HomeMy WebLinkAboutCOM 0082.012 2004-2006 ,~vw~
Harry Kim tY.• ~~`~~~~~''•.,y Lawrence K. Mahuna
Mayor Police Chief
Harry S. Kubojiri
• '•a•N~,~~ Depury Police Chief
County of Hawaii
February 4, 2005 POLICE DEPARTMENT
349 Kapiolani Sheet • Hilo, Hawaii 96720-3998
(808) 935-3311 • Fax (806) 961-8869 ,
TO GARY SAFARIK, COUNCIL CHAIR AND COUNCIL MEMBERS
VIA EANNA. O ONTROLLER
FROM L CE K. MAHUNA, POLICE CHIEF =
SUBJECT NOTIFICATION OF GRANT AWARD
Compliance with Ordinance No. 04-74Section 7(1)
Name of Grant Program: DARE/DOE Grant
Federal or State Grantor: State Department of Education
County Grantee DepartmenUAgency: County Police Department
Grant No.: CO-40106
Amount of Grant: $34,125.00
Amount of County Match: $0.00
County Revenue & Expenditures Acct 010.201.5219.49, 3304.84
Grant Period: February 2, 2005 -December 31, 2005
Purpose of Grant: To administer the Drug Abuse Resistance
Education (DARE) curriculum in
participating in private and public schools.
Is final report required by grantor? yes
Notification Attached: yes
Comm. No. O 2• ( Z
Ref. io: ~
" Hawaii Counry is an Equal Opportunity Provider and Employer" R~• UQtC _,J~1 L ~
! INOA LINGLE ,y'",~~@""'s~ PATRICIA HAMq MOTO
COVEFmCR J~;:'~ s\ a $UPERiN¢VD ENT
STATE OF HAWAI'1
DEPARTMENTOF EDUCATION r_,., Ij ~S
- P.O.BOX 2360 ~ -
' HONOLULU, HAWAII 96804
OFFICE OF BUSINESS SERVICES
December 10, 2004
MEMO TO: Hawaii County Police Department
349 Kapiolani Street
Hilo, Hawaii 96720 't
FROM: Christian Butt, Specialist r~Gtt•'A~G--~
Procurement & Contracts Branch
Department of Education
SUBJECT: Transmittal of Memorandum of Agreement
Reference: MOA D04-12
Attached is a Memorandum of Agreement for your review and disposition.
Please forward the completed documents to:
Christian Butt
Department of Education
Waipahu Givic Center
94-275 Mokuola Street, Room 200A
Waipahu, Hawaii 96797
If you have questions, please feel to contact me either via email or phone at 675-0730.
Attachment: fv~OA D04-012
AN AFF!H!.IATIVEACTION Afv'D EQUAL OPPORTUPIITY EC1PL'JYER
DEPARTMENT OF EDUCATION
PROCUREMENT AND CONTRACTS BRANCH
Contract No. CO-40106
MEMORANDUM OF AGREEMENT
Entered into under the authority of
SECTION 103D-102(b)(3), Hawaii Revised Statutes (HRS)
BASED UPON TRANSACTIONS BETWEEN GOVERNMENTAL BODY
PROJECT NO. MOA D04-12
WITH THE
HAWAII COUNTY POLICE DEPARTMENT
TO PROVIDE DRUG ABUSE RESISTANCE EDUCATION (DARE)
AT VARIOUS SCHOOLS
OF THE DEPARTMENT OF EDUCATION
Contract Number: CO-40106
Purchase Order Number:
STATE OF HAWAII
DEPARTMENT OF EDUCATION
MEMORANDUM OF AGREEMENT
This AGREEMENT made this day of , by and between the
DEPARTMENT OF EDUCATION, STATE OF HAWAII, whose business and mailing address is
1390 Miller Street, Honolulu, Hawaii, 96813, hereinafter referred to as "Department", and
Hawaii Countv Police Deoartment
whose business (or residence) and mailing address is: 349 Kaoiolani Street
Number and Street
Hilo, Hawaii 96720
City and State Zip Code
hereinafter 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 (Attach exhibit,
if necessary):
Please refer to Exhibit A, Scope of Services attached and incorporated into this agreement.
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):
Contract shall commence upon execution of the Agreement by the Superintendent of the Department,
and shall end on December 31, 2005.
This contract may be extended for five (5) additional twelve-month periods, upon mutual agreement in
writing and under the same terms and conditions of the original agreement or as negotiated between
the DEPARTMENT and the Contractor, contingent upon the need for continued services, and funding
availability beyond the current fiscal year.
Authorization: §3-128-6 HAR MOA Form 16 (Revised SI2004)
1
Contract Number: CO-40106
3. SPECIAL PROVISIONS. Special Provisions (Attach exhibit, if necessary):
For agreements $25,000 or more the following additional General Conditions 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.
Please refer to Exhibit D, Special Provisions attached and incorporated into this agreement.
4. CONTRACT FORMS AND ATTACHMENTS. The complete contract includes in this
Agreement:
X Face sheet,
Exemption from Civil Service,
Standards of Conduct Declaration,
X General Conditions,
X Exhibits A, B and D
all of which are attached hereto and made a part hereof by reference. In the event of a
conflict between the General Conditions and the Special Provisions, the Special Provisions
shall control.
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, supplies and other costs and expenses incurred by the Contractor in
performance of the obligations hereunder the total and complete sum of THIRTY FOUR
THOUSAND ONE HUNDRED TWENTY FIVE AND NO/100 DOLLARS ($34,125.00
Said sum shall be payable in one lump sum competition of the work or services, or as work
progresses, as follows (Attach exhibit, if necessary):
Please refer to Exhibit B, Compensation and Payment Schedule attached and incorporated into this
agreement.
6. REQUESTING OFFICE. Name the school/district, complex/district, or section/branch/office.
Kendyl Ko, Educational Specialist
Office of Curriculum, Instruction and Student Support, Instructional Services Branch (OCISS, ISB)
Safe and Drug-Free Schools and Communities Program
475 22nd Avenue, Building 302, Room 217, Honolulu, Hawaii 96816
Phone: 733-9141 Fax: 735-8227
Authorization: §3-128-6 HAR MOA Form 16 (Revised SI2004)
2
Contract Number: CO-40106
7. CONTRACTOR. If more than one signature i d the space provided.
Lr}W~t=~ K.M.M~1{tuJk, 'PDUGE GH1 I JAN 1 4 2005
Name and Offroial Title (Typed) Signature Date
Name and Official Tille (Typed) Signature Date
8. DEPARTMENT OF EDUCATION
y6uperintendento esi nee (Signature) Date
9. APPROVED ~S TO FORM
~
Deputy Attorney General (Signature) Date
Authorization: §3-128-6 HAR MOA Form 16 (Revised 612004)
3
IN WITNESS WHEREOFF, the parties hereto have caused this contract to be executed.
RECOMMEND APPROVAL: COUNTY OF Hawaii
BY ~
LAWRENCE K. MAHUNA IiLl~lvf DIXIE KAETSU ~P
POLICE CHIEF ITS Ibffl~A&MatwyMq e
APPROVED AS TO FORM AND LEGALITY:
f1F_puj'y' C oratio ounsel
B ON A. K. GONZALEZ
Contract Number: CO-40106
EXHIBIT A
SCOPE OF SERVICES
INTRODUCTION
The Contractor administers the Drug-Abuse Resistance Education (DARE) curriculum in participating
private and public schools. Contractor is responsible to ensure that all DARE officers are properly
trained, and equipped with the necessary materials and supplies to implement the DARE curriculum with
fidelity.
SCOPE OF WORK
Contractor shall coordinate and schedule any services and activities as required in advance with the
school Principal or designee.
Student Supplies and Materials
Contractor shall administer the DARE program in all participating DEPARTMENT and private schools to
approximately 1,900 students in grades 5 and 8. The participating schools shall be at the discretion of
the Contract Administrator (CA) who is identified in the Special Conditions section of this agreement.
DEPARTMENT shall supply all participating DEPARTMENT and private school students with instructional
supplies. Contractor shall submit a request for instructional supplies and program workbooks to be used
in the Program upon request of the CA. Items supplied will be at the discretion of the CA.
Curriculum
The DARE curriculum incorporates the use of Instructor facilitations skills allowing students to interact and
discuss life skills within their cooperative learning groups. Implementation of the curriculum is at the
discretion of the Contractor. Contractor may provide 45 minutes per week of DARE program instruction
and facilitation for 10 consecutive weeks in each classroom of the designated grade level. Lessons may
be adjusted by the Contractor as needed according to the individual school calendar.
5`h Grade Lessons
1. PURPOSES AND OVERVIEW OF D.A.R.E. PROGRAM -Introduces students to the D.A.R.E.
Program and the D.A.R.E. Decision Making Model and acquaints students with the law
enforcement officer.
2. TOBACCO AND YOU -Help students develop knowledge of basic drug facts and the harmful
effects of using Tobacco.
3. SMOKE SCREEN -Help students understand the role of advertising in promoting tobacco use
and the harmful effects of tobacco and marijuana to the body.
4. ALCOHOL AND YOU -Help students develop knowledge of basic drug facts and the harmful
effects of using Alcohol.
5. THE REAL TRUTH -Help students understand the role of advertising in promoting alcohol use
and develop knowledge of basic drug facts and the harmful effects of using Inhalants.
6. FRIENDSHIP FOUNDATIONS -Help students understand that there are positive friendships and
social support that may assist them to overcome types of peer pressures and use the D.A.R.E.
Decision Making Model to respond to peer pressure.
7. PUTTING IT TOGETHER -Teaches confident response styles as a technique for refusing offers
to use drugs or other situations where it would be helpful.
8. PERSONAL ACTION -Help students recognize stress encountered in their daily living and to
suggest ways to deal with it other than by taking drugs.
Authorization: §3-128-6 HAR MOA Form i6 (Revised 5/2004)
4
Contract Number: CO-40106
9. PRACTICE! PRACTICE! PRACTICE! -Help students express themselves through role playing
and developing a written report on what they have learned.
10. SPECIAL EVENT -Provide an appropriate culminating activity to recognize individual
achievement of all participants and to reinforce the values and skills they have learned.
8`h Grade Lessons
1. TAKE CHARGE OF YOUR OWN LIFE -Introduces students to the D.A.R.E. Program and the
D.A.R.E. Decision Making Model and acquaints students with the law enforcement officer.
2. FUNCTIONS OF THE BRAIN -Help students develop knowledge of basic drug facts and the
harmful effects of drugs to the brain.
3. MEDIA INFLUENCES -Help students understand the role of media advertisement in promoting
drugs.
4. WHAT'S YOUR GUESS 8 NEWS -Help students develop knowledge of facts or myths about the
harmful effects of using cigarettes, alcohol, inhalants, and marijuana.
5. "THE MOVIES" -Help students understand through scenarios ways to deal with peer pressure
and possible refusal responses.
6. KEY ASSERTIVE BEHAVIORS -Teaches confident response styles as a technique for refusing
offers to use drugs or other situations where it would be helpful.
7. PRACTICE -Help students recognize stress encountered in their daily living and to suggest ways
to deal with it other than by taking drugs.
8. "COOLING IT" -Help students express themselves through role playing and develop ways to
overcome anger.
9. SOCIAL AND LEGAL RESPONSIBILITIES -Help students develop through role playing their
social responsibilities and legal responsibilities expected.
10. PUTTING IT ALL TOGETHER -Provide an appropriate culminating activity to develop ideas,
values, and skills to work in realistic situations.
Dare Day
This event is the culminating activity for the school year that provided for 5`h grade DEPARTMENT
students. Contractor shall coordinate and manage this event.
DARE INSTRUCTORS AND TRAINING
The DARE instruction is provided by 5 Police Officer Instructors.
DEPARTMENT shall provide funds for training and certification programs to ensure that Officers chosen
to implement the DARE program are properly trained and prepared to implement the DARE program.
Training may include the following local, statewide and national meetings, seminars, workshops and
conferences:
State of Hawaii DARE Mentor Seminar
State of Hawaii DARE Officer Training
DARE Hawaii State Training Conference
Statewide DARE State Coordinators Meeting
DARE America Mentor Officer Training, (MOT)
DARE National Training Conference
Authorization: §3-128-6 HAR MOA Form 16 (Revised 5/2004)
5
Contract Number: CO-40106
EXHIBIT B
COMPENSATION AND PAYMENT SCHEDULE
COMPENSATION
The DEPARTMENT agrees to pay and the Contractor agrees to accept, in full and complete payment for
all goods delivered and services rendered during this contract, the total and complete sum not to exceed:
THIRTY FOUR THOUSAND ONE HUNDRED TWENTY FIVE AND NOI100 DOLLARS ($34,125.00)
This Contract price shall include all labor, services, travel, materials and equipment (as applicable),
overhead, profit, all applicable taxes, and any other incidental and operational expenses incurred by the
Contractor in the performance of its obligations hereunder. The DEPARTMENT will not be responsible
for personnel costs, including overtime charges. The contract price shall be the atl-inclusive cost to the
DEPARTMENT and no other charges will be honored. The contract price is based on the budget below.
DARE BUDGET
Student Related Expenses
DARE Day for 5th Graders, Celebrations, Institutes $15,000.00
Total Student Expenses $15,000.00
DARE Officer Training
interisland travel, per diem, supplies
State Training, Various and registration, etc. $12,435.00
DARE National Training Conference 6 690.00
Total Training Expenses $19,125.00
TOTAL BUDGET $34,125.00
PAYMENT SCHEDULE
Payments shall be made in 4 equal amounts of $8,531.25 upon satisfactory performance of services and
upon receipt of an original invoice. First payment shall be made upon execution of this agreement.
Three subsequent payments shall be made thereafter approximately every 3 months following first
payment.
INVOICING
Invoices shall reference the contract number.
Contractor shall send and original and two (2) copies of the invoices to:
Department of Education
OCISS, Instructional Services Branch
Health, P.E., Social Science and Student Programs Section
475 22nd Avenue, Roam 217
Honolulu, HI 96816
Attention: Safe & Drug-Free Schools
Authorization: §3-128-0 HAR MOA Form 16 (Revised 5/2004)
6
Contract Number: CO-40106
If a copy is submitted as the original, such invoice must bear an original signature certifying that the
invoice is being submitted as the original.
Section 103-10, HRS, provides that the State shall have thirty (30) calendar days after receipt of invoice
or satisfactory delivery of goods or performance of the services, to make payment. The DEPARTMENT
will not recognize any requirement established by the Contractor and communicated to the
DEPARTMENT after award of the contract, which requires payment within a shorter period or interest
payment not in conformance with statute.
Authorization: §3-128-6 HAR MOA Form i6 (Revised SI2004)
7
Contract Number: CO-40106
EXHIBIT D
SPECIAL PROVISIONS
CONTRACT ADMINISTRATOR
For purposes of this contract, Mr. Kendyl Ko, Educational Specialist for the Safe and Drug-Free Schools
Program, or his duly authorized representative or successor in office is designated the Contract
Administrator, hereafter CA. He can be contacted at telephone (808) 733-9141 extension 315, via fax at
(808) 735-8227, or via a-mail at kendyl_ko@notes.kl2.hi.us.
CONTRACT CHANGES -UNANTICIPATED AMENDMENTS
During the course of this contract, the Contractor may be required to perform additional work. That work
shall be within the general scope of the initial contract. When additional work is required, the CA will
provide the Contractor a written description of the additional work and request the Contractor to submit a
firm time schedule for accomplishing the additional work and a firm price for the additional work.
The Contractor will not commence additional work until the CA has secured the required DEPARTMENT
approvals necessary for the amendment and an executed written contract modification has been issued.
PROGRESS OF WORK
Upon request, the Contractor shall provide the DEPARTMENT with a status report on the progress of
work. Also, within three (3) working days of request, the Contractor shall complete and submit a written
report to the DEPARTMENT. At least once a week or as deemed necessary by the CA, the
DEPARTMENT may hold project status meetings in which the Contractor shall participate.
FINAL REPORT
The Contractor shall provide the DEPARTMENT with a year end report that indicates the names of the
officers that participated in training sessions, state and national conferences, and all meetings, along with
an expense report of all incurred costs at the completion of each event. The Contractor shall also provide
a year end summary listing the participating schools, the number of students receiving the program by
school, and a program evaluation completed by each classroom teacher. The report and evaluations are
due to the Safe and Drug-Free Schools and Communities program office by September 1 of the
succeeding year.
Authorization: §3-128-6 HAR MOA Form 16 (Revised 5/2004)
8
GENERAL CONDITIONS
Table of Contents
Pa e s
1 . Coordination of Services by the STATE 1
2. Relationship of Narhes~ 1ndeQendem Conaaciur Siaius
and Responsibilities ]ncluding_Tax Responsibilities 1
3. Personnel Requirements 2
4. Nondiscrimination 2
5. Conflicts of Interest 2
6. Subcontracts and Assignments 2
7. Indemnification and Defense 3
8. Cost of Litigation 3
9. Liquidated Damaees 3
]0. State's Right of Offset 4
11. Dis~tes 4
12. Sus~nsion of Contract 4
13. Termination for Default 5
14. Termination for Convenience . 7
15. Claims Based on the Agency Procurement
Officer's Actions or Omissions 9
16. Costs and x enses 10
]7. Payment Procedures Final Payment: Tax Clearance ]0
l8. Federal Funds 11
19. Modifications of Contract 11
20. Change Order 12
21. Price Adjustment 13
1 Form AG2-GC(1/01)
22. Variation in Ouantiry for Definite Quantity
Contracts .
I3
23. Changes in Cost-Reimbursement Contract l3
24. Confidentiality of Material 14
25. Publicity
.4
26. Ownersb_iv Rights and C~ rieht . 15
27. Liens and Warranties 15
28. Audit of Books and Records of the CONTRACTOR . . I5
29. Cost or Pricing Data . . . . . 15
30. Audit of Cost or Pricing Data . IS
31. Records Retention . . . . 15
32. Antitrust Claims . . . . . . 15
33. Patented Articles . 16
34. Governine Law . . - - - 16
35. Compliance with Laws . 16
36. Conflict between General Conditions and
Procurement Rules . . . . . 16
37. Entire Contract . . . . . 16
38. Severability 16
39. Waiver 16
1 ~ Form AG2-GC(1 /O1)
GENERAL CONDITIONS
1 . Coordination of Services by the STATE The "head of the purchasing agency," (which
term includes the designee of the head of the purchasing agency), 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 the
head of the purchasing agency at all stages of the CONTRACTOR'S work, and submit to
ille beau' of the piircuasillg aeeucy foi rc50iiiiivn 'an'y' giieSiivnS "whiGi iTiny arise a5 i6 the
performance of this Contract. "Purchasing agency" as used in these General Conditions
means and includes any governmental body which is authorized under chapter ]03D, HRS,
or its implementing rules and procedures, or by way of delegation, to enter into contracts
for the procurement of services.
2. Relationship of Parties: Independent Contractor Status and Responsibilities Includin Tax
Responsibilities.
a. ]n 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. Uriless
otherwise provided by special condition, i[ 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 [he 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
stale 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 CON'rRACTOR's employees and agents, and to any
individual not a parry 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
>=orm acz-ccttiot>
comply wnh all requirements thereof. The CONTRACTOR shall obtain a tax
clearance cettificate 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 Contract. The CONTRACTOR shall also
be solely responsible for meeting al] requirements necessary to obtain the tax
clearance cettificate required for fmal payment under sections 103-53 and 237-45,
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.
3. Personnel Requirements.
a. The CONTRACTOR shall secure, at the CONTRACTOR'S own expense, all
personnel required to perform this Contract.
b. 7"he 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 wrinen 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, showing that all delinquent taxes, 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
compensation under this Contract shall be effective unless and until the assignment is
approved by the Comptroller of the Stale 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
2 Form AG2-GC(I/01)
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 al] 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 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 CPO within thirty days of the date that the assignment Contract or
amendment becomes effective.
d. Actions affecting more than one purchasing agency_ Notwithstanding [he
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
he 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
-art~rnepsyfees,-and all claims; suits, and demands therefor, 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 al] 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 l3 (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
3 Form AG2-GC(I/O7)
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 shall remain liable for damages caused other
than by delay.
1!l J.... Di ht r.G (1 (lam.. Tl. OTATC FP...,• 1.... {.If..
iv. ia+~ o .r;+.. v++oi,t ~ i,c..~i n i i. uiay :~uou against an'r T+Cnie$ vi utua.i Cvu~nii VIIJ
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 ]03D-703, HRS, and
chapter ] 26, Procurement Rules, 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 al] or any part of the performance called for by this
Contract. This order shall be for a specified period not exceeding sixty (60) days
after the order is delivered to the CONTRACTOR, unless the panies agree to any
further period. Any such order shall be identified specifically as a stop
performance order issued pursuant to this section. Stop work orders shall not
exceed sixty consecutive days and shall include, as appropriate: (1) A clear
description of the work to be suspended; (2) ]nstructions 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 perfotTrtance
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
4 Form nc2-ccniot>
(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 [he 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 thiny
(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, [he reasonable costs resulting from the stop performance order shall
be allowable by adjustment or otherwise.
d. Adiustment of price. Any adjustment in contract price made pursuant to this
paragraph shall be determined in accordance with the price adjustment provision
of [his Contract.
13. Termination for Default.
a. Default. ]f 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 necessary action to protect and preserve property in
the possession of the CONTRACTOR in which the STATE has an interest.
5 Form AG2-GC(1 /O7 )
c. Compensation Pavment 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 126, Procurement Rules. The STATE may
withhold from amounts due the CONTRACTOR such sums as the Agency
nr(lcurement gff cer riePrnc tp be neCeccary to nmrert the CTATF aon~nct IfloS
..t.....,..
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 delayperformance 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 perfot7n 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 [hat, but
for the excusable cause, [he 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 tet7rtinatio? for default. ]f, 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 delayed performance," the rights and obligations of the parries
shall be the same as if the notice of termination had been issued pursuant to such
provision.
f. Additional rights and remedies. The rights and remedies provided in this
paragraph are in addition to any other rights and remedies provided by law or
under this Contract.
6 Form AG2-GC(1/O])
14. Termination for Convenience.
a. Termination. The Agency procurement officer may, when the interests of the
STATE so require, [emanate 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 pan of the Contract terminated
and when termination becomes effective.
b. l.V1V T tCf1 tJ T URNS obligations. 1 Ile CON 1 Rfl 1.1 UR shall incur n0 lUnher
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. The Agency procurement
officer may duect the CONTRACTOR to assign the CONTRACTOR'S right, title,
and interest under terminated orders or subcontracts [o 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. 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:
1:1) 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 [he 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.
(I) 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 subchapter 15,
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 subparagraph
14d(3) below.
~ Form AG2-GC(1/011
(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 cmm~l,rtr CpntraEt ~lnrler smbp~ragranh lddl2) rt,e e„A.,,-„
procurement officer shall pay the CONTRACTOR the following amounts,
provided payments agreed to under subparagraph 14d(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
tnclude anticipatory profit or comsequential 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
]4d(3)(B);
(D) The reasomable 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 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.
S Form AG2-GC(1 /01)
15 Claims Based on the Agency Procurement Officer's Actions or Omissions.
a. Changes in scope If any action or omission on the pan 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
wtth the dtrecuons 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;
(3) Basis must be exQlained. 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'
(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.
9 Form AG2-GC(I/n])
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.
]6. 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) of the Procurement Rules and the following guidelines:
a. Rcu,ibu,scu,cnt for air iranspuriai;uu shah be foi actuai cost ur 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 wrinen approval of the DIRECTOR is obtained, reimbursement for
subsistence allowance (i.e., hotel and meals, etc.) shall not exceed the applicable
daily authorized rates for interisland 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. Pavment Procedures: Final Pavment: 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
clue 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 Duector of Finance in accordance with chapter 37, HRS. Further,
al] 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 dispersed to subcontractors within ten 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 days
after receipt of the money; provided that there are ?o bona fide
disputes over the subcontractor's performance under the
subcontract.
d. Finalinal payment. Final payment under this Contract shall be subject to sections
103-53 and 2375, 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.
10 Form AG2-GC(1101)
l8. Federal Funds. 1f this Contract is pavable in whole or in pan 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.
]9. Modifications of Contract.
a. In writine. 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.
c. A~enc~procurement officer By a wrinen order, at any time, and without notice
to any surety, the Agency procurement officer, subject to mutual consent of the
parties to this Contract and all appropriate adjustments, may make modifications
within the genera] scope of this Contract to include any one or more of the
following:
(A) Drawings, designs, or specifications;
(13) 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 Contract accomplished by mutual action of the
parries to the Contract.
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 pan 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 ~ayment. No claim by the CONTRACTOR for an
adjustment hereunder shall be allowed if written Contract of modification is not
made prior to final payment under this Contract.
f. Claims not barred. 1n the absence of an 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.
11 Form AG2-GC(1/01)
g. ('PO approval. ]f this is a professional services Contract awarded pursuant to
secnon ]03D-303 or ]03D-304, HRS, any modification, aheration, 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 (l0%) of the initial Contract price, whichever increase is higher, must
receive the prior approval of the CPO.
h. Tax clearance. J he J7 A7i? may, at its discretion, reyuire tiae COidTnACTOR io
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,
showing that al] delinquent taxes, if any, levied or accrued under state law 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 orily 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. Chanee 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. Adiustments of price or time for performance. ]f 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 rnade 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 ponies 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 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 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
risen a claim for an adjustment. Later notification shall not bar the
CONTRACTOR'S claim unless the STATE is prejudiced by the delay in
notification.
]2 Form AG2-GC(1/Old
c. Claim barred after final moment No claim by the CONTRACTOR for an
adjustment hereunder shall be allowed if notice is not given prior to fmal 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.
L l 1-1 0.l. Ohl uaulll.lll.
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 Contract 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
(Sj In the absence of Contract between the parries, 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 of the Procurement Rules.
b. Submission of cost or pricing 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 Quanti~ for Definite Quantity Contracts. Upon the Contract 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 (]0%);
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 Contract or that it would not be practical to awazd
another Contract.
23. Changes in Cost-Reimbursement Contract. If this Contract is acost-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 [he general scope of the Contract
in any one or more of the following:
(1) Description of performance (Attachment 1);
13 FoR„ ncz~cttiotl
(2) Time of performance (i.e., hours of the day, days of the week, etc.);
(3) Place of performance of services;
(4) Drawings, designs, or specifications when the supplies to be furoished are
to be specially manufactured for the STATE in accordance with the
drawings, designs, or specifications;
(5) '~;ciLVU of ahipmeni ur 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)
;unount of any fixed fee; and (3) other affected terms and shall modify the Contract
accordingly.
c. The CONTRACTOR must assen 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 ] 1 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. Al] 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 head of the purchasing agency, the
CPO, the DIRECTOR, the .Agency procurement officer, or to the services or goods, or
14 Form AG2-GC(t/ol)
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 Co~yrieht 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.
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 [he Agency purchasing
officer and timely certified as accurate for contracts over $100,000 unless the contract is
for amultiple-term 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 Contracts awarded pursuant to competitive sealed bid procedures.
]f 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 convact 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 convact price in the amount of the defect
plus related overhead and profit or fee. "Therefore, unless theee 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 aze applicable, the STATE
may require an audit of cost or pricing data.
31. Records Retention. The CONTRACTOR and any subcontractors shall maintain the books
and records that relate to the Contract and any cost or pricing data for three (3) years from
the date of final payment under the Contract.
32. Antiwst 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
l $ Form AG2-GC(1 /0 1)
estaoiished under this Contract and which aze not passed on to the STATE under an
escalation clause.
33. Patented Articles. The CONTRACTOR shall defend, indemrilfy, 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 arising out of or resulting from any claims, demands, or
actions by the patent holder for infringement or other improper or unauthorized use of arty
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.
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. Com~iance 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 Convact became effective shall control and are hereby incorporated
by reference.
37. Entire Contract. This Contract sets forth all of the Contracts, conditions, understandings,
promises, warranties, and representations between the STATE and the CONTRACTOR
relative to this Contract. This Contract supersedes all prior Contracts, conditions,
understandings, promises, wazranties, and representations, which shall have no further
force or effect. There aze no Contracts, 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.
] 6 Form AG2-GC(I /01)