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HomeMy WebLinkAboutCOM 0082.059 2004-2006 I J~tV'oF M~?Y Harry Kim ~°.•'~c~ ~ Alan R. Parker ~Id, Mapes' F_xecuJive an Aging ,AQ OF N~`~ County o~ Hawaii OFFICE OF AGING I like La~orni Centre, 101 Aupuni Slreet. Suite 342. I Lilo, I lawai'i 96720-4262 Phonc (808) 961-8600 Fax (808) 9G1-8603 I lanam~ Place. 75-5706 Kuakini I lighti~ay, Suite 106. Kailua-Kona, I la~~~ai'i 96740-1751 Phonc (808) 327-3597 I'ax (R08) 327-3599 DATE: August 26, 2005 TO: Stacy K. Higa, Council Chair and Council Members VIA: Deanna Sako, Controller ~k~ _ FROM: Alan Parker, Executive on Aging RE: NOTIFICATION OF GRANT AWARD Compliance with Ordinance No. 05-86, Section 7(1) Name of Grant Program: Kupuna Care Services Grantor: Department of Health, Executive Office on Aging County Grantee Department or Agency: Hawaii County Office of Aging Grant No. (IF KNOWN): HA-2006/2007-2 (A) Amount of Grant: $1,293,156 = $646,578 for FY 2006 + $646,578 for FY 2007 Amount of County Match: $102,500.00 County Rev. & Exp. Account Numbers: #3304.06 & #010-411-5411.09 to 10 - $554,419 (HCOA) (For 711/05-6/30!06) #3304.04 & #010-481-5483.01 to 03 - $92,159(HCNP)County Grant Period (Commence. & Completion): July 1, 2005 to June 30, 2006 Purpose of Grant: To enable Hawaii's "Na Kupuna" to have access to affordable and quality home-and -community based services that are client-centered and family-supportive, allowing them to live with independence and dignity. Services are Adult Day Care, Attendant Care, Case Management, Chore, Homemaker/Housekeeper, Personal Care, Assisted Transportation, and Home Delivered Meals. Is final report required by grantor? ©Yes ~ No Notification attached: ~X Yes ~ No ~or~arra. No> • bji Rif. T~ Rte. ~?c~t~L~ _ cc: Parks & Recreation lluiru~'r (-nun~p i.c an equal oppurlunrl,v provider and en~ploi~er. Jn Area ~Igeruy on Aging LINDA LINGLE o r'Ha PAT SASAKI QE""'S'^~ k- EXECUTIVE DIRECTOR GOVERNOP OF HAWAII 9' q ~,W CMIYOME L. FUKINO, M. D. ~l Telephone DIRECTOR OF HEAFTH ~ (608) 66fi-0100 Fax STATE OF HAWAII (6081586-0165 EXECUTIVE OFFICE ON AGING NO. 1 CAPITOL DISTRICT 250 SOUTH HOTEL STREET, SUITE 406 HONOLULU, HAWAII 96813-2831 DATE RECEIVED ~ /H- ~ C' CIKCULATE TO /'t June 13, 2005 C)wY TO ACiIpN BY DATE DUE TO TO: Alan Parker FILE County Executive Hawaii County Office of Aging FROM: Pat Sasa ' Executiv rector Executive ffice on Aging SUBJECT: HA-200612 00 7-2(A} Enclosed is your consummated file copy of Contract No. HA-2006/2007-2(A) with the Executive Office on Aging. The contract is to implement the provisions of the KLJYUNA CARE program. Our Deputy Attorney General requested that we change the formatting of the Compensation and Payment Schedule (Exhibit B). The wording is still the same. I have made the necessary changes in your copy. If you have any questions or concerns, please feel free to contact Caroline Cadirao at 586-0100. CTC/ta Enclosure ? this Agreement is for an affiliation agreement with hospitals and other health care providers required for University of Hawaii clinical programs; ? this Agreement is for the services of psychiatrist, or psychologists in criminal or civil proceedings as required by a court order or by the rules of the court; ? this Agreement is for a transaction covered by a written exemption from the Chief Procurement Officer for the STATE dated B. The STATE is in need of the health and human services described in this Agreement and its exhibits (the "Required Services"). The PROVIDER is agreeable to providing the Required Services. C. Money has been appropriated for the purchase of the Required Services by: (1) (identify state sources) General A~rouriations Act or (2) (identify federal sources) ,or both, in the following amounts: State: $ 1,293, 156 Federal: $ D. Pursuant to (legal authority for Agreement) Section 349 - 3, HRS , the STATE is authorized to enter into this Agreement. E. The undersigned representative of the PROVIDER represents, and the STATE relies upon such representation, that he or she has authority to sign this Agreement by virtue of (check any or all that apply): ? corporate resolutions of the PROVIDER or other authorizing documents such as partnership resolutions; ? corporate by-laws of the PROVIDER, or other similar operating documents of the PROVIDER, such as a partnership agreement, or an limited liability company operating agreement; EXEMPT TRANSACTIONS Page 2 Form AG3-Exem(4/99) HA-2006/2007-2(A) ~ the PROVIDER is a sole proprietor and as such does not require any authorizing documents to sign this Agreement; ® the PROVIDER is a government entity, and the undersigned representative of the PROVIDER is duly-authorized to execute contracts on behalf such government entity; ~ other evidence of signing authority: F. The PROVIDER has produced, and the STATE has inspected, a certificate of insurance in the amount of N/A DOLLARS for bodily injury and property damage liability arising in connection with the PROVIDER'S performance under this Agreement. G. The PROVIDER has produced, and the STATE has inspected, a tax clearance certificate with approval from the State of Hawaii, Department of Taxation, dated N/A , NOW, THEREFORE, in consideration of the promises contained in this Agreement, the STATE and the PROVIDER agree as follows: 1. Scope of Services. The PROVIDER shall, in a proper and satisfactory manner as determined by the STATE, provide the Required Services as set forth in Exhibit "A" to this Agreement, which is attached, and made a part of this Agreement. 2. Term of Agreement. The PROVIDER shall provide the Required Services from (date) July 1 2005 , to (date) June 30 , 2007 ,unless this Agreement is sooner terminated. 3. Compensation. The PROVIDER shall be compensated ® in a total amount for all required services not to exceed One Million Two Hundred Ninety-Three Thousand One Hundred Fifty-Six DOLLARS ],293,156 including taxes, at the time and in the manner set forth in Exhibit "B" to this Agreement, which is attached, and made a part of this Agreement. ~ based upon referrals to the PROVIDER from the STATE, payment EXEMPT TRANSACTIONS Page 3 Form AG3-Exem(4/99) HA-2006/2007-2(A) for each such referral shall be made according to Exhibit "B" to this Agreement, which is attached, and made a part of this Agreement. The STATE shall provide a minimum of n/a referrals to the PROVIDER. 4. Reporting Requirements. In addition to whatever other reports may be required elsewhere in this Agreement, the PROVIDER shall also submit a Final Project Report, by (date) August 30, 2007 No amendment to the PROVIDER'S Final Project Report shall be considered after (date) September 30, 2007 5. Standards of Conduct Declaration. The Standards of Conduct Declaration of the PROVIDER is attached as Exhibit "C", and is made a part of this Agreement. 6. Other Terms and Conditions. The General Conditions for Health and Human Services Contracts (the "General Conditions") are attached as Exhibit "D," and are made a part of this Agreement. If applicable, any Special Conditions are attached as Exhibit "E," and are made a part of this Agreement. In the event of a conflict between the General Conditions and the Special Conditions, the Special Conditions shall control. 7. Notices. Any notice, communication, or information required to be given by any party to this Agreement shall be made in writing, and shall be (a) delivered personally, or (b) sent by United States first class mail, postage prepaid. Notice required to be given to the DIRECTOR shall be sent to the DIRECTOR'S office in Honolulu, Hawaii. Notice to the Agency Procurement Officer shall be sent to: 250 South Hotel Street, Suite 406. Honolulu, HI 96813 Notice to the PROVIDER shall be sent to the PROVIDER at the PROVIDER'S address as indicated in this Agreement. Notice to the STATE'S Chief Procurement Officer shall be sent to ll5l Punchbowl Street, Rm. 230A, Hon, HI 96813. A notice shall be deemed to have been received three (3) days after mailing or at the time of actual receipt, whichever is earlier. The PROVIDER is responsible for notifying the STATE in writing of any change of address. EXEMPT TRANSACTIONS Page 4 Form AG3-Exem(4/99) HA-2006/2007-2(A) IN WITNESS WHEREOF, the STATE and the PROVIDER have executed this Agreement effective as of the date first above written. STATE EXECUTIVE OFFICE ON AGING sy ~ s Executive Director PROVIDER COUNTY All By Its i{4-a}=er, County of Hawaii Mawgtr~g Dlrecfor FG? RECOMMEND APPROVAL: J ~ ~ 7 C1~.-,,~ Hawaii County Office of Aging County Executive APPROVED AS TO FORM AND LEGALITY: r t t~. t.r iJf(.~..2 Depq~ty Corporation Counsel County of Hawaii APPROVED AS TO FORM: Deput Attorney General State of Hawaii * Evidence of authority of the PROVIDER'S representative to sign this agreement for the PROVIDER must be attached. Page 5 xn-zoo6izoo~-z~n> STATE OF HAWAII ) SS. COUNTY OF HAWAII ) On this 13th day of Mav , 2005, before me personally appeared DIXIE KAETSU, to me personally known, who, being by me duly sworn, did say that she is the Managing Director of the County of Hawaii, a municipal corporation of the State of Hawaii; that the seal affixed to the foregoing instrument is the corporate seal of said County of Hawaii; that the foregoing instrument was signed and sealed in behalf of the County of Hawaii by authority given to said Mayor of the County of Hawaii by Section 5-1.3(g) of the County Charter, County of Hawaii (2000), as amended, and assigned by the Mayor to the Managing Director pursuant to Section 6-1.3(h) of the County Charter; and said DIXIE KAETSU acknowledged said instrument to be the free act and deed of said County of Hawaii. ~u~.t-~--~ CATH T. CORREIA Notary Public, State of Hawaii My commission expires: 10/13/06 10:~•" Cp~pRFi =P~pTAq~y`y9 . _ Y C }r •1a AY B~-\ OF µP PROVIDER'S ACKNOWLEDGMENT Stat of ) SS. County of ) On this day of ,before me personally appeared , to me personally known, who being by me duly sworn, did say that h she is the of he PROVIDER named in the foregoing instrument, and that he/she is authorized to sign sai 'nstrument on behalf of the PROVIDER, as provided in Recital E of the foregoing Agree ent, and acknowledges that he/she executed said instrument as the free act and deed oft PROVIDER. Notary Public, My commission a Tres: Pi EXEMPT TRANSACTIONS Page 6 Form AG3-Exempt HA-2006/2007-2(A) SCOPE OF SERVICES (State Funded Programs) 1 PROVIDER shall, in a satisfactory and proper manner as determined by the STATE, and in accordance with the terms and conditions of this Agreement, use the funds received under this Agreement to provide KUPUNA CARE services as described in the 2004-2007 State approved Area Plan for the Hawaii County Office of Aging which is incorporated by reference as part of this Agreement. When a service listed is also funded with federal funds such as Home Delivered Meals, PROVIDER shall comply with all regulations and requirements of the expending Federal agency and implement the Older Americans Act of 1965, as amended. Federal guidelines supersede all local policies. 2 The Area Agency on Aging (AAA) Administration fund shall be used by the PROVIDER to carry out the PROVIDER'S functions and responsibilities. 3 The KUPUNA CARE Administration fund shall be used by the PROVIDER to implement KUPUNA CARE services. 4 The KUPUNA CARE Vendor Service fund shall be used only for the implementation of one or more of the KUPUNA CARE services. 5 The PROVIDER shall implement and execute the coordination of the following core services of KUPUNA CARE with the PROVIDER'S subcontractors and vendors: 5.1 Adult Day Care: Personal care for dependent elders in a supervised, protective, and congregate setting during some portion of a day. Services offered in conjunction with adult day care/adult day health typically include social and HA-2006/2007-2(A) EXHIBIT A Page 1 recreational activities, training, counseling, and services such as rehabilitation, medication assistance and home health aide services for adult day health. (Note: "Dependent elders" are individuals 60 years old or older with 2 or more functional impairments (ADCs/IADLs.) Unit of Measure: One hour 5.2 Attendant Care: The service provides primarily stand-by assistance, supervision or cues, and may include other activities to help maintain the independence of older adults. Unit of Measure: One hour 5.3 KUPUNA CARE Transportation: Door-to-door or curb-to-curb transportation service with the assistance of a helpful driver. Unit of Measure: One-way trip 5.4 Case Management: Assistance either in the form of access or care coordination in circumstances where the older person is experiencing diminished functioning capacities, personal conditions or other characteristics which require the provision of services by formal service providers or family caregivers. Activities of case management include such practices as assessing needs, developing care plans, authorizing and coordinating services among providers, and providing follow-up and reassessment, as required. Unit of Measure: One hour 5.5 Chore: Assistance such as heavy housework, yard work or sidewalk maintenance for a person. Unit of Measure: One hour 5.6 Homemaker: Assistance such as preparing meals, shopping for personal items, managing money, using the telephone or doing light housework. 5.7 Nutrition/Home Delivered Meals: A meal to a qualified individual in his/her place of residence. Unit of Measure: One meal Notes: A qualified individual is an individual 60 years old or older who is frail, homebound by reason of illness or incapacitating disability or otherwise isolated, HA-2006/2007-2(A) EXHIBIT A Page 2 and the spouse of such a person even if younger. Home Delivered Meals shall meet the requirements of the Nutrition Service Standards for the Congregate and Home-Delivered Meals Program, Title III-C of the Older Americans Act dated May 2000 which is incorporated herein by reference and made a part of this Agreement. 5.8 Personal Care: Personal assistance, stand-by assistance, supervision or cues. Unit of Measure: One hour 5.9 The PROVIDER and PROVIDER'S subcontractors shall comply with the KUPUNA CARE Guidelines, Caring for Hawaii's Elderly, dated Apri129, 1999, and the KUPUNA CARE Service Specifications dated October 18, 2004, which is incorporated herein by reference and made a part of this Agreement. 5.10 The PROVIDER'S subcontractor shall ensure that vendors providing KUPUNA CARE services meet the requirements described in the Scope of Services and the Special Conditions. HA-2006/2007-2(A) EXHIBIT A Page 3 COMPENSATION AND PAYMENT SCHEDULE 1 COMPENSATION: Subject to continuing availability of funds, the STATE agrees to pay PROVIDER, for services satisfactorily performed under this Agreement, a sum not to exceed ONE MILLION TWO HUNDRED NINETY-THREE THOUSAND ONE HUNDRED FIFTY-SD{ Dollars ($1,293,156), provided that PROVIDER shall apportion said sum among the programs/activities set forth in Exhibit "A." Payment of this sum shall constitute full and complete compensation for all services, materials, supplies, equipment, overhead, taxes, other incidentals, and operating expenses that PROVIDER incurs in the performance of this Agreement. PROVIDER understands and fully agrees that the sum payable under this Agreement shall be paid only upon receipt by the STATE of those state general funds described and provided pursuant to the STATE's Plan on Aging. The STATE shall not pay said amount to PROVIDER out of any funds other than those received from DHHS or the state legislature. 2 METHOD OF PAYMENT 2.1 The funds awarded to the STATE by the DHHS and appropriated by the state legislature for purposes of this Agreement shall be subject to the allotment system as provided in Chapter 37, Hawaii Revised Statutes. 2.2 Subject to the availability of funds, payments to PROVIDER under this Agreement shall be made in accordance with and are subject to the provisions of Chapter 7, Request for Payments (Area Agency on Aging Reporting Handbook), and the following appropriate State provisions: 2.2.1 If State funds are awarded, the STATE shall use the allocation plan contained in Exhibit B-1, as a basis of paying PROVIDER, upon submission by PROVIDER of written request for payment. HA-2006/2007-2(A) EXHIBIT B Page 1 2.2.2 Payment shall be made in advance quarterly installments upon submission by PROVIDER of written request for payment. 2.2.3 The quarterly financial status reports and performance progress reports shall be reviewed by the STATE for appropriateness and allowability of the reported expenditures. 2.2.4 If an amount of reported expenditures is determined by the STATE to be inappropriate and unallowable, the STATE may deduct an equivalent amount from the next payable installment. If, after payment of the last installment, investigation and examination reveal additional expenditures that are determined by the STATE to be inappropriate and unallowable, the STATE may require that an equivalent amount of monies be refunded to the STATE notwithstanding the STATE's preliminary determination of appropriateness and allowability. 2.2.5 All payments shall be made in accordance with and subject to Chapter 40, Hawaii Revised Statutes, which specifies the accounting procedures and controls applicable to payments out of the Treasury of the State of Hawaii. Such payments are subject to availability of funds and allotment by the Director of Finance in Accordance with Chapter 37, Hawaii Revised Statutes. Final payment under this Agreement shall be subject to sections 103-53 and 237-45, Hawaii Revised Statutes, which require a tax clearance from the Director of Taxation, State of Hawaii, showing that all delinquent taxes, levied or accrued under State law against the private subcontractors if any, have been paid. HA-2006/2007-2(A) EXHIBIT B Page 2 3 PROVIDER shall include appropriate provisions for its subcontractors to ensure that the provisions of this Part maybe effectuated. xn-zoobizoo~-z~a~ EXHIBIT B Page 3 (O 07 O ~ t!) r I~ ~ _ N (~7 ~ (h O M O W O ~ (O r (~7 N r N ~ W ~ O O r ~ CO O O ~ O Q7 O N M r (O } W O O ~ ~ O O ~ O ~ O O O W } M ~ co V u. W ~ to O W Q N C ~ N W O ~ C ~yM ~ ~ -o Q ~ r LL N m c O d ~ H ? v ~ ~ Z In N L d E ~ ON Cn O N (0 w O N 'O V 7 Q C ~ y ~ Q ~ O O -p Q = O Q C Cn ~ ~ ~ - `J W ~ ~ > U > m 0 ~ N O C9 = ~ e- a= 6l ~ N ~ O O m r m ~ V Q ca O 'O L N ~ m ~jY O U S Q U a wa U ~ Y .o va 0 rn ~ 2 ~ ~ 2 Q O N U ~ ~ O T ~ ` O U ~ N 'O d O U ~ > ~ U o o - ~ d ~ o ~ ~ ~ O ~ c ~ ~ N Z ~ Q O ~ O O ~ O ~ O 0 O N U N N _U _ O ~ O C ~ ~ 3 N O N (6 7 U W cn 2 Y 2 ~ rn ~ ~ o ~ ~ ~ ~ ~ ~ M M ca o rn m rn ~ N O M } ~ ~ ~ M M co °O rn rn rn N N O M ~ ~ V 7 O ~ O N N O ~ ~ M O a~i c CJ L ~ C U ~ ~ m C/) i O N c N O v t m A p o Q w a Z ~ LL c- 'ya ayi a ~ ~ ~ c ~ w ~i Z s. o ~ ~ in O m V N ~ w C ~ ~ Y ~ ~ y C Q ~ ~ Z o C_ U a Q o o Q F- o ~ ~ U ~ ~ Z p 'n ~ °o LL o C N 3 ~ O ~ ~ V a N - ~ ~ ~c :3 ~ o 2 ~ Q ~ N ~ N r ~ C f6 0 0 m a co 'm ~ Q ~ g ~ ~ N U W Y = ~ ° cCOO v ~ rn ao m p N of ~ c0 67 F- 07 M N r O O ' ~ O m t17 O O ~ ~ N OV ~ ~ ~ ~ M LL ~p 00 W OO N ~ p O ' t(1 O 01 ~ O N O N O M ~ N r m 7 V p } ~ (O N V- N O ~ M O N C ~ L > O U ~ U ~ N ~ ~ ~ ~ in ~ m Z o O ~ N ~ O U ~ ELL N U r rn ~p LL r: Q W d d O a} ~ c 0' ~ cn ~ co Q ~ H w .o ~ ~ g O m~ E a ~ c N ~ ~ ~ a Q ~ c ~ m o ~ U o ~ U ~ a~ 0 0 o ~ aci Q o ~ n. o ? -o c c a~ ~ o m U c O ~ ~ 3 0 o W Z c C N 7 O ~ ~ Z ~ o ~ w U 2' ~ a~'i N ~ O U ~ C C 3 m ~ U o E ° 0 `o ~ ~ ~ ° ~ U U o Z o _°c -o m U cNo C d ~ (n > Q ~ C N o~ U U Q ~ o U W Y Y Q Y Z z ~ ~ This form is inoperable between the State and the Provider STANDARDS OF CONDUCT DECLARATION For the purposes of this declaration: "Agency" mesas and includes the State, the legislature and iu committees, all executive departments, boards, commissions, committees, bureaus, offices, the University of Hawaii, and all independent commissions and other establishments of the state government but excluding the courts. "Controlling interest" means an interest in a business or other undertaking which is sufficient in fact to control, whether the interest is greater or less than fifty per cent (50%). "Employee" means any nominated, appointed, or elected officer or employee of the State, including members of boards, commissions, and committees, and employees wader contract to the State or of the constitutional convention, but excluding legislators, delegates to the constitutional convention, justices, and judges. On behalf of ,PROVIDER, the undersigned does declare as follows: 1. PROVIDER (isL_ is notes a legislator or an employee or a business in which a legislator or an employee has a controlling interest.' 2. PROVIDER has not been assisted or represented by a legislator or employee for a fee or other compensation to obtain this Agreement and will not be assisted or represented by a legislator or employee for a fee or other compensation in the performance of the Agreement, if the Legislator or employee had been involved in the development or award of the Agreement. 3. PROVIDER has not been assisted or represented for a fee or other compensation in the award of this Agreement by an Agency employee or, in the case of the Legislature, by a legislator. 4. PROVIDER has not been represented or assisted personally on matters related to the Agreement by a person who has been an employee of the Agency within the preceding two (2) years and who participated while in state office or employment on the matter with which the Agreement is directly concerned. 5. PROVIDER has not been represented or assisted on matters related to this Agreement, for a fee or other consideration by an individual who, within the past twelve (12) months, has been an Agency employee, or in the case of the Legislature, a legislator. Exhibit "C" Page 1 HA-2006/2007-2(A) - 6. PROVIDER has not been represented or assisted in the award of this Agreement for a fee or other consideration by an individual who, a) within the past twelve (12) moaths, served as an Agency employee or in the case of the Legislature, a legislator, and b) participated while an employee or legislator on matters related to this Agreement. PROVIDER understands that the Agreement to which this document is attached is voidable on behalf of the STATE if this Agreement was entered into in violation of any provision of chapter 84, HRS, commonly referred to as the Code of Ethics, including the.provisions which are the source of the declarations above. Additionally, any fee, compensation, gift, or profit received by any person as a result of a violation of the Code of Ethics may be recovered by the STATE. DATED: Honolulu, Hawaii, , PROVIDER sy Title 'Reminder to Agency: If "is" is circled, the Agency is required, under section 84-15, HRS, to 51e with the State Ethics Commission, ten (10) days before the Agreement is entered into, a written justification as to why the Agreement was not required to be competitively bid. Exhibit "C" Page 2 HA-2006/2007-2(A) 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 the head of the purchasing agency for resolution any questions which may arise as to the performance of this Contract. "Purchasing agency" as used in these General Conditions means and includes any governmental body which is authorized under chapter 103D, HRS, or its implementing rules and procedures, or by way of delegation, to enter into contracts for the procurement of services. 2. Relationship of Parties• Independent Contractor Status and Responsibilities. Including Tax Responsibilities. a. In the performance of services required under this Contract, the CONTRACTOR is an "independent contractor, with the authority and responsibility to control and direct the performance and details of the work and services required under this Contract; however, the STATE shall have a general right to Inspect work in progress to determine whether, in the STATE'S opinion, [he services are being performed by the CONTRACTOR in compliance with this Contract. Unless otherwise provided by special condition, it is understood that the STATE does not agree to use the CONTRACTOR exclusively, and that the CONTRACTOR is free to contract to provide services to other individuals or entities while under contract with the STATE. b. The CONTRACTOR and the CONTRACTOR's employees and agents are not by reason of this Contract, agents or employees of the State for any purpose, and the CONTRACTOR and the CONTRACTOR'S employees and agents shall not be entitled to claim or receive from the Stale any vacation, sick leave, retirement, workers' compensation, unemployment insurance, or other benefits provided to state employees. c. The CONTRACTOR shall be responsible for the accuracy, completeness, and adequacy of the CONTRACTOR'S performance under this Contract. Furthermore, the CONTRACTOR intentionally, voluntarily, and knowingly assumes the sole and entire liability to the CONTRACTOR'S employees and agents, and to any individual not a party to ttris Contract, for al] 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 Form AG2-GC(1/Ol) EXHt131T D xA-zoo6/zoos-2~A~ 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 Contract. The CONTRACTOR shall also be solely responsible for meeting al] requirements necessary to obtain the tax clearance certificate 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. The CONTRACTOR shall ensure that the CONTRACTOR's employees or agents are experienced and fully qualified to engage in the activities and perform the services required under this Contract, and that all applicable licensing and operating requirements imposed or requited 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 Assieiunents. The CONTRACTOR shall not assign or subcontract any of the CONTRACTOR's duties, obligations, or interests under this Contract and no such assignment or subcontract shall be effective unless (i) the CONTRACTOR obtains the prior written consent of the STATE and (ii) the CONTRACTOR'S assignee or subcontractor submits to the STATE a tax clearance certificate from the Duector 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 uriless and until the assignment is approved by the Comptroller of the State of Hawaii, as provided in section 40-58, HRS. a. Recognition of a successor in interest. When in the best interest of the State, a successor in interest may be recognized in an assignment Contract in which the 2 Form AG2-GC(1/Ol) EXHIBIT D 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 al] obligations under this Contract but waives all rights under this Contract as agamst 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 affective more than one_purchasine agencv Notwithstanding the provisions of subparagraphs 6a through 6c herein, when the CONTRACTOR holds Contracts with more than one purchasing agency of the State, the assignment Contracts and the novation and change of name amendments herein authorized shall be processed only through the CPO's office. 7. Indemnification and Defense. The CONTRACTOR shall defend, indemnify, and hold harmless the State of Hawaii, the contracting agency, and their officers, employees, and agents from and against all liability, loss, damage, cost, and expense, including all attorneys' fees, and all claims, suits, and demands therefor, azising 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. S. Cost of Liti anon. In case the STATE shall, without any fault on its part, be made a party to any litigation commenced by or against the CONTRACTOR in connection with this Contract, the CONTRACTOR shall pay all costs and expenses incurred by or imposed on the STATE, including attorneys' fees. 9. Liquidated Damages. When the CONTRACTOR is given notice of delay or nonperformance as specified in paragraph 13 (Termination for Default) and fails to cure in the time specified, it is agreed the CONTRACTOR shall pay to the STATE the amount, if any, set forth in this Contract per calendar day from the date set for cure until either (i) the STATE reasonably obtains similar goods or services, or both, if the CONTRACTOR 3 Form AG2-GC(1/Ol) ~~~~gl~ 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. ]0. State's Right of Offset. The STATE may offset against any monies or other obligations the STATE owes to the CONTRACTOR under this Contract, any amounts owed to the State of Hawaii by the CONTRACTOR under this Contract or any other Contracts or pursuant to any law or other obligation owed to the State of Hawaii by the CONTRACTOR, including, without lirmtauon, the payment of any taxes or levies of any kind or nature. The STATE will notify the CONTRACTOR in wrrting 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 orily 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. I1. 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. ]2. 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 stogyperformance. The Agency procurement officer, may, by written order to the CONTRACTOR, at any time, and without notice to any surety, require the CONTRACTOR to stop all or any part of the performance called for by this Contract. This order shall be for a specified period not exceeding sixty (60) days after the order is delivered to the CONTRACTOR, unless the parties agree to any further period. Any such order shall be identified specifically as a stop performance order issued pursuant to this section. Stop work orders shall not exceed sixty consecutive days and shall include, as appropriate: (1) A clear description of the work to be suspended; (2) Instructions as to the ]ssuance of further orders by the CONTRACTOR for material or services; (3) Guidance as to action to be taken on subcontracts; and (4) Other inswctions and suggestions to the CONTRACTOR for minimizing costs. Upon receipt of such an order, the CONTRACTOR shall forthwith comply with its terms and suspend all performance under this Contract at the time stated, provided, however, the CONTRACTOR shall take al] 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 wlthtn any further period to which the parties shall have agreed, the Agency procurement officer shall either: Cancel the stop performance order; or Q Form AG2-GC(1/O]) ~~ii1HC'C ~ i (2) -Terminate the performance covered by such order- as provided in the termination for default provision or the termination for convenience provision of this Contract. b. Cancellation or expiration of the order. If a stop performance order issued under this section is cancelled at any time during the period specified in the order, or if the period of the order or any extension thereof expires, the CONTRACTOR shall have the right to resume performance. An appropriate adjustment shall be made in the delivery schedule or Contract price, or both, and the Contract shall be modified in writing accordingly, if: (1) The stop performance order results in an increase in the time required for, or in the CONTRACTOR's cost properly allocable to, the performance of any part of this Contract; and , (2) The CONTRACTOR asserts a claim for such an adjustment within thirty (30) days after the end of the period of performance stoppage; provided that, if the Agency procurement officer decides that the facts justify such action, any such claim asserted may be received and acted upon at any time prior to final payment under this Contract. c. Termination of stopped performance. If a stop performance order is not cancelled and the performance covered by such order is terminated for default or convenience, the reasonable costs resulting from the stop performance order shall be allowable by adjustment or otherwise. d. Adiustment of price. Any adjustment in contract price made pursuant to this paragraph shat] be determined in accordance with the price adjustment provision of this Contract. 13. Termination for Default. a. Default. If the CONTRACTOR refuses or fails to perform any of the provisions of this Contract with such diligence as will ensure its completion within the time specified in this Contract, or any extension thereof, otherwise fails to timely satisfy the Contract provisions, or commits any other substantial breach of this Contract, the Agency procurement officer may notify the CONTRACTOR in writing of the delay or non-performance and if not cured in ten (10) days or any longer time specified in writing by the Agency procurement officer, such officer may terminate the CONTRACTOR'S right to proceed with the Contract or such part of the Contract as to which there has been delay or a failure to properly perform. In the event of termination in whole or in part the Agency procurement officer may procure similar goods or services in a manner and upon the terms deemed appropriate by the Agency procurement officer. The CONTRACTOR shall continue performance of the Contract to the extent it is not terminated and shall be liable for excess costs incurred in procuring similar goods or services. b. CONTRACTOR'S duties. Notwithstanding termination of the Contract and subject to any directions from the Agency procurement officer, the CONTRACTOR shall take timely, reasonable, and necessary action to protect and preserve property in the possession of the CONTRACTOR in which the STATE has an interest. 5 Forth AG2-GC(] /01) CXHi~fT 6 c. Compensation. Payment for completed.goods and services delivered and accepted by the STATE shall be at the pace 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. ]f the partles 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 procurement officer deems to be necessary to protect the STATE against loss because of outstanding liens or claims and to reimburse the STATE for the excess costs expected to be incurred by the STATE in procuring similar goods and services. d. Excuse for nonperformance or delayed performance. The CONTRACTOR shall not be in default by reason of any failure in performance of this Contract in accordance with its terms, including any failure by the CONTRACTOR to make progress in the prosecution of the performance hereunder which endangers such performance, if the CONTRACTOR has notified the Agency procurement officer wrthin fifreen (IS) days after the cause of the delay and the failure arises out of causes such as: acts of God; acts of a public enemy; acts of the State and any other governmental body in its sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather. If the failure to perform is caused by the failure of a subcontractor to perform or to make progress, and if such failure arises out of causes similar to those set forth above, the CONTRACTOR shall not be deemed to be in default, unless the goods and services to be furnished by the subcontractor were reasonably obtainable from other sources in sufficient time to permit the CONTRACTOR to meet the requirements of the Contract. Upon request of the CONTRACTOR, the Agency procurement officer shall ascertain the facts and extent of such failure, and, if such officer determines that any failure to perform was occasioned by any one or more of the excusable causes, and that, but for the excusable cause, the CONTRACTOR's progress and performance would have met the terms of the Contract, the delivery schedule shall be revised accordingly, subject to the rights of the STATE under this Contract. As used in this paragraph, the term "subcontractor" means subcontractor at any tier. e. Erroneous termination for default. If, after notice of termination of the CONTRACTOR'S right to proceed under this paragraph, it is determined for any reason that the CONTRACTOR was not in default under this paragraph, or that the delay was excusable under the provisions of subparagraph 13d, "Excuse for nonperformance or delayed performance," the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to 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/Ol) 14. Termination for Convenience. a. Termination. The Agency procurement officer may, when the interests of the STATE so require, terminate this Contract in whole or m part, for the convenience of the STATE. The Agency procurement officer shall give written notice of the termination to the CONTRACTOR specifying the part of the Contract terminated and when termination becomes effective. b. CONTRACTOR'S obli atg ions. The CONTRACTOR shall incur no further obligations in connection with the terminated performance and on the date(s) set in the notice of termination the CONTRACTOR will stop performance to the extent specified. The CONTRACTOR shall also terminate outstanding orders and subcontracts as they relate to the terminated performance. The CONTRACTOR shall settle the liabilities and claims arising out of, the termination of subcontracts and orders connected with the terminated performance. The Agency procurement officer may direct the CONTRACTOR to assign the CONTRACTOR's right, title, and interest under terminated orders or subcontracts to the STATE. The CONTRACTOR must still complete the performance not terminated by the notice of termination and may incur obligations as necessary to do so. 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: Any completed goods or work product; and (2) The partially completed goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights (hereinafter called "manufacturing material") as the CONTRACTOR has specifically produced or specially acquired for the performance of the terminated part of this Contract. The CONTRACTOR shall, upon direction of the Agency procurement officer, protect and preserve property In the possession of the CONTRACTOR in which the STATE has an interest. If the Agency procurement officer does not exercise this right, the CONTRACTOR shall use best efforts to sell such goods and manufacturing materials. Use of this paragraph in no way implies that the STATE has breached the Contract by exercise of the termination for convenience provision. d. Compensation. (1) The CONTRACTOR shall submit a termination claim specifying the amounts due because of the termination for convenience together with the cost or pricing data, submitted to the extent required by 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 ]4d(3) below. J Form AG2-GC(I /ol ) - (2~-~-he Agenc~~rocurement officer and the CONTRACTOR may agree to a settlement provided the CONTRACTOR has filed a termination claim supported by cost or pricing data submitted as required and that the settlement does not exceed the total Contract price plus settlement costs reduced by payments previously made by the STATE, the proceeds of any sales of goods and manufacturing materials under subparagraph 14c, and the Contract price of the performance not terminated. (3) Absent complete Contract under subparagraph 14d(2) the Agency procurement officer shall pay the CONTRACTOR the following amounts, provided payments agreed to under subparagraph ] 4d(2) shall not duplicate payments under this subparagraph for the following: (A) Contract prices for goods or services accepted under the Contract; (B) Costs incurred in preparing to perform and performing the terminated portion of the performance plus a fair and reasonable profit on such portion of the performance, such profit shall not include anticipatory profit or consequential damages, less amounts paid or to be paid for accepted goods or servtces; 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 ]4b. These costs must not include costs paid in accordance with subparagraph 14d(3)(B); (D) The reasonable settlement costs of the CONTRACTOR including accounting, legal, clerical, and other expenses reasonably necessary for the preparation of settlement claims and supporting data with respect to the terminated portion of the Contract and for the termination of subcontracts thereunder, together with reasonable storage, transportation, and other costs incurred in connection with the protection or disposition of property allocable to the terminated portion of this Contract. The total sum to be paid the CONTRACTOR under this subparagraph shall not exceed the 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 l4d(3) shall be in accordance with Chapter 3-123 (Cost Principles) of the Procurement Rules. g Form AG2-GCp/Ol) ~P`4'.6"~~~~~ I5. Claims-Based on the Agency Procurement Officer's Actions or Omissions a. Chances in scone. If any action or omission on the part of the Agency procurement officer (which term includes the designee of such officer for purposes of this paragraph 15) requiring performance changes within the scope of the Contract constitutes the basis for a claim by the CONTRACTOR for additional compensation, damages, or an extension of time for completion, the CONTRACTOR shall continue with performance of the Contract in compliance with the directions or orders of such officials, but by so doing, the CONTRACTOR shall not be deemed to have prejudiced any claim for addittonal compensation, damages, or an extension of time for completton; 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 exRlained. 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 wtth 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 faint in issuing or performing change orders which are clearly not within the scope of the Contract. 9 Form AG2-GC(1/Ol) - e. - Price- adjustment. Any adjustment in-the-price-made pursuant to this paragraph shall be determined in accordance with the price adjustment provision of thts 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. Reimbursement for air vansportation shall be for actual cost or coach class air fare, whichever is less. b. Reimbursement for ground transportation costs shall not exceed the actual cost of renting an intermediate-sized vehicle. c. Unless prior written approval of the 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 due and certifying that services requested under the Contract have been performed by the CONTRACTOR according to the Contract. b. Subject to available funds. Such payments are subject to availability of funds and allotment by the Director of Finance in accordance with chapter 37, HRS. Further, all payments shall be made in accordance with and subject to chapter 40, HRS. c. Prompt payment. (1) Any money, other than retainage, paid to the CONTRACTOR shall be dispersed to subcontractors wtthtn ten days after receipt of the money in accordance with the terms of the subcontract; provided that the subcontractor has met al] 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 wrthtn ten days after receipt of the money; provided that there are no bona fide disputes over the subcontractor's performance under the subcontract. d. Final payment. Final payment under this Contract shall be subject to sections 103-53 and 237-45, 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(1/Ol) +r~s, rx~:~v • ' / l8. Federal Funds. ]f this Contract is payable in whole or in part from federal funds, CONTRACTOR agrees that, as to the portion of the compensation under this Contract to be payable from federal funds, the CONTRACTOR shall be-paid orily from such funds received from the federal government, and shall not be paid from any other funds. l9. Modifications of Contract. a. ]n writine. Any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Contras 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 permined. c. Agency procurement officer. By a written 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 al] appropriate adjustments, may make modifications within the general scope of this Contract 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 Contract accomplished by mutual action of the parties to the Contract. d. Adiustments of~rice or time for performance. ]f any modification increases or decreases the CONTRACTOR's cost of, or the time required for, performance of any part of the work under this Contract, an adjustment shall be made and this Contract modified in writing accordingly. Any adjustment in Contract price made pursuant to this clause shall be detei7r»ned, where applis+ble, in accordance witt? the price adjustment clause of this Contract or as negotiated. e. Claim barred after final i~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. In 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. ] ] Form AG2-GC(1/01) ~~k~~~9~ g. -Cl?O-appr-oral. If.this is__a_professional services_Contract awarded pursuant to section 103D-303 or 103D-304, HRS, any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Contract which increases the amount payable to the CONTRACTOR by at least $25,000.00 or ten per cent (10%) of the initial Contract price, whichever increase is higher, must receive the prior approval of the CPO. h. Tax clearance. The STATE may, at its discretion, require the CONTRACTOR to submit to the STATE, prior to the STATE's approval of any modification, alteration, amendment, change, or extension of any term, provision, or condition of this Contract, a tax clearance from the Director of Taxation, State of Hawaii, showing that all 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 only be made with the approval of the CPO. Annual renewal of a sole source Contract for services should no[ be submitted as an amendment. 20. Change Order. The Agency procurement officer may, by a written order signed only by the STATE, at any time, and without notice to any surety, and subject to al] appropriate adjustments, make changes within the genera] 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. If any change order increases or decreases the CONTRACTOR'S cost of, or the time required for, performance of any pan of the work under this Contract, whether or not changed by the order, an adjustment shall be made and the Contract modified in writing accordingly. Any adjustment in the Contract price made pursuant to this provision shall be determined in accordance with the price adjustment provision of this Contract. Failure of the parties to agree to an adjustment shall not excuse the CONTRACTOR from proceeding with the Contract as changed, provided that the Agency procurement officer promptly and duly makes the provisional adjustments in payment or time for performance as may be reasonable. By 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 neriod for claim. Within thirty (30) days after receipt of a written change order under subparagraph 20a, uriless the period is ex[ended 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. 12 Form AG2-GC(1/01} '~..~'s .l`?`~E~~T c. Claim barred after final pa~ment• No claim by the CONTRACTOR for an adjustment hereunder shall be allowed if notice is not given prior to final payment under this Contract. d. Other claims not barred. In the absence of ,a change order, nothing in this paragraph 20 shall be deemed to restrict the CONTRACTOR'S right to pursue a claim under the Contract or for breach of conVact. 21. Price Adjustment. a. Price adjustment. Any adjustment in the Contract price pursuant to a provision in this Contract shall be made in one or more of the followtng 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 ConVact or subsequently agreed upon; (4) In such other manner as the parties may mutually agree; or (5) In the absence of Contract 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 m 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 pricin~.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 Quantity 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 (10%); provided the unit prices will rematn 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 award 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 the general scope of the Contract in any one or more of the following: Description of performance (Attachment 1); 13 Forth AG2-GC(1/01) C~~F..~.l€ (2j - ~'ime of-perfor~anee-(ire., 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 furnished are to be specially manufactured for the STATE in accordance with the drawings, designs, or specifications; (5) Method of shipment or packing of supplies; or (6) Place of delivery. b. If any change causes an increase or decrease in the estimated cost of, or the time required for performance of, any part of the performance under this Contract, whether or not changed by the order, or otherwise affects any other terms and conditions of this Contract, the Agency procurement officer shall make an equitable adjustment in the (1) estimated cost, delivery or completion schedule, or both; (2) amount of any fixed fee; and (3} other affected terms and shall modify the Contract accordingly. c. The CONTRACTOR must assert the CONTRACTOR's rights to an adjustment under this provision within thirty (30) days from the day of receipt of the written order. However, if the Agency procurement officer decides that the facts justify it, the Agency procurement officer may receive and act upon a proposal submitted before final payment under the Contract. d. Failure to agree to any adjustment shall be a dispute under paragraph 11 of this Contract. However, nothing in this provision shall excuse the CONTRACTOR from proceeding with the Contract as changed. e. Notwithstanding the terms and conditions of subparagraphs 23a and 23b, the estimated cost of this Contract and, if this Contract is incrementally funded, the funds allotted for the performance of this Contract, shall not be increased or considered to be increased except by specific written modification of the Contract indicating the new Contract estimated cost and, if this Contract is incrementally funded, the new amount allotted to the Contract. 24. Confidentiality of Material. a. All material given to or made available to the CONTRACTOR by virtue of this Contract, which is identified as proprietary or confidential information, will be safeguarded by the CONTRACTOR and shall not be disclosed to any individual or organization without the prior written approval of the STATE. b. All information, data, or other material provided by the CONTRACTOR to the STATE shall be subject to'the Uniform Information Practices Act, chapter 92F, HRS. 25. Publicity. The CONTRACTOR shall not refer to the STATE, or any office, agency, or officer thereof, or any State employee, including the head of the purchasing agency, the CPO, the DIRECTOR, the Agency procurement officer, or to the services or goods, or 14 Form AG2-GC(1/Ol) 4 I 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. Ownershi~Ri~hts and Convrieht. The STATE shall have complete ownership of atl 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 the Agency purchasing officer and timely certified as accurate for contracts over $]00,000 unless the contract is for amultiple-term or as otherwise specified by the procurement officer. Uriless otherwise required by the Agency procurement officer, cost or pricing data submission is not required for Contracts awarded pursuant to competitive sealed bid procedures. If certified cost or pricing data are subsequently found to have been inaccurate, incomplete, or noncurrent as of the date stated in ttte certificate, the STATE is entitled to an adjustment of the contract price, including profit or fee, to exclude any significant sum by which the price, including profit or fee, was increased because of the defective data. ]t is presumed that overstated cost or pricing data increased the contract price in the amount of the defect plus related overhead and profit or fee. Therefore, unless there is a clear indication that the defective data was not used or relied upon, the price will be reduced in such amount. 30. Audit of Cost or Pricing Data. When cost or pricing principles are applicable, the STATE may require an audit of cost or pricing data. 31. Records Retention. 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 finai payment under the Contract. 32. Antitrust Claims. The STATE and the CONTRACTOR recognize that in actual economic practice, overcharges resulting from antitrust violations are to fact usually borne by the purchaser. Therefore, the CONTRACTOR hereby assigns to STATE any and all clatms 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 1S Form AG2-GC(I/O]) = r~„r ~,J:.r Sr~~ kl established under this Contract and which-are-not. passed-on to the STATE under an escalation clause. 33. Patented Articles. The CONTRACTOR shall defend, indemnify, and hold harmless the State 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 al] claims, suits, and demands artsrng out of or resulting from any claims, demands, or actions by the patent holder for infringement or other improper or unauthorized use of any patented article, patented process, or patented appliance in connection with this Contract. The CONTRACTOR shall be solely responsible for correcting or curing to the satisfaction of the STATE any such infringement or unproper or unauthortzed use, including, without ]imitation: (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. Governi~ 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 Genera] Conditions and Procurement Rules. In the event of a conflict between the General Conditions and the Procurement Rules, the Procurement Rules in effect on the date this Contract became effective shall control and are hereby incorporated by reference. 37. Entire Contract. This Contract sets forth all of the 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, warranties, and representations, which shall have no further force or effect. There are 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 unenforceabiliry 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. 16 Form AG2-GC(]/Ol) ~w~=r f:~>-~ ~ C`s i r,,.. ! SPECIAL CONDITIONS 1 Reporting and Record Keeping Requirements 1.1 In order for the STATE to monitor PROVIDER'S compliance with this Agreement, PROVIDER shall submit to the STATE financial reports using the instructions and forms contained in the Area Agency on Aging Reporting Handbook, written quarterly progress reports, and data reports, including the State Program Report (SPR) dated November 2004, the Nutrition Service Utilization Profile, the Service Utilization and Expenditures Profile for Al] Services, the KUPUNA CARE Service Needs Tracking Report, the Staff 1 & A Outreach and Public Education Activities Report, and the State Variance Report, and any other reports that may be requested by the STATE (See Exhibit F). All quarterly reports are due within twenty (20) days after the last day of each calendar quarter during the period of this Agreement. All subcontracts entered into by PROVIDER to implement Exhibit "A," Scope of Services, of this Agreement shall include provisions that facilitate the reporting requirements of this Exhibit and allow PROVIDER to comply with this timetable. In addition to the quarterly written progress and financial reports, PROVIDER shall, upon request, meet with representatives of the STATE to discuss the progress of the work to be provided under this Agreement. The PROVIDER shall submit a Quarterly Table of any reallocation of service funds between the State KUPUNA CARE (KC) services, KC Vendored Services, and KC Administration based on the KUPUNA CARE Guidelines for reallocation. 1.2 PROVIDER shall, at the completion of each fiscal year, submit to the STATE a written annual report, an annual financial report, an inventory of all facilities that received STATE funds for construction, acquisition, renovation or alteration, and HA-2006/2007-2(A) EXHIBIT E Page 1 an inventory of all equipment that cost One Thousand Dollars ($1000.00) or more that was purchased with funds furnished under this Agreement. The written annual report shall include PROVIDER'S documentation of its overall efforts towards meeting the requirements of this Agreement. All annual reports are due within sixty (60) days of the last day of each fiscal year of this Agreement. In addition, PROVIDER shall ensure that it is capable of furnishing any additional reports or information that the STATE may, from time to time, require or request. 1.3 PROVIDER shall ensure that PROVIDER'S subcontractors provide the required data and reports that may include, but are not limited to, statistical data, program narratives, financial or billing reports, and any other reports requested by the Executive Office on Aging (EOA) or the contracting PROVIDER. 1.4 PROVIDER shall ensure that PROVIDER'S subcontractors maintain fiscal records, supporting documents, and related files, papers, receipts, reports and other evidence that sufficiently and properly reflect all direct and indirect expenditures, management, and fiscal practices related to PROVIDER's performance and the subcontractor's performance under this Agreement in accordance with generally accepted accounting procedures. PROVIDER shall ensure that PROVIDER'S own fiscal records, supporting documents, and related files, papers, receipts, reports as well as fiscal records, supporting documents, and related files, papers, receipts and reports of each of PROVIDER'S subcontractors, are available for inspection, reviews or audits at all reasonable times by the STATE, Department of Budget and Finance, the State Department of Accounting and General Services, State legislators, the Legislative Auditor, or their duly authorized representatives. HA-2006/2007-2(A) EXHIBIT E Page 2 1.5 PROVIDER and PROVIDER'S subcontractors shall allow the STATE, State Department of Budget and Finance, the State Deparhnent of Accounting and General Services, State legislators and Legislative Auditor, or their duly authorized representatives, to inspect and to have access to any documents, papers, books, records, and other evidence pertinent to this Agreement and necessary to enable said agencies or persons to conduct surveys, audits, and examinations of PROVIDER, PROVIDER'S subcontractors', and vendors' performance. 1.6 PROVIDER shall comply with all ordinances, codes, rules, and regulations of the federal, state, and local government that affect PROVIDER'S performance under this Agreement, and shall require the same compliance from the PROVIDER'S subcontractors and vendors. 1.7 PROVIDER shall ensure that any subcontract PROVIDER enters into specifically incorporates or otherwise ensures that the requirements of this exhibit aze applicable to, and are satisfied by, the PROVIDER'S subcontractors so as to facilitate PROVIDER'S compliance with these requirements. 2 STANDARDS OF CONDUCT DECLARATION, Exhibit "C," shall not be applicable to PROVIDER if the PROVIDER is a county agency or another state agency, provided that the provisions of Exhibit "C" shall apply to a private recipient or subcontractor. The PROVIDER shall ensure that the provisions and limitations contained in Exhibit "C" are binding upon all PROVIDER'S subcontractors as applicable. HA-2006/2007-2(A) EXHIBIT E Page 3 3 PROVIDER'S subcontractors shall maintain insurance for comprehensive liability, workers compensation, and adequate insurance for volunteers for the duration of the contract period in the amounts specified by PROVIDER. PROVIDER shall retain insurance certificates and provide the Executive Office on Aging (EOA) with a valid insurance certificate. 4 PROVIDER shall monitor and evaluate each state-funded subcontract with the PROVIDER organization at least annually to ensure compliance with the KUPUNA CARE Guidelines dated April 1999 and the KUPUNA CARE Service Specifications dated October 2004, the public purpose, legislative intent of providing funds for services, and to determine whether the subcontract(s) attained the intended results in the manner contemplated. PROVIDER shall conduct at least one annual onsite visit and maintain an annual written report including findings, recommendations, and a corrective action plan by PROVIDER's subcontractors. Copies of the annual onsite visit report for each subcontractor shall be transmitted to the EOA with the other annual reports (see paragraph 1.2) due sixty (60) days after the close of the fiscal period. 5 The PROVIDER shall ensure that its subcontractors and vendors comply with the following Administrative Standards: 5.1 The subcontractor shall have procedures to receive and accept clients into its program. 5.2 The subcontractor shall have a procedure to receive authorization from their respective Area Agency on Aging (AAA) or designee to provide service. I3A-2006/2007-2(A) EXHIBIT E Page 4 5.3 The subcontractor shall maintain a record of the number of service hours provided, name, birth date, and social security number (or unique identifier number) for each client served and authorized by the Area Agency on Aging. 5.4 The subcontractor shall have written policies and procedures to keep client information confidential. 5.5 The subcontractor shall deliver the stated service in a timely fashion (i.e. number of days it normally takes from the request to the delivery of service), and what measures the subcontractor will take if the service cannot be delivered within a specified number of days. 5.6 The subcontractor shall maintain a list of clients waiting for KUPUNA CARE services and a list of related unmet needs identified by the client. The count and reasons for clients remaining on the waitlist are to be submitted monthly, and plans and timeline for reducing the wait list numbers are to be identified. 5.7 The subcontractor shall have written termination and grievance policies and procedures that are consistent with the Area Agency's policies and procedures. All clients shall receive copies of the termination and grievance policies during the initial assessment. 5.8 The subcontractor may terminate services according to the specifications in the individual care or service plan, or by the wishes of the client and/or the caregiver, or by agreement between client and the service subcontractor. 5.9 The subcontractor shall have written policies and procedures to obtain the client's written consent to transmit client information and service utilization data from the selected subcontractor to the Area Agency on Aging and the EOA. 5.10 The subcontractor shall have written policies and procedures to inform clients that they maybe asked to participate in research studies to measure the effectiveness HA-2006/2007-2(A) EXHIBIT E Page 5 and quality of the service they have received and to explore possible services the state and county may offer. 5.11 The subcontractor shall advertise its service as part of the KUPUNA CARE program. 5.12 The subcontractor shall acknowledge that the service is a KUPUNA CARE service that is funded partially/fully with State funds in its publications of brochures, pamphlets, flyers, and other community correspondences related to the services. 5.13 The subcontractor shall have a mechanism to promote service quality. The sub- contractor shall conduct an evaluation of efficiency, effectiveness, and quality of service, including evaluation by the client. 5.14 The subwntractor shall include information as to each subcontractor's service, facility, address, hours, and days of operation. 5.15 The subcontractor shall keep financial and program records for its contract with PROVIDER separate from other funds and contracts it administers. 5.16 The subcontractor shall accept voluntary contributions as identified by EOA and provide additional units of service for voluntary contributions. 6 The PROVIDER shall ensure that PROVIDER'S subcontractors and vendors comply with the following Personnel Standazds: 6.1 All personnel shall be of good character and integrity. 6.2 All personnel shall provide at least two non-family references. All references (written and verbal) shall be contacted and the results documented in the staff s personnel record folder. 6.3 All personnel shall be qualified to work with functionally and cognitively impaired older persons, either through training or experience, as described in the job description. HA-2006/2007-2(A) EXHIBIT E Page 6 6.4 All personnel shall attend anorientation/training provided by the subcontractor. The orientation/training shall include, at a minimum, safety and emergency situations and ethical factors to carry out their work assignments. 6.5 All personnel shall be cuiturally sensitive to the ethnic groups represented in the client population. 6.6 The subcontractors shall ensure that all personnel have written job descriptions. 6.7 The subcontractors shall provide all personnel staff with anagency/PROVIDER identification card or badge. The card or badge shall include the name of the agency, the staffs name, date of issuance, and photograph. 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