HomeMy WebLinkAboutCOM 0048.008 2006-2008 Ord. ot~ -Zq
J,~VV Or rygw
y~~~%u. Barbara Bell
Director
Harry Kim
Mnyor .a+a.4`-YO Nelson Ho
oi'N••' Deputy Director
C~~ixnf~r of ~ttfuttti
DEPARTMENT OF ENVIRONMENTAL MANAGEMENT ~:-y
25 Aupuni S[ree[, Room 210 • Hilo, Hawaii 96720-0252
(808) 961-8083 • Fax (808) 961-8086 T
ema'P cohdem(a~co hawaii.hi.us ~ ~ ~
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-rr,
DATE: February 21, 2007
TO: Pete Hoffmann, Council Chair and ry
Council Members
VIA: Deanna Sako, Controller ~rY~
FROM: Barbara Bell, Director `yv"
RE: NOTIFICATION OF GRANT AWARD
Compliance with Ordinance No. 93-8F} Section 7(1)
e6-~~q
Name of Grant Program: Beverage Container Deposit Program
Grantor: State of Hawaii, Department of Health
County Grantee Department or Agency: Department of Envirorunental Management
Grant No. (IF KNOWN): ASO Log No. 07-043
Amount of Grant: $750,000.00
Amount of County Match: none
County Revenue & Expenditure Account Numbers: 085.3305.37 , 085.601.5607.01,
085.601.5607.02, 085.601.5607.06
Grant Period (Commencement & Completion): 7/01/06 - 6/30/07
Purpose of Grant: To assist the State in establishing and monitoring certified
redemption centers and providing education, outreach and other related services under the Beverage
Container Deposit Program.
Is final report required by grantor? ®Yes ~ Nojl
Gomm. Ivo.
Notification attached: ®Yes ~ No, because Ref. To:
Ref. Date _ B 2-7 2007
Form NGAI l/OS
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or'q
4~t`\ppp' ; STATE OF HAWAII
_ ,.t ~ CONTRACT FOR GOODS AND SERVICES
J (IN THE FOLLOWING CATEGORIES: EXEMPT; SMALL PURCHASE;
,.r<<.,4,~,w'~ SOLE SOURCE; OR EMERGENCY)
This Contract, executed on the respective dates indicated below, is effective as of
July 1 2006 ,between Department of Health ,
/ln.rerl name rrl.rmlc deparlnrrm. uKrney, Awrd nr'ennrmie:rionJ
State of Hawaii ("STATE"), by its Director of Health ,
Qnsen title q//a•c.mr.rigninglar S7mrJ
(hereafter also referred to as the HEAD OF THE PURCHASING AGENCY or designee ("HOPA")),
whose address is 1250 Punchbowl Street, Honolulu, Hawaii 96813
and County of Hawaii
("CONTRACTOR"), a a body politic and corporate
//neen cngximunn. /wrrncrahip, ioinr vcnrurr, sale pmprirmc~hip. pr Mher legal Jnrm n/rAe (braradnry
under the laws of the State of Hawaii ,whose business address and federal
and state taxpayer identification numbers are as follows: County of Hawaii, Department of Environ-
mental Management, 25 Aupuni Street, Room 210, Hilo, Hawaii, 96720, Taxpayer ID# 99-6000567
RECITALS
A. The STATE is in need of the goods and services, or both, described in this
Contract and its attachments. The CONTRACTOR is agreeable to providing the goods and services,
or both, as the case may be.
B. This Contract is for (check one box):
® (1) A procurement expenditure of public funds for goods or services,
or both, that is otherwise exempt from public bidding as set forth in section 103D-102, Hawaii
Revised Statutes ("HRS"), and chapter 3-120, Hawaii Administrative Rules ("HAR"); or
or
? (2) A small purchase procurement of goods or services, or both, as set forth
in section 103D-305, HRS, and subchapter 8, chapter 3-]22, HAR; or
? (3) A sole source procurement of goods or services, or both, as set forth
in section 103D-306, HRS, and subchapter 9, chapter 3-122, HAR; or
? (4) An emergency procurement of goods or services, or both, as set forth
in section ] 03D-307, HRS, and subchapter 10, chapter 3-122, HAR.
C. Money is available to fund this Contract pursuant to:
(1) Item D-l, Act 178, 2005 HSL 445 as amended by Act 160, 2006 HSL
Qdenllly .amt source.)
or (2)
(/denlilj~/ederaL_errurcerJ
or both, in the following amounts: State $ 750,000.00
Federal $ 0.00
D. Pursuant to Sections 321-7 and 342G-114.5, HRS ,the STATE
(Legal mnhnrilr la enter inln Ibis (bnlrpr l)
is authorized to enter into this Contract.
E. The agency's Chief Procurement Officer is Aaron S. Fujioka
who ? has approved this procurement or ®is not required to approve this procurement.
NOW, THEREFORE, in consideration of the promises contained in this Contract, the
STATE and the CONTRACTOR agree as follows:
1. Scope of Services. The CONTRACTOR shall, in a proper and satisfactory
manner as determined by the STATE, provide all the goods or services, or both, set forth in Attachment-
s I,which is made a part of this Contract.
ADM. SERV. OFFICE
LOG N0.07-043 1
AG-002 Rev 11/15/2005
' , s.
' 2. Comeensation. The CONTRACTOR shall be compensated for goods
- supplied or services performed, or both, under this Contract in a total amount not to exceed
SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
- 750,000.00 including approved costs incurred and taxes, according to the Compensation and
Payment Schedule set forth in Attachment-S2, which is made a part of this Contract.
3. Time of Performance. The services or goods required of the CONTRACTOR
under this Contract shall be performed and completed in accordance with the Time of Perfomance set
forth in Attachment-S3, which is made a part of this Contract.
4. Bonds. The CONTRACTOR ? is required to provide or ®is not required to
provide: ? a performance bond, ? a payment bond, ? a performance and payment bond in the
amount of None DOLLARS
5. Standards of Conduct Declaration. The Standards of Conduct Declaration of the
CONTRACTOR is attached to and made a part of this Contract.
6. Other Terms and Conditions. The General Conditions and any Special
Conditions are attached to and made a part of this Contract. In the event of a conflict between the
General Conditions and the Special Conditions, the Special Conditions shall control.
7. Loci uidated Damaees. Liquidated damages shall be assessed in the amount of
NOT APPLICABLE DOLLARS
)per day, in accordance with the terms of paragraph 9 of the General Conditions.
8. Notices. Any written notice required to be given by any party to this Contract
shall be (a) delivered personally, or (b) sent by United States first class mail, postage prepaid. Notice to
the STATE shall be sent to the HOPA'S address indicated in the Contract. Notice to the
CONTRACTOR shall be sent to the CONTRACTOR'S address indicated in the Contract. A notice shall
be deemed to have been received three (3) days after mailing or at the time of actual receipt, whichever
is earlier. The CONTRACTOR is responsible for notifying the STATE in writing of any change of
address.
IN VIEW OF THE ABOVE, the parties execute this Contract by their signatures, on the
dates below, to be effective as of the date first above written.
STATE ~
(.Signamny ~ ~11(/
Chiyome Leinaala Fukino, M.D.
(Yrinl Name)
Director of Health
(Prior Title) JUL 2 6 2006
/~,eJ
CONTRACTOR
,iz fi~sxil:+iri~~j Ctoun of Hawaii
~{¢}r~Cnnlr n
~Y1rYi eKAt7SU
//'riot Nome)
Mana9M9 a?~ "
(Print Title)
JUN 2 2 2086
(Unle)
APPROVED AST ~ ORM:
.PG
D puty tto ey neral
.
Evidence of authority of the CONTRACTOR'S representative to sign this Contract for the CONTRACTOR must he attached.
ADM. SERV. OFFICE
LOG N0.07-043 2
AG-002 Rev 11/15/2005
~ ~
STATE OF HAWAII )
SS.
COUNTY OF HAWAII )
On this 22nd day of June 2006, 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.
~1~v~i:t~RR ~ i~
.Ei7 CAT T. CORREIA
_
~ 0 T A Rj `y~ No Public, State of Hawaii
f
~ ~ My commission expires: 10/13/06
's~ AU g4~tl
T,t'~O µ~~p
ADM. SERV. OFFICE
LOG N0. 07-043
c, ,
4~, O F h~h~
~ ' ti STATE OF HAWAII
-----gyp -~c~~.~+g~; ~!p+
"t ~f `~-.A l.l. 1 Vl~ O ti~.1~~GL111~1L'~
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..2.mr...t3- .
STATE OF )
SS.
COUNTY OF )
On Uiis day of before me appeared
and , to me
known, to be the person(s) described in and, who, being by me d sworn, did say that he/she/they is/are
and of
,the
CONTRACTOR named in the foregoing instru t, and that he(she(they is(are authorized to sign said
instrument on behalf of the CONTRACT and acknowledges that he/she/they executed said
instrument as the free act and deed of the NTRACTOR.
(Srgnahme)
(Print Nomef
Notary Public, State of
My commission expires:
ADM. SERV. OFFICE
LOG NO.07-043
AG-009 Rev l V 15/2005 1
<< STATE OF HAWAII (THIS FORM IS DELETED
AND INOPERATIVE)
°Y~
-,y.~ STANDARDS OF CONDUCT DECLARATION
For the purposes of this declazation:
"Agency" means and includes the State, the legislature and its committees, all exec Ive
departments, boards, commissions, committees, bureaus, offices; and all indep dent
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 fficient 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 employ a of the State,
including members of boards, commissions, and committees, and employee under contract to
the State or of the constitutional convention, but excluding legislato ,delegates to the
constitutional convention, justices, and judges. (Section 84-3, HRS).
On behalf of ,CONTRACTOR, the
undersigned does declare as follows:
1. CONTRACTOR ? is ? is not a legislator or an employee or business in which a legislator
or an employee has a controlling interest. (Section 84-15(a), S).
2. CONTRACTOR has not been represented or assisted pers ally in the matter by an individual
who has been an employee of the agency awarding this ntract within the preceding two years
and who participated while so employed in the ma er with which the Contract is directly
concerned. (Section 84-15(b), HRS).
3. CONTRACTOR has not been assisted or repres ted by a legislator or employee for a fee or
other compensation to obtain this Contract and ill not be assisted or represented by a legislator
or employee for a fee or other compensation ' the performance of this Contract, if the legislator
or employee had been involved in the deve pment or awazd of the Contract. (Section 84-14 (d),
HRS).
4. CONTRACTOR has not been represe ed on matters related to this Contract, for a fee or other
consideration by an individual wh ,within the past twelve (12) months, has been an agency
employee, or in the case of the gislature, a legislator, and participated while an employee or
legislator on matters related to is Contract. (Sections 84-18(b) and (c), HRS).
CONTRACTOR understands that t Contract to which this document is attached is voidable on behalf
of the STATE if this Contract entered into in violation of any provision of chapter 84, Hawaii
Revised Statutes, commonly r erred to as the Code of Ethics, including the provisions which are the
source of the declarations a ve. Additionally, any fee, compensation, gift, or profit received by any
person as a result of a viol on of the Code of Ethics may be recovered by the STATE.
CONTRACTOR
By
/Sif;namre/
Print Name
Print Title
Name of Contractor
Date
Reminder to A¢ency: If the "is" block is checked and if the Contract involves goods or services of a value in excess of
$10.000. the ConVact must be awarded by competitive sealed bidding under section 103D-302, HRS. or a competitive sealed
proposal under section 103D-303, HRS. Otherwise. the Agency may not award the Contract unless it posts a notice of its intent
o awar i an ~ es a copy o e no ice wi e a e tcs mmisston. ec i -
ADM. SERV. OFFICE I
AG-010 Rev I l/1512005 LOG ND. 07-043
, { O ~ M1
, ~ Attachment - Sl
STATE OF HAWAII
m
s F SCOPE OF SERVICES
®~~.~.a'
1. The CONTRACTOR shall assist the STATE to educate dealers, certified redemption centers, and
recycling facility operators about the Deposit Beverage Container Program and its requirements.
Compliance assistance shall include, but not be limited to, the following:
a. Conducting a minimum of sixteen (16) site visits each month at certified redemption centers
to assist centers in following certification requirements;
b. Visiting a minimum of sixteen (16) dealer locations each month to assist dealers with
compliance;
c. Conducting a minimum of two (2) site visits each quarter at recycling facilities that handle,
process, and ship deposit beverage containers to assist them with compliance with the law;
d. Documenting site visits and submit reports to the STATE;
e. Maintaining a complaint log and document follow-up; and
f. Providing other compliance assistance as approved by STATE.
2. The CONTRACTOR shall provide staff to complete tasks outlined in this Scope of Services which
shall, at a minimum, include:
a. Accompanying STATE inspectors on site visits following notification by the STATE of no
less than five (5) business days;
b. Attending STATE training meetings on technical and compliance assistance;
c. Assisting the STATE with segregated rate sampling and evaluation; and
d. Assisting with the STATE coordination of education outreach efforts including public notices
and hearings.
3. The CONTRACTOR shall assist the STATE to determine if there is a need to establish certified
redemption centers in the county including, but not limited to, the following:
a. Identifying and prioritize locations that are lacking or underserved by the private sector and
determine if there is a need for redemption center sites;
b. Conducting feasibility analyses of establishing redemption center sites in locations identified
in 3.a.;
c. Evaluating feasibility by analyzing a redemption center's costs for start up and operation, and
by estimating the potential volume of deposit containers to be recycled at the center;
d. Identifying and quantify benefits to the community of establishing centers in the locations
identified in 3.a.;
e. Assisting in establishing redemption center sites approved by the STATE;
f. Preparing sites for redemption center operations by providing grading, pacing, fencing,
electrical, or other infrastructure or assessment services as approved by the STATE;
g. Managing contracts between the County of Hawaii and operators of certified redemption
centers established by the County of Hawaii; and
h. Providing other support as needed.
ADM. SERV. OFFICE 1
LOG N0.07-043
AG-01l Rev 07/28/2005
o``~ Attachment-Sl
STATE OF HAWAII
i
~ ~ SCOPE OF SERVICES
- °~.m,.,~.,
4. The CONTRACTOR shall assist the STATE with providing educational and outreach support to
promote recycling of deposit beverage containers. This includes implementing, maintaining and
monitoring recycling demonstration projects that will increase participation in the deposit program.
5. The CONTRACTOR shall prepaze quarterly summary reports to include, but not be limited to, the
following:
a. Updates of monitoring support, compliance and technical assistance, and education outreach
activities;
b. Evaluation ofprogram success;
c. Recommendations for improvement; and
d. Summazy of expenditures during the quarter and copies of invoices or receipts.
ADM. SERV. OFFICE 2
LOG N0.07-043
o, Attachment- S2
- ~ STATE OF HAWAII
a ; COMPENSATION AND PAYMENT SCHEDULE
- ~~4'alII1 ~C
In full consideration for the services performed by the CONTRACTOR under this Contract, the STATE
agrees, subject to the allotments to be made by the Duector of Finance, State of Hawaii, pursuant to
Chapter 37, Hawaii Revised Statutes, to pay to the CONTRACTOR a total sum of money not to exceed
SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($750,000.00) of special funds,
which shall be paid in accordance with and subject to the following:
a. Payments shall be made upon the submission by the CONTRACTOR of invoices in triplicate for
the services to be provided in accordance with Attachment-Sl, "Scope of Services," and in
accordance with the costs identified in the Budget attached hereto as Exhibit "A" and made a part
of this Contract. In addition, the CONTRACTOR shall submit a STATE approved detailed
Budget no later than fourteen (14) days after execution of this contract, and failure to comply
may result in the withholding of payments to the CONTRACTOR. Upon submission of a
STATE approved detailed Budget, the STATE approved detailed Budget shall become part of
Exhibit "A" and made a part of this Contract.
b. The CONTRACTOR shall submit invoices on a quarterly basis along with l2uarterly Reports as
identified in Attachment-Sl, "Scope of Services," within thirty (30) days after the end of the
quarter. Invoices shall be submitted to the STATE for review and acceptance for allowable costs
associated with the work performed under Attachment-Sl "Scope of Services."
c. The CONTRACTOR shall submit a final report of activities completed under this Contract
within forty-five (45) calendaz days after the end of the time of performance as defined in
Attachment-S3, "Time of Performance." The report shall include an expenditure report to the
STATE, which shall provide the actual amounts of funds expended by the CONTRACTOR. The
expenditure report shall be reviewed by the STATE and shall be subject to the STATE's
preliminary determination of appropriateness and allowability of the reported expenditures. The
STATE's preliminary determination of appropriateness and allowability of the reported
expenditures shall be subject to later verification and subsequent audit.
d. If the examination reveals expenditures that aze determined by the STATE to be inappropriate
and unallowable, the STATE may require that an equivalent amount of monies be refunded by
the CONTRACTOR. Final settlement of this Contract shall include submission and acceptance
of all reports and other materials to be submitted by the CONTRACTOR to the STATE,
resolution of all discrepancies in expenditures or performance of services, and completion of all
other outstanding matters under this Contract.
e. The CONTRACTOR shall inform the STATE and receive prior approval for any replacement
equipment from those identified on the Budget. Procurement of any vehicles for use by the
CONTRACTOR is specifically prohibited.
ADM. SERV. OFFICE 1
LOG N0.07-043
AG-012 Rev it/15/2005
S~ O • N,,
~ . Attachment - S3
•
STATE OF HAWAII
~ F
_ ~~.,~~~,.<J TIME OF PERFORMANCE
Time of Performance. The CONTRACTOR shall provide the services required under this Contract from
Iuly 1, 2006, to and including June 30, 2007, unless this Contract is sooner terminated as hereinafter
provided.
ADM. SERV. OFFICE 1
LOG N0.07-043
erm z a.., i i n cnnnc
- o, M~ Attachment-S4
STATE OF HAWAII
~
` CERTIFICATE OF EXEMPTION
FROM CIVIL SERVICE
1. By Heads of Departments or Agencies as Delegated by the Director of the Department of
Human Resources Development ("DHRD").*
Pursuant to a delegation of the authority by the Director of DHRD, I certify that the services to
be provided under this Contract, and the person(s) providing the services under this Contract are exempt
from civi se e, ursuant to § 76-16, Hawaii Revised Statutes (HRS).
~ 1
(Signame) (Date)
Chiyome Leina a Fukino, M.D.
(Print Name)
Director of Health
(Print tale)
+ This part of the forth may be used by all department heads and others to whom the Director of DHRD, has delegated
authority to certify § 76-16, HRS, civil service exemptions. The specific paragraph(s) of § 76-16, HRS, upon which an
exemption is based should be noted in the contract file. NOTE: Authority to certify exemptions under §§76-16(6)(2), 76-
16(6x12), and 76-16(6)(15), HRS, has not been delegated: only the Director of DHRD may certify §§76-16(6x2), 76-
16(6)(12), and 76-16(6)(15) exemptions.
2. By the Director of DHRD, State of Hawaii.
I certify that the services to be provided under this Contract, and the person(s) providing the
services under this Contract are exempt from the civil service, pursuant to §76-16, HRS.
(Sitmahue) (Date)
(Prim Name)
(Print Tdle, if desi®ree of the Dirator of DFiRD)
ADM. SERV. OFFICE
LOG N0.07-043
AG-014 Rer 11/15/2005 I
' ~OF h'
Attachment - SS
STATE OF HAWAII
ttt, SPECIAL CONDITIONS
1. Deletion of Portions of Contract. For purposes of this Contract, paragraph 5 on page 2 of the
Contract, "Standards of Conduct Declazation," together with the attached Standadds of Conduct
Declazation form aze hereby deleted and the parties agree that paragraph 5 of the Contract and its
attached form aze not operative
2. Deletion of General Conditions. For purposes of this Contract, the following General Conditions
are hereby deleted from the General Conditions and have no operative effect between the parties:
a. Subparagraph 2.e.
b. Subpazagraph 17.d.
c. Subparagraph 19.h.
3. Ontion to Extend Contract. Unless terminated, this Contract may be extended by the STATE for
specified periods of time not to exceed three (3) yeazs or for not more than three (3) additional
twelve (12) month periods, upon mutual agreement and the execution of a supplemental
agreement.
This Contract may be extended provided that the Contract price shall remain the same or is
adjusted per the Contract Price Adjustment provision stated herein.
The STATE may terminate the extended agreement at any time in accordance with General
Conditions number 14.
4. Contract Price Adjustment. The Contract price may be adjusted at the beginning of each
extension period and shall be subject to the availability of special funds.
5. If this Contract is terminated with cause or without cause or at the scheduled expiration of the
time of performance specified in this Contract, all equipment and unused supplies and materials
leased or purchased with funds paid to the CONTRACTOR under this Contract shall become the
property of the STATE as it so specifies and shall be disposed of as directed by the STATE,
except, if applicable, as otherwise may be provided under the Federal Grant.
ADM. SERV. OFFICE: 1
LOG N0.07-043
, ,
GENERAL CONDITIONS
Table of Contents
Pa e s
1. Coordination of Services by the STATE 2
2. Relationship of Parties: Independent Contractor Status and Responsibilities, Including Tax
Responsibilities 2
3. Personnel Requirements 3
4. Nondiscrimination ...........................................................................................................................................3
5. Conflicts of Interest 3
6. Subcontracts and Assignments 3
7. Indemnification and Defense 4
8. Cost of Litigation 4
9. Liquidated Damages 4
10. STATE'S Right of Offset 4
1 1. Disputes 4
12. Suspension of Contract 4
13. Termination for Default 5
14. Termination for Convenience 6
15. Claims Based on the Agency Procurement Officer's Actions or Omissions 8
16. Costs and Expenses 8
17. Payment Procedures; Final Payment; Tax Clearance 9
18. Federal Funds 9
19. Modifications of Contract 9
20. Change Order 10
21. Price Adjustment 11
22. Variation in Quantity for Definite Quantity Contracts 11
23. Changes in Cost-Reimbursement Contract 11
24. Confidentiality of Material 12
25. Publicity ........................................................................................................................................................12
26. Ownership Rights and Copyright 12
27. Liens and Warranties 12
28. Audit of Books and Records of the CONTRACTOR 13
29. Cost or Pricing Data 13
30. Audit of Cost or Pricing Data 13
31. Records Retention 13
32. Antitrust Claims 13
33. Patented Articles 13
34. GovemingLaw .............................................................................................................................................13
35. Compliance with Laws 13
36. Conflict between General Conditions and Procurement Rules 14
37. Entire Contract 14
38. Severability ...................................................................................................................................................14
39. Waiver ...........................................................................................................................................................14
40. Pollution Control 14
ADM. SERV. OFFICE
LOG N0.07-043 I
AG-008 Rev. I I/152005
GENERAL CONDITIONS
1. Coordination of Services by the STATE. The head ofthe purchasing agency ("HOPA") (which term includes
the designee of the HOPA) shall coordinate the services to be provided by the CONTRACTOR in order to
complete the performance required in the Contract. The CONTRACTOR shall maintain communications with
HOPA at all stages of the CONTRACTOR'S work, and submit to HOPA for resolution any questions which
may arise as to the performance of this Contract. "Purchasing agency" as used in these General Conditions
means and includes any governmental body which is authorized under chapter 103D, HRS, or its implementing
rules and procedures, or by way of delegation, to enter into contracts for the procurement of goods or services
or both.
2. Relationship ofParties: Independent Contractor Status and Responsibilities, Includine 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 rightto
inspect work in progress to determine whether, in the STATE'S opinion, the services are being
performed by the CONTRACTOR in compliance with this Contract. Unless otherwise provided by
special condition, it is understood that the STATE does not agree to use the CONTRACTOR
exclusively, and that the CONTRACTOR is free to contract to provide services to other individuals or
entities while under contract with the STATE.
b. The CONTRACTOR and the CONTRACTOR'S employees and agents are not by reason of this
Contract, agents or employees of the State for any purpose, and the CONTRACTOR and the
CONTRACTOR'S employees and agents shall not be entitled to claim or receive from the State any
vacation, sick Leave, retirement, workers compensation, unemployment insurance, or other benefits
provided to state employees.
c. The CONTRACTOR shall be responsible for the accuracy, completeness, and adequacy of the
CONTRACTOR'S performance under this Contract. Furthermore, the CONTRACTOR intentionally,
voluntarily, and knowingly assumes the sole and entire liability to the CONTRACTOR'S employees
and agents, and to any individual not a party to this Contract, for all loss, damage, or injury caused by
the CONTRACTOR, or the CONTRACTOR'S employees or agents in the course of their
employment.
d. The CONTRACTOR shall be responsible for payment of all applicable federal, state, and county taxes
and fees which may become due and owing by the CONTRACTOR by reason of this Contract,
including but not limited to (i) income taxes, (ii) employment related fees, assessments, and taxes, and
(iii) general excise taxes. The CONTRACTOR also is responsible for obtaining all licenses, permits,
and certificates that may be required in order to perform this Contract.
e. The CONTRACTOR shat l obtain a general excise tax license from the Department of Taxation, State
of Hawaii, in accordance with section 237-9, HRS, and shall comply with all requirements thereof.
The CONTRACTOR shall obtain a tax clearance certificate from the Director of Taxation, State of
Hawaii, showing that all delinquent taxes, if any, levied or accrued under state law against the
CONTRACTOR have been paid and submit the same to the STATE prior to commencing any
performance under this Contract. The CONTRACTOR shall also be solely responsible for meeting all
requirements necessary to obtain the tax cleazance certificate required for final payment under sections
103-53 and 103D-328, HRS, and paragraph 17 of these General Conditions.
f. The CONTRACTOR is responsible for securing all employee-related insurance coverage for the
CONTRACTOR and the CONTRACTOR'S employees and agents that is or may be required bylaw,
and for payment of all premiums, costs, and other liabilities associated with securing the insurance
coverage.
ADM. SERV. OFFICE
LOG N0.07-043 2
AG-006 Rev. I I/!52005
3. Personnel Requirements.'
a. The CONTRACTOR shall secure, at the CONTRACTOR'S own expense, all personnel required to
perform this Contract.
b. The CONTRACTOR shall ensure that the CONTRACTOR'S employees or agents are experienced
and fully qualified to engage in the activities and perform the services required under this Contract,
and that all applicable licensing and operating requirements imposed or required under federal, state,
or county law, and all applicable accreditation and other standards of quality generally accepted in the
field of the activities of such employees and agents are complied with and satisfied.
4. Nondiscrimination. No person performing work under this Contract, including any subcontractor, employee,
or agent of the CONTRACTOR, shall engage in any discrimination that is prohibited by any applicable
federal, state, or county law.
5. Conflicts of Interest. The CONTRACTOR represents that neither the CONTRACTOR, nor any employee or
agent of the CONTRACTOR, presently has any interest, and promises that no such interest, direct or indirect,
shall be acquired, that would or might conflict in any manner or degree with the CONTRACTOR'S
performance under this Contract.
6. Subcontracts and Assignments. The CONTRACTOR shall not assign or subcontract any of the
CONTRACTOR'S duties, obligations, or interests under this Contract and no such assignment or subcontract
shall be effective unless (i) the CONTRACTOR obtains the prior written consent of the STATE and (ii) the
CONTRACTOR'S assignee or subcontractor submits to the STATE a tax clearance certificate from the
Director of Taxation, State of Hawaii, showing that all delinquent taxes, if any, levied or accrued under state
law against the CONTRACTOR'S assignee or subcontractor have been paid. Additionally, no assignment by
the CONTRACTOR of the CONTRACTOR'S right to compensation under this Contract shall be effective
unless and until the assignment is approved by the Comptroller of the State of Hawaii, as provided in section
40-58, HRS.
a. Recoenition of a successor in interest. When in the best interest of the State, a successor in interest
may be recognized in an assignment contract in which the STATE, the CONTRACTOR and the
assignee or transferee (hereinafter referred to as the "Assignee") agree that:
(1) The Assignee assumes all of the CONTRACTOR'S obligations;
(2) The CONTRACTOR remains liable for all obligations under this Contract but waives all
rights under this Contract as against the STATE; and
(3) The CONTRACTOR shall continue to famish, and the Assignee shall also famish, all
required bonds.
b. Chanee 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 ofthis Contract
are thereby changed.
c. Reports. All assignment contracts and amendments to this Contract effecting changes of the
CONTRACTOR'S name or novations hereunder shall be reported to the chief procurement officer
(CPO) as defined in section 103D-203(a), HRS, within thirty days of the date that the assignment
contract or amendment becomes effective.
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d. Actions affecting more than one purchasine aeency. Notwithstandingtheprovisions ofsubparagraphs
6a through 6c herein, when the CONTRACTOR holds contracts with more than one purchasing
agency of the State, the assignment contracts and the novation and change of name amendments herein
authorized shall be processed only through the CPO's office.
7. Indemnification and Defense. The CONTRACTOR shall defend, indemnify, and hold harmless the State of
Hawaii, the contracting agency, and their officers, employees, and agents from and against all liability, loss,
damage, cost, and expense, including all attorneys' fees, and all claims, suits, and demands therefore, 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.
8. Cost of Liti>?ation. 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 attomeys' fees.
9. Liquidated Damaees. When the CONTRACTOR is given notice of delay or nonperformance as specified in
paragraph 13 (Termination for Default) and fails to cure in the time specified, it is agreed the CONTRACTOR
shall pay to the STATE the amount, if any, set forth in this Contract per calendar day from the date set for cure
until either (i) the STATE reasonably obtains similar goods or services, or both, if the CONTRACTOR is
terminated for default, or (ii) until the CONTRACTOR provides the goods or services, or both, if the
CONTRACTOR is not terminated for default. To the extent that the CONTRACTOR'S delay or
nonperformance is excused under paragraph 13d (Excuse for Nonperformance or Delay Performance),
liquidated damages shall not be assessable against the CONTRACTOR. The CONTRACTOR remains liable
for damages caused other than by delay.
10. STATE'S Rieht of Offset. The STATE may offset against any monies or other obligations the STATE owes to
the CONTRACTOR under this Contract, any amounts owed to the State of Hawaii by the CONTRACTOR
under this Contract or any other contracts, or pursuant to any law or other obligation owed to the State of
Hawaii by the CONTRACTOR, including, without limitation, the payment of any taxes of levies of any kind or
nature. The STATE will notify the CONTRACTOR in writing of any offset and the nature of such offset For
purposes of this paragraph, amounts owed to the State of Hawaii shall not include debts or obligations which
have been liquidated, agreed to by the CONTRACTOR, and are covered by an installment payment or other
settlement plan approved by the State of Hawaii, provided, however, that the CONTRACTOR shall be entitled
to such exclusion only to the extent that the CONTRACTOR is current with, and not delinquent on, any
payments or obligations owed to the State of Hawaii under such payment or other settlement plan.
11. Disputes. Disputes shall be resolved in accordance with section 103D-703, HRS, and chapter 3-I26, Hawaii
Administrative Rules ("HAR"), as the same may be amended from time to time.
12. Susuension of Contract. The STATE reserves tfie 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 performance orders shall include, as appropriate: (1) A clear
description of the work to be suspended; (2) Instructions as to the issuance of further orders by the
CONTRACTOR for material or services; (3) Guidance as to action to be taken on subcontracts; and
(4) Other instructions and suggestions to the CONTRACTOR for minimizing costs. Upon receipt of
such an order, the CONTRACTOR shall forthwith comply with its terms and suspend all perfornance
under this Contract at the time stated, provided, however, the CONTRACTOR shall take all
reasonable steps to minimize the occurrence of costs allocable to the perfornance covered by the order
ADM. SERV. OFFICE 4
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during the period of performance stoppage. Before the stop performance order expires, or within any
further period to which the parties shall have agreed, the Agency procurement officer shall either:
- (1) Cancel the stop performance order; or
(2) Terminate the performance covered by such order as provided in the termination for default
provision or the termination for convenience provision ofthis 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 ofthis Contract;
and
(2) The CONTRACTOR asserts a claim for such an adjustment within thirty (30) days after the
end ofthe 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 stooped 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 shall be
determined in accordance with the price adjustment provision ofthis Contrgct.
13. Termination for Default.
a. Default. Ifthe CONTRACTOR refuses or fails to perform any of the provisions ofthis 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 ofthis 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. )n 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 ofthe 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 ofthe 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 ofthe CONTRACTOR in which
the STATE has an interest.
c. Compensation. Payment for completed goods and services delivered and accepted by the STATE
shall be at the price set forth in the Contract. Payment for the protection and preservation of property
shall be in an amount agreed upon by the CONTRACTOR and the Agency procurement officer. Ifthe
parties fail to agree, the Agency procurement officer shall set an amount subject to the
CONTRACTOR'S rights under chapter 3-126, HAR. The STATE may withhold from amounts due
the CONTRACTOR such sums as the Agency procurement officer deems to be necessary to protect
ADM. SERV. OFFICE 5
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the STATE against loss because of outstanding liens or claims and to reimburse the STATE for the
excess costs expected to be incun•ed by the STATE in procuring similar goods and services.
d. Excuse for nonperformance or delaved performance. The CONTRACTOR shall not be in default by
reason of any failure in performance of this Contract in accordance with its terms, including any
failure by the CONTRACTOR to make progress in the prosecution of the performance hereunder
which endangers such performance, if the CONTRACTOR has notified the Agency procurement
officer within fifteen (15) days after the cause of the delay and the failure arises out of causes such as:
acts of God; acts of a public enemy; acts of the State and any other governmental body in its
sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes or other
labor disputes; freight embargoes; or unusually severe weather. If the failure to perform is caused by
the failure of a subcontractor to perform or to make progress, and if such failure azises 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 ofthe 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. Eroneous termination for default. If, after notice of termination of the CONTRACTOR'S right to
proceed under this pazagraph, 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 subpazagraph
13d, "Excuse for nonperformance or delayed performance," the rights and obligations of the parties
shall be the same as if the notice of termination had been issued pursuant to paragraph 14.
f. Additional rights and remedies. The rights and remedies provided in this paragraph are in addition to
any other rights and remedies provided by law or under this Contract.
14. Termination for Convenience.
a. Termination. The Agency procurement officer may, when the interests of the STATE so require,
terminate this Contract in whole or in part, for the convenience of the STATE. The Agency
procurement officer shat l give written notice of the termination to the CONTRACTOR specifying the
part of the Contract terminated and when termination becomes effective.
b. CONTRACTOR'S obligations. The CONTRACTOR shall incur no further obligations in connection
with the terminated performance and on the date(s) set in the notice of termination the
CONTRACTOR will stop performance to the extent specified. The CONTRACTOR shall also
terminate outstanding orders and subcontracts as they relate to the terminated performance. The
CONTRACTOR shall settle the liabilities and claims arising out of the termination of subcontracts
and orders connected with the terminated performance subject to the STATE'S approval. The Agency
procurement officer may direct the CONTRACTOR to assign the CONTRACTOR'S right, title, and
interest under terminated orders or subcontracts to the STATE. The CONTRACTOR must still
complete the performance not terminated by the notice of termination and may incur obligations as
necessary to do so.
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:
(1) Any completed goods or work product; and
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(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 ofthe
terminated part of this Contract.
The CONTRACTOR shall, upon direction ofthe Agency procurement officer, protect and preserve
property in the possession ofthe CONTRACTOR in which the STATE has an interest. Ifthe 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 ofthe termination for convenience provision.
d. Compensation.
(1) The CONTRACTOR shall submit a termination claim specifying the amounts due because of
the termination for convenience together with the cost or pricing data, submitted to the extent
required by chapter 3-122, HAR, bearing on such claim. Ifthe CONTRACTOR fails to file a
termination claim within one year from the effective date of termination, the Agency
procurement officer may pay the CONTRACTOR, if at all, an amount set in accordance with
subparagraph 14d(3) below.
(2) The Agency procurement officer and the CONTRACTOR may agree to a settlement provided
the CONTRACTOR has filed a termination claim supported by cost or pricing data submitted
as required and that the settlement does not exceed the total Contract price plus settlement
costs reduced by payments previously made by the STATE, the proceeds of any sales of
goods and manufacturing materials under subparagraph ] 4c, and the Contract price of the
performance not terminated.
(3) Absent complete agreement under subparagraph 14d(2) the Agency procurement officer shall
pay the CONTRACTOR the following amounts, provided payments agreed to under
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 ofthe
performance plus a fair and reasonable profit on such portion ofthe performance,
such profit shall not include anticipatory profit or consequential damages, less
amounts paid or to be paid for accepted goods or services; provided, however, that if
it appears that the CONTRACTOR would have sustained a loss if the entire Contract
would have been completed, no profit shall be allowed or included and the amount of
compensation shall be reduced to reflect the anticipated rate of loss;
(C) Costs of settling and paying claims arising out ofthe termination of subcontracts or
orders pursuant to subparagraph 14b. These costs must not include costs paid in
accordance with subparagraph 14d(3)(B);
(D) The reasonable settlement costs ofthe 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 ofthe 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 ofthis 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.
ADM. SERV. OFFICE
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(4) Costs claimed, agreed to, or established under subparagraphs 14d(2) and 14d(3) shall be in
accordance with Chapter 3-123 (Cost Principles) of the Procurement Rules.
I5. Claims Based on the Aaencv Procurement Officer's Actions or Omissions.
a. Chanees in scope. If any action or omission on the part of the Agency procurement officer (which
term includes the designee of such officer for purposes of this paragraph 15) requiring performance
changes within the scope of the Contract constitutes the basis for a claim by the CONTRACTOR for
additional compensation, damages, or an extension oftime for completion, the CONTRACTOR shall
continue with performance of the Contract in compliance with the directions or orders of such
officials, but by so doing, the CONTRACTOR shall not be deemed to have prejudiced any claim for
additional compensation, damages, or an extension oftime for completion; provided:
(1) Written notice required. The CONTRACTOR shall give written notice to the Agency
procurement officer.
(A) Prior to the commencement of the performance involved, if at that time the
CONTRACTOR knows of the occurrence of such action or omission;
(B) Within thirty (30) days after the CONTRACTOR knows of the occurrence of such
action or omission, if the CONTRACTOR did not have such knowledge prior to the
commencement of the performance; or
(C) Within such further time as may be allowed by the Agency procurement officer in
writing.
(2) Notice content. This notice shall state that the CONTRACTOR regards the act or omission as
a reason which may entitle the CONTRACTOR to additional compensation, damages, or an
extension oftime. 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 1 Sa(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 iustified. The CONTRACTOR must maintain and, upon request, make
available to the Agency procurement officer within a reasonable time, detailed records to the
extent practicable, and other documentation and evidence satisfactory to the STATE,
justifying the claimed additional costs or an extension of time in connection with such
changes.
b. CONTRACTOR not excused. Nothing herein contained, however, shall excuse the CONTRACTOR
from compliance with any rules or laws precluding any state officers and CONTRACTOR from acting
in collusion or bad faith in issuing or performing change orders which are clearly not within the scope
of the Contrack
c. Price adiustment. Any adjustment in the price made pursuant to this paragraph shall be determined in
accordance with the price adjustment provision of this Contract.
16. Costs and Expenses. Any reimbursement due the CONTRACTOR for per diem and transportation expenses
under this Contract shall be subject to chapter 3-123 (Cost Principles), HAR, and the following guidelines:
a. Reimbursement for air transportation shall be for actual cost or coach class air fare, whichever is less.
ADM. SERV. OFFICE
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b. Reimbursement for ground transportation costs shall not exceed the actual cost of renting an
intermediate-sized vehicle.
c. Unless prior written approval ofthe HOPA is obtained, reimbursement for subsistence allowance (i.e.,
hotel and meals, etc.) shall not exceed the applicable daily authorized rates for inter-island or
out-of--state travel that are set forth in the current Governor's Executive Order authorizing adjustments
in salaries and benefits for state officers and employees in the executive branch who are excluded from
collective bazgaining coverage.
17. Payment Procedures• Final Payment; Tax Clearance.
a. Original invoices required. All payments under this Contract shall be made only upon submission by
the CONTRACTOR of original invoices specifying the amount due and certifying that services
requested under the Contract have been performed by the CONTRACTOR according to the Contract.
b. Subject to available funds. Such payments are subject to availability of funds and allotment by the
Director of Finance in accordance with chapter 37, HRS. Further, all payments shall be made in
accordance with and subject to chapter 40, HRS.
c. Prompt~avment.
(1) Any money, other than retainage, paid to the CONTRACTOR shall be disbursed to
subcontractors within ten (10) days after receipt of the money in accordance with the
terms of the subcontract; provided that the subcontractor has met all the terms and
conditions of the subcontract and there are no bona fide disputes; and
(2) Upon final payment to the CONTRACTOR, full payment to the subcontractor,
including retainage, shall be made within ten (10} days after receipt of the money;
provided that there are no bona fide disputes over the subcontractor's performance
under the subcontract.
d. Final payment. Final payment under this Contract shall be subject to sections 103-53 and 103D-328,
HRS, which require a tax clearance from the Director of Taxation, State of Hawaii, showing that all
delinquent taxes, if any, levied or accrued under state law against the CONTRACTOR have been paid.
18. Federal Funds. Ifthis Contract is payable in whole or in part from federal funds, CONTRACTOR agrees that,
as to the portion of the compensation under this Contract to be payable from federal funds, the
CONTRACTOR shall be paid only from such funds received from the federal government, and shall not be
paid from any other funds. Failure of the STATE to receive anticipated federal funds shall not be considered a
breach by the STATE or an excuse for nonperformance by the CONTRACTOR.
19. Modifications of Contract.
a. In writing. Any modification, alteration, amendment, change, or extension of any term, provision, or
condition of this Contract permitted by this Contract shall be made by written amendment to this
Contract, signed by the CONTRACTOR and the STATE, provided that change orders shall be made
in accordance with paragraph 20 herein.
b. No oral modification. No oral modification, alteration, amendment, change, or extension ofanyterm,
provision, or condition of this Contract shall be permitted.
c. Agency arocurement officer. By written order, at any time, and without notice to any surety, the
Agency procurement officer may unilaterally order of the CONTRACTOR:
(A) Changes in the work within the scope of the Contract; and
ADM. SERV. OFFICE 9
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(B) Changes in the time of performance of the Contract that do not alter the scope of the Contract
work.
d. Adjustments of price or time for performance. If any modification increases or decreases the
CONTRACTOR'S cost of, or the time required for, performance of any part of the work under this
Contract, an adjustment shall be made and this Contract modified in writing accordingly. Any
adjustment in contract price made pursuant to this clause shall be determined, where applicable, in
accordance with the price adjustment clause ofthis Contract or as negotiated.
e. Claim barred after final payment. No claim by the CONTRACTOR for an adjustment hereunder shall
be allowed if written modification of the Contract is not made prior to final payment under this
Contract.
f. Claims not barred. In the absence of a written contract modification, nothing in this clause shall be
deemed to restrict the CONTRACTOR'S right to pursue a claim under this Contract or for a breach of
contract.
g. CPO approval. If this is a professional services contract awarded pursuant to section ] 03D-303 or
103D-304, HRS, any modification, alteration, amendment, change, or extension of any term,
provision, or condition ofthis 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 ofthis 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 not be submitted as an amendment.
20. Chanee Order. The Agency procurement officer may, by a written order signed only by the STATE, at any
time, and without notice to any surety, and subject to all appropriate adjustments, make changes within the
general scope ofthis Contract in any one or more of the following:
(1) Drawings, designs, or specifications, if the goods or services to be furnished are to be
specially provided to the STATE in accordance therewith;
(2) Method of delivery; or
(3) Place of delivery.
a. Adjustments of price or time for performance. If any change order increases or decreases the
CONTRACTOR'S cost of, or the time required for, performance of any part of the work under this
Contract, whether or not changed by the order, an adjustment shall be made and the Contract modified
in writing accordingly. Any adjustment in the Contract price made pursuant to this provision shall be
determined in accordance with the price adjustment provision of this Contract. Failure of the parties
to agree to an adjustment shall not excuse the CONTRACTOR from proceeding with the Contract as
changed, provided that the Agency procurement officer promptly and duly makes the provisional
adjustments in payment or time for performance as may be reasonable. By 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.
ADM. SERV. OFFICE
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. b. Time period fbr claim. Within ten (10) days after receipt of a written change order under
subparagraph 20a, unless the period is extended by the Agency procurement officer in writing, the
CONTRACTOR shall respond with a claim for an adjustment. The requirement for a timely written
response by CONTRACTOR cannot be waived and shall be a condition precedent to the assertion of a
claim.
c. Claim barred after final payment. No claim by the CONTRACTOR for an adjustment hereunder shall
be allowed if a written response is not given prior to final payment under this Contract.
d. Other claims not barred. In the absence of a change order, nothing in this paragraph 20 shall be
deemed to restrict the CONTRACTOR'S right to pursue a claim under the Contract or for breach of
contract.
21. Price Adjustment.
a. Price adiustment. Any adjustment in the contract price pursuant to a provision in this Contract shall
be made in one or more ofthe following ways:
(1) By agreement on a fixed price adjustment before commencement ofthe pertinent performance
or as soon thereafter as practicable;
(2) By unit prices specified in the Contract or subsequently agreed upon;
(3) By the costs attributable to the event or situation covered by the provision, plus appropriate
profit or fee, all as specified in the Contract or subsequently agreed upon;
(4) In such other manner as the parties may mutually agree; or
(5) In the absence of agreement between the parties, by a unilateral determination by the Agency
procurement officer of the costs attributable to the event or situation covered by the provision,
plus appropriate profit or fee, all as computed by the Agency procurement officer in
accordance with generally accepted accounting principles and applicable sections ofchapters
3-123 and 3-126, HAR.
b. Submission of cost or pricine data. The CONTRACTOR shall provide cost or pricing data for any
price adjustments subject to the provisions of chapter 3-122, HAR.
22. Variation in Ouantitv for Definite Ouantiri Contracts. Upon the agreement of the STATE and the
CONTRACTOR, the quantity of goods or services, or both, if a definite quantity is specified in this Contract,
may be increased by a maximum often per cent 0%); provided the unit prices will remain the same except
for any price adjustments otherwise applicable; and the Agency procurement officer makes a written
determination that such an increase will either be more economical than awarding another contract or that it
would not be practical to award another contract.
23. Changes in Cost-Reimbursement Contract. If this Contract is 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:
(I) Description of performance (Attachment 1);
(2) Time of performance (i.e., hours of the day, days of the week, etc.);
(3) Place of performance of services;
ADM. SERV. OFFICE
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' (4) Drawings, designs, or specifications when the supplies to be famished 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 far
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 236, 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, ifthis 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. Publici .The CONTRACTOR shall not refer to the STATE, or any office, agency, or officer thereof, or any
state employee, including the HOPA, the CPO, the Agency procurement officer, or to the services or goods, or
both, provided under this Contract, in any of the CONTRACTOR'S brochures, advertisements, or other
publicityoftheCONTRACTOR. All media contacts with the CONTRACTOR aboutthesubjectmatterofthis
Contract shall be referred to the Agency procurement offices
26. Ownership Rights and Copyright. The STATE shall have complete ownership of all material, both finished
and unfinished, which is developed, prepared, assembled, or conceived by the CONTRACTOR pursuant to
this Contract, and all such material shall be considered "works made for hire." All such material shall be
delivered to the STATE upon expiration ar 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 wananties, or with the warranties described in the Contract documents, whichever
are greater.
ADM. SERV. OFFICE
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, ,
• 28. Audit of Books and Records ofthe 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 Pricine Data. Cost or pricing data must be submitted to the Agency procurement officer and timely
certified as accurate for contracts over $100,000 unless the contract is for amultiple-term or as otherwise
specified by the Agency procurement officer. Unless otherwise required by the Agency procurement officer,
cost or pricing data submission is not required for contracts awarded pursuant to competitive sealed bid
procedures.
If certified cost or pricing data are subsequently found to have been inaccurate, incomplete, or noncurrent as of
the date stated in the certificate, the STATE is entitled to an adjustment of the contract price, including profit
or fee, to exclude any significant sum by which the price, including profit or fee, was increased because of the
defective data. It is presumed that overstated cost or pricing data increased the contract price in the amount of
the defect plus related overhead and profit or fee. Therefore, unless there is a clear indication that the defective
data was not used or relied upon, the price will be reduced in such amount.
30. Audit of Cost or Pricine 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 ConVact 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 home by the purchaser. Therefore, the
CONTRACTOR hereby assigns to STATE any and all claims for overcharges as to goods and materials
purchased in connection with this Contract, except as to overcharges which result from violations commencing
after the price is established under this Contract and which aze not passed on to the STATE under an escalation
clause.
33. Patented Articles. The CONTRACTOR shall defend, indemnify, and hold harmless the STATE, and its
officers, employees, and agents from and against all liability, loss, damage, cost, and expense, including atl
attorneys fees, and all claims, suits, and demands arising out of or resulting from any claims, demands, or
actions by the patent holder for infringement or other improper or unauthorized use of any patented article,
patented process, or patented appliance in connection with this Contract. The CONTRACTOR shall be solely
responsible for correcting or curing to the satisfaction of the STATE any such infringement or improper or
unauthorized use, including, without limitation: (a) furnishing at no cost to the STATE a substitute article,
process, or appliance acceptable to the STATE, (b) paying royalties or other required payments to the patent
holder, (c) obtaining proper authorizations or releases from the patent holder, and (d) furnishing such security
to or making such arrangements with the patent bolder as may be necessary to correct or cure any such
infringement or improper or unauthorized use.
34. Governing Law. The validity of this Contract and any of its temts 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 of
in equity to enforce or interpret the provisions of this Contract shall be brought in a state court of competent
jurisdiction in Honolulu, Hawaii.
35. Compliance with Laws. The CONTRACTOR shall comply with all federal, state, and county laws,
ordinances, codes, rules, and regulations, as the same may be amended from time to time, that in any way
affect the CONTRACTOR'S performance of this Contract.
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36. Conflict Between General Conditions and Procurement Rules. In the event of a conflict between the General
Conditions and the procurement rules, the procurement rules in effect on the date this Contract became
effective shall control and are hereby incorporated by reference.
37. Entire Contract. This Contract sets forth all of the agreements, conditions, understandings, promises,
warcanties, and representations between the STATE and the CONTRACTOR relative to this Contract. This
Contract supersedes all prior agreements, conditions, understandings, promises, warcanties, and
representations, which shall have no further force or effect. There are no agreements, conditions,
understandings, promises, warranties, or representations, oral or written, express or implied, between the
STATE and the CONTRACTOR other than as set forth or as refereed to herein.
38. Severability. In the event that any provision ofthis Contract is declared invalid or unenforceable by a court,
such invalidity or unenforceability shall not affect the validity or enforceability of the remaining terms ofthis
Contract.
39. Waiver. The failure ofthe STATE to insist upon the strict compliance with any teen, provision, or condition
ofthis Contract shall not constitute or be deemed to constitute a waiver or relinquishment ofthe STATE'S tight
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 ofthe STATE'S
rights or the CONTRACTOR'S obligations under the procurement rules or statutes.
40. Pollution Control. If during the performance ofthis Contract, the CONTRACTOR encounters a "release" or
a "threatened release" of a reportable quantity of a "hazardous substance," "pollutant," or "contaminant" as
those terms are defined in section 128D-1, HRS, the CONTRACTOR shall immediately notify the STATE and
all other appropriate state, county, or federal agencies as required by law. The Contractor shall take all
necessary actions, including stopping work, to avoid causing, contributing to, or making worse a release of a
hazardous substance, pollutant; or contaminant, and shall promptly obey any orders the Environmental
Protection Agency or the state Department of Health issues in response to the release. In the event there is an
ensuing cease-work period, and the STATE determines that this Contract requires an adjustment ofthe time for
performance, the Contract shall be modified in writing accordingly.
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BUDGET
From July 1, 7.006 to June 30, 2007
Program Implementation and Compliance Assistance $750,000.00
Source of funds:
S-07-313-H-372
Exhibit "A"
ADM. SERV. OFFICE
LOG N0.07-043