HomeMy WebLinkAboutCOM 0591.000 1998-2000 OJN<V OF Mq~
,1
Stephen K. Yamashiro \\~hlus' _ _ Harry A. Takahashi
Mayor j• ~ Director
r~rE OFYN~~' F.7~ 1J~i LU ~ 1 luty
~ountp of ~aiua[t ~ ~
,,,'JI
DEPARTMENT OF FINANCE
25 Aupuni Street, Aaom 116 Hilo, Hawaii 96720-0252
(808)961-8234 Fax (808)961-8248
December 14, 1999
Honorable James Arakaki, Chairperson and
Members of the County Council
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
Re: Operating Budget
Enclosed is a bill for an ordinance increasing by $8,365, the DARE/DOE grant
awarded to the Hawai i County Police Department. The present appropriation is
$19,000.
Also enclosed is a resolution authorizing the Mayor to enter into an agreement
for the DARE/DOE grant.
If there are any questions, please do not hesitate to call the Hawaii County
Police Department.
~
Harry A. akahashi
Director f Finance
PPRO ED:
Stephen K. Yamashiro
Mayor
Enc.
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File xo. F N D OPQ
Ref. Toy ~ ~
Ref• Da*a ~ 2 0 1~
Form B-52
7/18/91
DEPARTMENT OF FINANCE
REQUEST FOR COUNCIL ACTION
DEPARTMENT: POLICE DATE: 12/6/99
STAFF CONTACT: GARY MAESATO. BUSINESS MANAGER PHONE: 961-2274
A. REQUEST:
To appropriate an additional $8,365.00 under account number
010-201-5219.49-115.
To enter into a contract with the State Department of Education
to provide funding under the DARE/DOE Grant.
B. BACKGROUND & JUSTIFICATION (USE ADDITIONAL SHEETS AS NEEDEDI:
The State of Hawaii Department of Education is providing funding
to conduct Parent Program and other DARE projects and provide
instructional materials.
The Hawaii County Police Department is to provide sufficient
manpower to teach, implement and provide necessary support for
the DARE program in all public and participating private schools
within the County of Hawaii.
SIGNED: DATE:
WAYN G. CARVALHO
POLICE CHIEF
Purchase Order No.
Contract Number
MEMORANDUM OF AGREEMENT
This AGREEMENT made this 2nd day of xovember , 1999 , by and between the DEPARTMENT
OF EDUCATION, STATE OF HAWAII, whose business and mailing address is 1390 Miller Street, Honolulu,
Hawaii 96813, hereinafter sometimes referred to as "Department", and county of Hawaii Police Depa~tmen
whose business (or residence) and mailing address is 349 Rapiolani Street
Number and Street
Hilo, Hawaii 96720-3998
Ciry and State Lp Code
hereinafter sometimes referred to as "Contractor",
WITNESSETH:
For and in consideration of the covenants hereinafter set forth, the parties hereto mutually agree as follows:
1. SCOPE OF SERVICES. The Contractor agrees to perform or provide the following described work or work
products and to supply at the Contractor's expense all labor, materials, equipment, supplies and other
incidentals in connection therewith (Give detailed explanation of work. Attach exhibit, it necessary):
The County of Hawaii Police Department will provide sufficient manpower
to teach, implement and provide necessary support for the Drug Abuse
Resistance Education (DARE) Program in all public and participating
private schools within the County of Hawaii.
2. TIME OF PERFORMANCE. The term of this Agreement shall be from and to the dates specified below,
or, as applicable. The Contractor agrees to complete said work on or before the following date (Attach
exhibit, if necessary):
Duration of services: From date of approval to September 30, 2000
(Con,`nc _dl
Page 2
3. SPECIAL PROVISIONS. Special Provisions (Attach exhibit, if necessary):
For agreements S10,000 or more the following additional General Condition applies: Any agreement
arising out of this offer is subject to the approval of the Department of the Attorney General as to form, and
to all further approvals, including the approval of the Governor, required by statute, regulation, rule, order,
or other directive.
The following paragraphs of the General Conditions are not applicable and have no operative effect
between the parties: 2b, 2e, 7, 8, 9, 13, 14c, 17c and 17d.
4. CONTRACT FORMS AND ATTACHMENTS. The complete contract includes this Agreement Face Sheet,
Standards of Conduct Declaration, the General Conditions, and Exhibits ,all of which are
attached hereto and made a part hereof by reference.
5. COMPENSATION AND PAYMENT SCHEDULE. The Department agrees to pay, and the Contractor agrees
to accept, in full and complete payment for all work and work products and all labor, equipment, supplies
and other costs and expenses incurred by the Contractor in performance of the obligations hereunder the
total and complete sum of
DOLLARS (S )which includes the travel and per diem expenses set forth below, i(applicable.
a. Professional Fee 5 Per .............................5
(HOUr/Day/EIC.)
b. Travel and Per Diem Expenses as follows:
Air transportation S
Ground transportation 5
Per Diem (Daily rate: ) S
TOTAL TRAVEL AND PER DIEM EXPENSES .......................................................5
c. Other Expenses as follows:
S
Instructional Aids fi Supplies 51,000.00
DARE Officers Trainings/Seminars 510,975.00
Other Service Projects 515,390.00
TOTAL OTHER EXPENSES ...................................................................................5
TOTAL COMPENSATION .......................................................................................S 27,365.00
d. Said sum shall be payable in one lump sum upon completion of the work or services, or as work
progresses, as follows (Attach exhibit, if necessary):
Payment Schedule: Payment upon receipt of invoices.
(Co~tiru=d)
?age 3
6. REQUESTING OFFICE. Name the school/district, complex district, or section/branch/oitice.
Safe and Drug-Free Schools and Communities Program/Office of Accountability and
. School Instructional Support
7. CONTRACTOR. If more than one signature is required, use the space provided.
Name 8 Official Title (typed) Signature Date
Name & Official Title (typed) Signature Date
B. APPROVED AS TO FORM
By
Deputy Attorney General (Signature) Date
9. DEPARTMENT OF EDUCATION
By
Superintendent or Designee (Signature) Date
GENERAL CONDITIONS
Table of Contents
oe
1. ~gordination of Services by the STATE i
2. Relationship of Parties• Independent ontractor S a ~
and Responsibilities Tncludin~ Tax Responsibilities 1
3. Personnel Requjrements 2
4. Nondiscrimination 2
6. conflicts of Interest 2
6. Subcontracts and AsstEnments 3
7. Indemnification and Defense 4
8. ~ st of .ityation 4
9. T iquidated Damages 4
10. State's RLht of Offset 4
11. pjsputes 5
12. Suspension of Agreement 5
13. Termination for Default 6
14. ~rrmination for Convenience 8
15. Claims Based on th~A~en~v Procurement
O icer's Actions or Omissions 10
16. Costs and Expenses 11
17. Payment Procedures Final Pavment~ Tax Clearance 12
18. Federal Funds 12
Form AG2-GC(U9~
19. iyfodifications of Aereement 12
20. hanee Order 14
21. Price A~iustment 15
22. Varianon in Ouantirv for Definite Ouantirv '
A;reements 16
23. ha yes in Cost-Reimbursement Amore°ment 16
24. Confidentiality of Material 17
2~. Pub(icitv 17
26. wne-ship~ti~hts and Coovrisht 17
27. Liens and Warranties 17
2S. Audit of Books and Records of the .ONT A TOR 18
29. Cost or Pricing Data 18
30. Audit of Cost or Pricin~ata 18
31. Records Retention 18
32. Antitrust Claims 18
33. Mini i ins .on~stion 18
34. Governing Law .
18
3~. C ~mAliance with Taws 19
36. Conflict between General Conditions and
Procurement Rules 19
37. Entire ~reement 19
3S. Severabilitv 19
39. Waiver 19
1 Form AG?•GCQl96)
GENERAL CONDITIONS
1. Coordination of Services by the S'I'AT~ Thz "head of the purchasin, agency," (which
term includes the dzsignee of the head of the purchasing agency), shall coordinate the
services to be provided by thz CONTRACTOR in order to complete the performance
required in thz Agreement. The CONTRACTOR shall maintain communications with the
head of the purchasing agency at al] stages of the CONTRACTOR'S work, and submit to
the head of the purchasing agency for resolution any questions which may arise as to the
performance of this Agreement. "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 services.
2. Relatiotuhin of Parties• Independent Contractor Stams and R°s~ntihilirirc Tnr~nri'~oS~
ResRonsibilities
a. In the performance of services required under this A~t-ezment, 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
Agreement; 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 Agreement. Unless
otherwise provided by special condi[ion, 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 contratt
with the STATE.
b. The CONTRACTOR and the CON"I-RACTOR'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 employs and agents shall not be
entitled to claim or receive from the State any vacation, sick leave, retirement,
workers' compensation, unemployment insurance, or other benefiu provided to
state employees.
c. The CONTRACTOR shall be responsible for the accuracy, completeness, and
adequacy of the CONTRACTOR'S performance under this Agreement.
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.
~ Forri AG2-GC(I/96)
d. The CONTRACTOR shall be responsible for payment of al] applicablz federal,
statz, and county taxes and fens which may become due and awing by the
CONTRACTOR by reason of this Agreement, including but not limited to (i)
income taxes, (ii) employmznt related fzes, assessments, and taxes, and (iii)
general excise taxes. The CONTRACTOR also is responsible for obtaining all
licenses, permits, and cenificates that may be required in ordzr to perform this
Agreement.
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, showing that
all delinquent taxes, if any, levied or accrued under state law against the
CONTRACTOR have been paid and submit the same to the STATE prior to
commencing any performance under this Agreement. The CONTRACTOR shall
also be solely responsible for mzeting all requirements necessary to obtain the tax
clearance cenificate required for final payment under sections 103-~3 and 237- :5,
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 liabili[ies associated with securing the insurance coverage.
3. Pzrmnnel Requirements
a. The CONTRACTOR shall secure, at the CONTRACTOR'S own expense, all
personnel required to perform this Agreement.
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 Agreement, 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 pzrson performing work under this Agreement, 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.
Conflicts of Interest The CONTRACTOR represents that neither the CONTRACTOR,
nor any employee or agent of the CONTRACTOR, presently has any interest, and
~ Form AG?-GC(I/96)
promises that no such interest, direct or indirect, shall be acquired, that would or might
conflict in any manner or degrez with the CONTRACTOR'S performance under this
Agreement.
6. Subcontracts and Assi~ments Thz CONTRACTOR shall not assign or subcontract any
of the CONTRACTOR'S duties, obligations, or interests under this Agreement and no
such assignment or subcontract shall be effective unless (i) the CONTRACTOR obtains
the prior written coruent 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, showing that all delinquent razes, if any, levied or accrued
under state law against the CONTRACTOR'S assignee or subcontractor have been paid.
Additionally, no assignment by the CONTRACTOR of the CONTRACTOR'S right to
comperLSation under this Agreement shall be effective unless and until the assignment is
approved by thz Comptroller of the Statz of Hawaii, as provided in section 40-58, HRS.
a. Re~o~nition of a successor in interest When in the best interest of the State, a
successor in interest may be rzcognized in an assignment agreement in which the
STATE, thz CONTRACTOR and the assignee or transferee (hereinafer referred
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. S'han~e of name When the CONTRACTOR asks to change the name in which it
holds this Agreement with the STATE, the procurement offtcer of the purchasing
agency (hereinafter referred to as the "Agency procurement officer") shall, upon
receipt of a document acceptable or satisfactory to the Agency procurement officer
indicating such change of name (for example, an amendment to the
CONTRACTOR'S anicles 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
specifically indicate that no other terms and conditions of this Agreement are
thereby changed.
c. }~epons All assignment agreements and amendmenu to this Agreement effecting
changes of the CONTRACTOR'S name or novations hereunder shall be reported
3 Form AG2-GC(I/96)
to the CPO within thirty days of the date that the assignment agreement or
amendment becomes effective.
d. Actions affecting more han one u~~jn;~Qg~cv Notwithstanding the
provisions of subparagraphs 6a through 6c herein, when the CONTRACTOR holds
agreements with more than one purchasing agency of the State, the assignment
agreemenu 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 al]
attorneys' fees, and all claims, suiu, and demands therefor, arising out of or resulting
from the acu or omissions of the CONTRACTOR or the CONTRACTOR'S employees,
officers, agents, or subcontractors under this Agreement. The provisions of this paragraph
shall remain in full force and effect notwithstanding the expiration or early termination of
this Agreement.
8. Cost of Litioa ion )•n case the STATE shall; without any fault on its part, be made a party
to any }itigation commenced by or against the CONTRACTOR in connection with this
Agreement, the CONTRACTOR shall pay all costs and expenses incurred by or imposed
on the STATE, including attorneys' fees.
9. tai uidated Damaees When the CONTRACTOR is given notice of delay or
nonperformance as specified in paragraph 13 (I~ermination for Default) and fails to cure
in the tune specified, it is agreed the CONTRACTOR shall pay to the STATE the amount,
if any, set forth in this Agreement 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 aot 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 agaitut the CONTRACTOR. The CONTRACTOR shall remain liable for
damages caused other than by delay.
10. State's R~~ t i?f 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 the CONTRACTOR under this Agreement or any other agreements 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 Slate of
Hawaii shall not include debts or obligations which have been liquidated, agreed to by the
4 Form AG2-GC(l/96)
CONTRACTOR, and are covered by an instalhnen[ payment or other settlement plan
approved by the State of Hawaii, provided, however, that the CONTRACTOR shall be
entitled to such exclusion orily to the extent that the CONTRACTOR is Curren[ with, and
no[ 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 126, Procurement Rules; as the same may be amended from time to time.
12. ucpension 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.
a. Order to stop Rerformance 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 Agreement. This order shall be for a specified 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. Upon receipt of such an
order, the CONTRACTOR shall forthwith comply with its terms and suspend all
performance under this Agreement at the time stated, provided, however, the
CONTRACTOR shall take all reasonable steps to m;r,;m;~r 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 Agreement.
b. ~arcellation 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 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 required for,
or in the CONTRACTOR'S cost properly allocable to, the performance of
any part of this Agreement; and
5 Form AG2-GC(1/96)
(2) The CONTRACTOR asserts a claim for such an adjustment within thirty
(30) days afrer 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 Agreement.
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 cosu resulting from the stop performance order shall
be allowable by adjustment or otherwise.
d. Adjustment pf price. Any adjustment in conaact price made pursuant to this
paragraph shall be determined in accordance with the price adjustment provision
of this Agreement.
li. Te
ir~ation for Default.
a. Default. Tf the CONTRACTOR refuses or fails to perform any of the provisions
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 provisions, or commits any other substantial breach of this
Agreement, 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 Agr~ment or such
part of the Agreement 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
ofttcer 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. ~NTRAt'TOR'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. Compensation. Payment for completed goods and services delivered and accepred
by the STATE shall be at the price set forth in the Agreement. Payment for the
protection and preservation of property shall be in an amount agreed upon by the
CONTRACTOR and the Agency procurement offuer. If the parries fail to agree,
the Agency procurement officer shall set an amount subject to the
b Form AG2-GC(V96)
CONTRACTOR'S rights under chapter 126, Procurement Rules. 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 ouutanding 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. F_xcuse for nonperformance 9tdelaved performance 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 hereunder which endangers such
performance, if the CONTRACTOR has notified the Agency procurement officer
within fifreen (15) days afrer 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 A,eement. Upon
reques[ 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 Agreement, the delivery schedule shall be revised
accordingly, subject to the righu of the STATE under this Agreement. As used
in this paragraph, the term "subcontractor" means subcontractor at any tier.
e. Erroneous termination for default If, afrer 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 de]ayed performance," the rights and ob]igations of the parties
shall be the same as if the notice of termination had been issued pursuant to such
provision.
f. Additional rights and remedigt_ The rights and remedies provided in this
paragraph are in addition to any other rights and remedies provided by law or
under this Agreement.
~ Form AG2-GC(U96)
14. Termination for Convenience
a. Termination. The Agency procurement officer may, when the interests of the
STATE so require, terminate this Agreement 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
Agreement terminated and when termination becomes effective.
b. ~ONTRA_CTOR'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 ouutanding 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. The Agency procurement
officer may direct the CONTRACTOR to assign the CONTRACTOR'S right, title,
and interest under terminated orders or subcontracu 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.
c. R~t~t to ,gods and work Rroduct The Agency procurement officer may require
the CONTRACTOR to transfer title and deliver to the STATE in the martner 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, plaru, drawings, information, and contract rights (hereinafter
called "manufacruring material") as the CONTRACTOR has specifically
produced or specially acquired for nSe performance 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
the STATE has an interest. If the Agency procurement officer does not exercise
this right, the CONTRACTOR shall use best efforu to sell such goods and
manufacruring materia]s. Use of this paragraph in no way implies that the STATE
has breached the Agreement by exercise of the termination for convenience
provision.
d. Compensation
8 Form AG2-GC(V96)
(1) The CONTRACTOR shal] 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 subchapter 1~,
chapter 3-122, Procurement Rules, 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 subpazagraph
14d(3) below.
(2) The Agency procurement offuer and the CONTRACTOR may agree to a
settlement provided the CONTRACTOR has filed a termination claim
suppor[ed by cost or pricing data submitted as required and that the
settlement does not exceed the total Agreement price plus settlement cosu
reduced by payments previously made by the STATE, the proceeds of any
safes 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 following amounts,
provided payments agreed to under subpazagraph 14d(2) shall not duplicate
payments under this subparagraph for the following:
(A) Contract prices for goods or services accepted under the
Agreement;
(B) Costs incurred in prepazing 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 al]owed or included and the amount of
comperuation shall be reduced to reflect the anticipated ra[e of loss;
(C) Cosu of seNing 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
9 Form AG?-0C(1 /95)
respect to the terminated portion of the Agreement and for the
termination of subcontracts thereunder, together with reasonable
storage, transponation, and other costs incurred in connection with
the protection or disposition of property allocable to the terminated
portion of this Agreement. The total sum to be paid the
CONTRACTOR under this subparagraph shall not exceed the total
Agreement 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 Agreement 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.
l~. Claims Based on the Aeencv Procurement Officer's Actinr,c or l7micc;n <
a. Changes in scone If any action or omission on the part of the Agency
procurement offtcer (which term includes the designee of such officer for purposes
of this paragraph 1~) requiring performance changes within the scope of the
Agreement constitutes the basis for a claim by the CONTRACTOR for additional
compensation, damages, or an extersion of time for completion, the
CONTRACTOR shall continue with performance of the Agreement incompliance
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 afrer 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.
10 ~ Form AG?-GC(!/96)
(2) ~14tice content This notice shall state that the CONTRACTOR regards the
act or omission as a reason which may entitle the CONTRACTOR to
additional comperLSation, damages, or an extension of time. The Agency
procurement officer, upon receipt of such nonce, may rescind such ac[ion,
remedy such omission, or take such other steps as may be deemed
advisable in the discretion of the Agency procurement officer;
(3) Basis must be explained The notice required by subparagraph 15a(1)
describes as clearly as practicable at the time the reasotLS why the
CONTRACTOR believes that additional compensation, damages, or an
extension of time may be remedies to which the CONTRACTOR is
entitled; and
(4) Claim must bz justified Thz CONTRACTOR must maintain and, upon
request, make availablz to the Agency procuremen[ officer within a
reasonable time, detailed records to the extent practicable, and other
documzntation 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 ordzrs which are clearly not within the scope of the Agreement.
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
Agreemen[.
16. Costs and Ex ense 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
fart, whichever is less.
b. Reimbursement for ground transportation costs shall not exceed the actual cost of
renting an intermedia[e-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 applicable
daily authorizzd rates for in[erisland or out-of-state travel tha[ are set forth in the
current Governor's Executive Order au[horizing adjustments in salaries and
I1 Form AG?-GC(I/96)
benefits for state offtcers and employees in the executive branch who aze excluded
from collective bargaining coveragz.
17. Payment Procedures• Final Pavment• Tax Clearance
a. Orioinal invoices rea it d All payments under this Agreement shall be madz orily
upon submission by the CONTRACTOR of original invoices specifying the amount
due and certifying that services requested under the Agreement have been
performed by the CONTRACTOR according to the Agreement.
b. Subject to available funds Such paymenu are subject to availabi]iry 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. Prom~pavment.
(1) Any money, other than retainage, paid to the CONTRACTOR shall
be dispersed to subcontractors within ten days afrer receipt of the
money in accordance with the terms of the subconract; 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 days
after receipt of the money; provided that there aze no bona fide
disputes over the subcontractor's performance under the
subcontract.
d. Final ~avment. Final payment under this Agreement shall be subject to sections
103-~3 and 237-4~, HRS, 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.
1S. Fedzral Funds If this Agreement is payable in whole or in part from federal funds,
CONTRACTOR agrees that, as to the portion of the comperuation under this Agreement
to be payable from federal funds, the CONTRACTOR shall be paid only from such funds
received from the federal government, and shall not bz paid from any other funds.
19. Modifications of Agreement
12 Form AG?-GC(l/9~
a. jn
wr~tino. Any modification, alteration, amendment, change, or extersion of any
term, provision, or condition of this Agreement permitted by this Agreement shall
be made by written amendment to this Agreement, signed by the CONTRACTOR
and the STATE, provided that change orders shall be made in accordance with
pazagraph 20 herein.
b. No oral modification. No oral modification, alteration, amendment, change, or
extension of any term, provision or condition of this Agreement shall be permitted.
c. Aiencv procurement officer By a written order, at any time, and withou[ notice
to any surety, the Agency procurement officer, subject to mutual agreement of the
parties to this Agreement and all appropriate adjustments, may male modifications
within the general scope of this Agreement to include any one or more of the
following:
(A) Drawings, designs, or specifications;
(B) Method or place of delivery;
(C) Description of services to be performed;
(D) Time of performance (i.e., hours of the day, days of the week, etc.);
(E) Place of performance of the services; or
(F) Other provisions of the Agreement accomplished by mutual action of the
parties to the Agreement.
d. Adjustments of Brice 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 Agreement, an adjustment shall be made and this
Agreement modified in writing accordingly. Any adjusmtent in Agreement price
made pursuant to this clause shall be determined, where applicable, in accordance
with the price adjustment clause of this Agreement or as negotiated.
e. Claim barred after final pavment. No claim by the CONTRACTOR for an
adjustment hereunder shall be allowed if written agreement of modification is no[
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 clam
under this Agreement or for a breach of contract.
l3 Form AG2-GC(l/9o)
g. ~'PO a r~ oval If a modification, alteration, amendment, change or extension of
any term, provision or condition of this Agreement increases the amount payable
to the CONTRACTOR by at ]east 525,000.00 or ten per cent (10~) of the initial
Agreement price, whichever increase is higher, the prior approval of the CPO is
required.
h. Tax clearance. The STATE may, at iu 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 Hawaii,
showing that all delinquent taxes, if any, levied or accrued under state law against
the CONTRACTOR have been paid.
i. Sole source agreements Amendments to sole source agreements 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 agreement for services should not be
submitted as an amendment.
20. Change Order The Agency procuremen[ officer may, by a written order signed only by
the STATE, a[ any time, and without notice to any surety, and subject to all appropriate
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 ~rformance 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 Agreement, whether or no[ changed by the order,
an adjustment shall be made and the Agreement modified in writing accordingly.
Any adjustment in the Agreement price made pursuant to this provision shall be
determined in accordance with the price adjustment provision of this Agreement.
Failure of the parties to agree to an adjustment shall not excuse the
CONTRACTOR from proceeding with the Agreement 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
proceeding with the work, the CONTRACTOR shall not be deemed to have
14 Fom AG2-GC(ll96)
prejudiced any claim for additional compensation, or an}- extension of time for
completion.
b. SPO avoroval. If a contract change order increases the amount payable to the
CONTRACTOR by at least 525,000.00 or ten per cent (10 0) of thz initial
Agreement price, whichever increase is higher, the prior approval of the CPO is
required.
c. Timr~eriod for claim. Within thirty (30) 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 intent to
assert a claim for an adjustment. Later notification shall not bar the
CONTRACTOR's claim unless the STATE is prejudiced by the delay in
notification.
d. ~ aim barred after final payment. No claim by the CONTRACTOR for an
adjustment hereunder shall be a]lowed if notice is not given prior to final payment
under this Agreement.
e. Qlher 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 Agreement or for breach of contract.
21. Price Adiustment
a. Price adiustment Any adjustment in the Agreement price pursuant to a provision
in this Agreement shall be made in one or more of [he following ways:
(1) By agreement on a fixed price adjustment before commencement of the
pertinent perfot7nance or as soon thereafrer as practicable;
(2) By unit prices specified in the Agreement or subsequently agreed upon;
(3) By the costs attributable to the even[ or situation covered by the provision,
plus appropriate profit or fee, all as specified in the Agreement or
subsequently agreed upon;
(4) In such ocher 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
15 Form AG?-GC(I/96)
with gznerally accepted accounting principles and applicable sections of
chapters 3-123 and 3-126 of the Procurement Rulzs.
b. Submission of cost or~ricing data The CONTRACTOR shall provide cost or
pricing data for any price adjustments subject to the provisions of subchapter 15,
chapter 3-122 of the Procurement Rules.
22. Variation in Ouantirv for Definite Ouantirv~reemenra 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 Agreement, may be increased by a maximum of ten per cent
(1070; provided the unit prices will remain the same except for any price adjustments
otherwise applicable; and the CPO 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.
23. Changes in Cost-Reimbursement Agreement If this Agreement is acost-reimbursement
Agreement, 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 scopz of the
Agreement in any one or more of the following:
(1) Description of performance (Attachment 1);
(2) Timz of performance (i.e., hours of the day, days of the wzek, etc.);
(3) Place of performance of services;
(4) Drawings, designs, or specificatioru when the supplies to be furnished are
to be specially manufactured for the STATE in accordance with the
drawings, designs, or specifications;
(5) Merhod 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 pan of the performance under this Agreement,
whether or not chanted 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 cost, delivery or completion schedule, or
both; (2) amount of any fixed fee; and (3) other affected terms and shall modify the
Agreement accordingly.
16 Form AG2-GC(U96)
c. The CONTRACTOR must assert the CONTRACTOR'S righu to an adjustment
under this provision within thirty (30) days from the day of receipt of the written
order. However, if the Agency procurement offtcer decides that the face justify
it, the Agency procurement officer may receive and act upon a proposal submitted
before fmal payment under the Agreement.
- d. Failure to agree to any adjustment shall be a dispute under paragraph 11 of this
Agreement. However, nothing in this provision shall excuse the CONTRACTOR
from proceeding with the Agreement as changed.
e. Notwithstanding the terms and conditions of subparagraphs 23a and 23b, the
estimated cost of this Agreement and, if this Agreement is incrementally funded,
the funds allotted for the performance of this Agreement, shall not be increased or
considered to be increased except by specific written modification of the
Agreement indicating the new Agreement estimated cost and, if this Agreement is
incrementally funded, the new amount allotted to the Agreement.
24. Confidentiality of tifaterial
a. All material given to or made available to the CONTRACTOR by virtue of this
Agreement, 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 [o the Unitorm Informztion Practices Act, chapter 92F,
HRS.
2~. Publicity. The CONTRACTOR shall not refer to the STATE, or any office, agency, or
officer thereof, or any State employee, including the head of the purchasing agency, the
CPO, the DIRECTOR, the Agency procurement officer, or to the services or goods, or
both, provided under this Agreement, in any of the CONTRACTOR'S brochures,
advertisemenu, or other publicity of the CONTRACTOR. Alf media contacu with the
CONTRACTOR about the subject matter of this Agreement shall be referred to the
Agency procurement officer.
26. Ownershi~Vhts and CoDVrioht The STATE shall have complete ownership of all
material, both finished and unfinished, which is developed, prepared, assembled, or
conceived by the CONTRACTOR pursuan[ 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 iu 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 Agreement.
17 Form AG?-GC(I/9o7
?7, T ien5 and Warranties Goods provided under this Agreement shall be provided free of all
liens and provided together with all applicable warranties, or with the warranties described
in the Agreement documents, whichever are greater.
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 subcontracu, other than a fum fixed-price conQact.
~9, ~jcr nr Pricing Data. Cost or pricing data must be submitted to the Agency purchasing
officer and timely certified as accurate for contracu over 5100,000 uriless the contract is
for amultiple-tet7rt or as otherwise specified by the procurement officer. Unless otherwise
required by the Agency procurement officer, cost or pricing data submission is not
required for agreements awarded pursuant to competitive sealed bid procedures.
If certified cost or pricing data are subsequently found to have been inaccurate,
incomple[e, or noncurrent as of the date stated in the certificate, the STATE is entit]ed to
an adjustment of the contract price, including profit or fee, to exclude any significan[ 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.
3p, Audit of Cott or Pticin~ Data When cost or pricing principles are applicable, the STATE
may require an audit of cost or pricing data.
31. R~S~rdc
Retention The CONTRACTOR and any subcontractors shall maintain the books
and records that relate to the Agreement and any cost or pricing data for three (3) years
from the date of final payment under the Agreement.
32. Antitrust Clai_ms_ The STATE and the CONTRACTOR reco~rrize 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 Agreement,
except as to overcharges which result from vio]ations commencing after the price is
established under this Agreement and which are not passed on to the STATE under an
escalation clause.
18 Form AG2-GC(V96)
33. ~;n;m;vines Congestion. The CONTRACTOR shall undettatCe all necessary precautions
to m;n;m;~e any adverse impact the performance under this Agreement may have on ~affic
congestion.
3q, ~pvernino .aw. The validity of this Agreement and any of its terms or provisions, as
well as the rights and duties of the parties to this Agreement, 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 Agreement shall be brought in a state court of competent jurisdiction in
Honolulu, Hawaii.
3~. ('omoliance with Taws. 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 Agreement.
36. Conflict between General .onditions 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 Agreement became effective shall control and are hereby
incorporated by reference.
37, Fnrirr Agreement This Agreement sets forth all of the agreements, conditions,
understandings, promises, warranties, and representations between the STATE and the
CONTRACTOR relative to this Agreement. This Agreement 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.
33. Ceverabilirv. In the even[ that any provision of this Agreement is declared invalid or
unenforceable by a court, such invalidity or unenforceabiliry shall not affect the validity
or enforceability of the remaining terms of [his 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 obligatioru under the
Procurement Rules or statutes.
19 Form .AG2-GC(V9o~