HomeMy WebLinkAboutCOM 0082.060 2004-2006 I ~ J~84r Q?' N'gBY
Harry Kim ~ Alan R. Parker
Muynr ~Gues'
L•.reculfie nn Aging
..,k par.,-~~
BT'•.~, P
'~A OF ~qeA~
~ounty o~ ~-Iawaii
OFFICE OF AGING
I lilo Laeuon Centre. 101 Aupuni Street, Suite 342. I lily llawai'i 96720-4262
Phone (R08) 961-8600 • Pax (808) 961-8603
I lanama Place. 75-5706 Kuakini I lighway, Suite 106, Kailua-Kona. Hawaii 96740-1751
Phone (808) 327-3597 • Fax (808) 327-3599
DATE: August 26, 2005
TO: Stacy K. Higa, Council Chair and Council Members
VIA: Deanna Ssnko, ontroller
v~'~ ~ ~
FROM: Alan Parker, xecutive on Aging
RE: NOTIFICATION OF GRANT AWARD
Compliance with Ordinance No. 05-86, Section 7(1)
Name of Grant Program: Area Plan on Aging
Grantor: Dept. of Health, Executive Office of Aging
County Grantee Department or Agency: Hawaii County Office of Aging
Grant No. (IF KNOWN): HA-2006-1(N)
Amount of Grant: $902,401.00 = $224,240.00 (FY05); $678,161.00 (FY06)
Amount of County Match: $120,000.00
County Rev. & Exp. Account Numbers: #3301.04 & #010-411-5411.09 to 10 - $431,201.00 (HCOA)
#3301.01 & #010-481-5483.01 to .03 - $301,200.00 (HCNP)
#3301.15 & #010-481-5481.01 to .03 - $170,000.00 (CSE)
Grant Period (Commence. & Completion): July 1, 2005 to June 30, 2006
Purpose of Grant: To provide the supportive social services, recreational and cultural
programs, congregate and home delivered nutrition services, in-
home services, and preventive health services described in the
State approved Area Plan for the County of Hawaii.
Is final report required by grantor? ~ Yes ~ No
Notification attached: OX Yes ? No ~j
Raf. T~
c~: Packs & Recreation R~$. I~c~to
1
Umrai 'f (~ntu~lr ~,c an eUuu! op~~orh~nrq~ prarider and entpk»~er An : I reu Agency orr .dging
LINDA LINGLE PAT SASAKI
GOVERNOR OF RAWAII r,. ,ess> v E%ECUTIVE DIRECTOR
i
CHIYOME L FUKINQ M.D. 6~~ Telephone
DIRECTOR OF HEALTH
1808) 5860100
Ao~
Fax
STATE OF HAWAII leael5ae.oles
EXECUTIVE OFFICE ON AGING
NO. 1 CAPITOL DISTRICT
250 SOUTH HOTEL STREET, SUITE 406
HONOLULU, HAWAII 96813-2831
DATE RECEIVED s ~ y - r,.~
CI;tCULATE Tip i'~
June 13, 2005 -
AC~I;;f. SY
' UAfE DUE TO
FILE
TO: Alan Parker
County Executive
Hawaii County Office of Aging
FROM: Pat Sasa 1
Executi e irector
Executiv ffice on Aging
SUBJECT: HA-2006-1(N)
Enclosed is your consummated file copy of Contract No. HA-2006-1(N) with the Executive
Office on Aging. The contract is to implement the provisions of the Older Americans Act, as
amended.
Our Deputy Attorney General requested that we change the formatting of the Compensation and
Payment Schedule (Exhibit B). The wording is still the same. In addition, she had a wording
change to the Special Conditions, Exhibit E, Page 4, item number 7. The original wording was:
7. The PROVIDER shall submit to the State a copy of each of its subcontractors'
consummated contracts, Memorandums of Agreement, and supplemental agreements
if any for the term of this Agreement.
She changed the word "consummated" to "fully executed." 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
STATE OF HAWAII
AGREEMENT FOR HEALTH AND HUMAN SERVICES:
TRANSACTIONS EXEMPT FROM CHAPTER 103F, HRS
This Agreement, executed on the respective dates of the signatures of the
parties shown hereafter, is effective as of (date), July 1, 2005
between the (agency) Department of Health
State of Hawaii (the "STATE"), by its Executive Director, Executive Office on Aging
(the "DIRECTOR"), whose address is 250 South Hotel Street, Suite 406, Honolulu, Hawaii
96813-2831 and County of Hawaii, by and through its County Council and its Mayor (the
"PROVIDER"), a (government entity/corporation/partnership/sole proprietorship/other
business form) local government entity
whose business address and taxpayer identification number are: ]Ol Aupuni Street. Suite
342, Hilo, Hawaii 96720 TIN 99-6001257
RECITALS
A. This Agreement is for a purchase of health and human services that is
exempt from the requirements of Chapter 103F, HRS because:
? this Agreement is between or among government agencies as provided
in Section 103F-101(a)(2), HRS;
? this Agreement is to award grants or subsidies of state funds
appropriated by the legislature to a specific organization as provided
in Section 103F-101(a)(1), HRS, and Section 3-141-503(a)(2), HAR, or
to award subawards and subgrants to specific organizations directed
by the funding source as provided in Section 3-141-503(a)(1);
® this Agreement is wholly or partly funded from federal sources that
conflict with the procedures and requirements established by Chapter
103F, HRS, and its implementing regulations;
? this Agreement is wholly or partly funded from federal sources that
(1) identifies a target class of beneficiaries, (2) defines the
requirements for a provider to be qualired to participate in the
federal program, and (3) has the price of the provided health and
human services dictated by federal law;
EXEMPT TRANSACTIONS
Page 1 Form AG3-Exempt (4/99)
HA-2006-1(N)
? 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. Mouey has been appropriated for the purchase of the Required Services by:
(1) (identify state sources) , or
(2) (identify federal sources) Older Americans Act Fuuds ,both,
in the following amounts:
State: $ -0-
Federal: $902,401
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 resolutious 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 a
limited liability company operating agreement;
EXEMPT TRANSACTIONS
Page 2 Form AG3-Exempt (4/99)
HA-2006-1(N)
? 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 of 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 tbis 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,
2008, unless this Agreement is sooner terminated.
3. Compensation. The PROVIDER shall be compensated
® in a total amount for all required services not to exceed Nine Hundred
Two Thousand, Four Hundred One DOLLARS ($902 401 ,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
far each such referral shall be made according to Exhibit "B" to this
Agreement, which is attached, and made a part of this Agreement.
EXEMPT TRANSACTIONS
Page 3 Form AG3-Exempt (4/99)
HA-2006-1(N)
The STATE shall provide a minimum of 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, 2008 No amendment to the
PROVIDER'S Final Project Report shalt be considered after (date) Seatember 30, 2008.
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 96813-2831. 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 1]51 Punchbowl Street, Room 230A, Honolulu, 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-Exempt (4/99)
HA-2006-1(N)
IN WITNESS WHEREOF, the STATE and PROVIDER have executed this
Agreement effective as of the date first above written.
EXECUTIVE OFFICE ON AGING
sy
I Executive Director
PROVIDER
COUN(TYO''F--H~A//WAII
Its ~ oun of Hawaii
RECOMMEND APPROVAL:~^ /
~r.n.. s~~«'t'a~-tom
Hawaii County Office of Aging
County Executive
A~PPMROV~ED AS TO FORM AND LEGALITY:
~A•' -
-BeputyCorporation Counsel
County of Hawaii
APPROVED AS TO FORM:
~De ttorney General
State of Hawaii
*Evidence of authority of the PROVIDER'S representative to sign this agreement for the PROVIDER must
be attached.
EXEMPT TRANSACTIONS
Page 5 Form AG3-Exempt (4/99)
HA-2006-1(N)
PROVIDER'S ACKNOWLEDGMENT
Sate of Hawaii )
) SS.
County'o~'Hawaii )
On this ~\y of ,before me personally appeared
to me personally known, who being by me duly sworn, did say
that he/she is the of
the PROVIDER named in the regoing instrument, and that be/she is authorized
to sign said instrument on behalf of the PR IDER, as provided in Recital E of the
foregoing Agreement, and acknowledges that be/s executed said instrument as the free
act and deed of the PROVIDER.
Notary Public,
My commission expires:
EXEMPT TRANSACTIONS
Page 6 Form AG3-Exempt (4/99)
HA-2006-I(N)
SCOPE OF SERVICES
(Federal OAA)
PROVIDER shall, in a satisfactory and proper manner as determined by the
STATE and in accordance with the ternis and conditions of this Agreement, use the Older
Americans Act (OAA) funds received under this Agreement to provide and implement the
following authorized services described in the OAA: Part B: Supportive Services, Part C:
Nutrition Services, including Congregate (C1) and Home Delivered Nutrition Services (C2), Part
D: Disease Prevention and Health Promotion Services specifically including activities related to
medication management, screening and education to prevent incorrect medication and adverse
drug reaction, pursuant to the Consolidation Appropriation Act, 2001 (P.L. 106-554), and Part E:
National Family Caregiver Support Program as described in the STATE approved 2004 - 2007
Area Plan for the County of Hawaii which is incorporated herein by reference. 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 and must be followed as prescribed or as requested by the state agency.
EXHIBIT "A"
Page 1
HA-2006-1(N)
COMPENSATION AND PAYMENT SCHEDULE
(Federal OAA}
1 COMPENSATION
1.1 Subject to continuing availability of funds, the STATE agrees to pay PROVIDER
for services satisfactorily performed under this Agreement a sum not to exceed
NINE HUNDRED TWO THOUSAND, FOUR HUNDRED ONE Dollars
($902,401} 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, and other incidentals and operating expenses that PROVIDER
incurs in the performance of this Agreement. It is strictly understood and agreed
by PROVIDER that the sum payable under this Agreement shall be paid only
upon receipt by the STATE of those federal 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 Department of
Health and Human Services (DHHS}.
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 subject to, the provisions of
EXHIBIT "B"
Page 1
HA-2006-1(N)
Chapter 7, Request for Payments (Area Agency on Aging Reporting Handbook)
and are subject to the following appropriate Federal or State provisions:
2.2.1 Federal-Older American Act Funds
2.2.1.1 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.
2.2.1.2 Program income, and interest or investment income, hereinafter
referred to as "income," that is collected or earned by PROVIDER
or any of its subcontractors as a result of activities supported by
funds provided to PROVIDER under this Agreement, shall be
retained by PROVIDER or subcontractors earning such income
and shall be spent for the expanded level of services prior to using
funds provided under this Agreement. Any income in excess of the
amount projected in the allocation plan for the expanded level of
services shall also be spent prior to using funds provided under this
Agreement.
2.2.1.3 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.
EXHIBIT "B"
Page 2
HA-2006-1(N)
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This form is inoperable between the State
and the Provider
STANDARDS OF CONDUCT DECLARATION
For the purposes of this declaration:
"Agenry" means and inc]udes the State, the legis]ature and its committees, all executive
departments, boards, commissions, committees, bureaus, offices, the University of Hawaii,
and all independent commissions and other establishments of the state government but
excluding the courts.
"Controlling interest" means an interest in a business or other undertalang which is
sufficient in fact to control, whether the interest is greater or less than fifty per cent (5090).
"Employee" means any nominated, appointed, or elected officer or employee of the State,
including members of boards, commissions, and committees, and employees under contract
to the State or of the constitutional convention, but excluding legislators, delegates to the
constitutional convention, justices, and judges.
On behalf of ,PROVIDER, the undersigned does
declare as follows:
1. PROVIDER (is~ (is notL a legislator or an emp]oyee 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 ]egislator 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 We 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 Agenry within the preceding
two (2) years and wbo 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 mallets related to this
Agreement, for a fee or other consideration by an individual who, within the past twelve
(12) months, has been an Agenry employee, or in the case of the Legislature, a legislator.
Exhibit "C"
Page 1
HA-200b-](N)
6. PROVIDER bas not been represented or assisted in the award of this Agreement
for a fee or other consideration by an individual who, a) within the pazt twelve (12) months,
served az 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 aay provision of
chapter 84, HRS, commonly referred to az the Code of Ethicx, including the. provisions
which are the source of the declarations above. Additionally, any fee, compensation, gift,
or profit received by any person az a result of a violatioa of the Code of Ethics may be
recovered by the STATE.
DATED: Honolulu, Hawaii, ,
PROVIDER
By
Title
'Reminder to Agency: if "is" is circled, the Agency is required, under section 84-15, HRS,
to file with the State Ethics Commission, ten (1Q) days before the Agreement is entered
into, a written justification az to why the Agreement was not required to be competitively
bid.
Exhibit "C"
Page 2
HA-2006-1(N)
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 sages 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 Genera] Conditions
means and includes any governmental body which rs 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
$e~onsibilities
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 genera] right to inspect work in
progress to determine whether, in the STATE'S opinion, the services are being
performed by the CONTRACTOR in compliance with this Contract. Unless
otherwise provided by special condition, it is understood that the STATE does not
agree to use the CONTRACTOR exclusively, and that the CONTRACTOR is free
to contract to provide services to other individuals or entities while under contract
with the STATE.
b. The CONTRACTOR and the CONTRACTOR'S employees and agents are not by
reason of this Contract, agents or employees of the State for any purpose, and the
CONTRACTOR and the CONTRACTOR'S employees and agents shall not be
entitled to claim or receive from the State any vacation, sick leave, retirement,
workers' compensation, unemployment insurance, or other benefits provided to
state employees.
c. The CONTRACTOR shall be responsible for the accuracy, completeness, and
adequacy of the CONTRACTOR'S performance under this Contract. Furthermore,
the CONTRACTOR intentionally, voluntarily, and knowingly assumes the sole and
entire liability to the CONTRACTOR'S employees and agents, and to any
individual not a party to this Contract, for all loss, damage, or m~ury 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) mcome
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, NRS, and shall
Form AG2-GC(1/Ol)
EXHIBIT D
HA-2006-1(N)
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 all requirements necessary to obtain the tax
clearance certrficate required for fmal payment under sections ]03-53 and 237-45,
HRS, and paragraph ]7 of these Genera] 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 required under federal, state, or county law,
and al] 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 ]merest. The CONTRACTOR represents that neither the CONTRACTOR,
nor any employee or agent of the CONTRACTOR, presently has any interest, and
promises that no such interest, direct or indirect, shall be acquired, that would or might
conflict in any manner or degree with the CONTRACTOR'S performance under this
Contract.
6. Subcontracts and Assignments. The CONTRACTOR shall not assign or subcontract any
of the CONTRACTOR'S duties, obligations, or interests under this Contract and no such
assignment or subcontract shall be effective unless (i) the CONTRACTOR obtains the
prior written consent of the STATE and (ii) the CONTRACTOR'S assignee or
subcontractor submits to the STATE a tax clearance certificate from the 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 assigrtrnent by the CONTRACTOR of the CONT'R.ACTOR's right to
compensation under this Contract shall be effective unless and until the assignment is
approved by the Comptroller of the State of Hawaii, as provided in section 40-58, HRS.
a. t)_ecognition 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-GCp/Ol)
IXHIBIT 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 all 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. f'hanae 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 oKcer
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 eNect 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 gurchasine aeency. 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, 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 iliis paragraph shall
remain in full force and effect notwithstanding the expiration or early termination of this
Contract.
8. Cost of Liti atg ion• In case the STATE sball, 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. ~ouidateT d Damages. When the CONTRACTOR is given notice of delay or
nonperformance as specified in paragraph ]3 (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 Tor cure until either (i)
the STATE reasonably obtains similar goods or services, or both, if the CONTRACTOR
3 Form AG2-GCi 1 /01)
EXNi81T D
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 ]imitation, 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.
is utes. 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.
]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 stop performance. The Agency procurement officer, may, by written
order to the CONTRACTOR, at any time, and without notice to any surety, require
the CONTRACTOR to stop all or any part of the performance called for by this
Contract. This order shall be for a specified 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 cleaz
description of the work to be suspended; (2) Instructions as to the issuance of
further orders by the CONTRACTOR for material or services; (3) Guidance as to
action to be taken on subcontracts; and (4) Other instructions and suggestions to the
CONTRACTOR for minimizing costs. Upon receipt of such an order, the
CONTRACTOR shall forthwith comply with its terms and suspend all performance
under this Contract at the time stated, provided, however, the CONTRACTOR
shall take 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 wrthin 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-GCp/O])
EXHIBtl' D
(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:
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 pan 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. ]f a stop performance order is not cancelled
and the performance covered by such order is terminated for default or
convenience, the reasonable costs resulting from the stop performance order shall
be allowable by adjustment or otherwise.
d. Adjustment of price. Any adjustment in contract price made pursuant to this
paragraph shall be determined in accordance with the price adjustment provision
of this Contract.
]3. 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 (]0) 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.
$ Form AG2-GC(1/O])
EXHIBIT D
c. Compensation. Payment for completed goods and services delivered and accepted
by the STATE shall be at the price set forth in the Contract. Payment for the
protection and preservation of property shall be in an amount agreed upon by the
CONTRACTOR and the Agency procurement officer. If the parties fail to agree,
the Agency procurement officer shall set an amount subject to the
CONTRACTOR's rigbts under chapter I26, 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 dela~d performance. The CONTRACTOR shall
not be in default by reason of any failure in performance of this Contract in
accordance with its terms, including any failure by the CONTRACTOR to make
progress in the prosecution of the performance hereunder which endangers such
performance, if the CONTRACTOR has notified the Agency procurement officer
within fifteen (15) days after the cause of the delay and the failure arises out of
causes such as: acts of God; acts of a public enemy; acts of the State and any other
governmental body in its sovereign or contractual capacity; fires; floods;
epidemics; quarantine restrictions; strikes or other labor disputes; freight
embargoes; or unusually severe weather. ]f 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. ~.roneous 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 r~hts 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])
EXH1~fT ~
14. Termination for Convenience.
a. Termination. The Agency procurement officer may, when the interests of the
STATE so require, terminate this Contract in whole or in part, for the convenience
of the STATE. The Agency procurement officer shall give written notice of the
termination to the CONTRACTOR specifying the part of the Contract terminated
and when termination becomes effective.
b. CONTRACTOR'S obligations. The CONTRACTOR shall incur no further
obligations in connection with the terminated performance and on the date(s) set in
the notice of termination the CONTRACTOR will stop performance to the extent
specified. The CONTRACTOR shall also terminate outstanding orders and
subcontracts as they relate to the terminated performance. The CONTRACTOR
shall settle the liabilities and claims arising out of the termination of subcontracts
and orders connected with the terminated performance. 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. Rieht 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 pari
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.
~ Form AG2-GC(]/Ol)
EXNIBlT R
- (~j--~-he Agency-procurement officer-and-the CONTRACTOR may agree to a
settlement provided the CONTRACTOR has filed a tetzrtination 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 l4d(2) the Agency
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
include anticipatory profit or consequential damages, less amounts
paid or to be paid for accepted goods or servrces; 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
l4d(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 l4d(2), and the Contract price of
performance not terminated.
(4) Costs claimed, agreed to, or established under subparagraphs 14d(2) and
74d(3) shall be in accordance with Chapter 3-]23 (Cost Prrnciples) of the
Procurement Rules.
g Form AG2-GC(1/Ol)
f=XXE-iEBET Q
l5. Claims--Based on the Agenc~Procurement OKcer's Actions or Omissions.
a. Changes in scone. ]f 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 ]5) 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 incompliance
with the directions or orders of such officials, but by so doing, the
CONTRACTOR shall not be deemed to have prejudiced any claim for additional
compensation, damages, or an extension of time for completion; provided:
(l) 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 explained The notice required by subparagraph 15a(1)
describes as clearly as practicable at the time the reasons why the
CONTRACTOR believes that additional compensation, damages, or an
extension of time may be remedies to which the CONTRACTOR is
entitled; and
(4) Claim must be justified. The CONTRACTOR must maintain and, upon
request, make availab)e 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 rn tssutng or
performing change orders which are clearly not within the scope of the Contract.
9 Form AG2-GC(]/Ol)
EY.hlBlT ~
--r- -price-adjustment. Any.adjustment-in-the-pracesnade pursuant to this.paragraph
shall be determined in accordance with the price adjustment provision of this
Contract.
l6. 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 transportation shall be for actual cost or coach class air fare,
whichever is less.
b. Reimbursement for ground transportation costs shall not exceed the actual cost of
renting an intermediate-sized vehicle.
c. Unless prior 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. payment Procedures• Final Pavment• Tax Clearance
a. Original invoices required. Al] 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 wrthrn 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, NRS, which require 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.
1 O Form AG2-GC(1 /01)
78. 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 only from such funds
received from the federal government, and shall not be paid from any other funds.
l9. Modifications of Contract.
a. In writing, Any modification, alteration, amendment, change, or extension of any
term, provision, or condition of this Contract pet~riitted 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_ Aoency 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 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;
(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 mice 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 determined, where applicable, in accordance wit}t
the price adjustment clause of this Contract or as negotiated.
e. Claim barred after final pavment. 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. ]n 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/Ol)
~x~taa~r ~
g_ _CP~~pprosal. ]f _this is__a_professional service~Coratract awarded, pursuant to
section 103D-303 or ]03D-304, NRS, 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 ]east $25,000.00 or ten
per cent (]0%) 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 a]] 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 not be submitted as
an amendment.
20. Change Order. The Agency procurement officer may, by a written order signed only by
the STATE, at any time, and without notice to any surety, and subject to all appropriate
adjustments, make changes within the genera] scope of this Contract in any one or more
of the following:
(l) 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 mice or time for performance. ]f 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 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
assert a claim for an adjustment. Later notification shall not bar the
CONTRACTOR'S claim uriless the STATE is prejudiced by the delay in
notification.
12 Form AG2-GCq/O])
EXHf~fT D
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. 1n the absence of a change order, nothing in this
paragraph 20 shall be deemed to restrict the CONTRACTOR'S right to pursue a
claim under the Contract or for breach of contract.
21. rice Ad,~ustment.
a. Price adjustment. Any adjustment in the Conuact price pursuant to a provision in
this Contract shall be made in one or more of the following ways:
(l) 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) 1n such other manner as the parties may mutually agree; or
(5) ]n 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, al] as
computed by the Agency procurement officer in accordance with generally
accepted accounting principles and applicable sections of chapters 3-] 23 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 Ouantirv 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°k);
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 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:
(l) Description of performance (Attachment
3 Form AG2-GC(1 /Ol )
EX.~~~~T
(2j- ~=imerof-perfor-rnanee~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 furnished are
to be specially manufactured for the STATE rn accordance with the
drawings, designs, or specifications;
(5) Method of shipment or packing of supplies; or
(ti) 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 aNected 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 ] 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 rs 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. Al] 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. A11 information, data, or other material provided by the CONTRACTOR to the
STATE shall be subject to the Uniform ]nformation Practices Act, chapter 92F,
HRS.
25. Pub ic~t .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
]4 Form AG2-GC(1/Ol)
EXHlSfT ~
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~Rights and Couvrieht, 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." Al] 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
limes 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 $100,000 unless the contract is
for amultiple-term or as otherwise specified by the procuremem 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 contract price, including profit or fee, to exclude any significant sum by which the
price, including profit or fee, was increased because of the defective data. It is presumed
that overstated cost or pricing data increased the contract price in the amount of the defect
plus related overhead and profit or fee. Tberefore, uriless 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.
3I. gecords 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. Antitrust Claims. The STATE and the CONTRACTOR recognize that in actual economic
practice, overcharges resulting from antitrust violations are in fact usually borne by the
purchaser. Therefore, the CONTRACTOR hereby assigns to STATE any and all claims
for overcharges as to goods and materials purchased rn connection with this Contract,
except as to overcharges which result from violations commencing after the price is
] 5 Form AG2-GCp /Ol)
EXN4BiT E'3
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 al] liability, loss, damage, cost, and expense, including all attorneys' fees, and
al] claims, suits, and demands arising out of or resulting from any claims, demands, or
actions by the patent holder for infringement or other improper or unauthorized use of any
patented article, patented process, or patented appliance in connection with this Contract.
The CONTRACTOR shall be solely responsible for correcting or curing to the satisfaction
of the STATE any such infringement or improper or unauthorrzed 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. Governine. Law. The validity of this Contract and any of its terms or provisions, as well
as the rights and duties of the panies 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 jurtsdictton rn Honolulu,
Hawaii.
35. Compliance with Laws. The CONTRACTOR shall comply with al] 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. ]n 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 ConVact.
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 constriute 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 Convact shall not constitute a waiver or relinquishment of ilre
STATE's rights or the CONTRACTOR'S obligations under the Procurement Rules or
statutes.
] 6 Form AG2-GC(]!01)
f
SPECIAL CONDITIONS
1 Procurement of OAA Funds: The PROVIDER shall comply with Title 45 CFR Part
92--Uniform Administrative Requirements for Grants and Cooperative Agreements
to State and Local Governments in the procurement of the services in this
Agreement.
2 Renorting and Record keepin¢ Requirements
2.1 In order that the STATE may monitor PROVIDER'S compliance with this
Agreement, PROVIDER shall submit to the STATE written quarterly progress and
financial reports using the instructions and forms contained in the Area Agency on
Aging Reporting Handbook, including other reports which may be requested by the
STATE subsequently. 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 collection of
data and the reporting requirements of this Attachment and allow PROVIDER to
comply with this timetable.
2.2 In addition to the quarterly written progress and financial reports, PROVIDER,
upon request, shall meet with representatives of the STATE to discuss the progress
of the work to be provided under this Agreement. 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 which received Older
Americans Act funds for construction, acquisition, renovation or alteration, and an
inventory of all equipment that cost $1000.00 or more and was purchased with
funds furnished under this Agreement. The written annual report shall include
PROVIDER'S documentation of its overall efforts towards meeting the goals and
objectives of the PROVIDER'S Area Plan for 2004-2007. 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
information or special reports required or requested by the STATE and/or the
Administration on Aging.
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SPECIAL CONDITIONS
2.3 For Federal Older American Act Funds, the PROVIDER shall ensure that the local
or cost share matching requirements mandated by 45 C.F.R. Part 92, subpart C are
satisfied, and the matching or cost share funds provided to it under this Agreement
are secured and applied where required.
2.4 PROVIDER shall maintain and ensure that it and all of its subcontractors, in
accordance with generally accepted accounting procedures and practices, maintain
fiscal records, supporting documents and related files, papers, receipts, reports and
other evidence that sufficiently and properly reflect all direct and indirect
expenditures, and management and fiscal practices related to the PROVIDER'S
and subcontractor's performance under this Agreement. PROVIDER shall ensure
that its own fiscal records, and supporting documents and related files, papers,
receipts, reports and those of each of its 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 by their duly authorized representatives.
2.5 PROVIDER shall permit, and ensure that its subcontractors permit, the STATE,
State Department of Budget and Finance, the State Department 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 which are pertinent to this Agreement and which are
necessary to enable said agencies or persons to conduct surveys, audits, and
examinations of PROVIDER'S and its subcontractors performance.
2.6 PROVIDER and its subcontractors shall comply with all ordinances, codes, rules
and regulations of the Federal, State and local government, which in any way affect
PROVIDER'S performance under this Agreement. These codes and regulations
include, but are not limited to the following:
2.6.1 45CFR (Code of Federal Regulations) for the Older Americans Act,
2.6.2 45 CFR part 16--Procedures of the Departmental Grant Appeals Board;
2.6.3 45 CFR part 74--Administration of Grants, except subpart N;
EXHIBIT "E"
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HA-2006- I (N)
SPECIAL CONDITIONS
2.6.4 45 CFR part 80--Nondiscrimination under Programs Receiving Federal
Assistance through the Department of Health and Human Services:
Effectuation of title VI of the Civil Rights Act of 1964;
2.6.5 45 CFR part 81--Practice and Procedures for Hearings Under Part 80 of this
title;
2.6.6 45 CFR part 84--Nondiscrimination on the Basis of Handicap in Programs and
Activities Receiving or Benefiting from Federal Financial Participation;
2.6.7 45 CFR part 91--Nondiscrimination on the Basis of Age in HHS Programs or
Activities Receiving Federal Financial Assistance;
2.6.8 45 CFR part 92--Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments;
2.6.9 45 CFR part 100--Intergovernmental Review of Department of Health and
Human Services Programs and Activities; and
2.6.10 5 CFR pari 900, subpart F, Standards for a Merit System of Personnel
Administration.
2.7 PROVIDER shall ensure that any subcontract it enters into specifically
incorporates or otherwise ensures that the requirements of this Attachment are
applicable to and are satisfied by each of its subcontractors so as to facilitate
PROVIDER'S compliance with these requirements.
3 STANDARDS OF CONDUCT DECLARATION, Exhibit "C" shall not be
applicable to PROVIDER if the PROVIDER is a County agency or another State
agency. The PROVIDER shall ensure that the provisions and limitations contained
in Exhibit "C" are applicable and binding upon all its subcontractors.
4 Insurance Certificates: PROVIDER shall ensure that its private subcontractors
transmit Insurance Certificates as appropriate to the State.
5 Monitoring and Evaluation: PROVIDER shall monitor and evaluate each Federally
funded subcontract with the provider organization at ]east annually to ensure
EXHIBIT "E"
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SPECIAL CONDITIONS
compliance with its own county procurement process, the public purpose, legislative
intent of providing funds for services through the Request For Proposal competitive
procedures, and to determine whether the subcontract attained the intended results in
the manner contemplated. PROVIDER shall conduct at least one annual onsite visit
and maintain an annual written report for each grant, subsidy or competitive service
award which describes the progress, compliance and required corrective action by
the subcontractor. Copies of the annual onsite visit report for each subcontractor
shall be transmitted to the State along with the other annual reports due sixty (60)
days afrer the close of the fiscal period.
6 Allocation Plan: PROVIDER shall submit an annual Allocation Plan detailing the
allocation of funds including Federal, State, and County funds. The Allocation Plan
should include the name, address, and telephone number of its subcontractors as well
as the service activities performed, outputs, and funding sources. The Allocation
Plan shall be submitted to the State by August 30 each year.
7 The PROVIDER shall submit to the State a copy of each of its subcontractors' fully
executed contracts, Memorandums of Agreement, and supplemental agreements, if
any for the term of this Agreement.
8 Voluntary Contributions: The PROVIDER shall assure that each subcontractor shall
provide each older person with an opportunity to voluntarily contribute to the cost of
a service; protect the privacy of each older person with respect to his or her
contributions; and establish appropriate procedures to safeguard and account for all
contributions. Each subcontractor shall use contributions for supportive services and
nutrition services to expand supportive services and nutrition services respectively.
EXHIBIT "E"
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HA-2006-1(N)