Loading...
HomeMy WebLinkAboutCOM 1045.001 1996-1998 o~lwos Virginia Goldstein Stephen K. Yamashiro ylaie•, Dire, M«vRussell Kokubun DrpuN D"', (9II1tnt of P "Obttfuldi PLANNING DEPARTMENT 25 Aupuni Street, Rotan 109 • Hilo. Hawaii 96720-4252 (808) 961-8288 • Fax (808) 961-8742 November 5, 1998 Honorable James Arakaki, Chairman and Members of the County Council Hawaii County Council 25 Aupuni Street Hilo, HI 96720 Dear Chairman Arakaki and Members of the County Council: 1998-1999 Coastal Zone Management Agreement (Pending) Between the State DBEDT, Office of Planning and the County of Hawaii As requested by your Committee on Planning at its meeting on November 5, 1998, enclosed is a copy of the pending agreement between the State of Hawaii Department of Business, Economic Development, and Tourism (DBEDT), Office of Planning and the County of Hawaii. The contract will be executed as soon as Resolution 344-98 is adopted by the County Council. Should you have any questions, please feel free to contact me or Norman Hayashi at Ext. 8288. Sincerely, GII~I[A GOLDSTE Planning Director l NH:pak f.\wpwin60\dept\ar&kaki. 115 Enclosure 5 J I 00ainL P1te COO,,) l Ref. 1bt NOV 5 1996. Re[. Pate'---. - - STATE OF HAWAII AGREI:7VIEIVT FOR NON-BID PURCHASE OF GOODS AND SERVICES This Agreement, executed on the respective data of the signatures of the parties shown hereafter, is effective as of _ . 19 between the Department of Business, Economic Development, and Tourism, Office of Planning State of Hawaii (hereinafter 'STATE'). by its Director of Business Economic Development, and ourism (herelnafiG 'DIRECTOR'), and county of Hawa i 0=einafter0CONTRACTOW), a government entity under the laws of the State of Hawaii . whose business address and taxpayer identification number are as follows: 25 Aupuni Street, Hilo, Hawaii 96720; Federal Tax Identification: 99-6000657 BEM= r A. The STATE is in need of the goods or services, or both, (also referred to as - c 'goods and services'), described in this Agreement and its attachments. The CONTRACTOR is agreeable to providing the goods and services. B. This Agreement is for (check one box): ? (1) an =ggr= procurement of goods and services as set forth in section a 103D-307, Hawaii Revised Statutes ('HRS'), and the rules adopted by the Procurement Policy Office, hereinafter referred to as 'Procurement Rules'; or ? (2) a sole source procurement of goods and services as set forth in section 103D-306, HRS, and the Procurement Rules; or V (3) a mm&a mh= procurement of goods and services as set forth in section 103D-305, HRS, and the Procurement Rules; or ® (4) a procurement expenditure of public funds for goods and services that is otherwise expressly =W from public bidding by the following law or regulation: Chapter 103D-102(b)(2), HRS C. Matey is available to fund this Agreement pursuant to: (l)Act 116, SLH 1998 or I Public Law 92-583, as amended a.ir~~r •r~rlrr.~r or both, in the following amounts: State $ 83,403 Federal $ 124,154 Fa m AG'll4M p/90 D. pursuam o Chapters 20SA $ 201-4, HRS the SIAM is authorized to ether into this AgreW=L NOW, THEREFORE, in consideration of the promises contained in this Agreement, the STATE and the CONTRACTOR agree as follows: 1. Scam of Services. The CONTRACTOR shall, in a proper and satisfactory manner n determined by the STATE, provide all the goods and services set forth in Attachment 1, which is hereby made a part of this Agreement. 2. Time of Performance. The pedbn nance required of the CONTRACTOR trader this Agreement shall be completed in accordance with the rum Schedule set forth in Attachment 2, which is hereby trade a part of this Agrecrhent. 3. Com=sation. The CONTRACTOR shall be compensated in a total amount not TWO HUNDRED SEVEN TliOUSAND FIVE to exceed HU10RED FIFTY-SEVEN AND NO/100 DOLLARS 207,SS7.00 including approved costs incurred and taxes, according to the Compensation and Payment Schedule set forth in Attachment 3, which is hereby made a part of this Agreement. 4. Bandy The CONTRACTOR (is) (is tot) required to provide a (performance) (payment) (performance and payment) bond in the amount of n/a DOLLARS tY 1. 5. Standards of Conduct D jaration. The Standards of Conduct Declaration of the CONTRACTOR is attached and is made a part of this Agreement. 6. Other Terms and Conditions. The General Conditions and any Special CcrAhdoas are attached her= and made a part of this Agreement. In the event of a conflict between the General Conditions and the Special Conditions, the Special Conditions shall control. 7. Liquidated damages shall be assessed in the amount of n/a DOLLARS (S 1 per day, in accordance with paragraph 9 of the General Conditions. From AMAM (r196) 2 S. Notices„ tily written notice required to be given oy a party to this Agmmmt shall be (a) delivered personally, or (b) sent by United States first class mail, postage prepaid. Notice requited to be given to the DIRECTOR shall be sent to the DIREC'rOR's ogee in Honolulu, Hawaii. Not= to the agency procurement offices shall be sent to: Director, c/o Douglas Tom, P.O. Box 2359 Honolulu, Hawaii 96804 Notice to the CONTRACTOR shall be sent to the CONTRACTOR at the CONTRACTOR's address as indicated in this Agreement. A nod= shall be deemed to have been received three (3) days after mailing or at the time of actual reoript, whichever is earlier. The CONTRACTOR is responsible for notifying the STATE in writing of any change of address. IN VIEW OF THE ABOVE, the parties e:ewte this Agnsement by their signaiums, on the dates below, to be effective as of the date first above written. STATE By Pont Name Title Director Date Form A024LM (1/96) 3 CONTRACTOR By Print Name Title • Date APPROVED AS TO FORM: APPROVED AS TO FORM AND LEGALITY: Deputy Attorney General DEPU I(Erporation Counsel County of Hawaii •r--," ree of authority of the CONTRACTOWs reprs wnstiw to sW thb Aprsement for Vw CONTRACTOR must be artaahed. Form Aca-M (MM 4 C%,,4TRACTOR'S ACKNOWLEDGMENT State of 1 SS. County of 1 On this day of before me personally appeared to me personally known, who being by me duly sworn, did say that he/she is the of , the CONTRACTOR named in the foregoing instrument, and that he/she is authorized to sign said instrument on behalf of the CONTRACTOR, and acknowledges that he/she executed said instrument as the free act and deed of the CONTRACTOR. Notary Public, My commission expires: CERTIFICA% iN OF EXEMPTION FROir, CIVIL SERVICE 1. By Heads of State Departments or Agencies Pursuant to Delegation of the Director of Human Resources Development' Pursuant to the delegation of the authority by the Director of Human Resources Development, I certify that the services provided under this Agreement, and the person(s) providing the services under this Agreement are exempt from the civil service, pursuant to Hawaii Revised Statutes §76-16. (egrtatureJ idea) Pnm Name Pnm rule 2. By the Director of Human Resources Development, State of Hawaii= 1 certify that the services provided under this Agreement, and the person(s) providing the services under this Agreement are exempt from the civil service, pursuant to Hawaii Revised Statutes §76-16(„). (s+gnatunl (~1 Print Name Pnnt rdle, if aengnes as Direst d Marron Rakwoaa Deveopmam 'This part of the form may be used by all department heads and others to whom the Olrerdor of Human Resources Davetopment has delegated authority to cot* HativaC Revised Statutes section 76-16 civil service ezzaptions. The apecilfc paragraph(s) of section 76.10 upon which an mmp9on is based should be noted in the contract tile. NOTE: Authadty to cardfy ersepdans; raider Hawall Revised Statutes sections 76-16(2) and 76-16(3) has not been delegated; only the ter of Human Resources Development may cartlfy sections 76-10(2) and 76-16(3) exceptions. 'This part of the form may be used only by the 01rertor of Human Resources Oevelopment or Tae )irecar's designee. See NOTE at footnote 1. STANDARDS OF CONDUCT DECLARAIION For the purposes of this declaration: 'Agency' means and includes the State, the legislature and its committees, all executive departments, boards, commissions, committees, bureaus, offices, the University of Hawaii, and all independent commissions and other establishments of the state government but excluding the courts. 'Controlling interest' means an interest in a business or atlas tmderaddng which is sufficierr in fact to oomtml, whether the interest is greater or less than fifty per cot (50%). 'Employee' means any nominated, appointed, or elected offices or employee of the State, including members of boards, commissions, and committees, and employees under contract to the State or of the constitutional convention, but excluding legislators, delegates to the constitutional convention, justices, and judges. On behalf of , CONTRACTOR, the undersigned does declare as follower: 1. CONTRACTOR (msl fis notl a legisians or am employee or & business in which a legislator or an employee has a controlling interest.' 2. CONTRACTOR has not been assisted or represented by a legislator or employee for a fee or other compensation to obtain this Agreement and will not be assisted or tepramte *by a legislator or employee for a fee or other compensation in the perfmanmoe of the Agreement, if the legislator or employee had been involved in the development or award of the Agreement. 3. CONTRACTOR has no been assisted or represented for a fee or other compensation in the award of this Agreement by an Agency employee or, in the case of the Legwamrs, by a legislator. 4. CONTRACTOR has not been rt~rtxenmd or assisted personally on natters related to the Agreement by a person who has been an employee of the Agency within the preceding two (2) years and who participated while in state office or employment on the mater with which the Agreement is directly catamed. 5. CONTRACTOR has not been represented or assisted on mattes related to this Agreement, for a fee or other consideration by an individual who, within the past twelve (12) months, has been an Agency employee, -or in the are of the L egislature, a legislator. 6. CONTRACTOR has not been represented or assisted in the award of this Agreement for a fee or other consideration by an individual who, a) within the past twelve (12) months, served as an Agency employee or in the case of the Legislature, a legislator, and b) participated while an employee or legislator on matters related to this AgreenenL Fae~ Am.RR1 il/9ti) CONTRACTOR understands that the Agreement to which this document is attached is voidable on behalf of the STATE if this Agreement was entered into in violation of any provision of chapter 84, FIRS, commonly refereed to as the Code of Ethics, into ft the provisions which are the son= of the declarations above. Additionally, any fee, compensation, gift, or profit received by any person as a result of a violation of the Code of Ethics may be recovered by the STATE. DATED: Honolulu, Hawaii, . 19 CONTRACTOR By Title 'Reminder to Agency: If 'is' is circled, the Agency is requited, under section 84-15, HRS, to file with the State Ethics Commission, teen (10) days before the Agmemmt is entees+ I into, a written justification as to why the Agreement was not requited to be mmpditively bid. Pam ACCW= (11M Atbehmmt I SCOPE OF SERVICES CONTRACTOR shall perform in a proper and satisfactory manner as determined by STATE, services requited for the administration of a Coastal Zone Management Program Services shall be performed in accordance with all Federal, State and County rules and regulations. CONTRACTOR shall: 1. Designate its Planning Director as its administrator of all services required herein and said Planning Director or designee shall serve as its primary agent for communications with die STATE. The CONTRACTOR shall also provide necessary staff to assist its Planning Director in coordinating the efforts between the CONTRACTOR and the STATE for the Hawaii Coastal Zone Management (CZK Program. 2. Employ sufficient personnel to administer Special Management Area (SMA) permit applications, shoreline setback variances, nonpomt source pollution issues, and other C2M issues clearly related to the provisions of Chapter 205A, HRS. 3. Administer an ongoing monitoring and enforcement program to assure compliance with Chapter 205A, SMA, and shoreline setback variance requirements, and to prevent or minimize environmental and ecological degradation by timely detection of potential or actual violations to Chapter 205A, SMA, and shoreline setback requirements. 4. Support and participate in the STATE's C2M monitoring and enforcement program by providing regular input and transmittal of SMA and Shoreline Setback Variance permit information, by allowing the STATE access to permit records, and by providing assistance to the STATE in periodic field verification. 5. Support and participate in the ongoing C2M-related projects, including developing and implementing the coastal nonpoint pollution control program 6. Administer development permit activities within the SMA pursuant to the provisions of the Hawaii Coastal Zone Management Law, Chapter 205A, HRS. 7. Facilitate and support public participation in the Hawaii CZM Program as may be necessary. 8. Attend all CZM-related meetings, workshops, and seminars as determined by the STATE. 9. Coordinate, facilitate, and, where possible, streamline the development review process. 10. Annotate all reports, maps, and other documents completed as part of this Agreement, other than the documents exclusively for internal use by the CONTRACTOR, with the following notation on the front cover or tide page (or, in the case of maps, in the title block): '"Me preparation of this (report, trap, document, etc.) was financed in part by the Coastal Zone Management Act of 1972, as amended, administered by the Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, United States Department of Commerce, through the Office of Planning, State of Hawaii." Attachment 1 11. Ensure that all publications or reports intended for public distribution shall bear the NOAA logo on the cover of the first page, and the following: "A publication (or report) of the County of Hawaii pursuant to National Oceanic and Atmospheric Administration Award No. NA 870ZO233 and funds provided by the Office of Planning, Department of Business, Economic Development and Tourism, State of Hawaii." 12. Provide matching funds or in-kind contributions totalling no less than $90,000.00 CONTRACTOR's cash or in-kind contributions shall be subject to verification using straight cost accounting principles and practices. 13. Submit for STATE approval, semi-annual status and performance reports not later titan seven days following the end of each semi-annual subgrant period as prescribed by the STATE for work performed and coordination provided in conjunction with coastal zone management. Such status and performance reports shall be in narrative form as well as chart form where appropriate and describe the progress of the CONTRACTOR in accomplishing the tasks provided for under this Agreement and other accomplishments, issues, and concerns related to coastal zone management. These reports shall include documentation of actual expenditures incurred during the period to include CONTRACTOR's cash or in-kind contributions. Failure to submit the required semi-annual status and performance reports in a timely manner may result in the withholding of funds. 14. Submit for State approval, a final report to include, but not be limited to: a. a summary of all worst performed and coordination efforts provided in conjunction with coastal zone management. b. recommendations for follow up and future opportunities. c. a final expenditure report to include all receipts, matching contributions and expenditures. 15. The CONTRACTOR shall perform any other assistance mutually agreed upon by the STATE and the CONTRACTOR's Planning Director. -2- AttaehmM 2 LIME OF PERFORMANCE 1. The CONTRACTOWs services shall commence on the effective date of this Agreement and shall be completed in such sequence as to assure their expeditious completion in light of the purposes of this Agreemem. 2. All of the services required hereunder shall be completed by June 30, 1999, with the final report and quarterly invoice submitted no later than July 31, 1999, which shall be the termination date of this Agreement. AttaehnmM 3 COMPENSATION AND PAYMENT SC®ULE 1. The total value of this Agreement shall be TWO HUNDRED NINETY-SEVEN THOUSAND FIVE HUNDRED FIFTY-SEVEN AND N01100 DOLLARS ($297,557.00). The CONTRACTOR shall be allocated a subgrant amount not to exceed TWO HUNDRED SEVEN THOUSAND FIVE HUNDRED FIFTY-SEVEN AND NO/10D DOLLARS ($207,557.00) in. consideration of the worst to be performed by the CONTRACTOR under this Agreement. Said subgrant amount shall include the sum of EIGHTY-THREE THOUSAND FOUR HUNDRED THREE AND NO/100 DOLLARS ($83,403.00) in State General Funds provided in Act 116, SLH 1998. Said subgrant amount shall also include the sum of ONE HUNDRED TWENTY-FOUR THOUSAND ONE HUNDRED FIFTY-FOUR AND N01100 DOLLARS ($124,154.00) in Federal funds provided in Coastal Zone Management Cooperative Agreement Award No. NA 87OZO233 granted by the National Oceanic and Atmospheric Administration of the United States Department of Commerce under the National Coastal Zone Management Act of 1972, Pub. L No. 92-583, >t§ amended (16 U.S.C. et. seq.). The CONTRACTOR shall provide the balance of the value of this Agreement of NINETY THOUSAND AND N01100 DOLLARS ($90,000.00) in the form of non-Federal cash or services-in-kind. 2. Payment for expenditures to be incurred in performing the services in Attachment 1, entitled "Scope of Services," shall be made in advance quarterly amounts upon presentation to the STATE by the CONTRACTOR of advance quarterly statements of projected expenditures; provided that the STATE's obligation to disburse such subgmnt funds shall be subject to the following conditions: a. The CONTRACTOR has submitted required semi-annual status reports and performance reports as outlined in Paragraph 13 of the Scope of Services. b. The aggregate amount of the advance quarterly payment shall not exceed the total subgrant amount provided for in this Agreement. c. All travel expenses incurred by the CONTRACTOR in carrying out this Agreement may be paid from the subgmnt amount stated in Paragraph 1, subject to guidelines as outlined in Paragraph 16 of the General Conditions. d. It is agreed by and between the parties hereto that, as to the portion of the obligation_ under this Agreement to be payable to the CONTRACTOR out of Federal funds, this Agreement shall be construed strictly to be an agreement to pay such pardon to the CONTRACTOR only out of Federal funds when such funds are so received from the Federal government. This Agreement shall not be construed as a general agreement to pay the CONTRACTOR such portion out of any funds other than those which are received from the Federal government under any circumstance. 3. The CONTRACTOR shall be in compliance with Federal rules and regulations governing the use of Federal funds. Attachment 3 4. Payments shall be made in accordance with and subject to the provisions of Chapters 40 and 103, Hawaii Revised Statutes. 5. All funds not expended by the CONTRACTOR prior to the termination or completion of this agreement shall be returned to the STATE by July 31, 1999. 6. All required services, products, and final invoices must be completed and submitted to STATE in a timely manner to allow final payment by July 31, 1999. 7. No invoices related to this agreement shall be submitted to STATE after July 31, 1999. -2- SPECIAL CONDITIONS 1. Deletion of Portions of A ent. For purposes of this Agreement, paragraph 5 on page 2 of the Agreement, "Standards of Conduct Declaration," together with the attached Standards of Conduct Declaration form are hereby deleted and the parties agree that paragraph 5 of the Agreement and its attached form are not operative. 2. Modification of General Conditions. For purposes of this Agreement, subparagraph 20.c. and paragraph 22 on pages 15 and 16, respectively, of the General Conditions are modified to read as follows: "20.c. Time period for claim Within ten (10) days after receipt of a written change order under subparagraph 20a, unless the period is extended by the Agency procurement officer in writing, the CONTRACTOR shall file notice of indent m assort a claim far an adjustment Later notification of intent shall not bar the CO1V TRACTOR'S claim artless the STATE is prejudiced by the delay in notification." "22. Variation in ouantily for Definite t)uartti(y Agreements. Upon the agreement of the STATE and the CONTRACTOR, the quantity of goods, services, or both, if a definite quantity is speed in this Agreement, may be increased by a maximum of ten per cent (1096); provided the unit prices will remain the same except for any price adjustments otherwise applicable; and the Agency procurement officer makes a written determination that such an increase will either be more economical than awarding another Agreement or that it would not be practical to award another Agreement" 3. Deletion of General Conditions. For purposes of this Agreement, the following General Conditions are hereby deleted from the General Conditions and have no operative effect between the parties: a. Subparagraph 2.e. b. Subparagraph 17.d. c. Subparagraphs 19.g. and 19.h. d. Subparagraph 20.b. 4. Audits and . The CONTRACTOR shall permit an authorized representative of the STATE, at all reasonable times, to inspect and make copies of all summaries, maps, charts, graphs, tables, recommendations, publication material, electronic records, and other documents produced in whole or in part under this Agreement Such material shall be delivered and surrendered to the STATE on demand and shall become the property of the STATE. The STATE, the Secretary of Commerce, the Comptroller General of the United States or any of their duly authorized representatives shall, for a period of three (3) years from the expiration of the final financial report made under the Grant, have access to any directly pertinent books, documents, paper and records of the CONTRACTOR involving transactions related to the performance of this Agent for the purposes of making audit, examination, excerpts, and transcriptions. The CONTRACTOR shall maintain all records of expenses related to this Agreement by generally accepted accounting methods and principles. All required records shall be maintained until an audit is completed and all questions arising therefrom are resolved, or three (3) years after the STATE's submission of the "Financial Status Report" under the Grant, whichever is sooner. All subcontracts awarded by the CONTRACTOR that are payable from the Agreement funds in whole or in part shall contain a provision to the same effect Fa Aenatxrnel Attachment 4 5. Nondiscrimination. The CONTRACTOR assures that the activities supported by this Agreement shall be conducted in compliance with Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352, as amended, 42 U.S.C. §2000D, and the requirements imposed by the Regulations of the United States Department of Commerce, 15 CFR Part 8, issued pursuant to that Title. In accordance therewith, no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which the CONTRACTOR received Federal financial assistance and shall immediately take any measures necessary to effectuate this assurance. The CONTRACTOR shall insect a similar provision in all subcontracts for services required under this Agreement 6. Officials Not to Benefit No member of, or delegate to, the Congress of the United States of America or resident Federal commissioner stall be admitted to any share or part of the subgrant amount or to any benefit arising out of this Agreement. 7. $quinment Aceuire_1 with Aenerment Funds. Acquisition of equipment by the CONTRACTOR or any of its agents, whether wholly or in part with funds provided by this Agreement, shall be in furtherance of and in connection with coastal zone management purposes, and shall require the prior written approval of the STATE. Title to such equipment shall be vested with the STATE and appropriate property records shall be maintained by the CONTRACTOR "Equipment" as used in this paragraph shall be defined as goods with a life expectancy or durability of one year or more and whose value or cost per unit is TWO IiUNDRID FIFTY AND NO/100 DOLLARS ($250.00) or mare. 8. Publication of Parer. If the CONTRACTOR uses National Oceanic and Atmospheric Administration financial assistance to publish a paper based in whole or in part on the work funded by this Agreement, the author shall assure that the paper bears the following notation: "This paper is funded ('in part' if appropriate) by a grant from the National Oceanic and Atmospheric Administration. The views expressed herein are those of the author(s) and do not necessarily reflect the views of NOAA or any of its sub-agencies." 9. Government tk "anent Su=gsion and Other Re. si 'li atL'rB (Non?+!+~±amment). This Agreement is subject to Executive Order 12549, Debarment and Suspension, and 15 CFR Part 26, "Governmentwide Debarment and Suspension (Nonprocurement)." Unless authorized by the U.S. Department of Commerce in writing, a person (as defined at 15 CFR Part 26.105(n)) who is debarred or suspended shall be excluded from Federal financial and non-financial assistance and benefits under Federal programs and activities except to the_ extent prohibited by law or authorized in writing by the U.S. Department of Commerce. a. Unless the U.S. Department of Commerce authorizes in writing an exception in accordance with 15 CFR Parts 26.215 and/or 26.625, the Recipient of this lower tier covered transaction shall not knowingly do business under a covered transaction with a person who is debarred or suspended, or with a person who is ineligible for or voluntarily excluded from ttat covered transaction. The Recipient of this subaward shall not renew or extend covered transactions (other than no-cost time extensions) with any person who is debarred, suspended, ineligible or voluntarily excluded, except as provided in 15 CFR Part 26.215. -2- Attachment 4 b. The Recipient shall include the following provision in each application and in each bid for a lower tier covered transaction at any tier under this award: "Each applicant/bidder for a lower tier covered transaction (except subcontracts for goods or services under the $25,000 small purchases threshold unless the subtler Recipient will have a critical influence on or substantive control over the award) at any tier under this Federal award must file form CD-for 512, "Certifications Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tirer Covered Transactions and Lobbying," without modification, at the time of application/bid Applicants/ bidders should review the instructions for certification included in the regulations before completing the certifications. The prospective lower tier participants shall provide immediate written notice to the person to whom this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. Certifications shall be retained by the Recipient." 10. Restrictions on Lobbying (applicable to awards exceeding $100,000 in Federal funds). This Agreement is subject to Section 319 of Public Law 101-121, which added Section 1352, regarding lobbying restrictions, to Chapter 13 of Title 31 of the United States Code. The new section is explained in the common rule, 15 CFR Part 28 (55 FR 6736.6748, 2/26)90). Each recipient of this subgrant and subrecipients are generally prohibited from using Federal funds for lobbying the Executive or legislative Branches of the Federal Government in connection with this award. a. The CONTRACTOR must file with the STATE Form CD-512, "Certifications Regarding Debarment, Suspension, Ineligibility and Voluntary ExclusionLower Tier Covered Transactions and Lobbying," and Standard Form-LLL, "Disclosure of Lobbying Activities," regarding the use of any non-Federal funds for lobbying. In addition, the CONTRACTOR must file a disclosure form within 15 days of the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed by such person. b. The CONTRACTOR shall require each person who requests or receives from the CONTRACTOR a subgrant, contract, or subcontract exceeding $100,000 of Federal funds at any tier under this Agreement, to file Form CD-512, "Certifications Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions and Lobbying," without modification, and, if applicable, Standard Form- LLL, "Disclosure of Lobbying," regarding the use of any non-Federal funds for lobbying. Certifications shall be retained by the next higher tier. All disclosure forms, however, shall be forwarded from tier to tier until received by the STATE, who shall forward all disclosure forms to the Grants Officer. c. The CONTRACTOR shall include the following provision in all contracts, subcontracts, or subgrants: -3- Attachment 4 "This contract, subcontract, or subgrant is subject to Section 319 of Public Law 101-121, which added Section 1352, regarding lobbying restrictions to Chapter 13 of Title 31 of the United States Code. The new section is explained in the common rule, 15 CFR Part 28 (55 FR 6736-6748, 2/26/90). Each bidder/applicanOrdpient of this contract, subcontract, or subgrant, and subrecipients are generally prohibited from using Federal funds for lobbying the Executive or Legislative Branches of the Federal Government in connection with this award„ d. The CONTRACTOR shall include the following contract clauses regarding lobbying in each application for a subgtant and in each bid for a contract or a subcontract exceeding $100,000 of Federal funds at any tier under the Federal award: mach applicant6recipient of a subgrant and each bidder/applicant/cedpient of a contract or subcontract exceeding $100,000 of Federal funds must file Form CD-512, "Certifications Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions and Lobbying," regarding the use of any non-Federal funds for lobbying. Certifications shall be retained by the next higher tier. All disclosure forms, however, shall be forwarded from tier to tier until received by the Recipient of the Federal award, who shall forward all disclosure forms to the Grants Officer." Each subgrantee, contractor, or subcontractor that is subject to the Certification and Disclosure provision of this contract clause is required to file a disclosure form within 15 days of the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed by such person. Disclosure forms shall be forwarded from tier to tier until received by the STATE, who shall forward all disclosure forms to the Grants Officer. 11. CONTRACTOR shall be required to certify compliance with Federal regulations relating to debarment, suspension, ineligibility and voluntary exclusion--lower tier covered transactions, and lobbying in accordance with the attached Exhibit A; "Certifications Regarding Debarment, Suspension, Ineligibility And Voluntary Exclusion--Lower Tier Covered Transactions And Lobbying." -4- GENERAL COMMONS Table of Contents Plods) 1. Coordination of Services by the STATE 1 2. Relationship of Parties- Indeeeedent Contractor Status and E onsibilities. Including Tax RgMnbilities 1 3. ............2 4. XMIRAmimbadm 2 S. Conflicts of interest 2 6. Subcontracts and Assienments 3 7. Indemnification and Defense 4 8. Cost of Litigation 4 9. 11cuidated Dama¢es 4 10. State's Rieht of Offset 4 11. Diittes S 12. Suspension of Agreement S 13. Termination for Default 6 14. Termination for Convenience 8 15. Claims Based on the Aeenev Procurement Officer's Actions or Omissions 10 16. Cows and Ei=sm 11 17. Payment Precrdurer Final Payment Tax Clearance 12 18. Federal F .........................................12 i Pao AMZ-GC( mss) 19. Modifications of &&M== .................................12 20. Change Order 14 21. Price Adjustment ........................................15 22. Variation in mtity for Definite Quantity Ag=ments ...........................................16 23. .......................16 24. Confidentiality of MatwW 17 25. PubliClt7C 17 26. Ownership Rights and Caevdaht 17 27. Liens and Warranties 17 28. Audit of Books and Records of the CONTRACTOR 18 29. Cost or Pricing Data 18 30. Audit of Cost or Pricing Data 18 31. Records Retention 18 32. Antitrust Claims 18 33. Minimizinf Congestion 18 34. Governin8 Law 18 35. Compliance with Laws 19 36. Conflict between General Conditions and Pywur ment Rules 19 37. Entire A>mmmt 19 38. $everab3'IiOC 19 39. Wai1CG ..............................................19 11 F. Am.ocgLVq'. GENERAL CONDITIONS 1. Coordination of Services by the S'P'ATE. The 'head of the purchasing agency,' (which term includes the da*m of the head of the purchasing agaPCy), shall w dimate the services to be provided by the CONTRAC'T'OR in order to complete the perfarmaooe required in the Agreement. The CONTRACTOR shall maintain communications with the head of the purchasing agency at all stages of the CONTRACTOR's work, and submit to the had of the purchasing agency for resolution any questions which may arise as to the performance of this Agreaneat. 'Purchasing agency' as used in these Genial Conditions mans and includes any governmental body which is audwrixed undo chapter 103D, FIRS, or its implementing rules mod procedures, or by way of delegation, to cow into contracts for the procuranent of services. 2. Relation ft of Parties- Independent Contractor Status and RUM es. IneMng Tax RaMstbilities. a. TA the performance of services required under this Agreement, the CONTRACTOR is an 'iodepwdmt contractor.- with the authority and respona'bility to control and direct the performance and AMD- of the worst and services required under this Agreement; however, the STATE shall have a general right to inspect work in progress to determine whether, in the STATE's , the services are being performed by the CONTRACTOR in c ompliattoe wide this Agreement Unless otherwise provided by special condition, it is understood that the STATE does not agree to use the CONTRACTOR exclusively, and that the CONTRACTOR is free to contract to provide services to other individuals or entities while under contract with the STATE b. The CONTRACTOR and the CONTRACTOR's employees and agents are not by reason of this Agreement, agents or employees of the State for any purpose, and the CONTRACTOR and the CONTRACTOR's employees and agents shall not be entitled to claim or receive from the State any vacation, sick leave, retirement, workers' compensation, unemployment insurance, or other buts provided to state employees. C. The CONTRACTOR shall be responsible for the accuracy, completeness, and adequacy of the CONTRACTOR's performance under this Agrneomt Furthermore, 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 Agreement, for all loss, damage, or injury caused by the CONTRACTOR. or the CONTRACTOR's employees or agents in the course of their employment. I FMM Am aca" ' . d. The CONTRACTOR shall be responsible for payment of all applicable federal, state, and county taxes and fees which may become due and owing by the CONTRACTOR by reason of this Agreement, including but not limited to n income taxes, CH) employment related fees, assessments, and taxes, and C» ) general excise taxes. The CONTRACTOR also is responsible for obtaining all licenses, permits, and certificates that may be required in order to perform this Agreement. C. The CONTRACTOR shall obtain a general excise tax license from the Department of Taxation, Sate of Hawaii, in accordance with section 237-9. HRS, and shall comply with all requirements thaed. The CONTRACTOR shall obtain a tax clearance catiRnte from the Director of Tlua lm Sate of Hawaii, showing that all delinquent axes , if my, levied or accrued under sate law against the CONTRACTOR have been paid and submit the same to the STATE prior to commencing nay performance under this Agreement. The CONTRACTOR shall also be solely responsible for meeting all requirements necessary to abaia the ax clearance certificate required for final payment antler sections 103-53 and 23745, HRS, and paragraph 17 of these General Conditions. L The CONTRACTOR is responsible for securiot all enployerrelated insma nce coverage for the CONTRACTOR and the CONTRACTOR's employees and agents that is or may be required by law, and for payment of all premiums, coats, and other liabilities associated with securing the insurance coverage. 3. a. The CONTRACTOR shall secure, at the CONTRACTOR's own expense, all personnel required to perform this Agreemet. b. The CONTRACTOR shall ensure that the CONTRACTOR's employees or agents art experienced and fully qualified to engage in the activities and perform the services required under this Agreement, and that all applicable licensing and operating requirements imposed or required under federal, state, at county law, and all applicable accreditation and other standards of quality generally accepted in the field of the activities of such employees and agents are complied with and satisfied. 4. Nondiscrimination. No person performing work under this Agreement, including any subcontractor, employee, or agent of the CONTRACTOR, shall en gage is nay discrimination that is prolu'bited by any applicable federal, sate, or county law. 5. Conflicts of Interet. The CONTRACTOR represents that neither the CONIRACIAR, nor any employee or agent of the CONT'RAC'TOR. presently has any iMaest and promises that no such interest, direst orindirect, shall be acquired, that would or might 2 F=n A0260grAq conflict in arty manner or degree with the CONTRACTOR's wribrinanoe under this Agreement. 6. Subcontracts and Assignments_ The CONTRACTOR shall not assign or subcontract any of the CONTRACTOR's duties, obligations, or interests undo this Alrmle ht and no such assignment at subcontract shall be effective unless n the CONTRACTOR obtaim the prior written consent of the STATE and (0-I the CONTRACTOR's assignee or subcontractor submits to the STATE a tax clearance oertifieste from the Director of Taxation, State of Hawaii, showing that all ddimque nt taxes , if any, levied or accrued under stale law against the CONTRACTOR's assignee or subcontractor have bees paid. Additionally, no assignment by the CONTRACTOR of the CONTRACTOR's trght to compensation under this Agreement shall be effective unless amd undl the assignmmt is approved by the Comptroller of the State of Hawaii, as provided in section 40-58, HRS. IL Rg;2Wtion of a successor in int~ When in do bee intaes< of the State, a sucasssor in interest may be reoogaixed in an assigunwa apmusit in which the STATE, the CONTRACTOR and the assignee or transfeee (hereinaRa rcfww to as the 'Assignee') agree that* (1) The Assignee assumes all of the CONTRACTOR's obligations; (Z) The CONTRACTOR remains liable for all obligations under this Agreement but waives all rights under this Agreement as against the STATE; and (3) The CONTRACTOR shall continue to furnish, and the Assignee shall also furnish, all required bonds. b. Change of name. When the CONTRACTOR asks to change the name in which it holds this Agreement with the STATE, the procurement officer of the purchasing agency (hereinafter referred to as the 'Agency procurement officer') shall, upon receipt of a document acceptable or satisfactory to the Agency proatremett officer indicating such change of name (for example, an amendment to the CONIRACTOR's articles of incorporation), enter into an amendment to this Agreement with the CONTRACTOR to effect such a change of name. The amendment to this Agreement changing the CONTRACTOR's name shall sperafrally indicate that no other terms and conditions of this Agreement are thereby changed. c: Rt;lm= All assignment agreements and amendments to this Agreement effecting changes of the CONTRACTOR's name or novations h=inder shall be reported to the CPO within thirty -days of the date that the aas;gmmmt afire anent or amendment becomes effective. 3 pea A02-OWNS) ' . d. Actions !fectina mere than One mart gnr Ul+±rp_ Notwithsooding the provisions of subparagraphs 6a through 6c herein, when the CONTRACTOR holds agreements with mare thm one purchasing agency of the Store, the assignment agreements and the novation and change of name amendments be= authorized shall be processed only through the CFO's offim 7. Indemnification and Defense. The CONTRACTOR shall defend, indemnify, and hold harmless the State of Hawaii, the contracting agency, and their officers, employees, and agents from and against all liability, loss, damage, cost, and expense, including all aummeys' fees, and all claims, wits, and demands therefor, arising out of or mdting from the acts or omissions of the CONTRACTOR or the CONTRACTOR': etmployess, officers, agent, or subcontractors under this Agreement. Zia pwviaons of this paragraph shall remain in fin farce and effect notwidatmding the expiration or early termination of this Agreematt, 8. Cost of Utigado- Ion case the STATE shall, without any fault on its part, be made a party to any litigation commenced by or against the CONTRACTOR in connection with this Agreement, the CONTRACTOR shalt pay all costs and expenses incurred by or imposed on the STATE, including anorneys' fen. 9. i inuidated D mam When the CONTRACTOR is given notice of delay or nonperformance as specified in paragraph 13 (Termination for Default) and fails to cure in the time specified, it is agreed the CONTRACTOR shall pay to the STATE the amount, if any, set forth in this Agreenhernt per calendar day form the date set for cure until either the STATE reasonably obtains similar goods or services, or both, if the CONTRACTOR is terminated for default, or (m) until the CONTRACTOR provides the goods or services, or both, if the CONTRACTOR is not terminated for default. To the extent that the CONTRACTOR's delay or nonperformance is excused under paragr'apb 13d (Excuse for Nonperformance or Delay Performance), liquidated damages shall not be assessable against the CONTRACTOR. The CONTRACTOR shall remain liable for damages caused other than by delay. 10. State's Riaht of Offset. The STATE may offset against any monies or other obligations the STATE owes to the CONTRACTOR under this Agreement, any amounts owed to the State of Hawaii by de CONTRACTOR under this Agreement or any other agreements or pumuam to my law or other obligation owed to the State of Hawaii by the CONTRACTOR, including, without limitation, tie payment of any taxes or levies of any land or natures The STATE will notify the CONTRACTOR in writing of my offset and the nature of such offset. For purposes of this paragraph, amours owed to the State of Hawaii shall not include debts or obligations which have been liquidated, agreed to by the CONTRACTOR, and are eoveered by an in:Wment payment or other settlement plan approved by the State of HawaiL provided, however, that the CONTRACTOR shall be entitled to such exclusion only to the extant that the CONTRACTM is current wW4 and 4 Pam A02-000NO nest delinquent on, any payments or obligations owed to the State of Hawaii under such payment at other settlement plan. 11. D1=Ifid. Disputes shall be resolved in accordance with section 103D-703, HITS, and chapter 126, Procurement Rules, as the same may be amended from time to time. 12. Su=sion of Agreement- The STATE reserves the right at any time and for any reason to suspend this Agreement for any reasonable period, upon written notice to the CONTRACTOR in accordance with the provisions herein. L Order to stun XdMMUM The Agency procimmtmt officer. may, by written order to the CONTRACTOR, at any time, and without notice, to any smity. require the CONTRACTOR to stop all or any part of the performance called for by this Agreement. This order sh U be for a specified period not exceeding sbay (60) days after the order is delivered to the CON'IRACrM unless the patties agree to any further period. Any such order shall be identified gxcifially as a stop performance order issued pursuant to this section. Upon receipt of such ere order, the CONTRACTOR shall forthwith comply with its teams and suspend all pafarmanct under this Agreement at the time stated, provided, however, the CONTRACTOR shall take all reasonable steps to minimize the ooaurence of costs allocable to the performance covered by the order during the period of performance stoppage. Before the stop performance order expires, or within any further period to which the parties shall have agreed, the Agency prochre ment officer shall either: (1) Cancel the stop performance order; or (2) Terminate the performance covered by such order as provided in the termination for default provision or the termination for convenience provision of this Agreement. b. Cancellation or expiration of the order- If a stop performance order issued under this sectiaa is cancelled at any time during the period specified in the order, or if the period of the order or any extension thereof expires, the CONTRACTOR shall have the right to mom performance. An appropriate adjustment shall be made in the delivery schedule or Agreement price, or both, and the Agreement shall be modified in writing accordingly, if. (1) The stop performance order results in an increase in the time requited fact or in the CONTRACTOR's cost properly allocable to, the performance of any part of this Agreement; and (2) The CONTRACTOR astern a claim for such an adjustment within thirty (30) days atlas the and of the period of performance stoppage; provided 5 ter. AaII-aCWM that, if the Agency procurement officer deddes that the facts justify such action, any such claim asserted may be received and acted upon at any time prior to final payment under this Agreement. C. Termination of - m snoe. If a stop performance order is not cancelled and the performance covered by such order is terminated for default or convenience, the reasonable casts resulting from the stop performance order shall . be allowable by adjustment or otherwise. d. Adjustment of Woe. Any adjustment in contact price made pursmnt to this paragraph shall be determined in accordance with the price adjustment provision of this Apt. 13. Termination fffJ29&& a. Default. If the CONTRACTOR refuses or fails to perform nay of the pstivisions of this Agreement with such diligence as will ensure its completion within the time specified in this Agreement, or any extension thereof, otherwise fails to timely satisfy the Agreement proviaarts, or commits my other substantial breach of this Agreement. the Agency proauemart offices may notify the CONTRACTOR in writing of the delay or non-performance and if not cured in ten (10) days or any longer time specified in writing by the Agency procurement officer, such officer may terminate the CONTRACTOR's right to proceed with the Agreement or such part of the Agteemeat as to which there has been delay or a failure to properly perform. In the event of termination in whole or in part the Agency procurement officer may procure similar goods or services in a manner and upon the terms deemed appropriate by the Agency procurement officer. The CONTRACTOR shall continue performance of the Agreement to the extent it is not terminated and shall be liable for excess costs incurred in procuring similar goods or services. b. CO CTOR's duties- Notwithstanding termination of the Agreement and subject to any directions from the Agency procurement officer. the CONTRACTOR shall take timely, reasonable, and necessary action to protect and preserve property in the possession of the CONTRACTOR in which the STATE has an interest. C. !"8ID>is0i31iM Payment for completed goods and services delivered and aC by the STATE shall be at the price set forth in the Agreement. Pgmeat for the protection and preservation of property shall be in an amount agreed upon by the CONTRACTOR and the Agency procurement officer. If the patties fill to agree, the Ageary psoamanmt officer :hail set as amount mbject to the CON'TRACTOR's rights under drapter 126, Procurement Rules. The STATE may withbold from amounts due the CONTRACTOR such sums as tine Agony 6 l~r. Am oCtteA procurement officer deems to be necessary to protect the STATE against lost bemuse of outstanding liens or claims and to reimburse the STATE for the excess costs expected to be incurred by the STATE in procuring similar goods and services. d. Excuse for nonMrformance or delayffi =cr. The CONTRACTOR shall not be in default by reason of any failure in performance of this Agreement in accordance with its terms, including any failure by the CONTRACTOR to make progress in the prosecution of the performance besuxrnder which endangers such performance, if the CONTRACTOR bas notified the Agency procurement officer within fifteen (15) days after the muse of the delay and the farlme arises out of causes such as: acts of God; acts of a public enemy; sets of the Stare and my other governmental body in its sovaapr or caaracad capacity; firer floodr, epidemics; quarantime raaiedans; su&u or other labor disputes; freight embargoes; or unusually seven weather. 9 the fanfare to perform is arced by the falltme of a subcontractor to perform or m make I m lpr ss, and if inch failure arises out of causes similar to those set froth above, the CONTRACTOR shall not be deemed to be in default, unless the goods and swiss to be furnished by the subcattnctor were reasonably obtainable from other sources in sufficient time to permit the CONTRACTOR to mea the tequiremmts of the Agmemetc Upon request of the CONTRACTOR. the Agency procurement officer shall ascertain the facts and extent of such failure, and, if such officer determines that any failure to perform was occasioned by any one or mare of the excusable ausn, and that, but for the excusable came, the CONTRACTOR'S propels and performance would have met the terms of the Agteenent, the delivery adwille shall be revised accordingly, subject to the rights of the STATE under this Agreement. As used in this paragraph, the term 'subcontractor' Weans subcontractor at any tier. e. Frroneous termination for default. If. after notice of termination of the CONTRACTOR's right to proceed under this paragraph, it is determined for any reason that the CONTRACTOR was not in default under this paragraph, or that the delay was excusable under the provisions of subparagraph 13d, -Excuse for nonperformance or delayed performance,' the rights and obligations of the parties shall be the Same as if the notice of termination had been issued pursuant to Such Provision. f. Additional rights and remedies. The rights and remedies provided in'dds paragraph are in addition to any other rights and remedies provided by law or under this Agreement. 7 Yom sonar M Convenience- 14. a. Tarmina6on- The Agency procurement offi= may, when the interests of the SPATE so requite, terminate this Agreement in whole or to part, far the couvenimce of the STATE The Agency p acurement &A= shall give written notice of the termination to the CONTRACTOR specifying the part of the Agreement terminated and when termination becomes effective. b. CONTRACTOR's obligad'oo s. The CONTRACTOR shall incur no further obligations to connection with the terminated pafasmance and on the date(s) set in the notice of termiadon the CONTRACTOR will stop perfaraanoe to me anent sped&A The CONTRACTOR d a am terminate outing riders and subcontracts as they relate to the terminated pedorma w- The CONT'RACT'OR shall settle the liabilities and claim arising oat of the ttsminatian of subcontracts and orders connected with the termmtiated perlormaom The Agency paoaee officer nay direct the CONTRACTOR to assign the CW1TRACTOR's tight, title, and interest under terminated orders or subcontracts to. the STATE The CONTRACTOR must still complete the performance not terminated by the notice of termiation and may incur oblipdaas as necessary to do se( C. Right to goods and work =duct The Agency procurement officer may regtnre the CONTRACTOR to transfer title and deliver to the STATE in the manner and to the extent directed by the Agency procurement Officer. (1) Any completed goods or work product; and (2) The piny completed goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contact rights (heraoaAer called -manufacturing material') as the CONTRACTOR has spedfically produced or specially acquired for the perfornance of the terminated part of this Agreement. The CONTRACTOR shall, upon direction of the Agency procurement officer, protect and preserve property in the possession of the CONTRACTOR in which angel: the STATE has an interest. If the Agency procurement Officer does not this right, the CONTRACTOR shall use best efforts to sell such goods and tanufacnuing materials. Use of this paragraph in no way implies that the STATE has breached the Agreement by exercise of the termination for convene nce ptovisian. d. CamUmmifim (1) The CONTRACTOR shall submit a termination claim specifying the amounts due bemuse of the termiatioo for oonvenieaoe together win the g tin A024=0" cost or pricing data, submitted-to the extent required by subehapta 15, chapter 3-122, Procurement Rules, bearing an such claim. U the CONTRACTOR fails to file a termination dame within one year from the effective date of termination, the Agency ptoananant of = may pay the CONTRACTOR, if at all, an amount set in accordance with wbparapaph 14d(3) below. (2) The Agency procurement ofli= and the CONTRACTOR may agree to a settlement provided the CONTRACTOR has tiled a termination claim supported by coat or pricing data submitted as requited and that the settlement does not exceed the total Apeanmt pica plus settlement costs reduced by payments previously made by the STATE, the proceeds of any sales of goods and manufacturing materials under subparagraph 14c, and the Agreement price of the performance not terminated. (3) Absent complete agreement under subparagraph 14d(2) the Agency procurement officer shall pay the CONTRACTOR the Mowing anxnmts, provided payments agreed to urndeY subparagraph 14d(2) shall not duplicate payments under this subparagraph for the following: (A) Contract prices for goods or services accepted under the Agreement; (B) Coats incurred in preparing to perform and performing the terminated portion of the performance plus a fair and reasonable profit on such portion of the performance, such profit shall not include anticipatory profit or consequential damages, less amounts paid or to be paid for accepted goods or services; provided, however, that if it appears that the CONTRACTOR would have sustained a loss if the entire Agreement would have been completed, no profit shall be allowed or included and the amount of compensation shall be reduced to reflect the anticipated tats of loos; (C) Costs of settling and paying claims arising out of the termination of subcontracts or orders pursuant to subparagraph 14b. These costs must not include costs paid in accordance with subparagraph 14d(3)(B); (D) The reasonable settlement coats of the CONTRACTOR including accounting, legal, clerical, and other expenses resmn iy necessary for the preparation of settlement claims and supporting data with respect to the tamirtated potion of the Agreement and for the termination of subcotmactt thereunder, toptber with 9 tom. AUN30 OO reasonable storage, transpaetadon, and other coats incurred in connection with the protection or disposition of property allocable to the terminated portion of this Agreement. The total an to be paid the CONTRACTOR under this subparagraph shall not exceed the total Agreement price plus the reasonable settlement coats of the CONTRACTOR reduced by the amount of payments otherwise made, the proceeds of any sales of supplies and manufaenaring materials under subparigrsph 14d(2), and the Agreement price of performance not terminated. (4) Costs claimed, agreed to, or established under subparagraphs 1'4dCZ) and 14d(3) shall be in accordance with Chapter 3-123 (Cost Pdocipla) of the Procurement Rules. 15. Claims Based on the Agency Pn=rement Officees Actions or Omissions. a. Chanties in scone. If any action or omission on the pat of the Agency procurement offiar (which tram includes the designee of such offs for purposes of this paragraph 13) requiring performance changes within the scope of the Agreement constitutes the basis for a claim by the CONTRACTOR for additional compensatiM damages, or an extension of time for completion, the CONTRACTOR shall continue with performance of the Agreement in compliance with the directions or orders of such officials, but by so doin& due CONTRACTOR shall not be deemed to have prejudiced any claim for additional compensation, damages, or an extension of time for completion; provided: (1) Written notice =uuired. Tire CONTRACTOR shall give written notice to the Agency procurement officer: (A) Prior to the commencement of the performance involved, if at that time the CONTRACTOR lmows of the occurrence of such sea= or omission; (B) Within thirty (30) days after the CONTRACTOR Imows of the occurrence of such action or omission, if the CONTRACTOR did not have such knowledge prior to the commencement of the performance; or (C) Within such further time as may be allowed by the Agency procnemeot officer in writing. . (2) Notice content. This notice shall state that the CONTRACTOR regards the act or omission as a reason which may entitle the CONTRACTOR to additional compensation, damages, or an extension of time. The Agency 10 M A034KXVM : procurement officer, upon mcdpt of such notice, may racial such action, ma wdy such omission, or maim such other steps as may be deemed advisable in the discretion of the Agency procurement office; (3) Buis must be =Wned. The notice mittited by subpatagtaph 152(1) d=flies as clearly as pactiable at the time the masons why the CONTRACTOR believes that additional campmsation, damages. or an extension of time may be remedies to which the CONTRACTOR is entitled; and (4) Claim must he justified. The CONTRACTOR mast maintain and, upon rapiest, make available to the Agency procfnentmt officer within a reasonable time, detailed records to the eattent practicable, and other documentation and evidence sad dinctory to the STATE, justifying the chimed additional coats or an coandaa of time in connection with such changes. exn,.. b. CONTRACTOR not excused. Nothing herein contained, however, shall the CONTRACTOR from compliance with any rules err laws pteclu ft any stater officers and CONTRACTOR from acting in collusion or bad faith in issuing or performing change orders which are clearly not within the scope of the Agreement. C. PAice adjustment- Any adjustment in the price made pursuant to this paragaph shall be desermined in accordance with the price adjustment provision of this Agreement. 16. Coss and EMses. Any reimbursement due the CONTRACTOR for Per diem and transportation expenses under this Agreement shall be subject to chapter 3-123 (Cost Principles) of the Procurement Rules and the following guidelines: a. Reimbursement for air transportation shall be for actual cost or coach class air fare, whichever is less. b. Reimbursement for ground transportation costs shall not exceed the actual Coat of renting an intermediate-sized vehicle. C. Unless prior written approval of the DIRECTOR is obtained, reimbursement for subsistence allowance (i.e., hotel and meals, etc.) shall not exceed the awliable daily authorlzed rues for interisland or out-of-state tend that an set forth in the turrets Governor's Executive order authorizing adjustments in -'sties and benefits for state ofi9oaa and employeea in the ateeauive bwxb who are excluded from collective bargaining coverage. 11 F* A03-00(1" ' - 17. a All payments under this Agreement shall be made only upon submission by the CONTRACTOR of original invoices specifying the amount due and certifft that services requested under the Agreement have been performed by the CONTRACTOR according to die AgreemeaL b. Subject to available funds. Such payments ate subject to availability of funds and allotment by the Director of Finance in accordance with chapter 37, HRS. Further, all payments shall be made in accordance with and subject to duster 409 HRS. C. EMMZMXMIML (1) Any money, other than retahsaM paid to the CONTRACTOR shall be dispersed tD within ten days of seodpt of the money in accordance with the hams of the subcaDnaefi provided that the subcontractor has met all the terms and conditions of the subcontract and there are no bona fide dim and (2) Upon final payment to the CONTRACTOR, full payment to the subcontractor. including retsmage, shall be trade within ten days after receipt of the money; provided that there ate no bona fide disputes ova the subcontractor's performance under the subcontract. d. Final pM=t• Final payment under this Agreement shall be subject to sections 103.53 and 237-45, HITS, which require a tax clearance from the Director of Taxation, State of Hawaii, showing that all delinquent taxes, if any, levied or accrued under state law against the CONTRACTOR have been paid. 18. Federal Funds. If this Agreement is payable in whole or in part from federal funds, CONTRACTOR agrees that, as to the portion of the compensation under this Agnanet to be payable from federal funds, the CONTRACTOR shall be paid only from such fmnds received from the federal government, and shall not be paid from any other fulls. 19. Modifications of Affreement. A. lit writing, Any modification, alteration, amendment, change, at extension of any term, provision, or coadition of this Agreement permitted by this Agreeara< shall be made by written amendment to this Agreement, signed by do 12 tea. A024XXWO CONTRACTOR and the STATE, provided that change orders shall be made in accordance with paragraph 20 hettin. b. No m2l i d9L No onl modification, alteration, ame ndmeru, change, or ac>mrion of any term, provision or condition of this Agreement shall be permitted. C. pfencv_mncurement officer. By a written order, at any time, and without notice to any surety, the Agency procurement officer, subject to mutual agteemmt of die parties to this Agreement and all ap; of iate adjustments, may male modifications within the general soaps of this Agreement to include any ace or mane of the following: (A) Drawings, designs, or speaficadoW (B) Method or place of delivery; (C) Description of services to be performed; (D) Time of performance (i.e., hours of the day, drys of the week, etc.); (E) Place of performance of the service, or (F) Other provisions of the Agreement accomplished by mural action of the parties to the Agreement. d. Adjustments of mice or time for serf m mance. If any modification incenses or decreases the CONTRACTOR's cost of, or the time required for, performance of any part of the work under this Agreement, an adjustment shall be made and this Agreement modified in writing accordingly. Any adjustment in Agramenc price made pursuant to this clause shall be determined, where applicable, in accordance with the price adjustment clause of this Agreement or as negotiated. C. Claim barred after final navment. No claim by the CONTRACTOR for an adjarme nt hereunder shall be allowed if written agreement of modifatian is not made prior to final payment under this Agreement. f. Claims not barred- In the absence of an Agreement modification, nothing in this clause shall be deemed to restrict the CONTRACTOR's right to pursue a claim under this Agreement or for a breach of contract. g. CPO . U& modification, alteration, amendment, change or eclension at rimy term, provision or candid om of this Agreement increases the amount payable to the CONTRACTOR by at least $25,000.00 or an per cent (10'X,) of tba bM 13 r.. ~.coltiaq ' . Agreement price, whichever incense is higher, the prior approval of the CPO is required. h. JUSIfiDnC m The STATE may, at its discretion, require the CONTRACTOR to submit to the STATE, prior to the STATE's approval of any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Agreement, a tax clearance from the Director of Taxation, State of Hawai4 showing that all delinquent taxes, if any, levied or accrued under state law against the CONTRACTOR have been paid. L Sole source aemmenu_ Amendments to sole mom agreements that would change the ongrrd scope of doe cooaact may ody be made with doe approval of the CPO. Annual renewal of a sole mum agreement for services should not, be submitted as an amendm>eat. 20. Change Order. The Agency procure nett officer may# by a written, order signed only by the STATE, at any time, and without notice to any surely, and subject to all apprtrpriate adjustments, make changes within the general scope of this Agreement in any one or more of the following: (1) Drawings, designs, or specifications, if the goods or services to be furnished are to be specially provided to the STATE in accordance therewith; (2) Method of delivery; or (3) Place of delivery. a. Adjustments of price or time for perfottpance. If any change order imcrem or decreases the CONTRACTOR's cost of, or the time required for, peformtance of any part of the work under this Agreement, whether or not changed by the order, an adjustment shall be made and the Agreement modified in writing accordingly. Any adjustment in the Agreement price made pursuant 14 this provision shall be determined in accordance with the price adjustment p wAsion of this Agreement. Far7eme of the parties to Sgtee 10 an adjustment SIM not excuse the CONTRACTOR from proceeding with the Agreement as ganged, provided that the Agency procurement officer promptly and duly mSlors the provisional adjustments in payment or time for performance as MY' W reasonable. By proceeding with the work. the CONTRACTOR " not be deemed to have pnOudieed any claim far additional compfsadou, or Say extension of time for completion. b. CMAmm& If a ooatraet change order increases the amount payable 10 the CONTRACTOR by at lam U5,00D.00 or teen per oft (10%) d do initial 14 rw. nm agtcsq Agreement price, 'whichever increase is higher, the prior approval of the CPO is required. C. Time period for claim. Within thirty (30) days after receipt of a written chan`e order under subparagraph 20a, unless the period is extended by the Agency proausmem offim in writing, the CONTRACTOR shall Me notice of intent to assert a claim for an adjustment. IAw notification shall not bar the CONTRACTOR's claim unless the STATE is prejudiced by the delay in notification. d. CJaim barred after final tmvmmt. No claim by the CONTRACTOR for an adjustment'herautder shall be allowed if notice is not giver prior ter 61131 payment under this Agreement C. Other claims not barred_ In the absence of a change order. nothing in this paragraph 20 shall be deemed to restrict the CMZ ACTOR's right to pursue a claim under the Agreement or for breach of oomtad. 21. Price IDent. a. Price adjustment. Any adjustment in the Agreement price pucsuntt to a prwisioa in this Agreement shall be made in one or more of the following ways (1) By agreement on a fixed price adjustment beibm cormaeacanad of the perdnemt performance or as soon thereafka as pnedab* (2) By unit prices specified in the Agreement or subsequently agreed upon; (3) By the cats attibutabie to the event or situation cavered by the provision, pits appropriate profit or fee, all as specified in the Agreement or subsequently agreed upon; (4) In such other manner as the parties may mutually agree; err (S) In the absence of agreement between the patties, by a unilateral determination by the Agency procurement officer of the er 7 S attributable to the event or situation covered by the provision, plus MmV iate profit or fee, all as computed by the Agency procurement officer in acoerdance with generally accepted accounting principles and applicable sections of chapters 3.123 and 3-126 of the Praaaanem Rules. b. Submission of met or miclnr dau. The CONTRACTOR shall provide oat or pricing data for any pcioe adjustments subject m the psovisioos of subd p w 15, chspta 3-122 of the Procurement Rules. Fw wosCPCXL" 22. Variation in Ouantity for Definite Quantity Age Upon the agreement of the STATE and the CONTRACTOR, the quantity of goods or services, or both, if a definite quantity is specified in this Ag eanmt, may be increased by a natdmum of tm per cent (10S); provided the unit prices will remain the same a inept for any price adjustments otherwise appGable; and the CPO makes a written deterromation that such an increase will either be more economical than awarding another Agreement or that it would not be practical to award another Agreement. Changes in Cost-Reimbursement AgMMW= N this Agreement is a cost-reimbursement 23. Agreement, the following k ons shall %*r- a. Jim 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 Agreement in any one or mare of the fOllOWiD : (1) Description of performance (Attarhme t 1); (2) Time of performance (Le., hams of the day, days of the week, ere.); (3) Place of performance of sevias; (4) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the STATE in accordance with the drawings, designs, or specifications; (3) Method of shipment or packing of supplies; or (6) Race of delivery. b. if any change causes an increase or decrease in the estimated cast of, or the time required for performance of, any pan of the performance under this Agreement, whether or not changed by the order, or otherwise affects any other terms and conditions of this Agreement, the Agency procurement officer shall make an equitable adjustment in the (1) estimated cast, delivery or completion schedule, or both; (2) amount of any fitted fee; and (3) other affected terms ad doll modify the Agreement accordingly. C. Ta CONTRACTOR must assert the CONTRACTOR's rights to an adjtts~erit under this provision within thirty 0% days from the day of receipt of the written order. Bowan, if the Agency proememet officer decides that the faces jue ty it, the Agency procurement officer may receive and act upon a proposal submitted I P I, final payment under the Apeemem. 16 F AG24CO sq'. d. Fail= to agree to any sdjustmemt shall be a dispute under paragraph 110( this Agreement However, nothing in this provision shall eccnse the CONTRACTOR from proceeding with the Agreement as clanged. e. Notwithstanding the terms and oondidoms of subpe agtaphs 23a and 23b, the estimated Coat of this Agreement and, if this Agreement is iucrenentally funded, the funds allotted for the performance of this Agreeman, shall rot be Increased or considered to be increased except by specific written modification of the Agreement indicating the new Agreement estimated am and, if this Agreement is incrementally funded, the new amount allotted to the Apounem. 24. Confidemdality of Material a. All material given to or made available to the CONiTRACrOR by virtue of this Agreement, which n identified as proprietary or confidential b&rmadm will be safeguarded by the CONTRACTOR and shall not be disclosed to my individual or organization without the prior written approval of the STATE. b. All information, data, or other material provided by the CONTRACTOR to the STATE shall be subject to the Uniform Information Practices Act, chapter 92F9 HRS. 25. Publicity. The CONTRACTOR shall not refer to the STATE, or any office, agency, or officer thereof, or any State employee, including the bad of the purchasing agency, the CPO. the DERZ=OR, the Agency procurement officer, or to the services or goods, or both, provided under this Agreement, in any of the CONTRACTOR's brocI advertisements, or other publicity of the CONTRACTOR. All media coataar with the CONTRACTOR about the subject matter of this Agreement shad be refered to the Agency procurement officer. 26. Ownership Rights and CggXdght• The STATE shall have complete ownership of all material, both finished and unfinished, which is developed, prepared, assembled, or Conceived by the CONTRACTOR pursuant to this Agreement, and all such material shall be considered 'works made for hire.' All such material shall be delivered to the STATE upon expiration or termination of this Agreement The STATE, in its sole disaedon, shall have the exclusive right to copyright any product, concept, or material developed, prepared. assembled, or conceived by the CONTRACTOR pursuant to this Agreement 27. Liens and War andec Goods provided under this Agreement shall be provided free of as liens and provided together with all applicable warrandes, or with the warranties described in the Agreement documents, whichever an greater. 17 Fos AG2-trC MQ 28. Audit of Boole and Records of the CON gACTOR. The STATE may, at reasonable times and places, audit the books and records of the CONTRACTOR, prospective contractor, subcontractor of prospective subcontractor which are related to: L The cost or pricing data, and b. A State contract, including subcontracts, other than a firm fixed-price contract. 29. rtm or Pricing Data- Cost or pricing data must be submitted to the Agency purchasing o8ioa and timely cadfred as accurate for contracts ours 5100,000 unless the contract is for a multipiatam or as otherwise spedfl by the procurement officer, union otherwise regttcnd by the Agency procueme t officer, cost or pricing data sd mission a not required for agreements awarded pursuant to motive sealed bid yaccednres. If certifi ed coat or pricing data we subsequently famd to ban been inaccurate, incomplete, or noncurrent as of the date stated in the ocdtiate, the STATE is added to an adjustment of the contract price, including profit or fee, to exclude any sigmif cam sum by which the price, including profit or he., was increased because of the defective data. It is presumed that overstated cost or pricing dm increased the contract prisoe in the amount of the defect plus related overhead and profit at fee. Therefore, unless there is a clear indication that the defective data was not used or relied upon, the price will be reduced in such amount 30. Audit of Cost or Pricinr Data, 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 shall maintain the books and records that relate to the Agreement and any coat or pricing data for these (3) years from the date of final payment under the Agreement 32. Antitrust Claims. The STATE and the CONTRACTOR recognize that in actual economic practice, overcharges resulting from antitrust violations are in fact usually bone by the purchaser. Therefore, the CONTRACTOR bereby assigns to STATE any and all claims for overcharges as to goods and materials purchased in connection with this Agreement, except as to overcharges which result from violations commencing after the price is established under this Agreement and which are no passed on to the STATE under an escalation clause. 33. The CONTRACTOR shall undertake all necessary pnxmd ors to. minimize any adverse impact the performance under this Agreement may have on traffic congestion. 34. Governing law, The validity of this Agreement and any of its terrtn or provision, as veal as the rigbis and dudes of the parties to this Agreement, shall be governed by the 18 laws of the State of Hawaii. Any action at law or in equity to enforce or intespm the provisions of this Agreement shall be brought in a state court of competent jurisdiction in Homoluhn, Hawaii. 35. Gampjb a with laws. The CONTRACTOR shall comply with all federal, stile, and county laws, ordinances, codes, rules, and regulations, as the same may be amended from time to time, that in any way affect the CONTRACTOR's performance of this Agreement. 36, e1+nf ict between General Gondidons and Procurement Rules. In the event of a conflict between the (general Conditions and the Proermemert Robs, the Procurement Rules = effect on the date this Agreement beanie effective shall control and are hereby incorporated by reference. ' , 37. Entire A===- This Agreement ads forth all of the agreements. conditions, understandings, promises, warrandes, and representations between the STATE and the CONTRACTOR relative to this Agreement. This Agreement supersedes all prrar agreements, conditions, understandings, promises, warranties , and representations. which shall have no further farce or effixt. There we no agreements, conditions, understandings, promises, warranties, or repraentatiats, oral or written, esI or implied, between the STATE and the CONTRACTOR other than as set forth or as referred to herein. 38. Severabili0C. In the event that any provision of. this Agreement is declared invalid or unenforceable by a court, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining terms of this Agreement. 39. Waiver- The failure of the STATE to insist upon the strict compliance with any term, provision, or condition of this Agreement shall not constitute or be deemed to constitute a waiver or relinquishment of the STATE's right to enforce the same in accordance with this Agreement. The fact that the STATE specifically refers to one provision of the Procurement Rules or one section of the Hawaii Revised Statutes, and does not include other provisions or statutory sections in this Agreement shall not constitute a waiver or relinquishment of the STATE's rights or the CONTRACTOR's obligations under the procurement Rules or statutes. 19 n.. AmAC(L" ' .