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HomeMy WebLinkAboutRES 215 Draft 01 2010-2012COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. 215 12 A RESOLUTION AUTHORIZING THE MAYOR TO ENTER INTO AN AGREEMENT WITH THE STATE DEPARTMENT OF HEALTH FOR A GRANT TO REIMBURSE LOT OWNERS OF HONOKA`A, WHO ARE LOCATED WITHIN A WELLHEAD PROTECTION ZONE AND ARE REQUIRED TO CONNECT TO A SEWER SYSTEM, THEIR SEWER CONNECTION COSTS WHEN APPLYING FOR FINANCIAL ASSISTANCE UNDER THE COUNTY'S SEWER CONNECTION LOAN PROGRAM WHEREAS, the United States Environmental Protection Agency has mandated the closing of all large capacity cesspools in the County of Hawai`i; and WHEREAS, the County was able to move towards compliance in Honoka'a by utilizing American Reconstruction and Recovery Act funds to construct a sewer system in this town; and WHEREAS, through a mail survey of affected lot owners, approximately 80% of respondents have indicated the need to borrow funds to finance the connection to the sewer system; and WHEREAS, the County has applied for and the State Department of Health has approved a grant proposal to provide financial assistance to those lot owners within Haina wellhead protection zone; WHEREAS, conditions of the grant required certain changes to the Hawai`i County Code, which have been met; WHEREAS, Hawai`i 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, Hawai`i Revised Statutes, that the Mayor of the County of Hawai` i is authorized to execute, on behalf of the County, a grant agreement, a draft of which is attached hereto and incorporated herein by reference as EXHIBIT "A" with the State of Hawai`i Department of Health to enable the County to provide financial assistance to the lot owners who are required to connect to the sewer system in Honoka`a. BE IT FINALLY RESOLVED that the County Clerk of the County of Hawai`i shall transmit copies of this resolution to the Office of the Mayor, the Department of Finance, and the Department of Environmental Management. Dated at Hilo, Hawai`i this 15thday of Felruary , 2012. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAII COUNTY COUNCIL County of Hawai`i Hilo, Hawai`i I hereby certify that the foregoing RESOLUTION was by the vote indicated to the right hereof adopted by the COUNCIL of the County of Hawaii on Felxu ry 15, 2012 ATTEST: OUNTY CLERK CHAIRPERSON & PRESID ROLL CALL VOTE Reference: C- 540 /FC -195 ICER RESOLUTION NO. 215 12 AYES NOES ABS EX BLAS X FORD X HOFFMANN X IKEDA X ONISHI X PILAGO X SMART X YAGONG X YOSHIMOTO X 8 0 1 0 Reference: C- 540 /FC -195 ICER RESOLUTION NO. 215 12 EXHIBIT "A" the STATE's STATE OF HAWAII CONTRACT FOR GOODS AND SERVICES (IN THE FOLLOWING CATEGORIES: EXEMPT; SMALL PURCHASE; SOLE SOURCE; OR EMERGENCY) This Contract, executed on the respective dates indicated below, is effective as of Notice to Proceed ,between State of Hawaii ( "STATE "), by its Department of Health (Insert name of state department, agency, board or commission) Director of Health (Insert title of person signing for State) (hereafter also referred to as the HEAD OF THE PURCHASING AGENCY or designee ( "HOPA ")), whose address is 1250 Punchbowl Street, Honolulu, Hawaii 96813 and County of Hawaii ( "CONTRACTOR "), a government entity (Insert corporation, partnership, joint venture, sole proprietorship. or other legal form of the Contractor) under the laws of the State of Hawaii , whose business address and federal ans and state taxpayer identification numbers are as follows: County of Hawaii, Department of Finance, 25 Aupuni Street, Hilo, Hawaii 96720; Fed. Tax ID No: 99- 6000567 RECITALS A. The STATE is in need of the goods and services, or both, described in this Contract and its attachments. The CONTRACTOR is agreeable to providing the goods and services, or both, as the case may be. B. This Contract is for (check one box): ® (1) A procurement expenditure of public funds for goods or services, or both, that is otherwise exempt from public bidding as set forth in section 103D -102, Hawaii Revised Statutes ( "HRS "), and chapter 3 -120, Hawaii Administrative Rules ( "HAR "); or 103D- 102(2)(G) ; or ❑ (2) A small purchase procurement of goods or services, or both, as set forth in section 103D -305, HRS, and subchapter 8, chapter 3 -122, HAR; or ❑ (3) A sole source procurement of goods or services, or both, as set forth in section 103D -306, FIRS, and subchapter 9, chapter 3 -122, HAR; or ❑ (4) An emergency procurement of goods or services, or both, as set forth in section 103D -307, HRS, and subchapter 10, chapter 3 -122, HAR. C. Money is available to fund this Contract pursuant to: (1) Item D -1, Act 164, 2011 HSL (Identij' state sources) or (2) adenti35, federalsources) or both, in the following amounts: State $ Federal $ D. Pursuant to 250,000.00 (Wellhead Protection Programs) 0.00 Section 321 -7, HRS , the STATE (Legal authority to enter into this Contract) is authorized to enter into this Contract. E. The agency's Chief Procurement Officer is Aaron S. Fujioka who ❑ has approved this procurement or ® is not required to approve this procurement. NOW, THEREFORE, in consideration of the promises contained in this Contract, the STATE and the CONTRACTOR agree as follows: 1. Scope of Services. The CONTRACTOR shall, in a proper and satisfactory manner as determined by the STATE, provide all the goods or services, or both, set forth in Attachment - S 1, which is made a part of this Contract. ADM. SERV. OFFICE 1 AG -002 Rev 07/24/2006 LOG NO. 12-044 2. Compensation. The CONTRACTOR shall be compensated for goods supplied or services performed, or both, under this Contract in a total amount not to exceed TWO HUNDRED FIFTY THOUSAND AND NO /100 DOLLARS ($ 250,000.00 ), including approved costs incurred and taxes, according to the Compensation and Payment Schedule set forth in Attachment -S2, which is made a part of this Contract. 3. Time of Performance. The services or goods required of the CONTRACTOR under this Contract shall be performed and completed in accordance with the Time of Perfomance set forth in Attachment -S3, which is made a part of this Contract. 4. Bonds. The CONTRACTOR ❑ is required to provide or ® is not required to provide: ❑ a performance bond, ❑ a payment bond, ® a performance and payment bond in the amount of NONE DOLLARS ($ 0.00 ). 5. Standards of Conduct Declaration. The Standards of Conduct Declaration of the CONTRACTOR is attached to and made a part of this Contract. 6. Other Terms and Conditions. The General Conditions and any Special Conditions are attached to and made a part of this Contract. In the event of a conflict between the General Conditions and the Special Conditions, the Special Conditions shall control. 7. Liquidated Damages. Liquidated damages shall be assessed in the amount of NOT APPLICABLE DOLLARS ($ 0.00 ) per day, in accordance with the terms of paragraph 9 of the General Conditions. 8. Notices. Any written notice required to be given by any party to this Contract shall be (a) delivered personally, or (b) sent by United States first class mail, postage prepaid. Notice to the STATE shall be sent to the HOPA'S address indicated in the Contract. Notice to the CONTRACTOR shall be sent to the CONTRACTOR'S address indicated in the Contract. A notice shall be deemed to have been received three (3) days after mailing or at the time of actual receipt, 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 execute this Contract by their signatures, on the dates below, to be effective as of the date first above written. STATE (Signature) Loretta J. Fuddy, A.C.S.W., M.P.H. (Print Name) Director of Health (Print Title) (Date) CONTRACTOR County of Hawaii - Department of Finance (Nance of Contractor) (Signature) (Print Name) (Print Title) (Date) APPROVED AS TO FORM: Deputy Attorney General Evidence of authority of the CONTRACTOR'S representative to sign this Contract for the CONTRACTOR must be attached. AG -002 Rev 07/24/2006 ADM. SERV. OFFICE LOG NO. 12 -044 2 STATE OF STATE OF HAWAII CONTRAGT'A WITEDG COUNTY OF On this ) SS. day of before me appeared and ,tome known, to be the person(s) described in and, who, being by me duly swom, did shy that he /she /they is /are i and of , the CONTRACTOR named in the foregoing instrument, and that he /she / 1%y is /are authorized to sign said instrument on behalf of the CONTRACTOR, and acknowleds that he /she /they executed said instrument as the free act and deed of the CONTRACTOR. Doc. Date: Notary Name: Doc. Description: # Pages: (Signature) (Print Name) Notary Public, State of My commission expires: Circuit Notary Si _ ature Date NOT RY CERTIFICATION ADM. SERV. OFFICE LOG NO. 12 -044 AG -009 Rev 7/25/08 1 For the purposes of this declaration: "Agency" means and includes the State, the legislature and its committees, all exe tive departments, boards, commissions, committees, bureaus, offices; and all ind endent commissions and other establishments of the state government but excluding the co "Controlling interest" means an interest in a business or other undertaking which iB/sufficient in fact to control, whether the interest is greater or less than fifty per cent (50 %). "Employee" means any nominated, appointed, or elected officer or empl ee of the State, including members of boards, commissions, and committees, and employ =-s under contract to the State or of the constitutional convention, but excluding legisl ors, delegates to the constitutional convention, justices, and judges. (Section 84 -3, HRS). On behalf of undersigned does declare as follows: 1. CONTRACTOR ❑ is ❑ is not a legislator or an employee . r a business in which a legislator or an employee has a controlling interest. (Section 84- 15(a), ' RS). 2. CONTRACTOR has not been represented or assisted p onally in the matter by an individual who has been an employee of the agency awarding this"Contract within the preceding two years and who participated while so employed in the utter with which the Contract is directly concerned. (Section 84- 15(b), HRS). 3. CONTRACTOR has not been assisted or represe ed by a legislator or employee for a fee or other compensation to obtain this Contract and w not be assisted or represented by a legislator or employee for a fee or other compensation the performance of this Contract, if the legislator or employee had been involved in the dev opment or award of the Contract. (Section 84 -14 (d), HRS). " 4. CONTRACTOR has not been reps ented on matters related to this Contract, for a fee or other consideration by an individual o, within the past twelve (12) months, has been an agency employee, or in the case of th egislature, a legislator, and participated while an employee or legislator on matters related td this Contract. (Sections 84 -18(b) and (c), HRS). THIS FORM IS DELETED AND INOPERATIVE STATE OF HAWAII CONTRACTOR'S OFC DUCT DECL A "l'lON , CONTRACTOR, the CONTRACTOR understands th`the Contract to which this document is attached is voidable on behalf of the STATE if this Contrac was entered into in violation of any provision of chapter 84, Hawaii Revised Statutes, commonly referred to as the Code of Ethics, including the provisions which are the source of the declaration above. Additionally, any fee, compensation, gift, or profit received by any person as a result of a v ation of the Code of Ethics may be recovered by the STATE. *Reminder to A • en • If the "is" block is checked and if the ontract involves goods or services of a va e in excess of $10,000, the Contract mus .e awarded by competitive sealed bidd g under section 103D -302, HRS, or a com • - titive sealed proposal under section 103D- 13, HRS. Otherwise, the Agency may not . ' and the Contract unless it posts a notice of ''s intent to award it and files a copy of the otice with the State Ethics Commission. (Section 84- 15(a), HRS). AG -010 Rev 11/15/2005 CONTRACTOR By (signature) Print Name Print Title Name of Contractor Date STATE OF HAWAII SCOPE OF SERVICES Attachment - S1 The United States Environmental Protection Agency has mandated that the County of Hawaii close all of its large capacity cesspools. Using funds from the American Reconstruction and Recovery Act ( "ARRA "), the County of Hawaii ( "COUNTY ") was able to finance the cost of replacing the large capacity cesspools with sewer lines in the town of Honokaa. A sewer line was installed on Mamane Street in Honokaa, which is the main thoroughfare through this town. Pursuant to Hawaii COUNTY Code Section 21 -5, lots accessible to a sewer line must connect. The Mamane Street is mostly a business district. These lot owners will be required to reroute their sewer lines from the back of their lots to the front. In most cases, they will need to break through concrete sidewalks. Lot owners located below the sewer line will need to install a pump which might require an upgrade of their electrical system. The costs may run over $25,000. The cost of the hookup to the COUNTY sewer line is the responsibility of the lot owner. Many of the lot owners are small businesses. A survey mailed to the affected lot owners found that 80% indicated that they need at least partial financing. Of the lot owners applying for loans, it is reasonable to assume that not all loan applications will be approved. The connection cost will be a financial hardship for many of these lot owners. For this situation, the COUNTY has a financial assistance program (the sewer loan connection program) whereby the COUNTY will guarantee repayment of the loans made to lot owners (that are unable to qualify for bank financing). The COUNTY will be modifying the loan program by guaranteeing only those that have a good possibility of repaying the loan. Therefore, not all loans requested that are declined by the financial institutions will be guaranteed by the COUNTY. Part of the area requiring connection to the Honokaa Sewer Project is located within the Source Water /Wellhead Protection Area ( "WHPA ") for the Hawaii Department of Water Supply's Haina Water System (identified as Public Water System #161). The WHPA identifies the area around a drinking water source where potential contaminating activities ( "PCA ") may contaminate the water source. On -Site Disposal Systems ( "OSDS ") including large capacity cesspools, cesspools, and septic systems are identified by the Hawaii Source Water Assessment and Protection Program as a PCA. ADM. SERV. OFFICE LOG NO. 12 -044 AG -011 Rev 07/28/2005 1 The COUNTY is requesting funding under the Wellhead Protection - Financial Assistance Program ( "WHP -FAP ") to provide grants for sewer connections to those lot owners within the WHPA that may have financial hardships and may be unable to hook up without these funds. ADMINISTRATIVE TASKS Task 1. Project Management. The COUNTY shall: 1. Ensure the quality and timeliness of all Project deliverables. 2. Meet with the STATE on a regular basis. The meetings shall be used to review and evaluate the COUNTY's performance, and provide Project updates for both the COUNTY and the STATE. In accordance with Project demands, meetings may be scheduled on a more frequent basis. 3 Obtain the STATE's approval to proceed on tasks. All decisions and approvals on project tasks will be made by the STATE's Project Manager. For purposes of this Contract, Michael Okumoto of the COUNTY's Department of Finance - Treasury Division, is the Project Applicant/ Contract Manager. For purposes of this Contract, Joanna Seto, Chief of the STATE's Safe Drinking Water Branch is the STATE's Project Manager and Daniel Chang of the STATE's Safe Drinking Water Branch is the alternate Project Manager /Project Coordinator. PROJECT TASKS Meetings regarding these project tasks have been held between the STATE and the COUNTY. These activities are acceptable for funding under the Wellhead Protection - Financial Assistance Program. The COUNTY is fully aware of and understands the scope of the tasks to be conducted under this Contract. The COUNTY shall follow project tasks as specified in the Contract and as directed by the STATE. Task 1. Identification of Qualified Lot Owners The COUNTY will provide the STATE with a list of lot owners within the Haina Water System's WHPA. This list will be used to qualify lot owners for WHP -FAP grant funding (via this Contract). ADM. SERV. OFFICE LOG NO. 12 -044 AG -011 Rev 07/28/2005 2 Task 2. Awarding of Project Funding to Lot Owners This project is designed to incorporate a flexible funding criteria due to the unknown variables in sewer connection grant requests. Unknown variables include the total connection costs and the total financial assistance that is required to connect, because each lot owner's situation is unique. This program is designed to help the neediest first to insure that those lot owners within the Haina Water System's WHPA will receive sewer connection financial assistance. The project will use the COUNTY's sewer connection loan program to prioritize the usage of project funds. For whatever grant amount is received, the funds will be used in the following order: 1. Applicants who wish to, but are not approved to participate in the COUNTY's sewer connection loan program will be the first recipients. These applicants are lot owners who applied to two financial institutions and were declined. The COUNTY would have received their applications but are declined to guarantee their bank loan request. If grant funds are insufficient to fully fund the total amount of required financing in this category, then funds will be applied to the least expensive connection first until funds are depleted. This will insure that the maximum number of lots are connected. 2. If fund are more than sufficient to finance category 1, then the next category would be those who applied for loans, were declined by the financial institutions, but requested and received the COUNTY's guarantee. These lot owners will be reimbursed for their down payment or the portion that was not financed. If grant funds are limited and all requests in this category cannot be fulfilled, then the lowest amount of down payment will be funded first to insure the maximum amount of hookups. If grant funds are sufficient to fund down payments, then the remainder of the grant funds will be divided equally among loan applicants in this category, but not exceeding their loan amount. 3. If funds are more than sufficient to finance category 1 and 2, then the third category would be to equally subsidize those with connection costs regardless of whether they applied for a loan but not exceeding their connection costs. Project grant to any single lot owner shall not exceed $25,000.00. ADM. SERV. OFFICE LOG NO. 12 -044 AG -011 Rev 07/28/2005 3 The WHP -FAP grant funding for this project will be administered by the COUNTY's Department of Finance - Treasury Division ( "TREASURY "). The TREASURY will work with the financial institutions to insure that loan and grant proceeds are paid to the sewer connection contractor. Task 3. Inspections of Sewer Connections The TREASURY will also work with the COUNTY's Department of Environmental Management personnel to insure that contract work is performed and sewer connections are made properly. Task 4. Contract Recordkeeping For purposes of this Contract, the TREASURY will maintain technical, managerial, and financial records associated with each lot owner that is awarded< project grant funds for its sewer connection. These records shall be evaluated by the STATE in determining compensation to the COUNTY under this Contract. ADM. SERV. OFFICE LOG NO. 12 -044 AG -011 Rev 07/28/2005 4 Attachment - S2 STATE OF HAWAII COMPENSATION AND PAYMENT SCHEDULE COMPENSATION AND PAYMENT SCHEDULE In full consideration for services performed by the COUNTY under this Contract, the STATE agrees, subject to allotment to be made by the Director of Finance, State of Hawaii, pursuant to Chapter 37, Hawaii Revised Statutes, to pay to the COUNTY a total sum of money not to exceed TWO HUNDRED FIFTY THOUSAND AND NO /100 DOLLARS ($250,000.00) of special funds, which shall be paid in accordance with and subject to the following: a. Payments shall be made in quarterly installments upon the quarterly submission by the COUNTY of invoices in triplicate for the services to be provided in accordance with Attachment -S1, "Scope of Services," and in accordance with the costs identified in the Budget, attached hereto as Exhibit "A" and made a part hereof. The STATE shall withhold five percent (5%) of the total Contract funds until final settlement of this Contract. b. Invoices shall be accompanied by expenditure reports for the quarterly', billing and certified by the COUNTY to contain expenditures actually incurred for the services provided under this Contract. c. The expenditure reports shall be reviewed by the STATE and shall be subject to the STATE's preliminary determination of appropriateness and allowability of the reported expenditures. The STATE's preliminary determination of appropriateness and allowability of the reported expenditures shall be subject to later verification and subsequent audit. ADM. SERV. OFFICE LOG NO. 12 -044 1 AG -012 Rev 11/15/2005 d. If an amount of reported expenditures is preliminarily determined by the STATE to be inappropriate and unallowable, the STATE may deduct an equivalent amount from the next payable installment and may withhold payment of the amount of moneys equivalent to the questioned expenditures until later resolution of the discrepancy by audit or other means. If, after payment of the last installment prior to the final payment, investigation and examination reveal additional expenditures that are determined by the STATE to be inappropriate and unallowable, the STATE may require that an equivalent amount of moneys be refunded by the COUNTY notwithstanding the STATE's preliminary determination of appropriateness and allowability. An amount of moneys to be refunded by the COUNTY may be offset against the amount of moneys withheld by the STATE in determining the amount of the final payment to be made to the COUNTY in final settlement of this Contract. Final settlement of this Contract shall include submission and acceptance of all reports and other materials to be submitted by the COUNTY, resolution of all discrepancies in expenditures or performance of services, and completion of all other outstanding matters under this Contract. e. The Final Invoice shall be submitted within forty -five (45) days after the termination date of the Contract. No payment shall be made if invoices are not received by the STATE within forty -five (45) days after the termination data of the Contract. ADM. SERV. OFFICE LOG NO. 12 -044 AG -012 Rev 11/15/2005 2 STATE OF HAWAII TIME OF PERFORMANCE Attachment - S3 Time of Performance. The CONTRACTOR shall provide the services required under this Contract from the commencement date of the STATE's Notice to Proceed, to and including September 30, 2013, unless this Contract is sooner terminated as hereinafter provided. The STATE desires to commence this Contract on October 1, 2011 or sooner. However, due to the time required for evaluation, award, and execution of this Contract, the exact commencement date is indeterminate at this time. Upon execution of this Contract, the STATE shall issue a Notice to Proceed to the CONTRACTOR. This Contract may be extended as provided in paragraph 4 of the Special Conditions. ADM. SERV. OFFICE LOG NO. 12 -044 AG -013 Rev 11/15/2005 1 STATE OF HAWAII CERTIFICATE OF EXEMPTION FROM CIVIL SERVICE Attachment — S4 1. By Heads of Departments Delegated by the Director of the Department of Human Resources Development ( "DHRD ").* Pursuant to a delegation of the authority by the Director of DHRD, I certify that the services to be provided under this Contract, and the person(s) providing the services under this Contract are exempt from the civil service, pursuant to § 76 -16, Hawaii Revised Statutes (HRS). (Signature) Loretta J. Fuddy, A.C.S.W, M.P.H. (Print Name) Director of Health (Print Title) (Date) * This part of the form may be used by all department heads and the heads of attached agencies to whom the Director of DHRD expressly has delegated authority to certify § 76 -16, HRS, civil service exemptions. The specific paragraph(s) of § 76 -16, HRS, upon which an exemption is based should be noted in the contract file. If an exemption is based on § 76- 16(b)(15), the contract must meet the following conditions: (1) It involves the delivery of completed work or product by or during a specific time; (2) There is no employee - employer relationship; and (3) The authorized funding for the service is from other than the "A" or personal services cost element. NOTE: Not all attached agencies have received a delegation under § 76- 16(b)(15). If in doubt, attached agencies should check with the Director of DHRD prior to certifying an exemption under § 76- 16(b)(15). Authority to certify exemptions under § §76- 16(b)(2), and 76- 16(b)(12), HRS, has not been delegated; only the Director of DHRD may certify §§ 76- 16(b)(2), and 76- 16(b)(12) exemptions. 2. By the Director of DHRD, State of Hawaii. I certify that the services to be provided under this Contract, and the person(s) providing the services under this Contract are exempt from the civil service, pursuant to §76 -16, HRS. (Signature) (Date) (Print Name) (Print Title, if designee of the Director of DHRD) ADM. SERV. OFFICE AG -014 Rev 6/26/2006 LOG NO . 12 - 0 4 4 1 STATE OF HAWAII SPECIAL CONDITIONS Attachment - S5 1. Deletion of Portions of Contract. For purposes of this Contract, paragraph 5 on page 2 of the Contract, "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 Contract and its attached form are not operative. 2. Deletion of General Conditions. For purposes of this Contract, the following General Conditions are hereby deleted from the General Conditions and have no operative effect between the parties: a. Subparagraph 2.e., 2.g., 2.h., and 2.i. b. Subparagraph 17.d. c. Subparagraph 19.h. 3. If this Contract is terminated with cause or without cause or at the scheduled expiration of the time of performance specified in this Contract, all equipment and unused supplies and materials leased or purchased with funds paid to the CONTRACTOR under this Contract shall become the property of the STATE as it so specifies and shall be disposed of as directed by the STATE, except, if applicable, as otherwise may be provided under the Federal Grant. 4. Option to Extend Contract. Unless terminated, this Contract may be extended by the STATE for specified periods of time not to exceed one (1) year or for not more than one (1)additional twelve (12) month period, upon mutual agreement and the execution of a supplemental agreement. The Contract price may be adjusted at the beginning of each extension period and shall be subject to allotment and the availability of funds. The STATE may terminate the extended agreement at any time in accordance with General Conditions no. 14. ADM. SERV. OFFICE LOG NO. 12 -044 AG -015 Rev 11/15/2005 1 GENERAL CONDITIONS Table of Contents Page(s) 1. Coordination of Services by the STATE 2 2. Relationship of Parties: Independent Contractor Status and Responsibilities, Including Tax Responsibilities 2 3. Personnel Requirements 3 4. Nondiscrimination 3 5. Conflicts of Interest 3 6. Subcontracts and Assignments 3 7. Indemnification and Defense 4 8. Cost of Litigation 4 9. Liquidated Damages 4 10. STATE'S Right of Offset 4 I1. Disputes 4 12. Suspension of Contract 4 13. Termination for Default 5 14. Termination for Convenience 6 15. Claims Based on the Agency Procurement Officer's Actions or Omissions 8 16. Costs and Expenses 8 17. Payment Procedures; Final Payment; Tax Clearance 9 18. Federal Funds 9 19. Modifications of Contract 9 20. Change Order 10 21. Price Adjustment 11 22. Variation in Quantity for Definite Quantity Contracts 11 23. Changes in Cost - Reimbursement Contract 11 24. Confidentiality of Material 12 25. Publicity 12 26. Ownership Rights and Copyright 12 27. Liens and Warranties 12 28. Audit of Books and Records of the CONTRACTOR 13 29. Cost or Pricing Data 13 30. Audit of Cost or Pricing Data 13 31. Records Retention 13 32. Antitrust Claims 13 33. Patented Articles 13 34. Governing Law 14 35. Compliance with Laws 14 36. Conflict between General Conditions and Procurement Rules 14 37. Entire Contract 14 38. Severability 14 39. Waiver 14 40. Pollution Control 14 41. Campaign Contributions 14 42. Confidentiality of Personal Information 14 ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 1 GENERAL CONDITIONS 1. Coordination of Services by the STATE. The head of the purchasing agency ( "HOPA ") (which term includes the designee of the HOPA) shall coordinate the services to be provided by the CONTRACTOR in order to complete the performance required in the Contract. The CONTRACTOR shall maintain communications with HOPA at all stages of the CONTRACTOR'S work, and submit to HOPA for resolution any questions which may arise as to the performance of this Contract. "Purchasing agency" as used in these General Conditions means and includes any governmental body which is authorized under chapter 103D, HRS, or its implementing rules and procedures, or by way of delegation, to enter into contracts for the procurement of goods or services or both. 2. Relationship of Parties: Independent Contractor Status and Responsibilities, Including Tax Responsibilities. a. In the performance of services required under this Contract, the CONTRACTOR is an "independent contractor," with the authority and responsibility to control and direct the performance and details of the work and services required under this Contract; however, the STATE shall have a general right to inspect work in progress to determine whether, in the STATE'S opinion, the services are being performed by the CONTRACTOR in compliance with this Contract. 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 Contract, 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 benefits provided to state employees. c. The CONTRACTOR shall be responsible for the accuracy, completeness, and adequacy of the CONTRACTOR'S performance under this Contract. 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 Contract, for all loss, damage, or injury caused by the CONTRACTOR, or the CONTRACTOR'S employees or agents in the course of their employment. 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 Contract, including but not limited to (i) income taxes, (ii) employment related fees, assessments, and taxes, and (iii) general excise taxes. The CONTRACTOR also is responsible for obtaining all licenses, permits, and certificates that may be required in order to perform this Contract. e. The CONTRACTOR shall obtain a general excise tax license from the Department of Taxation, State of Hawaii, in accordance with section 237 -9, HRS, and shall comply with all requirements thereof. The CONTRACTOR shall obtain a tax clearance certificate from the Director of Taxation, State of Hawaii, and the Internal Revenue Service, U.S. Department of the Treasury, showing that all delinquent taxes, if any, levied or accrued under state law and the Internal Revenue Code of 1986, as amended, against the CONTRACTOR have been paid and submit the same to the STATE prior to commencing any performance under this Contract. The CONTRACTOR shall also be solely responsible for meeting all requirements necessary to obtain the tax clearance certificate required for final payment under sections 103 -53 and 103D -328, HRS, and paragraph 17 of these General Conditions. f. The CONTRACTOR is responsible for securing all employee - related insurance 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, costs, and other liabilities associated with securing the insurance coverage. ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 2 g. The CONTRACTOR shall obtain a certificate of compliance issued by the Department of Labor and Industrial Relations, State of Hawaii, in accordance with section103D -310, HRS, and section 3 -122- 112, HAR, that is current within six months of the date of issuance. h. The CONTRACTOR shall obtain a certificate of good standing issued by the Department of Commerce and Consumer Affairs, State of Hawaii, in accordance with section 103D -310, HRS, and section 3 -122 -112, HAR, that is current within six months of the date of issuance. i. In lieu of the above certificates from the Department of Taxation, Labor and Industrial Relations, and Commerce and Consumer Affairs, the CONTRACTOR may submit proof of compliance through the State Procurement Office's designated certification process. 3. Personnel Requirements. a. The CONTRACTOR shall secure, at the CONTRACTOR'S own expense, all personnel required to perform this Contract. b. The CONTRACTOR shall ensure that the CONTRACTOR'S employees or agents are experienced and fully qualified to engage in the activities and perform the services required under this Contract, and that all applicable licensing and operating requirements imposed or required under federal, state, or 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 Contract, including any subcontractor, employee, or agent of the CONTRACTOR, shall engage in any discrimination that is prohibited by any applicable federal, state, or county law. 5. Conflicts of Interest. The CONTRACTOR represents that neither the CONTRACTOR, nor any employee or agent of the CONTRACTOR, presently has any interest, and promises that no such interest, direct or indirect, shall be acquired, that would or might conflict in any manner or degree with the CONTRACTOR'S performance under this Contract. 6. Subcontracts and Assignments. The CONTRACTOR shall not assign or subcontract any of the CONTRACTOR'S duties, obligations, or interests under this Contract and no such assignment or subcontract shall be effective unless (i) the CONTRACTOR obtains the prior written consent of the STATE, and (ii) the CONTRACTOR'S assignee or subcontractor submits to the STATE a tax clearance certificate from the Director of Taxation, State of Hawaii, and the Internal Revenue Service, U.S. Department of Treasury, showing that all delinquent taxes, if any, levied or accrued under state law and the Internal Revenue Code of 1986, as amended, against the CONTRACTOR'S assignee or subcontractor have been paid. Additionally, no assignment by the CONTRACTOR of the CONTRACTOR'S right to compensation under this Contract shall be effective unless and until the assignment is approved by the Comptroller of the State of Hawaii, as provided in section 40 -58, HRS. a. Recognition of a successor in interest. When in the best interest of the State, a successor in interest may be recognized in an assignment contract in which the STATE, the CONTRACTOR and the assignee or transferee (hereinafter referred to as the "Assignee ") agree that: (1) The Assignee assumes all of the CONTRACTOR'S obligations; (2) The CONTRACTOR remains liable for all obligations under this Contract but waives all rights under this Contract 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 Contract 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 ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 3 Agency procurement officer indicating such change of name (for example, an amendment to the CONTRACTOR'S articles of incorporation), enter into an amendment to this Contract with the CONTRACTOR to effect such a change of name. The amendment to this Contract changing the CONTRACTOR'S name shall specifically indicate that no other terms and conditions of this Contract are thereby changed. c. Reports. All assignment contracts and amendments to this Contract effecting changes of the CONTRACTOR'S name or novations hereunder shall be reported to the chief procurement officer (CPO) as defined in section 103D- 203(a), HRS, within thirty days of the date that the assignment contract or amendment becomes effective. d. Actions affecting more than one purchasing agency. Notwithstanding the provisions of subparagraphs 6a through 6c herein, when the CONTRACTOR holds contracts with more than one purchasing agency of the State, the assignment contracts and the novation and change of name amendments herein authorized shall be processed only through the CPO's office. 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 attorneys' fees, and all claims, suits, and demands therefore, arising out of or resulting from the acts or omissions of the CONTRACTOR or the CONTRACTOR'S employees, officers, agents, or subcontractors under this Contract. The provisions of this paragraph shall remain in full force and effect notwithstanding the expiration or early termination of this Contract. 8. Cost of Litigation. In 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 Contract, the CONTRACTOR shall pay all costs and expenses incurred by or imposed on the STATE, including attorneys' fees. 9. Liquidated Damages. 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 Contract per calendar day from the date set for cure until either (i) the STATE reasonably obtains similar goods or services, or both, if the CONTRACTOR is terminated for default, or (ii) 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 paragraph 13d (Excuse for Nonperformance or Delay Performance), liquidated damages shall not be assessable against the CONTRACTOR. The CONTRACTOR remains liable for damages caused other than by delay. 10. STATE'S Right of Offset. The STATE may offset against any monies or other obligations the STATE owes to the CONTRACTOR under this Contract, any amounts owed to the State of Hawaii by the CONTRACTOR under this Contract or any other contracts, or pursuant to any law or other obligation owed to the State of Hawaii by the CONTRACTOR, including, without limitation, the payment of any taxes or levies of any kind or nature. The STATE will notify the CONTRACTOR in writing of any offset and the nature of such offset. For 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 covered by an installment payment or other settlement plan approved by the State of Hawaii, provided, however, that the CONTRACTOR shall be entitled to such exclusion only to the extent that the CONTRACTOR is current with, and not delinquent on, any payments or obligations owed to the State of Hawaii under such payment or other settlement plan. 11. Disputes. Disputes shall be resolved in accordance with section 103D -703, HRS, and chapter 3 -126, Hawaii Administrative Rules ( "HAR "), as the same may be amended from time to time. 12. Suspension of Contract. The STATE reserves the right at any time and for any reason to suspend this Contract for any reasonable period, upon written notice to the CONTRACTOR in accordance with the provisions herein. a. Order to stop performance. The Agency procurement officer may, by written order to the CONTRACTOR, at any time, and without notice to any surety, require the CONTRACTOR to stop all or any part of the performance called for by this Contract. This order shall be for a specified ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 4 period not exceeding sixty (60) days after the order is delivered to 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 this section. Stop performance orders shall include, as appropriate: (1) A clear description of the work to be suspended; (2) Instructions as to the issuance of further orders by the CONTRACTOR for material or services; (3) Guidance as to action to be taken on subcontracts; and (4) Other instructions and suggestions to the CONTRACTOR for minimizing costs. Upon receipt of such an order, the CONTRACTOR shall forthwith comply with its terms and suspend all performance under this Contract at the time stated, provided, however, the CONTRACTOR shall take all reasonable steps to minimize the occurrence 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 procurement 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 Contract. b. Cancellation or expiration of the order. If a stop performance order issued under this section 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 resume performance. An appropriate adjustment shall be made in the delivery schedule or contract price, or both, and the Contract shall be modified in writing accordingly, if: (1) The stop performance order results in an increase in the time required for, or in the CONTRACTOR'S cost properly allocable to, the performance of any part of this Contract; and (2) The CONTRACTOR asserts a claim for such an adjustment within thirty (30) days after the end of the period of performance stoppage; provided that, if the Agency procurement officer decides 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 Contract. c. Termination of stopped performance. If a stop performance order is not cancelled and the performance covered by such order is terminated for default or convenience, the reasonable costs resulting from the stop performance order shall be allowable by adjustment or otherwise. d. Adjustment of price. Any adjustment in contract price made pursuant to this paragraph shall be determined in accordance with the price adjustment provision of this Contract. 13. Termination for Default. a. Default. If the CONTRACTOR refuses or fails to perform any of the provisions of this Contract with such diligence as will ensure its completion within the time specified in this Contract, or any extension thereof, otherwise fails to timely satisfy the Contract provisions, or commits any other substantial breach of this Contract, the Agency procurement officer 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 Contract or such part of the Contract 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 Contract to the extent it is not terminated and shall be liable for excess costs incurred in procuring similar goods or services. b. CONTRACTOR'S duties. Notwithstanding termination of the Contract and subject to any directions from the Agency procurement officer, the CONTRACTOR shall take timely, reasonable, and ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 5 necessary action to protect and preserve property in the possession of the CONTRACTOR in which the STATE has an interest. c. Compensation. Payment for completed goods and services delivered and accepted by the STATE shall be at the price set forth in the Contract. Payment for the protection and preservation of property shall be in an amount agreed upon by the CONTRACTOR and the Agency procurement officer. If the parties fail to agree, the Agency procurement officer shall set an amount subject to the CONTRACTOR'S rights under chapter 3 -126, HAR. The STATE may withhold from amounts due the CONTRACTOR such sums as the Agency procurement officer deems to be necessary to protect the STATE against loss because 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 nonperformance or delayed performance. The CONTRACTOR shall not be in default by reason of any failure in performance of this Contract in accordance with its terms, including any failure by the CONTRACTOR to make progress in the prosecution of the performance hereunder which endangers such performance, if the CONTRACTOR has notified the Agency procurement officer within fifteen (15) days after the cause of the delay and the failure arises out of causes such as: acts of God; acts of a public enemy; acts of the State and any other governmental body in its sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather. If the failure to perform is caused by the failure of a subcontractor to perform or to make progress, and if such failure arises out of causes similar to those set forth above, the CONTRACTOR shall not be deemed to be in default, unless the goods and services to be furnished by the subcontractor were reasonably obtainable 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 facts and extent of such failure, and, if such officer determines that any failure to perform was occasioned by any one or more of the excusable causes, and that, but for the excusable cause, the CONTRACTOR'S progress and performance would have met the terms of the Contract, the delivery schedule shall be revised accordingly, subject to the rights of the STATE under this Contract. As used in this paragraph, the term "subcontractor" means subcontractor at any tier. e. Erroneous 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 paragraph 14. f. Additional rights and remedies. The rights and remedies provided in this paragraph are in addition to any other rights and remedies provided by law or under this Contract. 14. Termination for Convenience. a. Termination. The Agency procurement officer may, when the interests of the STATE so require, terminate this Contract in whole or in part, for the convenience of the STATE. The Agency procurement officer shall give written notice of the termination to the CONTRACTOR specifying the part of the Contract terminated and when termination becomes effective. b. CONTRACTOR'S obligations. The CONTRACTOR shall incur no further obligations in connection with the terminated performance and on the date(s) set in the notice of termination the CONTRACTOR will stop performance to the extent specified. The CONTRACTOR shall also terminate outstanding orders and subcontracts as they relate to the terminated performance. The CONTRACTOR shall settle the liabilities and claims arising out of the termination of subcontracts 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 subcontracts to the STATE. The CONTRACTOR must still complete the performance not terminated by the notice of termination and may incur obligations as necessary to do so. ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 6 c. Right to goods and work product. The Agency procurement officer may require 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 partially completed goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights (hereinafter called "manufacturing material') as the CONTRACTOR has specifically produced or specially acquired for the performance of the terminated part of this Contract. The CONTRACTOR shall, upon direction of the Agency procurement officer, protect and preserve property in the possession of the CONTRACTOR in which the STATE has an interest. If the Agency procurement officer does not exercise this right, the CONTRACTOR shall use best efforts to sell such goods and manufacturing materials. Use of this paragraph in no way implies that the STATE has breached the Contract by exercise of the termination for convenience provision. d. Compensation. (1) The CONTRACTOR shall submit a termination claim specifying the amounts due because of the termination for convenience together with the cost or pricing data, submitted to the extent required by chapter 3 -122, HAR, bearing on such claim. If the CONTRACTOR fails to file a termination claim within one year from the effective date of termination, the Agency procurement officer may pay the CONTRACTOR, if at all, an amount set in accordance with subparagraph 14d(3) below. (2) The Agency procurement officer and the CONTRACTOR may agree to a settlement provided the CONTRACTOR has filed a termination claim supported by cost or pricing data submitted as required and that the settlement does not exceed the total Contract price 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 Contract price of the performance not terminated. (3) Absent complete agreement under subparagraph 1 4d(2) the Agency procurement officer shall pay the CONTRACTOR the following amounts, provided payments agreed to under subparagraph 1 4d(2) shall not duplicate payments under this subparagraph for the following: (A) Contract prices for goods or services accepted under the Contract; (B) Costs 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 Contract would have been 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 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 costs of the CONTRACTOR, including accounting, legal, clerical, and other expenses reasonably necessary for the preparation of settlement claims and supporting data with respect to the terminated portion of the Contract and for the termination of subcontracts thereunder, together with reasonable storage, transportation, and other costs incurred in connection with the protection or disposition of property allocable to the terminated portion of this Contract. The total sum to be paid the CONTRACTOR under this subparagraph shall not exceed the ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 7 total Contract price plus the reasonable settlement costs of the CONTRACTOR reduced by the amount of payments otherwise made, the proceeds of any sales of supplies and manufacturing materials under subparagraph 14d(2), and the contract price of performance not terminated. (4) Costs claimed, agreed to, or established under subparagraphs 14d(2) and 14d(3) shall be in accordance with Chapter 3 -123 (Cost Principles) of the Procurement Rules. 15. Claims Based on the Agency Procurement Officer's Actions or Omissions. a. Changes in scope. If any action or omission on the part of the Agency procurement officer (which term includes the designee of such officer for purposes of this paragraph 15) requiring performance changes within the scope of the Contract constitutes the basis for a claim by the CONTRACTOR for additional compensation, damages, or an extension of time for completion, the CONTRACTOR shall continue with performance of the Contract in compliance with the directions or orders of such officials, but by so doing, the 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 required. The 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 knows of the occurrence of such action or omission; (B) Within thirty (30) days after the CONTRACTOR knows 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 procurement 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 procurement officer, upon receipt of such notice, may rescind such action, remedy such omission, or take such other steps as may be deemed advisable in the discretion of the Agency procurement officer; Basis must be explained. The notice required by subparagraph 15a(1) describes as clearly as practicable at the time the reasons why the CONTRACTOR believes that additional compensation, damages, or an extension of time may be remedies to which the CONTRACTOR is entitled; and (3) (4) Claim must be justified. The CONTRACTOR must maintain and, upon request, make available to the Agency procurement officer within a reasonable time, detailed records to the extent practicable, and other documentation and evidence satisfactory to the STATE, justifying the claimed additional costs or an extension of time in connection with such changes. b. CONTRACTOR not excused. Nothing herein contained, however, shall excuse the CONTRACTOR from compliance with any rules or laws precluding any state 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 Contract. c. Price adjustment. Any adjustment in the price made pursuant to this paragraph shall be determined in accordance with the price adjustment provision of this Contract. 16. Costs and Expenses. Any reimbursement due the CONTRACTOR for per diem and transportation expenses under this Contract shall be subject to chapter 3 -123 (Cost Principles), HAR, and the following guidelines: ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 8 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 cost of renting an intermediate -sized vehicle. c. Unless prior written approval of the HOPA is obtained, reimbursement for subsistence allowance (i.e., hotel and meals, etc.) shall not exceed the applicable daily authorized rates for inter - island or out -of -state travel that are set forth in the current Governor's Executive Order authorizing adjustments in salaries and benefits for state officers and employees in the executive branch who are excluded from collective bargaining coverage. 17. Payment Procedures; Final Payment; Tax Clearance. a. Original invoices required. All payments under this Contract shall be made only upon submission by the CONTRACTOR of original invoices specifying the amount due and certifying that services requested under the Contract have been performed by the CONTRACTOR according to the Contract. b. Subject to available funds. Such payments are 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 chapter 40, HRS. c. Prompt payment. (1) Any money, other than retainage, paid to the CONTRACTOR shall be disbursed to subcontractors within ten (10) days after receipt of the money in accordance with the terms of the subcontract; provided that the subcontractor has met all the terms and conditions of the subcontract and there are no bona fide disputes; and (2) Upon final payment to the CONTRACTOR, full payment to the subcontractor, including retainage, shall be made within ten (10) days after receipt of the money; provided that there are no bona fide disputes over the subcontractor's performance under the subcontract. d. Final payment. Final payment under this Contract shall be subject to sections 103 -53 and 103D -328, HRS, which require a tax clearance from the Director of Taxation, State of Hawaii, and the Internal Revenue Service, U.S. Department of Treasury, showing that all delinquent taxes, if any, levied or accrued under state law and the Internal Revenue Code of 1986, as amended, against the CONTRACTOR have been paid. Further, in accordance with section 3- 122 -112, HAR, CONTRACTOR shall provide a certificate affirming that the CONTRACTOR has remained in compliance with all applicable laws as required by this section. 18. Federal Funds. If this Contract is payable in whole or in part from federal funds, CONTRACTOR agrees that, as to the portion of the compensation under this Contract to be payable from federal funds, the CONTRACTOR shall be paid only from such funds received from the federal government, and shall not be paid from any other funds. Failure of the STATE to receive anticipated federal funds shall not be considered a breach by the STATE or an excuse for nonperformance by the CONTRACTOR. 19. Modifications of Contract. a. In writing. Any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Contract permitted by this Contract shall be made by written amendment to this Contract, signed by the CONTRACTOR and the STATE, provided that change orders shall be made in accordance with paragraph 20 herein. b. No oral modification. No oral modification, alteration, amendment, change, or extension of any term, provision, or condition of this Contract shall be permitted. ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 9 c. Agency procurement officer. By written order, at any time, and without notice to any surety, the Agency procurement officer may unilaterally order of the CONTRACTOR: (A) (B) Changes in the work within the scope of the Contract; and Changes in the time of performance of the Contract that do not alter the scope of the Contract work. d. Adjustments of price or time for performance. If any modification increases or decreases the CONTRACTOR'S cost of, or the time required for, performance of any part of the work under this Contract, an adjustment shall be made and this Contract modified in writing accordingly. Any adjustment in contract price made pursuant to this clause shall be determined, where applicable, in accordance with the price adjustment clause of this Contract or as negotiated. e. Claim barred after final payment. 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. Claims not barred. In the absence of a written contract modification, nothing in this clause shall be deemed to restrict the CONTRACTOR'S right to pursue a claim under this Contract or for a breach of contract. CPO approval. If this is a professional services contract awarded pursuant to section 103D -303 or 103D -304, HRS, any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Contract which increases the amount payable to the CONTRACTOR by at least $25,000.00 or ten per cent (10 %) of the initial contract price, whichever increase is higher, must receive the prior approval of the CPO. h. Tax clearance. 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 Contract, a tax clearance from the Director of Taxation, State of Hawaii, and the Internal Revenue Service, U.S. Department of Treasury, showing that all delinquent taxes, if any, levied or accrued under state law and the Internal Revenue Code of 1986, as amended, against the CONTRACTOR have been paid. i. Sole source contracts. Amendments to sole source contracts that would change the original scope of the Contract may only be made with the approval of the CPO. Annual renewal of a sole source contract for services should not be submitted as an amendment. 20. Change Order. The Agency procurement officer may, by a written order signed only by the STATE, at any time, and without notice to any surety, and subject to all appropriate adjustments, make changes within the general scope of this Contract 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 performance. If any change order increases or decreases the CONTRACTOR'S cost of, or the time required for, performance of any part of the work under this Contract, whether or not changed by the order, an adjustment shall be made and the Contract modified in writing accordingly. Any adjustment in the Contract price made pursuant to this provision shall be determined in accordance with the price adjustment provision of this Contract. Failure of the parties to agree to an adjustment shall not excuse the CONTRACTOR from proceeding with the Contract as changed, provided that the Agency procurement officer promptly and duly makes the provisional adjustments in payment or time for performance as may be reasonable. By ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 10 proceeding with the work, the CONTRACTOR shall not be deemed to have prejudiced any claim for additional compensation, or any extension of time for completion. b. 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 respond with a claim for an adjustment. The requirement for a timely written response by CONTRACTOR cannot be waived and shall be a condition precedent to the assertion of a claim. c. Claim barred after final payment. No claim by the CONTRACTOR for an adjustment hereunder shall be allowed if a written response is not given prior to final payment under this Contract. d. Other claims not barred. In the absence of a change order, nothing in this paragraph 20 shall be deemed to restrict the CONTRACTOR'S right to pursue a claim under the Contract or for breach of contract. 21. Price Adjustment. a. Price adjustment. 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 fixed price adjustment before commencement of the pertinent performance or as soon thereafter as practicable; (2) By unit prices specified in the Contract or subsequently agreed upon; (3) By the costs attributable to the event or situation covered by the provision, plus appropriate profit or fee, all as specified in the Contract or subsequently agreed upon; (4) In such other manner as the parties may mutually agree; or (5) In the absence of agreement between the parties, by a unilateral determination by the Agency procurement officer of the costs attributable to the event or situation covered by the provision, plus appropriate profit or fee, all as computed by the Agency procurement officer in accordance with generally accepted accounting principles and applicable sections of chapters 3 -123 and 3 -126, HAR. b. Submission of cost or pricing data. The CONTRACTOR shall provide cost or pricing data for any price adjustments subject to the provisions of chapter 3 -122, HAR. 22. Variation in Quantity for Definite Quantity Contracts. 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 Contract, may be increased by a maximum of ten per cent (10 %); 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 contract or that it would not be practical to award another contract. 23. Changes in Cost - Reimbursement Contract. If this Contract is a cost - reimbursement contract, the following provisions shall apply: 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 the following: Description of performance (Attachment 1); Time of performance (i.e., hours of the day, days of the week, etc.); Place of performance of services; ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 11 (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; (5) Method of shipment or packing of supplies; or (6) Place of delivery. b. If any change causes an increase or decrease in the estimated cost of, or the time required for performance of, any part of the performance under this Contract, whether or not changed by the order, or otherwise affects any other terms and conditions of this Contract, the Agency 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. c. The CONTRACTOR must assert the CONTRACTOR'S rights to an adjustment under this provision within thirty (30) days from the day of receipt of the written order. However, if the Agency procurement officer decides that the facts justify it, the Agency procurement officer may receive and act upon a proposal submitted before final 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 provision shall excuse the CONTRACTOR from proceeding with the Contract as changed. e. Notwithstanding the terms and conditions of subparagraphs 23a and 23b, the estimated cost of this Contract and, if this Contract is incrementally funded, the funds allotted for the performance of this Contract, shall not be increased or considered to be increased except by specific written modification of the Contract indicating the new contract estimated cost and, if this contract is incrementally funded, the new amount allotted to the contract. 24. Confidentiality of Material. a. All material given to or made available to the CONTRACTOR by virtue of this Contract, which is identified as proprietary or confidential information, will be safeguarded by the CONTRACTOR and shall not be disclosed to any 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 92F, HRS. 25. Publicity. The CONTRACTOR shall not refer to the STATE, or any office, agency, or officer thereof, or any state employee, including the HOPA, the CPO, the Agency procurement officer, or to the services or goods, or both, provided under this Contract, in any of the CONTRACTOR'S brochures, advertisements, or other publicity of the CONTRACTOR. All media contacts with the CONTRACTOR about the subject matter of this Contract shall be referred to the Agency procurement officer. 26. Ownership Rights and Copyright. 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 Contract, 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 Contract. The STATE, in its sole discretion, shall have the exclusive right to copyright any product, concept, or material developed, prepared, assembled, or conceived by the CONTRACTOR pursuant to this Contract. 27. Liens and Warranties. Goods provided under this Contract shall be provided free of all liens and provided together with all applicable warranties, or with the warranties described in the Contract documents, whichever are greater. ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 12 28. Audit of Books and Records of the CONTRACTOR. The STATE may, at reasonable times and places, audit the books and records of the CONTRACTOR, prospective contractor, subcontractor, or prospective subcontractor which are related to: a. The cost or pricing data, and b. A state contract, including subcontracts, other than a firm fixed -price contract. 29. Cost or Pricing Data. Cost or pricing data must be submitted to the Agency procurement officer and timely certified as accurate for contracts over $100,000 unless the contract is for a multiple -term or as otherwise specified by the Agency procurement officer. Unless otherwise required by the Agency procurement officer, cost or pricing data submission is not required for contracts awarded pursuant to competitive sealed bid procedures. If certified cost or pricing data are subsequently found to have been inaccurate, incomplete, or noncurrent as of the date stated in the certificate, the STATE is entitled to an adjustment of the contract price, including profit or fee, to exclude any significant sum by which the price, including profit or fee, was increased because of the defective data. It is presumed that overstated cost or pricing data increased the contract price in the amount of the defect plus related overhead and profit or 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 Pricing Data. When cost or pricing principles are applicable, the STATE may require an audit of cost or pricing data. 31. Records Retention. (1) Upon any termination of this Contract or as otherwise required by applicable law, CONTRACTOR shall, pursuant to chapter 487R, HRS, destroy all copies (paper or electronic form) of personal information received from the STATE. (2) The CONTRACTOR and any subcontractors shall maintain the files, books, and records that relate to the Contract, including any personal information created or received by the CONTRACTOR on behalf of the STATE, and any cost or pricing data, for at least three (3) years after the date of final payment under the Contract. The personal information shall continue to be confidential and shall only be disclosed as permitted or required by law. After the three (3) year, or longer retention period as required by law has ended, the files, books, and records that contain personal information shall be destroyed pursuant to chapter 487R, HRS or returned to the STATE at the request of the STATE. 32. Antitrust Claims. The STATE and the CONTRACTOR recognize that in actual economic practice, overcharges resulting from antitrust violations are in fact usually borne by the purchaser. Therefore, the CONTRACTOR hereby assigns to STATE any and all claims for overcharges as to goods and materials purchased in connection with this Contract, except as to overcharges which result from violations commencing after the price is established under this Contract and which are not passed on to the STATE under an escalation clause. 33. Patented Articles. The CONTRACTOR shall defend, indemnify, and hold harmless the STATE, and its officers, employees, and agents from and against all liability, loss, damage, cost, and expense, including all attorneys fees, and all claims, suits, and demands arising out of or resulting from any claims, demands, or actions by the patent holder for infringement or other improper or unauthorized use of any patented article, patented process, or patented appliance in connection with this Contract. The CONTRACTOR shall be solely responsible for correcting or curing to the satisfaction of the STATE any such infringement or improper or unauthorized use, including, without limitation: (a) furnishing at no cost to the STATE a substitute article, process, or appliance acceptable to the STATE, (b) paying royalties or other required payments 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 may be necessary to correct or cure any such infringement or improper or unauthorized use. ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 13 34. Governing Law. The validity of this Contract and any of its terms or provisions, as well as the rights and duties of the parties to this Contract, shall be governed by the laws of the State of Hawaii. Any action at law or in equity to enforce or interpret the provisions of this Contract shall be brought in a state court of competent jurisdiction in Honolulu, Hawaii. 35. Compliance with Laws. The CONTRACTOR shall comply with all federal, state, 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 Contract. 36. Conflict Between General Conditions and Procurement Rules. In the event of a conflict between the General Conditions and the procurement rules, the procurement rules in effect on the date this Contract became effective shall control and are hereby incorporated by reference. 37. Entire Contract. This Contract sets forth all of the agreements, conditions, understandings, promises, warranties, and representations between the STATE and the CONTRACTOR relative to this Contract. This Contract supersedes all prior agreements, conditions, understandings, promises, warranties, and representations, which shall have no further force or effect. There are no agreements, conditions, understandings, promises, warranties, or representations, oral or written, express or implied, between the STATE and the CONTRACTOR other than as set forth or as referred to herein. 38. Severability. In the event that any provision of this Contract 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 Contract. 39. Waiver. The failure of the STATE to insist upon the strict compliance with any term, provision, or condition of this Contract 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 Contract. 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 Contract shall not constitute a waiver or relinquishment of the STATE'S rights or the CONTRACTOR'S obligations under the procurement rules or statutes. 40. Pollution Control. If during the performance of this Contract, the CONTRACTOR encounters a "release" or a "threatened release" of a reportable quantity of a "hazardous substance," "pollutant," or "contaminant" as those terms are defined in section 128D -1, HRS, the CONTRACTOR shall immediately notify the STATE and all other appropriate state, county, or federal agencies as required by law. The Contractor shall take all necessary actions, including stopping work, to avoid causing, contributing to, or making worse a release of a hazardous substance, pollutant, or contaminant, and shall promptly obey any orders the Environmental Protection Agency or the state Department of Health issues in response to the release. In the event there is an ensuing cease -work period, and the STATE determines that this Contract requires an adjustment of the time for performance, the Contract shall be modified in writing accordingly. 41. Campaign Contributions. The CONTRACTOR is hereby notified of the applicability of 11- 205.5, HRS, which states that campaign contributions are prohibited from specified state or county government contractors during the terms of their contracts if the contractors are paid with funds appropriated by a legislative body. 42. Confidentiality of Personal Information. a. Definitions. "Personal information" means an individual's first name or first initial and last name in combination with any one or more of the following data elements, when either name or data elements are not encrypted: (1) Social security number; (2) Driver's license number or Hawaii identification card number; or ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 14 (3) Account number, credit or debit card number, access code, or password that would permit access to an individual's financial information. Personal information does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records. "Technological safeguards" means the technology and the policy and procedures for use of the technology to protect and control access to personal information. b. Confidentiality of Material. (1) All material given to or made available to the CONTRACTOR by the STATE by virtue of this Contract which is identified as personal information, shall be safeguarded by the CONTRACTOR and shall not be disclosed without the prior written approval of the STATE. CONTRACTOR agrees not to retain, use, or disclose personal information for any purpose other than as permitted or required by this Contract. CONTRACTOR agrees to implement appropriate "technological safeguards" that are acceptable to the STATE to reduce the risk of unauthorized access to personal information. CONTRACTOR shall report to the STATE in a prompt and complete manner any security breaches involving personal information. CONTRACTOR agrees to mitigate, to the extent practicable, any harmful effect that is known to CONTRACTOR because of a use or disclosure of personal information by CONTRACTOR in violation of the requirements of this paragraph. (6) CONTRACTOR shall complete and retain a log of all disclosures made of personal information received from the STATE, or personal information created or received by CONTRACTOR on behalf of the STATE. c. Security Awareness Training and Confidentiality Agreements. (1) CONTRACTOR certifies that all of its employees who will have access to the personal information have completed training on security awareness topics relating to protecting personal information. (2) CONTRACTOR certifies that confidentiality agreements have been signed by all of its employees who will have access to the personal information acknowledging that: (A) The personal information collected, used, or maintained by the CONTRACTOR will be treated as confidential; (B) Access to the personal information will be allowed only as necessary to perform the Contract; and (C) Use of the personal information will be restricted to uses consistent with the services subject to this Contract. d. Termination for Cause. In addition to any other remedies provided for by this Contract, if the STATE learns of a material breach by CONTRACTOR of this paragraph by CONTRACTOR, the STATE may at its sole discretion: ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15/2009 15 (1) Provide an opportunity for the CONTRACTOR to cure the breach or end the violation; or (2) Immediately terminate this Contract. In either instance, the CONTRACTOR and the STATE shall follow chapter 487N, HRS, with respect to notification of a security breach of personal information. e. Records Retention. (1) Upon any termination of this Contract or as otherwise required by applicable law, CONTRACTOR shall, pursuant to chapter 487R, HRS, destroy all copies (paper or electronic form) of personal information received from the STATE. (2) The CONTRACTOR and any subcontractors shall maintain the files, books, and records that relate to the Contract, including any personal information created or received by the CONTRACTOR on behalf of the STATE, and any cost or pricing data, for at least three (3) years after the date of final payment under the Contract. The personal information shall continue to be confidential and shall only be disclosed as permitted or required by law. After the three (3) year, or longer retention period as required by law has ended, the files, books, and records that contain personal information shall be destroyed pursuant to chapter 487R, HRS or returned to the STATE at the request of the STATE. ADM. SERV. OFFICE LOG NO. 12 -044 AG -008 Rev. 4/15 /2009 16 BUDGET COUNTYOF HAWAII — DEPARTMENT OF FINANCE CONNECTION OF ON -SITE DISPOSAL SYSTEMS (OSDS) WITHIN THE HAINA WATER SYSTEM'S SOURCE WATER PROTECTION CAPTURE ZONE TO THE HONOKAA SEWER PROJECT (Project Period: The STATE's Notice to Proceed - September 30, 2013) Funding Agency: Project Agency: Hawaii Department of Health County of Hawaii Department of Finance, Treasury Division Funding is provided to the County of Hawaii's Department of Finance — Treasury Division to be used in awarding grants to lot owners with On -site Disposal System (OSDS) located within the Haina Water System's Source Water Protection Capture Zones to connect to the Honokaa Sewer Project. Grants to lot owners will be awarded by the County of Hawaii's Department of Finance — Treasury Division as specified in the "Scope of Services ". Grants to a single lot owner shall not exceed $25,000.00. TOTAL: S250,000.00 Source of funds: S 12 344 H 0000 010207 00 436 840 (SRF 15% Wellhead Protection) S 12 344 H 0000 011207 00 436 840 (SRF 15% Wellhead Protection) Exhibit "A" ADM. SERV. OFFICE LOG NO. 12 -044 -1- $143,930.00 $106,070.00