employees stet agents shall not he entitled to claim or receive from the Surtc any
vacation, sick leave, retirement, workers' compensation, unemployment insurance, or other benefits
prvvidcd [o state employees.
c. The CONTRAC:'L'OK shall be responsible for the accuracy, completeness, and adequacy of the
CONTRACTOIt'5 perfomtanee tutdcr this Contract, Furtherrnoro, the CONTRACTOR intentionally,
voluntarily, and knowingly assumes the sole and entire liability to the CONTRACTOR'S employees
and agents, and to any individual not a party to this Contract, for all loss, damage, or h~j ury caased by
the CONTRACTOR, or the CONT'RACTOR'S employees or agents in the course of their
ernploymcnt.
d. The CONTRAC"1'OR. shall 6e responsible for payment vP all applicable federal, state, and county
taxes and fees which may hecomc due and owing by the CONTRACTOR by reason of this Contract,
including but not limited to (i) income taxes, (ii) employment related foes, assessments, and taxes,
and (iii) general excise faxes. The CONTRACTOR also is responsihlc Cur obtaining all licenses,
permits, and certificates Ctral may be required in order to perform this Contract.
c. The CONTRACTOR shall ohtain a general excise tax license from the laepartmertt nfTaxation, Stale
of Hawaii, in accordance with sectiat 237-9, HIt5, and shall comply with all requiremenW thereof.
'.the CONTRACTOR shall obtain a tax clearance certificate from the 1)itector of Toxation, State of
Hawaii, showing that all delinquent taxes, ii' any, levied or accrued under state law against the
CONTRACTOR have been paid and submit the same to the STATL+ prior to commencing any
performance under this Contract, The CONTRACTOR shall also be solely responsible For meeting
all requirements necessary to obtain the tsx clearance cerfiGcate requircd for frost payment uudcr
scelivns 103-53 and 10:3D-328, HRS, and paragraph 17 of these General Conditions.
f. '17te CONTRA.C:TOR is responsible for securing all employee-related insurance coverage fur the
CONTFt A C'1'OK and the CONTRACTOR'S employees anD agents that is or may be required by law,
and for payment of all premiums, costs, attd other liabilities associated with securing the insttrance
coverage.
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3. Personne,1 Reauiremeuts.
a. The CONTRACTOR shall secure, at the CONTRACTOR'S own expense, all personnel required to
perform this Contract.
b. The COMI'1tAG"fOR shall ensure that the CONTRACTOR'S employees or agt"ats are experieuccd
and filly qualified tv engage in the activities and perfunn the services required under this Contract,
and that all applicablC licensing and operating requirtKttcnts imposed or roqui red under federal, state,
or county law, and all applicable accreditation and ether standards of quality generally accepted in
the Geld of the activities of such employees and agents are complied with and salist3ed.
4. Nondiscrimination. Nopta'sonperformingwnrkunderthiaContnct,includinganysubcontractor,employee,
or agent of the CONTRACTOR, shall engage in any discrimination that is prohibited by tttty applicable
federal, State, nr county law.
5. Conflictsnfinterost. The CONTRACTOR represents that neither theCON'1'RACTOR,noranyemplvyeeor
agent of the CONTRACTOR, presently has any interest, and promises that no Such interest, direct yr indirrct,
shall be acquired, that would nr ought conAiet in any manner or degree with the CONTItACTOR.'S
pcrforntxnce under this Contract.
6. Suhcvntracts a11d AS6le1n11P~1I5. TItC CONTRA("C'OR shall not assign or subcontract any of the
CONTRAC'TOR'S duties, obligations, or interests under this Contract and no such assignrntont or subcontract
shall be effective unless (i) the CON'I.IZACTOR obtains the prior written consent of the STATE and (ii) the
CONTRACTOR'S assignee or subcontractor submits to the S'I'ATF.. n tax clearance certiticatu from the
Director ol'Txxxtion, State of ITawaii, showing that all delinquent taxes, if atty, lvvi~l or accrued under state
IawxgainsttheCONTRACTOR'Sassigneeorsubconhacturhuvebeenpaid. Additionally, noasai~mentby
the C'ONTRACfOR of the CONTRACTOR'S right to Compensation under this Contract shall be effective
unless and until the assigtmtvnt is approved by the Compholler of the State ofHawau, as provided in section
40-58, HRS.
n. Reuvdmilivn of a successor in interest. When ut the best interest of the State, a successor in interest
may bC ru:ognized in an assignment contract in which the STATE, the CONTRACTOR and the
assignee or tt'ansferee (hereinaQa refeaed tv ac the "Assfgncv:') agree that;
(1) The Assignee assumes all ofthc CONTRACTOR'S obligations;
(2) The CONTRACTOR remains liable for all obligations under this C:untract but waives all
rights antler this Contract as against the STATE; and
(3) The CONTRACL'I'OR shall continue to famish, xntl the Assignee shall also famish, all
required bonds.
b. Change ol'name. When the CONTRACTOR asks lu change the name in which it holds this C'onuact
with the S'I'A'I'E, the procurCtnenl vfficer of the purchasing xguney (hereinat)cr refi;trcd to as the
"Agency procurement vfficer") shall, upon roceipt of n document acceptable or satislacCury to the
Agency procurement officer indicating such change of name (tor example, an amendment lv the
CONTRACTOR'S articles of incorpvrxfion), enttx into an amendment to tkds Conhact with the
CONTRACTOR to effect sut:h a change of name. The amendment to this C:untract changing the
CONTRACTOR'S name shall specificnlly indicate that nn other tetras and Conditions ofthis Cgtttract
are thereby changed.
c. Reports. All assignment Contracts and amendments to this Contract effecting changes of the
CONTRAC'TOk'S name or uovativns hereunder shall be reported to the chief procurement ofticcr
(CPO) as daFined in section 103D-203(x), IIRS, within thirty days of the date that the assignment
contract ur amendment becomes effective.
ti. Actions nttectina mere thin one Rurchasine seance. Notwithstanding the provisions of
subparagraphs fin through 6c herein, when the CONTRACTOR holds conu'xCls with more than one
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purchasing agency of the State, the a, sibmment conhacts and the novation and change of name
antendmcrrts herein authorized shall he processed only thmuglm the CPO's office.
7. Indemni>-lcation and Defense. The CONTRACTOR shall defend, indemnify, and hold harmless the State of
Hawaii, the wntracting agency, and their officers, employees, and agents from and against all liahil ity, loss,
damage, cost, and expense, including all attorneys' fees, and all claims, suits, and demands therefore, arising
out of or resulting firm the acts nr ontissions ol'the CONTRACTOR ur the CONTRACTOR'S employees,
officers, agents, or subcontractors under this Contract. The provisions of this paragmph shill remain in full
force and eflcct notwithstanding the expiration nr early terminative of this Contract.
8. Cyst of Litiaatlnll. In case the STATE shall, without any kault on its part, be made a party to any litigadnn
commenced by
orby
or against the CONTRACTOR in connection with this Contract, dtv CONTRACTOR shall
pay all costs and expenses incun•cd by of impwcd on the STATE, including attorneys' fees.
9. LinuidateciDantauL`a. When theCONTRAC`l'ORiagivuttnoticeofdclayornonperforma»coasspecifiedin
parngraph 13 ("I:'crtinatiou for Default) and fails to cum in the time specified, it is agreed the CONTRACTUR
shall pay to the STATF, the amount, if any, set forth in this Contract per calendar day from the dale set far
cure until either (i) the STATE reasonably obtains similar goods or services, or tenth, if[he CONTRACTOR is
terminated for default, yr (ii) until the CONTRACTOR provides the goods or cervices, er both, it' the
CONTRACTOR is not terminated for default. To the extent that the CONTRACTOR'S delay or
nonpertbrmance is excused under paragraph 13d (Excuse fm• Nonpert'otntanee or Delay Performance),
iiquidalaldamagesshallnotbeassessableagainstlhcCONTRAC'1'OR. T1rcCONTRACI'ORrcmainsliable
for damages caused othcx than by delay.
1U. STATE'$ kight of UtTset. The STATE may offset against wry monies or other ohligatioru the STATE owes
to the CONTRACTOR under this Contract, any amounts owed [n the State ofklawaii by the CONTRACTOR.
under [Fria Contract or any other contracts, or pursuant to any law or ether obligation owed to the Stara of
Hawai i by the CONTRACTOR, including, without limitation, lhepayment of any taxes or levies ofarry kind
or nature. 1'hc STATE will notify the CONTRACTOR. in writing of any offset and the nature ofsuch till'set,
Por purposes of this paragraph, amounts owed to the State of Hawaii shall not include debts or obligations
which have been liquidated, agreed to by the CONTRACTOR, and are covt,•rui by an installment payment or
other settlement plan approved by the State of Hawaii, provided, however, that the CONTRACTOR shall be
entiClcd w such exclusion only to the extent that the CONTRACTOR is current with, and not delinyucnt on,
any payments or obligations owed to the State of Hawaii under such payment nr other settlement plan.
l 1. Pis ut Disputes shall be resolved in accordance with section lU3D-703, I-IItS, and chapter 3-126, Hawaii
Admhtiatralivc Rules ("IIAR"), as the same maybe amended from time to time,
12. Suspension of Contract. The STATE reserves the riglrt at any time and for any reason to suspend [his
Contmct for any tcasonablc period, upon written notice um the CONTRACTOR in accordance with the
provisions herein.
a. Order to slop performance;. The A6ency procurement officer may, by written order W the
CONTRACTOR, at any time, and without notice to any surety, require the CONTRACTOR to stop
all er any part of the perforrrrance called for by this Contract. This order shall be for a specified
period not exceeding sixty (6U) days after the order is delivcrud [o the CONTRACTOR, unless the
parties agree to any further period, Any such order shall be identified specifically as a stop
performance order issued pursuant to [his section. Stop perfixmmurce orders shall include, as
appropriate: (1) A clear description of the work to he suspended; (2) Instructions as to the issuance of
further orders by the CONTRAC`T'OR for material or services; (3) Ouidanve as to action tv be taken
on subcontracts; and (4) Other instmetiuna and suggestions to the CONTRACTOR for minimizing
costa. Utxmn receipt of such an order, the CONTRACTOR shall forthwith comply with its [ernes and
suspend all pertbnnanee under this Contract at the lime stated, provided, however, the
CONTRACTOR shall take all tcasvnable steps to minimize the occurrence of costs allocable to the
performance rnvered by the order during the period of perfonnunce stoppage. Defvre the step
performance order expires, or within %ny huther period to which the parties shall ha.vc agreed, the
Agency procurement officer shall either:
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(l) Cancel the Stop pertbnnance order; nr
(2) Terminate the performance covered by such order as provided in the terminntioa fur default
provision ur the temmination far convetuettcc provision of this Contract.
b. Cancellation nr expiration of the order, If a stop psrformance order issued under this section is
cancelled at any time during tlme period specified irm the order, ur if the period of the order or any
extension thereof expires, dts CUNTRACTOR shall have the right to resume performance. Att
appropriate adjustment shall be made in the delivery schedule or contract prioe, ur both, and the
Contract shall he modifiad in writing acwrdingly, if'
(1) The stop performance order resulla in an increase in the t¢nc required for, ur in the
CONTRACTOR'S cost properly al losable to, the performanus of any part of Utis Contract;
and
(2) The CONTRAC."'I"OR asssrts a claim for such an adjustment within thirey (30) days after the
end of the period of perthrmamcs stoppage; provided that, if the Agency procunement officer
decides that the facts justify such action, any such elairn asserted maybe recsived and acted
upon at any time prior to final payrncnt under this Contract,
c. Temmination of stooved aerforntance. if a stop pertbrrrtance order is not cancelled and the
performance covered by such under is terminated for default or convenience, [hc reasonahle costa
resulting from the stop perfonnauce order shall be allowable by adjustment or otherwise.
d. Aduslment of price. Any adjustment in contract price made pursuant lu this paragraph shall be
deternmined in accordance with the price adjustmmont provision of this Contract,
13. Termination for Default.
a. Defaul If the CONTRACTORrefaaes nr fails to perform any ofthe provisions of this Gontrut with
such diligence as will ensure its completion within the time specified in this Contrast, or any
extension thereof, otherwise fails to timely satisfy the Contract prnvisivtts, or commita any other
suhstantial hreaeh of this Contract, the Agency procurement officer may notify [lw CONTR ACTOR
in writing of the delay or non-performance and if not cured in ten (10) days or any lottger time
specified in writing by the Agsnsy procurement otlicer, such officer may terminate the
CONTRACTOR'S right to proceed with the Contractor such part of the Gumtract as to which there
has been delay or a failure lu properly perforrrt. In the event of termination in whole or in part, the
Agency procurement off isa may procure sinular goods nr services in a manner and upon the terms
deemed appropriate by the Agency ptvvuroment officer, The CONTRACTOR shalt continue
pettbrmance of the Contract to the extent it is not terminated and shall be liable for excess costs
incurccd in procuring similar goods or services.
b. CONTRAC:`CS7R'5duties. Notwithstandingtermitta6onoftheContraetandsuhjscltoanydirtactions
from the Agency proeurentenl officer, the CONTRACTOR shall take tinmely, reasonable, and
necessary action to protect and preserve property in [he possession ofthe CONTRACTOR in which
the STATLr has an interest.
c. Cnnmpetmsation. payneent fur completed goods and services delivered and acec'pled by the STATE
Shall he at the pries set forth in the Contract. Payntemt lur the protection and preservation ofpropetiy
shall he in an anmount agreed upon by the CONTRACTOR and the Agency procurement officer. I I'
the parties fail to agree, the Agt'nsy procurement officer shall set an amount subjcet to the
CONTRACTOR'S rights under chapter 3-126, I-TAR. The S"I'AT6 may withhold from amounts due
the CONTRACTOR such sums as the Agency procurement officer deems to be necessary to protect
Che STATIr against loss because of outstanding liens or claims armd to reimburse the STATE for the
excess costs expected to he incurred by the STATE in procuring similar gvods and services.
d. Excuse for nonperformance or delayedpertornmanss. The CONTRACTOR shall not be in default by
reason of any failure iu pcrfunnance of this Contract in avcordance with its terms, including any
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failure by the CONTRACTOR to make progress in the proaceulion of the performance hereunder
which endangers such perfonnanee, if the CONTRAC."I:'OR has noliftod the Agency procurement
officer within fifteen (l5) days after tl,e cause of the delay and the f'ailun: arises out of causes such as:
acts of Cod; acts of a public enemy; acts of the State and any other govcmmental body in its
soveroign or contractual capacity; fires; Iloods; epidemics; quarantine restrictions; strikes er other
labor disputes; height embazgoes; or unusually severe weather. ffthe failure to perform is caused by
the failure of a subcontractor to ptxform or to make progress, and if such failure arises out ofcauses
similar to those set firth above, the CONTRACTOR shall nut be deemed to be in default, unless the
goods and services to be tarnished by the subcontractor were reasonably ohtainable from other
sources in sufficient time to permit the CONTRACTOR to meet the requirements of the Contract.
Upon request of the CONTRACTOR, the Agency procurement officer shall ascertain the tuts and
extent of such failure, and, if such officer determines that any fai taro to perform was occasioned by
any one or more of the excusable causes, and that, but for the excusable oause, the CON'f R ACTOR'S
prog[css and performance would have met the tcmis of the Contract, the delivery schedule shall be
revised aeeortlingly, subject to the rights of the STATE under this Contract. As used in this
paragraph, the terra "subcontractor" means subcontractor al any Ger.
c. Eroneous termination for default. lf, after notice oftermination of We CONTRACTOR'S right to
proceed under this paragraph, it is determined for any reason that the CONTRACTOtt was not in
default muter this paragraph, or that the delay was excusable under the provisions of subparagraph
13d, "Excuse for nonpcrformauce or delayed perfmmaacc," the rights and obligations of the parties
shall be the same as if the notice of tcmrination had been issued pursuant to psragmph 14.
f Additional tights and remedies. The rights and remedies previded in this paragraph are in addition to
any other rights sod remedies provided by law or under this Contract.
14. Termination furConvcnicncc.
a. Termination. The Agency procurement otYicer may, when the interests of the STATE so require,
terminate this Contract in whole or in pelt, for thu convenience of the STATE. The agency
procurement officer shall 6wc written notice of the termination to the CONTR A.C:TUR spu;ifying the
part of the Contract. terminated and when termination becomes effective.
b. CONTRACTOR'S obligations. '1'hc CONTRACTOR shall incur no furtherobligations in connection
with the terminated perfonnmice said on the date(s) set in the notice of termination the
CONTRACTOR will stop perfornianee to the cxu.^nt specified. The CUNTRACTOR shall also
tcrmutate outstanding orders and subcontracts as Ihey relate to the tenninakcd performance. The
CONTRACTOR shall settle the liabilities and claims arising out ofthe termination oCsubcontrsets
and orders connected with the terminated performance subject to the STATE'S approval. The
Agency procurement officer may direct the CONTRACTOR to assign the CONTRACTOR'S right,
title, and interest under terminated orders or aubcuntracts to the STA"I'R. The CONTRACTOK must
still complete the perfocrnanu: nut terminated by the notice of lcrnination and may incur obligations
as necessary to do so.
o. Ri tto oodanndwerkpreduct `ChcAgencyprocurementofficernutyrcyuiretheCONTRACfUR
to transfer title and deliver to the STATF. in the manner and to the extent directed by the Ageucy
procuremccrt officer:
(1) Any completed goods or work product; and
(2) The partially completed goods and materials, part's, Cools, dies, jigs, fixtures, plans, drawings,
information, and contract rights (hereinafter called "manufacturing material") as the
CONTRACTOR has speeiflcally produced or special ly acquired for the performance of the
terminated part of this Contract.
The CONTRACTOR shall, upon direction of the Agency procurement officer, protect and preserve
propeliy in the possession oCthe CONTRACTOR in which the STATE has an interest. ICthe Agency
procurement officer does not exercise this right, the CONTRACTOR shall use best efforts to sell
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such gvuds and manufacturing materials. Use of this paragraph in noway implies that the STA.'CE
has breached the Contract by exar:ise of the terminative for convenience provision.
d. Compenaatinn.
(1) The CONTRACTOR shall submit a lcmtination claim specifying the umounts due berausc of
the ler[nination for convenience together with the cost orpricing data, submitted to lha: extent
required by chapter 3-122, HAR, hearing on such claim. If the CONTRACTOR fails tv file
a termination claim within one year firom thv effective date of termination, the Agency
prucun,~me;nt ullicer may pay the CONTR ACTOR, if at all, an amount set in accotdance with
subparagraph 14d(3) below.
(2) The Agency procurement ufticer and the CONTRACTOR may agree to a settlement
provided the CON'.l'RAC't'UR has filed a termination claim supported by cost or pricing data
submitted as required Gael that the settlement does not exceed the total Contract price plus
settlement costs reduced by payments pn;viously made by the STATE, the proceeds of any
Galva of goods and manufacturing materials under subparagraph t 4c, and the Contract price
ol'the performance not tem~inated.
Ahsent conrytlcic agrccntent under subparagraph 14d(2) the Agency procutctnent officer
shall pay the CONTRACTOR the lbllowing amounts, provided payments agreed tv under
subparagraph 14d(2) shall not duplicate payments under this subparagraph for the fnl lowing:
(A) Conlrad prices fur goods or services steepled under the Contract;
(B) C,'ostvincun•edinpriparingtoper£orntattdperfnrvni.ngthetetminatedtxtrfionofthe
perfornance plus a fair and rcaaonable profit nn such portion of the performance,
such profit shall not include anticipaWry profit or eonsequuntial damages, Icsa
amounts paid or to be paid for accepted gvuds or services; provided, however, that if
it appears that the CONTRACTOR would have sustained a loss if the entire
Cnntractwould have beeu completed, no profit shall be allowed or included and the
amount of compensation shall be reduced to reflect the anticipated rate of loss;
(C) Costs ofsettling and paying claims arising out o£the terntinatirnt ofsubcontracts or
orders pursuant to subparagraph 146. Tktcsc ousts must not include costs paid in
accordance with subparagraph 14d(3)(fi);
(D) ThereaaonahlesettlementcosfsuflheCONTRACTOR,includingaccounting,lcgal,
clerical, and other expenses n;asunably necessary for the preparation of settlement
claims and supporting data with respect tv the laminated portion of Ute Cunlract and
for the termination of subcontracts thereunder, together with reasonahlc storage,
transportation, and other costs incurred in connection with the protection ur
dispositionofpropertyallocahletulheterminatedpnrtionofthisContract. The total
sum to be paid the CONTRACTOR wider this subparagraph shalt not exceed the
total Contract price plus the reacnnablc settlement costs of the CONTRACTOR
reduced by the amount of payments othetlvise made, the proceeds of any salty of
supplies and manufacturing materials under subparagraph 14d(2), and the contract
price of pcrfotrnance nut terminated.
(4) Costs claimed, agreed to, or estttblishal under subparagraphs 14d(2) and 14d(3) shall he in
accordance with Chapter 3-123 (Cost Principles) of the Procurement Rates.
15. Claims Based on the Agency Procurement Officer's Actions or Omissions.
a. Changes in scope. Tf any action nr omission on the part of the Agency procurement officer (which
term includes the designee of such ot~icer for purposes o£this paragraph 15) requiring performance
changes within the scope ofthe Contract catstitutes dtc basis for a claim by the CONTRACTOR for
additivoal compensation, damages, or an extension of time for eompletivn, the CONTRACTOR shall
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continue with perfommnce of the Contract in compliance with the directions or orders of such
officials, but by sa doing, the CONTRACTOR shall not be deemed to have pnjudiced any claim fix
additional compensation, damages, or an extension of lime for completion; provided:
(1) ~Viittett uotice required. The CONTRA.CY'OK shall give written notice to the Agency
proalrcmcnt officer:
(A) Prior tv the commencement of the perfmmaneu involved, if at that time the
CUN'rRACTUR lutows of the occurrence of such action or omission;
(B) Within thirty (30) days after the CONTRACTOR knows ot'tltc occurrence of each
action or omission, if the CON'T'RACTOR did not have such knowledge prior to the
commencement of the performance; or
(C:) W itltin such further time us may he al lowed by the Agency prncurcntrent officer in
writing.
(2) Notice content. This notice shall state that the CONTRAC"TOR regards the act nr omission
as a reason which may entitle the CONTRACTOR to additional compensation, damages, or
an extension of time. The Agency procurement vQieer, upon receipt of such notice, may
rescind such action, remedy such otttission, or take such other steps as may be deemed
advisable in the discretion of the Agency pmcurement otltiecr;
(3) IIasis must be exylained. The notice rcyuin;tl by subparagraph I Sa(1) describes as clearly as
practicable at the time the reasons why the CONTRACTOR believes Thal additional
compensative, datuagcs, or an extensive of time may be remedies to which the
CONTRACTOR is entitled; and
(4) Claim must he justified. The CONTRACTOR must maintain and, upon request, make
avai table to the Agency procuremeul ollicer within a reasonable tune, Jclailed records to the
extent practicable, and other documentation and evidence satisfactory to the STATE,
juslilying the claimed additional costs or an extension of time in Conneetinn with such
changes.
b. CONTRACTOR not e~casod_ Nothing herein contained, however, shall excuse the CONTRACTOR.
from compliance with any rules or laws precluding auy state officers and CO'N'TRACTOR from
acaurg in wllusion or bad faith in issuing or performing change orders which are clearly nut within
the scope of the Contract.
c. Price adjut;meat. Any adjustment in the price made pursuant to this paragraph shall be detemtined in
accordance with the price adjustment provision of this Contract.
I Costs and ExDenscs. Any reimbursement due the CONTRACTOR tix per diem and transportation expenses
under this C.nntract shalt be subject to chaptor 3-123 (Cost principles), HAR, and rho following guidelines;
a. Reimbursement for air transportation shall he for actual cost or coach class air fare, whichever is less.
b. Reimbursement for ground transportation costs shall not exceed the actual cost of reeling an
inferrnediato-sizu;d vehicle.
c. Unless privy written approval of the HOl'A is obtained, reimbursement for subsistence allowance
(i.e., hotel and meals, etc.) shall not exvvcd the applicable daily authorized rates For inter-island or
out-of-state travel that are set forth in the current Governor's Exeeutiv~ tJnlia authorizing adjuctmcnts
in salaries and benefits for state ot3icers and employees in the executive brnnvh who are excluded
from ovllcctive bargaining coverage.
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17. PXVA1l:nt P[ocedures: Final payment; Tax C_'learancc.
a. Ori sing! invoices rccluirul. All payments under th is Cottract shall be made only upon submission by
the CtUNTRACTOR of original invoices specifying the antvunl due and ecrtifyhtg that servioes
requested under the Contract have been performed by the CONTRACTOR according to the Contract.
b, Subjcwl w available funds. Such payments arc subject to availability of funds and allofuumt by the
Director of!'inance in accordance with chapter 37, I-IRS. h'urther, all payments shat! be made in
accordance with and subject to chapter 4U, HRS.
c. Prompt gavtttcut.
(1) Any stoney, olh~•r than retainage, paid to the CONTRACTOR shall by disbursed to
subcontractors within ten (10) days after receipt of the money in accordancv with the
terms of the subcontract; provided that the suhconktaclor has met all thv terms and
conditions ofthe subcontract and there are no bona fide disputes; and
(2) Upon final payment tv the CONTRAC:'fOR, fall payment to Ihv subcontractor,
including retainage, shall be made within ten (10) days after receipt of the money;
provided that there are nv bona fide disputes over fhc subcantractnr's perfomtattce
under the suhcontrttct.
d. Final oavrnunl. Final payment under this Contract shall be subject to sections 103-53 and 103D-328,
FIRS, which require a tax clearance from the Director of Taxation, State of Hawaii, showing that all
delinquent tuxes, if arty, levied or accrued under sate law against the CON'T'RACTOR Lave been
paid.
l M, f''ederal Funds. if this Conlral;l is payable in whole nr in part frottt federal funds, CONTRACTOR agrees that,
as to the portion of the compensation under this Contract to be payable from federal funds, the
CONTRAC'CUR shall be paid only from such funds received from the fulcra! government, and shall not he
paid from any other funds. Fai lure ofthe STATE tv receive anticipated federal funds shall not be considered
a breach by the STATE or an excuse for nnnpcrl'ormance by the CONTRACTOR.
19. MndificatiatsafContract.
a. In writing. Any mollification, alteration, amendment, change, or extensive of any temt, provision, or
condition
of this Contract permitted by this Contract shall be made by written amendment: to this
Contract, signed by the CONTRAC'CUR and the STATE, provided that change orders shat I he made
in accordance with paragraph 20 herein.
b. ~fo oral modification. No oral modification, alteration, amendment, change, or extension of any
term, provision, or condition of this Contract shall be permitted.
c. Aeenev orucurattent officer. By written order, at any lime, and without notice to any surety, the
Agency ptncurctnent oficer may unilaterally m•der of lhu CONTRACTOR:
(A} Changes in the work within thv swpe of the C'nntract; and
(B) Changes in the time of performance of the Contract that do trot alter the swpe of tltc Contract
work.
d. Adjustments of price or time fvr~erformance. Lf any ntodificalion increaacs or dwreases the
CONTRAC1'O12'S cost nf, or the time required for, perforntanu; of any part of the work under this
Contract, an adjushnettf shall ie matte and this Confract modified in writing accordingly. Any
adjustment in contract price made pursuant tv ibis clause shat l be deter[nincd, where applicable, in
accordance with the price adjusnnent clause of this Contract or as negotiated.
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e. Claim barred after final oa
typenf. No claim by the CONTRACTOR for an adjustment hereunder
shall be allowed if written modification of the Contract: is not made prior to final payment under this
Contract.
f. C'laitns not barred In the absence of a written contract modification, nothing in this clause shall be
deentatl to restrict thu CONTRACTOR'S right tv pursue a claim under this Contmct nr for a breach of
contract.
g. CPO approvah if this is a protessivnal services contract awarded pursuant to section 1031-303 or
103D-304, HRS, arty mexlifivation, alteration, antemdment, change, or extension of any term,
provision, nr condition of flue Contract which increases the amount payable to the CONTt2.ACTOR
by at least $25,000.00 or ten per cent (10%) of the initial contract price, whichev~7 increase is high[,T,
must receive the prior approval of the CPO.
h. 'l'ax clearance. The STATE Wray, at its discretion, require the CONTRACTU(t to submit to the
STA"fH, prior to the STATE'S approval of any rnudification, alteration, amendment, change, or
extension of any term, provision, yr condition of this Contract, a tax clearance from the Dinulvr of
Taxation, State ofHawaii, showing that all delhtquent taxes, ifany, levied or accrued under state law
against the CONTRACTOR have been paid.
i. Sulu source contracts. Amendments m sole source contracts that would change the original scope of
the Cnnttact may only be made with the npprvval of the CFO. A.nnusl renewal of a sole soun;e
evntract for services should trot be submitted ac an amendment.
20. Chanuv Order. The Agency pmcurement officer may, by a written order signed only by thu STATE, at any
Yimc, and without nolivc lv any surety, and subject. W all appropriate adjustments, make Changes within the
general scope vl'tl[is Contract in any one or more ofthe fulluwing~
(1) Dmwingc, designs, ur specifications, if the goods or services to he famished axe to be
specially provided to the STATE in accordance therewiUr
(2) Method of delivery; or
(3) Place ol'delivery.
a. Padiustments of~trice or time for perf'ornrarwe. If any change order increases or dcereases the
CONTRACTOR'S cost of, or the time requircrl fur, perfommance ofany part of the work under this
Contmct, whether ur not changed by the order, au adjustment shall he made and the Contract
modified in writing accordingly. Any adjustment in the Contract price made pursuant to this
provision shall be determined in acevrrlance with the price adjustment provision of this Contract.
Failure of the parties to agree to an adjustntcut shall not excuse the CONTRACTOR front proceeding
with the Cvntntvt as changed, provided that the Agency procurement utlicer promptly and duly
rnxkes the provisional adjustments in payment or time for performance as maybe reasonable, $y
proceediag wilt[ the work, the CONTRAC:1'OR shall not be deemed to have prejudiced any claim for
additional cnmpensxtiun, yr any extension of time for completion.
6. Timy period for claim, Within ten (10) days alter receipt of x written change order under
subparagraph 20a, unless the period is extended by the Agency procurement officer in writing, the
CONTRACTORshall respondwithaclaimfvrattadjustment. Thercquiremetrtforatimelywritten
response by CONTRACTOR oannvt be waived and shall be a condition precedent to tho assertion of
a claim.
c, Claint_barred after final payment.. No claim by the CON1'1L4CTOR for an adjust[ncnt hereunder
shall he allowed if a written response is not given prior to final payment under this Contract.
d. Other claims not barred. !n the nbsence of a change order, nothing in this paragrnph 20 shall be
deemed tv restrict the CONTRACTOR'S right lv pursuC a claim under the Contract or for breach of
contract.
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21. price A~juctment.
a.. Price adiustment. Any adjustment in the contract price pursuant to a provision in this Contract shall
be made in one or more of the following ways;
(1) By agreement on a fixod price adjustment before commencement of the pertinent
performance or as spun thereafter as practicable;
(2) By unit prices specified in the C:ontracl pr subsequently agreed upon;
(3) By the costs attributable to the event or situation covered by the provisipn, plan appropriate
profit pt fee, all as specified in the Contract or subsequently ¢grecd uppn;
(4) Lt such other mrutner as llw parties may muhrally agree; or
(5) In the absence of agreement.Itetwccn the parties, by a unilateral determination by the AKuncy
procurement officer of the costs attributable to the even[ or situation covered by the
provision, plus appropriate profit or fee, al(xa computed by the Agency procurement officer
ht accordance witkr gcn~zally accepted aecountiug principles ¢nd applicable sections of
chapters 3-1.23 and 3-12G, HAR.
b. Submission nfcost orpriein~data. 1'he CONTRACTOR shall provide cost or pricing data for any
price adjustments subject to the provisions of chapter 3-122, HAR.
22, Variation in Ouanlity fur Definite Ouarrtity Contracts. Upon the agmement of [ttc STATL and the
CON'1"RACTOR, the quantify of goods or services, or both, ifs definite quantity is specified in Chia Contract,
may he increased by a maximum of feu per cent (10°/u); provided the unit prices will rem¢in the same excgpt
for any price adjustments otherwise applicable; and the Agency procurement officer makes ¢ written
dcfcmtination that such an increase will either be more economical than awarding another contract or that it
would trot be practical to award another contract.
23. Changes fn Cost-Reimhmsement Contmet. If Ihia Contract is acost-reimbursement contract, the followinK
provisions sh¢II ¢pPIY~
a. The Agency procurement officer may at any time by written order, and without notice to the sureties,
if any, make changes within the general scope of the Contract in any one or more of khc following:
(1) flescriptirntofperfonnance(Attachmentl);
(2) Time of performance (i.e., hours of the dny, days o.f the week, etc.);
(3) Place ofperfnrmanec of services;
(4) Drawings, designs, or specifications when the supplies to be famished arc to be specially
manufactured for the STATE in ¢ccrndance with the drawings, designs, or apecific;ations;
(5) Method of shipment ar packing of supplies; or
(G) Place ofdclivery,
b. If any change causes an increase or decrease is the estimated cost o£, or tttc lime required for
perfonnancc of any part of the performance under Utis Contract, whether or not changed by the
order, or otherwise afTecfs any otherterms and conditions ofthia Contract, the ~geney procurement
officer shall make an equitable adjustment in the (1) estimated cost, delivery or completion schedule,
or both; (2) amount of any fixed fee; and (3) other affected terms and shall modify the Contract
accordingly.
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c. The CONTRACTOR moat assv7t the CONTRAC:TOR'S rights to an adjustment under thisprovision
within thirty (3t1) days from the day of receipt of the written order. However, if the Agency
pmcurement oftioer decides that the facts justify it, the Agency procurement officer Wray nwvive and
act upon a pmposal submitted before Snal payment under the Contract,
d. Failure to agree to any adjustment shall be a dispute under paragraph 11 of this Contract. However,
nothing in this prevision shall excuse the C:UNTRACTOR from proceedirtb with the Contract ae
changed.
e. Notwithstanding the tvnns and conditions of Subparagraphs 23a and 23b, the estimate) cost of this
Contract and, if thi9 Cvntraet is inerc~rrrcntalty funded, the funds allotted for the performance of this
Contract, shall not he increased or considered w be increased execpt by specific written mudikication
of the Contract indicating the new contract estimated cost ¢nd, if I:his contract is inererncnlally
funded, the new amount allotted to the contract.
24. CunliJcnlialitvofMatepak.
s. All mawrial given to or made avai]able to the CONI'ItACTUR by virtue of tltis Contract, which is
identified ns proprietary or con fidwtial information, will be snkeguazded by the CUNTRACTOR and
shall not he disclosed to any individual yr organization without the prior written approval of the
STATE.
h. All information, data, or other material provided h. y the CONTRACTOR to the STATE shall he
subject to the lJniform Information Practices Act, chapter 92F, HRS.
25. Publicity. The CONTRACTOR shall not rifer tv the STATE, or any office, abcncy, or officer thereof; or any
state employee, including the HOPA, the C NC), the Agency procurement officer, or tv the services or goods,
ur both, provided und~t this Contract, in any of the CUNTRACTUR'S brochures, advertisements, or other
puhl iciry of the CUN'fR.4CTOR. All media contacts with the CONTRACTUR about the subjcet matter of
this Contract shall be referred to the Agency procurement officer.
26. Uwnen;hio Ri s_and Copvri¢ht. The STATE shall have complete ownership of all material, both finished
and unf"mishcJ, which is JevelopeJ, prepazed, assembled, or cunccivcJ by the CON'f EtACTOR pursuant tv
this Cvntracf, and all such material shall be considered "works made for hire." All such nmterial shall be
delivered to the STATE upon cxpimlivn or termination of this Contract. The STATLt, in its sole discretion,
shall have the exclusive right to copyright any product, wncept, or material developeJ, prepared, assembled,
or conceived by the CONTRACTOR pursuant w this Contract.
27. Liens and Warranties. CovJs provided under th is Contract shall be provided free of al l liens and provided
together with all applicable warranties, orwith the warranties described in the Contract documerus, whichever
are greater.
2R. A edit ufBuoks and Records_p);,tl).e
CONTRAC"1'OR. The STATE may, at reamnnhle times anJ places, audit
the books and rewrds of the CONTRACTOR, prospective cmttraclvr, subcontractor, yr prospective
subcontractor wh ich arc rc(xted w:
The cost or pricing data, and
b. A state contract, including subcvntracfs, other than a firm fixed-price cvn[racl.
29. Cast or Pricing_ ala. Cost or pricing data must be submitted to the Agency pmcurement otlicer and timely
certified as accurate for contracts vvr;r $100,000 unless the contract is for amultiple-term ur as otherwise
specified by the Agency pnx;urcmcnt oliicer, Unless otherwise required by the AgemcyprocuremcnC ollicer,
cyst or pricing data submission is not requh•ed Cvr contracts awarded pursuant lv competitive scaled biJ
procedures,
if certified evsl yr pricing data are subsequently found to have been inaccurate, incomplete, or noncurrent as
of the date stated ht rho certificate, flu STATE is aditled w an adjustment of the evntract price, including
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profit or fcc, to exclude any si~lificttnf sum by which the price, including profit or fee, was utcrrrascd because
of the defective data. It is presumed that vvorscated cost or pricing data increased the con[rnct price in the
amount of the detect plea related overhead sort profit or fee. Tharefvre, artless there is a clear indication that
the defective data was not used or relied upon, the price will he reduced in such anwunt.
:TO. Audit of Ccst or Pricing L)ata. When Cost or pricing principles are applicable, the STATE may require an
audit of cost or pricing data.
31. Records Retention. The CONTRACTOR and any subcontractors shttll maintnin the books and records [hat
rdatc to the Contract and any cost or pricing data for th ree (3) years from the date of fi nal payment under the
(:nntract,
32. Antitrust Claims, The STATE and the CONTRACTOR recognize that in achtal economic practice,
overcharges resulting fmm antitrust violations are in fact usually borne by the purchasta. TMercfvre, the
CONTRACTOR hereby assigns to STATE any a.nd all claims for overcharges as to goods and materials
punhased in connection with this Contract, except as lu overcharges which result from violations
eanmcneing alter the price is established under this Contract and which are not passed un W the STA•1•E
undtx an escalation clause,
33. Patentai Articles. The CUN'1"RACl'UR shall deI'cntl, indermtify, and hold harmless the STATE, and its
officers, employees, and agents from and against all liability, loss, damage, coat, and expense, including all
attorneys fees, and all claims, suits, and demands arishtg vul of or resulting from any claims, demands, or
actions by the patent holder for infringement or other irnpn>per ur unauthorized use of any palunted article,
patented process, or palunted appliance in connectionwith this I:OntraeY, The CONTRACTOR shall be solely
reapemaible for Correcting or curing to the eatisfacliun of the STATE any such infringement or improper or
unauthorized sae, including, without limitation: (a) famishing at no cost to the S'fATE a substitute article,
process, or appliance acceptable to the S'f"ATE, (h) paying royalties or other required paymt,•nts to the patent
holder, (c) obtaining proper authorizations or releases from the patent holder, and (d) furnishing such security
to or making such arrangements with the patent holder as rna.y be necessary to correct or cure any such
infringement ur impruptx yr unauthorized use.
34. Ciovernin~Lnw. The validity of [his Contract and any of its temts or provisions, as well as the rights and
duties of the parties to this Contract, shall he governed by the laws of the State of Tiawaii. Any action st law
or in equity to enforce or interpret the provisions of this Comracf shall be brought in a state wort of
cnntpetcnf jurisdiction in Honolulu, Hawxii.
35. Comkliance with Laws. The CONTRACTOR shall comply with all federal, state, and county laws,
ordinances, codes, rules, and regulations, as the some Wray be arttcnded from time to Nnte, that in any way
affect the CONTRACTOR'S performance of this Contract.
3G, Conf7ictBetwect Genv~ca CondilionsandPrtx:uremen[Rules. TntheeventofaconlliclbetweenthcCrcncral
Conditions a.nd the procuromcnf odes, the procurement rules in effect nn the dale this Contract becarnc
effective shall control and are herehy incorlxiralcd by reference.
37. Enlirc Contract. This Contract sets forth all of the agreements, conditions, understanding., prontiscs,
warranties, and representations bclwcun thv STATE and the CONTH A.C'fUR relative W this Contract. This
Contract supersedes all prior agrcavcnts, conditions, understandings, prorniscs, warranties, and
representations, which shall have no further force yr effect, There are no agreententa, conditions,
understandings, promises, warranties, yr representations, oral or written, express yr hnplied, between the
STATE and the CONTRACTOR other than as set forth or as referred to herein.
38. Severabilily, Tn the event that any provision of }his Contrnct is dzclarod invalid or unenforceable by a coup,
such invalidity or unenforceabiliry shall not affect the vat idity or enforceability of the remaining terms of this
CUnlracl.
39. Waiver. The failure of[he STATF, fo insist upon the strict compliance with any term,provision, or condition
of this Contract shall not constitute or he deemed to conatituW tt waiver or relinquisluueut of the STATE'S
right to enforce the same in accunlancc with this Contract. The fact that the STATE specifically relays to one
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provision of the procurement rules Drone section ofthe i-iawaii ltcvised Stalutos, and does not include other
provisions or Statutory sections in this C7ontract shall not constitute a waiver or relinquishment of the
STATE'S rights nr the CONTRACT'OR'S obligations under the procurement odes or statutes.
40. Pollution Control. Ifduring the performance of this Contract, the CONTRACTOR encounters a "naease" or
a "tiueatened release" of a reportable quantity of a "hazardous substance," "pollutant," or "contaminant" as
those terms are defined in section 128D-I, HRS, Urc CONTRACTOR shall imtnuliately notify the STATIi
and al I other appropriate state, county, or fi;deral agencies as required by law. The Contractor shall take all
necessary actions, including stopping work, to avoid causing, contribufing to, or making worse a release of a
hazardous substance, polln[vtt, or cotttarrunant, and shall promptly obey any orders the Environmental
Protection Agency or the start: Deparmient of Heahh issues in response to the release. In the event there is an
ensuing cease-work period, attd the STATE dtaermines that this Contract rcyuires an adjasmicnt of the time
fitt perl'ormxncc, the Contract shall be modified in writing accordingly,
41. Canroaian Conltibulions. The CONTRACTOR is hereby notified of the applicaltility of 11-205.5, HR5,
wh ich states that campaign contributions are prohibited from specified state o[ county govemrnent coniractors
during the terms of their conhacts if the contractors are paid with fimda appropriated by a legislative body.
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